IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110014053 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, his physical disability rating be increased.

2.  He states:

* the rating of his eye and his counsel failed to express the future effects to his other eye 
* his rating was at 40 percent (%) while on the temporary disability retired list (TDRL) and he was flagged
* he now falls under the grandfather clause

3.  He provides a self-authored statement.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant enlisted in the Regular Army on 2 September 1980.  

3.  His Optional Form 275 (Medical Record Report) indicates that on 26 June 1984 he was pounding a metal sledge hammer on a metal track on a vehicle and felt something go into his right eye.  The medical document indicates he was subsequently seen at William Beaumont Army Medical Center and was found to have had motion vision and a 3 millimeter sclera laceration in the pars plana region at the 2 o’clock position in the right eye.  There was also a mid upper eyelid laceration involving the lid margin of the right eye.  

4.  On 2 November 1984, he was evaluated by a Medical Evaluation Board (MEB).  The MEB found the applicant had a serious double perforating injury to his right eye with an exit wound adjacent to the optic nerve in that eye with a glial scar affecting the macula.  The MEB proceedings indicated the approximate date of origin was 26 June1984, was incurred while entitled to base pay, and was permanently aggravated by service.  He indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  On 6 November 1984, he agreed with the findings and recommendation of the MEB.  He was referred to a Physical Evaluation Board (PEB).  

5.  On 21 November 1984, an informal PEB determined the applicant was physically unfit due to a double perforating injury of the right eye with current visual acuity OD (Latin meaning oculus dexter for the right eye) varying between 20/400 and count fingers at 6 feet.  Visual acuity OS (Latin meaning oculus sinister for the left eye) was 20/15.  His Veterans Administration (VA) Schedule for Rating Disabilities (VASRD) code was 6009.  Activity restriction at the time was the basis of the rating.  Comments on the PEB proceedings indicated:

	a.  the applicant’s condition supported by medical documentation was considered sufficient evidence of physical unfitness under the provisions of Army Regulation 635-40, paragraph 2-1.

	b.  the applicant’s physical impairments, brought about by an eye injury, were of such a nature that evaluation of a permanent degree of severity was not possible at that time.  

	c.  it was noted the hearing loss recorded on the Standard Form 88 (Report of Medical Examination) and Standard Form 93 (Report of Medical History) were not confirmed by the more sophisticated testing of the audiology evaluation of 18 September 1984.  


6.  The 21 November 1984 informal PEB recommended the applicant be placed on the TDRL with reexamination during August 1985 at a combined disability rating of 30%.  The applicant didn’t concur with the findings and recommendations of the PEB and demanded a formal hearing with a personal appearance.  He requested regularly appointed counsel represent him.  

7.  On 15 January 1985, a formal PEB found the applicant physically unfit and recommended a combined rating of 40% and that he be placed on the TDRL with reexamination during January 1986.  The PEB proceedings listed his medical conditions as a double perforating injury of the right eye with loss of vision OD and vision OS 20/15 (VASRD codes of 6009 and 6070).  Comments on the PEB proceedings indicated:

	a.  the applicant’s condition supported by medical documentation was considered sufficient evidence of physical unfitness under the provisions of Army Regulation 635-40, paragraph 2-1.

	b.  the applicant’s physical impairments, brought about by an eye injury, were of such a nature that evaluation of a permanent degree of severity was not possible at that time.  

	c.  while on the TDRL, although his disability was presently rated at 40%, he would actually be in receipt of 50% of basic pay status.

	d.  it was requested that a TDRL examination include a study of visually evoked response.

8.  His formal PEB was reconsidered on 15 January 1986.  The PEB found the applicant was unfit and recommended a combined disability rating of 30% and that he be permanently retired from the service.  The PEB listed his medical conditions as a double perforating injury of the right eye with loss of vision OD and vision OS was 20/15 (VASRD codes of 6009 and 6070).  Comments on the PEB proceedings indicated:

	a.  the applicant’s condition, supported by medical documentation, was considered evidence of physical unfitness under the provisions of Army Regulation 635-40.

	b.  although some change in the applicant’s medical condition could be anticipated, for administrative adjudication purposes the disability was considered to have stabilized at the degree of severity indicated above.  Therefore, permanent retirement was recommended.
	c.  the PEB informally reconsidered this case based on the MEB addendum of 22 November 1985.  The DA Form 199 (PEB) was superseded.  

9.  The applicant didn’t concur with the 15 January 1986 formal PEB findings and recommendation, but he waived a formal hearing and submitted a written appeal.  

