RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02769
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20000505
DATE PLACED ON TDRL:  20000506	
DATE REMOVED FROM TDRL:  20041204

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Combat Documentation Production Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “fibromyalgia with depression and irritable bowel syndrome (IBS),” with a disability rating of 0%.

CI CONTENTION:  “Please consider all conditions.”  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:  

SERVICE PEB – 20000506/20041116	VARD - 20011019	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Fibromyalgia w/IBS, Depressive Disorder, Undifferentiated Somatoform Disorder, and Chronic Musculoskeletal Pains	5025	40%		Fibromyalgia	5025	10%	10%	
				IBS	7319	10%	10%	
				Major Depression w/Anxiety	9434	10%	10%	
Fibromyalgia w/Depression and IBS	5025		0%	Major Depression w/Anxiety	9434	30%	30%	
				IBS	7319	10%	10%	
COMBINED RATING:  40% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Fibromyalgia.  The CI was diagnosed with fibromyalgia (FM) and a few months later was diagnosed with major depressive disorder (MDD) and undifferentiated somatoform disorder by a psychiatrist, and also diagnosed with irritable bowel syndrome (IBS) by a gastroenterologist.  The PEB placed the CI on the Temporary Retired Disabled List (TDRL) in May 2000 and subsumed the mental health (MH) diagnoses and IBS under the VASRD 5025 code, which states “fibromyalgia, 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.”  During deliberations, the Board directed its attention to the FM associated conditions, in particular the MH conditions, to determine if the PEB’s rating and coding approach at TDRL placement was justified in lieu of separate ratings.  When considering separate ratings for unbundled conditions, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the Disability Evaluation System (DES) or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

The Medical Evaluation Board (MEB) psychiatric addendum dated 27 July 1999 determined the CI did not meet retention standards due to the diagnoses of MDD and undifferentiated somatoform disorder.  The permanent P3S3 profile dated 27 October 1999 listed FM, depressive disorder and somatoform disorder.  The commander’s statement dated 28 October 1999 noted the CI’s physical profile, including four hour workdays, impaired the successful performance of his military duties.  The commander also noted that the CI had failed to report to work several times and was pending UCMJ actions for this behavior, which were terminated based on the recommendations of the CI’s psychiatrist and MH therapist.  The commander further stated that the CI’s military career was limited by his physical and mental limitations.  The IBS was not permanently profiled or implicated by the commander’s statement.  The Board concluded that there was a preponderance of evidence in the service records that overcame the Board’s presumption that the bundled FM and MH conditions are each reasonably considered separately unfitting and eligible for separate disability ratings; however, there was a preponderance of evidence that the IBS condition would not by itself have caused the CI to be referred into the DES system and was appropriately subsumed in the rating of the FM condition according to the VASRD 5025 criteria as elaborated above.  Therefore, the evidence for the FM and MH conditions are presented separately below, with attendant rating recommendations. 

According to service treatment records and the MEB narrative summary (NARSUM), in March 1999 the CI was diagnosed with FM by a rheumatologist.  In the early course of treatment for FM, a physical medicine examination noted the presence of 16/18 FM tender points.  In 1999, the CI was also evaluated and treated for irritable bowel syndrome by a gastroenterologist.  The Physical Medicine MEB addendum 26 August 1999, noted diagnoses of FM and chronic musculoskeletal pains, with no other specific musculoskeletal diagnoses.  Rheumatology notes in August indicated that the CI reported improvement in the FM symptoms with medications and aquatic therapy.  A rheumatology examination in November 1999 noted 6/18 tender points on the left side and “slight” improvement in the FM.  However, the CI’s FM condition did not improve sufficiently to meet the requirements of the CI’s military specialty and he was referred for a MEB.  The MEB forwarded “fibromyalgia,” “chronic musculoskeletal pains,” and “irritable bowel syndrome,” for PEB adjudication.

At the MEB NARSUM examination on 7 December 1999, 5 months before separation, the CI reported chronic pain and difficulty working more than four hours.  There was no physical examination performed that day, but STR evaluations were summarized.  

