RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02471
BRANCH OF SERVICE:  ArMY 	SEPARATION DATE:  20041013

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E7, Motor Transport Operator, medically separated for “chronic neck pain” and “chronic headache syndrome,” rated 10% and 0% respectively, with a combined disability rating of 10%.  A “fibromyalgia syndrome” condition was determined to exist prior to service (EPTS) without service aggravation; therefore, was not given a disability rating.

CI CONTENTION:  The CI submitted a lengthy contention, which the Board reviewed.  Essentially, the CI contended for his unfit headache and fibromyalgia conditions, as well as his not unfit major depressive disorder.  In addition, the CI contended for rheumatoid arthritis, multiple orthopedic related conditions, and posttraumatic stress disorder (PTSD).  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based upon a 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:  

SERVIC PEB - 20040909	VARD - 20050624  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5299-5237	10%	Degenerative Disease of Cervical Spine	5010	10%	20050114	
Chronic Headache Syndrome	8199-8100	0%	Migraine Headaches	8100	10%	20050114	
Fibromyalgia Syndrome	5025-8100	EPTS	Fibromyalgia	5025	NSC	20050114	
Major Depressive Disorder	Not Unfitting	Major Depressive Disorder with Anxiety, Memory Loss and PTSD	9434	30%	20050113	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Neck Pain. According to service treatment records (STRs) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic neck pain condition began insidiously in approximately September 2003 without any specific mechanism of injury (MOI).  Magnetic resonance imaging (MRI) on 21 October 2003 demonstrated a left paracentral moderate-sized disk protrusion at C4-C5 with significant bony degenerative changes causing severe left sided neural foraminal narrowing and more moderate, but significant right-sided neural foraminal narrowing as well.  There was only mild spinal canal stenosis at that level.  There was a small disk protrusion at C5-C6 with significant bony degenerative changes of the both facets and uncovertebral joints (between C3-C7) causing mild spinal canal narrowing and moderate bilateral neural foraminal narrowing.  There were bony degenerative changes at C6-C7 causing more marked neural foraminal narrowing on the left than the right.  

At an orthopedic visit on 6 November 2003, the CI indicated he had cervical pain with radiating pain for approximately 6-8 weeks.  He did note that he was involved in a motor vehicle accident while in a military vehicle in the summer of 2002 and did not get treatment at that time, but he had been treated for fibromyalgia (see below) for years.  On examination he had 4/5 strength and decreased sensation of the left upper extremity.  Traction was somewhat helpful, but the CI still had radicular symptoms in the left arm.  Treatment consisted of a series of epidural steroid injections (ESIs), the first of which provided some relief.   Despite treatment, the cervical spine condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic neck pain” for PEB adjudication. 

The MEB NARSUM dated 21 February 2004 indicated the CI had numbness in the left arm and a history of five motor vehicle accidents since 1983, the first of which he “was knocked out” and one in 1988 where he had “whiplash.”  An undated Neurology MEB Addendum indicated the CI had normal muscle bulk and tone and his strength was full (5/5) and symmetric in all extremities.  There was decreased pinprick in the left first and second digits.  Causal, heel, toe and tandem walks were normal.  The CI’s diagnosis was cervical disc and joint degenerative disease with left upper extremity radicular symptoms.  

At the orthopedic MEB NARSUM dated 14 November 2003 examination the CI’s cervical spine was mildly tender to palpation with no point tenderness or step offs.  The cervical spine range of motion (ROM) measurements were flexion of 58 degrees (normal 45) and extension of 28 degrees (normal 45), lateral flexion left 29 degrees (normal 45) and right at 38 degrees, and rotation left of  42 degrees (normal 80) and right at 68 degrees.  The left upper extremity had 4/5 strength to elbow flexion and extension, and 4/5 strength with internal and external rotation and abduction/adduction of the shoulder.  There was a full active ROM of the left upper extremity.  Deep tendon reflexes were equal bilaterally. Sensation to light touch was decreased over thumb, index, and small finger with "better" sensation in middle and ring finger.  Surgical versus conservative treatment was discussed and the CI preferred conservative measures prior to considering surgery.  The orthopedic diagnosis was chronic neck pain with left upper extremity neurological symptoms secondary to cervical spine degenerative changes.  Electrodiagnostic studies of the right and left upper extremities were normal except for mild sensory myelinopathy (loss of a portion of a nerve covering) of the right median nerve at the wrist on 18 December 2003.  

At the MEB examination dated 23 December 2003, 10 months prior to separation, the CI checked 'Yes' to recurrent back pain, but did not specifically address neck pain.  The examiner checked 'Normal' to head, face, neck and scalp on the clinical evaluation.  A note dated 29 April 2004 indicated the CI left upper extremity pain had decreased significantly after his ESI.  However, a month after the injection, the CI stated that the pain increased to the point that it was before and even worse with the majority time a severity of 10/10.  He was on multiple pain medications including alternating between Percocet (oxycodone, a narcotic and acetaminophen, a pain reliever) and Darvocet (propoxyphene, a narcotic, and acetaminophen, a pain reliever) and Valium (diazepam, a muscle relaxant), which was changed to Soma (carisoprodol, a muscle relaxant).

At the 14 January 2005 VA Compensation and Pension (C&P) examination, performed 3 months after separation, the CI reported degenerative disease of the cervical spine and examination revealed no complaints of radiating pain on movement.  Muscle spasm was absent, but tenderness was noted and there was no ankylosis.  ROM measurements are in the chart below.  The ROM motions were not limited after repetition.     

The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Cervical ROM
(Degrees)	
Ortho ~11 Mos. Pre-Sep
	PT ~11 Mos. Pre-Sep	Ortho MEB  Addendum ~5 Mos. Pre-Sep
	VA C&P ~3 Mos. Post-Sep	
Flex (45 Normal)	(45)58	(45)65	35	45	
Combined (340)	255	265	240	340	
Comment	Mildly tender to palpation; left upper extremity strength 4/5	Decreased left to right lateral glide at C4-5 and C5-6; decreased posterior to anterior C4-7		No limitation of motion after repetition	
§4.71a Rating	10%	0%	0% (PEB 10%)	0% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5237 code (cervical sprain), citing chronic neck pain with significant degenerative disc disease and further noted “range of motion is near full with local tenderness noted to palpation.  Left upper extremity radicular symptoms are noted; however electrophysiological studies are reported to be normal, not separately ratable.”  The VA also assigned a 10% rating using the 5010 code (arthritis, due to trauma, substantiated by X-ray findings) based on the VA C&P examination 9 months before separation, citing degenerative disease of the cervical spine.

Although there was insufficient limitation of motion to support a minimum rating, the Board agreed a 10% rating was justified for the presence of tenderness.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  The Board then considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  

The Board also considered whether an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Radiographic and electrodiagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations (physical therapy, MEB NARSUM, and VA C&P) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore, the critical decision is whether or not there was a significant neurologic impairment (weakness) which would impact military occupation-specific activities.  There was no evidence in this case that a neurologic abnormality existed to any degree that could be described as functionally impairing.  Based on the aforementioned, the Board concluded that an additional disability rating was not justified on this basis.  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 neck pain condition.  

Chronic Headaches. According to STR and the MEB NARSUM, the CI’s chronic headaches condition began prior to deployment, although while on active duty, he was involved in a motor vehicle accident in which a truck he was driving crashed into an overpass on 4 June 2004.  Since then he complained of memory problems, periods of “spacing out” or losing focus, and losing track of his thought.  He had two prior head injuries, from a childhood concussion and from a motor vehicle accident where he was unconscious for several minutes.  The CI noted frequent headaches in the last several months which were frontal, often around the left eye, throbbing in nature, and minimally responsive to multiple medications.  Zomig (zolmitriptan for migraine relief) seemed to be the most effective abortive and he took Elavil (amitriptyline, an antidepressant and for nerve pain) and atenolol (a beta blocker) as prophylactics.  An MRI dated 2 December 2003 ordered for headaches and cognitive changes demonstrated the brain was without mass or mass effect.  No evidence for an intra-axial (within the brain parenchyma) lesion was identified.  The ventricular system, cisterns, and sulci were unremarkable.  A smooth walled mass was seen in what was believed to be the extra-axial space just superior and lateral to the left orbital cone.  The CI reported a massive headache on 12 December 2003 and the neurologist suspected the mass to be a left periorbital lipoma (a benign fatty tissue tumor) and referred the CI to ophthalmology.    

At the time of an Ophthalmology clinic appointment on 16 December 2003, the CI reported severe headaches for 3-4 months despite taking atenolol, Soma, Neurontin (gabapentin for nerve pain), Valium, Darvocet, Vicodin, (hydrocodone, a narcotic and APAP (acetaminophen), a pain reliever), Voltaren (diclofenac, a nonsteroidal anti-inflammatory drug (NSAID)), Xanax (alprazolam to treat anxiety and panic disorders), Elavil, and Ativan (lorazepam to treat anxiety disorders).  The ocular examination was clinically normal and a mass was noted to be on the left, superior and lateral to the orbital cone, and was considered to be a possible lipoma.  The CI was referred to oculoplastic surgery for evaluation and possible treatment.  

A Line of Duty determination dated 29 March 2004 indicated that the injury pertaining to the CI was found “IN LINE OF DUTY.”  A note dated 9 August 2004 indicated the CI had complaints of a chronic daily headache or almost daily that were incapacitating about 2 days per week.  The headaches had not responded well to abortive (Zomig) or preventive headache medications.  The CI used anti-migraine medication 2 to 3 days per week. The examiner opined that the CI had a small tumor in the orbit of the left eye, which may have contributed to some extent to his frequent headaches, which were predominantly left-sided.  Due to the history of head injury and memory complaints, neurobehavioral testing was obtained, which showed general cognitive abilities in the average to superior range and no evidence of significant cognitive dysfunction; and a diagnosis of “pain disorder associated with psychological factors and general medication” was made.  

On examination for the neurology NARSUM the CI’s head was normocephalic (shaped normally) and atraumatic (without evidence of injury).  He was alert, fully oriented and attentive.  Language was fluent with no dysarthria (difficult or unclear articulation).  There was no evidence of neglect or apraxia (inability to perform particular purposive actions as a result of brain damage).  The remainder of the neurologic examination was normal, although there was decreased vibration in the feet and decreased pinprick in the left first and second digits.  Computerized tomography (CT) demonstrated a lytic lesion (bone appears to be eaten away) involving the lateral wall of the left orbit, which extended into the left frontal bone, but did not extend through it into the base of the skull and was consistent with either an epidermoid cyst (a benign lesion) or a lipoma involving the area.  The examiner’s diagnosis was headache with complaints of short term memory loss and he opined “these may be multifactorial in etiology including his head injury, underlying chronic pain disorder (fibromyalgia) and possibly a primary headache disorder such as chronic daily headache.  The CI reported that much of the pain seems to focus around the left eye and I cannot rule out that the orbital lesion may be contributing to the headaches.”  Despite treatment, the migraine headache condition could not be adequately treated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “headaches” for PEB adjudication.  

At the MEB examination dated 23 December 2003, 10 months prior to separation, the CI did not check frequent or severe headache and the examiner checked normal on the clinical evaluation for the head, face, neck and scalp as well as the skin.  A neurologic note dated 12 January 2004 indicated the CI had headaches almost daily and he awakened frequently from the headaches; medications were not helpful.  The commander’s statement dated 12 August 2004 indicated the CI went from having just occasional migraines and occasional memory loss to being obviously “out of it” several times a conversation.  The commander personally vouched for the fact that the CI did have migraines and pain several times a week.  The commander wrote he did not require the CI “to go to the doctor for each incident because he was already being treated with medication, and being in a quiet, dark room was best for a migraine.”     

