RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300255
BRANCH OF SERVICE:  Army	BOARD DATE:  20140321
SEPARATION DATE:  20051228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11C/Indirect Fire Infantryman) medically separated for a chronic low back condition.  The CI reports that he began experiencing low back pain (LBP) in 2002.  He underwent conservative treatment and therapy but continued to experience pain.  His condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3/H3 profile and referred for a Medical Evaluation Board (MEB).  The chronic low back condition, characterized as “chronic low back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain…” as unfitting, rated 10%.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am currently rated @70% with unemployability through the VA.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting chronic low back condition is addressed below.  The contended bilateral sensorineural hearing loss condition also is within the DoDI 6040.44 defined purview of the Board and will also be addressed below.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20051117	VA - (5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	10%	Bilateral Lumbosacral Strain	NSC	20060510	
Bilateral Sensorineural Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	10%	20060510	
No Additional MEB/PEB Entries	Other x 7	20060510	
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20060705 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  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 member’s career and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Chronic LBP Without Specific History of Trauma Condition.  The service treatment records (STRs) show the CI sought care for LBP on 11 October 2001 after which the treatment records become silent with regard to complaint or care for LBP.  On 14 November 2003, the CI reported back pain after lifting.  The STRs again fall silent with regard to treatment or complaint of LBP.  In November 2004, the CI sought care for chest pain when running.  A stress test in December 2004 demonstrated the CI to be in excellent state of fitness attaining a work load of over 15 metabolic equivalent of tasks.  In January 2005, the CI presented for knee pain incurred while running.  No mention of back problems was noted.  In August 2005, the CI was medically evacuated from Iraq due to progressive hearing loss from exposure to mortar explosions.  No other injuries or medical complaints were noted on aero-medical evacuation documents.  A post-deployment examination noted only complaint of hearing loss.  The past medical history did not list back problems.  Other than the hearing problems and high blood pressure, the examiner noted “no other symptoms.”  On 19 October 2005, the otorhinolaryngologist (ENT) recommended an MEB for his hearing loss.  At the time of the MEB history and physical examination dated 21 October 2005, the CI reported a history of back pain for 3 years without radicular symptoms.  There was tenderness noted on examination.  The MEB narrative summary (NARSUM) on 4 November 2005, reported a history of LBP since 2002 that was exacerbated by lifting heavy mortars or jumping.  No specific injury was indicated.  The CI reported he was unable to perform his duties as a mortar soldier due to back pain.  On examination, there was tenderness to palpation.  Back flexion was limited to 30 degrees, extension to 5 degrees, right lateral bending to 10 degrees and left lateral bending to 15 degrees.  Strength and reflexes were normal and signs of radiculopathy were absent.  The examiner reported that X-rays of the lumbosacral spine in October 2005 were normal.  At the VA Compensation and Pension (C&P) mental health examination on 4 April 2006, 3 months after separation, the CI reported working full time as a vinyl siding installer with less than a week of lost time from work.  At the VA general medical C&P examination on 10 May 2006, approximately 4 months after separation, the CI reported his original back trauma was a roadside bomb on 2 August 2005 for which he received treatment.  He reported chronic LBP aggravated by bending and lifting.  He reported that he had fallen off a ladder about a month before the examination re-injuring his back.  He reported he periodically required an assistant at work for lifting and bending and had missed 30 days from work due to back pain since beginning work in December 2005.  On examination, paravertebral muscle spasm was noted with straightening of the lumbar spine.  After ten repetitions, thoracolumbar flexion was 60 degrees, extension 30 degrees, lateral bending 30 degrees to both sides and rotation 30 degrees to both sides (initially flexion was 80 degrees).  Pain and stiffness were reported with motion.  Reflexes and sensation were normal without signs of radiculopathy.  He was noted to sit stiffly and walk slowly.  The examiner noted that X-rays of the lumbosacral spine by the VA on 17 March 2006 were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The VA, by rating decision on 5 July 2006, denied service-connection for bilateral lumbosacral strain noting the absence of treatment in STRs and normal X-rays.  The determination was continued at the time of the 5 September 2008 rating decision.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain) for motion limited by pain (with likely application of service regulations) noting the absence of traumatic injury and normal X-rays.  