RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01121
BRANCH OF SERVICE: AIR FORCE	BOARD DATE:  20140813
SEPARATION DATE:  20031213

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Air National Guard (ANG) TSGT/E-6 (A2571/Aircraft Mechanic) medically separated for a Gulf War Illness condition.  He had a history of persistent physical symptoms with onset after serving in the Gulf War in January 1991.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards.  He was issued a P4 profile and referred for a Medical Evaluation Board (MEB).  The Gulf War Illness condition, moderate sleep apnea, fatigue, irritable bowel syndrome (IBS) diarrheal type, hypercholesterolemia and memory disorder were forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The Informal PEB (IPEB) adjudicated “Gulf War Illness with residuals, fatigue, chronic, and Irritable Bowel Syndrome (IBS)” as a single unfitting condition, rated combined 20%.  The memory disorder, obstructive sleep apnea (OSA) and joint pain conditions were determined to be not unfitting and listed as Category II conditions which can be unfit, but are not currently compensable or ratable.  A revised IPEB dated 2 weeks later also listed two Category III conditions, hyperlipidemia and obesity, which were not separately unfitting and were not compensable or ratable.  The CI submitted a rebuttal to the IPEB adjudication and requested a Formal PEB (FPEB).  The FPEB upheld the IPEB adjudication, although it did not continue the Category III conditions on the findings page (AF Form 356).  The CI also submitted a rebuttal to the FPEB adjudication through counsel.  This was considered by the Secretary of the Air Force Personnel Council (SAFPC).  SAFPC upheld the prior adjudications.  The CI made no further appeals and was transferred to the Retired Reserve List awaiting pay at age 60, pursuant to his request.

CI CONTENTION:  “My combined rating from the VA is 80% from Dec 09, 2003 for the same conditions.  I was rated 19% from on my Formal Physical Evaluation Board dated 22 Jul 2003.  I feel my original FPEB appeals should looked at again and all items considered.”

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 Gulf War Illness condition is addressed below; additionally, the Category II conditions of memory disorder, obstructive sleep apnea (OSA) and joint pain 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:

Service IPEB – Dated 20030722	VA - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
GW Illness w/residuals: Fatigue Chronic	6354	10%	Chronic Fatigue Syndrome w/Memory Loss, Sleep Disturbance & Chronic Myalgias	6354	40%	20040517	
Joint Pain	Category II					
GW Illness w/Residuals: IBS	7319	10%	IBS	7319	10%*	20040511	
Memory Disorder	Category II	No Corresponding VA Entry	
OSA	Category II	OSA	6847	NSC	20040517	
No Additional MEB/PEB Entries	Other x 10	20040517	
Combined:  20%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20040720 (most proximate to date of separation [DOS]).
* IBS Increased to 30% per VARD dated 20080320, Decision Review Officer Decision based on CI appeal, effective 20080309.

ANALYSIS SUMMARY: 

