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AF | PDBR | CY2013 | PD-2013-02050
Original file (PD-2013-02050.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02050    
BRANCH OF SERVICE: Army  BOARD DATE: 20150515
SEPARATION DATE: 20041012                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-6 (Counterintelligence Agent) medically separated for fibromyalgia. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3U2 profile and referred for a Medical Evaluation Board (MEB). The fibromyalgia condition, characterized as “post traumatic fibromyalgia” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions. The Informal PEB (IPEB) adjudicated “post traumatic fibromyalgia” as unfitting, rated 20%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting . The CI waived a formal hearing but submitted an appeal which the IPEB considered without change. In response to a rebuttal, the US Army Physical Disability Agency (USPDA) affirmed the IPEB findings and recommendations. A revised PEB provided administrative corrections to the characterization of the CI’s injury and he was medically separated.


CI CONTENTION: “XXXXXXXXXX was medically separated due to post traumatic fibromyalgia with a total disability rating of merely 20%, and was therefore found not to be eligible for retirement. At the very least, this rating should have been much greater in consideration of the severity of his fibromyalgia, which was severe and constant, and has not improved with continuous treatment and therapy to date. Additionally, other medical conditions should have been concluded to be "disqualifying" for XXXXXXXXXX, including degenerative disc disease of the cervical spine and degnerative disc disease of the lumbar spine, as well as traumatic brain injury (status post head trauma). Therefore, XXXXXXXXXX status of medical separation should be reclassified as a "disability retirement". (see attached letter from Attorney Raymond dated 03/17/2004).”

The attached 6-page statement to his application was reviewed by the Board and considered in its recommendations.


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Service Revised IPEB – Dated 20041021
 VA - (6 Mo. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Post Traumatic Fibromyalgia 5025 20% Fibromyalgia 5025 40% 20040517
Neck Pain due to Degenerative Disc Disease Not Unfitting Degenerative Arthritis/ Degenerative Disc Disease of the Cervical Spine 5237-5010 20% 20040517
Back Pain due to Lumbar Degenerative Joint Disease Not Unfitting Lumbar Spine 5237 NSC 20040517
Other x 1 (Not in Scope)
 Other x 5 (Not in Scope) 20040517
RATING: 20%
 COMBINED: 80%
Derived from VA Rating Decision (VA RD ) dated 20050413 (6 mo. Post-Separation)


ANALYSIS SUMMARY:

Fibromyalgia Condition. The service treatment record (STR) documented that the CI was involved in a motor vehicle accident (MVA) on 25 May 2003 on post in Iraq. The CI was the front seat passenger in a Humvee which forced off the road by an Iraqi driving a 10-ton gravel truck. The CI was wearing his Kevlar helmet and stuck the windshield with his head. The 25 May 2003 Combat Support Hospital emergency care document recorded a chief complaint of “involved in car accident. Pt head hit the windshield.” No imaging studies were performed and the CI was discharged with the nonsteroidal anti-inflammatory drug (NSAID) Motrin. He was directed to return for pain, visual changes, or any concerns. In the 15 June 2003 medical encounter, the CI complained of 2months of worsening low back pain (LBP). The mechanism of injury was listed as jumping down out of 2 ½ ton trucks and Humvees. The diagnoses listed sacroiliac joint pain and acromioclavicular joint tendonitis. At the 12 July 2003 physical therapy (PT) encounter the CI complained of LBP for 2-3 months. The pain occasionally radiated to the hips, lateral thighs, and medial knees. He complained of additional right shoulder pain and bilateral lateral wrist/thumb pain. The CI reported decreasing symptoms since having been profiled and not doing missions off compound. At the 25 July 2003 PT follow-up, the CI reported symptom onset followed the MVA. He complained of headaches, neck pain, low back pain and bilateral hip, hand, and shoulder pain (R>L). The CI reported the prescribed NSAIDs, profile, and exercise program did not provide significant relief. It documented “Questioned therapist if possibly he had ‘fibromyalgia’.” The 2 August 2003 medical encounter documented chronic LBP, shoulder pain (R>L), and hand numbness and tingling. Findings recorded from cervical and lumbosacral spine X-rays showed degenerative joint disease with no fractures, dislocations, or spondylolisthesis (forward displacement of vertebra after a fracture). A 20 August 2003 cervical spine MRI showed multilevel cervical disc degenerative changes. At the 3 December 2003 MEB consultation by Physical Medicine and Rehabilitation, the CI stated "My entire body hurts." He reported many physical changes following his MVA to include nausea, headaches, visual changes, and pain in the neck, back, hips, shoulders, and hands. He complained of chronic 5-7/10 pain with exacerbations to 9/10 related to increased activity (climbing stairs, running, and prolonged walking). He denied radicular pain, weakness, and bladder, bowel, or sexual dysfunction. Pain was not adequately controlled with NSAIDs (Motrin, Celebrex), a narcotic-like analgesic (Ultram), a narcotic (Percocet), or a tricyclic antidepressant (Elavil). The diagnosis listed probable fibromyalgia. A 4 December 2003 nuclear medicine bone scan suggested degenerative changes in weight-bearing joints and a possible old/healing left rib fracture.

