RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX		CASE:  PD-2013-01881
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20140717
SEPARATION DATE:  20051030

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV2/E-2 (11B/Infantry) medically separated for hearing loss.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty.  He was issued a permanent H3 profile and referred for a Medical Evaluation Board (MEB).  The MEB found the hearing loss condition medically unacceptable and forwarded it to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB found the hearing loss condition unfitting and rated it at 0%.  The CI made no appeals and was medically separated.

CI’s CONTENTION:  “Many Vets that I spoke with said I should be getting 20% or more for my tinnitus and hearing loss in both ears.  I was given a 10% rating for tinnitus, 0% rating for Bilateral hearing impairment.”

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 hearing loss is addressed below.  No other conditions are within the Board’s defined purview.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Army PEB – dated 20051005	VA – (Exam ~ 2 mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sensorineural Hearing Loss	6100	0%	Bilateral Hearing Impairment	6100	0%	20050812	
No Additional MEB/PEB Entries in Scope	Other x 1	20050812 	
Combined:  0%	Combined:  10%	
       Derived from VA Rating Decision (VARD) dated 20051110 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that tinnitus was not included in the Disability Evaluation System (DES) process.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the DES operates.  The Board’s authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While tinnitus may have been present, compensation can only be offered for those conditions that cut short a member’s career and then only to the degree of severity present at the time of separation.  The VA, however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Sensorineural hearing loss (SNHL).  In 2004, this CI entered the Army with normal hearing.  Four months later, in March 2005, an incident occurred on the firing range.  With earplugs not properly in place, he fired 180 rounds with an M-4.  After that, he had hearing loss and tinnitus (ringing in the ears).  The CI was seen by audiology and numerous tests were done.  The testing confirmed that he had bilateral high frequency SNHL, left ear worse than right ear.  On 1 June 2005, the CI had a SPRINT (speech recognition in noise test).  Based on the results of the SPRINT test, an MEB was initiated.  The CI had an audiogram on 12 August 2005 and a follow-up audiogram (noise free) on 23 August 2005.  The results of those hearing tests are shown in the charts below.

Audiometric Threshold (Hz) →	500	1000	2000	3000	4000	MD CNC	Comments	
Audiogram done 11 weeks Pre-Sep (20050812)		
Right	15	10	20	70	75	92%		
Left	20	20	80	70	75	92%		
Audiogram done 10 weeks Pre-Sep (20050823)		
Right	10	5	25	75	60		14 hours Noise Free	
Left	15	5	75	75	75			

Hearing		11 weeks Pre-Sep
(20050812)	10 weeks Pre-Sep
(20050823)	
Right Ear	Average 	43.75 dB	41.25 dB	
	Speech Discrimination	92%		
	Table VI/VIa	(I) from Table VI	(I) from Table VI	
 Left Ear	Average 	61.25 dB	57.5 dB	
	Speech Discrimination 	92%		
	Table VI/VIa	(IV)=(V) from Table VIa	(IV)=(V) from Table VIa	
§4.85 Rating 	Table VII	0%	0%	
§4.86 Rating 	Table VII	0%	0%	
                       (Average 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.  As noted above, the CI was found unfit for duty, due to high frequency SNHL and was medically separated with a 0% disability rating.  The 23 August 2005 exam was performed just 10 weeks prior to separation and therefore had significant probative value.  IAW VASRD §4.85 (Table VI), and based on the 23 August 2005 exam, the right ear was Class I and the left ear was Class I or Class II.  However, the Board determined that VASRD §4.86 (exceptional patterns of hearing impairment) was applicable in this case.  For the reader’s convenience, the VASRD §4.86(b) language for diagnostic code 6100 is excerpted below:

(b) “When the puretone threshold is 30 decibels or less at 1000 Hertz, and
70 decibels or more at 2000 Hertz, the rating specialist will determine the
Roman numeral designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral.  That numeral will then
be elevated to the next higher Roman numeral.  Each ear will be evaluated
separately.” (Authority: 38 U.S.C. 1155)  

Therefore, IAW VASRD §4.86(b), the left ear is elevated from Class IV to Class V.  This is due to his “exceptional pattern of hearing impairment” and because hearing is key to interpersonal communication.  However, even though the left ear is elevated to Class V, the SNHL condition still did not reach a compensable level.  The Board determined that a disability rating of 0% is warranted for the SNHL condition, it is appropriately coded 6100, and IAW VASRD §4.85 and §4.86 meets criteria for the 0% rating level. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board found insufficient cause to recommend a change in the PEB adjudication of the hearing loss condition.

Other Contended Conditions.  As noted above, tinnitus was not a specific MEB/PEB condition, and is not within the Board’s scope of review.

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 SNHL condition and IAW VASRD §4.85 and §4.86, 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 20131023, 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 XXXXXXXXXXXXXXXXX, AR20150002631 (PD201301881)

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