RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:     XXXXXXXXXXXXXX                                                                    BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100388 	                              SEPARATION DATE:  20070427
BOARD DATE:  20120210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E4 (11B, Infantryman) medically separated for chronic mastoiditis, vertigo, and hearing loss.  The CI underwent surgery for removal of a left ear cholesteatoma in November 2003.  He subsequently required three additional surgeries due to cholesteatoma recurrence and the associated complications of chronic mastoiditis, vertigo and hearing loss.  He did not respond adequately to treatment and was unable to perform within his Military Occupational Specialty (MOS).  He was issued a permanent P3/H3 profile and underwent a Medical Evaluation Board (MEB).  Chronic mastoiditis and vertigo were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  Hearing loss was forwarded on the MEB submission as medically acceptable.  The Informal PEB (IPEB) adjudicated the chronic left mastoiditis, vertigo (following erosion of horizontal canal), and hearing loss conditions as unfitting, rated 10%, 10% and 0% respectively, with application of the Veterans’ Administration Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with a 20% combined disability rating.

CI CONTENTION:  The CI states:  “IT STATED ON MY PREVIOUS ARMY RATING FOR CHRONIC LEFT MASTOIDITIS-10%, VERTIGO-10%, AND HEARING LOSS-0%.  I HAVE VERTIGO ATTACKS MORE THAN ONCE A MONTH, SO I WAS PLACED ON MEDICATION.  HEARING LOSS-I WAS ISSUED A HEARING AID FOR LEFT EAR DUE TO SEVERE HEARING LOSS. RIGHT EAR HAS MILD HEARING LOSS.  CHRONIC LEFT MASTOIDITIS- STILL HAVE TO SEE ENT EVERY THREE MONTHS TO EVALUATE CHOLESTEATOMA. DUE TO PART OF IT IS STILL PRESENT ON MY FACIAL NERVE.  ACCORDING TO THE PEB SITE ON RATING CONDITIONS I FOUND THE FOLLOWING:  HEARING IMPAIRMENT WITH VERTIGO LESS THAN ONCE A MONTH, WITH OR WITHOUT TINNITUS WARRANTS A 30% RATING.  I FEEL THAT I SHOULD HAVE FALLEN INTO THIS CATEGORY. ALL OF THESE ISSUES ARE TIED TOGETHER FROM AN ONGOING CONDITION THAT STILL AFFECTS MY EVERYDAY LIFE TODAY.  I BELIEVE THAT I WAS RUSHED THROUGH THE PROCESS WITHOUT PROPER EVALUATION OF MY CONDITIONS.  I AM CURRENTLY EVALUATED THROUGH VA WITH SECONDARY CONDITIONS THAT WERE TIED TO THIS ORIGINAL CONDITION TO INCLUDE SLEEP DISORDER, ANXIETY DISORDER, INCREASED IRRITABILITY, TINNITUS, AND MIGRANES.  I AM CURRENTLY RATED AT 70% THROUGH VA.”  He additionally lists all of his VA conditions and ratings as per the rating chart below.  A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:  

Service IPEB – Dated 20070302	VA (1 Wk. and 1 Mo After Separation) – All Effective Date 20070502	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Mastoiditis	6200	10%	Chronic Left Mastoiditis	6200	0%*	20070604	
Vertigo	6204	10%	Vertigo	6204	10%*	20070604	
Hearing Loss	6100	0%	Bilateral Hearing Loss	6100	0%*	20070502	
↓No Additional MEB/PEB Entries↓	Sleep D/O …w/ Hearing Loss	9399-9327	50%*	20070406	
	Tinnitus …w/ Mastoiditis	6260	10%	20070502	
	Not Service Connected x 3	20070406	
Combined:  20%	Combined:  60%*	
*Effective 20070428 (later 20070502 effective date was for tinnitus only)  

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA).  The Board utilizes VA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.  The Board also acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service connected by the DVA).  While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  The DVA, however, is empowered to compensate service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time.  

Chronic Left Mastoiditis.  The CI underwent four surgeries for treatment of left middle ear and mastoid cholesteatoma (November 2003, February 2004, November 2004 and December 2005).  His treatment course was complicated by cholesteatoma recurrence, chronic otitis media, chronic mastoiditis, hearing loss and otologic vertigo.  In November 2003, the CI underwent a left tympanomastoidectomy canal wall up, for removal of cholesteatoma.  He developed some mild symptoms of vertigo following this procedure, which persisted throughout treatment.  The CI underwent a planned second look procedure, along with ossicular chain reconstruction in February 2004.  He continued to experience vertigo symptoms and additionally developed Eustachian tube dysfunction, with chronic otitis media.  This was treated with placement of pressure equalization tubes in November 2004.  In December 2005, the CI underwent a left canal wall down mastoidectomy for chronic otitis media, recurrence of cholesteatoma and otologic vertigo.  At time of surgery, it was found that the cholesteatoma had caused erosion of the horizontal semicircular canal of the balance system in the mastoid bone, resulting in the CI’s vertigo symptoms.  The horizontal canal erosion was closed with bone wax with some improvement in the frequency of vertigo symptoms.  Subsequent to the fourth surgery, the CI required regular visits for microscopy and debridement of the mastoid cavity.  

