RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01888
BRANCH OF SERVICE:  Army	BOARD DATE:  20140528
SEPARATION DATE:  20050716

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (95B2O/Military Police) medically separated for bilateral hearing loss condition.  He was diagnosed with permanent hearing loss, which could not be amplified with hearing aids to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent H3 profile and referred for a Medical Evaluation Board (MEB).  Bilateral severe high frequency sensorineural hearing loss was forwarded to the Physical Evaluation Board (PEB) as not meeting medical standards IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated bilateral severe high frequency sensorineural hearing loss as unfitting, rated 0%, with application of VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI attached a written statement (not medically qualified for corrections officer position in 2012 due to profound & worsening hearing loss) and VA entitlement letters to his application which were reviewed by the Board and considered in its recommendations.

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 bilateral hearing loss condition is addressed below.  Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

RATING COMPARISON: 

Service IPEB – Dated 20050606	VA* - (14.9 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral High Frequency Sensorineural Hearing Loss … 	6100	0%	Bilateral Hearing Loss	6100	0%	20061005	
No Additional MEB/PEB Entries	Tinnitus	6260	10%	20061005	
	Other x 11	20061005	
Combined:  0%	Combined:  10%**	
*Derived from VA Rating Decision (VARD) dated 20070117 (most proximate to date of separation (DOS)) 
**Rating increased to 30% effective 20080306 from VARD 20081023 and C&P Audio 20081008. 

ANALYSIS SUMMARY:

Bilateral High Frequency Sensorineural Hearing Loss.  The record documented bilateral high frequency hearing loss that had progressed from mild/moderate through 2004 when the hearing loss was noted to progress to moderate in the right and severe all frequency hearing loss on the left side.  The CI underwent detailed audiology evaluation in January 2005 and complained of ringing in both ears (tinnitus).  The pure tone hearing loss and Speech Recognition In Noise Test (SPRINT; Category D) were evaluated (see chart below) as meeting the H3 profile limitations and required avoidance of hazardous noise to avoid progression.  The narrative summary (NARSUM) and consults indicated the rearing loss was permanent and was not favorable for hearing aids.  The NARSUM stated “It was thought that his hearing loss was severe enough to be a safety issue for him and other soldiers if retained in the military…his limited ability to hear could be harmful for him and others in a deployed environment…”  The diagnosis was bilateral severe high frequency sensorineural hearing loss and the CI was considered to be “very highly functioning, however reads lips to ensure proper communication.”

At the VA Compensation and Pension (C&P) audio exam dated 5 October 2006, approximately 14 months after separation, the CI reported bilateral tinnitus and pure tone audiometry and speech recognition testing (using Maryland CNC testing) is summarized below.  The remainder of the ear exam was normal.  The diagnosis was bilateral sensorineural hearing.  In response to a request for medical opinion relating hearing loss to tinnitus, the audiologist stated:  “Hearing loss noted on physicals while on active duty and tinnitus is consistent with hearing loss.”

The Board noted that the VA C&P from 8 October 2008, over 3 years after separation documented significantly worse pure tone audiometry and worse speech recognition values.  The VA rated that exam at 30%.

Audiometric Threshold (Hz) →	500	1000	2000	3000	4000	6000	Comments	§ 4.85-4.86 Rating	
Audio 5.9 mos. Pre-Sep (20050120)  	0%	
Right	20	25	35	55	55	65	P Tone Av R=43, L=53;
SPRINT:  R96 & L92		
Left	30	35	45	65	65	70			
VA C&P ~14.9 mos. Post-Sep (20061005)  	0%	
Right	25	30	55	55	60	--	P Tone Avg R=50, L=56;
CNC:  R86 & L80		
Left	25	35	50	70	70	--			

The Board directs attention to its rating recommendation based on the above evidence.  Although the service speech discrimination testing (SPRINT) was not IAW VASRD Per §4.85(a) [requires CNC test which uses a different word set], the 2006 VA exam, used the CNC testing and both hearing evaluations were independently rated at 0% using VASRD rating criteria.  The later VA exam from 2008 was adjudged post-separation worsening and not indicative of the CI’s disability picture at the time of separation.  The Board; however, considered that the CI’s disqualifying condition of hearing loss was not limited to pure tone testing or specific speech recognition testing alone, but that tinnitus reasonable played a part in the CI’s difficulty in safely understanding communication.  The Board therefore recommends analogous coding of the CI’s complete hearing disability as 6100-6260 at 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the bilateral severe high frequency sensorineural hearing loss and tinnitus 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 bilateral severe high frequency sensorineural hearing loss condition, the Board unanimously recommends a disability rating of 10%, coded 6100-6260 IAW VASRD §4.85.  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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Bilateral Severe High Frequency Sensorineural Hearing Loss with Tinnitus	6100-6260	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130916, 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, AR20150001229 (PD201301888)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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