10.  In his rebuttal, dated 27 January 1986, he attested the 30% disability rating was unjust because of the following reasons:

	a.  he still had the metallic foreign object in his right eye that was never removed.  It frequently caused him severe blurring vision and moderate to severe pain.  

	b.  the growth of a cyst at the bottom of his right eye caused him great pain and disturbance despite continuous treatments.  

	c.  his condition was previously rated at 40% on the TDRL after a formal hearing in his case.

	d.  his condition may worsen in the future.  Despite the last addendum of 22 November 1985 submitted to the PEB, no evidential documentation or proof had been provided to substantiate his condition was stabilized and that it would not worsen.  

11.  On 3 April 1986, the U.S. Army PEB notified the applicant of receipt of his rebuttal letter.  He was informed his letter was carefully considered and his entire case was reviewed; however the board adhered to its findings and recommendations as set forth in his informal hearing.  The board also informed him that the inclusion of the cyst of his right eye, although recurrent, was neither unfitting nor indicative of continuing active disease of the eye.  The extra 10% rating granted by his original January 1985 board was due to continuing active disease.  The U.S. Army PEB felt the active disease process no longer existed and his condition had stabilized sufficiently for adjudication purposes.  

12.  Orders D83-10, dated 5 May 1986, show that the applicant was relieved from assignment and duty because of physical disability, effective 3 June 1986 and permanently retired on the date following with a 30% disability rating.

13.  The applicant provided a 3-page self-authored statement attesting his physical disability rating is in error.  He states the Department of Defense Instruction 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) and Army Regulation 635-40, Appendix B, modified the VASRD.  He states the ratings can range from 0% to 100% and can be raised in increments of 10.  He references the requirements for permanent disability retirement and the legal rights pertaining to informal and formal PEB hearings.  He explains the differences between the Department of the Army and VA usage of rating disabilities.  He claims he now suffers from sleep disorders and depression as well as the injury to his eye.  He’s blind in one eye and it’s affecting his other eye plus he’s getting older.  He states his superiors know of his disabilities and he has been counseled several times because he’s no use to them.  He faces mental anguish, emotional distress, and problems affecting employee benefit plans.  He references Title 29, U.S. Code, section 1001 (Employment Retirement Income Security Action of 1974).  

14.  His service record is void of evidence which indicates he applied to the VA.

15.  Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

16.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.

17.  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.  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.

18.  VASRD Schedule of Ratings – Section 4.79 - Diseases of the eye:  

* 6000 - Uveitis
* 6001 - Keratitis
* 6002 - Scleritis
* 6003 - Iritis
* 6004 - Cyclitis
* 6005 - Choroiditis
* 6006 - Retinitis
* 6007 - Hemorrhage, intra-ocular, recent
* 6008 - Retina, detachment of
* 6009 - Eye, injury of, unhealed
 
19.  The VASRD states that VASRD Code 6009 (Unhealed eye injury) states diseases of the eye will be evaluated on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation and is rated at:

* 60% with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months
* 40% with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months
* 20% with incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months
* 10% with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months

20.  VASRD Code 6070 (In the other eye) states 30% with blindness in one eye, having only light perception.  

21.  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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

22.  A grandfather clause is a legal term used to describe a situation in which an old rule continues to apply to some existing situations, while a new rule will apply to all future situations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service record is void of medical documentation which indicates the injury to his right eye had affected his left eye.  

2.  The evidence of record shows the applicant underwent an MEB on 2 November 1984.  He was diagnosed as having a serious double perforating injury to his right eye with an exit wound adjacent to the optic nerve in that eye with a glial scar affecting the macula.  

3.  On 15 January 1985, the applicant and his counsel appeared before the formal PEB and the applicant's disability rating for double perforating injury of the right eye was increased from 30% to 40% due to an additional 10% for a continuing active disease.  

4.  On 15 January 1986, a reconsideration of his PEB was conducted in which the board recommended a disability rating of 30% for a double perforating injury of the right eye with loss of vision (VARSD codes 6009 and 6070).  The rating was reduced by 10% because his condition had stabilized.  The extra 10% rating granted by his original January 1985 board was due to continuing active disease.  There is no evidence to show that he had a continuing active disease at the time of his TDRL re-evaluation.  

5.  The available evidence does not show his eye injury met the criteria for a higher rating.  Since there is insufficient evidence to show his disability was improperly rated by the PEB in January 1986, there is no basis for granting the applicant's request to increase his disability rating.

6.  The applicant’s contention regarding the grandfather clause is noted.  However, this clause does not appear to be applicable in this case, and he does not explain how it might be applicable.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 


are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20110014053





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ABCMR Record of Proceedings (cont)                                         AR20110014053



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