RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00695
BRANCH OF SERVICE:  Army	BOARD DATE:  20150630
Separation Date:  20060808

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-4 (Military Police) medically separated for fibromyalgia syndrome and chronic right knee pain.  These 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 P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic daily tension headache and intermittent classic migraine,” “chronic right knee pain persistent after anterior cruciate ligament repair,” and “fibromyalgia” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (mild sleep apnea) for PEB adjudication.  The Informal PEB adjudicated “fibromyalgia syndrome with arthralgia and myalgia, chronic headaches” and “chronic right knee pain, status post (S/P) ACL reconstruction as unfitting, rated 10% and 10%” respectively, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition was determined to be medically acceptable.  The CI did not concur with the PEB adjudication but waved a formal hearing and was medically separated.

CI CONTENTION:  The CI contended there are additional conditions for which he should have been rated.  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 20060705	VA* - (~7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fibromyalgia Syndrome…	5025	10%	Fibromyalgia with Chronic Headaches and Chronic Diarrhea/Celiac Disease/Digestive Problems	5025	40%	20070321	
Chronic Right Knee Pain, S/P ACL reconstruction, stable	5099-5003	10%	Right Knee Degenerative Joint Disease(DJD)	5260-5010	10%	Service Treatment Record (STR)	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 11 (equals SC, NSC & deferred)	
RATING:  20%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20070530 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board notes the current VA ratings listed by the CI for all of his service-connected conditions, but must emphasize that its recommendations are premised on severity at the time of separation.  The VA ratings which it considers in that regard are those rendered most proximate to separation.  The Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs.

Fibromyalgia Syndrome… Condition.  The CI developed multiple muscle and joint pains throughout his body while serving in Iraq.  The civilian neurologist documented that the CI reported chronic daily headaches, numbness and tingling in his feet, ongoing memory loss, and bowel movements that alternated between diarrhea and constipation for approximately a year.  He was started on Cipro; however, the irritable bowel symptoms continued.  A comprehensive neurological exam was normal.  The examiner noted that the bowel symptoms could be irritable bowel syndrome and ordered a neurodiagnostic evaluation to determine if there were signs of early polysensory neuropathy and opined that the mild headaches could be chronic daily tension type headaches.  A brain magnetic resonance imaging (MRI) was normal.  A nerve conduction study was normal, no evidence of a radiculopathy or neuropathy.  The civilian neurologist documented that the CI continued with his chronic symptoms of bowel dysfunction, numbness and tingling and chronic headaches.  A lumbar spine MRI showed lumbar muscle spasm, no disc disease.  The CI was seen in the emergency room for an acute intractable migraine headache.  The neurologist noted that the CI had chronic headaches rated 3/10 at baseline with occasional more severe “migraine” headaches that occurred about once weekly over both temples which were worse with exertion and relieved by medication in about one and one half hours.  The daily headaches were a dull pain with once weekly exacerbations of severe throbbing episodes associated with tunneling or blurred vision with photophonia and photophobia which caused the CI to lie down for several hours.  He also experienced intermittent tingling of both hands and feet which was controlled with medication.  The examiner diagnosed both a chronic daily tension type headaches as well as intermittent migraine episodes.  A thoracic spine MRI done for a history of mid to low back pain with numbness and in the lower extremities showed a loss of disc height and hydration at severe; thoracolumbar vertebrae with disc bulge and spondylosis near the thoracolumbar junction.  The radiologist recommended a lumbar spine MRI for more accurate visualization.  The physician documented that the CI reported severe polyarticular joint pain, very severe fatigue, headaches, skin rashes, numbness and tingling in the extremities, and sleep disturbance, despite being appropriately medicated.  The physical exam findings were pain on palpation over both lateral epicondyles and trigger points in the muscles of the upper and lower back.  The examiner opined that the CI most probably had fibromyalgia.

