RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01506
BRANCH OF SERVICE:  Army	BOARD DATE:  20150204
SEPARATION DATE:  20040309

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Tanker) medically separated for right eye injury and chronic back pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P4/L3/S2 profile and referred for a Medical Evaluation Board (MEB).  The right eye injury and chronic back pain conditions, characterized as “uncorrected vision, right” and “mechanical low back pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “right eye injury and chronic back pain” as unfitting, rated 10% and 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “It’s been 12 years and I am still without vision in my right eye.  Even with the corrective lense that was given to me I am seeing double.  Every so often I feel a piercing pain like I have something in my eye but when I check nothing is there.  I was recently in processing with the NYPD traffic division and I was disqualified because of my vision.  As for my lower back portion the issue still remains the same I try my best I to avoid situations that would be aggravate it.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20031125	VA - (1 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Eye Injury	6090-6079	10%	Aphakia of Right Eye	6029	30%	20031106	
Chronic Back Pain	5299-5237	10%	Mechanical Low Back Pain w/Degenerative Changes L5-S1	5242	20%	20031104	
Other x 0 (Not in Scope)			
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20040406 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  

Right Eye Injury Condition.  The CI sustained an injury to his right eye and eyelid by a glass bottle on 1 June 2003, which caused a rupture of the cornea and the sclera and destruction of parts of the iris.  During surgery on 2 June 2001, the lens had to be removed resulting in aphakia (absence of lens); the cornea was repaired; and the upper eyelid was sutured.  Healing was marked by pigment over the laceration site of the superior portion or the cornea overlying the iris.  A rigid gas permeable (RGP) contact lens was considered prior to eyelid repair and possible intraocular lens placement.  On 3 June 2002, the CI was treated for a 2-day history of a “sore eye” after being poked on the lid with a topical ophthalmologic medication consisting of an antibiotic and steroid mixture.  Ptosis (drooping of the eyelid) of the right eyelid was surgically corrected on 1 July 2002.  The CI’s visual acuity with an RGP was 20/70 on 6 November 2003; however, aphakia, diplopia (double vision), and exotropia (outward turning of the eye) were all noted to be present.  Strabismus (eye misalignment) of the right eye secondary to the trauma was initially treated with a trial of a prism (Fresnel) lens (to bring an image in sync with that of the other eye) on 28 February 2003.  Strabismus surgery to correct the diplopia was carried out on 6 March 2003.  A special lens (bitoric) was dispensed to provide better centration (focus) on 9 April 2003.  At the MEB examination dated 20 May 2003, the CI reported that he “lost vision the right eye, due to injury.  I have no lense in my right eye.  Only way I can see at least 35-40% is with a hard contact lense [sic]” and was “operated on June 3, 2001 . . . [and] twice in the past 2 years.”  A MEB physical examiner noted the CI’s corrected vision was 20/60 for the right eye with a RGP and 20/20 for the left eye.  A temporal scleral “bump” (buckling) was noted on 14 July 2003; and, 4 days later the ophthalmologist opined that there was no need for excision at that time.

A permanent P4 profile dated 18 July 2003 was issued for an absent lens in the right eye (aphakia) following trauma and vision uncorrectable to standard without a contact lens.  Limitations included no driving military vehicles, handling, carrying, or firing weapons or activities requiring clear or binocular vision, and no running in unfamiliar surroundings.  The commander’s statement dated 15 August 2003 indicated “As a tanker, he cannot drive or be a gunner.”  A line of duty determination was reported on 25 August 2003.  The MEB narrative summary (NARSUM) dated 28 August 2003 noted the CI sustained a severe penetrating injury to the right eye in June 2001 and underwent immediate surgery with a benign post-operative course except for double vision and decreased visual acuity, which “could only be corrected with a ‘non-gas permeable’ corrective lens.  Severe difficulties in fitting and adjusting this corrective lens have resulted in poor wearing techniques, as the service member is unable to attain a proper fit with the contact lens.  It is poorly tolerated in spite of maximal and good fit.”  Strabismus surgery corrected the vertical malalignment, but the horizontal malalignment persisted.  The CI was given a permanent P4 profile.  The MEB Consultation Addendum based on an examination performed on 6 November 2003 reported visual acuity is count fingers uncorrected in the right eye that improved to 20/70 with the use of the contact lens; and, visual acuity in the left eye was 20/20.  Intraocular pressures were normal bilaterally and ocular alignment of the right eye was exotropia (outward) in primary gaze.  
Goldmann visual field testing recorded constant diplopia in all quadrants of vision.  External examination of the right eye complex revealed mild upper eyelid ptosis, a large and dense corneal scar extending from 1100 to 0200, and marked iris tissue disruption.  Dilated fundus (back of the eye) examination was normal in the left eye and was significant for aphakia, pigmented cells in the vitreous (clear fluid in the eye), and a scleral buckle, but was otherwise normal.

At the VA Compensation and Pension (C&P) examination dated 4 November 2003, performed more than a month prior to separation, the CI reported four hospitalizations as a consequence of his right eye injury in June of 2001, and he wore a contact [lens] in his right eye.  The examiner noted ptosis with residual exotropia of his right eye.  The remainder of the clinical eye examination was normal as was the neurologic examination.  A more detailed evaluation reported a mild right upper eyelid ptosis and a large residual scar from the corneal laceration repair with multiple suture scars and traumatic iris distortion.  A follow-up ophthalmology clinic noted dated 6 November 2003 recorded visual acuity of the right eye with a RPG contact lens as 20/70 and noted aphakia, diplopia, and exotropia.  A binocular diplopic field test (to test for double vision) performed on 6 November 2003 found the “Pt is diplopic in all quadrants.”

The Board directed attention to its rating recommendation based on the above evidence.  The Informal PEB rated the right eye injury 10% using the code 6090-6079 (diplopia-Vision in one eye 20/100 and other eye 20/40) noting aphakia, correctable with a contact lens, post-operative residual diplopia, and visual acuity 20/70 in the right eye and 20/20 in the left eye.  The VA assigned a 30% rating using code 6029 (aphakia of the right eye).  IAW 38 CFR §4.84a the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 6029 has a minimum rating of 30% to be applied to the unilateral or bilateral condition and is not to be combined with any other rating for impaired vision.  When only one eye is aphakic, the eye having poorer corrected visual acuity will be rated on the basis of its acuity without correction, which in this case is “count fingers” that also rates 30% using code 6070.  In the alternative, four quadrants of diplopia would be rated IAW VASRD §4.84a “Note: (3)  When the diplopia field extends beyond more than one quadrant or more than one range of degrees, the evaluation for diplopia will be based on the quadrant and degree range that provide the highest evaluation [and] Note: (4) When diplopia exists in two individual and separate areas of the same eye, the equivalent visual acuity will be taken one step worse, but no worse than 5/200.”  Apparently, the PEB rated according to aforementioned Note (4).  However, the problem with the reported four quadrants of diplopia is that the defect in degrees was not recorded and the worst measurement is unknown.  Therefore, while speculative, the best case scenario would apply code 6074, which is the equivalent of 5/200 with 20/40 IAW 4.75(c) (if visual impairment of only one eye is service-connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment) would rate 30%.  Ptosis, unilateral or bilateral, using code 6019 is evaluated based on visual impairment or, in the absence of visual impairment, on disfigurement (diagnostic code 7800).  But the ptosis neither caused nor contributed to visual impairment nor was it disfiguring.  Therefore, the Board after discussing the totality of the right eye injury favored the approach to rate the disability based on the aphakia.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the residuals of the right eye injury condition.

Chronic Back Pain Condition.  The earliest entry related to back pain in the service treatment record was dated 4 December 1998 at which time the CI complained of pain without radiation off and on for approximately a year with a severity of 5-6/10.  He had a slight limp and a full range-of-motion (ROM) and a normal examination.  A note dated 31 July 2000 referred to back pain since “98.”  A limited examination was recorded with “ROM 90%” and the remainder of the note was illegible.  A follow-up note on 11 August 2000 noted negative obvious deformities; negative hand to toe touch, and negative tenderness to palpation.  
The CI denied radicular symptoms and had no changes in bowel and bladder habits.   A note dated 16 August 2000 referred to an auto accident in January 1998; and, the impression of mechanical low back pain (LBP) was made by a physical therapist.  Muscle relaxant and nonsteroidal anti-inflammatory medications were prescribed on 2 October 2000 and intramuscular Tramadol (a narcotic-like pain reliever for pain) was given on 5 December 2001.  Orthopedic evaluation on 28 December 2001 noted no tenderness to palpation, flexion 45 degrees, extension 20 degrees, and right and left tilt 25 degrees with pain.  At the MEB examination dated 20 May 2003, the CI reported recurrent back pain due to lifting heavy objects and MOS.  The MEB physical exam noted clinical evaluation of the spine was checked in the normal column.  An orthopedic examination on 30 June 2003 noted the CI had a motor vehicle accident in 1998 while driving a military transport vehicle and indicated “flexion 10 cm to floor” (approximately 90 degrees).  The remainder of the examination note was illegible.  A permanent L3 profile for LBP was included in the issuance dated 23 July 2003 for the eye condition (see above).  X-rays dated 27 August 2003 for lower back pain with a normal examination and without a neurological deficit were reported to be normal for the lumbosacral spine.  The MEB NARSUM dated 9 September 2003 indicated the CI “sustained a severe lifting injury to the low back” when deployed, and the medical records were missing for the encounters. The CI was “seen at physiotherapy and given supportive and rehabilitative exercises.”  However, pain persisted and he CI had “difficulty lifting, running, jumping, mounting and dismounting military tactical vehicles.”  Examination revealed: 

some paravertebral muscle spasm on the right side with flattening of the lumbosacral lordosis.  Forward bend[ing] brought the fingertips to within 50 cm of the floor with the complaint of pain at the right lower back.  Palpation [produced] vocal expression of discomfort.  Lateral bend[ing] brought the fingertips to the fibular head on the left and to the knee joint on the right with a complaint of discomfort.  Hyperextension [was] to 20 degrees with vocal complaints of discomfort.

Neurological evaluation was unremarkable. “X-ray evaluation of the lumbosacral spine was essentially within normal limits, except for obvious degenerative changes at the L5/S1 facets.”  The diagnosis of mechanical LBP with an onset in August 2002 was made.

At the VA C&P exam performed on 4 November 2003, a month after separation, the CI recalled slipping on ice back in 1998.  Back pain developed several days later, and he was treated conservatively at sick call.  In 1999, he was involved in a minor motor vehicle accident and developed back pain afterwards. However, the record indicated the CI was a restrained driver of a Humvee traveling 65 mph, and he was hit from behind by a truck that was going slighter faster.  Pain was reported to be 60% of the time notably after sitting stationary for over 1½ hours; and he had difficulty lifting heavy weights.  The CI had been on bed rest one time for his back pain.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~2 Years 11 Mo. Pre-Sep
	VA C&P ~ 01 Mo. Post-Sep based on PT 
	VA C&P P ~ 01 Mo. Post-Sep
	
Flexion (90 Normal)	45	45	75	
Extension (30)	20	15	20	
R Lat Flexion (30)	25	25		
L Lat Flexion (30)	25	25		
R Rotation (30)		30		
L Rotation (30)		30		
Combined (240)	-	170	-	
Comment	With pain	
Constant pain 3-4/10; with flare-ups at 10/10; Best effort not given	CI was less symptomatic; no paraspinal muscle spasm; non tender to palpation over the lumbar spine; walked on toes, heels, and tandem walk; mild decrease in ROM secondary to increased pain with physical activity.	
§4.71a Rating	20%	20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a rating of 10% using code 5299-5237 (lumbosacral strain) for chronic back pain noting NARSUM examination results of paravertebral muscle spasm on the right and hyperextension to 20 degrees with discomfort.  The VA assigned a 20% rating using code 5242 (degenerative arthritis of the spine) for mechanical LBP with degenerative changes L5-S1 based on flexion of 45 degrees and extension of 15 degrees.  However, within a day of the measurements performed by a physical therapist on which the VA based its rating, another VA examination performed by a civilian provider, who did not provide his degree or credentials, noted the CI was less symptomatic and recorded flexion to be 75 degrees.  The probative value of the NARSUM examination and that of the VA examiner is seemingly limited since both examinations were incomplete or less than satisfactory for rating purposes IAW VASRD §4.1 (Essentials of Evaluative Rating) and §4.6 (Evaluation of Evidence), while the examination performed by the physical therapist was more complete and apparently warrants a higher probative value, but for the notation that the CI’s best effort was not given.  Therefore, the Board members favored the 10% rating using code 5237 over the 20% rating because other clinical findings including that of the orthopedist, who measured flexion as 10 cm from the floor, and the X-ray findings were more consistent a 10% rating than a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic back condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB likely reliance on the USAPDA pain policy for rating the chronic back pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right eye injury condition, the Board unanimously recommends a disability rating of 30% coded 6029 IAW VASRD §4.84a.  In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Eye Injury	6029	30%	
Lower Back Pain	5237	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150009864 (PD201301506)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl			
						
CF: 
(  ) DoD PDBR
(  ) DVA