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AF | PDBR | CY2012 | PD2012 01856
Original file (PD2012 01856.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX          CASE NUMBER: PD120 1856
BRANCH OF SERVICE: Army   BOARD DATE: 2013 0620
Separation Date: 20030823


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Guard Reserve (AGR) SFC/E-7 (179T/National Guard Recruiter) medically separated for a fibromyalgia (FM)/myofascial pain syndrome (MPS) and bilateral knee pain. The CI had a long-standing history of diffuse muscle and joint pain and she was ultimately diagnosed by rheumatology with FM/MPS. Surgical intervention was undertaken for anterior knee pain syndrome but the conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent P3/U3/L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded FM/MPS, anterior knee pain, and upper airway resistance syndrome to the Physical Evaluation Board (PEB) IAW AR 40-501. The PEB adjudicated “fibromyalgia/myofascial pain syndrome with difficulty managing the illness and bilateral anterior knee pain with patellar crepitus and patellar apprehension” as unfitting, rated 20% and 0% respectfully, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The PEB also adjudicated the upper airway resistance syndrome as not unfitting. The CI made no appeals and she was medically separated.


CI CONTENTION : “Physical Evaluation Board Rating 20% (Fibromyalgia 20%; Knee pain 0%; Upper airway resistance found not unfitting); Department of Veterans Affairs Rating 60% (Fibromyalgia & Upper airway resistance 40%; Knee pain 10%; additional findings of gastroesophageal reflux 10%, low back pain 10% and Fibrocystic disease with breast abscess 0%)”


 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 ratings for unfitting conditions will be reviewed in all cases. T he u pper a irway r esistance s yndrome condition meets the criteria prescribed in DoDI 6040.44 for Board purview, and is accordingly addressed below. The requested gastroesophageal reflux disease , l ow back pain, and fibrocystic disease with breast abscess was not identified by the PEB, and thus these conditions are not within the DoDI 6040.44 defined purview of the Board. Any conditions or contention either no t 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.


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RATING COMPARISON :

Service Admin Correction PEB – Dated 20021204
 VA - (2 Mos. Post -Separation)
Condition
 Code Rating Condition Code Rating Exam
Fibromyalgia/Myofascial Pain Syndrome 5025 20% Chronic Myofascial Fibromyalgia, with Upper Airway Resistance Syndrome 5025 40% 20031025
Upper airway resistance syndrome Not Unfitting
Bilateral Anterior Knee Pain with Patellar Crepitus and Patellar Apprehension 5099-5003 0% Chondromalacia, Left Knee, S/P Arthroscopy 5257 10% 20031025
Right Knee, s/p Arthroscopy 5260 Not Service Connected (NSC)
No Additional MEB/PEB Entries
 Other x 7 20031025
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VARD) dated 20041028 ( most proximate to date of separation [DOS]).