At the 14 January 2005 VA C&P examination, performed 3 months after separation, the CI reported migraine headaches for 12 years, which were characterized by attacks of nausea and increased sensitivity to light and noise.  When the attacks occurred, he had to stay in bed and was unable to do anything.  The headache attacks averaged once every day and each attack lasted for 2 hours and the functional impairment was an inability to concentrate.  Treatment was with Zomig and according to the examiner the condition did not result in any time lost from work.  Examination of the cranial nerves revealed normal findings and coordination was within normal limits.    Upper and lower extremities had normal motor and sensory findings and his reflexes were likewise normal.  The diagnosis was migraine headaches based on the subjective factors of history of headaches. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 8199-8100 code (migraine), citing chronic headache syndrome and “there is presented history of several head bumps, with at least one being in line of duty.  Headaches do not rise to level of prostrating, but do impair performance of duty.”  The VA assigned a 10% rating using the 8100 code (migraines) based on the VA C&P examination 3 months after separation, citing migraine headaches.  The rating options under 8100 for migraine headaches, which are open to consideration in this case, rely on the frequency of “prostrating attacks” over the “last several months.”  The DoDI 1332.39 (in effect at separation, but since rescinded) required that “the Service member must stop what he or she is doing and seek medical attention.”  However, VASRD §4.124a does not require seeking medical attention for an attack to be considered prostrating, and a common approach is to apply the clear English definitions of prostrating, which include “utter physical exhaustion or helplessness” (Webster's New World Dictionary of American English), “complete physical or mental exhaustion” or “extreme exhaustion or powerlessness” (Dorland's Illustrated Medical Dictionary).  

The Board carefully considered the frequency and nature of the CI’s headaches including objective evidence and corroborating subjective evidence.  The Board considered the results of the neurology examinations along with the evidence of the treatment records to accurately assess the overall disability picture (§4.2) at the time of separation.  Review of the record based on the neurologist’s opinion and commander’s statement indicated the prostrating attacks were very frequent, which could warrant a 50% rating, but neither one explicitly indicated the attacks were completely prostrating, prolonged or were productive of severe economic inadaptability, while at the VA C&P examination the headaches were reported to occur on a daily basis and each attack lasted 2 hours.  Nevertheless, the attacks occurred more often that the average of once per month over the last several months for which 30% would be the more applicable rating, since the headaches did not appear to rise to a 50% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the chronic headaches condition, coded 8199-8100.  

Fibromyalgia.  According to STR and the MEB NARSUM, the CI’s fibromyalgia condition began in 1993 and a note in June 2000 indicated he had low back pain with sit-ups and was given a P2 profile.  In March 2003 the CI had an Emergency Room visit for back and feet pain where his medications were listed as Soma, Neurontin, atenolol, Elavil, and Darvocet.  He was given Demerol (meperidine, a narcotic) and was referred to podiatry for plantar fasciitis, which he noted on DD 2807-1 had been present and treated in 2001.  A triage note dated 17 June 2003 indicated “now with exacerbation of fibromyalgia symptoms” and “probably should not have been mobilized,” while another note on the same day indicated the CI “was diagnosed with fibromyalgia well prior to this deployment” and was “on multiple medications, which are not supportable in theater.”  

In October 2003 the CI returned to CONUS after 3 months of deployment and was recommended for a medical board.  At a rheumatology visit in August 2003 he was fully ambulatory and displayed no limitations of gait and all joints had a full ROM.  There were no deformities nor active synovitis (joint inflammation).  There was marked tenderness on both medial epicondyles (elbows), right greater than the left.  His right hip had limited painful external rotation with no tenderness in the groin.  He had no crepitus or effusions of the knees.  There were soft tissue tender trigger points on his back paraspinally.  The diagnosis of fibromyalgia and other diagnoses, not in the scope of review, including plantar fasciitis (talagia), medial epicondylitis, and right hip pain (rule out osteoarthritis) were made.  Cortisone injections and/or physical therapy were recommended for the medial epicondylitis and X-rays of the right hip were reported to be within normal limits. The CI continued his previously prescribed medications and was given an intramuscular injection of Toradol (ketorolac, an NSAID) for pain.  In January 2004, an orthopedic note indicated the CI had a good response to the injections for tendinitis of the elbows.  In February 2004 the CI reported “whole body” pain, which was consistent with and diagnosed as fibromyalgia 10 years earlier.  Despite treatment, the “fibromyalgia” condition could not be adequately treated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “fibromyalgia” for PEB adjudication.  

At the MEB examination dated 12 December 2003, 10 months prior to separation, the CI reported fibromyalgia and “back and bony muscle pain associated with it.”  Physical examination revealed bilateral retropatellar crepitus and tenderness to palpation of the medial epicondyles and the left inguinal [area] where the examiner annotated “? small bulge.”  

