RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:
  BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100388                                    SEPARATION  DATE:
 20070427
BOARD DATE:  20120210


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual (CI) was an active duty  SPC/E4  (11B,
Infantryman) medically  separated  for  chronic  mastoiditis,  vertigo,  and
hearing  loss.   The  CI  underwent  surgery  for  removal  of  a  left  ear
cholesteatoma in November 2003.  He subsequently required  three  additional
surgeries due to cholesteatoma recurrence and the  associated  complications
of chronic mastoiditis, vertigo  and  hearing  loss.   He  did  not  respond
adequately to treatment and  was  unable  to  perform  within  his  Military
Occupational Specialty (MOS).  He was issued a permanent P3/H3  profile  and
underwent  a  Medical  Evaluation  Board  (MEB).   Chronic  mastoiditis  and
vertigo were forwarded to the Physical Evaluation Board (PEB)  as  medically
unacceptable  IAW  AR  40-501.   Hearing  loss  was  forwarded  on  the  MEB
submission as medically acceptable.  The  Informal  PEB  (IPEB)  adjudicated
the chronic left  mastoiditis,  vertigo  (following  erosion  of  horizontal
canal), and hearing loss conditions as unfitting,  rated  10%,  10%  and  0%
respectively, with application of the Veterans’ Administration Schedule  for
Rating Disabilities (VASRD).  The CI made  no  appeals,  and  was  medically
separated with a 20% combined disability rating.


CI CONTENTION:  The CI states:  “IT STATED ON MY PREVIOUS  ARMY  RATING  FOR
CHRONIC LEFT MASTOIDITIS-10%, VERTIGO-10%,  AND  HEARING  LOSS-0%.   I  HAVE
VERTIGO ATTACKS MORE THAN ONCE A MONTH,  SO  I  WAS  PLACED  ON  MEDICATION.
HEARING LOSS-I WAS ISSUED A HEARING AID FOR LEFT EAR DUE TO  SEVERE  HEARING
LOSS. RIGHT EAR HAS MILD HEARING  LOSS.   CHRONIC  LEFT  MASTOIDITIS-  STILL
HAVE TO SEE ENT EVERY THREE MONTHS TO EVALUATE CHOLESTEATOMA.  DUE  TO  PART
OF IT IS STILL PRESENT ON MY FACIAL NERVE.  ACCORDING TO  THE  PEB  SITE  ON
RATING CONDITIONS I FOUND THE FOLLOWING:  HEARING  IMPAIRMENT  WITH  VERTIGO
LESS THAN ONCE A MONTH, WITH OR WITHOUT TINNITUS WARRANTS A 30%  RATING.   I
FEEL THAT I SHOULD HAVE FALLEN INTO THIS CATEGORY. ALL OF THESE  ISSUES  ARE
TIED TOGETHER FROM AN ONGOING CONDITION THAT STILL AFFECTS MY EVERYDAY  LIFE
TODAY.  I BELIEVE THAT I WAS  RUSHED  THROUGH  THE  PROCESS  WITHOUT  PROPER
EVALUATION OF MY CONDITIONS.  I  AM  CURRENTLY  EVALUATED  THROUGH  VA  WITH
SECONDARY CONDITIONS THAT WERE TIED TO THIS ORIGINAL  CONDITION  TO  INCLUDE
SLEEP DISORDER, ANXIETY  DISORDER,  INCREASED  IRRITABILITY,  TINNITUS,  AND
MIGRANES.  I AM CURRENTLY RATED AT 70% THROUGH VA.”  He  additionally  lists
all of his VA conditions and ratings as  per  the  rating  chart  below.   A
contention for  their  inclusion  in  the  separation  rating  is  therefore
implied.


