RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD1300935
BRANCH OF SERVICE:  Army	BOARD DATE:  20131108
SEPARATION DATE:  20040405

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (97B/Counterintelligence Agent) medically separated for fibromyalgia (FM).  The applicant began having persistent painful joints after a motor vehicle accident (MVA) in 1998.  The symptoms improved until he was in another MVA which triggered pain in multiple joints again.  In October 2001, the applicant was hospitalized for viral meningitis and his pain escalated at this time.  He was referred to rheumatology and ultimately diagnosed with FM.  The applicant was diagnosed with plantar fasciitis in November 2003 by podiatry after presenting with complaints of painful feet.  The CIs conditions 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 P3/L3 profile and referred for a Medical Evaluation Board (MEB).  FM, plantar fasciitis and pes cavus were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded sleep apnea (meeting retention standards) for PEB adjudication.  The PEB adjudicated “Fibromyalgia, manifested by widespread pain, sleep disturbance, bowel disturbance, fatigue and headache.  Plantar fasciitis and pes cavus contribute to the overall pain but cannot be separately rated because of pyramiding” as unfitting, rated 20%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition, sleep apnea was determined to be not unfitting and therefore not rated.  The applicant made no appeals and was medically separated.

CI CONTENTION:  “MEB proceedings dated 2FEB04 found that I failed to meet retentions criteria under AR 40-501 for fibromyalgia (3-41d), bilateral plantar fasciitis (3-13b3) and pes cavus (3-13b5).  According to the PEB description, I was given a 20% overall rating for fibromyalgia, with no separate rating for plantar fasciitis or pes cavus due to avoidance of pyramiding.  The lack of separate ratings for plantar fasciitis and pes cavus do not appear to be consistent with the VA's application of the "pyramiding rule" found in 38 CFR 4.14.  The VA rated my fibromyalgia at 20%, and my pes cavus with plantar fasciitis at 10% for each foot.  This indicates that the VA did not consider the bilateral plantar fasciitis and the pes cavus to be subject to the rule in 38 CFR 4.14.  I understand that the VASRD is the standard for assigning disability standards during the PEB process and the C&P examination, thus bringing into question the apparently disparate applications of 38 CFR 4.14. I am disputing the decision not to issue a separate rating for bilateral plantar fasciitis and pes cavus based upon the PEB's interpretation of 38 CFR 4.14 as unfair and inaccurate.  Included with this application is a letter to the Board asking that they consider four questions regarding the determination of the PEB I ask that they consider the items listed in the letter as additional reasons for upgrading the percentage of disability.”  The CI attached a three page statement to his application which 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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting FM condition which included the plantar fasciitis and pes cavus is addressed below.  The requested sleep apnea, determined to be not unfitting by the PEB, is likewise addressed below.  The requested degenerative arthritis (of the wrists, elbows, ankles, knees, shoulders, hips, sacroiliac [SI] joint, L spine, T spine, C spine), sinusitis, hypertension, gastroesophageal reflux disease or neuropathy were not identified by the MEB or PEB, and thus are 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 IPEB – Dated 20040212	VA - (12 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fibromyalgia (plantar fasciitis and pes cavus contribute to pain but cannot be separately rated because of pyramiding	5025	20%	Fibromyalgia	5025	20%	20050422	
			Pes Cavus with plantar fasciitis, right	5284	10%	20050422	
			Pes Cavus with plantar fasciitis, left	5284	10%	20050422	
Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%		
No Additional MEB/PEB Entries	Other x 7			20050422	
Rating:  20%	Combined Rating:  70%	
Derived from VA Rating Decision (VARD) dated 20050811 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

The PEB combined the MEB referred conditions of FM and bilateral plantar fasciitis and pes cavus and rated them as one unfitting condition of FM coded at 5025, specified by the VASRD as “with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesia, headaches, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms.”  The PEB cited avoidance of pyramiding IAW VASRD §4.14 for not rating the plantar fasciitis and pes cavus conditions separately.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a.  If the Board judges separate ratings are warranted, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself, with the caveat that its final recommendation may not produce a lower combined rating than that of the PEB.  The Board will determine if the PEB’s approach of combining these conditions under a single rating was justified in lieu of separate ratings in its review of the FM condition.

Fibromyalgia Condition.  According to the narrative summary the applicant had a history of neck and back pain, as well as aches in multiple joints following two MVAs.  At the MEB examination on 10 December 2003, approximately 4 months prior to separation, the CI reported that he “hurts all over, mostly in his joints including his knees, ankles, hips, wrists, back and neck.”  The CI reported being unable to do physical training.  Sit-ups and push–ups were too painful to do.  He only walked for training and that was very painful.  The MEB examination noted full range-of-motion (ROM) of the neck, shoulders, and wrists, with painful flexion and extension of the wrists.  There was tenderness to palpation (TTP) of the cervical vertebra, paraspinal, trapezius, and deltoid muscles and the intrascapular areas; TTP of the medial and lateral epicondyles bilaterally; and TTP of all finger joints.  The back exam showed TTP of all thoracic and lumbar vertebra and paraspinal muscles.  There was full hip ROM with hamstring tenderness with full hip flexion and TTP of the greater trochanters, ischial tuberosities and bilateral sacroiliac joints.  There was TTP of both sides of both knees and TTP of the Achilles tendon and plantar fascia of both feet.  The feet were tender to foot squeeze, but individual toe joints were not tender.  There was no swelling, warmth, or redness of any joint.  Paired FM tender points were positive, as well as control points.  Blood work for rheumatology disorders was normal.  Magnetic resonance imaging of the entire spine performed on 27 January 2002 showed mild neural foraminal narrowing of the cervical spine at C4-C6 from a disc or degenerative changes; unremarkable thoracic spine; and minimal lumbar spine degenerative disc disease; and no spinal canal stenosis at any level.  A bone scan performed on 1 August 2003 showed mild uptake in the bilateral wrists and ankles and improvement in the knees and SI joints from a prior bone scan.  The rheumatologist concluded that the CI’s symptoms were most consistent with FM.  At the MEB Podiatry consult on 12 November 2003, approximately 5 months prior to separation, the CI reported painful feet that started in July 2000 and were aggravated by long periods of running or standing.  He was diagnosed with bilateral plantar fasciitis at that time.  Orthotics helped at first but the CI noted recent increased pain and that he was unable to run due to pain in his feet.  The podiatry exam was normal except for bilateral pes cavus and TTP of the left Achilles tendon and the plantar fascia bilaterally.  There was decreased and equal ankle dorsiflexion bilaterally with otherwise normal ankle ROM, without pain or crepitus.  There was no swelling, redness or discoloration present.  The diagnosis was plantar fasciitis and pes cavus.  New orthotics were recommended, with follow-up and PEB referral was recommended.

At the VA Compensation and Pension (C&P) exam on 22 April 2005, approximately 12 months after separation, the CI reported FM with total body pain, rated five to six out of ten.  He reported FM symptoms of myalgias, headaches, and irritable bowel syndrome.  He was not on any medications for FM.  The CI reported that he developed plantar fasciitis in the summer of 2000 after running 10-15 miles per week.  He did obtain significant improvement with orthotics but was not able to place them in his military boots.  The VA exam showed 16 of 18 positive FM tender points.  The CI had a normal gait without evidence of abnormal weight bearing and TTP of the plantar fascia bilaterally, without weakness, instability, or swelling.  The CI reported working full time as a manager at a restaurant and had not missed any work due to his foot pain.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the CI’s FM condition as 5025 (fibromyalgia) at 20%.  The VA also rated the FM condition as 5025 at 20% and “pes cavus with plantar fasciitis” of the right foot and the left foot as 5284 (other foot injuries), at 10% each.  The Board first considered if the plantar fasciitis condition of the right foot and/or the left foot, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above.  The CI was diagnosed with plantar fasciitis in 2000 and was on multiple temporary profiles until he was provided a permanent profile in 2002 that listed plantar fasciitis along with multiple other joint and soft tissue conditions.  The final permanent profile dated 2 February 2004 noted FM with multiple joint arthralgias and thoracic vertebrae fractures.  The commander’s statement did not mention plantar fasciitis as limiting the CI’s ability to perform in his MOS, noting that chronic pain led to a diagnosis of FM by his doctors.  The MEB podiatry exam on 12 November 2003 noted tenderness of the left Achilles tendon and of the plantar fascia bilaterally that limited the CI’s ability to walk for prolonged periods of time.  The MEB cited rheumatology exam on 16 September 2003 noted that the CI had tenderness throughout his body with joint and muscle pain of the neck, and low back and bilateral shoulders, elbow, wrist, fingers, hips, knees, Achilles tendons and plantar fascia.  On 22 April 2005 the C&P exam noted that the CI obtained significant relief with orthotics but could not put them in military footwear.  The exam showed tenderness of the plantar fascia and pes cavus bilaterally, without evidence of abnormal weight bearing.  Based on the above evidence, members agreed there was a questionable basis for arguing the bilateral plantar fasciitis condition was a separately unfitting condition and not part and parcel of the CI’s FM condition.  The CI was referred to rheumatology when treatment for plantar fasciitis and chronic left ankle pain failed to improve the CI’s condition and he was diagnosed with FM.  However, a podiatrist diagnosed bilateral plantar fasciitis at the MEB exam and indicated that the CI’s painful feet were significantly interfering with the performance of his duties and physical training at the time of separation.  The CI’s foot problems did result in temporary profiles noted in treatment visits that addressed physical limitations due to both the right foot and the left foot.  Therefore, the Board agreed that both the plantar fasciitis conditions of the right and left foot were reasonably considered to be separately unfitting and accordingly separate ratings are recommended.  The Board deliberated the ratings of the CI’s right and left foot plantar fasciitis conditions based on the above evidence.  The Board reviewed to see if there was ratable impairment due to the CI’s bilateral pes cavus coded as 5278 (claw foot); or plantar fasciitis coded as 5284 (other foot injury).  Claw foot is only ratable IAW VASRD §4.71a when it is acquired during military service and the VA exam noted that the CI had pes cavus since childhood.  The Board found no ratable impairment regarding the CI’s plantar fasciitis of the right or left foot, except for pain.  The Board considered if the CI’s foot pain could achieve a compensable rating coded as 5099-5003(analogous to arthritis) and concluded that it could not be rated for pain alone IAW §4.14 (avoidance of pyramiding), as the CI’s widespread musculoskeletal pain is subsumed in the FM rating below IAW VASRD §4.71a.  VASRD §4.14 specifies “The evaluation of the same disability under various diagnoses is to be avoided” and also “…and the evaluation of the same manifestation under different diagnosis is to be avoided.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.14, the Board recommends a disability rating of 0% for the right plantar fasciitis and 0% for the left plantar fasciitis coded 5099-5003 IAW VASRD §4.71a and §4.31 (Zero percent evaluations).

The Board deliberated the rating of the CI’s FM condition based on the evidence above.  At the rheumatology exam on 16 September 2003 the CI reported that he “rarely takes ibuprofen, he only takes this when his pain is completely out of control.”  The Board noted that at the MEB exam the CI’s medications were listed as a muscle relaxant and an anti-inflammatory medication as needed for pain and at the C&P exam the CI was noted to be “not on any medications for this.”  This raised the question to the Board whether the CI’s disability due to the FM condition met the threshold for a compensable rating under 5025 of 10% (requires continuous medication for control).  The CI states in his contention that the information regarding his medication use was inaccurate at the VA exam; that he was always taking anti-inflammatory and muscle relaxant medications daily for his FM condition.  However, the treatment issue is a moot point because the PEB rated the FM condition at 20% and the Board may not provide a lower combined rating than the PEB.  Therefore, the Board reviewed to see if the CI’s FM condition met the higher evaluation of 5025 of 40% (symptoms that are constant, or nearly so, and refractory to therapy) but found that it did not.  The evidence in the record supports that the CI was diagnosed with FM and began treatment with a muscle relaxant at bedtime in addition to anti-inflammatory medication approximately 6 months prior to separation.  At the VA exam approximately a year after separation, the CI reported improvement in his pain and fatigue levels.  Therefore, 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 FM condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the obstructive sleep apnea (OSA) condition 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.

OSA Condition.  The CI was evaluated for OSA on 19 November 2003 due to reported snoring and daytime sleepiness.  Following a home sleep study, initial evaluation suggested OSA and the CI was set to start a three month trial of auto-adjustable positive airway pressure therapy.  The OSA condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards at the time of separation.  There was no performance based evidence from the record that OSA significantly interfered with satisfactory duty performance.  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 OSA and so 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.  In the matter of the FM condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right plantar fasciitis and the left plantar fasciitis the Board recommends a 0% disability rating for each, coded 5099-5003 IAW VASRD §4.71a and §4.31.  In the matter of the contended OSA condition, the Board unanimously recommends no change from the PEB determination of not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

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%	
Right Plantar Fasciitis 	5099-5003	0%	
Left Plantar Fasciitis	5099-5003	0%	
COMBINED RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130701, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-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 XXXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20140003537 (PD201300935)

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