At the 14 January 2005 VA C&P examination, performed 3 months after separation, the CI complained of multiple muscle pains for 10 years involving the neck, hips and other areas.  He had easy fatigability, headaches, sleep disturbance, stiffness, anxiety and depression.  The VA note stated:  “The claimant is not receiving any treatment for his condition.  There is no functional impairment resulting from the above condition.  The condition did not result in any time lost from work.”  During the examination, there were 10 tender points detected that were located on the neck, hips, legs, and knees.  The VA diagnosis was myalgia based on the history of muscle aches and pain and the presence of muscle tenderness and tender points.  The examiner indicated the condition was active because of the presence of tender points, but the CI did not meet the minimal criteria for the diagnosis of fibromyalgia. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a --% rating under an analogous 5025-8100 code (fibromyalgia (fibrositis, primary fibromyalgia syndrome)-migraine), citing fibromyalgia syndrome, EPTS and noted “There is an established diagnosis of many years duration with ongoing treatment for this time.  Although the Soldier was apparently redeployed because of this condition, in part due to problems with medication management, there has not been permanent service aggravation.”  The VA assigned a not service connected, not aggravated by service rating using the 5025 code (fibromyalgia) based on the VA C&P examination 3 months after separation, citing fibromyalgia, rheumatism, soft tissue.  

Board members first agreed that the fibromyalgia was an EPTS condition.  The question of whether it was service aggravated was then discussed.  The symptoms of fibromyalgia had been present for years prior to the CI’s being mobilized and deployed.   While a triage note indicated an exacerbation of the fibromyalgia, the CI was sent back from deployment because the use of his multiple medications could not be supported in theater.  Upon return from deployment an examination by a rheumatologist noted fibromyalgia along with other not in the scope of review conditions including bilateral epicondylitis, which was subsequently treated with injections, right hip pain (rule out osteoarthritis), and plantar fasciitis.  Therefore, Board members determined that the fibromyalgia, while it may have been exacerbated, was not permanently service aggravated, especially since at the VA examination the examiner noted the CI was not receiving any treatment, although Board members had some reservations with the statement since the CI had been on multiple medications for years and there was no documentation of sudden discontinuation of all of the medication.  

Furthermore, the examiner indicated the condition was active because of the presence of tender points, but the CI did not meet the minimal criteria for the diagnosis of fibromyalgia.  Once again Board members had some skepticism about that statement; however, concluded that although the condition was nevertheless still somewhat active, it was not worse.  Therefore, the fibromyalgia proximate to separation was not exacerbated, worsened, or permanently impaired to any significant degree to warrant a determination of service aggravation of the EPTS condition.  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 fibromyalgia condition.  

Contended PEB Condition-Major Depressive Disorder. The Board’s main charge is to assess the fairness of the PEB’s determination that the major depressive disorder was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The major depressive disorder was profiled, but was not directly implicated in the commander’s statement, but the CI memory deterioration was clearly noted, and was referred by the MEB to the PEB, but was found to be not unfitting by the PEB because the “depression is considered to be multifactorial, largely in response to the chronic pain syndromes as well as multiple drugs administered for other complaints.”   

A Psychiatric MEB Addendum dated 12 November 2003 indicated the CI had ongoing emotional problems related to his family starting while deployed, but worsened since his return.  He described multiple neurovegetative symptoms of depression to include daily depressed mood, crying episodes, isolation/withdrawal, decreased energy/fatigue, changes in appetite and sleep patterns, significant problems with concentration and short-term memory, experiencing significant guilt and feelings of hopelessness as to the future of his medical condition.  He had daily symptoms of anxiety and described significant loss in short-term memory; however, he denied experiencing hallucinations or delusions, never experienced suicidal or homicidal ideations nor reported any symptoms related to a diagnosis of PTSD (posttraumatic stress disorder).  He described witnessing soldiers in body bags and described the death of a young solder as a result of a convoy accident.  On the mental status evaluation the CI was alert and oriented in all spheres.  He did display mild psychomotor agitation, although his thought processes were logical, linear, and goal directed.  He described his mood as “depressed” with a congruent, blunted affect.  He became tearful during the interview.  His speech was normal in rhythm, rate, volume, and tone.  His long term memory and immediate recall appeared normal, but he displayed significant short-term memory loss and had problems with concentration and confusion as to where/why he was at a certain place.  The diagnosis of major depressive disorder, single episode, severe, without psychotic symptoms, as manifested by daily/consistent depressed mood and sadness, uncontrolled episodes of crying, withdrawal/isolation, decreased energy/fatigue, changes in appetite and sleep patterns, feelings of guilt, hopelessness and helplessness, episodes of anxiety, problems with concentration and focus, and short-term memory loss.  The mood disturbance was sufficient enough to cause severe impairment in his occupational and social function.   The degree of impairment for military duty was marked; and the degree impairment for social and industrial adaptability was definite.  The CI agreed to undergo treatment for the symptoms of depression. 

A Psychiatric MEB update dated 3 May 2004 indicated the CI continued outpatient psychiatric treatment to include pharmacologic management and individual psychotherapy for neurovegetative symptoms of depression and anxiety.  Medication included Valium, Ambien (zolpidem, a sedative for treatment of insomnia) and Wellbutrin (bupropion, an antidepressant).  In December 2003 because of short-term memory loss, confusion, and loss of train of thought, the CI underwent neuropsychological testing, which revealed mild to moderate mixed signs or varying levels of cerebral dysfunction most likely accounted for as a manifestation of his major depressive disorder.  He experienced some mild to moderate cognitive dysfunction, more likely classified as a pseudodementia, rather than a separate cognitive disorder or dementia.  The psychiatrist opined that the CI’s level of depression was greatly exacerbated by the physical pain he experienced.  The Axis I diagnosis was major depressive disorder, severe, single episode, without psychotic features, as manifested by persistent depression and a sad mood everyday as well as anhedonia, isolation and withdrawal from others, changes in appetite and weight, insomnia, psychomotor agitation, irritability and anxiety, fatigue/loss of energy, feelings of guilt, hopelessness and helplessness, a poor sense of self-esteem and self-worth, and significant problems with short-term memory with difficulties in concentrating in times of confusion.  The mood disturbance was sufficient enough to cause severe impairment in his occupational and social functioning.  The psychiatrist in a Memorandum for the PEB dated 30 July 2004 indicated the CI’s level of depression was significant and could be incapacitating at times and the CI suffered with pseudodementia, directly related to his clinical depression, which would otherwise have a significant impairment in his occupational functioning.  He added that his clinical depression was also a co-morbid factor related to his chronic and intermittently severe incapacitating pain, due to headaches, degenerative joint disease, and fibromyalgia.  

At the VA mental health examination dated 13 January 2005, 3 months after separation, the CI reported witnessing others being wounded and someone important to him being killed.  Due to the traumatic event, he had increased arousal, persistent difficulty falling or staying asleep, an exaggerated episodic startle response, difficulty concentrating, and hypervigilance.  During the mental status examination his orientation was within normal limits.  Affect and mood were abnormal with depressed mood, although the depression did not affect his ability to function independently and effectively.  Panic attacks were present and were reported to occur as often as eight times per month and lasted for 15 minutes.  Thought processes were appropriate; judgment was not impaired; and abstract thinking was normal.  Memory was within normal limits and suicidal and homicidal ideation were absent.  The VA examiner’s diagnosis was PTSD and major depressive disorder and he felt each diagnosis had clearly discernible diagnostic criteria.  The Global Assessment of Functioning (GAF) was 50 (serious symptoms or any serious impairment in social, occupational, or school functioning.)

