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AF | PDBR | CY2012 | PD 2012 01060
Original file (PD 2012 01060.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2012-01060
BRANCH OF SERVICE: NAVY  BOARD DATE: 20140917
SEPARATION DATE: 20021104


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO2/E-5 (STG3/Sonar Technician) medically separated for a fibromyalgia condition. This condition could not be adequately rehabilitated to meet the physical requirements of her Rating or satisfy physical fitness standards. She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). Chronic soft tissue rheumatism was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other condition was submitted by the MEB. The Informal PEB (IPEB) adjudicated the chronic soft tissue rheumatism condition as fit. The CI non-concurred with the IPEB findings and request a Formal PEB (FPEB), which changed the diagnosis to fibromyalgia, rated at 0%, with presumed application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI did not appeal and was medically separated.


CI CONTENTION: “The condition(s) did and do affect my daily life. It was definitely more disabling than 0%, as the VA found.”


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. No additional conditions are 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 Naval Records.


 RATING COMPARISON :

Service FPEB – Dated 20020710
 VA* (~12 Mo. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Fibromyalgia 5025 0% Fibromyalgia 5025 20% 20031028
Other x 0 (Not in Scope)
 Other x 4 (Not in Scope) 20031028
Combined: 0%
 Combined: 40%
*Derived from VA Rating Decision (VARD) dated 200 40909 (most proxima te to date of separation )


ANALYSIS SUMMARY:

Fibromyalgia Condition. The service treatment record (STR) contains multiple entries, beginning in March 1998, addressing various musculoskeletal and somatic complaints. An entry from May 2001 documents an “advice only” rheumatology referral and a follow-up rheumatology note raises a suspicion of fibromyalgia as the diagnosis. The CI was being concurrently worked-up for the possibility of a diagnosis of bilateral carpal tunnel syndrome, although that diagnosis was ultimately excluded by nerve conduction study, it was the diagnosis used for the CI’s placement of 8 months in a LIMDU status. An STR entry at the time of LIMDU status, noted that the CI stated that she was “doing better,” but an additional 30-day period of light duty was given to the CI in August 2001. A rheumatology entry documents a diagnosis of “stable fibromyalgia” and treatment with centrally acting medications (Celexa and Ambien). Other documentation noted that her condition was stable, “overall about the same,” with ongoing medication adjustments. A primary care entry from November 2001 documents “patient states that she feels much better” and noted that her fatigue had resolved. The IPEB dated 26 February 2002 found the CI fit for duty. There were a series of chiropractic examinations from July to October 2002, documenting that the CI had a positive response with her treatment and had significant improvement. The final rheumatology clinic note from September 2002 confirms a positive response to the chiropractic therapy and other non-pharmacologic modalities.

The narrative summary (NARSUM) dated 24 August 2001, provides a rheumatologic confirmation of the diagnosis of fibromyalgia and identifying 16 of 18 trigger points for the standard criteria. The NARSUM documents that the CI’s “symptoms persisted despite multiple therapeutic modalities” but did not specify the frequency nor the constancy of symptoms. The NARSUM psychiatric addendum dated 13 June 2002 (5 months prior to separation) precludes Axis I or II psychiatric diagnoses; although, elaborates a “converging set of biopsychosocial circumstances in place during the onset of fibromyalgia.” The CI characterized her pain as “a discomfort that’s always there,” with a baseline pain rating of 3/10 and “several flare-ups in the past 6 months [rating a 10 out of 10]” precipitated by “lack of sleep, stress, decreased exercise, excess activities.” The examiner specified positive responses to “restorative sleep, chiropractor, massage, medication (noting a recent switch to a new regimen due to side effects with prior medication) and yoga.” The examiner further opined that the CI would be “a very good candidate for the pain self-management group.” There were endocrine and neurology addendums in evidence, which are not probative to rating criteria for fibromyalgia.

The commander’s statement (March 2002) noted that the CI “never seems to be without discomfort,” but noted that she had “good days” although felt fatigue by the end of the day.

The FPEB dated 10 July 2002 citied “…the record and evidence presented document that the member has fibromyalgia and has been prescribed numerous medications without resolution of symptoms. The continuous manifestation of symptoms precludes the adequate performance of military duties.” It concluded that, “…there was no evidence to support the member's petition for a rating of 20% that required that the condition incapacitated her at least one-third of the time.” It further noted the ongoing medication adjustment, stating that the board “was not convinced that continuous medication was required for control.”

