RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01035
BRANCH OF SERVICE:  Army	BOARD DATE:  20140620
SEPARATION DATE:  20080706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31B/Military Policeman) medically separated for bilateral hearing loss and a back condition.  The hearing and back problems could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty satisfy physical fitness standards.  He was issued a permanent L3/H3 profile and referred for a Medical Evaluation Board (MEB).  The hearing and back conditions, characterized as “hearing loss” and “back pain w/T8–T9 and L4-L5 disc degeneration disease,” were the only two conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated “bilateral hearing loss” and “back pain with mild disc degeneration at T8-T9 and L4-L5 on MRI, w/o neurologic abnormality,” as unfitting, rated 10% and 10% respectively, with application of the VA Schedule for Rating Disabilities (VASRD).  The IPEB also adjudicated four conditions, not submitted by the MEB, but on the narrative summary (NARSUM), as not unfitting.  The CI appealed to the Formal PEB which affirmed the PEB findings and ratings.  The CI was then medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 ratings for the unfitting hearing loss and back condition are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 FPEB – Dated 20080424	VA - (2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Hearing Loss	6100	10%	Bilateral, Moderate High Frequency, Sensorineural Hearing Loss	6100	10%	20080916	
Back Pain w/Mild Disc Herniation at T8-T9 and L4-L5	5242	10%	Lumbar Spine DDD w/Spasms Radiating through the Groin, Testicles, Hips and Bilateral Legs, and Spondylosis and Mild Scoliosis of Thoracic Spine	5237-5003	10%	20080910	
Other X 4 (Not in Scope)	Other x 8	20080910	
Combined:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20090112 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Bilateral Hearing Loss.  The NARSUM on 3 January 2008, 6 months prior to separation, notes the CI who had a normal baseline hearing testing in 2004 had an incidental finding of hearing loss during his MEB physical.  The CI had no complaints of hearing loss.  He was evaluated by audiologist and given an H3 profile due to significant bilateral hearing loss most likely caused by weapons firing.  During the examination, he needed frequent repeating of questions due to hearing loss.  At the MEB exam on 15 November 2007, 8 months prior to separation, the CI did not report hearing loss.  The MEB physical exam noted left ear thresholds of 1000 Hz 15 dB, 2000 Hz 65 dB, 3000 Hz 60 dB, 4000 Hz 50 dB and right 1000 Hz 5 dB, 2000 Hz 60 dB, 3000 Hz 60 dB, 4000 Hz 55 dB.  An ENT (ear, nose and throat) hearing test on 24 January 2008, 6 months prior to separation, found speech discrimination of left ear 76% and right ear 72%, with left ear thresholds of 1000 Hz 10 dB, 2000 Hz 60 dB, 3000 Hz 60 dB, 4000 Hz 50 dB and right 1000 Hz 5 dB, 2000 Hz 60 dB, 3000 Hz 55 dB, 4000 Hz 50 dB.

At the VA Compensation and Pension (C&P) audiology exam performed on 10 September 2008, 2 months after separation, the CI reported he was exposed to explosions and weapons for 4 years as a military policeman.  No tinnitus reported.  Audiology examination revealed puretone measured in Hertz (Hz) and thresholds measured in decibels (dB) of left ear 1000 Hz 10 dB, 2000 Hz 55 dB, 3000 Hz 50 dB, 4000 Hz 55 dB and right ear 1000 Hz 10 dB, 2000 Hz 45 dB, 3000 Hz 55 dB, 4000 Hz 55 dB.  The Maryland wordlist discrimination was left ear 72% and right ear 72%.

Results of audiometric evaluations are summarized in the chart below:

HEARING	EXAM	ENT ~6 Mo. Pre Sep 20080124	VA C&P ~2 Mo. After Sep.*	
LEFT EAR	Average Hearing Loss	45 dB	43 dB	
	Speech Discrimination	76%	72%	
	Table VI / VIa	 III / I	IV / I	
 RIGHT EAR	Average Hearing  Loss	42.5 dB	41 dB	
	Speech Discrimination 	72%	72%	
	Table VI / VIa	IV / I	IV /  I	
§4.85 RATING 	Table VII	10%	10%	
(Average hearing loss is the sum of pure tone thresholds at 1000, 2000, 3000, and 4000 Hz divided by four)

The Board directs attention to its rating recommendation based on the above evidence.  The Board agreed that application of VASRD §4.85 for both the MEB and C&P examinations yielded a 10% rating.  Although the alternate rating approach in §4.86a does not apply, rating using the alternate Table VIa does not result in a higher rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the bilateral hearing loss condition was appropriately recommended in this case.

Back Pain.  The CI’s back pain began 2005, with an injury in April 2006 while working out at the gym.  He was evaluated by chiropractor, physical therapy, pain management, orthopedics and neurology.  Radiologic studies showed slight disc degeneration at L4-5 and with minimal thoracic spine spondylosis more pronounced at T8-9.  Nerve conduction studies were normal, and electromyogram was negative for radiculopathy.  The NARSUM dated 3 January 2008, 6 months prior to separation; notes the CI had paravertebral muscle tenderness at L4 to SI, and T6-8 paravertebral muscle tenderness and tense muscle.  There were no goniometric ranges-of-motion (ROM), only bubble inclinometer measurements, without specification as to whether dual or single method was used, or normal values cited.

At the VA C&P exam performed 2 months after separation, the CI reported chronic back pain since December 2005, without injury.  Pain was described as moderate to severe radiating to hips, groin, and testicles, intermittent with remissions.  There were muscle spasms reported more severe on the right side.  Pain was aggravated by prolonged driving and walking more than a half mile.  Pain was alleviated by medications (Naproxen anti-inflammatory, Flexeril muscle relaxant and Amitriptyline anti-depressant used for sleep and pain control).  Physical examination revealed an antalgic gait, no muscle spasm, no tenderness, negative straight leg raising test for radiculopathy, no sensory loss, normal strength, normal deep tendon reflexes, no bowel or bladder incontinence and no abnormal spinal curvatures.  ROM was flexion 90 degrees (normal) with pain, extension 30 degrees (normal) with pain, left and right lateral flexion 30 degrees (normal) with pain, left and right rotation 30 degrees (normal) with pain, all without further limitation on repetitive use.

The Board directs attention to its rating recommendation based on the above evidence.  The Board considered VASRD diagnostic codes 5242 (degenerative arthritis of the spine [see also diagnostic code 5003]) used by the PEB, and codes 5237 (lumbosacral or cervical strain) - 5003 (arthritis, degenerative [hypertrophic or osteoarthritis]) used by the VA.  Both the VA and the PEB rated the condition at 10%.  There were no compensable ROM limitations of the thoracolumbar spine.  There was radiological evidence of disease and satisfactory evidence of painful range of motion for a minimum rating of 10%.  There were no incapacitating episodes found in the treatment record of at least two weeks during the past 12 months for a higher rating.  There was no evidence of radiculopathy by neurological testing or examination for a separate or alternate rating in the CI’s favor.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.59 (painful motion), §4.10 (functional impairment) and §4.40 (functional loss), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back pain 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.  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 right sensorineural hearing loss condition and IAW VASRD §4.85, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the 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, 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 20130718, 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, AR20140021520 (PD201301035)

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