RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00244
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090922

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Wheeled Vehicle Mechanic, medically separated for “lumbosacral strain” and “hearing impairment, bilateral,” rated 20% and 0%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The applicant contends that back and neck conditions were combined into one rating, and that he was treated for post-traumatic stress disorder (PTSD) while in service.  The CI’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 based upon a 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.  

RATING COMPARISON:  

SERVICE PEB - 20090604	VARD -  20100113	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain…	5237	20%	DDD Lumbar Spine	5242	40%	20091201	
Hearing Impairment, bilateral	6100	0%	Tinnitus	6260	10%		
			Bilateral Hearing Loss	6100	NSC		
Anxiety	Not Unfitting	PTSD	9411	50%	20100308	
RATING:  20%	RATING:  60%	

ANALYSIS SUMMARY:  

Lumbosacral Strain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in July 2007, after he lost his balance and fell, landing on his back.  MRI of the thoracic spine dated August 2007 noted multiple levels of minimal to mild disk degeneration, small disk protrusion at T5-6 and T6-7 without stenosis or neural foramina stenosis, and small disk protrusions at T11-12 and T12-L1 with slight spinal stenosis and no neural foramina narrowing.  He was not a surgical candidate.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic thoracic spine pain” for PEB adjudication.

The MEB NARSUM examination on 17 April 2009, 5 months prior to separation, noted complaints of mid-back pain daily that he described as a tight ache.  On average, he rated his pain at 5-6/10.  His pain was directly related to activity and movement and somewhat alleviated by changing position.  Walking at his own pace was not much of an issue, but he was not able to stand for more than 15 minutes without pain.  The CI was unable to carry heavy packs. 

Physical examination showed decreased range of motion (ROM) with 15 degrees of flexion (normal 90) and 0 degrees of extension (normal 30), and discomfort on flexing.  Motor and neurological exams were normal, and radicular pain was not reported.  His gait was non-antalgic and there was no spasm on palpation.  The PT MEB ROM examination, 5 months before separation, recorded ROM flexion average of 48 degrees on 3 trials, and 2 degrees of extension, with combined ROM of 125 degrees (normal 240).
  
At the December 2009 VA Compensation and Pension (C&P) evaluation, performed approximately 2 months after separation, the CI reported persistent back pain that had worsened over time, and interfered with his usual daily activities.  Physical examination showed decreased ROM with flexion to 30 degrees and extension of 0 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 20%, coded 5237 (lumbosacral strain).  The VA rated the back condition 40% coded 5242, based on the VA C&P examination that showed forward flexion of the thoracolumbar spine of 30 degrees.  The Board agreed that the 20% rating by the PEB was justified for limitation of flexion greater than 30 degrees but not greater than 60 degrees; however, the ROM was 5 months prior to separation.  Board members agreed, the higher rating of 40% was justified based on the C&P examination which was most proximate to separation, and likely better reflected the back condition at the time of separation.

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).  There were no additional applicable codes to consider.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the back condition.  

Bilateral Hearing Loss.  According to the STR and the MEB NARSUM, the CI entered the military with bilateral hearing loss in 2004.  Audiogram from time of entry dated January 2004, showed mixed hearing loss bilaterally.  He reported little subjective hearing loss at that time and had no tinnitus.  Repeat audiogram in 2006 were without significant changes.  The CI deployed in 2007, and he felt that his left ear got worse during deployment and he had the onset of intermittent tinnitus in both ears.  In December 2008 he was identified as H-3 and SPRINT Category D by audiology.  In March 2009, approximately 1 month prior to the MEB, audiogram recorded speech discrimination at 92% in both ears, SPRINT test in the 89th percentile.  At the NARSUM, the CI reported he has tinnitus in both ears that occurs approximately twice a day.  He felt his hearing in the left ear was slightly decreased from when he entered the service, but otherwise stable.  The CI noted that he had few limitations from his hearing.  He did not have prescribed hearing aids.  It was noted that there had been a 15 db shift (mild) in the left ear at 1000 hertz since the service entry audiogram.

At the December 2009 VA Compensation and Pension (C&P) examination, performed approximately 2 months after separation, the CI reported bilateral ringing in the ears since a mortar attack in Iraq in November 2006.  His tinnitus is constant.  Measured pure tone threshold values recorded average of 28.75 db in the left ear and 27.5 in the right ear with right and left speech recognition score of 100%.  It was noted that the results of the audiogram on the day of the C&P exam and those from 2006, 2008, and 2009, all showed “very similar results.”  The examiner stated when the hearing thresholds from the entrance exam in January 2006 were compared to the March 2009 test, “no shift in hearing was noted to have occurred during his military enlistment.”  The examiner concluded that his pre-existing hearing loss did not worsen while he was in the Army.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition 0%, coded 6100 (hearing impairment) for average pure tone loss of 30% in the right ear and 28.75% in the left, and speech discrimination of 92% bilaterally.  The VA did not service-connect the hearing loss but granted 10% for tinnitus under the 6260 code.  The IPEB referenced audiologic data and both the VA C&P exam, 2 months after separation both demonstrated pure tone and speech discrimination loss that did not rise to the 10% rating criteria under VASRD §4.85 or §4.86.  The Board agreed that the 0% rating by the PEB was justified based on pure tone threshold tables VI and VIa.  After due deliberation, and 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 hearing loss condition. 

Contended PEB Conditions:  Anxiety Disorder Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the lumbosacral strain condition, the Board recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  In the matter of the hearing Impairment, bilateral condition with tinnitus and IAW VASRD §4.85 the Board recommends no change in the PEB adjudication.  In the matter of the contended anxiety disorder condition, the Board recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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	RATING	
Lumbosacral Strain	5237	40%	
Hearing Impairment, bilateral	6100	0%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150328, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160018553  (PD201500244)

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 40% 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 40% 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