The VA Compensation and Pension (C&P) examination (performed 12 months after separation) documented daily occurrence of some symptoms and intermittent occurrence of others. The examiner stated that overall the symptoms “occur nearly constantly”; but were precipitated by stress, overexertion and drastic temperature changes. The VA’s C&P examination listed current medications, without noting continuance of any of the successful non-pharmacologic modalities initiated in service and stated “…she continues to require treatment to control the condition reports that she cannot work a full-time job because of the flares.”

The Board directs attention to its rating recommendation based on the above evidence. The VASRD §4.71a ratings under code 5025 (fibromyalgia) are based on the constancy and response to therapy of the associated symptoms. The 10% rating specifies symptoms that require continuous medication for control; for 20% rating specifies are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but are present more than 1/3 of the time and for higher 40% rating specification are constant, or nearly so and refractory to therapy. The FPEB rationale that the 20% criteria were not met because of the lack of incapacitation episodes and symptoms does not accurately characterize the code 5025 requirements that symptoms need only to be present. It is also noted that this requirement is not derived from DoDI 1332.38, DoDI 1332.38, or SECNAVINST 1850.4E, which would be moot to the Board’s recommendation at any rate. The FPEB rationale itself, in fact, quoted findings that arguably would satisfy the 40% requirements under code 5025 (constant symptoms which were not responding to treatment). The VA’s 20% rating decision did not specify the basis for its decision, but emphasized the VA’s C&P symptoms that were intermittent and noted the requirement for treatment to control the condition. Members agreed that continuous medication was required for control, satisfying the 10% criteria at a minimum and deliberated whether the symptoms in evidence were sufficiently constant and/or refractory to satisfy either the 20% or 40% criteria. The PEB evidence nearing the separation point at which the Board’s recommendation is directed, relates an improving course which was responsive to treatment. The FPEB rationale, which characterized the symptoms as constant and refractory was not supported by the NARSUM available to it (which did not address constancy) and preceded the favorable clinical course reflected in the evidence more temporally probative to separation. The commander’s statement and the psychiatric addendum suggested that symptoms were constant (albeit improving per the psychiatric addendum) at that point in time, but also preceded the later evidence. The PEB evidence proximate to separation and the post-separation VA’s C&P examination do not convincingly establish that symptoms were present constantly, although it is reasonably conceded that they were present more than 1/3 of the time and the evidence well establishes that they were “precipitated by environmental or emotional stress or by overexertion” consistent with the 20% description. This notwithstanding and even conceding that symptoms were constant, it must be noted that the next higher 40% rating requires that the symptoms be refractory to therapy in addition to being constant or nearly so. This requirement is contradicted by the evidence most temporally probative to separation. After due deliberation, considering all of the evidence and with deference to VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is a 20% rating for the fibromyalgia condition under code 5025.


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 by a majority vote recommends a disability rating of 20%, coded 5025, IAW VASRD §4.71a. 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 her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Fibromyalgia 5025 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120617, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                                   
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review


 MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
                  DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
        
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) PDBR ltr dtd 25 Mar 15 ICO XXXXXXXXXXXXXXX
         (c) PDBR ltr dtd 26 Feb 15 ICO XXXXXXXXXXXXXXX
         (d) PDBR ltr dtd 25 Mar 15 ICO XXXXXXXXXXXXXXX
         (e) PDBR ltr dtd 24 Mar 15 ICO XXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a. XXXXXXXXXXXXXXX, former USMC : Entitlement to disability severance pay with a 10 percent (increased from 0 percent) disability rating effective date of discharge.

b. XXXXXXXXXXXXXXX, former USN : Entitlement to disability severance pay with a 20 percent (increased from 0 percent) disability rating effective date of discharge.

c. XXXXXXXXXXXXXXX, former USN : Entitlement to disability severance pay with a 20 percent (increased from 10 percent) disability rating effective date of discharge.

d. XXXXXXXXXXXXXXX, former USMC : Entitlement to disability severance pay with a 10 percent (increased from 0 percent) disability rating effective date of discharge.

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.



          XXXXXXXXXXXXXXX
         Assistant General Counsel
         (Manpower & Reserve Affairs)

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