ANALYSIS SUMMARY : The Board acknowledges the CI’s information regarding the significant impairment with which her 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, operating under a different set of laws. Additionally, the Board acknowledges the CI’s implied contention for the various conditions noted above which were determined to be not unfitting by the PEB. Disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with military service, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Fibromyalgia Condition. The CI was initially diagnosed with myofascial pain in September 1999 when she was referred to pain management for a 4-month history of constant costochondral, mid thoracic, lateral rib and breast related burning intermittent shooting pain. On physical exam findings, the CI was diffusely tender from the clavicles through the lower 2/3 of the thoracic spine; she had tenderness along the thoracic paraspinals, spinous processes, and lateral ribs; she was also exquisitely tender along the costochondral joints as well as the soft tissue of the breasts; and other FM points were tender at the base of the occiput and lateral hips. The CI was started on a muscle relaxant (Zanaflex) and a non-steroidal anti-inflammatory drug (Vioxx) and was diagnosed with refractory myofascial fibromyalgia pain syndrome. The CI was evaluated by a rheumatologist who determined that she did not have a systemic rheumatic disease, however physical therapy (PT), occupational therapy, and podiatry as well as possible intermittent steroids were recommended. The family practice physician noted that the CI’s condition was refractory to therapy. The CI was seen by a second rheumatologist who concurred with the diagnosis and recommended Elavil at bedtime. The CI was seen by her family practitioner who noted trigger points symmetrically in her upper back and anterior chest, along with an increase in the Elavil. A spine X-ray noted degenerative changes at L5-S1 with disc space loss and degenerative osteophyte formation. However, X-rays of both hands and right ankle were all normal. The CI was seen routinely by rheumatology who documented diffuse pain and hypalgesia along with difficulty working due to her symptoms. A medical note documented chronic sleep problems such as difficulty falling asleep and staying asleep and a failure of Elavil and Trazodone at nighttime for sleeping. The MEB narrative summary (NARSUM) exam, performed approximately 9 months prior to separation, indicated that the CI continued to suffer from diffuse muscle and joint pain on a daily basis in all upper and lower extremity muscles that would frequently increase in pain intensity with stress or changes in the weather and she had frequent headaches, irritable bowel disease (IBD), and sensation of puffy hands. Physical findings were tender points in the following bilateral muscles: occiput, low cervical spine, trapezius, lateral epicondyle, gluteal, greater trochanter supraspinatus, second rib, lateral epicondyle, gluteal, greater trochanter, and medial fat pad of the knee and the control points distinct from fibromyalgia trigger points were painful to touch as well. The examiner documented that a “review of her medical record” noted that her condition “has been largely unresponsive to multiple medical interventions.” The examiner reported the CI had a poor track record with missing multiple days of work, culminating in the current 5-month absence from work, which demonstrated her inability to function adequately within her MOS. The 5-month period of inability to work occurred after a knee arthroscopy and prior to that time the CI had been working 2 to 3 days per week. While details of the arthroscopy are not available, generally this type of surgery does not result in such significant lost work time. Most likely, the CI’s recovery and ability to return to work was adversely affected by her FM. The current status noted continued daily symptoms and the examiner opined that the CI was likely to have similar problems related to FM in the future. The CI was given a P3/U3/L3 profile for diffuse muscle and joint pain and fatigue with restrictions of no crawling, stooping, running, jumping, or marching for long periods; no mandatory strenuous physical activity; no assignments to remote areas where definitive medical care was not available. The commander’s statement indicated that the CI’s condition prevented her from firing a weapon or taking an Army Physical Fitness Test (APFT) and that she was not physically able to work the hours necessary as a recruiter. The VA Compensation and Pension (C&P) examination for FM approximately 2 months after separation indicated chronic fatigue and achiness, widespread muscle and joint pain, trouble with sleeping, constipation, and headaches. At this time, the CI was working at the VA and had not missed any days of work due to FM but was unable to engage in any further activities after work because of fatigue and achiness. The physical findings included a decrease in range-of-motion (ROM) in the left shoulder with tenderness; muscle testing with resistance involving the supraspinatus muscle groups revealed worse pain in the left and tenderness in the proximal interphalangeal joints on the hand; bilateral bursitis, bilateral trochanteric bursitis, and multiple tender points involving the arms, anterior chest, and upper back were also noted. The general C&P examination, performed approximately 3 months after separation, indicated that the CI had a history of ongoing FM which was poorly controlled and had physical exam findings of diffuse tenderness throughout the exam. Additionally, VA treatment records document continued refractory pain as late as August 2004, 12 months after separation.

The Board directs attenti on to its rating recommendation based on the above evidence . The PEB coded the FM condition as 5025 and rated at 20% . The VA used the same coding and rated the c hronic m yofascial FM , with u pper a irway r esistance s yndrome at 40% . In considering the rating, the Board readily agreed that there was no evidence that the CI’s symptoms were controlled by medications and therefore the 10% rating was well exceeded. The MEB NARSUM noted that at the time of that examination, the CI had not been able to work at all in the previous 5 months and prior to that time had only been working 2 to 3 days per week . The Board considered the finding that the CI had daily pain with an ineffective response to med ications and determined, therefore, that the 10% and 20% ratings were well exceeded . The CI’s profile included significant restrictions, prohibited any strenuous activities, and noted all activities were to be done at the CI’s own pace and distance. The delib eration focused on the 20% (symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time) vs. 40% ( symptoms that are constant, or nearly so, and refractory to therapy). At the time of the MEB examination and the C&P examination, the CI had constant symptoms of joint pain, fatigue, headache, IBD and sleep disturbance that responded poorly to therapy. After due deliberation, considering all of the evide nce and mindful of VASRD §4.3 ( r easonable doubt ) the Board recommends a disability rating of 40 % for the FM condition.

