Search Decisions

Decision Text

AF | PDBR | CY2012 | PD2012 01443
Original file (PD2012 01443.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx         CASE: PD1201443
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20130529
SEPARATION DATE: 20040115


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (3051/Supply Warehouseman) medically separated for fibromyalgia (FM) syndrome. The CI was evaluated for generalized pain and low back pain (LBP) in April 2002 and diagnosed with FM. Records showed a long history of LBP prior to this exam. Despite treatment, his symptoms progressed. The FM condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). FM syndrome and small annular tear at L5-S1 were forwarded to the Informal Physical Evaluation Board (IPEB) IAW SECNAVINST 1850.4E. A third condition, “major depressive disorder, single episode, mild, resolved” was added subsequent to the MEB. The IPEB adjudicated “fibromyalgia syndrome” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions (small annular tear and major depressive disorder [MDD] ) were determined to be C ategory III conditions (not separately unfitting and do not contribute to the unfitting condition ) . The CI appealed to the Formal PEB (FPEB). The FPEB determined the rating for FM met the criteria for a 20% rating, the small annular tear to be a Category II condition (contributing to the unfitting condition), and the MDD to be a Category III condition. The CI then submitted a Petition for Relief (PFR) which was not accepted for review as the CI’s PFR did not provide justification for a basis for relief. The CI was then separated.


CI CONTENTION: “My final disability rating from the Marine Corps was 20% and the VA rated me 90% Service-connected and was also assigned a total disability rating for compensation based on unemployability.”


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 FM condition is addressed below. The requested MDD and annular tear (herniated disk) were determined to be not unfitting by the PEB. Since the PEB adjudicated lumbar disk and MDD conditions were integral to the VA combined rating cited in the application, members agreed that those conditions were appropriately included in the Board's scope of review; and, are accordingly 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 20030408
 VA - (1 day Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Fibromyalgia
 5025 20% Fibromyalgia 5025 40% 20040114
Small Annular Tear L5-S1
 CAT II HNP L5-S1 5243 10% 20040329
Major Depressive Disorder
 CAT III Major Depressive Disorder 9434 50% 20040123
No Additional MEB/PEB Entries
 Other x 9 20040114
Combined: 20%
 Combined: 90%
Derived from VA Rating Decision (VA RD ) dated 200 40521


ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the 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 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 Veteran’s 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. The CI was referred by an orthopedist to rheumatology in April 2002, 21 months prior to separation, to rule out FM syndrome. The orthopedist noted a vague, nonspecific examination with symptoms in excess of physical findings. The CI reported that he had injured his lower back 4 years previously, after falling about 25 feet onto his canteen. The contemporaneous record documented that the CI had no loss of consciousness (LOC) and was treated with narcotics for pain relief; he was observed overnight due to the cognitive effects of the medications. The Board observed that the CI did not endorse LOC from this accident on a subsequent periodic history, but noted to his attorney during the DES process that he “came-to” in the base clinic. Also, in the 23 January 2004 VA mental health Compensation and Pension (C&P), the CI reported that he had LOC for 6 hours after the fall and woke up in the hospital. The CI reported, at the initial rheumatology examination, that his pain had progressed from once a month to daily. He was also experiencing generalized pain which he rated 9-10 out of 10 and reported that made him incapable of doing his daily activities. The CI was having difficulty sleeping; averaging two to three hours of sleep per night and had daytime somnolence. The CI was diagnosed with FM by the rheumatologist. He was treated with exercise therapy and medications including a non-steroidal anti-inflammatory drug, narcotic analgesics, and an antidepressant. At the MEB on 17 October 2002, 15 months prior to separation, the CI continued to require narcotic analgesics and reported that he was feeling much worse the previous 2 to 3 months. The MEB examination, performed by a rheumatologist on 3 September 2002, reported that the CI’s pain level was 5-6 out of 10. The examiner noted that the CI reported improvement in pain with Oxycontin (narcotic analgesic) and Valium “to help him sleep and decrease the pain.” That examination revealed tenderness in 16 out of 18 trigger points and paraspinal tenderness. A magnetic resonance imaging (MRI) on 9 October 2002 showed a small annular tear without cord or nerve root compression. Laboratory findings were unremarkable. It was the opinion of the examiner that the CI was “unable to perform his duties and could no longer run, type, do physical training or testing, carry a pack, fire a weapon, climb ladders, perform basic shipboard duties, be deployable from the usual duties for which he was trained.” A psychiatric addendum on 19 November 2002 noted that the CI endorsed depressive symptoms and demonstrated “some apparent exaggeration of his pain perception.” He reported an improvement in his symptoms since starting the Effexor. He continued to have sleep disregulation “staying up all night sometimes engaging in on-line chatting particularly with fibromyalgia on-line groups but then sleeping more during the day.” He was diagnosed with a single episode of MDD, resolved. The CI was followed regularly by rheumatology during the DES process. In January 2003, the CI reported that he had “whole body” pain and was “unable to do anything.” He requested an increase in his pain medications and narcotic dependence was diagnosed. The treating rheumatologist restricted narcotic refills to him alone. In March 2003, the CI reported to the same rheumatologist that he was in severe pain and “I have one of the worst cases of FMS.” The CI endorsed waking from sleep and having spasms. He was slow moving and soft spoken. He was noted to have a “dramatic presentation emphasizing his pain.” Some inconsistencies in his history were noted. The commander’s statement dated 12 March 2003 reported that the CI was “at home” awaiting the final PEB decision and “not capable of accomplishing any mission appropriate for his rank and level of training.” The commander noted that the severity of the CI’s fibromyalgia “precludes him from executing simple daily actions…” The CI had an emergency room (ER) visit on 23 May 2003 due to complaints of sharp back pain that radiated down his left leg. He was treated with an IV (intravenous) narcotic analgesic and released to follow-up with rheumatology. The rheumatology note, a week later, indicated that the CI had missed his last two appointments because he had gotten refills of his medications in the ER. The CI reported that he had been seen in the ER due to “reflux.” The Board noted that this statement is not consistent with the ER note. A follow up note from 25 September 2003 noted that the CI had been “reading a bunch on fibromyalgia” and was convinced that his vitamin B12 level was low. He requested that CFS (chronic fatigue syndrome) be added to his MEB diagnoses. The CI described his back pain as “astronomically more” than the prior year. He expressed the desire to get a “medical extension” due to the lack of improvement. The CI was tender along the entire vertebral column. The motor exam was 5/5 with “poor effort” except in the right leg, which was limited secondary to pain. Deep tendon reflexes and sensory examinations were normal. A C&P examination performed on 24 April 2004, 3 months post separation, noted that the CI complained of “easy fatigability, headaches, sleep disturbance, stiffness of joints throughout his extremities, anxiety, and depression.” The CI also reported that his hands turned blue and painful, “whenever his hands are exposed to cold.” The CI reported also “having abnormal sensation, consisting of burning, prickling, tingling, and tickling sensation throughout the extremities and trunk.” The symptoms were constant and occur “two-thirds of the time over a year.” The examiner also noted that the CI had difficulty with some activities and was relying on his girlfriend for help. The CI was able to “brush his teeth, cook, walk, shower, climb stairs, and do limited shopping and driving. He is not able to vacuum, dress himself, garden, take out the trash, or push a lawnmower. The examination revealed tenderness in 14 trigger points. The CI was described as well-developed and in no acute distress. Posture was normal, but gait wide based and slow. Sensation and reflexes were normal. Motor function showed 4/5 strength in the upper extremities and 5-/5 in the lower extremities secondary to pain. Tone was normal bilaterally and spasm absent. The CI used a cane for ambulation, but there was no sign of abnormal weight bearing such as unusual wear of the shoes. Muscle atrophy was not documented.

The Board directed attention to its rating recommendation based on the above evidence. The IPEB convened on 12 February 2003 and coded the FM syndrome condition 5025 and assigned a 10% disability rating. The CI appealed and the FPEB increased the rating to 20%. There was a second appeal; however, the disability rating was not changed. The VA also coded the fibromyalgia condition 5025 and assigned a 40% rating noting that the C&P examination had documented that the symptoms were over two thirds of the year. FM is described in the VASRD as widespread musculoskeletal pain and tender points with or without fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s like symptoms. The rating is based upon the frequency of symptoms without regard to severity or impact on function. A 10% rating applies when the symptoms are controlled by medication; a 20% rating applies when the symptoms are episodic, with exacerbations present more than one third of the time; a 40% rating applies when symptoms are constant, or nearly so, and refractory to treatment. All members agreed that the 10% rating criteria was clearly exceeded. The Board deliberated therefore whether the CI’s symptoms were best characterized as episodic with frequent exacerbations (20% rating) or constant and refractory to therapy (40% rating). The Board noted the entries in the service treatment record that described progressive worsening of the condition, as reported by the CI. The Board considered if the objective findings supported the subjective reports and agreed that there was evidence to support frequent exacerbations. However, the Board noted that multiple examiners had commented on symptom exaggeration and that inconsistencies in the history as relayed by the CI are present. The CI was also noted to have poor effort on motor testing at least once. There was concern of narcotic dependence and cancelled appointments in the rheumatology clinic; the CI noted that he had gotten refills from the ER. Much of the symptomatology endorsed by the CI at the C&P examination was not reported at any of the numerous rheumatology appointments prior to separation. The CI was also noted to be staying up all night participating in on-line chat groups. This sleep disruption would directly contribute to his fatigue and also would probably increase the symptoms noted from his FM. 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 FM condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the MDD and the small annular tear conditions 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.

Major Depressive Disorder. In March 1999, the CI had been referred by his command to family practice for an evaluation his occupational problems secondary to a poor working relationship with his supervisor. He was advised to follow up in stress management. The Board noted that this is shortly after the fall in January 1999 to which the CI attributed the onset of his symptoms later diagnosed as FM. On 19 July 1999, the CI was referred to mental health by his Chaplain. The examiner noted that the CI had experience occupational problems for 5 months and had been counseled on three occasions with two “page 11 entries.” He endorsed blackouts from alcohol use. He was diagnosed with an adjustment disorder and recommended to begin supportive treatment and stress management. On 8 April 2002, the CI was evaluated in the psychiatry clinic for depression. The CI reported feeling depressed for several months, associated with his chronic pain. The CI reported that he was having difficulty sleeping and found it hard to go to work. The CI had self-discontinued Amitriptyline and was prescribed Effexor XR. The CI was to return to the clinic in 4 weeks; no other notes were in evidence. The examiner dictated an addendum for the MEB on 19 November 2002 that noted that the CI had been evaluated and treated for depression. The CI reported that his symptoms had improved and that he was experiencing enjoyment with certain activities. The CI continued to report “sleep disregulation;” he was participating in FM chat groups on line at night. The examiner diagnosed the CI with MDD, single episode, mild, resolved. The Global Assessment of Functioning was 70 and the examiner stated that the CI’s mood disorder was “relatively mild and largely reactive to his chronic pain and physical disability…” It was the examiner’s opinion that the CI was “considered psychiatrically fit for full duty.” The MDD was not profiled. It was mentioned in the commander’s statement. The Board noted that the VA examiner diagnosed MDD with psychotic features and that the CI was awarded a 50% disability rating by the VA. However, the Board noted that some of the history provided to the psychiatric examiner by the CI is not consistent with the records in evidence.

Small Annular Tear, L5-S1. The CI had a history of back pain since 1995, 2 years after accession and 9 years prior to separation. The LBP was attributed to strain from lifting, but he did reportedly have a fall of about 25 feet during training in January 1999. The CI did not respond well to conservative treatment and an epidural steroid injection. His pain complaints continued, but became more generalized after the fall in 1999 and were not explained by the objective findings. The CI was then diagnosed with FM. There was overlap of the CI’s chronic back pain condition and his FM. An MRI in October 2002 revealed a small annular tear at L5-S1, but without evidence of spinal stenosis or neuroforaminal narrowing. The neurological examination was normal. The small annular tear condition was implicated in the commander’s statement.