A majority of the Board members felt there was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, and in consideration of the preponderance of the evidence, the Board majority concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the major depressive disorder condition; and so, no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.   In the matter of the chronic headaches condition, the Board unanimously recommends a disability rating of 30%, coded 8199-8100 IAW VASRD §4.124a.   In the matter of the fibromyalgia condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended major depressive disorder condition, the Board majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  

The Board majority recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5299-5237	10%	
Chronic Headaches	8199-8100	30%	
Fibromyalgia	5025	EPTS	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140723, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

Minority Opinion.  The minority voter recommends the CI be found unfit.  While the CI was noted to have emotional difficulties and anxiety related to family issues during deployment, his mental health was not the primary reason for his redeployment, but was related to medication use in the theater of operations for his long standing fibromyalgia.  Nevertheless, when he returned to his home base, his mental status deteriorated enough such that he was given an S3 profile on 17 May 2004 for the major depressive disorder as well as for the r/o amnestic disorder.  As noted above, the CI was involved in a motor vehicle accident prior to deployment.  In a note dated 10 December 2003 to his psychiatrist, he noted that “after the accident my asst. driver and I were obviously nervous and traumatized. . . I had, and still don’t have any memory of the 3 day previous to the accident.”  That memory impairment along with his other medical conditions contributed to the major depressive disorder, which was treated with several medications with limited effect.  In regard to the CI’s performance, no one can better address that issue than his psychiatrist and his commanding officer.  The psychiatrist wrote on 23 June 2004 that the CI’s “psychiatric conditions are considered severe” and a future stay at the base “will most certainly result in further decompensation, as well as a significant risk of acting out behaviors.”  In a request for reconsideration of the PEB’s finding of “not unfitting and therefore not ratable” his psychiatrist, who worked closely with him since September 2003 wrote: “I feel his level of depression is significant and can be incapacitating at times. . . He suffers with pseudodementia, directly related to his clinical depression, which would otherwise have a significant impairment in his occupational functioning. . . [and he] continues to suffer with a severe level of depression.” In August 2004 his detachment commander in a Medical Hold unit, where he was stationed for over a year, noted he had memory loss, which she witnessed “worsen by the week” to be obviously ‘out of it’ several times in a conversation.”  Six months post-separation in a Medical Source Statement Concerning the Nature and Severity of an Individual’s Mental Health Impairment dated 14 April 2005 the CI was found to be severely limited in understanding and memory, sustained concentration and persistence, social interaction, and adaptation, and work stressors would increase the level of impairment.  Clearly, the preponderance of the evidence with regard to the functional impairment of the major depressive disorder condition favors its recommendation as an additionally unfitting condition for disability rating.  

While the VA examiner diagnosed PTSD, the service psychiatrist clearly indicated the CI did not report any symptoms of PTSD nor did the service record address any symptoms related to the deployment, although the CI indicated he was involved in an automobile accident while on active duty to which he related his headaches.  Regardless of specific diagnosis, consideration of the application of §4.129 is appropriate based on the evidence of a limited traumatic stressor in the service records.  However, based on the totality of the evidence in the STR, the evidence does not support a traumatic stressor as the sole or primary cause of the mental condition for which application of VASRD §4.129 would be appropriate, but instead seemed to be multifactorial with components related to the fibromyalgia, the CI’s personal and family life, and the cognitive changes. 

The minority voter recommends the condition be appropriately coded 9434 to meet the VASRD §4.130 criteria for a 30% rating (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), but did not seem to rise above the 30% level at the time of separation based on his service psychiatrist’s recommendation that “at a minimum,” the CI “deserves a ‘definite’ rating for the degree of impairments for social and industrial adaptability” despite the VA finding 6 months post-separation of across the board of markedly limited impairment without specific examples, details, or explanations, which the VA actually rated 30% as noted by the VARD (VA Rating Decision) proximate to separation, albeit was modified upward at a later date.   

Therefore, the minority voter recommends the Board finding related to the CI’s major depressive disorder be modified as follows:

In the matter of the contended major depressive condition, the Board agrees that it was unfitting and recommends a disability rating of 30%, coded 9434 IAW VASRD §4.130.  

Furthermore, the minority voter recommends the permanent rating chart be modified as follows:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5299-5237	10%	
Chronic Headaches	8199-8100	30%	
Fibromyalgia	5025	EPTS	
Major Depressive Disorder	9434	30%	
COMBINED	60%	

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX AR20160016867, PD201402471

1.  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 reject the Board’s recommendation and the Board’s minority opinion.  I accept that the applicant’s final Physical Evaluation Board disability rating of 10% remains unchanged.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.

2.  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:
 
Enclosures						     

CF: 
(  ) DoD PDBR
(  ) DVA