Bilateral Knees condition : The PEB rated c hronic l eft and r ight k nee p ain with p atellar c repitus and p atellar a pprehension under the single analogous 5003 d egenerative arthritis code. This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation. The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was reasonably justified as unfitting in and of itself, with the caveat that the final recommendation may not produce a lower combined rating than that of the PEB.

The Board first considered if the chronic left and right knee pain with patellar crepitus and patellar apprehension conditions, having been de-coupled from the combined PEB adjudication, were each reasonably justified as independently unfitting. The service treatment record (STR) documents initial complaints of bilateral knee pain in March 1979. There were m ultiple follow-up visits from March 1979 through A pril 200 2 for knee pain . During this period, the CI injured her right knee and was evaluated by orthopedics and treated in PT . In September 1997, a permanent L3 profile for c hronic l eft k nee p ain was issued . It does not appear that any MEB was completed and in June 2000, the left knee profile was changed to L2. Additionally, multiple temporary profiles were written for each knee throughout the CI’s period of service. In December 2004, the C I was issued a permanent P2 / U3 / L3 for diffuse muscle and joint pain and fatigue ( FM ). This profile includes significant activity restrictions and all activities were to be done at CI’s own pace and distance. It is not possible to a pportion restrictions based on diagnosis as all lower extremity restrictions could be attributed to either knee or to FM . The MEB NARSUM completed in November 200 2 noted a complaint of anterior knee pain. The NARSUM includes a history of anterior knee pain with no mention of a specific knee and a history of arthroscopy of each knee with the latest one completed 5 months prior to the NARSUM. No specific information about the findings at either arthroscopy is available. The NARSUM include s limited exam findings related to both knees and the final diagnosis was anterior knee pain . The MEB forwarded anterior knee pain and the PEB adjudicated bilateral anterior knee pain with patellar crepitus and patellar apprehension . The STR also contains a PT visit in December 200 1 that documented bilateral patellar tendonitis . The C&P examination noted that the CI had undergone arthroscopy of both knees for soft tissue injury within the previous 2 years and scars indicative of arthroscopic surgery were noted on both knees. There is insufficient evidence to support a finding of not unfitting for either knee. Therefore, it is reasonably justified that the CI be found unfit for continued military service in her MOS due to her left and right anterior knee pain with patellar crepitus and patellar apprehension c ondition . A ll Boar d members agreed that both the l eft and r ight k nee p ain conditions, as isolated conditions, would each have rendered the CI incapable of c ontinued service within her MOS and accordingly each knee merits a separate rating.

There were ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.
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Knee ROM
 MEB ~9 Mo. Pre-Sep VA C&P ~2 Mo. Post-Sep
Left Right Left Right
Flexion (140⁰ Nml )
 No ROM’s 140⁰ 140⁰
Extension (0⁰ Nm l)
 0⁰ 0⁰
Comment
 Crepitus; + patellar apprehension test; “anterior knee pain syndrome” Well healed scar; mild crepitus with movement; negative Lachman; “ suspicious for ligament instability ” Well healed scar; negative Lachman
§4.71a Rating
 0% 0% 10% 0%

The CI ha d a well-documented history of bilateral knee pain in the STR from March 1979 through February 2002. The CI was given a sick slip for left knee pain in 1989 . The CI continued to have left knee pain and an X -ray performed in 1990 showed a slight lateral subluxation of the patella. Sh e continued to have left knee pain, had some pain with patellar compression, she was diagnosed with patellofemoral pain syndrome (PFPS), and she was given a permanent L2 Profile to do an alternate PT test. An o rthopedics note in May 1991 noted pain in the anterior patella tendon and the diagnosis of PF P S with possible tendonitis was continued. The CI was seen in f amily p ractice for bilateral knee pain and bilateral mild tenderness at the proximal tibial region. The o rthopedist noted that the left knee pain was somewhat diffuse and there was pain with stair climbing in the anterior patellar area ; however, the MRI was normal and there was nothing obvious to operate on. In 2001 , the CI was seen by o rthopedics for a right knee injury after a fall with tenderness and swelling. The right knee X -ray was negative and she was advised to continue wearing the knee immobilizer. The CI was evaluated by o rthopedics and noted to have right knee limited active motion, positive tenderness ove r the distal patella tendon, and positive patellofemoral crepitus . She was diagnosed with right , greater than left patellar chondromalacia and patellar tendonitis. A repeat X -ray of the left knee was normal. A right knee MRI performed in 2002 indicate d a small amount of joint fluid but was otherwise normal. The MEB NARSUM exam indicated that the CI had not worked in the previous 5  months following a knee arthroscopy for the anterior knee syndrome. The physical exam findings are summarized in the chart above. The CI was given a P3 / U3 / L3 p rofile for diffuse muscle and joint pain and fatigue with restrictions of no crawling, stooping, running, jumping, or marching for long periods; no mandatory strenuous physical activity; and no assignments to remote areas where definitive medical care was not available. The p rofile would have been applicable to the left and right knee pain also. The commander’s statement indicated that the CI’s condition prevented her from firing a weapon and taking an APFT and that she was not physically able to work the hours necessary as a recruiter. The C&P examination indicated that mild crepitus and an unstable left knee suggested a diagnosis of osteoarthritis. The physical exam findings are summarized in the chart above.

