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AF | PDBR | CY2013 | PD-2013-01532
Original file (PD-2013-01532.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX          CASE: PD-2013-01532
BRANCH OF SERVICE: ARMY           BOARD DATE: 20140522
SEPARATION DATE: 20040930


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Specialist/E-4 (92Y10/Unit Level Logistics Specialist) medically separated for fibromyalgia syndrome, with diffuse pain and sleep disturbance, 16/18 tender points and continuous medication required. The 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 profile and referred for a Medical Evaluation Board (MEB). In January 2004, the MEB forwarded fibromyalgia to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB at that time. Also in January 2004, the CI first presented to mental health (MH) for issues causing stress. In February 2004, the Informal PEB (IPEB) adjudicated the fibromyalgia condition as unfitting, rated 10%. The CI initially concurred but then appealed to the Formal PEB (FPEB). In March 2003, the CI was diagnosed with major depressive disorder (MDD), single episode without psychotic features. In April 2004, a new MEB forwarded the fibromyalgia condition and MDD conditions to the FPEB for adjudication. The FPEB affirmed the earlier IPEB’s rating of 10% for fibromyalgia and an associated memorandum explained that the newly diagnosed depression was considered to be part of the fibromyalgia and not separately ratable. The CI submitted a rebuttal, which was considered, but the PEB found no change to the original findings was warranted and the CI was separated.


CI CONTENTION: “The Board did not look at my depression, cervical strain. I also do not believe at the time, the understood the severity of Fibromyalgia. This is why I also appealed to the Board in person.”


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; the depression condition which was determined to be part of the unfitting condition by the PEB is also addressed below. The requested cervical strain condition was not separately identified by the PEB, and thus is not 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 Military Records.



 RATING COMPARISON :

Service FPEB – Dated 20040423
 VA - (Exam ~ 4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Fibromyalgia Syndrome, w/ Diffuse Pain & Sleep Disturbance, 16/18 Tender Points, & Continuous Medication Required 5025 10% Fibromyalgia 5025 10% 20050204
Major Depressive Disorder, Single Episode Not Rated by PEB Dysthymic Disorder 9433 10% *
No Additional MEB/PEB Entries
 Mechanical Low Back Pain 5237 10% 20050204
Migraine Headaches 8100 0% 20050204
Other x 12 20050204
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 50414 (most proximate to date of separation [ DOS ] ).
* CI had two MH C&P Exams close to separation, one on 20041223, and another on 20050127.


ANALYSIS SUMMARY: The Board acknowledges the CI's contention suggesting that ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected by the VA). While the Disability Evaluation System considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.

Fibromyalgia Condition. At the time of the narrative summary (NARSUM) in November 2003 and initial rheumatology consult in August 2003 (10 and 13 months prior to separation, respectively), the CI’s symptoms had been present for more than a year (since basic training). These symptoms included feeling achy all over with generalized myalgias and fatigue, poor sleep, pain in all joints and entire spine and intermittent headaches occurring 2-3 times per week. The NARSUM documented various medication trials with sleep enhancers and muscle relaxants without significant improvement. She endorsed current symptoms of chronic fatigue, decreased energy as well as generalized pain; all made worse with walking. At the initial rheumatology consultation, the CI endorsed painful symptoms within the entire spine without evidence of joint swelling. Both the MEB examiner and rheumatologist noted normal examinations with the exception of 16 of 18 tender point distributions diagnostic for fibromyalgia. Imaging studies were not diagnostic for a specific pathology.

The CI also exhibited signs and symptoms consistent with depression early in 2004. She had three behavioral health (BH) visits from January through March 2004, citing stressors of marital discord, work issues, family relationships and an incident of a childhood sexual abuse. A BH staff member stated that the CI’s “…low self-esteem and unresolved issues from childhood was the major issue.” She was diagnosed with MDD, single episode, without psychotic features manifested by poor energy, poor concentration, feelings of guilt, decreased interest in activities and depressed mood. “Social stressors appeared to play a role in her depressive symptoms.” Her Global Assessment of Functioning (GAF) was 45, connoting near “serious” impairment. Impairment for further military duty and social industrial adaptability were described as “marked” and “definite,” respectively. The commander’s statement noted that the CI was a good soldier, but her physical condition prevented her from performing the basic soldiering skills such as physical fitness. The CI’s latest permanent profile listed MDD, fibromyalgia and upper/lower back pain sciatica with a P3L3H3S3 profile under the P-U-L-H-E-S classification system. A later temporary profile dated 30 May 2004 restricted her to an 8-hour work day that beginning at 0900 as to accommodate her sleep issues.

There were two VA Compensation and Pension (C&P) MH evaluations approximately 5 weeks apart on 23 December 2004 and 27 January 2005 each with an Axis I depressive component diagnosis with varied severity noted as MDD GAF of 55, and dysthymia GAF of 60, respectively. Additionally, a general C&P examination on 4 February 2005 (4 months after separation), the CI endorsed painful symptoms only when running (relief with rest and Motrin), having no problems with day to day activities, and that “she has no muscle pain” rather, only fatigue. The examiner documented a detailed physical examination that included a normal gait and posture, normal motor and sensory functions, and normal range-of-motion with no abnormalities in any joints. “It is noted during the examination the [CI] has no tender spots upon palpation consistent with fibromyalgia.” Despite the examination findings, fibromyalgia remained among the list of multiple diagnoses.

The Board directs attention to its rating recommendation based on the above evidence. The most critical element of the Board’s decision in reaching a fair and accurate rating recommendation IAW VASRD §4.71a in this case is an assessment of her frequency of symptoms. Of significant importance in this case was the close temporal alignment of the examination evidence with the date of separation, which must remain as the Board’s definitive benchmark in its recommendations. There was a disparity between pre- and post-service exams with implications for the Board's rating recommendation. The Board deliberated the probative value between the NARSUM, service treatment record, rheumatology follow-up and the C&P examination. The two military examinations were consistent in both subjective presentation and physical findings to include the same number of tender points; whereas the VA examination performed 4 months after separation was normal and absent tender points, coupled with a benign subjective history/complaint. Board member consensus was that the overall probative value be considered equal between the rheumatology exam for its specialty consultation and temporal alignment with separation and the VA exam for its detailed objectivity and almost equidistant time proximity. Board members agreed that the historical evidence did reveal the continuous frequent changes in her use of medication especially in an attempt to regulate her sleep pattern secondarily affected by her primary fibromyalgia certainly supported the PEB’s 10% rating. The Board then deliberated if the fibromyalgia condition met either the 20% or 40% criteria level IAW VASRD code 5025. The fibromyalgia rating levels are 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 1/3 of the time; a 40% rating applies when symptoms are constant, or nearly so, and refractory to treatment. Members agreed that the 40% (refractory to treatment) was not supported due to the CI’s significant improvement and absent tender points at her VA examination. Referencing the 20% rating level, the Board acknowledged evidence possibly indicating “episodic” symptomatology, but the Board majority agreed that the exacerbation precipitant factors, as well as symptom time duration, did not support the 20% rating level. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the fibromyalgia syndrome, with diffuse pain and sleep disturbance condition.

Contended Depression Condition. The second MEB’s additional diagnosis of MDD was determined by the PEB to be part of the primary unfitting fibromyalgia condition. 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 specify whether or not the component symptoms which it elaborates under code 5025 may be separately rated, although §4.14 (avoidance of pyramiding) makes it clear that the evaluation (rating) of the same manifestation of disease or injury under different diagnoses (rating criteria) are to be avoided. The Board must also consider that to recommend separate ratings in this case, it must determine that both conditions are separately unfitting in and of themselves, apart from the other.
Both the MEB and VA psychiatrists emphasized that the CI’s precipitating stressors for depression were overwhelmingly from marital discord, occupational issues, family relationships, and poor coping skills. One examiner indicated that low self-esteem and unresolved issues from childhood were major factors (if not the cause for) her depression. Board members questioned the basis for the “single episode” designation of the MDD diagnosis because the BH providers noted a “variety” of stressors causing or exacerbating her depression at various times. Although the PEB subsumed depression as part of the CI’s fibromyalgia, Board members extensively deliberated if the MDD was a separately unfitting and ratable condition. The well-established principle for fitness determinations is that they are performance-based. Neither of the psychiatric examiners noted serious symptoms such as incapacitating fatigue or cognitive symptoms which could be directly correlated with performance. The commander’s statement elaborated only physical impairments. The Board majority found separating depression from the fibromyalgia syndrome with diffuse pain and sleep disturbance quite difficult and agreed that the MDD was not separately unfitting. After due deliberation, the Board majority agreed that there was not a preponderance of the evidence favoring a recommendation for a separate §4.130 psychiatric rating in this case. Therefore, 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 fibromyalgia syndrome, with diffuse pain and sleep disturbance condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication. The single voter of dissent did not elect to submit a minority opinion. In the matter of the contended depression condition, the Board majority agreed that it cannot recommend it for additional disability rating. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.
The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130918, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record







XXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXX, AR20150000985 (PD201301532)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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