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AF | PDBR | CY2013 | PD2013 00821
Original file (PD2013 00821.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX                  CASE: PD1300821
BRANCH OF SERVICE: ARMY           BOARD DATE: 20140422
DATE OF PLACEMENT ON TDRL: 20011213
DATE OF TDRL EXIT: 20030403


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (11B3H/Infantryman) medically separated for chronic pain, multifactorial in nature, manifested by diffuse arthralgias and myalgias involving the shoulders, arms, hands, knees and feet, neck and lower back and to include obstructive sleep apnea (OSA). The CI had 16 years of active duty, having served in Desert Shield and Desert Storm with more than 100 airborne jumps to his credit at the time of entry into the Disability Evaluation System (DES) in early 2001. The CI had multiple complaints and symptoms, most of which concerned chronic pain. The Medical Evaluation Board (MEB) narrative summary (NARSUM) listed 15 diagnoses and addendums were submitted by psychiatry, podiatry, orthopedics, neurology and physical therapy. The chronic pain, multifactorial in nature, manifested by diffuse arthralgias and myalgias (which included eight of the 14 conditions forwarded by the MEB to the Physical Evaluation Board [PEB]) 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 P4/U3/L4/S3 profile and referred for a MEB. As noted, 14 conditions were forwarded to the PEB IAW AR 40-501. The Informal PEB (IPEB) adjudicated chronic pain, multifactorial in nature, manifested by diffuse arthralgias and myalgias involving the shoulders, arms, hands, knees and feet, neck and lower back, also including OSA, as unfitting, rated 40% and placed the CI on the Temporary Disability Retired List (TDRL). T he remaining conditions were considered by the PEB and found to be not unfitting and therefore not ratable. The CI did not appeal. In 2002, the CI had a periodic TDRL reevaluation and it was determined that his condition had neither improved nor worsened; he was still unfit but stable. It was also noted that he was refusing all medications, and his condition was adjudicated IAW DODI 1332.39 para 6.1.3 which provides for a reduced rating when there is evidence of failure to comply with prescribed treatment. The IPEB recommended he be separated with a 0% rating. The CI non-concurred and requested a Formal PEB (FPEB). The PEB was subsequently discontinued to obtain a further medical evaluation, after which the IPEB again affirmed its findings. The CI again non-concurred and the FPEB, based on a review of the evidence, raised the CI’s final disability rating to 20% and the CI was separated.


CI CONTENTION: “The multiple disabling conditions were and still are strenuously much worse than the final Disability Rating justifies. Board was conducted with little or no communication with me. Dosis of oxycontin caused severe problems and was being removed out of my system during final Decision and Board consideration while I was in the Temporary Disabled Retirement List (TDRL). Was discharged from U.S. Army without any follow up for oxycontin. Civilian doctor will not prescribed this medication due to “deadly” side effects discovered at the time, which put me in a chronic and long withdraws condition. Board used the excuse of me not being following medication therapy (oxycontin) and did not provide time for me to gather medical intervention records from civilian doctor showing Army neglecting to provide continuation of medication therapy (oxycontin) from discharge to civilian medical care (not even Veterans Affairs would prescribe oxycontin at the time). Decision was made hastily and without having proper documentation showing that it was not my fault that medication therapy was stopped (oxycontin), that I was discharged without further medical follow up and placed on TDRL, that oxycontin was refused by doctors and that at the time, I was being taken out of oxycontin. At the time of placement on the TDRL , my does of oxycontin prescribed by Army doctors was 80 mg 2 times a day = 160 mg with no continuation for prescription once discharged. I was left to suffer the horrible ordeal of withdraws once medication ran out.”


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. In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of his mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process. The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR. The rating for the unfitting chronic pain, multifactorial in nature, manifested by diffuse arthralgias and myalgias condition is addressed below. The contended not unfitting situational depression and adjustment disorder condition is also reviewed below; in accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed or eliminated during the DES process, the applicant’s case file was reviewed regarding diagnosis change or elimination, fitness determination, and rating of any unfitting mental health diagnoses in accordance with the VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130. No additional conditions are 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 :

Final Service PEB - 20030226
 VA (1 Mo. After TDRL Entry) - Effective 20011214
On TDRL - 20011213
 Code TDRL Rating Condition Code Rating Exam
Condition
 Entry Exit
Chronic Pain, Multifactorial in Nature, Manifested by Diffuse Arthralgias & Myalgias involving the Shoulders, Arms, Hands, Knees & Feet, Neck & Lower Back, & includes Obstructive Sleep Apnea 5099-5025 40% 20% Chronic Pain Syndrome 5099-5025 NSC 20011025
S/ P Laminectomy w/ Fusion at L4-5 & Radiculopathy to
B/L Lower Extremities		 5010 - 5293 40% 20011025
Degenerative Joint Disease (DJD) of the Left Shoulder 5010-5203 10% 20011025
DJD of the Right Shoulder 5010-5203 10% 20011025
Cervical Spine Strain 5290 10% 20011025
Right Foot Degenerative Changes w/ Plantar Fasciitis 5010-5279 10% 20011025
DJD of the Thoracic Spine 5010-5291 10% 20011025
Left Foot Plantar Fasciitis 5299-5279 NSC 20011025
Right Ulnar Neuropathy 8599-8515 10% 20011025
Left Carpal Tunnel Syndrome 8515 NSC 20011025
Severe Obstructive Sleep Apnea 6847 50% 20011025
Situational Depression & Adjustment Disorder Not Unfitting Major Depression 9434 70% 20011106
No Additional MEB/PEB Entries
 Other x 5
Combined: 40% → 20%
 Combined: 100%
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.

ANALYSIS SUMMARY: The Board acknowledges the CI’s implied contention for ratings of his MH conditions noted above which were determined to be not unfitting by the PEB. Service 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 service disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

The PEB combined the multifactorial chronic pain and OSA conditions under a single disability rating, coded analogously to 5025 (fibromyalgia). Although this approach may comply with Service policy, the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW VASRD. If the Board judges that two or more separate ratings are warranted in such cases, it must satisfy the requirement that each “unbundled” condition is reasonably justified as separately unfitting. The Board's initial charge in this case was therefore directed at determining if the PEB's approach of combining conditions under a single rating was justified in lieu of separate ratings. If it is judged that one or more of the combined conditions satisfies the unfitting stipulation from above, separate ratings IAW the VASRD will be recommended; although, the Board may not recommend a lower combined rating than that achieved by the PEB’s approach.

Chronic Multifactorial Pain Condition. The CI reported that he injured his back in a parachuting incident in 1992, but did not present for evaluation. Ongoing pain worsened in 1996 and he sought care in 1998 for back pain associated with right lower extremity radiculopathy. It was determined that he suffered from a herniated L4-5 disc and in April 1999 he underwent discectomy and L4-5 fusion which led to resolution of right lower extremity pain. Ongoing back pain continued and in January 2000 narcotic pain medication was instituted. By early 2000, he was also complaining of chronic neck and bilateral shoulder pain. In January 2001, he was referred to a chronic pain management program to address pain in the bilateral shoulders, neck, back, both lower extremities and feet.

A podiatry MEB addendum dated 5 February 2001 noted a 2-year history of right heel pain that radiated from the bottom of the heel up through the Achilles tendon. Pain reportedly occurred with every step. The evaluation was silent regarding left foot pain. Mild tenderness of the plantar fascia and Achilles tendon was present. An X-ray showed some degenerative changes in an area of the ankle that was asymptomatic. A diagnosis of mild right plantar fasciitis and right calcaneal and Achilles pain was given. A MEB orthopedic addendum dated 20 February 2001 (10 months prior to entry on TDRL) reported a 2-3 year history of bilateral shoulder pain, right worse than left. Severity was described as “10 out of 10 pain, yet…in spite of this constant as-bad-as-it-can-get pain, things can exacerbate it such as driving, overhead activity…” Shoulder pain did not awaken him from sleep. The physical examination was remarkable for “obvious giving way during muscle strength testing” that led the examiner to conclude “I believe he overreacts.” Range-of-motion (ROM) was noted to be full, but in a very slow fashion with grimacing facial expressions throughout the entire exercise. Some maneuvers produced inconsistent reports of pain. The examiner concluded that minimal right shoulder joint arthrosis (degenerative disease) was present. At another orthopedic exam on 5 March 2001 the CI continued to complain of back pain as well as pain radiating to the both thighs. Physical examination showed inconsistent reports of pain with straight leg raise testing. Four out of five maneuvers were positive for the presence of non-physiologic pain. Lumbar X-rays were normal and the examiner diagnosed chronic lower back pain.

A multidisciplinary chronic pain management note on 9 March 2001 indicated that the CI was “happy with progress” regarding his pain. At a neurologic exam on 13 March 2001, the CI described “multiple joint pains, particularly in his hands.” Joints of the fingers, hands and wrists were all painful. The examination noted give-away weakness in the hands and some inconsistencies in sensory testing. The examiner opined that there was probably some degenerative joint disease in the lower back and possibly the neck; but that a chronic pain syndrome consistent with fibromyalgia was also present. Further orthopedic evaluation on 5 April 2001 reported the onset of bilateral hand and wrist pain in 1998. Pain was produced by any activity. Exam showed poor effort on testing of finger muscle strength and a non-anatomic distribution of sensation loss. Electrophysiologic studies confirmed mild bilateral carpal tunnel syndrome and mild bilateral ulnar neuropathy. X-rays showed no evidence of arthritis.

The NARSUM examiner on 1 May 2001 reported that most of the CI’s multiple medical problems revolved around issues of chronic pain, for which he was taking significant daily doses of narcotic medication. The examiner noted that chronic neck and bilateral shoulder pain resulted in the need for assistive devices to reach for things and pick things up. The CI also complained of upper back pain and bilateral upper extremity pain that included hands and wrists. Since his back surgery, he continued to complain of low back pain, calf and foot cramping and pain in his hips and legs that could render him unable to walk or move. A history of bilateral knee pain and bilateral foot pain was also present. The NARSUM examiner characterized the multiple pain complaints as “diffuse arthralgias and myalgias.” A prior evaluation by a rheumatologist reportedly was unable to confirm the diagnosis of fibromyalgia by strict criteria, although a myofascial pain syndrome was thought to be present. Recent multidisciplinary chronic pain management was reported by the CI to be somewhat beneficial. He was able to more easily dress himself and do things around his home. The examiner also noted complaints of non-restorative sleep despite use of a continuous positive airway pressure (CPAP) device and symptoms of depression. The CI’s duty, in an administrative capacity, was noted to be very limited; he frequently worked only a couple of hours per day before being released by supervisors. The NARSUM’s physical examination noted diffusely positive fibromyalgia tender points. The examiner, who was an Internal Medicine physician (not a rheumatologist) stated that criteria for a diagnosis of fibromyalgia were met based on American College of Rheumatolgy guidelines. In addition to that diagnosis, he also listed diagnoses of chronic pain syndrome, bilateral foot pain, bilateral shoulder pain with right shoulder arthrosis, low back pain status-post surgery and chronic bilateral knee pain with retropatellar pain syndrome. At the MEB exam on 14 May 2001 (7 months prior to entry on TDRL), the CI reported that he could not perform his duties because of pain in his upper back, lower back, shoulders, hips, legs, knees, feet, hands and neck.

At the VA Compensation and Pension (C&P) exam 6 weeks prior to TDRL entry, the CI reported that his upper back pain, neck pain, bilateral elbow pain and right wrist pain began in 1996. Bilateral shoulder pain was reportedly the result of a motor vehicle accident in 1992, while upper back pain was a consequence of road marching and infantry training. Bilateral foot pain, which began in 1991, bothered him when he walked on gravel surfaces. Bilateral knee pain was also present for several years, while bilateral cramps began after his lumbar spine surgery. He took significant daily doses of narcotic pain medication for all of the pain problems, in addition to his low back pain. Physical exam showed a steady gait. Shoulder ROM was normal bilaterally with some painful motion. Elbow, forearm and wrist ROM were normal bilaterally without pain. Cervical and thoracolumbar ROM was moderately reduced; he refused to move further due to anticipation of pain. The spine was non-tender. Knee and ankle ROM was normal and non-painful bilaterally; there was no tenderness. Both feet displayed full ROM of the digits without pain; some tenderness of the posterior right heel was present. He was able to squat fully and rise without difficulty or complaints of pain. He was also able to rise on his toes and heels without difficulty or complaints of pain.

