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Dear XXXXXXXXXX:

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.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-03921
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Network Switching Systems Operator/Maintainer, medically separated for “lumbosacral strain” and “hearing loss,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  The CI contends that he should have been medically retired.  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 - 20071031	VARD - 20080825	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbosacral Strain	5237	10%	Degenerative Disc and Joint Disease Lumbar Spine	5243	10%	20080306	
Hearing Loss	6100	0%	Hearing Loss	6100	0%	20080225	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Lumbosacral Strain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began insidiously in 2004 without a specific inciting event.  X-rays of the lumbar spine in November 2006 were negative.  An MRI in June 2007 revealed a large left-sided disc herniation at L4-5.  The 27 July 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, revealed tenderness at the lumbosacral junction, positive pain on the left with flexion and a positive straight leg raise on the left.  At neurosurgical visits in August and September 2007, surgery was offered, but deferred.  

The 1 October 2007 MEB NARSUM examination, 2 months prior to separation, noted complaints of lower back pain with radiation to the left hip and leg.  Physical examination showed tenderness at the lumbosacral spine junction and a positive straight leg raise test.  Physical therapy range of motion (ROM) testing on 2 October 2007, revealed flexion of 45 degrees (normal 90) and combined ROM or 165 degrees (normal 240) with pain.  The examiner noted back stiffness, muscle contractures, muscle spasm and guarding, but there was no abnormal gait or abnormal spinal contour.  X-rays of the lumbar spine in January 2008 demonstrated normal bony alignment with preservation of the disc spaces and no acute compression fractures, spondylosis or spondylolisthesis (a vertebra sliding over the one below it).  X-rays of the lumbosacral spine in March 2008 were essentially normal with minimal hypertrophic arthritic changes at L3-L4 and L4-L5, but an MRI demonstrated a disc protrusion at L5-S1 projecting into the left neural foramen.  

At the 6 March 2008 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported pain in the lower back, which travelled to the left leg and foot.  The examiner found muscle spasm and tenderness.  There was a positive straight leg raise test on the left.  The ROM study showed flexion of 90 degrees and combined ROM of 230 degrees.  There was no additional loss of motion after repetition, but pain had a major functional impact.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing painful limitation of motion.  The VA also rated the back condition 10%, analogously coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing muscle spasm, guarding or localized tenderness not resulting in an abnormal gait or abnormal spinal contour.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the physical therapy examination.  There was no documentation of intervertebral disc syndrome with incapacitating episodes, 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 back condition, coded 5243.  

Bilateral Hearing Loss.  According to the STR and MEB NARSUM, the CI had a long history of mild to moderate sensorineural hearing loss since 1995.  On examination in June 2006, the CI had hearing loss of 35 dB on the right and 40 dB on the left, both at 1000 Hz with excellent speech recognition.  He was prescribed hearing aids and went through an MMRB (MOS Medical Review Board), but was not able to reclassify into another MOS.  On examination in June 2007, he had a 50 dB loss on the left and 40 dB loss on the right at 1000 Hz with an average hearing loss of 28.75 dB on the left and 31.25 dB on the right.  

During the MEB examination, 4 months prior to separation, the CI reported using hearing aids.   The MEB NARSUM examination, 2 months prior to separation, noted complaints of progressive bilateral low and mid frequency hearing loss of moderate degree.  Audiologic examination on 25 June 2007 showed mild progression of loss of low frequencies of the right ear with a SPRINT score of 22%.  On 30 October 2007 speech recognition with competing noise was excellent (92%) in the left ear and good (84%) in the right ear.  

At the 25 February 2008 VA C&P audiology examination, 3 months after separation, an audiogram revealed an average hearing loss on the right of 20 dB with 40 dB loss at 1000 Hz and an average hearing loss on the left of 26.25 Hz with speech discrimination scores of 100% for both the left and right ears.  Otoscopic examination showed no gross abnormality of either ear.  

HEARING	EXAM	MEB ~5 Mo. Pre Sep	VA C&P ~3 Mo. After Sep	
LEFT EAR	Average Hearing Loss	28.78 dB	 26.25dB	
	Speech Discrimination	92%	100%	
	Table VI / VIa	 I / I	I / I	
RIGHT EAR	Average Hearing  Loss	31.25 dB	 20 dB	
	Speech Discrimination 	84%	100%	
	Table VI / VIa	II / I	 I /  I	
§4.85 RATING	Table VII	0%	0%	

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral hearing loss 0%, coded 6100 (hearing loss), citing hearing loss consistent with lesions due to high noise exposure with good word recognition in the quiet and poor SPRINT scores.  The VA also rated the hearing loss 0%, coded 6100, based on the C&P audiology examination.  

The panel noted the CI had the majority of his hearing loss at 1000 Hz bilaterally.  However, his rating, based on the average hearing loss bilaterally and speech recognition both prior to and post-separation, was 0%, and in the absence of severe hearing loss, a higher rating cannot be achieved.  After due deliberation, considering all 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 bilateral hearing loss.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the bilateral hearing loss condition and IAW VASRD §4.85, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Lumbosacral Strain	5243	20%	
Bilateral Hearing Loss	6100	0%	
COMBINED	20%