Author: JOHN J. D'ORAZIO
Last saved by: WEATHERS, JANICE R SrA USAF AFRBA AFRBA/AFBCMR
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxx	CASE:  PD1300583
BRANCH OF SERVICE:  Army	BOARD DATE:  20131016
SEPARATION DATE:  20040915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPL/E-4 (92Y/Supply Specialist) medically separated in 2004 for fibromyalgia diagnosed by rheumatology.  The complaints of muscle pains, chronic fatigue and stomach pains started in 2001-2002.  He was referred to rheumatology and diagnosed with fibromyalgia in March 2004.  The fibromyalgia condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  His profile allowed for alternate aerobic events to satisfy physical fitness standards.   He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Fibromyalgia was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated fibromyalgia as unfitting rated 10% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB) who upon review increased the rating to 20%.  

CI CONTENTION:  “The rating for the condition(s) which rendered the member unfit should be changed because the condition of fibromyalgia has worsen [sic] with consist chronic pains, fatigue, anxiety, severe headaches, stiffness, tender points and severe sleeping problems.  Also diagnosed with plantar fasciitis that requires medition and treatment from a foot specialist.  Both conditions require continuous medications.”

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 fibromyalgia condition is addressed below.  The requested plantar fasciitis condition was not identified by the MEB/PEB and thus is 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 FPEB – Dated 20040622 | VA - (2 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Fibromyalgia | 5025 | 20% | Fibromyalgia w/Fatigue and Chronic Pain | 5025 | 40% | 20041103
No Additional MEB/PEB Entries | Other x 2 and 4 x NSC |
Rating:  20% | Combined Rating:  50%
Derived from VA Rating Decision (VARD) dated 20050222 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all 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 DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Fibromyalgia Condition.  The CI sought care for medical complaints in 2001-2002.  Individual laboratory and diagnostics studies were inconclusive for a specific cause.  on 31 March 2004, a rheumatologist diagnosed fibromyalgia with chronic fatigue syndrome and an MEB was initiated.  His final profile on 7 April 2004, 5 months prior to separation, permitted him to do an alternate Army Physical Fitness Test including sit-ups, pushups and swim or bike for an alternate cardiovascular event.  The April 2008 commander’s comments stated that “he is not able to fulfill all aspects and requirements of his duty position” while noting that his “job performance has been admirable.”  The 23 April 2004 narrative summary dictated 5 months prior to separation, noted he “still did his regular MOS with his profile limitations.”  The 7 July 2004 FPEB acknowledged the presence of 18 out of 18 trigger points for adjudicating a ruling.  At the VA Compensation and Pension (C&P) exam performed on 3 November 2004, 2 months after separation, the CI reported constant pain with 11 out of 18 trigger points along with dizziness and the need to sit down frequently and rest when performing heavy work.  A month after the C&P exam he began working for the Department of Corrections full-time.

The Board directs attention to its rating recommendation based on the above and considered whether the evidence of the service treatment records (STR) supported a higher 40% rating at separation.  The PEB and the VA rated the condition under the same code but, at different levels.  The PEB rated at 20% and the VA at 40%.  According to the VASRD, a rating of 20% requires episodic symptoms, with exacerbations often precipitated by environmental or emotional stress or by overexertion that are present more than one-third of the time.  The highest rating for this code (40%) requires symptoms of “widespread musculoskeletal pain and tender points that are constant, or nearly so, and refractory to therapy.”  While symptoms were chronic, the evidence of the STR report his irritable bowel syndrome improved to resolution with medication on 9 May 2003 as did his sleep on 11 February 2004.  The 28 April 2008 commander’s statement indicated the CI satisfactorily performed in-garrison duties and that his limitations were only for strenuous military tasks.  The CI described pain at a level of 7 out of 10 during the pain assessment of 29 January 2004 and pain at the level of 6 out of 10 at the time of the C&P exam, while taking medication.  The rheumatologist reported the CI’s pain “as chronic and mild.”  The Board also noted that at the time of the 3 November 2004 C&P examination the CI’s symptoms did not prevent him from doing a normal squat, heel toe walk and running a mile up to three times a week.  The Board noted that the CI reported that he was fully employed as a prison administrator.  In accordance with VASRD §4.1, ratings are for impairment in civil occupations.  Therefore, the Board concluded that the overall disability at separation more nearly approximated the 20% rating than the 40% rating.  The Board found no other codes for consideration.  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 fibromyalgia 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 fibromyalgia condition and IAW VASRD §4.71a, 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 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 20130521, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

xxxxxxxxxxxxxxxxxxxxxx, DAF
President
Physical Disability Board of Review

SFMR-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 xxxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20140003144 (PD201300583)

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						     xxxxxxxxxxxxxxxxxxxxxxxxxx
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD1300583