RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02910
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061013

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Combat Engineer, medically separated for “chronic right leg pain following operative fixation of tibia and ankle with mild right genu valgum” with a disability rating of 10%.

CI CONTENTION:  “Please review all my claimed conditions for accuracy and fairness.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20060919	VARD - 20061108	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Leg Pain… 	5099-5003	10%	Right Tibia, Status Post Fracture and Surgery Residuals	5262	10%	20061005	
Right Ear Hearing Loss	Not Unfitting	Right Ear Sensorineural Hearing Loss	6100	10%	20061003	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Right Leg Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained a right tibia and left ankle (not in scope) fracture in May 2005 when a Bradley fighting vehicle hatch fell on his lower extremities.  He underwent an intramedullary nailing of the tibia and open reduction and internal fixation of the ankle on 11 May 2005 with post-operative physical therapy (PT).  
On 8 September 2005, X-rays showed healing fractures stabilized in normal (tibia) and near normal (fibula) alignment by an intramedullary tibial rod and associated screws.  Because of delayed union, removal of the distal screw of the right tibial nail was performed on 6 December 2005.  The CI reported having the sensation of diffuse numbness in the whole calf/shin region as well as intermittent tingling that seemed to originate in the bottom of the foot and radiate into the rest of the leg.  Electrodiagnostic testing on 29 December 2005 was normal except for the right peroneal motor study which revealed “non-recordable potentials” and “focal abnormalities” in the right external digitorum brevis muscle (helps extend first through fourth digits of the foot) consistent with severe peroneal neuropathy at the ankle.  The CI was offered a trial of medication, but he preferred to “live with the sensation.”  

At a primary care visit on 10 February 2006, the CI complained of right lower extremity edema that was painful with ambulation.  Examination revealed localized leg swelling with tenderness of the anterior tibial muscle compartment, but no warmth, erythema, atrophy or muscle hypertrophy.  Treatment consisted of a nonsteroidal anti-inflammatory drug and heat/cold applications.  Right lower extremity X-rays on 16 March 2006 and 1 May 2006 showed nearly anatomic alignment of the tibia and fibula as well as increased callus formation consistent with healing fractures. 

The CI underwent removal of the right tibial intramedullary nail on 18 May 2006 because of anterior knee pain, and X-rays showed that anatomic alignment and positioning were maintained with significant callus formation on the tibial and fibular fractures.  At a PT examination on 23 May 2006, the CI ambulated with partial weight bearing on crutches; active knee range of motion (ROM) was 110 degrees (normal 140).  Focused exercises were continued and weight bearing precautions were reviewed.  During a PT follow-up on 19 June 2006, active right knee ROM was 120 degrees with “good versus excellent” right quadriceps tone with minimal atrophy.  On 20 July 2006, X-rays showed healed fractures and stable post-surgical changes.    

During the 28 July 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported right ankle and foot tingling, numbness, and pain.  Physical examination revealed a genu valgus (knock-knee) deformity with patella and distal tibia/fibula pain.  The 31 August 2006 MEB NARSUM examination, 1 month prior to separation, noted complaints of right leg pain.  Physical examination showed well-healed surgical scars without erythema or edema, and no tenderness at the fracture site; there was some decreased sensation in the anterolateral leg.  Right knee ROM was 120 degrees with no laxity or instability, and the examiner noted a slight genu valgum on the right while the CI was standing.  

At the 5 October 2006 VA Compensation and Pension (C&P) examination, less than 1 month before separation, the CI reported intermittent sharp pain treated by medication, and constant right leg numbness.  Physical examination revealed normal posture and gait with tenderness from the right anterior knee to the lower leg, and pain with McMurray’s testing (to determine a meniscal tear).  Right knee flexion was to 145 degrees flexion and extension to 0 degrees, with painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right leg condition 10%, analogously coded 5009-5003 (arthritis, degenerative), citing application of the US Army Physical Disability Agency pain policy and rated as slight/constant without requiring daily narcotic therapy.  The VA also rated the right leg condition 10%, coded 5262 (tibia and fibula, impairment of), based on the C&P examination, citing slight knee disability.  Panel members noted that the CI’s tibia and fibula fractures had healed by separation, and although coding analogously to 5262 was applicable, there was no significant right knee or ankle disability to warrant a rating higher than 10%, and thus no benefit to the CI.  There was no knee ankylosis (5256), impairment (5257), or leg limitation of flexion or extension (5260, 5261).  Additionally, there was no dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint (5258) or removal of symptomatic semilunar cartilage (5259).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition.  

Contended PEB Condition:  Right Ear Hearing Loss.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was profiled H2, but was not judged to fail retention standards or implicated in the commander’s statement.  The CI’s baseline audiograms prior to entry to service on 1 September 2001 showed an average hearing loss of 18.75 dB on the left and 23.75 dB on the right, while on 2 August 2002 the hearing loss was 12.5 dB on the left and 28.75 dB on the right. The CI served as a combat engineer and was exposed to weapons fire and explosions while deployed.  An audiogram dated 12 May 2004 revealed an average hearing loss of 10 dB on the left and 50 dB on the right, with a repeat test on 10 June 2004 showing the same loss on the left and 41.25 dB on the right.  An audiologist indicated there was moderate to mild conductive loss on the right with excellent word recognition.  Immittance testing was consistent with a right otosclerosis (abnormal bone growth in the middle ear) pattern, and on 1 October 2004, an otolaryngologist recommended a stapedectomy (removal on innermost middle ear bone).  An audiogram on 13 October 2004 revealed a 16.25 dB loss on the left and 51.25 dB loss on the right, and the audiologist discussed amplification (a hearing aid).  The CI underwent a right stapedectomy on 21 January 2005 and pathology was consistent with otosclerosis. A postoperative audiogram on 14 March 2005 revealed average hearing loss of 7.5 dB on the left and 78.75 dB on the right.  On 22 April 2005, a contralateral routing of signal amplification system (CROS) hearing aid was ordered.  An audiogram dated 28 July 2006 revealed an average hearing loss on the left of 20 dB and 81.25 dB on the right.  Repeat testing on 3 August 2006 showed an average hearing loss on the left of 20 dB and 71.25 dB on the right.  The C&P audiology examination on 3 October 2006, 10 days prior to separation, showed an average hearing loss on the left of 23 dB and 95 dB on the right. The CI had 100% word recognition on the left, and none on the right, consistent with normal hearing for the left ear and “profound sensorineural loss” for the right ear. 

Upon deliberation, the panel majority adjudged that there was no limitation on the CI’s duty, as the commander indicated he could “still perform positively in the Army,” albeit he was working as a rear mail clerk rather than in his military specialty as a combat engineer.  Furthermore, the majority felt that there was not a preponderance of evidence to justify overturning the PEB’s finding that the right ear hearing loss was not unfitting.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel majority concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic right leg pain condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended right ear hearing loss condition, the panel majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170425, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

Minority Opinion.  The minority voter recommends the CI’s profound right hearing loss condition be found unfitting since the CI was unable to perform the duties of a combat engineer.  Continued exposure to loud sounds is detrimental to the well-being of his left ear, which proximate to separation had an average, mild hearing loss of 20 dB.  The fact that the PEB did not request an otolaryngology addendum or even a definitive statement from the audiologist limited its potential to have a full and complete determination of the CI’s fitness for continued service as a combat engineer.  Although the panel majority indicated there was not a preponderance of evidence in the record to support the CI’s profound hearing loss as unfitting, the lack of an expert opinion in the STR was obviously delimiting of an accurate and fair adjudication.  However, where the record is incomplete, a reasonable, rational review, and remedy is warranted and is consistent with the concept of lex plus laudatur quando ratione probatur (the law is most praiseworthy when it is consistent with reason).  While hearing amplification was ordered, there is no follow-up in the STR about whether it was received or its effectiveness.  Furthermore, it is questionable whether a combat engineer could wear a hearing aid in the field, bearing in mind that should there be a battery failure or damage/loss of the aid, communication would potentially and realistically be problematic.  Therefore, such a profound hearing loss is inconsistent with the duties of a combat engineer where voice commands are not uncommon and exposure to loud noises is quite common.  As for the commander’s statement that the CI could “still perform positively in the Army,” it was but a supposition and opinion based on the fact that the he was working as a mail clerk.  A determination of performance requires medical input as well as command experience, but medical expertise related to the profound hearing loss was not addressed or sought by the commander, who should have been aware of the CI’s hearing loss if he spoke with him in other than a quiet environment. 

The profound hearing impairments should have been found unfitting based on audiogram results diagnosing severe sensorineural hearing loss on the right.  The CI was assigned a permanent H2 profile on 14 March 2005, but the profile originally was recorded as “H3” with a “2” then handwritten over the “3.”  Therefore, there is reasonable doubt, as should have been the case during PEB proceedings, as to who, when, and why the non-initialed alteration in the medical record was not challenged on authenticity and accuracy, especially since it was unequivocally determined at the C&P audiology examination that the CI had documented profound hearing loss just prior to separation.  Fitness is determined based on whether an individual can perform duties based on rate, rank, office, and military occupational specialty.  Simply stated, with profound hearing loss in one ear and the real possibility to have degradation of hearing in his right ear with an already existing mild hearing loss despite the use of hearing protection in an environment where explosions and blasts are inevitable, the CI is unfit.  While the VASRD is not used to determine fitness, it does provide guidelines for rating, with sections pertinent to this specific case including, but not limited to, §4.2 (interpretation of examination reports), §4.3 (resolution of reasonable doubt), §4.6 (evaluation of evidence) and §4.10 (functional impairment).  That rational guidance along with the indisputable facts of the case, clearly and unequivocally point to the CI’s unfitness to perform his duties as a combat engineer.  Therefore based on the C&P audiology examination, which was the most probative and proximate examination to separation, a 10% rating is recommended. 

HEARING	EXAM	VA C&P ~10 days Pre Sep	
			
LEFT EAR	Average Hearing Loss	23 dB	
	Speech Discrimination	100 %	
	Table VI / VIa	I / I	
RIGHT EAR	Average Hearing  Loss	95 dB	
	Speech Discrimination 	 0%	
	Table VI / VIa	XI / IX	
§4.85 RATING	Table VII	10%	

Therefore, the preponderance of the evidence with regard to the functional impairment of right ear hearing loss favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 6100 and meets the VASRD §§4.85, 4.86, and 4.87 (based on code 6302 (otosclerosis) criteria for a 10% rating.

Furthermore, the minority voter recommends the ROP be modified as follows:

In the matter of the contended right ear hearing loss condition, the panel agrees it was unfitting and recommends a disability rating of 10%, coded 6100 IAW VASRD §§4.85, 4.86, and 4.87.

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Leg Pain	5099-5003	10%	
Right Ear Hearing Loss	6100	10%	
COMBINED	20%	

AR20180009593, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
Enclosure