RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05009
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060124

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty, Human Intelligence Collector, medically separated for “chronic low back pain” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  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 - 20051205	VARD - 20061004	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbar Spine Degenerative Disc Disease	5243	10%	20060802	
Hearing Loss 	Not Unfitting	Bilateral Hearing Loss	6100	NSC	20060802	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back condition began in July 2003 without trauma or injury. He developed acute back spasm and difficulty standing erect and moving in October 2004 while performing a fireman’s carry.  An MRI in November 2004 showed mild L5-S1 degenerative disc disease, but surgical intervention was not encouraged.  The 6 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, showed no muscle atrophy or bowel or bladder dysfunction.  Deep tendon reflexes were normal and straight leg raise testing for radiculopathy was negative.  There was no pain with flexion, extension, rotation or side bending.  At the 6 October 2005 MEB NARSUM examination, the same day, the CI reported daily low back pain that increased with activity.  Physical examination revealed he could touch his toes and stand on toes and heels.  Range of motion testing showed flexion of 90 degrees (normal) and combined ROM of 180 degrees (normal 240).  Painful motion was not addressed.  The 11 October 2005 MEB physical therapy ROM examination, 3 months prior to separation, showed thoracolumbar flexion of 90 degrees and combined ROM was 240.  Painful motion was not addressed.

At the 2 August 2006 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported lower back pain.  Physical examination showed a normal gait.  Lumbar spine flexion was 90 degrees, but combined ROM was incomplete.  Painful motion was elicited.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing spinal tenderness.  The VA also rated the back condition 10%, coded 5243 (intervertebral disc syndrome (IVDS)), based on the C&P examination, citing painful motion.

The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB NARSUM ROM examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus a 20% rating was not justified on this basis.  There was no documentation of IVDS with incapacitating episodes that would provide for a higher rating under that formula.  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 back condition.  

Contended PEB Condition:  Hearing Loss.  The panel’s main charge is to assess the fairness of PEB determination that the contended condition was not unfitting.  On 24 May 2004, audiology recommended the CI’s reassignment to a non-noise hazardous job.  Hearing aids issued with positive results, but the CI had problems completing a French language course due to his hearing.  On 22 February 2005, an initial PEB found the CI’s hearing loss condition fit for duty citing the commander’s recommendations for retention.  The PEB documented the CI’s permanent H3 profile was not unfitting.  A second PEB on 5 December 2005 also found the CI’s hearing condition not unfitting.  No specific rational was offered.  A commander’s statement, dated 9 August 2005, indicated the CI’s hearing deficit “significantly limits his ability to function normally in many everyday scenarios especially regarding verbal communication.  This presents training challenges, communications liabilities and increased safety risk considerations.”  The CI’s profile remained an H3, and the MEB did not render a retention judgement documenting, “Hearing loss H3 - previously adjudicated by the PEB.”  Hearing loss was noted on the CI’s service entry physical in 2001 and a waiver was granted.  As noted above, the CI was issued bilateral hearing aids prior to his first PEB in February 2005.  There were three audiology evaluations including pure tone audiograms and speech discrimination, proximate to separation, summarized in the chart below.
 
HEARING	EXAM	Service Entry	PEB ~4 Mo. Pre-Sep	C&P ~6 Mo. Post-Sep	
LEFT EAR	Average Hearing Loss	39 dB	43 dB	40 dB	
	Speech Discrimination	unknown	90%	96%	
	Table VI / VIa	I	II	I	
RIGHT EAR	Average Hearing  Loss	34 dB	41 dB	35 dB	
	Speech Discrimination 	unknown	100%	96%	
	Table VI / VIa	I	I	I	
§4.85 RATING	Table VII	0%	0%	0%	

The panel first determined that the CI’s hearing loss condition existed prior to service as evidenced on the service entry examination.  The panel then determined that the CI’s hearing loss condition was most-likely permanently service aggravated beyond natural progression based on basic and advanced individual training, weapons qualification, numerous military functions including physical or field training and military aircraft or deployment (Iraq) noise exposure.  Objective audiology evaluations showed the CI’s hearing was slightly worse proximate to separation than it was upon service entry.  The CI was subsequently recommended for reassignment to a non-noise hazardous job, issued a permanent H3 profile and prescribed permanent bilateral hearing aids.  The commander’s performance statement documented clear negative performance impacts to the mission due to the CI’s hearing loss.

The panel then directed attention to its rating recommendation based on the above evidence. The aforementioned audiology examinations support a 0% rating IAW VASRD §4.87, and any deduction for hearing loss at entry would be 0%.  After due deliberation, the panel agreed the preponderance of evidence with regard to the functional impairment of the hearing loss favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 6100 and meets the VASRD §4.87 criteria for a 0% rating.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended hearing loss, the panel agrees it was unfitting and recommends a disability rating of 0%, coded 6100 IAW VASRD §4.87.  There are no other conditions within the panel’s scope of review for consideration.  

As the proposed new combined disability rating results in no change to the combined disability rating assigned by the Service, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.

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