RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02502
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060102

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O5, Civil Affairs Specialist, medically separated for “neck pain” rated 0%.  The CI was also medically separated for “neurosensory hearing loss” and “chronic right knee pain,” both of which were determined to have existed prior to service (EPTS) without service aggravation and were not rated.  

CI CONTENTION:  The applicant was given a higher rating for her conditions by the VA.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 Veterans Affairs Schedule for Rating Disabilities (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.  

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:  

SERVICE PEB - 20050718	VARD - 20050705	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Spine [Pain]	5237	0%	Cervical Strain	5290-5237	20%	20050611	
			Left Upper Extremity Radiculopathy Associated with Cervical Strain 	8516	10%		
Neurosensory Hearing Loss	6100	EPTS	Bilateral Hearing Loss	6100	NSC	20050519	
Depressive Disorder, NOS	Not Unfitting	PTSD	9411	NSC	20050611	
Mechanical Low Back Pain		Thoracolumbar Spondylosis	5295-5237	10%		
		Left Lower Extremity Radiculopathy Associated with Thoracolumbar Spondylosis	8520	10%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Cervical Spine.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began while deployed in July 2000 after a ruck march with a heavy ruck sack.  The CI reported upper back pain and chest pain and developed numbness and tingling of the hands and fingers.  Electrodiagnostic studies performed for the VA in February 2002 showed a bilateral C6-C7 radiculopathy, worse on the left than the right.  The NARSUM noted there were many civilian notes for treatment of neck pain in record and there was a P3 profile in May 2003 which listed neck pain.  Cervical MRI conducted in 2005 reportedly showed a small central protrusion of the C5-6 disc without nerve impingement or neuroforaminal stenosis.  The MEB forwarded “chronic cervical pain with radiculopathy secondary to degenerative disk disease at C5-6” for PEB adjudication.

The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Cervical ROM
(Degrees)	
PM ~12 Mos.
Pre-Sep
	
Ortho Consult ~12 Mos. Pre-Sep
	
NARSUM ~11 Mos. Pre-Sep
	
VA C&P ~7 Mo.
Pre-Sep
	
Flexion (45 Normal)	“Normal cervical ROM”	20	45/45/45	25	
Combined (340)	-	130	250	240	
Comments	
Tenderness	
Limited motion	
Limited motion and painful motion	Limited motion; painful motion; 
tenderness; and LUE sensory changes	
§4.71a Rating	10%	20%	10%	20%	

At the time of the physical medicine clinic appointment on 10 January 2005, 12 months prior to separation, the CI reported “that she still [had] some intermittent numbness and tingling in the thumb bilaterally…and some tingling type pain present in the right upper trapezius region.”  The examiner recorded that she had an EMG examination approximately 2 years prior that showed mild evidence of an active C6-C7 radiculitis.  On examination there “did not appear to [be] any strong signs to suggest either a radiculitis or a radiculopathy in the upper extremities.” The CI had normal cervical ROM and positive tenderness.  Upper extremity strength, reflexes, and sensation were all normal.

At the time of the orthopedic consultation for MEB on 12 January 2005, 12 months prior to separation, physical examination showed “no significant deformity” of the spine.  The CI’s ROM was limited as indicated in the chart above.  Upper extremity strength, sensation and reflexes were normal.  Cervical and thoracic spine X-rays on 10 January 2005 showed localized degenerative changes.

At the MEB examination on dated 14 January 2005, 12 months prior to separation, the CI reported that she experienced persistent pain, decreased movement, tingling hands and headaches.  Physical examination showed decreased cervical ROM in all planes and positive tenderness to palpation (TTP) of the cervical muscles.

The MEB NARSUM examination on 10 February 2005 (11 months prior to separation) noted complaints of “hand/finger numbness and tingling.”  Physical therapy ROM evaluation, conducted the day before showed full flexion with limitation of combined motion as indicated in the chart above, with painful motion with rotation.  The physical examination showed no tenderness or deformity of the spine with normal upper extremity strength, sensation, and reflexes.  

At the VA Compensation and Pension (C&P) examination on 11 June 2005, performed 7 months before separation, the CI reported daily neck pain and headaches, and that “her hands and upper arms were tingling and fell asleep.”  The CI reported that she missed approximately 10 days of work due to her neck and low back problems, but the examiner noted there had been no incapacitation.  Physical examination showed normal posture and gait without muscle spasm.  There was TTP in the cervical area.  Cervical ROM was limited as indicated in the chart above, with painful motion noted.  There was “no fatigue, weakness, or lack of endurance” demonstrated during ROM testing.  There was decreased sensation to light touch in the C7 nerve root distribution of the LUE, but strength and reflexes were normal.  The C&P examiner indicated there were symptoms that might be radicular and requested an updated electrodiagnostic study.  The CI declined to have the study performed.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 0% under the 5237 code (cervical spine strain), citing “no tenderness” and “full flexion.”  In 2002, the VA originally assigned a 10% rating coded 5295 (lumbosacral strain) under the old spine rating rules for “characteristic pain on motion.”  The VA increased the neck rating to 20% using the 5290-5237 code on 5 July 2005, after the C&P examination 7 months before separation.  