At the MEB exam, three months pre-separation, the CI reported “vertigo with any exercise whatsoever;” however, he denied experiencing vertigo in normal day functions.  On exam, it was documented that the left ear was “consistent…with a canal wall down cholesteatoma” and that the “auricle has been changed significantly to allow debridement of mastoid cavity.”  There was no documentation of active suppuration or aural polyps; although the examiner noted that the CI would require debridement of the left mastoid cavity for the rest of his life.  The exam additionally documented “severe hearing loss” in the left ear, noting that the CI’s “ability to hear…is significantly damaged in his left ear.”  There was no comment on gait or tinnitus.  The MEB examiner assessed chronic mastoiditis requiring frequent and prolonged medical care, exercise-induced vertigo and severe hearing loss.

The VA Ear, Nose and Throat Compensation and Pension (C&P) exam, two months after separation, documented a normal left ear auricle and external canal, with marked retraction of the left tympanic membrane and a large mastoid cavity on the left.  The examiner stated that there was no infection and no evidence of mastoid discharge or recurrent cholesteatoma.  The VA examination form posed specific questions regarding symptoms of Meniere’s syndrome to include frequency of vertigo attacks; presence of cereballar gait; hearing loss; and tinnitus.  The examiner replied that “this patient does not have Meniere’s disease,” and provided no response to the questions regarding vertigo attack frequency, gait and tinnitus.  The examiner did separately note the CI’s hearing loss condition.  With regard to the vertigo, the examiner concluded, “the vestibular disturbance is secondary to the cholesteatoma and erosion of the semicircular canal.”

A computed tomography scan of the temporal bones in May 2005 demonstrated a cholesteatoma; poorly developed, sclerotic left mastoid air cells; left otitis media; deformed left ossicular chain; and a thickened and retracted left tympanic membrane.  The MEB examiner concluded that the CI’s chronic mastoiditis condition did not meet retention standards due to the requirement for frequent and prolonged medical care or hospitalization.  The commander’s statement did not implicate chronic mastoiditis.  

The PEB and the VA utilized the same coding for the chronic mastoiditis condition, but arrived at different ratings.  There was no evidence of active suppuration or aural polyps at either exam to meet the criteria for the 10% rating.  The PEB likely considered the CI’s need for frequent mastoid debridement and its impact on his overall disability picture in arriving at the 10% rating, which is the maximum allowed under the VASRD for this condition.  IAW DoDI 6040.44, the Board cannot assign a lower rating than that awarded by the PEB.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the chronic left mastoiditis condition.  

Vertigo.  As discussed above, the CI developed aural vertigo as a result of erosion of the horizontal canal, caused by the cholesteatoma.  After the fourth surgical procedure on the left ear, the vertigo had improved and was only present with exertion.  The MEB examiner documented that there were no vertigo symptoms with regular day to day activities.  The exam did not comment on gait or document episodes of staggering.  The C&P exam documented vertigo, but did not specify frequency or document gait.  

The MEB examiner concluded that the CI’s exercise induced vertigo interfered with the satisfactory performance of duty.  The CI’s profile for vertigo specified no strenuous activities, no flying aircrafts and no operating heavy machinery which may require rapid head movements.  The commander’s statement commented that the CI’s exertional dizziness rendered him unable to do physical training or conduct vigorous training with the unit.  The commander further noted that the CI’s profile would preclude him from serving effectively as a member of a Rifle Squad or as a Bradley Gunner.  

The PEB and the VA chose the same coding and arrived at the same rating recommendation for the vertigo condition.  As the vertigo was associated with documented hearing loss (see discussion below), alternate coding, analogous to 6205, Meniere’s syndrome, was also considered and is predominant.  Per the VASRD, “Evaluate Meniere’s syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation.”  

The CI’s episodes of exertional vertigo meet the criteria for the 10% rating under (6204) coding for peripheral vestibular disorders.  There was no documentation of staggering gait to justify the higher 30% rating under this coding.  Alternatively, if the condition is coded analogously to 6205, Meniere’s syndrome, the CI’s vertigo and hearing loss meet the criteria for the 30% rating’s “Hearing impairment with vertigo less than once a month, with or without tinnitus.”  There was no documentation of cerebellar gait to justify a higher rating of 60% under analogous 6205 coding as excerpted below.  

6205 Meniere’s syndrome (endolymphatic hydrops): 
Hearing impairment with attacks of vertigo and cerebellar gait 
occurring more than once weekly, with or without tinnitus ...............................100 
Hearing impairment with attacks of vertigo and cerebellar gait 
occurring from one to four times a month, with or without tinnitus ....................60 
Hearing impairment with vertigo less than once a month, with or 
without tinnitus .....................................................................................................30 

Note:  Evaluate Meniere’s syndrome either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. But do not combine an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under diagnostic code 6205.

Hearing Loss.  The audiology addendum to the narrative summary and the VA C&P exam both documented mild conductive hearing loss in the right ear and moderate to moderately severe mixed hearing loss in the left ear.  Functional speech discrimination scores were excellent at loud intensity levels.  The VA exam additionally documented occasional episodes of tinnitus in the right ear.  There was no documentation of tinnitus in the service record during the MEB period.  The MEB examiner commented that, despite the significant hearing loss in the left ear, the CI “has done well with amplification and is not limited by that.”  The commander’s statement did not implicate hearing loss.  The MEB examiner concluded that the hearing loss would meet retention criteria; however the PEB adjudicated hearing loss as unfitting.  The PEB’s adjudication of the hearing loss condition as unfitting is considered administratively final.  

The military and the VA audiometric assessments both demonstrated average puretone thresholds of less than 50 dB, with speech discrimination scores of greater than 90%, thus establishing the rating standard under VASRD §4.86, Tables VI and VII.  This resulted in a non-compensable rating from the PEB and the VA under coding for hearing loss, 6100.  

The Board deliberated its rating determination based on the evidence above with the following definition and distinction between Meniere’s syndrome versus Meniere’s disease – Meniere’s disease is the constellation of symptoms of vertigo and hearing loss, with or without tinnitus, of unknown etiology.  Meniere’s syndrome, is the same constellation of symptoms, with a known etiology, such as middle ear pathology/disease.  The VASRD specifies and rates for “Meniere’s syndrome.”  With evidence of an associated unfitting vertigo condition and likely endolymphatic pathology due to the underlying ear condition with multiple ear surgeries involving the endolymph containing structures and wall repair, there is sufficient cause to consider analogous coding to 6205 Meniere’s syndrome (endolymphatic hydrops), as discussed above.  Per the VASRD, this coding is predominant because it results in a higher rating than separately coding and rating the individual conditions.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that the vertigo and hearing loss conditions be combined under code 6099-6205 and rated at 30%.  

Other Contended Conditions.  The CI’s application asserts that compensable ratings should be considered for sleep disorder, migraines, anxiety disorder, increased irritability, and tinnitus.  At the MEB history and physical, the CI complained of problems sleeping since his surgeries and also noted a history of headaches associated with left ear pain and drainage.  There is no evidence in the service treatment record that the sleeping disorder condition or the headache condition were significantly occupationally or clinically active during the MEB period.  Both of these conditions were reviewed by the action officer and considered by the Board.  There was no evidence for concluding that either of these conditions interfered with duty performance to a degree that could be argued as unfitting.  The Board determined therefore that neither the sleep disorder condition nor the headache disorder condition was subject to service disability rating.  The conditions of anxiety disorder, increased irritability and tinnitus did not appear in the DES file.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  

Remaining Conditions.  Two other non-acute conditions or medical complaints documented in the MEB history and physical were constant diarrhea and a history of mini-seizures.  Neither of these conditions was significantly clinically or occupationally active during the MEB period, neither carried an attached profile and neither was implicated in the commander’s statement.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that neither could be argued as unfitting and subject to separation rating.  The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic left mastoiditis condition, the Board unanimously recommends no change in the PEB adjudication at separation.  In the matter of the vertigo and the hearing loss conditions, the Board unanimously recommends that the conditions be combined for separation rating, coded 6099-6205 and rated 30% IAW VASRD §4.87.  In the matter of the sleeping disorder and headache disorder conditions, the Board unanimously agrees that it cannot recommend a finding of unfit for additional rating at separation.  In the matter of the constant diarrhea and history of mini-seizures conditions or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.  

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

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Left Mastoiditis	6200	10%	
Vertigo and Hearing Loss	6099-6205	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110426, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.

                             		

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 

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