RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00500
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081222

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantryman, medically separated for “lumbar spinal fusion after unstable L1-L2 fractures” and “bilateral hearing loss,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “Mobility and function issues that were not given a rating such as back, hip, L/R knee, neck…”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20080828	VARD - 20090204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Spinal Fusion After Unstable L1-L2 Fractures	5235-5241	10%	Status Post Spinal Fusion L1-L2 with Residual of Intervertebral Disc Syndrome with Residual Scar 	5243	20%	20081117	
Bilateral Hearing Loss	6100	0%	Bilateral Sensorineural Hearing Loss	6100	0%	20081103	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic low back pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in May 2006 after a motor vehicle accident.  The CI sustained two spinal fractures and was hospitalized for a week with good recovery.  In November 2006 he underwent spinal fusion surgery at L1-L2 for stabilization.  
At the 30 May 2008 MEB Spine consultation, 7 months before separation, the CI reported LBP and right groin numbness.  The spine surgeon indicated the CI had sustained an L1-L2 flexion-distraction injury with subluxation of the vertebrae and avulsion of the L1 nerve root.  Following fusion surgery to stabilize the spine, the spinal alignment was satisfactory but the CI continued to report LBP, as well as right groin pain and numbness.  Physical examination showed a normal gait.  The CI was able to heel and toe walk.  There was no abnormal spinal curvature or step-off.  There was tenderness of the lumbar region, especially near the area of the scar.  Lumbar range of motion was described as “full” in all planes, but with pain at end flexion ROM.  Lower extremity strength was normal.  Sensation was normal except for decreased right groin sensation in the L1 distribution.  Reflexes were normal.  Straight leg raise testing to elicit nerve tension signs was negative bilaterally.  The CI’s spine surgery scar and left flank scar due to lumbar hernia repair surgeries were well healed.  Lumbar spine X-rays showed intact fusion screws and healing of the interbody fusion.  Flexion and extension X-rays were stable.  

The MEB NARSUM examination on 18 July 2008, 5 months prior to separation, noted complaints of LBP.  The examiner noted the CI’s condition had been stable for 16 months.  Physical examination cited the same findings as the MEB spine consult and additionally noted lumbar muscle spasms.  The examiner noted complaint of abnormal pain sensations (allodynia) in the lumbar muscles.  Back ROM measured with a goniometer (after three repetitions) was flexion 60 degrees (normal 90) and combined ROM 205 degrees (normal 240), with pain noted.  

At the 17 November 2008 VA Compensation and Pension (C&P) evaluation, performed 1 month before separation, the CI reported constant LBP with muscle spasms at times.  He denied bowel or bladder problems.  The CI reported that at the time of pain he could function without medication and the condition did not cause any incapacitation.  Physical examination showed a normal gait.  There was tenderness of the mid to low back with muscle spasm.  There was normal spinal curvatures and normal spinal motion.  There was no radiation of pain with movement and SLR was negative bilaterally.  Thoracolumbar ROM was flexion 50 degrees and combined ROM 145 with painful motion.  There was no additional loss of ROM with repetition.  The examiner noted signs of lumbar intervertebral disc syndrome with sensory deficit in the right L1-3 distributions.  Right lower extremity sensation and reflexes were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5235-5241 (vertebral fracture-spinal fusion).  The VA rated the LBP condition 20% coded 5243 (intervertebral disc syndrome), based on the C&P examination 1 month before separation, citing limitation of forward flexion to 50 degrees.  The panel agreed that a 20% rating, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the MEB NARSUM and VA examinations proximate to separation.  There was no documentation with incapacitating episodes due to intervertebral disc syndrome (IVDS) which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the lumbar spinal fusion condition, coded 5235-5241.  

Bilateral hearing loss (HL).  According to STR and the MEB NARSUM, the CI’s bilateral HL condition began in 2004 while deployed after multiple exposures to loud noise, including an improvised explosive device blast.  A hearing conservation evaluation in 2007 showed bilateral sensorineural hearing loss (SNHL), mild to moderate, worse on the left and an H2 profile was provided.  The 11 June 2008 MEB audiology evaluation, 6 months before separation, showed worsening of the CI’s HL.  Audiometric testing on 17 July 2008 showed average HL (decibels [dB] at 1000, 2000, 3000 and 4000 hertz, divided by four) on the right was 26.25 dB (5, 15, 35, and 50 dB, respectively) and on the left was 41.25 dB (5, 30, 65, and 65 dB).  Speech discrimination was 100% in both ears at 65 dB.  The ENT specialist noted the CI had excellent speech discrimination at conversational tones in quiet, but the CI’s SNHL was getting worse overall and met H3 profile standards.  At the June 2008 MEB examination the screening audiometry showed an average hearing loss of 11.25 dB in the right ear and 28.75 dBin the left ear.  The MEB NARSUM examination on 18 July 2008, 5 months prior to separation, noted the H3 profile for HL.  

At the 3 November 2008 C&P evaluation the CI reported bilateral hearing loss with difficulty hearing with background noise and ringing in both ears.  Physical examination showed normal ear examination bilaterally.  Audiometric testing showed average HL on the right of 27.5 dB (15, 15, 30, and 50 dB, respectively) and 42.5 dB on the left (15, 25, 65, and 65 dB).  Speech discrimination at 65 dB was 100% on the right and 96% on the left.      

HEARING	EXAM	MEB AUDIOLOGY ~5 Mo. Pre Sep
(20080717)	VA C&P ~2 Mo. before Sep
(20081103)	
LEFT EAR	Average Hearing Loss	41.25 dB	42.5 dB	
	Speech Discrimination	100%	96%	
	Table VI 	I	I 	
RIGHT EAR	Average Hearing  Loss	26.25 dB	27.5 dB	
	Speech Discrimination 	100%	100%	
	Table VI 	I 	I 	
§4.85 RATING	Table VII	0%	0%	
(Average hearing loss is the sum of pure tone thresholds at 1000, 2000, 3000, and 4000 Hz divided by four)

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral hearing loss condition 0%, coded 6100 (impairment of auditory acuity).  The VA also rated the bilateral hearing loss condition 0%, coded 6100 (impairment of auditory acuity), based on the C&P examination 1 month before separation.  According to the procedures specified by VASRD §4.85 (evaluation of hearing impairment), the Roman numeral designation obtained from Table VI “Numeric Designation of Hearing Impairment Base on Puretone Threshold Average and Speech Discrimination” was I in both ears on both the MEB and VA audiology examinations.  A 0% rating for hearing impairment is derived by applying the Roman numeral designations of the right and left ears to Table VII (percentage evaluation for hearing impairment).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral hearing loss condition.  

BOARD FINDINGS:  In the matter of the LBP condition, the panel unanimously recommends a disability rating of 20%, coded 5235-5241 IAW VASRD §4.71a.  In the matter of the bilateral hearing loss condition and IAW VASRD §4.87, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Lumbar Spinal Fusion After Unstable L1-L2 Fractures	5235-5241	20%	
Bilateral Hearing Loss	6100	0%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160815, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015727, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure