RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

                              BRANCH OF SERVICE:  NAVY 

 
NAME:    
CASE NUMBER:  PD1200347                                                                   SEPARATION DATE:  20060501 
BOARD DATE:  20130102 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered individual (CI) was an active duty PH3/E-4 (Photographer’s Mate) medically separated 
for fibromyalgia.  She was treated, but did not improve adequately to fully perform her military 
duties or meet physical fitness standards.  She underwent a Medical Evaluation Board (MEB).  
The  MEB  found  her  fibromyalgia  condition  medically  unacceptable,  and  referred  her  to  a 
Physical  Evaluation  Board  (PEB).    No  other  conditions  were  submitted  by  the  MEB  for 
adjudication.    The  PEB  found  the  fibromyalgia  condition  unfitting,  and  rated  it  10%.    The  CI 
made no appeals, and was medically separated with a 10% disability rating. 
 
 
CI CONTENTION:  “I believe there is a large discrepancy between the disability rating (0%) given 
by the Navy when I was discharged and the disability rating given by the VA (50%). I developed 
symptoms and was diagnosed with Fibromyalgia while I was in the Navy. I also developed and 
was  diagnosed  with  other  chronic  conditions  while  I  was  in  the  Navy.  These  diagnosed 
conditions are listed in item 14 and in my VA determination letter. The Navy did not take into 
consideration the effects that time in the Navy had on the whole person. The VA did take into 
consideration all of my diagnosed conditions and the VA saw it fit to award me with a disability 
rating of 50% for all of my chronic conditions. Although I had planned to have a full career in 
the Navy, I was required to leave the Navy because of my disability. I suffer from a number of 
symptoms because of my diagnosed conditions. To name a few, I suffer from joint and muscle 
pain,  IBS,  memory  and  concentration  problems,  dysthymia,  and  difficulty  sleeping;  become 
easily fatigued, get almost daily debilitating headaches, am limited in the type of work I can do, 
and  continue  to  take  daily  medication  to  help  manage  the  chronic  pain  I  suffer  from.  The 
combination of all of the chronic conditions that I developed while in the Navy have and will 
continue to negatively impact my daily life.” 
 
 
SCOPE OF REVIEW:  The Board’s scope of review as defined in DoDI 6040.44, 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 unfitting fibromyalgia condition meets the criteria prescribed in DoDI 
6040.44, and is accordingly addressed below.  The other conditions noted in the CI’s  written 
statement to the PDBR are not within the Board’s purview.  Any condition outside the Board’s 
defined scope of review may be eligible for future consideration by the Board for Correction of 
Naval Records. 
 
 
 
 
 
 
 
 
 
 
 

RATING COMPARISON:  
 

Navy PEB – dated 20060207 

VA (1 mo. Pre-Separation) – All Effective 20060502 

Condition 

Fibromyalgia 

Code 
5025 

Rating 
10% 

No Additional MEB/PEB Entries 

Condition 

Fibromyalgia 
Lumbar Strain 
Right Knee Pain 
Left Knee Pain 
Right Wrist Pain 
Tinnitus 

Code 
5025 
5237 

5260-5003 
5260-5003 

5024 
6260 

Rating 
NSC 
20% 
10% 
10% 
10% 
10% 

Exam 

20060329 
20060329 
20060329 
20060329 
20060329 
20060329 
20060329 

 

 

Combined:  10% 

Combined:  50% 

0% x 1 / Not Service Connected x 8 

 

ANALYSIS  SUMMARY:   The  Board  acknowledges  the  CI’s  assertion  that the  Navy PEB  did not 
take into consideration the effects that her time in the Navy had on her whole person.  For the 
record, the Board has neither the jurisdiction nor authority to scrutinize or render opinions in 
reference to asserted Service improprieties in the disposition of a case.  In addition, the Board 
wishes to clarify that it is subject to the same laws for disability entitlements as those under 
which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the 
authority to compensate members for future severity or potential complications of conditions.  
That  role  and  authority  is  granted  to  the  Department  of  Veterans  Affairs  (DVA).    The  Board 
evaluates  DVA  evidence  in  arriving  at  its  recommendations,  but  its  authority  resides  in 
evaluating  the  fairness  of  DES  fitness  and  rating  determinations  at  the  time  of  separation.  
While the DES considers all of the CI's medical conditions, compensation can only be offered for 
those  conditions  that  cut  short  a  member’s  career,  and  then  only  to  the  degree  of  severity 
present at the time of separation.  The DVA, however, is empowered to compensate for service 
connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the 
Veteran’s disability rating should the degree of impairment change. 
 