The MEB narrative summary (NARSUM) exam 4 months prior to separation documented that the CI reported bad headaches, muscle aches, pains and joint aches and pains.  The headaches which developed at the same time as the gastrointestinal symptoms continued.  The CI reported multiple joint pains, muscle aches and pains, feelings of weakness, easy fatigability and right upper and lower extremity weakness.  His present medications were Migrenol, Klonopin, Aricept and Topamax to control the tremors, headaches and memory loss.  There were physical exam findings of tenderness to palpation over at least 12/16 trigger points, right flexor extensor muscles of the upper extremity were 3/5 and the right lower extremity strength was estimated at 4/5 in flexion and extension.  The neurological exam was normal.  The examiner opined that the CI had multiple problems that prevented him from performing any of the functional activities required of soldiering and that he was totally unable to perform any aerobic functions toward attempting to pass a pulmonary function test.  The examiner further opined that the CI’s prognoses were fair to good.  The examiner rated the headache pain as slight and constant in accordance with the American Medical Association (AMA) pain rating scale.  The commander’s statement noted that the CI was physically incapable to reasonably performing his MOS duties due to his physical condition of multiple joint pain, chronic headaches, and fatigue.  The CI was given a permanent P3L3 profile with Code C and U restrictions for chronic daily headaches, severe fibromyalgia, mild sleep apnea and chronic right knee pain persistent after anterior cruciate ligament (ACL) repair.  The examiner saw the CI in follow-up and there was no resolution in his symptoms or improvement in them.  The rheumatologist noted that the CI was maintained on a medication treatment regimen for migraine like headaches, memory problems, however he still continued with fibromyalgia type depression, persistent fatigue, poor sleep, and fibromyalgia symptoms.  The VA Compensation and Pension (C&P) exam 7 months after separation documented bilateral hand tremors which were persistent and had worsened with rare episodes of head tremor that involved the lips, cheeks and eyes.  He continued with watery diarrhea that occurred four times weekly, 2 days included watery bowel movements which caused a 14 pound weight loss over the past year.  He also reported memory loss, multiple joint pains, multiple muscle pains, non-restless sleep, chronic headaches, and back pain and anxiety attacks with hyperventilation.  The headaches were noted to be a dull steady pain aggravated by cervical range of motion without any associated photophobia or phonophobia; however he did have episodes of dysarthria, vertigo, lightheadedness, nausea and incoordination. He would have weekly exacerbations.  There were physical exam findings of mild bilateral ankle, elbow and wrist tenderness and abdominal tenderness in the right upper quadrant.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the fibromyalgia syndrome condition as 5025 (Fibromyalgia) and rated at 10%.  The VA coded the fibromyalgia condition as 5025 and rated at 40%.  The Board first considered the headaches that were described as chronic daily tension type headaches as well as intermittent migraine episodes.  The headaches were reported at the time of the GI symptoms and muscle joint pains.  The fibromyalgia symptom constellation included headaches and does not make the distinction from migraines versus daily tension headaches.  The Board agreed that the migraine headaches in this case were not separately unfitting and were part of the fibromyalgia symptom constellation.  The Board next turned its attention to the rating of the fibromyalgia condition.  The Board agreed that the CI’s continuous symptoms refractory to treatment far exceeded the 10% rating criteria of - That require continuous medication for control.  The Board then focused on the 40% rating criteria of - That are constant, or nearly so and refractory to therapy versus the 20% rating criteria of- That are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time.  There was well documented evidence that the CI had chronic fibromyalgia symptoms that were refractory to medication.  At no time was there any indication that the CI was non-compliant with his medication treatment regimen.  All documentation proximal to separation indicated that the CI had constant chronic symptoms that were refractory to treatment despite being compliant with his medication regimen. 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 Fibromyalgia condition.

Chronic Right Knee Pain, S/P ACL reconstruction, stable Condition:  The CI injured his knee while playing soccer in Iraq in 2004.  He sustained a hyperextension injury with effusion and feeling of instability.  There were physical exam findings of tenderness along the medial collateral ligament, medial joint line and fibular head along with a moderate effusion over the quadriceps tendon.  A right knee MRI showed a “lax” ACL which was questionable for a tear.  A right knee x-ray showed abnormal soft tissues without fracture or dislocation.  At an orthopedic evaluation the CI reported that the knee felt “springy when he put pressure on it”; knee locking if he did not wear the knee brace, instability without the brace, and pain.  There were physical exam findings of effusion; active range-of-motion (ROM) of 70 degrees with pain medially; full extension with pain along the medial quadriceps tendon;’ medial joint line mild valgus instability flexed at 30 degrees with pain along the medial aspect of the knee; and a positive Lachman’s (instability).  The physical therapist noted exam findings of tenderness in the medial knee and patella tendon.  The CI continued undergo extensive right knee PT without improvement.  The CI underwent a right knee ACL reconstruction on 4 August 2004.  Despite post-operative physical therapy the CI continued to report chronic knee pain.  The MEB NARSUM exam 4 months prior to separation documented reports of daily constant pain which varied in intensity.  The pain was aggravated by going up and down stairs, walking over uneven terrain, and squatting.  The examiner rated the right knee pain as slight and constant in accordance with the AMA pain rating scale.  The MEB NARSUM physical exam findings are summarized in the chart below.  The VA C&P exam documented constant right knee pain and lateral numbness; aggravated by running, bike riding, or vigorous physical activity.  The VA C&P physical exam findings are summarized in the chart below.

There were ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.
Right Knee ROM
(Degrees)	MEB ~4.5Mo. Pre-Sep
	VA C&P ~7.5 Mo. Post-Sep
	
Flexion (140 Normal)	120*	130 115* 	
Extension (0 Normal)	0	0	
Comment	*Pain at end point; Moderate tenderness along medial joint line >lateral joint line	*with pain; 	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic right knee pain condition analogous to 5003(Arthritis, degenerative) and rated at 10%. The VA coded the right knee condition 5260-5010 (Leg, limitation of flexion of – Arthritis), due to trauma and rated at 10%.  All evidence proximate to separation documented pain with all activity and with ROM VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion” and VASRD §4.59 Painful motion provides an alternate justification for a 10% rating.  The Board considered using the coding schema of 5257 (other impairments of the knee); however, there was no evidence of recurrent subluxation or lateral instability as required for that code.  The right knee condition could not be reasonably rated higher than 10% using any exam proximate to separation or any alternate rating schema.  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 chronic right knee pain, s/p ACL reconstruction, stable condition.

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 fibromyalgia syndrome condition, the Board unanimously recommends a disability rating of40% coded 5025 IAW VASRD §4.71a.  In the matter of the chronic right knee pain, s/p ACL reconstruction, stable condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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	
Fibromyalgia Syndrome	5025	40%	
Chronic Right Knee Pain, S/P ACL reconstruction, stable	5099-5003	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140114, 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 XXXXXXXXXXXXXXXXXXXXXXXX, AR20160000251 (PD201400695)

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 50% 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 50% 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