At a TDRL re-evaluation exam on 19 August 2002 (7.5 months prior to removal from TDRL) the CI reported ongoing significant widespread pain issues. He had been weaned off of narcotic pain medication due to long-term insufficient benefit and dependency; and refused to take any medications. He continued to experience pain in the neck, bilateral shoulders, between his shoulder blades, low back, knees, right buttock and heels; there was no improvement while on TDRL. Activities caused worsening of that pain. Physical exam showed multiple areas of tenderness around the knees and shoulder and tenderness of the lumbar spine. There was some reduction in ROM of the lumbar spine, cervical spine and shoulder due to pain. The examiner, a Physical Medicine and Rehabilitation physician, stated that 17 of 18 tender points were positive. The examiner concluded that the condition “is neither getting worse nor getting better.” At a psychiatric evaluation on 3 October 2002, 6 months prior to removal from TDRL, the CI reported that he worked for one month while on TDRL, but quit because his “mind wasn’t in it.” He described himself as a “full-time homemaker” centered on the care of his two children. He “tries to exercise” but doing so causes subsequent pain and discomfort.

A rheumatology evaluation on 21 January 2003 specifically addressed the diagnosis of fibromyalgia. The examiner concluded that the CI demonstrated the presence of some of the fibromyalgia tender points, but an insufficient number to support a fibromyalgia diagnosis. It was noted that although specific joint diagnoses had been documented, such as shoulder arthrosis, retropatellar pain syndrome and cervical degenerative disease, a chronic musculoskeletal pain syndrome was nevertheless present. In an undated letter to the TDRL re-evaluation PEB the CI explained the difficult process of narcotic withdrawal he endured while on TDRL and that he would not take medications until his doctor assured him they would not adversely affect his already elevated liver enzymes. He also noted that he continued to do home exercises as previously instructed by a physical therapist.

The Board directs attention to its rating recommendation based on the above evidence. The Board first considered if the chronic multifactorial pain condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform his MOS Rating; and, accordingly a separate service rating is recommended. The MEB forwarded multiple overlapping pain conditions as potentially disqualifying. The PEB adjudicated all of the pain issues under a single analogous 5025 code (fibromyalgia). Based on a C&P exam that showed remarkably less objective evidence of widespread pain than service exams, the VA concluded each area of pain should be rated separately. Although the PEB was justified in rating under the 5025 code based on the NARSUM examiner’s diagnosis of fibromyalgia, two rheumatologists (prior to the NARSUM and at TDRL re-evaluation) did not confirm that diagnosis. However, they each agreed that a myofascial or musculoskeletal pain syndrome was present, for which analogous 5025 coding is still a sensible approach. Given the dramatic presentation of widespread pain that could not be explained on the basis of simple arthropathy of several individual joints, the Board agreed that the coding approach taken by the PEB was firmly supported. At the time of entry on TDRL, the PEB assigned a 40% rating, which is described by "symptoms that are constant, or nearly so, and refractory to therapy." Although Board members deliberated whether the 40% stipulations were supported by the evidence at the time of placement on TDRL, that debate was rendered moot since the Board may not recommend a rating lower that assigned by the PEB. It was agreed that since 40% is the highest rating available under the 5025 code, any other rating at the time of entry on TDRL was not supported.

Next the Board turned its attention to a permanent rating at the time of removal from TDRL, and considered whether the CI's symptoms were closer to the 40% or 20% criteria ("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 evidence at the time of entry on TDRL showed definite therapeutic response to medication and to other pain management intervention. Board members agreed that the VA exam 6 weeks prior to entry on TDRL (and 10 months prior to the August 2002 TDRL re-evaluation exam) was not consistent with the “constant or nearly so” or “refractory to therapy” stipulations of the 40% rating. By the time of re-evaluation; however, he was not taking any medication, although he was performing home physical therapy. The Board deliberated the TDRL examiner’s conclusion that the condition was “neither worse nor better” in the context of the VA exam performed 10 months previously and that the CI quit working for reasons other than pain. Members also debated if the fact that he was not taking previously helpful medication (regardless of the reason) equated to the “refractory to therapy” stipulation and if his diligence in performing physical therapy on his own was because it was beneficial. Finally, Board members considered if the TDRL re-evaluation rheumatologist’s finding of fewer tender points than prior examiners represented an improved condition. Ultimately, the Board concluded that the evidence just described most closely approximated the 20% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic multifactorial pain condition.