The Board agreed that a 20% rating, but no higher, was justified for variable but recurrent limitation of flexion (greater than 15 degrees but not greater than 30 degrees) as reported on the MEB orthopedic consultation and VA examinations.  The Board noted the limitation of cervical spine motion recorded in the MEB NARSUM examination met the threshold for a 10% rating.  However, members agreed that the VA, MEB and orthopedic examinations proximate to separation were more consistent with outpatient notes and more reflective of the anticipated severity based on the clinical pathology.  The Board therefore relied more heavily on the measurements from these examinations in recommending a change to the DoD rating.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the neck condition, coded 5237.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported intermittent paresthesia/numbness to her left hand and electrodiagnostic studies supported some level of radicular nerve irritation or involvement, but physical exams from physical medicine, MEB NARSUM, and VA C&P proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting and there was no significant neurologic impairment which would impact military occupation specific activities in this case.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the neck condition, coded 5237.  

Contended PEB Conditions. 

Neurosensory Hearing Loss (or sensorineural hearing loss - SNHL).  The Board’s main charge with regard to the SNHL condition is to assess the fairness of the PEB’s determination that the condition was unfitting, but existed prior to service (EPTS) and was not service aggravated.  The PEB cited the otolaryngologist’s opinion that the CI’s hearing loss was “likely due to genetic causes and not due to loud noise exposure.”  However, at the CI’s military enlistment physical in June 1978 she reported no problems with hearing, no abnormalities were noted on examination and the audiogram showed hearing levels within normal for both the right and left ear.  An audiogram in February 1982 showed hearing loss greater in the left ear than the right ear, consistent with noise induced hearing loss (NIHL).  An Officer Evaluation Report (OER) date 27 August 2000 was outstanding and reflected no difficulties with the CI’s duty performance due to her hearing deficits.  At VA audiology visits in 2003 the CI reported bilateral hearing loss that began in her 20’s and she reported that full evaluation at a private medical facility was negative and that premature hearing loss ran in her family.  The commander’s statement dated March 2005 noted that the CI had a bilateral hearing deficit but remained deployed on a waiver, with an H3 profile noted on a retention physical in May 2002 and a U3L3H3 profile as of May 2003.  In January 2005 the MEB audiology consult indicated the CI was undergoing a MEB for her “back as well as her hearing.”  The CI was a teacher in her civilian job with no significant history of non-military noise exposure.  The MEB audio examiner indicated that the current audiogram showed severe, progressive hearing loss and the CI was exhibiting worsening speech discrimination.  His assessment was that the HL was “likely due to genetic causes.  This is not a hearing loss consistent with loud noise exposure.”  However, he noted that no prior audiograms were available for review.  The MEB NARSUM examiner indicated that the CI’s hearing loss was aggravated by noise exposure during active duty in the military and noted that the hearing deficit, despite bilateral hearing aids, impaired the CI’s duty performance.  The commander stated that an MMRB was completed and the CI was found unfit for medical retention but the MMRB findings are not in record.  The CI appealed the MEB finding that the SNHL existed prior to service and was not permanently service aggravated and the MEB response dated 21 April 2005 concurred with the CI’s contention stating that “military service likely contributed to your hearing loss documented in your Narrative Summary (NARSUM) and DA 3947.”  

The Board found no evidence to indicate that the PEB’s determination that the CI’s hearing loss had a genetic component that manifested after a period of active duty was not correct.  The Board next considered whether or not there was evidence of service aggravation (SA).  A presumption of SA may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  The CI entered military service with normal hearing bilaterally and in a response to the CI’s appeal of the MEB findings, the MEB NARSUM and the MEB agreed that there likely had been SA of the SNHL condition.  Although there was apparently a genetic component to the CI’s SNHL, there is also evidence that she was exposed to loud noise while on AD and it is therefore impossible to conclude that there was no SA, defined by DoDI 1332.38 “permanent worsening…above the natural progression of the condition caused by trauma or the nature of to Military Service” that contributed to the CI’s cumulative hearing deficit at the time of separation.  The Board concluded that the PEB had not met the DoDI 1332.38 threshold to overcome the presumption of SA and therefore recommends the condition was SA and eligible for disability rating.

