IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20150008032 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an increase in his physical disability board (PEB) rating to include a rating for the medical condition of fibromyalgia. 2. The applicant states: * his diagnosis of fibromyalgia was not included in the physical disability rating because there was insufficient evidence to assess his claim * he was evaluated by a certified rheumatologist who diagnosed him with fibromyalgia, backdated to February 2012 * the medical board did not have any training on dealing with fibromyalgia at the time and as a result, did not include the diagnosis * he believes it should have been added to his medical conditions because he had the documentation stating he met all the symptoms * his pain is constant and keeps him from doing many activities he once enjoyed; on the outside it looks like nothing is wrong but his pain is real 3. The applicant provides his Department of Veterans Affairs (VA) Progress Notes. CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant was appointed as a warrant officer of the Army and executed an oath of office on 13 March 1998. He held military occupational specialty 13A (Field Artillery Target Technician). 2. He served in a variety of stateside or overseas assignments, including tours in Iraq, and completed a variety of training courses. He was advanced to chief warrant officer four (CW4) in November 2008. 3. On 24 January 2013, a medical evaluation board (MEB) convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the medically acceptable or unacceptable conditions listed below. The MEB recommended referral to a physical evaluation board (PEB). He agreed. Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Osteoarhritis, bilateral knees X 2. Post-traumatic stress disorder (PTSD) X 3. Major Depressive Disorder X 4. Trochanteric bursitis right hip X 5. Achilles tendinitis right X 6. Ankle arthralgia bilateral X 7. Plantar fasciitis bilateral X 8. Atipical chest pain X 9. Non-diagnostic ST-T wave abnormalities X 10. Urinary frequency X 11. Polydipsia X 12. Low G6PD X 13. H/O head injury. X 14. Lumbago X 15. Right glenohumeral degenerative changes X 16. B/L pesplans X 17. B/L wrist condition X 18. B/L cubital tunnel X 19. Primary insomnia X 20. Fibromyalgia X 4. On 23 May 2013, following completion of his VA disability assessment of his unfitting and service-connected disabilities, the VA proposed ratings for his disabilities, and a formal PEB (FPEB) convened and found the applicant's conditions prevented him from performing the duties required of his grade and MOS and determined he was physically unfit due to the conditions below. His ratings for the medically-unacceptable conditions under the VA Schedule for Rating Disabilities (VASRD): * VASRD Code 9411, PTSD with major depressive disorder, 50 percent * VASRD Codes 5003/5261, left knee osteoarthritis, post-surgical residuals, 10 percent * VASRD Codes 5003/5261, right knee osteoarthritis, post-surgical residuals 10 percent * VASRD Code 5284, left planter fasciitis, foot injury, 10 percent * VSRD Code, right planter fasciitis, 10 percent * VASRD Codes 5003/5260, Residuals, limitations of flexion of the knee, 0 percent * VASRD Codes 5003/5260, Status post left wedge, 0 percent 5. The PEB also considered his other conditions, but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable. The PEB found the applicant physically unfit and recommended a combined rating of "70 percent" and that his disposition be "Placement on the Temporary Disability Retired List (TDRL)" with reexamination in 2014. 6. On 24 May 2013, the applicant was counseled by a PEB Liaison Officer who explained to him his rights, the disability process, the MEB process and how to appeal, the PEB adjudication, and the role of the U.S. Army Physical Disability Agency (USAPDA). He elected to concur with the formal PEB's findings and recommendation, waived his right to formal hearing, and indicated that he did not want a reconsideration of the VA ratings. 7. He retired on 26 August 2013 and he was placed on the TDRL in his retired grade of CW4 on 24 August 2013, in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Separation, and Retirement), chapter 4, by reason of disability. 8. On 9 April 2015, a TDRL PEB convened and reviewed the TDRL re-evaluation for the applicant's PTSD. The PEB removed the applicant from the TDRL and permanently retired him at a total of 70 percent disability. 9. An advisory opinion was received on 1 October 2015 from the USAPDA in the processing of this case. An advisory official recommended disapproval of the applicant's request. The official stated: a. The applicant requests an increase in his physical disability rating for his medical condition of fibromyalgia. He claims that a diagnosis for fibromyalgia was not included in his physical disability rating because the medical board said there was not sufficient evidence to assess his claim. The applicant claims his fibromyalgia was diagnosed in February 2012; before his MEB of January 2013. b. A review of the Rheumatology record of medical care dated 17 February 2012 indicates that the applicant had complaints of various diffuse joint pains. The record reflected that the physician conducting the examination opined that there were 10 of 18 tender points at that time; a minimum of 11 of 18 tender points is the standard for establishing a diagnosis of fibromyalgia. The document does not contain a confirmed diagnosis of fibromyalgia. c. The applicant's MEB listed fibromyalgia as a condition on the DA Form 3947 (MEB Proceedings); but it was not a condition that did not meet medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) or that required a separate profile listing and duty limitations. The MEB did include a listing of the applicant's various complaints of joint pain: bilateral knees, wrists, and feet, and back. His VA medical exam for the MEB and Integrated Disability Evaluation System (IDES) process found only 4 of 18 tender points in the fibromyalgia portion of the exam and found that the condition was "not confirmed by history or clinical exam today. Soldier's history describes diffuse polyarthralgia consistent with aforementioned topics and not myofascial pain. No diagnosis." The applicant concurred with the MEB and VA findings on 30 January 2013 and confirmed that the MEB "includes all my current medical conditions and whether or not they meet medical retention standards." d. On 11 March 2013 an informal PEB found the applicant unfit for PTSD, left and right knee osteoarthritis, and limited range of motion of the right knee; placement on the TDRL at 60 percent. The PEB found that fibromyalgia was not an unfitting condition. The applicant non-concurred and demanded a formal PEB with an additional finding of unfit for his plantar fasciitis. He did not appeal the issue regarding his present claim of fibromyalgia. The formal PEB added the conditions of bilateral plantar fasciitis as unfitting conditions. The VA had rated those conditions at zero percent so the placement on the TDRL at 60 percent remained unchanged. The finding that fibromyalgia was not unfitting remained unchanged. Only the condition of PTSD was found to be unstable for rating purposes in accordance with Department of Defense Instruction (DODI) 1332.18. This is the only condition that was authorized to be reexamined during the TDRL period in accordance with the present DODI 1332.18 standards for TDRL re-evaluations. The applicant concurred with the formal PEB findings on 29 April 2013. The VA did not rate the applicant's fibromyalgia during the IDES rating process indicating that it was presently not diagnosed. e. On 9 April 2015, an informal PEB reviewed the TDRL re-evaluation for the applicant's PTSD and removed the applicant from the TDRL and permanently retired him at a total of 70 percent disability. Only the PTSD was re-evaluated at that time as only unstable unfitting conditions were required to be re-evaluated. The other unfitting conditions that were found to be ratable and stable for rating purposes when placed on the TDRL were included in the final total rating when removed from the TDRL. No new conditions that were not found unfitting when placed on the TDRL were eligible for review when the applicant was removed from the TDRL (Appendix 4 to DODI 1332.18). The applicant concurred with the PEB findings and removal from the TDRL on 15 April 2015 and waived his right to a formal hearing. f. The applicant has not provided any evidence of error that would require a change in his military records. Subsequent ratings by the VA for conditions that the MEB and/or the PEB did not find unfitting at the time of separation from the military and placement on the TDRL are not indicative of military error. Only conditions found to be unfitting before the Soldier is separated from the military can be found to be compensable by the military. The fact that the applicant finally had a confirmed diagnosis of fibromyalgia by someone after leaving the military does not negate the combined findings of the VA and the MEB that at his separation from the military that diagnosis did not officially exist and even if listed would not have been found unfitting. g. The PEB's findings were supported by a preponderance of the evidence, were fully reviewed and approved by the applicant, were not arbitrary or capricious, and were not in violation of any statute, directive, regulation, or written policy. Recommend no changes to the applicant's military records. 10. The applicant was provided a copy of this advisory opinion. He submitted a statement on 20 October 2015. He stated: a. He understands that he has provided very little evidence to the Board because at the time he was being treated for this illness there was no trained rheumatologist that was willing to diagnose him with fibromyalgia in Fort Hood, TX. He was examined by several doctors leading up to his MEB board and none of them were trained in examining someone for fibromyalgia. b. He was given different medications for the pain (Effexor, Cymbalta) and told it was for his PTSD and chronic pain. One of the physicians even expressed that the illness fibromyalgia was a bit of a taboo in the medical community because doctors did not know enough about it to give a clinical diagnosis. He was prescribed medication that states he had fibromyalgia while he was in the military. It took until this past March 2015 that the VA Rheumatology Clinic confirmed that he has fibromyalgia, they just received a trained licensed rheumatologist to diagnose him. c. As to why he did not insist that this medical condition be added to his MEB records was his PEB counselors did not provide him enough information on how the MEB process works. He was informed that he didn't have sufficient documentation in his medical records that he could