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AF | PDBR | CY2013 | PD-2013-01382
Original file (PD-2013-01382.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01382
BRANCH OF SERVICE: Army  BOARD DATE: 20150116
SEPARATION DATE: 20041128


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (27D/Paralegal) medically separated for fibromyalgia (FM) syndrome. This condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent P3/U3/L3/S1 profile and referred for a Medical Evaluation Board (MEB). Chronic right hip pain status post labral tear and FM, characterized as not meeting retention standards, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition. The Informal PEB adjudicated “FM syndrome with diffuse pain to include right hip, functional bowel symptoms and depression” as unfitting, rated 10% with application of the VA Schedule for Rating Disabilities (VASRD). The mental health (MH) condition s were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: The CI elaborated no specific contention in her application.


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 syndrome (with diffuse pain, right hip pain, bowel symptoms, depression) are addressed below. No other conditions are within the defined purview of the Board. Any condition outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20040903
 VA* – (~6 mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Fibromyalgia Syndrome with diffuse Pain to include Right Hip, Functional Bowel Symptoms and Depression 5025 10% Fibromyalgia 5025 40% 20050525
Right Hip Strain s/p Labral Repair 5024-5252 10% 20050525
Depression, Not Otherwise Specified (NOS); Personality Disorder Not Unfitting Major Depressive Disorder 9434 30% 20050531
Other x 0 (Not in Scope)
 Other x 6
Combined: 10%
 Combined: 70%
*Derived from VA Rating Decision (VARD) dated 20050718 (most proximate to date of separation (DOS))


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus 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 ratable severity at separation.

The Army PEB combined diffused pain to hip pain, functional bowel symptoms and depression with the FM, into a single unfitting condition. These bundled unfitting conditions were coded 5025 and rated at 10%. In contrast, the VA rated FM and the right hip pain separately. The Board evaluated whether or not it was appropriate for the FM, hip and bowel conditions to be “bundled” together. 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. Please note, the associated not-unfitting MH conditions will be addressed separately.

Based on the evidence, the hip injury was profiled and implicated by the commander’s performance statement. Additionally, the Board determined that the hip injury and surgery occurred prior to the CI’s FM diagnosis, which occurred after she entered the MEB process. After due deliberation, the Board agreed that the evidence supports a conclusion, that the chronic right hip pain, and the FM syndrome are reasonably justified as separately unfitting; therefore, each condition would have rendered the CI unable to perform her required military duties. Accordingly, the Board recommends a separate disability rating for the right hip pain and FM syndrome conditions.

The Board then discussed whether the functional bowel symptoms should be unbundled from the FM syndrome. Functional bowel symptoms were not profiled or implicated by the commander’s performance statement. After due deliberation, the Board determined that the evidence does not support a conclusion, that the functional bowel symptoms was reasonably justified as separately unfitting; and would not have rendered the CI unable to perform her required military duties. Accordingly, the Board does not recommend a separate disability rating for the functional bowel symptoms.

Right Hip Pain. This CI has had a long history of right hip pain. She injured her hip in 2000 by stepping in a hole while running. She was treated with physical therapy, medications, and rest without significant improvement. In August 2002, magnetic resonance imaging suggested a possible tear of the intra-articular labrum. In November 2002, she underwent arthroscopic surgery on her right hip. This caused some improvement in her symptoms, but then the hip pain recurred. On 5 January 2004, she was seen for follow-up by orthopedics. The examiner wrote, “…We have nothing else to offer her.” Due to the chronic, unremitting nature of her right hip pain, an MEB was initiated. At the MEB physical examination (PE) dated 17 February 2004, her right hip range-of-motion (ROM) was measured and is summarized in the chart below.

The CI was medically separated in November 2004. Six months later, on 25 May 2005, she had a VA Compensation and Pension (C&P) exam. She reported pain, stiffness, and popping of the right hip, which occurred constantly. On PE, the CI was in no acute distress. Gait and posture were normal. The right hip was tender to palpation, and there was pain with motion. Right hip ROM is summarized in the chart below.
Right Hip (Thigh) ROM
(Degrees)		 MEB ~ 9 mos. Pre-Sep
(20040217)
 VA C&P ~ 6 mos . Post-Sep
(20050525)
Flexion (125 normal) 90 1 00
Extension (not recorded) 30
External Rotation (not recorded) 60
Abduction (45) 50 45
Adduction (not recorded) 25
Comment painful motion Some pain with motion
§4.71a Rating 10 % * 10 % *
*10% based on VASRD §4.40 (functional loss), §4.45 (joints), and §4.59 (p ainful motion)

The Board carefully reviewed all available evidence, and directs attention to its rating recommendation. The painful right hip condition was essentially non-compensable based on the VASRD §4.71a diagnostic codes for the hip and thigh (5250 through 5255). However; IAW VASRD §4.40, §4.45, and §4.59, when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled. A 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint. There was no path to a rating higher than 10% for the right hip since there was insufficient evidence of a significantly disabling hip abnormality which would justify a higher rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 10% for the chronic right hip pain, coded 5299-5252 IAW VASRD §4.40, §4.45, and §4.59.

Fibromyalgia (FM). In addition to right hip pain, the CI also developed pain in other parts of her body. During the MEB PE on 17 February 2004, intended for her right hip pain, approximately 9 months prior to separation, the CI reported aching in her knees, back, shoulders, arms, wrists, neck, shins, ankles and feet. She also reported symptoms of fatigue, weakness, irritability, headaches, bowel complaints and feelings of depression. The examining physician diagnosed her with fibromyalgia and consult to rheumatology.

On 29 April 2004, approximately 6 months prior to separation, she saw a rheumatologist, and the examiner’s assessment was a history of depression and chronic pain disorder consistent with a diagnosis of FM. She was started on medication and there was some initial improvement in her symptoms.

On 29 July 2004, approximately 4 months prior to separation, the CI was seen by a second rheumatologist. She reported joint pain, fatigue, mild headaches, bowel complaints, and depression. On PE, there was full ROM around all joints, with no synovitis. She had 18/18 FM tender points. The upper body tender points were more pronounced, especially in the cervical region. The examiner prescribed Tramadol (a pain medication), and advised the CI to follow-up with psychology and with rheumatology (or primary care). There is no record of evidence for any subsequent FM exam prior to separation.

At the 25 May 2005 C&P exam approximately 6 months after separation, she reported easy fatigability, headaches, stiffness, anxiety, depression, and paresthesia. She said that her FM symptoms occurred constantly, which meant more than 2/3 of the time per year. The symptoms were precipitated by the environmental stress of a drastic change in temperature. Her ability to perform daily functions during flare-ups was reported to be minimal. On PE, gait and posture were normal. Thirteen FM tender points were identified.

The Board carefully reviewed all available evidence, and directs attention to its rating recommendation. In the VASRD §4.71a, FM 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 primarily 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 Board deliberated on the frequency of FM symptoms to reach a fair and accurate recommendation in this case. The Board determined the 29 July 2004 second rheumatologist exam, approximately 4 months prior to separation, and corroborating the 25 May 2005 C&P exam, approximately 6 months after separation, reflected FM symptoms which were “constant, or nearly so, and refractory to therapy” at the time of separation. At these exams, the CI’s symptoms were described as constant, which meant more than 2/3 of the time per year. She reported easy fatigability, headaches, stiffness, anxiety, depression and paresthesia; and each examiner identified 13 to 18 FM tender points. After due deliberation, considering all of the evidence, and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation disability rating of 40% for the FM condition.

Mental Health (MH) Condition. The PEB adjudicated depression NOS and personality disorder NOS as a not unfitting condition. The Board’s main charge with respect to this MH condition is to assess the appropriateness of the PEB’s fitness adjudication. 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 reviewed by the action officer and considered by the Board.

It was noted that the MH conditions were not implicated in the commander’s statement dated 17 May 2004. The Board determined that the CI was only profile for non-MH conditions, and was never profiled for an MH condition. On 1 September 2004 approximately 3 months prior to separation an MH professional wrote “Impairment for military duty: none. Profile: S-1.”

The record documented one psychiatric hospitalization for depression and homicidal ideations four months prior to separation and there were no other recorded hospitalizations or visits to the emergency room. The record documented good response to medication and noted the last recorded mental health treatment occurred in August 2004 around the time of discharge from the hospital. There were no prior MEB service treatment records in evidence to indicate that her MH conditions significantly interfered with satisfactory duty performance. After due deliberation, and 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 MH conditions.


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 chronic right hip condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5252 IAW VASRD §4.40, §4.45, and §4.59. 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 MH conditions (depression NOS, personality disorder NOS), the Board unanimously recommends no change in the PEB’s fitness determination. There were no other conditions within the Board’s scope of review.


RECOMMENDATION: The Board, therefore, 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 Syndrome 5025 40%
Chronic Right Hip Pain 5299-5252 10%
COMBINED 50%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130912, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review
SAMR-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 XXXXXXXXXXXXXXX, AR20150009909 (PD201301382)


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 50% 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 the date of 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 50% 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              XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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