Gulf War Illness with Residuals (Fatigue, Chronic, and Irritable Bowel Syndrome) Condition.  Due to the overlap in the record of these conditions at clinical visits, they are presented together as memory disorder, OSA and joint pain.  Rating and fitness discussions are addressed separately.  The CI was a traditional guardsman who was first on active service from 10 September 1980 until 16 January 1981.  At some point he transitioned to a technician who continued his guard duties, but also worked in the same capacity as a civilian, the latter position contingent upon his remaining in the ANG.  In 1989, he was first evaluated for fatigue, lightheadedness and backache with apparent resolution.  He was on active status from 5 September to 10 September 1990 and again from 4 December 1990 until 14 January 1991 and deployed to the Persian Gulf (Saudi Arabia).  Between these two periods, he was evaluated for gastrointestinal complaints and diagnosed with IBS.  At a gastroenterology (GI) evaluation on 18 July 1991, he reported that his symptoms had begun 2 years earlier after a trip to Korea.  Flexible sigmoidoscopy was normal.  On a periodic history performed on 5 October 1991, he noted that he was in good health other than IBS and specifically denied dizziness or fainting, joint problems, trouble sleeping, and memory or amnesia issues.  He was seen in GI on follow-up on 20 November 1991 and noted that his GI symptoms had resolved.  He was next seen in 1993 when he was evaluated several times in the emergency room (ER) for GI distress.  As he did not respond to medications for bowel distress but did respond to a pain medication, he was evaluated for possible kidney stones, which were not found.  An annual medical review on 4 December 1993 noted that the CI had no limitations at work, had not missed work and remained worldwide qualified.  On 19 May 1995, he was evaluated in infectious disease and noted that he felt run down and fatigued, had continued diarrhea, had knee and shoulder stiffness, headaches, poor sleep, decreased concentration and forgot work details.  Two months later, he had neuropsychological testing on 11 July 1995 and was found to have a pattern in attention, concentration and verbal memory functions similar to that seen in Gulf War veterans.  However, a note dated 16 November 1996 documented that his memory issues did not affect his ability to perform his duties.  At a Gulf War clinic evaluation on 8 October 1997, the CI reported arthralgias (joint pains), loose stools, memory loss, fluid behind the ears, scalp bumps and skin lesions since his service in 1990.  At a follow-up appointment he reported that his diarrhea had begun in October 1990.  A noted date 2 June 1999 documented that he reported “Persian Gulf Syndrome” with both diarrhea and short-term memory loss, but that these did not affect his ability to perform his duties.  At a Persian Gulf Clinic appointment on 18 November 1999, he noted the continued symptoms of arthralgia (joint pain), intermittent loose stools, memory difficulty and fatigue, but that he remained active in the Guard and that his symptoms were stable.  On 8 June 2000, a brain magnetic resonance imaging was normal.  When seen on 13 July 2001, he was using Loperamide, an anti-diarrheal medication, at most 1-2 times a day for diarrhea and had arthralgias.  He was not interested in any specific treatment.  On the annual medical certification dated 1 August 2001, the CI noted that his symptoms were related to his service in the Persian Gulf and that he had no restrictions.  However, on a record review prior to a possible deployment on 22 September 2001, he was noted that he complained of both memory loss and chronic diarrhea.  He was determined to not be worldwide qualified, issued a temporary P4 profile, and an MEB was initiated.  Despite the temporary P4 profile, he was allowed to continue local drills.  A summary prepared by a Deployment Health Center psychiatrist, dated 19 November 2001, recorded that the CI attributed the memory loss, joint pain and diarrhea to his service in the Persian Gulf.  As noted above, the GI symptoms predated his deployment by several years.  On examination, his cognitive functions were intact as were the thought processes and content.  He was referred for a dental evaluation by the Gulf War Clinic and seen on 20 November 2001.  He was diagnosed with caries and chronic periodontal disease.  Heavy plaque and calculus was also noted, consistent with overall poor dental hygiene.  He was subsequently issued a separate P4 profile for his dental condition.  The CI was admitted on 7 January 2002 to the Gulf War Health Center Specialized Care Program for an evaluation of his symptoms.  A sleep study (polysomnogram) on 9 January 2002 showed the presence of moderate OSA.  The action office observed that symptoms of sleep apnea include fatigue, headaches, poor concentration and memory problems.  During a deployment health clinic note on 10 January 2002, he was noted to have sleep apnea and it was thought to be a possible cause for his fatigue.  The ongoing IBS and memory problems persisted.  A social work assessment on 24 January 2002 documented his report that he was healthy until service in the Gulf War including the onset of diarrhea afterwards.  He also endorsed night sweats, poor sleep, memory loss, joint pain and skin lesions all of which impaired his ability to do his job.  He stated that he had requested a line-of-duty determination in 1991.  The Board again noted though that the GI symptoms predated his deployment and that he denied any symptoms other than IBS on his October 1991 annual history.  Also, multiple subsequent evaluations noted that he had no duty impairment from his conditions.  The discharge narrative from the specialized care clinic was dated 25 January 2002.  It noted that he had multiple physical symptoms related to Gulf War service, the etiology of which remained unspecified despite an exhaustive medical evaluation.  Continued evaluation with a single primary care provider was recommended as well as further evaluation in both the sleep and GI clinics.  He reported that over the prior 6 months, he had missed work a total of 20 days, had work interference for 20 days, interference with recreational and social activities for 10 days and 5 days of interference with home/family activities.  He was noted to have findings on one study suggestive of small vessel disease (this can be seen in some forms of dementia).  He was seen in primary care on 9 February 2002 and it was noted that he was performing his normal duties as an aircraft mechanic.  His complaints included IBS, short-term memory loss, fatigue and joint pain.  A follow-up sleep study on 17 March 2002 documented resolution of his findings on CPAP (continuous positive airway pressure) and its use was recommended.  The clinician noted that the diagnosis did not require an MEB unless the CI failed to obtain relief from treatment.  An evaluation in gastroenterology over the May 2002 timeframe included colonoscopy and stool studies; no etiology for the diarrhea was determined.  An Epworth sleepiness scale on 25 July 2002 indicated that he still endorsed sleepiness when in quiet activities.  An ANG physician conducted a worldwide duty evaluation on 20 October 2002 in conjunction with an upcoming deployment.  The CI was noted to have persistent physical symptoms since participation in the Gulf War which included chronic diarrhea, fatigue, memory loss, joint pain in the knees, hips, and shoulders, headaches, heartburn, light headedness and skin bumps on the nape of his neck.  No etiology for these complaints had been identified.  It was noted that he had completed the three phases of the Deployment Health Center Specialized Care program the previous January.  His persistent symptoms affected his ability to perform all the duties of his AFS and he was unable to deploy.  No non-mobility positions were available in his squadron and he was therefore referred, again, for an MEB.  The commander noted on 21 October 2002, that his duties were impaired from joint and muscle pain, gastrointestinal problems and memory loss.  The commander did not cite the fatigue or sleep problems.  An addendum was dictated on 3 February 2003 by the director of the deployment health clinic which noted that the CI had last been seen in their clinic the previous March for a profile renewal.  No new information was provided in the addendum.  The MEB was dated 18 March 2003 and noted Gulf War Illness (manifested by) moderate sleep apnea, fatigue, irritable bowel syndrome, hypercholesterolemia (and) memory issues.  Neuropsychological testing on 22 May 2003 was not interpretable as performance testing suggested that the CI was not putting forth full and consistent effort.  A diagnosis of somatoform disorder was made with a rule-out diagnosis of malingering.  He reported that his duties had been limited since October 2002 due to his memory and balance problems, but he was involved in the training of new hires.  The IPEB was on 3 June 2003 and a second form was generated dated 19 June 2003.  The latter listed Gulf War Illness with residuals: psoriatic arthritis, as a Category I (unfitting) condition and rated it 20%.  Hypertension, OSA and IBS were Category II conditions and hyperlipidemia and obesity were Category III conditions.  The PEB form documented in the remarks section that the CI was working full duty days albeit with limitations.  He stated that he had missed 2 full days and 2 to 3 partial days of work the past 12 months due to his condition.  He was exercising with short walks 1-2 times a week and had limitations in lifting over 20 pounds, climbing, or any physical training.  He weighed 235 pounds with a maximum allowable weight of 184 pounds.  The Board noted that at his physical in 1996, he weighed 138 pounds, almost 100 pounds less.  At the 9 March 2002 examination, he weighed 153 pounds.  The action officer observed that this weight increase in and of itself would contribute to his symptoms of fatigue, arthralgias, and aggravate his sleep apnea.  However, this weight is also an outlier and could represent an administrative error.  The CI rebutted the adjudication and “demanded” an FPEB.  The FPEB was dated 22 July 2003.  It adjudicated as the Category I condition Gulf War Illness with residuals of: (1). Fatigue, chronic; and, (2). IBS rated separately at 10% each for a combined rating of 19% which rounds to the same 20% adjudicated by the IPEB.  The Category II conditions were memory loss, OSA and joint pain.  The Category III conditions were not listed.  In the remarks section, the PEB noted that the CI had not performed military duties since September 2002, but continued working in the same job as a civil servant (the daily duties would have been identical or very similar; this is a requirement to be a “technician”).  He reported that he lost an average of 4 days a month due to headaches.  The Board observed that a month earlier, at the IPEB, he reported losing 2 full days of work the previous year.  The FPEB also noted that he had been diagnosed with OSA and that CPAP had been shown to be effective in controlling his symptoms although he had failed to obtain a machine.  The PEB opined that his fatigue could be explained by his untreated OSA, but opted to rule in favor of the CI and rate the fatigue at 10%.  The CI rebutted this ruling via legal counsel and submitted a three page letter dated 4 August 2003.  He noted that he continued to work full time to support his family.  He further stated that he had used all of his sick and annual leave.  The Board cannot verify this statement, but noted his statement that he continued to work full time and recalled his testimony to the IPEB that he had only missed two full days of work the prior 12 months.  His case was then reviewed by SAFPC and a memorandum was dated 4 September 2003.  It noted that the joint pain was a subjective complaint without evidence of a physical functional impairment.  It also considered the subjective memory impairment, but referred back to the 22 May 2003 neuropsychological assessment and determined that this was not a separately unfitting condition.  It then considered the OSA condition and noted that a recommendation for the use of CPAP does not automatically render a member unfit for duty.  It found no conclusive basis on which to increase the disability rating at separation.  He was terminated from his civilian position effective 16 January 2004 as noted in a letter dated 8 December 2003, secondary to his medical disqualification from military duty, effective 13 December 2003.  A medical memorandum by a squadron medical officer on 19 December 2003 noted that he was impaired for duty due to his memory loss, sleep apnea, fatigue, muscle and joint pain, orthostatic hypotension.  He was allowed to perform sedentary work which did not require higher cognitive ability or reasoning.  At the VA Compensation and Pension (C&P) digestive system examination performed 4 months after separation on 11 May 2004, the CI noted that he had normal bowel habits until he was in the Persian Gulf in 1991.  He reported six or more stools a day.  His examination was unremarkable and he was diagnosed with diarrhea of an unknown cause.  The C&P general examination was 6 days later on 17 May 2004.  He reported a normal diet, but that he watched what he ate due to the IBS.  He reported that he became dizzy when he stood up too fast and his headaches were secondary to small vessel disease.  He reported pain all over, but particularly in the right shoulder, hip, and knee.  He also reported short term memory loss attributed to the Gulf War condition.  On examination, his weight was 158.9 pounds.  He had decreased motion of the right shoulder and left hip tenderness with decreased motion.  His examination was otherwise unremarkable.  On the 20 May 2004 examination for chronic fatigue, the CI reported that his fatigue was severe enough that his daily activity level was less than 50% and that it had been ongoing for 10 years.  He stated that he had been almost bedridden after strenuous exercise from fatigue.  He also reported migraine and occipital headaches which were disabling for 24 hours and a time and that he had lost 30 days of work in the past 6 months.  He endorsed joint pains, memory problems, poor concentration and poor sleep.  On examination, his weight was 159 pounds.  He had mild tenderness over the shoulders with motion, but otherwise the examination was unremarkable.  X-rays of the knees, hips and shoulders were normal.  Laboratory studies were also normal.  He was thought to have chronic fatigue syndrome, but the examiner did not have access to the military medical records.  The CI was evaluated for joint issues on 1 June 2004.  He noted fatigue as well as muscle and joint pain since his service in the Gulf.  He was noted to ambulate without fatigue, pain or incoordination.  Tenderness of the shoulders and hips was again noted.  Pain in multiple joints with unknown etiology was again noted.  The Board noted that a review of the “points” data indicates that the CI was able to meet his annual drill requirements every year following his deployment in 1991.