not claim fibromyalgia as one of his physical disability. He stated "wait until you're out of the military and the VA will assist you in getting this claim done." He was basically pushed through the MEB process because they were trying to meet a quota. He only learned after his March 2013 informal PEB board proceeding what his rights were by his appointed lawyer, and by that time it was too late. d. On 9 April 2015, he called the number on the letter for his TDRL re-evaluation to inform them that he wanted to dispute his fibromyalgia claim and he was informed that he could not do it; he had to contact the ABCMR to dispute his claim. Everyone he tried to get assistance from provided him the wrong information or they gave him the wrong information about his claim and fibromyalgia. He was rushed through a system that really didn't care about Soldier's well-being as much as getting them out the door and on to the next one to stay current with their quota. No one cared to take a look at all the symptoms he had been complaining about since 2012. The fibromyalgia is not something he made up it has been going on for a long time and his records proves it, they just didn't know how to diagnose him correctly. DISCUSSION AND CONCLUSIONS: 1. The applicant requests, in effect, a review of his IDES processing, a change of his VA proposed and Army disability rating, and correction of his combined disability rating. 2. The applicant's case was processed under the IDES. This means he underwent an examination by the VA and upon completion the VA proposed a disability rating for his unfitting conditions to the military department and a proposed disability rating for other service-connected disabling conditions to the member, if applicable. 3. The applicant served on active duty (as a warrant officer) from 13 March 1998 to 26 August 2013. He was considered by an MEB for various conditions, some of which did not meet retention standards. The MEB referred him to a PEB. The three conditions that failed retention standards were osteoarthritis (bilateral knee), PTSD, and major depressive disorder. Fibromyalgia was diagnosed and was in fact listed on the MEB as a condition; but, it did not fail retention standards. 4. An informal PEB found him unfit for PTSD, left and right knee osteoarthritis, and limited range of motion of the right knee and recommended placing him on the TDRL with a 60 percent rating. The PEB found that fibromyalgia was not an unfitting condition. He did not concur and demanded a formal PEB with an additional finding of unfit for his plantar fasciitis. He did not appeal the issue regarding his present claim of fibromyalgia. The formal PEB added the conditions of bilateral plantar fasciitis as unfitting. The VA had rated those conditions at zero percent so the placement on the TDRL at 60 percent remained unchanged. The finding that fibromyalgia was not unfitting remained unchanged. 5. Only the condition of PTSD was found to be unstable for rating purposes in accordance with DODI 1332.18. This is the only condition that was authorized to be reexamined during the TDRL period in accordance with DODI 1332.18 standards for TDRL re-evaluations. He concurred with the formal PEB findings on 29 April 2013. The VA did not rate his fibromyalgia during the IDES rating process indicating that it was presently not diagnosed. 6. A TDRL PEB evaluated the applicant's PTSD and removed him from the TDRL and permanently retired him with a total disability rating of 70 percent. Only the PTSD was re-evaluated at that time as only unstable unfitting conditions were required to be re-evaluated. The other unfitting conditions that were found to be ratable and stable for rating purposes when placed on the TDRL were included in the final total rating when removed from the TDRL. No new conditions that were not found unfitting when placed on the TDRL were eligible for review when the applicant was removed from the TDRL. He concurred with the PEB findings and removal from the TDRL on 15 April 2015 and waived his right to a formal hearing. 7. After a thorough review of the medical records he provided, the USAPDA determined that he had not provided any evidence of error that would require a change in his military records. Subsequent ratings by the VA for conditions that the MEB and/or the PEB did not find unfitting at the time of separation from the military and placement on the TDRL are not indicative of an Army error. 8. Only conditions found to be unfitting before the Soldier is separated from the military can be found to be compensable by the military. The fact that the applicant has a confirmed diagnosis of fibromyalgia by someone after leaving the Army does not negate the combined findings of the VA and the MEB that at his separation from the military that diagnosis did not officially exist and even if listed would not have been found unfitting. 9. His PEB findings were supported by a preponderance of the evidence, were fully reviewed and approved by the applicant, were not arbitrary or capricious, and were not in violation of any statute, directive, regulation, or written policy. He has not proved an error or an injustice that warrants a change to his disability rating. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ x_______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150008032 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008032 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1