RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02380
BRANCH OF SERVICE:  Army	BOARD DATE:  20150629
Separation Date:  20050429

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Transport Operator) medically separated for leg and low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The leg and LBP was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated leg and LBP as unfitting, rated 0%, with likely application of US Army Physical Disability Agency (USAPDA) pain policy AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please Consider All Conditions.”

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 20050303	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Leg Pain and LBP	5099-5003	0%	Fibromyalgia to include Bilateral Leg and Knee  Pain 	5025	20%	20050720	
			Intervertebral Disc Disease	5243**	10%	20060308	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 10	
RATING:  0%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20060123 (most proximate to date of separation [DOS]).
** Derived from deferred VARD dated 20060414.

ANALYSIS SUMMARY:
Leg Pain and LBP Condition.  In February 2004, the CI presented with a 5-day history of bilateral knee pain.  The examiner documented a prior diagnosis of systemic lupus erythematosus as a teenage which was treated with steroids and in remission for almost 2 years.  Radiographic evaluations performed on 30 March 2004 documented stress changes of the ankle and feet.  At a rheumatology evaluation in March 2004 the CI reported symptoms of joint pains, headaches, mild tremors, and morning stiffness for 1-2 hours.  The examiner also noted a past history of iritis (inflammation of the iris in the eye) with her last episode 6 months prior to this evaluation.  There were physical findings of a normal eye exam, knee and bilateral leg calf tenderness to palpation (TTP), the right calve was 1 cm larger than the left, and spine TTP in the posterior flanks bilaterally.  The CI continued to be followed by rheumatology with physical findings of full spine range-of motion (ROM) without pain, normal curvature, bilateral knee TTP along joint lines and over the patella on the left and mild TTP bilateral ankle.  The examiner opined that her symptoms, history of positive laboratory test for autoimmune diseases (antinuclear antibody), hematuria (blood in urine), and small proteinuria (protein in urine) a systemic autoimmune disease like lupus was to be considered along with sarcoidosis and Sjogren’s syndrome.  The Rheumatologist in June 2004 noted symptoms of rash (possible Raynaud’s), fatigue, episodic shortness of breath and hand paresthesias especially at night, swelling the lower extremities from the knees to her feet, pain in the knees, ankles and shins, pain increased when first walking and worse after physical therapy (PT), morning stiffness in the ankles that lasted 10-15 minutes and LBP that worsened with staying upright.  There were physical findings of diffuse TTP over the lower extremities from the thigh to distal feet and myofascial TTP.  The examiner opined that the CI presentation was consistent with a fibromyalgia-like syndrome.  The MEB narrative summary exam dated 19 July 2004, approximately 10 months prior to separation documented that the CI reported that her legs – primarily the knees and ankles were very painful and she used a cane to keep the pressure off her legs when she walked.  The pain was so severe that her sleep was interfered with.  Her back hurt in the lower back and when she would lie down.  The examiner noted that the CI also had a headache disorder, tension type and possible migraines and abdominal pain above the umbilicus.  There were physical exam findings of full ROM of all joints, knees, thighs hips and pressure points of the legs - TTP, fine resting tremor of the right hand, back- straight spine, flexion to 70 degrees, very tender to light palpation at L5-S1, very light pressure would induce pain, straight leg raising with thighs flexed at 30 degrees pain was localized to the lower back.  

The neurological exam was normal.  Laboratory tests, which included a full lupus panel, were normal.  The CI was given a permanent P3L3 profile for widespread joint aches, chronic in knees, ankles-possible connective tissue disease or fibromyalgia with additional restrictions of weight training at tolerance and no marching.  A lumbar spine magnetic resonance imaging performed in October 2004 demonstrated minimal degenerative changes and lumbar level 4-5 disc bulging with minimal compression of the right nerve root.  At an electromyelogram performed in November 2004 the PT ROMs performed in December 2004 for the MEB demonstrated lumbar spine flexion limited to 70 degrees (normal 90 degrees) without reference to pain limited motion.  A MEB addendum addressed the 100 pound weight gain stated by the PEB.  Documentation in this addendum indicated that the CI weighed 202 pounds in March 2004 and 215 pounds in November 2004.The CI underwent multiple VA Compensation and Pension exams from 20 July 2005 to 2 August 2005 approximately 5 months after separation which are missing from the evidence.  The 23 January 2006 VARD documented multiple joint pains and a possible diagnosis of fibromyalgia.  The CI reported that she could walk for about 20 to 30 minutes on a good day and would have to stop because of worsening pain in her legs; there was pain and swelling in the knees and painful ankles and shoulders.  She further reported that “on a good day” she could perform all of her activities of daily living, but at other times she could not move at all and required either a cane or wheelchair for mobility.  There were physical examination findings of a slightly antalgic gait; shoulder TTP; limited ROM in the knees, hips and shoulders; and decreased reflexes in the triceps, knees and ankles.  The examiner diagnosed fibromyalgia and pain in the shoulders, hips, knees and feet.  The CI had spine flexion ROM of 80 degrees with painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the leg and lower back pain conditions under a single disability rating, coded analogously to 5003 and rated at 0% with application of USAPDA pain policy AR 635-40.  The VA coded the condition as  5025 (fibromyalgia), included the  bilateral leg and knee pain as part the criteria for wide spread musculoskeletal pain, and rated at 20%.  Additionally VA coded the intervertebral disc disease condition as 5243 and rated at 10%.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for Service rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  The Board determined that the radiographic evidence and multiple treatment notes for multi-joint and LBP supported the conclusion that each condition was reasonably justified as separately unfitting.  The Board then considered rating the conditions.

The Board considered rating the lower extremity and back pain separately; however, the lower extremity condition was described by rheumatology and the MEB examiner as part of a “fibromyalgia like syndrome” and was initially forwarded by the MEB as diffuse arthralgia, possible fibromyalgia.  Widespread joint aches was profiled and implicated in the commander’s statement.  Board noted that the service treatment record evidenced headaches, fatigue, and joint stiffness, musculoskeletal pain including the LBP and possible Raynaud’s symptoms which are all part of the constellation of fibromyalgia symptoms.  The Board agreed that CI’s lower extremity and LBP symptoms were part the constellation of fibromyalgia like symptoms and that the functional deficits were most closely approximate by the fibromyalgia rating criteria.  There is clear and convincing evidence that the symptoms were constant and did not respond to the medication regimes, despite the CI being compliant with all medication therapy. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that the low extremity and lower back pain conditions be subsumed in the rating of the fibromyalgia like condition and rated at 40%.

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.  As discussed above, PEB reliance on the USAPDA pain policy (635-40) for rating the leg pain and LBP conditions was operant in this case and the conditions were adjudicated independently of that policy by the Board.  In the matter of the leg pain and LBP conditions, the Board unanimously determined that each was separately unfitting; however, they were part of a fibromyalgia like syndrome and recommends a disability rating of 40%, coded 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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Fibromyalgia (Leg and LBP)	5025	40%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140523, 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, AR20160000275 (PD201402380)

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