Obstructive Sleep Apnea Condition. OSA was first suspected in May 2000 when the CI reported ongoing daytime somnolence and non-restorative sleep in the context of difficulty sleeping at night. A sleep study in July 2000 detected severe OSA and a CPAP titration study in September 2000 documented the effectiveness of nasal CPAP, during which he slept for 6.5 hours. At the NARSUM exam on 1 May 2001 (7.5 months prior to entry on TDRL), the CI reported that he continued to have non-restorative sleep despite use of CPAP. He continued to complain of poor energy, fatigue, insomnia and daytime sleepiness. The OSA condition was permanently profiled (P4).

The Board directs attention to its rating recommendation based on the above evidence. The PEB clearly stated that OSA was unfitting, and premised its fitness determination on CPAP requirements; accordingly, IAW DoDI 6040.44, the Board’s recommendation must be derived from the VASRD. VASRD §4.97 mandates a minimum rating of 50% for OSA requiring a breathing assistance device; the evidence establishes that the latter criterion was met in this case. In consideration of these facts, the Board unanimously recommends a service disability rating of 50% for the OSA condition, coded 6847.

Contended Situational Depression and Adjustment Disorder Condition. The Board considered the appropriateness of changes in the MH diagnoses, PEB fitness determination and if unfitting, whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130. The Board reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military DES. The evidence of the available records shows that diagnoses of situational depression, major depression and adjustment disorder were rendered. The MEB and the PEB referred only to situational depression, which is an adjustment disorder, but the psychiatric addendum and permanent profile listed major depression. The Board concluded that the MH diagnosis was changed to the applicant’s possible disadvantage in the disability evaluation process and therefore met the inclusion criteria in the Terms of Reference of the MH Review Project. The psychiatric addendum provided a preponderance of evidence that the major depression diagnosis was correct.

The Board’s main charge is to assess the fairness of the PEB’s determination that a MH disorder was not unfitting. 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. The CI was briefly treated for an initial episode of depression prior to lumbar spine surgery in 1999. Two commanders’ statements in February 2000 and June 2000 did not mention any MH symptoms as a cause of occupational difficulty. The next documented visit to a MH provider in November 2000 noted complaints of stress and depression symptoms related to a back injury and the MEB process. Multiple MH-related record entries between February and April 2001 were specifically directed at chronic pain management. There were no entries in evidence documenting psychotherapy or other MH treatment.
The NARSUM examiner on 1 May 2001 (7 months prior to entry on TDRL) noted that there was no history of psychosis, hallucinations, paranoid thoughts or thoughts of harm and no requirement for psychiatric hospitalization. A depressed mood and affect were observed and a diagnosis of situational depression and adjustment disorder was listed. On the DD Form 2807 on 4 June 2001 (6 months prior to entry on TDRL), the CI wrote that his pain problems were the issues that prevented him from doing his job. On the attached DD Form 2697 (Report of Medical Assessment), the CI did not specify mental health problems among a list of other symptoms he thought limited his ability to perform his job.

According to the MEB psychiatric addendum on 27 July 2001 (5 months prior to entry on TDRL), the CI had declined the offer of psychotropic medication in February 2001 because he felt he was “taking too many medications.” However, the addendum psychiatrist did not address whether psychotherapy was offered or undertaken. This examiner diagnosed major depression (chronic, severe) in the context of “moderate to severe” stressors which included separation from his wife, a disabled son and uncertainties about the MEB outcome. Mental status exam (MSE) showed a sad, angry mood and constricted affect. Because the CI refused medications, the examiner concluded there was impaired judgment. The exam was otherwise normal. The effect of MH symptoms on occupational functioning was not addressed, although an assigned Global Assessment of Functioning (GAF) was 45, connoting serious symptoms or impairment. On 29 August 2001, the CI concurred with the PEB’s finding that the MH condition was not unfitting.