Both conditions were reviewed and considered by the Board. There was no performance based evidence from the record that either condition 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 either condition and so no additional 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. 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 FM condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended major depression condition, the Board unanimously recommends no change from the PEB determination of not unfitting. In the matter of the contended small annular tear condition, the Board unanimously recommends no change from the PEB determination of not unfitting. 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 Condition
 5025 20%
RATING
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120808, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





         xx
         President
         Physical Disability Board of Review
MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 20 Aug 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective forwarding memorandum, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:
- former USN
- former USMC
- former USMC
- former USMC
- former USMC
- former USN
- former USMC
- former USN



                                                      xx
                                                     Assistant General Counsel
                                                      (Manpower & Reserve Affairs)

Similar Decisions

  • AF | PDBR | CY2012 | PD2012 01383

    Original file (PD2012 01383.rtf) Auto-classification: Denied

    Range-of-motion (ROM) in the lumbar and cervical spine were normal on each side without evidence of pain or tenderness. The Board notes that the VASRD rating guidance under 5025 for FM includes associated symptoms of depression and the Board considered the associated depression symptoms in its rating recommendation.The Board agreed the condition required medication for control supporting the 10% rating adjudicated by the PEB, but noted that there was evidence indicating that the overall...

  • AF | PDBR | CY2013 | PD-2013-01532

    Original file (PD-2013-01532.rtf) Auto-classification: Denied

    A significant component of the Board’s decision regarding the PEB’s final memorandum concerning their adjudication of this case is whether there was a separately unfitting and ratable psychiatric condition at service separation.Fibromyalgia is described in the VASRD as widespread musculoskeletal pain and tender points with or without fatigue, sleep disturbance, stiffness, paresthesia, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s like symptoms.The VASRD does not...

  • AF | PDBR | CY2013 | PD-2013-01382

    Original file (PD-2013-01382.rtf) Auto-classification: Approved

    If the Board judges that two or more conditions are reasonably justified as separately unfitting, then each separate condition must be rated IAW the VASRD §4.71a. Accordingly, the Board does not recommend a separate disability rating for the functional bowel symptoms. Right Hip Pain .

  • AF | PDBR | CY2012 | PD2012 01707

    Original file (PD2012 01707.rtf) Auto-classification: Denied

    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. There was normal ROM in all joints with pain.Neurological exam was normal.The Board noted the PEB to combine the depression and LBP conditionsand...

  • AF | PDBR | CY2013 | PD2013 00935

    Original file (PD2013 00935.rtf) Auto-classification: Denied

    The PEB combined the MEB referred conditions of FM and bilateral plantar fasciitis and pes cavus and rated them as one unfitting condition of FM coded at 5025, specified by the VASRD as “with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesia, headaches, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms.” The PEB cited avoidance of pyramiding IAW VASRD §4.14 for not rating the plantar...

  • AF | PDBR | CY2013 | PD-2013-01859

    Original file (PD-2013-01859.rtf) Auto-classification: Denied

    SEPARATION DATE: 20060423 The Board did not find evidence the symptoms were refractory to therapy for a higher adjudication, since the CI reported doing fair and reported favorable response to treatment with narcotic medications. Physical Disability Board of Review

  • AF | PDBR | CY2014 | PD-2014-00766

    Original file (PD-2014-00766.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. At the MEB examination on 11 May 2004, 10 months prior to separation, the CI complained of painful bilateral shoulders (which popped all the time), constant back pain, foot pain, tender “knots” on both of the knees,...

  • AF | PDBR | CY2012 | PD2012 01578

    Original file (PD2012 01578.rtf) Auto-classification: Denied

    The Physical Evaluation Board (PEB) adjudicated the FM, urinary incontinence and chronic abdominal pain conditions as unfitting, bundled into one rating of 10%with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).The remaining conditionwas determined to be not disqualifying.The CI made no appeals, and was medically separated with a 10% disability rating. The diagnoses of FM, urinary incontinence and chronic abdominal pain with diarrhea were forwarded to the PEB....

  • AF | PDBR | CY2011 | PD2011-00213

    Original file (PD2011-00213.docx) Auto-classification: Denied

    The VA exam, two months pre-separation, documented a normal knee exam, and the VA adjudicated the condition as not Service connected (NSC). The CI’s unfitting fibromyalgia considered the impact of all musculoskeletal pain symptoms and conditions associated with fibromyalgia as noted above. The CI’s unfitting fibromyalgia considered the impact of all musculoskeletal pain symptoms and conditions associated with fibromyalgia as noted above.

  • AF | PDBR | CY2012 | PD2012-00177

    Original file (PD2012-00177.docx) Auto-classification: Approved

    Neck Pain Condition . Fibromyalgia Condition . In the matter of the rotator cuff tear condition, the Board by a vote of 2:1 recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.