The Board directs attention to its rating recommendation based on the above evidence.  The Board noted the inconsistencies in the histories provided by the CI at various appointments and also the inconsistencies between his histories and the records in evidence.  The IBS condition was diagnosed in 1991 after his return from the Gulf.  However, the gastroenterologist noted that the symptoms had been present for 2 years at that point, preceding the deployment by over a year and beginning while in Guard rather than active status.  At various times, the CI reported that the symptoms were resolved and consistently reported that these did not interfere with duty performance until he was entered into the Disability Evaluation System (DES) process.  The PEB and VA both rated the IBS at 10% using code 7319.  The Board noted that the VA later increased the rating to 30% based on the 9 March 2008 C&P, effective the same day.  The Board considered the evidence available for review and found no route to a higher rating.  The Board then considered the fatigue syndrome.  It noted that the CI had untreated OSA and that in a CPAP trial he had a good response to CPAP.  As already noted, symptoms of untreated OSA include fatigue, sleepiness, poor memory and concentration and headaches.  The Board weighed the history provided to the VA and the history provided to the FPEB with that given to the IPEB.  It also noted that the CI consistently reported no duty impairment from his conditions in assessments leading up to his entry into the DES, which was begun due to a non-deployable status.  At the FPEB, he was no longer working in his military capacity (he was also disqualified due to dental issues), but continued to work in his equivalent civil service job.  The Board considered the rating.  The PEB rated the fatigue condition at 10% coded 6354 (chronic fatigue syndrome) whereas the VA, relying on the C&P, rated the condition at 40% also using the 6354 code.  The Board could not account for the discrepancies between the histories provided, but noted that the level of disability reported increased significantly after the IPEB recommended medical separation.  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 Gulf War Illness condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting conditions of memory disorder, OSA, and joint pain were 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 memory disorder and OSA conditions were judged to fail retention standards.  Memory loss and the joint pain were implicated in the commander’s statement.  No condition but dental was specifically profiled.  The Board considered each condition.  The OSA was shown to be treatable with CPAP.  The memory complaints could well have been secondary to the OSA.  Regardless, formal testing was inconclusive and thought to show poor effort.  Also, the CI reported these symptoms for years and yet endorsed no duty impairment from it on multiple occasions prior to entering the DES process.  The joint pains were subjective and on examination, only tenderness was demonstrated with an essentially normal examination otherwise including X-ray studies.  All three conditions were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance sufficiently to render the CI unfit for duty.  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 any of the contended conditions 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.  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 fatigue syndrome and IBS conditions and IAW VASRD §4.88b and 4.114, respectively, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended memory loss, OSA and joint pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  The Board notes for the record that the CI contended for the FPEB appeals which did not include the hyperlipidemia or obesity.  Accordingly, the Board did not adjudicate these, but notes for the record that both were correctly determined to be Category III conditions by the IPEB.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130120, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

SAF/MRB

Dear XXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2013-01121.

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

	I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

							Sincerely,

							

Attachment:
Record of Proceedings