The VA C&P examiner on 6 November 2001 (a month prior to TDRL entry) did not have medical records available to review. The CI reported that he had no friends, was separated from his wife and was caring for five children. He stated that he had participated in counseling briefly, and had not gone to work during the previous 4 months (although reasons were not specified). He complained of anxiety, near-constant depressed mood and sleep difficulty. MSE showed a depressed mood and tearful affect. The examiner rendered a diagnosis of major depression (chronic, severe), and assigned a GAF of 35 (major impairment in several areas).

At a TDRL re-evaluation psychiatric exam in October 2002, 10 months after TDRL entry, the CI stated that he tried to work for one month but quit because his “mind wasn’t in it.” He was a single father of two children and described himself as a “full-time homemaker.” He led a solitary life focused on his children, and remained untreated for his condition. He endorsed a mood that was “sad all the time,” crying spells, frustration and sleep problems. MSE was remarkable only for depressed mood and affect somewhat constricted. The Axis I diagnosis was major depressive disorder (recurrent, with inter-episodic recovery) and an assigned GAF was 68 (mild symptoms or impairment). The examiner concluded that the CI “no longer meets retention standards.”

The Board next considered whether the major depression condition was unfitting for continued military service. No MH condition was implicated in the commander’s statement. At no time during the CI’s military service did he require psychiatric emergency evaluation or hospitalization. There was no performance based evidence from the record that any MH condition significantly interfered with satisfactory duty performance. The Board majority agreed that evidence of the record reflected minimal occupational impairment on the basis of MH related symptoms. This was reviewed by the action officer and considered by the Board. 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 contended mental health condition and so no additional disability ratings are 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. In the matter of the OSA condition, the Board unanimously recommends a disability rating of 50%, coded 6847 IAW VASRD §4.97. In the matter of the chronic multifactorial pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended major depression condition, the Board by a vote of 2:1, recommends no change from the PEB determination as not unfitting. The single voter for dissent (who recommended a determination of unfitting at the time of TDRL entry and exit, coded 9434 IAW VASRD §4.130, did not elect to submit a 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 his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
TDRL Entry TDRL Exit
Obstructive Sleep Apnea 6847 50% 50%
Chronic Pain, Multifactorial in Nature 5099-5025 40% 20%
COMBINED
 70% 60%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130529, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20140015362 (PD201300821)


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 constructively place the individual on the Temporary Disability Retired List (TDRL) at
70% disability rather than 40% disability for the period 14 December 2001 to
2 April 2003 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60%.

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 the individual was separated by reason of temporary disability 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 day following the TDRL period.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for 70% retired pay for the constructive temporary disability retired period and then payment of permanent disability retired pay at 60% effective the day following the TDRL period.

         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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  • AF | PDBR | CY2011 | PD2011-00633

    Original file (PD2011-00633.docx) Auto-classification: Approved

    Fibromyalgia Condition : The CI had a well documented history of joint pains in the service treatment record (STR) dating back to 1980’s. The Board agreed absentee work notes would have reinforced this rating criteria but after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a change in the TDRL entry rating decision to 30% and a permanent separation rating of 30% for the migraine headache condition. The Board therefore...

  • AF | PDBR | CY2013 | PD-2013-02050

    Original file (PD-2013-02050.rtf) Auto-classification: Approved

    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. Post-Separation) 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...

  • AF | PDBR | CY2013 | PD-2013-02564

    Original file (PD-2013-02564.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board first considered if the left shoulder, left arm/neck, bilateral knees, and/or mental disorder conditions could be separated from the fibromyalgia condition and separately rated. I have carefully reviewed the...

  • AF | PDBR | CY2012 | PD 2012 01836

    Original file (PD 2012 01836.txt) Auto-classification: Denied

    On 6 March 2003, the CI was seen by rheumatology and symptoms of joint pain, non-restorative sleep and fatigue were recorded. Both the MEB and VA rated the CI fibromyalgia condition 20% under the code 5025. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Fibromyalgia 5025 20% Posterior Scleritis Not Unfit - Recurrent Bronchitis Not Unfit - Sleep...