RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2014-00716
BRANCH OF SERVICE:  Army  	SEPARATION DATE:  20071127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Cavalry Scout) medically separated for sensorineural hearing loss.  The hearing condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L1H3 profile and referred for a Medical Evaluation Board (MEB).  “Moderate/severe sensorineural hearing loss” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one medically acceptable condition (chronic lumbago) for PEB adjudication.  The Informal PEB adjudicated “sensorineural hearing loss” as unfitting, rated 0%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His back condition continues to worsen and negatively impact his daily activities.  He was not evaluated for PTSD.  His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:  

IPEB - Dated 20071015	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Sensorineural Hearing Loss	6100	0%	Sensorineural Hearing Loss	6100	0%	STR	
Lumbago	Not Unfitting	Low Back Pain	5237	NSC	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2 	
RATING:  0%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20080417 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Sensorineural Hearing Loss.  The record shows that the CI accessed with a high frequency hearing loss (HFHL) bilaterally, but remained within H1 standards (although within 5 dB of an H2 at 4000Hz on the right).  As part of his duties, he was exposed to noise on a recurrent basis including blasts and weapons.  He subjectively noted increased difficulty with speech discrimination in noisy environments and the need to ask for others to repeat their statements and/or to speak more loudly.  A review of the periodic audiometric data shows a progressive decline, with some variation between tests in different frequencies, as charted below.  

R Hertz	500	1000	2000	3000	4000	6000	
20020604	15	5	15	10	40	40	
20040409	20	5	25	20	60	30	
20060215	20	10	30	45	65	40	
20070221	20	0	30	45	60	45	
Change from baseline	5	-5	15	35	20	5	
L Hertz	500	1000	2000	3000	4000	6000	
20020604	15	5	5	5	20	30	
20040409	10	0	20	50	55	35	
20060215	20	15	35	55	60	35	
20070221	10	0	25	55	60	40	
Change from baseline	-5	-5	20	50	40	10	

Using the most current data, the right ear showed a 38 dB average loss (average hearing loss is the sum of pure tone thresholds at 1000, 2000, 3000, and 4000 Hz divided by four) with 92% discrimination.  The left ear showed a 38 dB average loss with 100% discrimination.  These both meet the criteria for Roman numeral I in Table VI.  From these, a 0% rating is supported in Table VII.  The narrative summary (NARSUM) dated 16 August 2007, 3 months prior to separation, noted that the CI had an H3 profile and reported occasional tinnitus which did not impact his duties.  At the MEB examination on 4 September 2007, the CI reported ringing in his ears (tinnitus) and that he did not hear too well.  The examiner noted a normal ear examination.  The CI did not report for the VA Compensation and Pension (C&P) examination scheduled for 16 February 2008.  

The Board directed its attention to its rating recommendation based on the above evidence.  6100 (impaired hearing).  The use of Tables VI and VII, as noted above, support a 0% rating.  Both the PEB and VA rated the hearing loss at 0%, coded 6100 (hearing impairment).  The VA continued this rating on the 14 December 2010 VA rating decision.  The Board considered the evidence and found no route to a higher rating.  It noted the subjective tinnitus, but that the NARSUM recorded that this caused no duty impairment.  The evidence does not support the addition of tinnitus as a separately unfitting condition at separation.  The Board concluded therefore that this condition could not be recommended for additional disability 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 bilateral hearing loss condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended back pain (lumbago) condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The back pain was not profiled, implicated in the commander’s statement, or judged to fail retention standards.   Review of the record shows that the CI was treated for back pain in 2005, 2 years prior to separation, and in 2007, 2 and 4 months prior to separation.  A magnetic resonance imaging (MRI) report dated 11 September 2007 noted no recent problems, but that his legs had given out.  A central disc herniation at L3-4 and L4-5 was noted on the MRI.  However, the NARSUM examination, done 3 weeks earlier, had been normal with full range-of-motion, a normal gait and neurological examination, and easy transition from a supine position to standing.  There was no performance based evidence from the record that the back pain condition 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 the back pain 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.  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 hearing loss condition and IAW VASRD §4.86, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended back pain 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 201340210, 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 XXXXXXXXXXXXXXXXXXXXXXXX, AR20160002360 (PD201400716)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA