RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXX		BRANCH OF SERVICE: ARMY
CASE NUMBER:  PD0900228		BOARD DATE: 20091008
SEPARATION DATE: 20040806
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SUMMARY OF CASE:  This covered individual (CI) was an NCO medically separated from the Army in 2004 after 14 years of service.  The medical basis for the separation was a fibromyalgia-like myopathic disorder temporally associated with repeated anthrax vaccine exposures.  The CI developed progressive myalgias, arthralgias, tinnitus, depression and elevated CPK (muscle enzyme) levels over a series of 5 anthrax vaccinations from May 1999 - May 2000.  There is documentation that the symptoms became more severe with each vaccination.  Of note, he had received an anthrax series in 1991 with Gulf War deployment.  He had been experiencing symptoms suggestive of Gulf War illness, including arthralgias and short term memory (STM) loss, prior to the second series of vaccination.  The CI’s constellation of symptoms after the 1999-2000 vaccine exposure worsened during a later deployment to Germany.  He was placed on temporary profiles, but ultimately required medevac.  He was assigned to Med Hold and spent the rest of his military career undergoing extensive evaluations at WRAMC.  He was subsequently diagnosed with obstructive sleep apnea (OSA), hypertension, diabetes and hypercholesterolemia.  His mood disorder, STM impairment and tinnitus did not improve.  His musculoskeletal pain syndrome, OSA and mood disorder were all forwarded to the PEB as medically unacceptable on the MEB form 3947.  The informal PEB found him unfit only for the musculoskeletal pain disorder, coded analogous to fibromyalgia (FMA) and rated 20%.  This decision was upheld by the formal PEB and by the USAPDA on appeal.  He was separated at 20% disability.  He has subsequently appealed to the BCMR and initiated numerous congressional and White House inquiries, all without remedy.
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CI CONTENTION:  The CI contends that he is seriously disabled from his various conditions and that they were all ‘rolled...into one condition’.  He specifically cites his mental illness, in addition to various musculoskeletal impairments, as components of his disability.
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RATING COMPARISON:

Service PEB	VA (9 Mo. from Separation)	
PEB Condition	Code	Rating	Date	Condition	Code	Rating	Exam	Effective	
MUSCULOSKELETAL PAIN SYNDROME WITH FEATURES OF FIBROMYALGIA	5099-5025	20%	20040331	FIBROMYALGIA	5025	20%	20050511	20040807	
OSA	NOT UNFITTING	20040331	OSA	6847	50%	20050511	20040807	
MOOD DISORDER	NOT UNFITTING	20040331	SCHIZOAFFECTIVE DISORDER, DEPRESSIVE TYPE 	9211	70%	20050511	20040807	
SHORT TERM MEMORY LOSS	NOT UNFITTING	20040331	NOT CODED			20050511	20040807	
DIABETES MELLITUS TYPE 2	NOT UNFITTING	20040331	DIABETES MELLITUS TYPE II	7913	20%	20050511	20040807	
HYPERCHOLES-TEROLEMIA	NOT UNFITTING	20040331	NOT CODED					
HYPERTENSION	NOT UNFITTING	20040331	HYPERTENSION	7101	0%	20050511	20040807	
MILD RESTRICTIVE LUNG DISEASE	NOT UNFITTING	20040331	ASTHMA	6602	10%	20050511	20040807	
BILAT. TINNITUS	NOT UNFITTING	20040331	TINNITUS	6260	10%	20050511	20040807	
MILD COMPESSION FRACTURE T-12	NOT UNFITTING	20040331	DEGENERATIVE DISC DISEASE, LUMBAR SPINE	5242	20%	20050511	20040807	
NO ADDITIONAL DA 3947 ENTRIES.	NON-PEB X 2			20050511	20040807	
TOTAL Combined:  20 %	TOTAL Combined (incl non-PEB Dxs):    100%                                                                          	
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ANALYSIS SUMMARY:

Musculoskeletal Pain Disorder / FMA.  The precise diagnosis for this generalized condition, which accounted for the majority of the CI’s symptoms and disability, is not clear.  There is a ‘second-hand’ note that it was diagnosed as FMA by a rheumatologist in Germany, but no consult or details are in evidence.  The MEB rheumatologist did not agree that FMA was the definitive diagnosis, so the PEB characterization of the diagnosis and choice of VASRD coding was appropriate.  The VA did not conduct an independent rheumatology consultation to support the diagnosis of FMA.  Although it cannot be determined with scientific certainty that the condition was secondary to anthrax vaccination, the very thorough specialty work-up by the Walter Reed Regional Vaccine Healthcare Center was convincing for that association.  As a foundation for Board recommendations and decision-making, FMA represents the most acceptable VASRD analogous rating option.  Several of the DA 3947 conditions (mood disorder, STM loss, tinnitus and possibly the pulmonary conditions) were ascribed to the underlying syndrome by the specialty consultants.  Only mood disorder, however, is specified for subsuming under the 5025 rating IAW VASRD §4.71a.  The PEB and VA ratings under 5025 were the same, i.e. 20%.  A relevant question, however, is how either the PEB or the VA rater avoided the conclusion that the condition was ‘constant, or nearly so, and refractory to therapy’, thereby meriting the 40% rating for 5025.  The NARSUM and the WRAMC consultations make it clear that the symptoms were exacerbated by minimal activity and that there were ‘good days and bad days’, but there is no entry in the Army or VA records that documents any asymptomatic intervals.  There is substantial documentation of futile trials of numerous medications and treatment modalities.  An additional argument in favor of the higher 40% rating is that the separation disability under 5025 should subsume the contribution from the psychiatric disability.  This is discussed below.  Since the VA separately coded and liberally rated the psychiatric disability, the FMA rating of 20% is understandable.  The PEB, in eliminating Mood Disorder as not unfitting, failed to confer any additional disability rating for a condition that was a VASRD-specified direct residual of the unfitting condition.  Finally, the CI’s overall disability is not adequately reflected in a 20% rating.  As elaborated in the NARSUM, he went from ‘a high functioning, decorated service member’ to ‘overall level of functioning is extremely impaired’.  The individual components of that disability (as elaborated in AR 635-40, 3-1, b.) are not amendable to separate coding and rating without pushing the threshold for separately unfitting.  Such an approach would also produce an inflated combined rating relative to the true overall disability in this case.  Given these factors, and that a higher rating is defensible independently by the VASRD, the Board recommends 40% as a fair rating under 5099-5025. 

Psychiatric Condition.  There is a significant gulf between the psychiatric addendum to the NARSUM and the VA psychiatric rating examination performed 9 months later.  The latter endorsed psychosis-like and PTSD-like symptoms which were not in evidence in the service treatment record (STR).  Auditory hallucinations, hypervigilance, social isolation, paranoia, panic attacks and suicidal ideation are all symptoms referenced in the VA rating decision (used to support a 70% rating and the basis for a different psychiatric diagnosis) which were not reported to the MEB psychiatrist.  The MEB physical exam noted only depression and ‘problem sleeping - pain, and nightmares at times’.  It is unlikely that the more severe symptoms documented by the VA psychiatrist were clinically silent or missed during the MEB evaluation and that the PTSD-type symptoms first emerged 6 years after the Gulf War traumatic experiences.  Thus, the probative value of the VA exam and rating is weakened.  The MEB psychiatrist opined that the mood disorder was ‘due to fibromyalgia’ and that it was medically unacceptable.  There is no evidence in the STR, however, that would refute the PEB opinion that it was not separately unfitting.  The Commander’s letter was brief, and of little value, but did not connote any impairment of overall performance.  The CI’s performance evaluations remained high throughout the medical hold period.  His profile at the time of separation was S1.  He was working as a sales clerk at the time of his VA evaluation.  The psychiatric condition therefore does not meet the threshold for Board recommendation as additionally unfitting, and the Board recommends no recharacterization of the PEB’s fitness determination for mood disorder.  Both the MEB and the VA psychiatrists stated that there was a significant degree of occupational impairment, however, and the CI’s global assessment of functioning (GAF) score was in the moderately impaired range.  These factors support the argument that Mood Disorder justifies additional weight to the 5025 rating as discussed above.  

Pulmonary Conditions.  The MEB addendum for OSA stated that it was medically unacceptable ‘because he requires wearing a C-pap at night’.  Given the CI’s MOS (mechanic) and the fact that OSA is not generally judged to be unfitting by PEB’s across the services, the PEB’s fitness adjudication was expected and reasonable.  The CI’s restrictive lung disease was judged to be mild and of no consequence to his fitness by the MEB consultant.  There is no foundation for a Board recommendation to recharacterize the PEB’s fitness adjudication for either condition.  

Other Conditions.  STM loss was a significant symptom temporally associated with the vaccine exposure, and is noted recurrently in physician evaluations.  Examples of forgetfulness were elaborated, but no formal cognitive testing is in evidence.  The VA did not note it as a distinct condition, but it was formally incorporated in the psychiatric evaluation and quoted in the rating for the psychiatric condition.  Although some impairment is connoted for the memory loss, there is no basis for a Board recommendation to recharacterize the PEB’s fitness adjudication (or a ratable VASRD code if it did).  The CI had a distinct myopathy (muscle disorder) associated with elevated CPK (muscle enzyme) and some positive findings on biopsy.  Although it was speculated that the myopathy could also be associated with the vaccine exposures, it was also retrospectively noted that there were some pre-existing elevations of CPK.  Electromyelography was normal and neither the VA nor the MEB separated the myopathy from the underlying 5025 condition.  There is no underpinning for a Board recommendation of myopathy as a separate ratable condition.  Both the STM loss and the myopathy undoubtedly made some unquantifiable contribution to the total disability picture as discussed above in reference to the 5025 rating.  The CI’s thoracic compression fracture was not identified as an active issue in the STR during the MEB period.  The profile was L1.  There is no rationale for a Board recommendation to recharacterize the fitness adjudication for that condition.  The same applies to tinnitus (profile was H1).  The co-morbid medical conditions (diabetes, hypercholesterolemia and hypertension) were stable and properly adjudicated as not unfitting by the PEB.
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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 PDBR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The MEB psychiatric addendum couched the impairment for the Mood Disorder in language derived from DoDI 1332.39, but that did not translate into PEB rating under the DoDI.  In the matter of the musculoskeletal pain syndrome condition, the Board unanimously recommends a rating of 40% under 5099-5025 IAW VASRD §4.71a.  In the matter of the obstructive sleep apnea, mood disorder, short term memory loss, diabetes, hypercholesterolemia, hypertension, restrictive lung disease, tinnitus and thoracic compression fracture conditions, the Board unanimously recommends no recharacterization of the PEB adjudication as not unfitting and not ratable for separation.
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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	
MUSCULOSKELETAL PAIN SYNDROME WITH FEATURES OF FIBROMYALGIA	5099-5025	40%	
COMBINED	40%	
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The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090303, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.