The history recorded in the 20 January 2004 rheumatology consultation documented “While on active duty in Iraq, in May of 2003, his military vehicle was ambushed by enemy fire and, in the process, his vehicle lost control and he was thrown forward and hit the windshield head-on and went through the windshield and landed on the floor on his head. He lost consciousness for a short period of time. He was taken to a hospital for preliminary evaluation.” A few days later, he developed headaches, neck, arm, hip, knee, and foot pain. The pattern of pain was one of generalized, constant, severe pain that was worse in the neck, back, hips, and hands. Pain was decreased with walking, slightly decreased with NSAIDs, and increased with PT. Associated symptoms were fatigue (sometimes cannot get out of bed), increased bowel frequency, nausea, shortness of breath, blurry vision, impaired short-term memory, and word finding. The physical exam documented extremely severe pain (10/10) with pressure on the spinal processes of the cervical, thoracic, and lumbar spine. There was severe pain in the cervical spine with rotation (decreased to right 30 degrees and left 25 degrees). The CI had severe pain with pressure of the greater trochanter and gluteal areas. The neurological exam was entirely normal. The CI had 18/18 tender points at the 18 sites used for fibromyalgia diagnosis. The clinical impression listed post traumatic fibromyalgia.

The 19 February 2004 narrative summary (NARSUM) reflected findings from an 18 December 2003 interview and physical exam. It documented “Patient states that his problem began on 25 May 03, he was in a motor vehicle accident in a humvee in Iraq. He hit the windshield with his head. He was wearing Kevlar. He had a momentary loss of consciousness and came to in a vehicle. He was taken to the Combat Support Hospital in Iraq and treated. There were no X-rays done.” The CI returned to duty until worsening neck and back pain symptoms became unbearable. He woke up one day and everything hurt. The CI failed conservative therapy (activity modification, exercise, PT, and medication). The physical exam documented “All movement and change of position was carried out with continuous groaning and grunting.” The CI complained of pain with ambulation, but was able to heel walk, toe walk, and squat. He was not able to duck walk secondary to discomfort. Neck range-of-motion (ROM) was decreased secondary to pain. The spine was very tender to palpation from the cervical to the lumbosacral spine. Midline and paraspinous muscles were diffusely tender. Upper extremity strength was 3/5 due to pain with no atrophy or asymmetry. The lower extremities showed no swelling or effusions. There was negative sciatic notch tenderness and the straight leg raise test was negative. The remainder of the physical exam, and sensory exam, were normal. The diagnoses listed post traumatic fibromyalgia (disqualifying) and neck and lumbar pain due to degenerative disc disease (not disqualifying).

The VA Compensation and Pension (C&P) exam completed 6 months prior to separation by orthopedic surgery recounted the history of the MVA and progressive symptom manifestation. It documented the CI “continues to complain of pain in the … right clavicle and both shoulders … that he walks between eight and ten miles a day … feels better when he walks. He states that the morning is the worst time … is very stiff and sore.” The CI reported he slept better taking Elavil. The physical exam showed no atrophy or sensory disturbances in the upper extremities. Reflexes were symmetrical in both upper and lower extremities. The CI complained of pain in the shoulders, cervical spine, and lumbar spine on mobilization. The cervical spine exam noted no muscle spasm but revealed tenderness on both sides. The lumbar spine exam noted no muscle spasm or scoliosis. The CI complained of tenderness on simply stroking the skin on the posterior aspect of the back and discomfort on superficial palpation. The CI complained of pain on ROM testing and allowed no further motion. The examiner recorded no evidence of arthritic abnormalities of the peripheral joints and only minor age-related degenerative arthritis of the lumbar spine. The examiner listed “DIAGNOSES: 1. Post-concussive pain syndrome with as likely as not a component of conversion hysteria with subjective symptoms that greatly exceed the existing pathology and objective findings. 2. There is no evidence of arthritic abnormalities of the peripheral joints, including knees and hands . There is only minor evidence of degenerative arthritis of the lumbar spine which appears to be age-related. 3. Degenerative arthritis and degenerative disc disease of the cervical spine without herniation or radiculopathy. 4. Anxiety without overt depression associated with irritable bowel syndrome. 5. The issue of fibromyalgia is a subjective one, with no discernible pathology or objective clinical criteria.”
The Board direct ed attention to its rating recommendation based on the above evidence. The description of the initial injury provided at different times is inconsistent with contemporaneous r ecords of the same event. The B oard could not reconcile these inconsistencies and assigned a higher probative value to descriptions documented proximate to the time of the event. The PEB, 7 months prior to separation, rated the fibromyalgia condition at 20% (VA code 5025; fibromyalgia). The VA rating decision (VARD), 6 months after separation, rated the fibromyalgia (also claimed as irritable bowel) condition at 4 0% ( 5025 ). The VARD cited generalized pain, generalized hypersensitivity that did not follow any dermatomal distribution, and multiple symmetric trigger/tender points . The CI was evaluated by a rheumatologist and met the diagnostic criteria put forth by the American College of Rheumatology. The rheumatology consultation (diagnostic criteria: diagnosis by a rheumatologist) documented generalized, constant, severe pain that was worse in the back, neck, hips, and hands (diagnostic criteria: widespread pain; present for at least 3 months; axial skeletal and peripheral pain). The physical exam documented 18/18 tender points at the 18 sites used for fibromyalgia diagnosis (diagnostic criteria: pain on palpation at 11 of 18 tender point sites). The VASRD rating guidance for fibromyalgia (5025) considers the impairment from 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, many of which were reported in the CI. A rating of 20% requires that symptoms of fibromyalgia 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. Despite the report of persistent pain, the Board noted that the sleep disturbance, an integral feature of fibromyalgia, was improved by medication. Although the STR indicated suboptimal response to medication trials, there is insufficient evidence that the condition was refractory to medications with the limited medication exposure. The criteria for a higher rating of 40% required evidence that symptoms were constant or nearly constant and were refractory to treatment. The record at hand does support that the core symptoms of fibromyalgia were constant or nearly constant. The Board majority agreed the record in evidence did support the higher rating of 40%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the fibromyalgia condition.

Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were neck and back pain conditions. 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. While these conditions were profiled and implicated in the commander’s statement, they were not considered disqualifying by the MEB and met retention standards per the PEB. Both were reviewed by the action officer and considered by the Board. Fibromyalgia is a syndrome of chronic and widespread musculoskeletal pain. It is associated with multiple tender or "trigger" points, and often accompanied by multiple somatic complaints. It is clear that the neck and back pain conditions with their pain limited ROMs, were elements of the constellation of subjective complaints. These specific conditions were subsumed as components contributing to the general fibromyalagia diagnosis. Members agreed that these were not, in themselves, separate conditions which could be reasonably justified as separately unfitting; nor would separate ratings be achievable without violation of VASRD §4.14 (avoidance of pyramiding).


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 by majority vote recommends a disability rating of 40% coded 5025 IAW VASRD §4.71a, the single voter for dissent submitted the appended minority opinion. In the matter of the contended neck and back pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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 his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Fibromyalgia 5025 40%
COMBINED 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131031, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record





XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review





 invalid font number 31502 MINORITY OPINION

The Board majority recommendation for a 40% disability rating for the fibromyalgia condition is not justified by the facts in evidence. In accordance with VASRD §4.71a., this rating 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…that are constant, or nearly so, and refractory to therapy.” While the CI had persistent pain, his fibromyalgia did respond to certain medications and exercise and, therefore, was not “refractory.” This opinion is supported by the following facts:

At the rheumatology consult in January 2004, the examiner stated that the CI “was put on Tramadol and Amitriptyline and these drugs have been helpful in reducing some of the discomfort. He also took Percocet, but became very nauseous. The drug was discontinued, though it helped with the pain.” The rheumatologist also noted that, “his sleep pattern is near normal with a treatment of Amitriptyline and Tramadol.” In addition to these medications, paraffin baths were reported to be “beneficial” for hand pain and walking helped decrease overall pain with the CI able to walk for about 45 minutes and up to five miles daily. The rheumatologist recommended that “in view of the fact that exercise appears to help symptoms, he was encouraged to continue with this program of exercise...” During the MEB process leading up to the rheumatology visit, examiners also documented the effect of medication use and that the CI “gets some help from his Tramadol” (NARSUM) and that his medications “make the pain slightly better” (PM&R consult). The CI also stated that “the more I move, the better it is” and it is “mentally better for me also.” By the C&P exam in May 2004, the CI said he slept better since being prescribed Amitriptyline and reported that he was walking between 8-10 miles a day and that “he feels better when he walks.” At a VA psychiatric exam on 5 October 2004 (about a week before separation), the examiner made the following statement about his patient: “He returned to the US (Ft. Bragg) in 11/03, and with the help of his final, hard-won analgesic regimen, was able to return home in 3/04. With the aid of tramadol 100 mg QID/amitriptyline 50 mg HS regimen, he has been able to walk 8-10 mi./day. He will tolerate no change or threat (such as drug interaction) to this regimen.” While the VA increased the fibromyalgia rating to 40% based upon a 7 February 2005 C&P exam (not in evidence), the evidence section of the VA decision did not mention any medication use; however, VA treatment records over a year later still showed active prescriptions for pain and anti-depressant medications (Tramadol, Propoxyphene, Citalopram).

Both Service and VA treatment records showed that the CI did get some pain relief his from prescribed medications and a moderate to vigorous exercise regimen. Although his fibromyalgia persisted, it was not unresponsive, or refractory, to therapy since he was able to sleep better and walk up to 8-10 miles every day. The minority recognizes the pain brought on by the CI’s condition. However, neither the evidence of record nor the information in the majority report justifies reasonable doubt that the PEB made an accurate and fair rating based upon the VASRD rules in effect and the medical condition at the time of separation.

RECOMMENDATION: The minority voter recommends therefore, that there be no re-characterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION VASRD CODE RATING
Post Traumatic Fibromyalgia 5025 20%
COMBINED 20%



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 , AR20150013254 (PD201302050)


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 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 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 optio







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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