RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02926
BRANCH OF SERVICE:  Army	BOARD DATE:  20150708
SEPARATION DATE:  20061224

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Tank Driver) medically separated for bilateral 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 H3 profile and referred for an Medical Evaluation Board (MEB).  Mild to moderate mixed hearing loss, right ear and moderately severe to severe mixed hearing loss, left ear, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded bilateral otalgia and bilateral tinnitus for PEB adjudication.  The Informal PEB adjudicated bilateral middle ear disease as fit for duty.  The CI did not concur and submitted a written appeal.  A Reconsideration PEB adjudicated bilateral hearing loss, left greater than the right as unfitting, rated 0% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining bilateral otalgia and tinnitus conditions were determined to be not unfitting.  The CI made no further appeal and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 condition 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 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:

Recon IPEB – Dated 20061003	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Hearing Loss	6100	0%	Bilateral Hearing Loss	6100	0%	20070505	
Bilateral Otalgia	Not Unfitting	Tinnitus	6260	10%	20070505	
Bilateral Tinnitus	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5	
RATING:  0%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20070628 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Bilateral Hearing Loss Condition.  According to a note in the service treatment record (STR) dated 8 July 2005 the CI complained of bilateral ear pain, muffled hearing, and occasional dizziness beginning in April 2005.  He had a history of loud noise exposure, especially IED explosions during deployment, although he has some prior hearing loss.  Based on clinical findings of bilateral middle ear fluid, the CI was diagnosed with bilateral serous otitis media (middle ear infection) and mixed conductive and sensorineural hearing loss.  Bilateral myringectomies (surgical opening of the tympanic membranes [TM]) with placement of PETs (pressure equalization tubes) were performed on 12 July 2005.  By November 2005 the CI had 100% speech recognition with normal testing of movement of the right TM and no movement of the left TM.  In May 2006, the CI reported that his symptoms initially improved, but shortly therafter, he had ear pain and intermittent bloody discharge and the tubes were extruded (no longer in place).  Examination revealed bilateral TM retraction, greater on the left than the right, with a suspected left effusion (fluid in the middle ear).  An audiogram showed mild to moderate mixed loss of the right ear and moderately severe to severe mixed loss of the left ear.  Bilateral speech discrimination was 100%.  The CI did not desire any further surgery although the ENT (Ear, Nose and Throat) surgeon recommended replacement of the PETs for fluid drainage and improved TM movement to improve the conductive component of hearing loss.  On 2 June 2006, the CI was cleared for amplification with custom hearing aids, while a Speech Recognition in Noise Test (SPRINT) revealed 28% recognition, which was classified as Category E (separation from service).

The MEB narrative summary (NARSUM) dated 30 May 2006 was performed for decreased hearing and bilateral tinnitus as a result of exposure to multiple IED explosions and bilateral acute otitis media.  Besides myringectomies, the CI was treated with multiple medications for his ear discomfort, but was taking no medications at the time of the NARSUM.  On examination, both ears showed significant retraction with more so on the left side. There was also a suspicion on microscopic examination for bilateral middle-ear effusions that were clear and not purulent (filled with pus).  The ear canals were normal appearing and on testing there was poor bilateral tympanic membrane movement.  The nasopharynx (nose and mouth) was clear and the eustachian tube (connecting the nasopharynx and ear) orifices (openings) were grossly patent bilaterally.  No adenopathy of the neck was noted.  The CI’s gait was steady and unassisted. With Romberg testing of balance, there was slight sway, but no frank loss of balance.  Heel to toe walking, forward and backward, were intact and normal.  A CT scan of the temporal bones in February 2006 suggested soft tissue densities of the right middle ear and bilateral mastoids.  An audiogram of 30 May 2006 revealed a mild to moderate mixed hearing loss in the right ear (average 48.75 dB) and a moderately severe to severe mixed hearing loss in the left ear (average 72.5 dB).  Speech discrimination bilateral was excellent. Of the multiple audiograms obtained over the year prior to the NARSUM, the nerve conduction appeared quite steady at a mild loss. The majority of the hearing loss in the mixed scenario was conductive; however, there improvement since April 2005.  

A permanent H3 profile dated 16 June 2006 for chronic middle ear disease with mixed hearing loss and ear pain-both ears limited sit-ups at the CI’s own pace and indicated no duty requiring acute hearing ability and hearing aids must be worn.  The commander’s statement dated 21 June 2006 reviewed in detail the CI’s surgical and audiological history including “the fact that the pain in his ears increased when wearing his CVC” (combat vehicle crewman’s helmet) and noted the CI was on rear detachment, had to wear hearing aids in both ears, and due to his permanent profile, he was no longer allowed to be in or around Army vehicles.  On the DD Form 2807-1, Report of Medical History, dated 23 June 2006, the CI wrote that “since April 2005 I have problems with my ears.  From 2 surgeries, Hearing loss, and pain.  I have been fitted for two hearing Aids.  Hearing loss from IEDs...Dizziness Due to the Fluid in my mastoides.”  The DD Form 2808, Report of Medical Examination, dated 23 June 2006, noted bilateral tympanic membrane deformity.