The limitation of motion at the time of the MEB NARSUM examination suggests a 40% rating under the General Rating Formula for Diseases and Injuries of the Spine.  However, the Board noted that complaints of duty limiting back pain first appeared in the records at the time of the MEB examination at the end of October 2005.  Prior to that time, STRs documented care for acute back pain in 2001 and 2003 without limitations.  There was no specific injury other than lifting.  At the time of return from Iraq in August 2005 for hearing loss, no other complaints were reported in the post deployment medical examination.  At the time of the VA C&P examination 4 months after separation, the CI reported back pain since a roadside bomb on 2 August 2005, however, the medical examination after evacuation from Iraq specifically noted there were no other complaints other than hearing loss.   The post separation VA C&P examinations recorded the CI was employed installing vinyl siding upon separation with variable report of time lost from work.  The CI reported reinjuring his back in a fall off of a ladder one month before the VA C&P examination.  Despite that recent injury, the CI flexed to 60 degrees after 10 repetitions, a significant difference from the MEB NARSUM examination when no recent injury or exacerbation was documented.  X-rays from October 2005 and March 2006 were both reported as normal.  All members agreed that the preponderance of evidence of the record did not support a 40% rating as the NARSUM limitation of motion was not consistent with the rest of the record and not consistent with the expected limitation based on the known pathology (normal X-rays).  The Board discussed the 10% versus 20% rating.  The VA C&P examination 4 months after separation documented examination findings supportive of a 20% rating (limited motion and spasm with altered contour) but noted the fall off of a ladder after separation likely contributed to the impairment at the time of that examination.  The Board concluded that the totality of evidence more nearly approximated the 10% rating adjudicated by the PEB than a higher 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 LBP without specific history of trauma condition.

Contended PEB Conditions.  The PEB adjudicated the hearing loss as not unfitting.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hearing loss was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  At the time of the enlistment examination, 23 January 2001, the CI’s audiogram demonstrated sensorineural high frequency hearing loss in both ears (thresholds at 500, 1000, 2000, 3000, 4000, and 6000 Hertz were left ear: 10, 10, 00, 50, 85, and 85 decibels respectively and for the right ear: 15, 05, 00, 10, 70, and 75 decibels respectively).  He was granted a waiver for the hearing loss with an H2 profile and entered active military service where his duties as a mortar man exposed him to loud noise.  An audiogram on 8 October 2004 was similar (left ear: 	15, 15, 05, 55, 85, and 80 decibels; and right ear: 20, 05, 00, 10, 70, and 75 decibels).  According to a later audiology evaluation, his profile was changed to H3 in October 2004.  On 12 August 2005, he was medially evacuated from Iraq due to complaint of increasing hearing loss after exposure to mortar explosions.  Audiology evaluation on 15 August 2005, documented high frequency hearing loss with hearing thresholds at 500, 1000, 2000, 3000, 4000, and 6000 Hertz of: left ear: 20, 20, 10, 55, 80, and 95 decibels respectively, and right ear: 20, 20, 10, 25, 70, and 75 decibels respectively.  Hearing was considered normal at 500, 1000 and 3000 Hertz.  Speech recognition was considered to be good on the left and excellent on the right.  Follow up audiograms on 24 August 2005 and 21 October 2005 were without significant change with preserved hearing at low frequencies below 3000 Hertz and high frequency hearing loss at 3000, 4000, and 6000 Hertz.  The CI was issued hearing aids in October 2005.  The otolaryngologist at Navy Hospital Camp Pendleton recommended an MEB.  The profile dated 27 October 2005 was H3 and stated the CI should wear his hearing aids.  The Army PEB determined the hearing loss was not unfitting.  Following separation, the VA hearing C&P examination audiogram was consistent with pre-separation tests.  Speech recognition was good at 80% without mention whether hearing aids were in use.  Neither an H3 profile nor the use of hearing aids are automatically disqualifying for continued military service in the Army.  A soldier must be incapable of performing their military duties with use of hearing aids before consideration for disqualification.  The commander’s statement noted excellent duty performance without mention of hearing difficulties.  There was no performance based evidence from the record that the hearing loss significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the hearing loss condition and so no additional disability rating is recommended.

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.  In the matter of the chronic LBP without specific history of trauma condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended bilateral sensorineural hearing loss condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130506, 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 XXXXXXXXXXXXXXXXXX, AR20140018967 (PD201300255)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     
CF: 
(  ) DoD PDBR
(  ) DVA