RATING COMPARISON:

|Service IPEB – Dated 20070302 |VA (1 Wk. and 1 Mo After Separation) – All|
|                              |Effective Date 20070502                   |
|Condition                     |Code                             |Rating  |
|Combined:  20%                |Combined:  60%*                           |


*Effective 20070428 (later 20070502 effective date was for tinnitus only)


ANALYSIS SUMMARY:  The Board acknowledges the  sentiment  expressed  in  the
CI’s  application  regarding  the  significant  impairment  with  which  his
service-incurred condition continues to burden him.  It is a fact,  however,
that the Disability Evaluation System (DES) has neither  the  role  nor  the
authority to compensate service members for anticipated future  severity  or
potential complications  of  conditions  resulting  in  medical  separation.
This role and  authority  is  granted  by  Congress  to  the  Department  of
Veterans’ Affairs  (DVA).   The  Board  utilizes  VA  evidence  proximal  to
separation in arriving at its recommendations and DoDI 6040.44 defines a 12-
month interval for special consideration to post-separation  evidence.   The
Board’s  authority  as  defined  in  DoDI  6044.40,  however,   resides   in
evaluating the fairness of DES fitness determinations and  rating  decisions
for  disability  at  the  time  of  separation.   Post-separation   evidence
therefore is probative only to the extent that it  reasonably  reflects  the
disability and fitness implications at the time of  separation.   The  Board
also acknowledges  the  CI's  contention  suggesting  that  service  ratings
should have been conferred for other conditions documented at  the  time  of
separation and for conditions not diagnosed while in the service (but  later
determined to be service connected by the DVA).   While  the  DES  considers
all of the service member's medical conditions,  compensation  can  only  be
offered for those medical conditions  that  cut  short  a  service  member’s
career, and then only to the degree of  severity  present  at  the  time  of
final disposition.  The DVA, however, is  empowered  to  compensate  service
connected conditions and to periodically  re-evaluate  said  conditions  for
the purpose of adjusting the Veteran’s disability rating should  his  degree
of impairment vary over time.

Chronic Left Mastoiditis.  The CI underwent four surgeries for treatment  of
left middle ear and mastoid cholesteatoma  (November  2003,  February  2004,
November 2004 and December 2005).  His treatment course was  complicated  by
cholesteatoma  recurrence,  chronic  otitis  media,   chronic   mastoiditis,
hearing loss and otologic vertigo.  In November 2003,  the  CI  underwent  a
left tympanomastoidectomy canal wall up, for removal of  cholesteatoma.   He
developed some mild symptoms of  vertigo  following  this  procedure,  which
persisted throughout treatment.  The CI  underwent  a  planned  second  look
procedure, along with ossicular chain reconstruction in February  2004.   He
continued  to  experience  vertigo  symptoms  and   additionally   developed
Eustachian tube dysfunction, with chronic otitis media.   This  was  treated
with  placement  of  pressure  equalization  tubes  in  November  2004.   In
December 2005, the CI underwent a left canal  wall  down  mastoidectomy  for
chronic otitis media, recurrence of cholesteatoma and otologic vertigo.   At
time of surgery, it was found that the cholesteatoma had caused  erosion  of
the horizontal semicircular canal of  the  balance  system  in  the  mastoid
bone, resulting in the CI’s vertigo symptoms.  The horizontal canal  erosion
was closed with bone wax with some improvement in the frequency  of  vertigo
symptoms.  Subsequent to the fourth surgery, the CI required regular  visits
for microscopy and debridement of the mastoid cavity.

At the MEB exam, three months pre-separation, the CI reported “vertigo  with
any exercise whatsoever;” however, he denied experiencing vertigo in  normal
day  functions.   On  exam,  it  was  documented  that  the  left  ear   was
“consistent…with a canal wall down cholesteatoma” and that the “auricle  has
been changed significantly to allow debridement of mastoid  cavity.”   There
was no documentation of active suppuration or  aural  polyps;  although  the
examiner noted that the CI would require debridement  of  the  left  mastoid
cavity for the rest of his life.  The exam additionally  documented  “severe
hearing loss” in the left ear, noting that  the  CI’s  “ability  to  hear…is
significantly damaged in his left ear.”  There was no  comment  on  gait  or
tinnitus.  The MEB examiner assessed chronic mastoiditis requiring  frequent
and prolonged medical care,  exercise-induced  vertigo  and  severe  hearing
loss.

The VA Ear, Nose and Throat Compensation and Pension (C&P) exam, two  months
after separation, documented a normal left ear auricle and  external  canal,
with marked retraction of the left tympanic membrane  and  a  large  mastoid
cavity on the left.  The examiner stated that there was no infection and  no
evidence  of  mastoid  discharge  or  recurrent   cholesteatoma.    The   VA
examination form posed specific questions regarding  symptoms  of  Meniere’s
syndrome to include frequency of vertigo  attacks;  presence  of  cereballar
gait; hearing loss; and tinnitus.  The examiner replied that  “this  patient
does not have Meniere’s disease,” and provided no response to the  questions
regarding vertigo attack frequency, gait and  tinnitus.   The  examiner  did
separately note the  CI’s  hearing  loss  condition.   With  regard  to  the
vertigo, the examiner concluded, “the vestibular  disturbance  is  secondary
to the cholesteatoma and erosion of the semicircular canal.”

A computed tomography scan of the temporal bones in May 2005 demonstrated  a
cholesteatoma; poorly developed, sclerotic  left  mastoid  air  cells;  left
otitis media; deformed left ossicular chain; and a thickened  and  retracted
left tympanic membrane.  The MEB examiner concluded that  the  CI’s  chronic
mastoiditis  condition  did  not  meet  retention  standards  due   to   the
requirement for frequent and  prolonged  medical  care  or  hospitalization.
The commander’s statement did not implicate chronic mastoiditis.

The PEB and the VA utilized the same  coding  for  the  chronic  mastoiditis
condition, but arrived at different  ratings.   There  was  no  evidence  of
active suppuration or aural polyps at either exam to meet the  criteria  for
the 10% rating.  The PEB  likely  considered  the  CI’s  need  for  frequent
mastoid debridement and its impact on  his  overall  disability  picture  in
arriving at the 10% rating, which is the maximum  allowed  under  the  VASRD
for this condition.  IAW DoDI 6040.44,  the  Board  cannot  assign  a  lower
rating than that awarded by the PEB.  All evidence considered, there is  not
reasonable doubt in the CI’s  favor  supporting  a  change  from  the  PEB’s
rating decision for the chronic left mastoiditis condition.

Vertigo.  As discussed above, the CI developed aural vertigo as a result  of
erosion of the horizontal canal, caused by  the  cholesteatoma.   After  the
fourth surgical procedure on the left ear, the vertigo had improved and  was
only present with exertion.  The MEB examiner documented that there were  no
vertigo symptoms with regular day to  day  activities.   The  exam  did  not
comment  on  gait  or  document  episodes  of  staggering.   The  C&P   exam
documented vertigo, but did not specify frequency or document gait.

The  MEB  examiner  concluded  that  the  CI’s  exercise   induced   vertigo
interfered with the satisfactory performance of duty.  The CI’s profile  for
vertigo specified no  strenuous  activities,  no  flying  aircrafts  and  no
operating heavy machinery which  may  require  rapid  head  movements.   The
commander’s statement commented that the CI’s exertional dizziness  rendered
him unable to do physical training or conduct  vigorous  training  with  the
unit.  The commander further noted that the CI’s profile would preclude  him
from serving effectively as a member of  a  Rifle  Squad  or  as  a  Bradley
Gunner.

The PEB and the VA chose the same coding and  arrived  at  the  same  rating
recommendation for the vertigo condition.  As  the  vertigo  was  associated
with documented hearing  loss  (see  discussion  below),  alternate  coding,
analogous  to  6205,  Meniere’s  syndrome,  was  also  considered   and   is
predominant.  Per the  VASRD,  “Evaluate  Meniere’s  syndrome  either  under
these  criteria  or  by  separately  evaluating  vertigo  (as  a  peripheral
vestibular disorder), hearing impairment,  and  tinnitus,  whichever  method
results in a higher overall evaluation.”

The CI’s episodes of exertional  vertigo  meet  the  criteria  for  the  10%
rating under (6204) coding for peripheral vestibular disorders.   There  was
no documentation of staggering gait to justify the higher 30%  rating  under
this coding.  Alternatively, if the condition is coded analogously to  6205,
Meniere’s syndrome, the CI’s vertigo and hearing loss meet the criteria  for
the 30% rating’s “Hearing impairment with vertigo less than  once  a  month,
with or without tinnitus.”  There was no documentation  of  cerebellar  gait
to justify a higher rating of 60% under analogous 6205 coding  as  excerpted
below.

  6205 Meniere’s syndrome (endolymphatic hydrops):
  Hearing impairment with attacks of vertigo and cerebellar gait
  occurring   more   than   once   weekly,   with   or   without   tinnitus
  ...............................100
  Hearing impairment with attacks of vertigo and cerebellar gait
  occurring from one to four  times  a  month,  with  or  without  tinnitus
  ....................60
  Hearing impairment with vertigo less than once a month, with or
  without                                                          tinnitus
  ..........................................................................
  ...........................30


  Note:  Evaluate Meniere’s syndrome either  under  these  criteria  or  by
  separately evaluating vertigo  (as  a  peripheral  vestibular  disorder),
  hearing impairment, and tinnitus, whichever method results  in  a  higher
  overall  evaluation.  But  do  not  combine  an  evaluation  for  hearing
  impairment, tinnitus, or vertigo with an evaluation under diagnostic code
  6205.

Hearing Loss.  The audiology addendum to the narrative summary  and  the  VA
C&P exam both documented mild conductive hearing loss in the right  ear  and
moderate  to  moderately  severe  mixed  hearing  loss  in  the  left   ear.
Functional speech discrimination scores were  excellent  at  loud  intensity
levels.   The  VA  exam  additionally  documented  occasional  episodes   of
tinnitus in the right ear.  There was no documentation of  tinnitus  in  the
service record during the MEB period.   The  MEB  examiner  commented  that,
despite the significant hearing loss in the left ear, the CI “has done  well
with amplification and is not limited by that.”  The  commander’s  statement
did not implicate  hearing  loss.   The  MEB  examiner  concluded  that  the
hearing loss would meet retention  criteria;  however  the  PEB  adjudicated
hearing loss as unfitting.  The  PEB’s  adjudication  of  the  hearing  loss
condition as unfitting is considered administratively final.

The military and the VA audiometric assessments  both  demonstrated  average
puretone thresholds of less than 50 dB, with  speech  discrimination  scores
of greater than 90%, thus  establishing  the  rating  standard  under  VASRD
§4.86, Tables VI and VII.  This resulted in a  non-compensable  rating  from
the PEB and the VA under coding for hearing loss, 6100.

The Board deliberated its rating determination based on the  evidence  above
with the following definition and  distinction  between  Meniere’s  syndrome
versus Meniere’s  disease  –  Meniere’s  disease  is  the  constellation  of
symptoms of vertigo and hearing loss, with or without tinnitus,  of  unknown
etiology.  Meniere’s syndrome, is the same constellation of  symptoms,  with
a  known  etiology,  such  as  middle  ear  pathology/disease.   The   VASRD
specifies  and  rates  for  “Meniere’s  syndrome.”   With  evidence  of   an
associated unfitting vertigo condition and  likely  endolymphatic  pathology
due to the underlying ear condition with multiple  ear  surgeries  involving
the endolymph containing structures and wall  repair,  there  is  sufficient
cause  to   consider   analogous   coding   to   6205   Meniere’s   syndrome
(endolymphatic hydrops), as discussed above.  Per the VASRD, this coding  is
predominant because it results in a higher  rating  than  separately  coding
and rating the individual conditions.  After due  deliberation,  considering
all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the  Board
recommends that the vertigo and hearing loss conditions  be  combined  under
code 6099-6205 and rated at 30%.

Other Contended Conditions.  The CI’s application asserts  that  compensable
ratings  should  be  considered  for  sleep  disorder,  migraines,   anxiety
disorder, increased irritability, and tinnitus.   At  the  MEB  history  and
physical, the CI complained of problems sleeping  since  his  surgeries  and
also noted a  history  of  headaches  associated  with  left  ear  pain  and
drainage.  There is no evidence in the service  treatment  record  that  the
sleeping disorder condition or the  headache  condition  were  significantly
occupationally or clinically active during the MEB period.   Both  of  these
conditions were reviewed by the action officer and considered by the  Board.
 There was no evidence  for  concluding  that  either  of  these  conditions
interfered with duty performance  to  a  degree  that  could  be  argued  as
unfitting.  The Board determined therefore that neither the  sleep  disorder
condition nor  the  headache  disorder  condition  was  subject  to  service
disability  rating.   The  conditions   of   anxiety   disorder,   increased
irritability and tinnitus did not appear in the DES file.   The  Board  does
not have the authority under  DoDI  6040.44  to  render  fitness  or  rating
recommendations for any conditions not considered by the DES.

Remaining Conditions.  Two other non-acute conditions or medical  complaints
documented in the MEB history and physical  were  constant  diarrhea  and  a
history of mini-seizures.  Neither of  these  conditions  was  significantly
clinically or occupationally active during the MEB period,  neither  carried
an  attached  profile  and  neither  was  implicated  in   the   commander’s
statement.  These  conditions  were  reviewed  by  the  action  officer  and
considered by the Board.  It was determined that neither could be argued  as
unfitting and subject to separation rating.   The  Board  therefore  has  no
reasonable basis for recommending any additional  unfitting  conditions  for
separation rating.


BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military  Department
regulations or guidelines relied upon by the PEB will not be  considered  by
the Board to the extent they were inconsistent with the VASRD in  effect  at
the time of the adjudication.  The Board did not surmise from the record  or
PEB ruling in this  case  that  any  prerogatives  outside  the  VASRD  were
exercised.  In the matter of the chronic  left  mastoiditis  condition,  the
Board  unanimously  recommends  no  change  in  the  PEB   adjudication   at
separation.  In the matter of the vertigo and the hearing  loss  conditions,
the Board  unanimously  recommends  that  the  conditions  be  combined  for
separation rating, coded 6099-6205 and rated 30% IAW VASRD  §4.87.   In  the
matter of the sleeping disorder and headache disorder conditions, the  Board
unanimously  agrees  that  it  cannot  recommend  a  finding  of  unfit  for
additional rating at separation.  In the matter  of  the  constant  diarrhea
and history of mini-seizures conditions  or  any  other  medical  conditions
eligible for Board consideration,  the  Board  unanimously  agrees  that  it
cannot recommend any findings of unfit for additional rating at  separation.



RECOMMENDATION:  The Board recommends that the CI’s prior  determination  be
modified  as  follows  and  that  the  discharge  with  severance   pay   be
recharacterized to reflect permanent disability retirement, effective as  of
the date of his prior medical separation:

|UNFITTING CONDITION                               |VASRD CODE  |RATING  |
|Chronic Left Mastoiditis                          |6200        |10%     |
|Vertigo and Hearing Loss                          |6099-6205   |30%     |
|COMBINED    |40%     |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110426, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.


                                        President
                                                                    Physical
Disability Board of Review
SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency


SUBJECT:  Department of Defense Physical Disability Board of Review
Recommendation


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 recharacterize 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:



Encl
                                       Deputy Assistant Secretary
                                           (Army Review Boards)