 The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the c hronic k nee p ain due to b ilateral c hondromalacia analogously to 5003 a rthritis, degenerative: (hypertrophic or osteoarthritis) rated 0%. The VA coded the c hondromala cia, l eft k nee, status post (s/p) a rthroscopy as 5257 and rated 10% . The VA also determined the r ight k nee s/p a rthroscopy was not service- connected as n o permanent residual or chronic disability was present. Although the clinical history includes pain with motion of each knee, the absence or presence of pain with motion was not documented on examination.

 No examinations are compatible with a 10% rating for either knee . The C&P exam noted that the left knee demonstrated mild crepitus with movement; suspicious for ligament instability ; however the right knee had full ROM and no indication of crepitus. The VARD acknowledged that the provision of Deluca had not been addressed for the left knee regarding weakness and fatigability with repetitive motion and stated a second VA examination was being scheduled to address this. However, there is no evidence of any further examination in the record. The Board considered the tenants of code 5257; however, there was minimal documentation of left knee laxity or instability. The Board determined with a disability due to painful motion of the knee, VASRD code 5260 ( l eg , and limitation of flexion of ) was the most accurate code to use . After much discussion, the Board concluded that although both knees were found to be unfit, the evidence presented did not justify a rating greater than 0% for either knee. 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 separation rating determination of 5299-5260 at 0% for the c hronic l eft k nee p ain due to c hondromalacia and 5299-5260 at 0% for the c hronic r ight k nee p ain due to chondromalacia condition.

 Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB was u pper a irway r esistance s yndrome . The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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.

 This condition was not profiled, it was not implicated in the c ommander’s s tatement, and, it was not judged to fail retention standards. This condition was reviewed by the a ction o fficer and considered by the Board. There was no indication from the record that this 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 the u pper a irway r esistance s yndrome condition and, therefore, no additional disability ratings can be 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 , the Board unanimously recommends a disability rating of 40 %, coded 5025 IAW VASRD §4.71a. In the matter of the b ilateral a nterior k nee p ain with p atellar c repitus and p atellar a pprehension condition, the Board unanimously recommends that both l eft and r ight k nee j oints were reasonably justified as unfitting. By a vote of 2:1, the Board adjudicated each knee as follows: an unfitting c hronic l eft k nee p ain due to c hondromalacia coded 5299-5260 and rated at 0% and an unfitting c hronic r ight k nee p ain due to c hondromalacia coded 5299-5260 and rated 0% both IAW VASRD §4.71a. The single voter for dissent who recommended an unfitting c hronic l eft k nee p ain due to c hondromalacia coded 5299-5260 and rated at 10% and an unfitting c hronic r ight k nee p ain due to c hondromalacia coded 5299-5260 and rated 0%, both IAW VASRD §4.71a, did not elect to submit a minority opinion. In the matter of the contended u pper a irway r esistance s yndrome condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.


RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows ; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Fibromyalgia 5025 4 0%
Chronic Left Knee Pain due to Chondromalacia 5299-5260 0%
Chronic Right Knee Pain due to Chondromalacia 5299-5260 0%
COMBINED
 4 0%
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The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 121022 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record





XXXXXXXXXXXXXXXX , 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 XXXXXXXXXXXXXXXXXXX, AR20140001867 (PD201201856)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from this memorandum:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.






3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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