At the MEB audiology examination the physician cited the audiology evaluation performed on 14 January 2005.  The audiogram showed SNHL with a puretone threshold average (sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hz divided by four) of 63.75 decibels (dB) in the right ear and 75 dB in the left ear and speech discrimination scores of 84% on the right and 56% on the left.  At the VA C&P examination on 19 May 2005, 8 months before separation, the CI reported hearing loss requiring the use of bilateral hearing aids.  She reported noise exposure while she was in the Signal Corps of the Army.  She denied a family history of deafness or excessive noise exposure since separation from active duty.  Audiometric testing showed a puretone threshold average on the right of 66 dB and 72.5 dB on the left with speech recognition scored of 88% on the right and 82% on the left.  

The PEB adjudicated the SNHL condition as noted above.  The VA initially did not service connect the SNHL condition noting “constitutional/developmental abnormality.”  The CI had filed a Notice of Disagreement with the VA dated 16 September 2004 regarding the NSC determination and the VARD dated 22 July 2006 service connected the SNHL with an effective date of 29 August 2003 (the date of initial claim for SNHL).  The VARD cited normal hearing at the time of enlistment and service records documented noise exposure and granted service connection based on resolution of reasonable doubt in favor of the CI.  The VA rated the SNHL condition 10%, coded 6100.  The pre-separation C&P audiology examination was the most proximate examination to separation and provided documentation that speech recognition was performed according to VASRD specifications (Maryland CNC) and therefore, greater probative value was afforded to this evaluation for the Board’s rating recommendation at the time of permanent separation.  According to the procedures elaborated in VASRD §4.85 (Evaluation of hearing impairment) a 10% rating for the neurosensory hearing loss is supported and no higher.  In the matter of the “neurosensory hearing loss” condition, the Board unanimously concluded there was permanent service aggravation and recommends a disability rating of 10%, coded 6100 IAW VASRD

Mechanical Low Back Pain.  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 condition was reviewed and considered by the Board.  Although “neck, back and knee pain” were noted on the permanent profile, the commander referenced limitations due to an injury during deployment in July 2000 and the STR indicates it was mid-thoracic tenderness and sternal/rib pain and the commander referred to a LOD in 2003 that notes the same injury/symptoms.  The CI also stated in her appeal to the MEB dated 14 April 2005 that the low back condition and accompanying left lower leg radiating pain were successfully treated by her private doctor and massage therapist and that the only remaining symptom that she had was “a slight weakness in [her] left leg.”  The MEB response to the CI’s appeal dated 21 April 2005 cited that the CI’s “normal thoracic spine MRI, [her] recent normal lumbar spine X-ray, and [her] normal back examination by the Physical and Rehabilitative Medicine specialist,” did not cause the back condition to fall below retention standards.  There was no performance based evidence in record that the CI’s duty performance was impaired by the mechanical back pain condition at the time of permanent separation.  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 back condition and so no additional disability rating is recommended.

Depressive Disorder, NOS.  Records reveal that the CI was referred to the disability evaluation process between 11 September 2001 and 30 April 2012.  The Board considered the appropriateness of any changes in or elimination of MH diagnoses; PEB fitness determination; if unfitting, whether the provisions of VASRD §4.129 were applicable; and a disability rating recommendation in accordance with VASRD §4.130.  The medical evaluation for the MEB noted a no MH diagnosis, noted only a consult to psychiatry.  The MEB NARSUM listed a diagnosis of depressive disorder NOS.  The MEB forwarded depressive disorder NOS, meets retention and the PEB adjudicated depressive disorder NOS as not unfitting.  This applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project. 

The Board first considered if there was a preponderance of evidence that any MH condition, regardless of specific diagnosis, was unfitting for continued military service.  Three OERs in record from 27 August 2000 to 3 January 2003 evaluated the CI’s performance as “outstanding” and indicated she was “best qualified” for promotion.  The OER in 2002 noted that the CI was “working hard to regain her pre-injury physical fitness.” Comments indicated the CI volunteered for missions and went the extra mile to insure that training missions were successful.  

The depressive disorder NOS condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. At outpatient VA MH visits throughout 2005, MSE were normal except for depressed mood, and all MSE in record from November 2005 to June 2006 were fully normal.  Although the VA diagnosed posttraumatic stress disorder and major depressive disorder (which allegedly occurred decades earlier and were never reported to the Service) and the Service psychiatrist diagnosed depressive disorder NOS, there was no performance based evidence in record that any MH condition, regardless of diagnosis, significantly interfered with satisfactory duty performance.  After due deliberation, and 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 any MH condition.

BOARD FINDINGS:  In the matter of the neck condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended “neurosensory hearing loss” condition, the Board unanimously concluded there was permanent service aggravation and recommends a 10% rating, coded 6100.  In the matter of the contended mechanical low back pain and depressive disorder, NOS conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Cervical Spine 	5237	20%	
Neurosensory Hearing Loss	6100	10%	
COMBINED RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140526, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX AR20160013311 (PD201402502)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA