| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Ms. Joann H. Langston | Chairperson | |
| Mr. Walter T. Morrison | Member | |
| Mr. Roger W. Able | Member |
APPLICANT REQUESTS: In effect, that her discharge for disability with severance pay be changed to a medical retirement.
APPLICANT STATES: That she was placed on the Temporary Disability Retired List (TDRL) on 1 October 1996 and her disability was rated at 50 percent. She received numerous medical evaluations during her time on the TDRL and received surgery in January 2001 with no improvement in her condition. Her conditions include probable acute zonal occult outer retinopathy (a neurological condition which should read severe chronic cervical neck stenosis with left corpectomy and allograft on 5 January 2001); quadriplegia due to increased stenosis; glaucoma suspect due to increased pressures related to spinal stenosis; neurogenic bladder dysfunction due to spinal stenosis disease; double vision due to neurological disease; degenerative joint disease in the right knee and awaiting knee replacement; chronic pain in the right knee and face; bilateral tarsal tunnel syndrome of feet due to neurological damage; chronic numbness of feet, arms, and thighs due to increasing quadriplegia; and anxiety and depression related to her multiple conditions.
EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein was obtained from her TDRL packet.
The applicant was born on 21 April 1953. She was commissioned and entered active duty on 3 January 1993 in the Army Nurse Corps. She was assigned to Womack Army Medical Center, Fort Bragg, NC as a Community Health Nurse.
A North Carolina Department of Human Resources, Division of Services for the Blind letter dated 29 June 1995 indicates the applicant had been counseled about her attending the Division of Services for the Blind Evaluation Unit.
On 4 January 1996, the applicant underwent a medical evaluation board (MEB). Her supervisor had provided a memorandum for the MEB in which she noted the applicant was given a physical profile in January 1995. The profile indicated her medical condition was scotoma (an area of depressed vision within the visual field, surrounded by an area of less depressed or normal vision) of the left eye, cataract with limitations of no nighttime driving and no driving military vehicles. Her assigned duties were changed to limit her driving to and from home visits. In February 1995, her physical profile was updated with the addition of limitation of work as tolerated. Her eye problems had increased so her assigned duties were decreased to accommodate her limitations.
The MEB Narrative Summary noted the applicant’s chief complaint as decreased vision in left eye greater than right eye. She had been extensively examined by military doctors and by a neuro-ophthalmologist consultant from the University of North Carolina at Chapel Hill since she first presented with a complaint of scotoma in the central left visual field in December 1993. She more recently developed some facial neuropathy. Although she was diagnosed with probable acute zonal occult outer retinopathy, glaucoma suspect, history of strabismus with intermittent extropia (i.e., walleye, resulting in double vision), and facial neuralgias, a definitive diagnosis could not be determined. She was referred to a physical evaluation board (PEB) for the four mentioned diagnoses. On 6 February 1996, the applicant agreed with the MEB’s findings and recommendation.
On 16 April 1996, an informal PEB found the applicant to be physically unfit due to probable acute zonal occult outer retinopathy with suspected glaucoma, strabismus, and facial neuralgia, Veterans Affairs Schedule of Rating Disabilities (VASRD) codes 6099 (diseases of the eye, unlisted conditions), 6006 (retinitis), and 6078 (impairment of central visual acuity, vision in one eye 20/100). It was determined her condition had not stabilized to the point that a permanent degree of severity could be determined and she was placed on the TDRL with a 50 percent disability rating.
On 7 May 1996, an MEB addendum was prepared regarding an additional diagnosis of mild degenerative joint disease in the right knee. It was noted the applicant was status post right medial meniscectomy in 1976 and her functional status had been excellent until recently when she noted the onset of mild swelling and locking of the right knee. Her functional status was good. She concurred with the addendum on 9 May 1996.
On 9 May 1996, the applicant nonconcurred in the findings of the informal PEB and demanded a formal hearing. She rebutted that the loss of her vision in both eyes had permanently ended her military and nursing career and felt that the PEB results should be reviewed and increased based on her career loss. On 30 May 1996, she was notified that her formal PEB would be held on 1 August 1996. On 25 July 1996, she stated that she wished to accept the informal findings of a 50 percent disability rating and withdrew her request for a formal PEB.
A VA rating decision dated 8 May 1997 indicates the applicant was granted service connection for occult retinopathy with an evaluation of 70 percent.
The applicant underwent a TDRL re-evaluation on 28 November 1997. The Narrative Summary noted that radiographs showed mild osteophytic changes of the lumbar spine and right knee, a range of motion in the right knee at 0-100 degrees, and severe degeneration of the medial compartment of the right knee.
It was noted that she had been started on Tegretol and that seemed to help with her recurrent right facial pain. A recognized neuro-ophthalmologist at the Wilmer Eye Institute was unable to find objective physical findings that would explain her various complaints. Her best-corrected visual acuity was 20/20- in each eye. A prism diopter base-in was applied to each spectacle. She was diagnosed with convergence insufficiency; glaucoma suspect with borderline intraocular pressure, normal optic nerves, and nonspecific constriction of the visual fields in both eyes; and recurrent episodes of right facial pain of questionable etiology. She was referred to a PEB. The PEB recommended she remain on the TDRL for these diagnoses. Her orthopedic condition was not rated. On 6 November 1997, the applicant concurred with the recommendations.
The applicant underwent another TDRL re-evaluation on 15 October 1999. The Narrative Summary noted that her visual acuity was 20/25 in the right eye and 20/20 in the left eye with best correction. She was no longer on Tegretol for her recurrent facial neuralgia as it was gradually becoming ineffective. She was being evaluated for a trial of acupuncture to assist with her recurrent facial neuralgia. The Orthopedic Clinic found the active range of motion in her right knee was 5-130 degrees with pain and recommended she use a cane. A neuro-ophthalmologist from the University of North Carolina at Chapel Hill found a stable convergence paresis. Her visual function appeared to be slightly improved with prism in the spectacles although she continued to have problems with diplopia (double vision) at near. She was diagnosed with right knee medial compartment degenerative joint disease, severe; lower lumbar radiculopathy with questionable tarsal tunnel syndrome contributing to the first diagnosis; convergence paresis, stable, unknown etiology; recurrent trigeminal neuralgia, stable, unknown etiology; migraine headache syndrome, stable; and a history of Hashimoto’s thyroiditis, 89, stable. She was referred to a PEB.
The PEB found the applicant to be physically unfit for diagnoses of recurrent trigeminal neuralgia at a 10 percent disability rating and convergence paresis at a 0 percent disability rating. The PEB noted that the other diagnoses were not ratable as they were not unfitting impairments when the applicant was placed on the TDRL. It was noted that her visual function appeared “improved” as described in the TDRL interim summary and her visual acuity with correction in the right eye to 20/25 and in the left eye to 20/20 was appropriately rated as 0 percent under the VASRD code 6079. Her facial pain trigeminal neuralgia was rated as mild using intensity and duration as parameters according to U. S. Army Physical Disability Agency (USAPDA) policy. It was recommended she be separated with severance pay. On 28 October 1999, the applicant nonconcurred with the findings and recommendation and demanded a formal hearing.
An MEB Addendum dated 12 November 1999 noted that the applicant thought her diplopia was getting worse and her vision dimmer. Earlier, it was suggested that the prisms on her glasses be increased. On examination her best-corrected vision in her right eye was 20/25 and in her left eye 20/30. She had a dense constricted visual field to about 10 degrees. She was diagnosed with increased exotropia, secondary to convergence paresis; constant diplopia, secondary to the first diagnosis; constricted visual field with unknown etiology; and ocular hypertension without signs of glaucoma at that time. It was recommended she follow up with a neuro-ophthalmologist for evaluation of her convergence paresis and follow up with a neurologist for evaluation of her trigeminal neuralgia. She concurred with the addendum. She apparently was retained on the TDRL.
On 30 November 1999, the U. S. Army Physical Evaluation Board (USAPEB) returned the applicant’s case for additional information on whether the diagnosis of “probable acute zonal occult outer retinopathy” was still correct, what the ocular pathology of the applicant was, how this functionally affected the applicant in activities of daily living, and what the caused her restricted visual field. A response to this inquiry is not available.
On 13 June 2000, the applicant was evaluated for cervical spine spondylosis and left arm numbness. A cervical spine MRI scan revealed signal abnormality change at C2-4.
On 5 September 2000, the applicant was evaluated for a possible neurogenic bladder. It was noted she had several neurological injuries both in the lumbar region and the sacral region. She had questionable stress urinary incontinence as well as perhaps an overflow incontinence. She had abnormal sensation of the bladder which could be related to her neurological injuries.
On 19 September 2000, the applicant reviewed her urodynamics and her most recent MRI with the neurosurgery clinic. Her MRI did not show any intramedullary abnormalities in the C2 to C4 area. It was noted she had some pelvic floor weakness resulting in stress incontinence but she could also have some sensation issues associated with her bladder which could be related to her spinal cord. She was offered a multi-level corpectomy at C5, C6, and C7 with a graft between C4 and C7 and a plate. She decided to pursue surgery.
On 5 January 2001, the applicant was hospitalized for a C5, C6, and C7 corpectomy and C4-T1 fusion.
On 11 June 2001, a cervical MRI revealed severe spinal canal stenosis at C3 – C4 and also C7 – T1. On 26 June 2001, a cervical MRI led to diagnoses of multi-level degenerative disc disease with disc bulging and some neural foraminal encroachment and possible vertebral hemangioma in T3.
An Ophthalmology report dated 26 June 2001 indicated the applicant had long-standing exotropia adequately controlled with Fresnel prisms, a history of convergence insufficiency, a history of ocular hypertension with intraocular pressures normal this date, and a difficult facial pain adequately controlled with Neurontin therapy. Visual fields charts were reviewed and normal visual fields were revealed. Her visual acuity with corrective lens was determined to be 20/25 in both eyes.
Apparently, the applicant underwent another TDRL re-evaluation around August 2001. On 14 August 2001, the USAPEB returned the applicant’s case for additional information – the same information requested on 30 November 1999. A response to this inquiry is not available.
On 14 September 2001, the applicant was evaluated by an informal PEB. Only the second page to the Physical Evaluation Board (PEB) Proceedings, DA Form 199, is available. She did not concur with its findings and recommendation and demanded a formal hearing. She rebutted that her concern was that the PEB did not consider rating her for her neck/spinal condition when according to Doctor A___ at the Department of Veterans Affairs in Fayetteville, NC the reason for her visual problems was due to the problems with her spinal cord. Also, the DA Form 199 stated that her visual fields were normal in both eyes. She contends that statement was not true and her visual field test would show that not to be true.
An undated letter from Doctor A___ states that the applicant has multiple serious neurological problems. She had an anterior corpectomy with allograft and fusion of the neck and she was diagnosed as having severe cervical neck spondylosis with myelopathy. A subsequent MRI showed severe stenosis above and below the surgical site. She is developing many symptoms related to this injury which could deteriorate to quadriplegia.
On 19 October 2001, the USAPEB determined that the applicant’s rebuttal provided no new substantive medical information not previously considered. It affirmed the decision of the informal PEB which found her to be unfit with a disability rating of 10 percent. It informed her that she was placed on the TDRL for her eye condition and the trigeminal neuralgia. When a soldier is removed from the TDRL, the PEB is permitted to only rate the conditions for which he or she was placed on the TDRL. In some instances, conditions which develop while on the TDRL that are the direct result of a condition for which a soldier is placed on the TDRL may be ratable. Her cervical spine condition was not the result of any condition for which she was placed on the TDRL; therefore, any sequelae of the cervical spine could not be rated by the PEB. The USAPEB noted that the ophthalmologist reviewed her visual field charts and determined that her visual fields were normal. Therefore, the rating was based upon her visual acuity. With acuity of 20/25 in both eyes as determined by the ophthalmologist, the appropriate rating was 0 percent. The rating of 10 percent for her facial pain was appropriate. Since her combined rating was less than 30 percent and she did not have 20 years of active duty service, she would be removed with severance pay. A date for a formal PEB would be coordinated with her.
On 30 October 2001, a formal PEB found the applicant to be physically unfit due to diagnoses of residual facial pain (Trigeminal Neuralgia where Neurontin has been very helpful), VASRD code 8405, with a 10 percent disability rating and for convergence insufficiency with long standing exotropia adequately controlled with Fresnel prisms with visual acuity in both eyes of 20/25 with normal intraocular pressures and visual field charts which showed normal visual fields in both eyes, VASRD code 6079, with a 0 percent disability rating. Her neck condition was not rated as she had not been placed on the TDRL for this condition. It was recommended she be separated with severance pay.
In December 2001, the applicant underwent a right total knee arthroplasty. She was also diagnosed with diabetes type II.
On 29 December 2001, the applicant nonconcurred in the findings and recommendation. However, she would submit no statement of rebuttal. Her eye doctor had retired and several efforts to contact him to obtain an updated diagnosis (or, as she informed the Board analyst, to obtain her records) were unsuccessful.
The findings of the formal PEB were approved on 7 January 2002.
Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states that a soldier’s name may be placed on the TDRL when it is determined that the soldier is qualified for disability retirement but for the fact that his or her disability is determined not to be of a permanent nature and stable. The TDRL is used in the nature of a “pending list.” It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Medical examiners and adjudicative bodies will carefully evaluate each case. They will recommend removal of the soldier’s name from the TDRL as soon as the soldier’s condition permits. Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed by Title 10, U. S. Code, section 1210.
Department of Defense Instruction 1332.38, paragraph E3.P6.2.4 states that conditions newly diagnosed during TDRL periodic physical examinations shall be compensable when the condition is unfitting and the condition was caused by the condition for which the member was placed on the TDRL or the evidence of record establishes that the condition was incurred while entitled to basic pay or as the proximate result of performing duty and was an unfitting disability at the time the member was placed on the TDRL.
The VASRD is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition.
The VASRD, section 4.75 states that ratings on account of visual impairments are to be based only on examination by specialists. Such special examinations should include uncorrected and corrected central visual acuity for distance and near. The best distant vision obtainable after best correction by glasses will be the basis of rating except in cases of keratoconus in which contact lenses are medically required. The lowest ratable visual impairment under any VASRD code, including code 6078, is 20/40.
The VASRD, code 8405, neuralgia of the fifth (trigeminal) cranial nerve provides a 10 percent rating when the pain is moderate. VASRD code 6006, in chronic form, provides for a 10 to 100 percent rating for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity.
The mission of the Veterans Benefits Administration is to provide benefits and services to veterans in a responsive, timely, and compassionate manner in recognition of their service to the nation. Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error. The applicant has failed to submit evidence that would satisfy this requirement.
2. The applicant was placed on the TDRL only for visual acuity problems, possible retinitis, and facial neuralgia. Her supervisor had provided a memorandum for the PEB indicating that the applicant was unable to perform her duties due to her vision problems. Even the applicant, in her initial nonconcurrence with the findings of the PEB, mentioned only her vision problems. No mention was made that she was unable to perform her duties due to knee, neck, or other conditions.
3. The applicant was on the TDRL for the maximum five years and underwent several re-evaluations. Although several other serious conditions developed during this time, the conditions for which she was initially placed on the TDRL stabilized or improved. Her last re-evaluation found that her exotropia was adequately controlled with Fresnel prisms and her facial pain was adequately controlled with Neurontin therapy. The Board notes that she stated Doctor A___ said the reason for her visual problems was due to the problems with her spinal cord; however, while the available undated letter from Doctor A___ states that she has multiple serious neurological problems it does not state that her spinal cord condition was the cause of her vision problems. In any case, since she was not rendered unfit due to her spinal cord problem, even if the evidence did show that problem was causing her vision problems it would not be a ratable condition.
4. The applicant’s 26 June 2001 re-evaluation found that her vision with corrective lens was 20/25 in both eyes. This level of impairment is not ratable under the VASRD. The Board notes that the North Carolina Department of Human Resources, Division of Services for the Blind may have found her to legally blind; however, she does not provide the basis for this finding. Competent medical authority at the USAPDA found that her visual field charts were normal. She provides no evidence to show otherwise. Two inquiries were made concerning the diagnosis of “probable acute zonal occult outer retinopathy” and there is no evidence either inquiry was answered. Her facial pain was found to be adequately controlled; therefore, a 10 percent rating appears to be appropriate.
5. If the applicant believes that medical records from her doctor who is now retired would substantiate her contention that her corrected vision was worse than 20/25 or that her visual field charts were not normal or that her facial pain was not controlled, she should contact the County Medical Society where the physician had his practice for assistance in obtaining those records. She may then resubmit her application to the Board with the additional evidence.
6. Any rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.
7. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__jhl___ __wtm___ __rwa___ DENY APPLICATION
| CASE ID | AR2001063506 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020314 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 108.01 |
| 2. | 108.02 |
| 3. | 108.04 |
| 4. | |
| 5. | |
| 6. |
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