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AF | PDBR | CY2013 | PD-2013-02124
Original file (PD-2013-02124.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX         CASE: PD-2013-02124
BRANCH OF SERVICE: Army         BOARD DATE: 20140509
SEPARATION DATE: 20050331


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (25Q/Multichannel Transmission Systems Operator) medically separated for bilateral sensori-neural hearing loss. He was issued a permanent H3 profile and referred for a Medical Evaluation Board (MEB). The hearing loss condition, characterized as “mild sensori-neural loss above 500Hz in the left ear” and “right ear presents a mild to severe sensori-neural hearing loss,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “bilateral sensori-neural hearing loss across all frequencies requiring wearing of hearing aids” as unfitting, rated 0%, with application of the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: The CI writes: “Within 5 months of my discharge, VA granted 30% for hearing loss, GERD & tinnitus SC. Within 2 years, my rating increased to 50% SC”.


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting hearing loss is addressed below. The contended gastroesophageal reflux disease and tinnitus are not within the DoDI 6040.44 defined purview of the Board. 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 Board for Correction of Military Records.


RATING COMPARISON :

Service IPEB – Dated 20050217
 VA* - (5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Sensori-Neural Hearing Loss 6100 0% Bilateral Hearing Loss 6100 0% 20050917
Other x 0 (Not in Scope)
 Other x 2 20051031
Combined: 0%
 Combined: 20%
* Derived from VA Rating Decision (VA RD ) dated 200 51130 (most proximate to date of separation ( DOS ) )


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations. DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.
Bilateral Sensori-Neural Hearing Loss. The CI had two prior periods of active duty when he re-enlisted in 2003. On the 16 November 2003 examination, right-sided hearing loss and the use of a hearing aid was recorded. It was also noted in the records that pressure equalization tubes had been placed in his ears when he was a child. Following reenlistment, he reported increased hearing loss on the right after losing an earplug at the shooting range and on the left while deployed. He was evaluated by otolaryngology on 11 May 2004 and found to have bilateral sensori-neural hearing loss. Continued use of bilateral hearing aids was recommended and provided. However, he was unable to meet the requirements of his job while wearing the hearing aids and referred for MEB. His commander recommended cross-training into another Military Occupational Specialty. Tinnitus was noted as present, but not recorded as interfering with his duty performance. The narrative summary notes hearing loss corresponding to an H-3 profile, but did not cite an average dB (decibel) loss or speech comprehension. This was recorded by the PEB as charted below. No structural abnormalities in either ear were documented. At the MEB examination, the CI reported the use of bilateral hearing aids. The MEB physical examiner documented hearing loss, right greater than left.

At the VA Compensation and Pension examination, performed 5 months after separation, the CI reported difficulty with conversations when background noise was present and tinnitus. The hearing data is recorded below.

HEARING
 EXAM MEB ~ 4 Mo. Pre Sep , pg. 18 VA C&P ~ 5 Mo. After Sep , pg. 307
LEFT EAR
 Average Hearing Loss 30 dB 30 dB
Speech Discrimination 96 % 90 %
Table VI / VIa I / I II / I
RIGHT EAR
 Average Hearing Loss 45 dB 51 dB
Speech Discrimination 96 % 90 %
Table VI / VIa I / I II / III
§4.85 RATING
Table VII 0 % 0 %
invalid font number 31502 (Average hearing loss is the sum of pure tone thresholds at 1000, 2000, 3000, and 4000 Hz divided by four)

The Board directs attention to its rating recommendation based on the above evidence. While the VA examination showed poorer discrimination bilaterally and poorer hearing in the right ear, both examinations rated at 0% using the VA Table VI for hearing loss. The PEB and VA both rated the hearing loss at 0% using the code 6100, hearing loss. The Board noted the presence of tinnitus, but this was not documented to interfere with job performance. Accordingly, the record does not support the addition of tinnitus as an additionally unfitting condition. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral hearing loss condition.


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 bilateral hearing loss condition and IAW VASRD §4.85, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131101, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                                   
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXX, AR20150002602 (PD201302124)


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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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