On 24 August 2006, an IPEB found the CI fit for duty for the MEB referred conditions of otalgia (ear pain) and bilateral hearing loss.  However, it was noted at an ENT clinic visit dated 11 September 2006 that although the CI had “excellent improvement with bilateral hearing aids and his balance was somewhat improved, although it was “thrown off” with demanding activities including push-ups, running, sit-ups, and heavy lifting.  However, as a “tanker” he was unable to wear hearing aids due to issues of sound feedback and distortion.  Without hearing aids he was unable to “hear commands.”  Another permanent H3 profile was issued on 11 September 2006 for chronic ear disease with mixed hearing loss and ear pain/intermittent unsteadiness with exertion.  Limitations included physical training and military functional activities as well as duties requiring acute hearing ability and hearing aids were to be worn to meet medical fitness standards.  An addendum to the NARSUM was prepared on 13 September 2006 after the CI was found fit by the PEB, which noted there were no longer middle ear effusions; TM retraction was improved in the right ear; subjectively, the CI noted an "excellent" improvement in hearing with his hearing aids bilaterally; and he was taking no pain medication.  The NARSUM addendum author noted that with the CI’s “mandatory use of hearing aids to meet the required hearing acuity, he was unable to perform require duties in his "tanker" MOS while wearing either the protective mask or his CVC helmet” and “while performing duties in his MOS there was often a noise level requiring the use of hearing protection (ear plugs),” which “was incompatible with the proper use of his hearing aids.”

At the VA Compensation and Pension (C&P) Audiology examination performed on 5 May 2007, 5 months after separation, the CI reported bilateral hearing loss and tinnitus with his greatest difficulty was understanding conversational speech in background noise.  He first noticed a change in his hearing after the first IED.  At the time of the examination the CI wore binaural ITC (in the canal) hearing aids.  On examination the left TM appeared dull and yellowish.  A tympanogram of the right ear revealed normal middle ear pressure and mobility, while a tympanogram for the left ear revealed no middle ear pressure or mobility (type B) suspected to be middle ear dysfunction.  Pure tone results were unreliable.  The VA ENT examination dated 14 June 2007 revealed a right retracted TM and a left severely retracted TM with probable chronic fluid bilaterally.  Repeat audiology evaluation on 15 June 2007 revealed average pure tone results of 31.25 dB on the right and 60 dB on the left.  Word recognition testing to determine speech recognition scores was not carried out at that time.

Audiology evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

HEARING	EXAM	MEB ~7 Mo. Pre Sep 	VA C&P ~5 Mo. After Sep	
LEFT EAR	Average Hearing Loss	72.5 dB	60 dB	
	Speech Discrimination	100%	Not performed %	
	Table VI/VIa	II/VI	--	
RIGHT EAR	Average Hearing  Loss	48.75 dB	31.25 dB	
	Speech Discrimination 	100%	Not performed %	
	Table VI/VIa	I/I	--	
§4.85 RATING	Table VII	0%	VA 0%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 6100 for bilateral hearing loss, left greater than right noting the CI’s ability to hear with hearing aids in normal situations.  The VA likewise assigned a 0% rating using code 6100.  The Board sought a route for a higher rating using VASRD §4.86(a) (exceptional patterns of hearing impairment).  Based on the audiology examination 7 months pre-separation, the puretone threshold for each of the four specified frequencies for the left ear was greater than 55 decibels, while the right ear puretone average was 48.5 dB.  Therefore, Table VIa afforded a Roman number designation of VI versus a II for Table VI.  However, using Table VII (Code 6100-Percentage Evaluation for Hearing Impairment) the rating is nevertheless still 0%.  The use of VASRD §4.86(b) was not applicable since the puretone threshold for the left ear was greater than 30 decibels at 1000 Hertz.  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 tinnitus and otalgia were 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.  Tinnitus was not profiled or implicated in the commander’s statement; however, otalgia (ear pain) was profiled and was implicated in the commander’s statement, which noted its presence both pre- and post-surgery, but although the CI had taken pain medication during the course of treatment of his ear problems, he was not taking any pain medication at the time of the NARSUM.  Although the CI noted his bilateral tinnitus was constant, he was able to sleep without difficulty.  The NARSUM author opined that “the bilateral tinnitus was likely related to the nerve component of the hearing loss and was suggested to be likely long standing due to multiple loud noise exposures incurred while deployed,” while “the bilateral otalgia was likely to improve with improved middle ear function.”  At an ENT clinic visit dated 11 September 2006 the CI noted his pain was unchanged and ranged from none to 3-4/10 (10 being the worst pain) with increased activities, but the NARSUM addendum of 13 September 2006 reported the CI was taking no medication.  At the VA examination, 7 months post-separation, the examiner recorded the CI noted tinnitus of the left ear in November 2005 and by May 2006, it was present in both ears, while the CI noted pain in both ears since the PE tubes were placed.  Neither the tinnitus nor the otalgia were not judged to fail retention standards.  The aforementioned was reviewed and considered by the Board.  There was no performance based evidence from the record that either the tinnitus or otalgia 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 for either contended condition and so no additional disability ratings are 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 §4.85 and §4.86, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended tinnitus and otalgia conditions, the Board unanimously recommends no change from the PEB determinations 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 20140619, 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

06 JUL 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXX, AR20160003494 (PD201402926)

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