Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1201707	SEPARATION DATE:  20011027
BOARD DATE:  201300426

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, SPC/E-4, (92G/Cook), medically separated for fibromyalgia (FM) incorporating low back pain (LBP) and depressive disorder.  The CI had a history of back pain, depression and headaches and was ultimately diagnosed with FM in 1998.  She was also diagnosed with obstructive sleep apnea (OSA) in August 1998.  Her condition progressively worsened over time and despite efforts to optimize her treatment she continued to have problems and was not able to improve adequately to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent P3U3L3 profile and referred for a Medical Evaluation Board (MEB).  OSA, identified in the rating chart below, was also identified and forwarded by the MEB.  The Physical Evaluation Board (PEB) adjudicated the FM (which considered the LBP and depression to be an integral part of FM and not independently unfitting) as unfitting, rated 20%, with application of the Department of Defense Instruction (DoDI) 1332.39.  The remaining condition, OSA, was determined to be not unfitting and therefore not rated.  The CI appealed to the Formal PEB (FPEB) which affirmed the PEB findings; the CI was then medically separated with a 20% disability rating.  An Administrative Correction was done by the USAPDA to modify the disability description only.

CI CONTENTION:  The CI elaborated no specific contention in her application, just simply listing Migraines, major depressive disorder and sleep apnea on original PEB.

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 conditions major depressive disorder (MDD) and sleep apnea as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the rating for the unfitting FM condition.  The other requested condition, migraines, is not within the Board’s purview.  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 PDA Admin Corr – Dated 20010914 | VA (1 Mos. Pre-Separation) – All Effective Date 20011028
Condition | Code | Rating | Condition | Code | Rating | Exam
Fibromyalgia( including low back pain and depressive disorder) | 5025 | 20%* | Fibromyalgia w/musculoskeletal pain, headaches and depression | 5025 | 40% | 20010918
Obstructive Sleep Apnea | Not Unfitting | Sleep Apnea | 6847 | 50% | 20010918
↓No Additional MEB/PEB Entries↓ | Tinnitus | 6260 | 10% | 20010926
| Hypertension | 7101 | 10% | 20010918
| 0% X 4 / Not Service-Connected x 4 | 20010918
Rating:  20% | Combined Rating:  80%
*PEB took deduction for non-compliance

ANALYSIS SUMMARY:  

Fibromyalgia Condition.  The CI had symptoms of FM since 1998 and was diagnosed by a rheumatologist in February 2000.  On physical examination, range-of-motion (ROM) in all joints were normal, no evidence of synovitis, 18/18 tender points noted on musculoskeletal exam, with noted decrease sensitivity to light touch, sharp and vibratory sensation of left upper and lower extremities and decrease sensation to cold in right upper and lower extremities.  Reflexes were normal and no motor weakness noted.  The CI had a complete negative workup ruling out autoimmune diseases and a normal full body bone scan (not among records).  She was offered physical therapy as part of her treatment plan but refused.  There are a few entries that indicated FM was not controlled.  Her symptoms progressively worsened and included left sided weakness, severe pain and stiffness involving both shoulders, knees, elbows, wrists and ankles.  The CI also reported poor sleep, fatigue, purple discoloration of her fingers in cold weather, difficulties with memory, stress, and headaches.  She underwent a sleep study that showed moderate (possibly mild) sleep apnea and was prescribed nasal continuous positive airway pressure (CPAP).  The CI by report did not use the CPAP (discomfort).  With non-use of CPAP the CI reported daily fatigue; there was no evidence of significant impact on her job performance.  The CI was evaluated by psychiatry and was diagnosed with major depression and prescribed medication.  The 6 April 2001 commander’s statement stated, “Her performance has been hindered by her current medical condition.  Her MOS involves much strenuous and physical labor, especially when deployed to the field.  SPC Tucker’s profile prohibits her from lifting more than 40 pounds.”  On a MEB consult, obtained 9 April 2001, approximately 6 months prior to separation, the CI reported significant limitations in her ability to groom, bathe, clean and prepare meals secondary to her symptoms.  On physical examination 18/18 tender points were noted.  The examiner opined, “At the current time despite escalation and optimization of medical therapy the patient continues to have symptoms related to her fibromyalgia and these symptoms significantly impact upon her ability to perform her activities of daily living and her ability to adequately perform her duties at work.”  A psychiatric addendum dated 21 May 2001, approximately 5 months prior to separation, recorded that the CI’s symptoms of depression and stress resulted in diminished work performance.  A Global Assessment of Functioning (GAF) score of 60 (moderate difficulty with social or occupational functioning with few occasional conflicts with peers or co-workers) was assigned.  At the VA Compensation and Pension (C&P) exam, 18 September 2001, approximately a month prior to separation, the CI reported a history of joint pain, fatigue, neck pain, back pain, and widespread muscle pain which interfered with her ability to perform activities of daily living.  On physical examination the CI was noted to walk slowly.  Musculoskeletal findings included normal strength bilaterally, and tenderness to palpation in the entire body and all joints, neck and back.  There was normal ROM in all joints with pain.  Neurological exam was normal.  

The Board noted the PEB to combine the depression and LBP conditions and rated, as a single unfitting condition, FM, 40% under 5025, which was reduced to 20% with application of 1332.29 (6.1.3), for treatment non-compliance.  The VA used the service treatment records and the VA exam to rate the FM condition and assigned an evaluation of 40% coded 5025 citing symptoms were constantly present and that constant multidisciplinary treatment was required.  The Board unanimously agreed that the preponderance of evidence in the record supports the FM condition to be unfitting.  A rating of 40% requires widespread musculoskeletal pain and tender points with or without associated symptoms that are constant or nearly so and refractory to treatment.  A consult to NARSUM indicated the condition to be refractory to therapy: “At the current time despite escalation and optimization of medical therapy the patient continues to have symptoms related to her fibromyalgia and these symptoms significantly impact upon her ability to perform her activities of daily living and her ability to adequately perform her duties at work.” The PEB also noted “The soldier’s recommended disability percentage would have been 40%.”  The Board agreed the rating of 40% was supported by the evidence in the treatment record.  The Board noted the reduction of the 40% rating with application of DoD 1332.29 (6.1.3), for treatment non-compliance.  This instruction was in effect at the time of separation.  The Board is mandated to rate conditions under DoDI regulations in effect at the time of separation if not conflicting with the VASRD.  The Board, after discussion agreed the record in evidence reasonably supported application of DoDI 1332.29 and resultant rating reduction.  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 of 20% for the FM condition.  The Board unanimously agreed the depression, and back pain conditions were integral, comorbid components of the FM condition and could not be rated as separate unfitting conditions IAW VASRD §4.14.(avoidance of pyramiding).

Contended PEB Conditions:  The Board’s main charge is to assess the fairness of the PEB’s determination that OSA was 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 Board noted the OSA to be mild and the CI to not use the nasal CPAP devise of her own volition.  There was no performance based evidence from the record that this condition without treatment significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board unanimously concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the OSA condition; thus, no disability rating is 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.  In the matter of the FM condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the OSA condition, the Board unanimously recommends no change in the PEB fitness adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: 

UNFITTING CONDITION | VASRD CODE | RATING
Fibromyalgia | 5025 | 20%
Rating | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121015, 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 AR20130010353 (PD201201707)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD12-01707