Fibromyalgia.  The CI was evaluated in November 2004 for multiple joint pains.  The pain was 
mostly in her knees, ankles, and right hip.  She was also having frequent headaches.  Her joint 
pain was initially diagnosed as chronic overuse syndrome.  In April 2005, she was re-evaluated 
by  Rheumatology  and  was  found  to  have  12  out  of  18  fibromyalgia  tender  points  and  no 
evidence of inflammatory arthritis.  Her symptoms included: back pain, elbow pain, right hip 
pain, wrist pain, ankle pain, knee pain, fatigue, headaches, diarrhea, and constipation.  She was 
diagnosed with fibromyalgia at that time.  Because of her pregnancy, treatment options were 
limited.  Her fibromyalgia symptoms did not improve significantly, and she was unable to fully 
perform her military duties or meet physical fitness standards.  As noted above, she underwent 
MEB/PEB and was medically separated from the Navy with a disability rating of 10%.  In March 
2006, she had a VA Compensation and Pension (C&P) exam.  At that exam, she was found to be 
tender all over her body.  The fibromyalgia was described as active, but she was not diagnosed 
with fibromyalgia because there was “no pathology to render a diagnosis.” 
 
The  Board  carefully  reviewed  all  evidentiary  information  available.    In  the  VA  Schedule  for 
Rating  Disabilities  (VASRD)  §4.71a,  fibromyalgia  is  described  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 on the frequency of symptoms.  A 20% rating applies when the symptoms are 
episodic; with exacerbations present more than 1/3 of the time.  A 40% rating applies when 
symptoms are constant (or nearly so), and refractory to treatment.  The March 2006 C&P exam 
was  done  33  days  prior  to  separation.    At  that  exam,  the  CI’s  symptoms  were  described  as 

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constant,  as  well  as  episodic.    She  reported  widespread  musculoskeletal  pain,  fatigue, 
headaches, sleep disturbance, stiffness, anxiety, and depression.  The symptoms were present 
more than 2/3 of the time.  Her functional impairment was described as: can’t tolerate stress or 
activities, completely exhausted all the time, and pain limits activities.  The examiner opined, 
“Tenderness throughout the back and at all joints is not considered significant in this claimant, 
particularly the ankles and hips where no additional objective findings are noted.” 
   
The  most  critical  component  of  the  Board’s  deliberation  to  reach  a  fair  and  accurate 
recommendation  in  this  case,  is  to  determine  whether  the  CI’s  fibromyalgia  symptoms  were 
“constant,  or  nearly  so,  and  refractory  to  therapy”  /or/  “episodic,  with  exacerbations  often 
precipitated  by  environmental  or  emotional  stress  or  by  overexertion,  but  that  are  present 
more than one-third of the time.”  The only clinical evidence of the frequency or constancy of 
symptoms  near  the  time  of  separation,  comes  from  the  March  2006  C&P  exam.    The  Board 
noted certain inconsistencies in that exam which cast some doubt on its validity and probative 
value.  However, the Board found insufficient evidence in the treatment record to refute the 
reported constant nature of the CI’s pain symptoms.  After due deliberation, considering all of 
the  evidence,  and  mindful  of  VASRD  §4.3  (Reasonable  doubt),  the  Board  recommends  by 
majority decision (2:1 vote) a separation rating of 40% 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,  the  Board  recommends  by 
majority decision (2:1 vote) a disability rating of 40% IAW VASRD §4.3 and §4.71a.  The single 
voter for dissent (who recommended a 20% rating) prepared the appended minority opinion.  
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;  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 

5025 

COMBINED 

40% 
40% 

Fibromyalgia 

 

The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120411, w/atchs. 
Exhibit B.  Service Treatment Record. 
Exhibit C.  Department of Veterans’ Affairs Treatment Record. 
 
 
 
 
 
 
 
 

 

 

           President 
           Physical Disability Board of Review 

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MINORITY OPINION 
 
The majority vote in this case conceded a 40% rating for the CI’s fibromyalgia condition largely 
on  the  basis  of  the  CI’s  C&P  exam  in  March  of  2006,  approximately  a  month  prior  to  her 
separation.    I  believe  the  CI’s  condition  at  separation  more  closely  approximated  a  20% 
disability under the disability code for fibromyalgia. 
 
I respectfully point out that the C&P exam of 29 March 2006 has numerous findings (and some 
inconsistencies),  which  in  my  opinion,  do  not  support  the  40%  disability  rating  criteria  for 
fibromyalgia,  in  accordance  with  38  USC  Part  IV.    The  general  criteria  for  fibromyalgia, 
according to 38 USC Part IV requires “widespread musculoskeletal pain and tender points, with 
or  without  associated  fatigue,  sleep  disturbance,  stiffness,  paresthesias,  headache,  irritable 
bowel  symptoms,  depression,  anxiety,  or  Raynaud’s-like-symptoms.”    The  40%  level  for  this 
condition further requires symptoms to be:  “constant or nearly so and refractory to therapy.”  
The VA examiner annotates in each of the CI’s separate musculoskeletal assessments that her 
“pain occurs constantly,” yet the same specific history as recorded shows that the CI’s pain for 
that particular joint/body part is “relieved” by rest and therapeutic measures.  The history as 
recorded also shows that the CI’s pain is not (with emphasis) refractory to therapy.  As quoted 
particularly from the history of the CI’s knees (which were among the most prominent of her 
painful joints):  “It (the pain) is relieved by rest and the medication, lndocin.   At the time of 
pain she can function with medication.” 
 
According  to  38  USC  Part  IV,  the  20%  level  for  this  condition  requires  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.”  The VA examiner in the 
aforementioned  exam  (particularly  for  fibromyalgia)  said:    “The  claimant  has  been  suffering 
from  Fibromyalgia.  The  condition  has  existed  since  2002.  The  location  of  the  condition  is  
throughout the whole body. The claimant has easy fatigability, headaches, sleep disturbance, 
stiffness,  anxiety,  depression  and  occasional  spasms  in  arms  and  legs.  The  above  noted 
symptoms occur constantly, which means more than 2/3 of the time per year.  The symptoms 
are  precipitated  by  the  environmental  stress  of  a  drastic  change  in  temperature”  (with 
emphasis).  Logic would dictate that for the symptoms to be constant and to be precipitated by 
“the environmental stress of a drastic change in temperature,” such changes would need to be 
nearly constant to support this cause and effect.  The VA examiner then makes the same point 
as above with respect to the condition not being refractory to therapy:  “The claimant has been 
treated  with  Indocin  from  2004  to  2005  and  there  has  been  a  favorable  response  to  the 
treatment (with emphasis). The claimant has been treated with Vioxx from 2003 to 2004 and 
there  has  been  a  favorable  response  to  the  treatment  (with  emphasis)…She  still  requires 
continuous treatment to control this condition (with emphasis) because condition has not gone 
away, but can't take medications now while breastfeeding…” 
 
Further complicating assessing the evidence in this case is that the CI was pregnant from the 
time shortly prior to the definitive Rheumatology exam (in April of 2005 – which showed she 
had 12 of 18 tender points) through the end of November 2005.  During this time, the CI was 
unable to follow prior therapeutic regimens (specifically, she stopped any medication which she 
previously had used to treat her condition).  Furthermore, she did not take medication post-
delivery  as  she  was  breastfeeding  throughout  this  time  (this  was  documented  at  the  March 
2006 VA exam per above). 
 
The Board unanimously designated what it felt was the proper rating code in this case (5025:  
fibromyalgia).  As the Board examined the rating comparison at the time of separation, it was 
evident  the  VA  did  not  service-connect  the  fibromyalgia  as  the  VA  examiner  (from  the 
aforementioned exam) stated there was “no pathology to render a diagnosis.”  The VA rater 

 

 

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was  forced  to  rate  the  CI  based  on  the  individual  disabling  condition  of  each  joint  the  CI 
claimed.  There is no doubt that before the CI became pregnant, she had profiles which limited 
her  ability  to  run  and  thereby  fulfill  the  obligations  of  her  office,  grade,  rank  or  rating.  
However,  in  my  opinion,  if  one  takes  the  separately  rated  conditions  (by  the  VA)  and 
superimposes these onto the fibromyalgia which the CI’s service conceded, the degree of the 
widespread  pain  and  associated  limits  placed  upon  the  CI’s  functionality  while  in  service, 
particularly  with  respect  to  conditions  of  the  upper  body  quadrants,  would  not  warrant  a 
combined disability above 20%. 
 
In my opinion, the VA exam’s presentation of evidence during the compensation and pension 
exam, along with the obvious limits to the CI’s therapeutic management of her condition due to 
her  pregnancy 
the  condition  was  managed  with  such 
medication/therapy – to a degree – prior to her pregnancy) overcomes reasonable doubt in the 
CI’s favor, and leads me to a fair and equitable recommendation in this case of 20% for the CI’s 
fibromyalgia condition. 
 
 

the  evidence 

(and 

that 

 

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MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
   

ICO XXXXXXXX, FORMER USN, XXX-XX-4336 

 

 

 
 
 
 
 
 
 
 

Ref:   (a) DoDI 6040.44 

             (b) PDBR ltr dtd 8 Jan 13 
 

    I have reviewed subject case pursuant to reference (a) and non-concur with the majority 
recommendation of the Physical Disability Board of Review as set forth in reference (b).  I do, 
however, concur with the minority voting member, for the reasons cited in his opinion, that Ms. 
XXXXXX condition warranted a 20 percent disability rating at the time of her separation.  
Therefore, Ms. XXXXXXX naval records will be corrected to reflect an increase in disability rating 
from 10 percent to 20 percent effective the date of her discharge. 

 
 
 
 
 

 
 
 
 
 

 
 
 
 
 

 
 
 
 
 

 
 
 
 

  
  Principal Deputy 
  Assistant Secretary of the Navy  
     (Manpower & Reserve Affairs) 

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