RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD-2013-01286	
BRANCH OF SERVICE:  Army	 BOARD DATE:  20151020
SEPARATION DATE:  20050121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army National Guard E-5, Motor Transport Operator, medically separated for arthritis.  The condition did not improve adequately to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3, U3, L3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “inflammatory arthritis involving all major joints” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “seronegative inflammatory arthritis without X-ray abnormality,” rated 20%.  The CI made no appeals, and was medically separated.  

CI CONTENTION:  “Currently 40% SC I was told I would have a medical discharge but when I received my document it was not a medical retirement.  I would have stayed in to get my 20 years if I could have.” His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  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 has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

IPEB – dated 20041208	VA – (1 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Seronegative Inflammatory Arthritis	5099-5002	20%	Seronegative Inflammatory Arthritis and Fibromyalgia	5009-5025	40%	20041214	
Other x 0 (Not in Scope)	Other x 4	20041214	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20050215 (most proximate to date of separation [DOS]) 

ANALYSIS SUMMARY:  

Seronegative Inflammatory Arthritis.  The MEB Narrative Summary (NARSUM) and treatment record indicated that the CI developed pain in multiple joints following a left knee injury in August 2003.  The CI developed “joint pain and arthritis involvement with his hips, fingers, toes, elbows, shoulders, neck and back.”  Following a civilian rheumatologist’s testing and evaluation, the CI was diagnosed with seronegative inflammatory arthritis and fibromyalgia.  Despite a 30 day tapering dose of systemic steroids (prednisone), anti-inflammatory medications (NSAID - Clinoril), and a muscle relaxant (Flexeril), the CI’s joint pains and swellings persisted.  The CI was given a permanent P3U3L3 profile for “inflammatory arthritis with knees, hips, ankles, back, shoulders, elbows, wrist involvement” with additional restrictions of no PT, APFT, no running, jumping or road march and avoidance of stairs.  On 19 August 2004, the Rheumatologist documented multiple trigger points’ tenderness on physical exam and diagnosed seronegative inflammatory arthritis with myositis superimposed on active fibromyalgia, as evident from typical fibrositic tender points, tender and swollen joints.  The Rheumatologist indicated the CI was on steroids (Medrol - methylprednisolone) as needed.  

At the MEB exam, on 20 August 2004 (approximately 5 months prior to separation), the CI reported persistent pain in the knees, hips, ankles, back, shoulders, elbows, wrist (as on profile); as well as in the neck, hands, fingers, and toes with swelling in his toes and fingers.  “He had stabbing pains in hips, elbow and shoulders.  He cannot run due to chronic pain.”  The joint pain worsened with increased activity or stress and the examiner indicated the CI had functional limitations with multiple physical activities including difficulty with manual dexterity.  There were exam findings of tenderness to palpation (TTP) with slight measured limitations of range-of-motion (ROM) to the neck, back and knees [cervical spine (text “full ROM;” measured lacking 5 degrees of forward flexion); lumbosacral spine (text “good ROM;” measured lacking 10 degrees of forward flexion and lacking 120 degrees of combined ROM); and knees (lacking 20 degrees of flexion with crepitus noted)].  The shoulders had TTP and stiffness (ROM not measured); elbows had “anterior joint pain;” toes with TTP; and hands “with minimal soreness.”  There was no active inflammation.  A bone scan (November 2003) had documented mild increased uptake in multiple joints suggestive of degenerative changes.  An electromyogram (EMG) of the lower extremities (January 2004) was normal.  X-rays (March 2004) of multiple joints were normal aside from an abnormal right foot with great toe bunion and calcaneal spur.  Comprehensive blood testing was essentially negative with no anemia.  

The VA Compensation and Pension (C&P) exam dated 14 December 2004, approximately a month prior to separation, documented that the CI reported constant pain, fatigability, headaches, sleep disturbance, stiffness, anxiety, depression, and paresthesia for more than 2/3 of the time per year.  The symptoms were precipitated by emotional stress and anxiety.  He had functional limitations during flares of an inability to stand, walk, climb and lift due to joint and muscle pain with spasms.  His medications were an NSAID, muscle relaxant and antidepressant.  There were physical exam findings of muscular pain in the spine and extremities and greater than 20 myofascial tender points detected on palpation in the paraspinal and proximal extremities.  Detailed exam of the knees and ankles were normal.  The examiner opined that the CI required continuous treatment to control this condition because his symptoms were persistent.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the “Seronegative Inflammatory Arthritis” condition as 5099 analogous to 5002 (arthritis rheumatoid [atrophic] as an active process) and rated at 20% (one or two exacerbations a year in a well-established diagnosis).  The VA coded the “Seronegative Inflammatory Arthritis and Fibromyalgia” condition as 5009 (arthritis, other types; seronegative) coupled to 5025 (fibromyalgia) and rated at 40% (“with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms:  That are constant, or nearly so, and refractory to therapy”).  Since the CI had seronegative arthritis, and not rheumatoid arthritis, code 5009 (arthritis, other types) is more accurate, while still using the rating criteria of 5002.  

The Board considered the coding and criteria of 5002 (as an active process), 5002 (for evidence of chronic residual joint involvement for affected joints), and analogous to 5025 (fibromyalgia).  The rheumatologist documented diagnoses of seronegative inflammatory arthritis with myositis superimposed on active fibromyalgia and the symptoms from the diagnoses were not distinctly separable in this case.  Regarding rating under 5002 (as an active process), there was no severe impairment of health or symptom combinations productive of definite impairment of health objectively supported by examination findings or “incapacitating exacerbations occurring 3 or more times a year” for any rating above 20%.  The Board next considered rating under 5002 (for chronic residuals); however, unbundling the painful joints in light of the DoD requirement for separate fitness determinations and the pre-separation VA exam findings of no specific joint disability or objective findings would not provide an avenue to a higher rating.  

The Board next considered rating 5009 (seronegative arthritis) analogous to 5025 (fibromyalgia).  The 40% criteria is for symptoms “that are constant, or nearly so, and refractory to therapy.”  The exam closest to separation indicated that the CI’s symptoms of widespread musculoskeletal pain and tender points were persistent despite continuous medication.  The Board agreed that the CI’s disability picture at the time of separation more closely aligned with the 40% rating criteria for code 5025.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the seronegative inflammatory arthritis condition coded 5009-5025.  

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 Seronegative Inflammatory Arthritis condition, the Board unanimously recommends a disability rating of 40%, coded 5009-5025 IAW VASRD §4.71a.  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	
Seronegative Inflammatory Arthritis	5009-5025	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130911, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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, AR20150018461 (PD201301286)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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 that the individual was separated by reason of permanent disability retirement 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 date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA