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AF | PDBR | CY2012 | PD2012 01602
Original file (PD2012 01602.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201602   SEPARATION DATE: 20081210
BOARD DATE: 20130416


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantry), medically separated for bilateral hearing loss. The bilateral hearing loss condition could not be adequately rehabilitated for the CI to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent H3 profile and referred for a Medical Evaluation Board (MEB). Joint pain knee, joint pain ankle, and joint instability shoulder region conditions, identified in the rating chart below, were also identified and forwarded by the MEB as meeting retention standards. The Informal Physical Evaluation Board (IPEB) adjudicated the bilateral hearing loss condition(s) as not unfitting and returned the CI to duty. The CI appealed the IPEB’s decision and a Reconsideration PEB (RPEB) was conducted. The RPEB found the CI unfit and rated the bilateral hearing loss at 0%. The CI made no appeals and was medically separated with a 0% disability rating.
CI CONTENTION: “I was rated only 10% for hearing loss from wounds sustained in combat. I do not agree with this rating, I’m very confused how the Army just gave me a medical discharge for Hearing but the VA found so many other problems.”


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The unfitting bilateral hearing loss condition and the contended bilateral knees joint pain, right shoulder instability, and right ankle joint pain conditions meet the criteria prescribed in DoDI 6040.44 for Board purview; and are addressed below. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records.


RATING COMPARISON :

Service Recon PEB – Dated 20081103
 VA (1 Mo. Post-Separation) – All Effective Date 20081211
Condition
 Code Rating Condition Code Rating Exam
Bilateral Hearing Loss 6100 0% Bilateral Hearing Loss 6100 0% 20090129
Tinnitus 6260 10% 20090129
Bilateral Knees Joint Pain Not Unfitting Knee Strain, Right 5260 10% 20081117
Knee Strain, Left 5260 10% 20081117
Right Shoulder Instability Not Unfitting Mild Partial Undersurface Tear of Rotator Cuff, Right Shoulder 5299-5203 10% 20081117
Right Ankle Joint Pain Not Unfitting Ankle Strain, Right 5271 10% 20081117
↓No Additional MEB/PEB Entries↓
 Shrapnel Wound Scars, Left Cheek 7800 10% 20081117
Hypothyroidism 7903 10% 20081117
0% X 2 / Not Service-Connected x 1 20081117
Combined: 0%
 Combined: 70%
Derived from VA Rating Decision (VARD) dated 20090311 (within 1 year of date of separation [DOS]).
ANALYSIS SUMMARY: The Board acknowledges the CI’s contention for service ratings for other conditions documented at the time of separation, and notes that its recommendations in that regard must comply with the same governance. While the Disability Evaluation System (DES) considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The Department of Veterans Affairs (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 the degree of impairment vary over time.

Hearing Loss (bilateral). CI suffered loss of hearing and ringing of the ears during two tours of duty in Iraq secondary to constant bombardment of explosions and mortar attacks. He was told he had bilateral hearing loss and tinnitus that required hearing aids. The MEB narrative summary (NARSUM) physical exam 11 September 2008, 3 months prior to separation, noted the focused head and neck exam was within normal limits (WNL) bilaterally. Audiogram of
30 August 2008 showed mild-to-moderate high frequency sensorineural hearing loss, bilateral with excellent speech discrimination (by Speech Recognition in Noise Test [SPRINT] method). Speech reception threshold was 20dbl in the right and 25dbl in the left. The examiner stated “He can function quite easily without the use of hearing aids” and recommended a return to duty to a different MOS that would not expose the CI to continuous noise hazard in excess of 85dbl. However, the commander later stated and the MEB Board agreed, that the CI was not able to function due to his inability to clearly hear and understand commands in the field. Treatment notes including audiology evaluations and the electronic problem list indicated “tinnitus subjective.” The VA Compensation and Pension (C&P) exam 17 November 2008, a month prior to separation noted use of hearing aids bilaterally, mild serous fluid bilateral, tympanic membranes not perforated but injected, and minor scarring of both ears and abnormal tests of hearing conduction. VA Audiology exam a month post separation documented constant tinnitus in the left ear and periodic tinnitus in the right ear.

There were two audiologic evaluations including pure tone audiograms and speech discrimination, proximate to separation, which the Board weighed in arriving at its rating recommendation:

Audiometric Threshold (Hz) →
 500 1000 2000 3000 4000 6000 Comments §4.85/6 Rating
MEB Audio ~5 Mo.Pre-Sep (20080730) 0%
Right
 30 30 30 35 35 25 Average R= 32.5, L=47.5
Speech Discrim R=100%, L=92%
Left
 35 45 50 50 45 50
VA C&P ~1 Mo. Post-Sep (20090129) Bilateral tinnitus 0%
Right
 30 25 30 25 Average R=28, L=36
Speech Discrim R=84%, L=84%
Left
 30 35 45 35

The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence. The VASRD §4.85/6 rating schedule for hearing impairment is derived from audiometric testing including average pure tone threshold across the hearing ranges, and accommodates for measured speech discrimination. The VASRD rates speech discrimination measured by the Maryland CNC which is not directly comparable with the more contemporary SPRINT speech discrimination testing performed by the Service. The charted results of the audiometric evidence using IAW Tables VI, VIa and VII in this case for hearing loss yields 0% ratings for either set of data (MEB and C&P). The Board deliberated if the CI’s 84% speech discrimination with Maryland CNC testing, history of tinnitus in-service and tinnitus related to hearing loss, and functional difficulty hearing as noted by the commander, was sufficient to warrant a 10% rating for hearing disability.

The Board considered that the CI’s hearing loss and tinnitus were inextricably linked and considered Note (1) under code 6260 (tinnitus) with support of the 10% rating under code 6100. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the bilateral hearing loss condition with additional consideration of tinnitus, and coding as 6100.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral knee joint pain, right shoulder instability, and right ankle joint pain were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The bilateral knees, right shoulder, and right ankle conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended bilateral knees, right shoulder, or right ankle conditions and so no additional disability ratings are recommended.
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. We considered 6260 and a separate rating of 10% but a rating of 6100 includes a consideration for tinnitus. In the matter of the bilateral hearing loss condition, the Board unanimously recommends a disability rating of 10%, coded 6100 IAW VASRD §4.87a. There were no other conditions within the Board’s scope of review for consideration.
RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Bilateral Hearing Loss with Tinnitus 6100 10%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120909, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130009606 (PD201201602)
1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final.

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.

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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