At the 17 October 2000 VA Compensation and Pension (C&P) Spine examination, performed 5 months after TDRL placement, the CI reported intermittent low back pain without radiation to the lower extremities and a two year history of pain in the bilateral shoulders, wrists, hands, hips and feet, “eased” by anti-inflammatory and pain medication.  Physical examination showed a normal gait.  The CI was able to sit and stand normally.  He was able to single leg hop on both feet and squat without difficulty.  Examination of the wrists, hands, hips, and feet were normal, without swelling, tenderness, crepitus, instability or laxity, limited motion, or painful motion and examination of the shoulders was normal except for intact, but tender acromioclavicular joints.  The C&P Peripheral Nerve examination on the same day was a normal examination.  The VA C&P General Medical examination, also on the same day, noted IBS of alternating diarrhea and constipation, treated with a fiber supplement and the CI reported a 40-pound weight gain in the past two years.  

The Board directed attention to its rating recommendation for the FM condition at TDRL placement based on the above evidence.  The PEB assigned a 40% rating under the 5025 code (fibromyalgia), with IBS and MH conditions as noted in the analysis summary.  The VA assigned a 10% rating using the 5025 code based on the VA C&P examination 5 months after TDRL placement.  The VA also rated IBS 10%, coded 7319 (irritable colon syndrome).  There was evidence of chronic musculoskeletal pain and chronic IBS symptoms improved with medication to support a 10% rating for the FM at TDRL placement for FM symptoms that “require continuous medication for control.”  Although the Board may not recommend a lower combined rating at TDRL entry than that of the PEB IAW DoDI 6040.44, it may recommend a lower rating for a single condition as long as this stipulation is not violated.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the FM condition, coded 5025, at TDRL placement.  

At a TDRL FM evaluation on 3 December 2001, the CI reported his current medication regime including an anti-inflammatory medication, antidepressant, and pain medication, worked “fairly well,” but noted that the FM had worsened since he recently started working full time.  He reported variable sleep difficulties noting that on nights he slept longer he felt better the next day.  The CI also reported some continued “difficulty with irritable bowel syndrome” and medications reflected continued use of a fiber supplement.  He reported improvement in his MDD condition.  The physical examination showed full range of motion of the joints without evidence of inflammation.  There were 11/18 FM tender points present above and below the waist, as well as on the right and left side of the body.  The examination of the abdomen was normal.  The TDRL evaluation determined that the FM condition continued to fall below retention standards.  The PEB recommended continuation of the CI on TDRL.

There was no TDRL FM evaluation more proximate to the date of TDRL removal in record.  There was a VA C&P examination dated 17 December 2003 which noted that the CI was on TDRL at the time and was the evaluation cited on the PEB DA Form 199 as “TDRL examination.”  At the VA C&P examination, performed 12 months before separation, the CI reported that his current symptoms including headaches and body aches all over including hips, knees, legs and feet began following a “cold injury” during basic training.  He reported the symptoms were aggravated by cold weather.  Current medications reported were pain medication, a muscle relaxant medication, and anti-inflammatory medication and laxative medication for IBS management.  The CI reported ongoing alternating diarrhea and constipation helped by a recent change in treatment (lactulose).  He also reported a history of major depression and that he was not currently on any medication for this condition.  He reported he was working at the same job noted on earlier examinations above. The physical examination noted a normal gait and posture.  There was no pain or stiffness of any joints, and “no tender spots anywhere in the body.”  Back and hip examination joints were specifically noted to be normal and straight leg raise testing to elicit radicular symptoms was negative.  Neurological examination was completely normal with normal strength, sensation, and reflexes noted as well as normal lower extremity pulses.
A VA C&P examination on 13 October 2004, 2 months before TDRL removal, was noted to be for evaluation of the FM condition.  The examination noted that the CI was under treatment for FM with multiple medications with “controlling of his pain syndrome.”  He reported that at times overexertion and cold weather exacerbated his pain and sometimes a few hours of complete rest improved the symptoms.  He reported he was working part-time and had some lost work time due to the condition.  The CI also reported IBS and MDD followed by a psychiatrist.  The physical examination showed full range of motion of cervical spine, shoulders, upper extremity joints, hips, and knees, without evidence of joint inflammation.  There were greater than 18 tender points noted above and below the waist and on the right and left of the body.  There was no muscle atrophy and there was normal strength, sensation, reflexes of all extremities, with negative SLR.  The CI was able to heel and toe walk without discomfort.  

The Board directed attention to its rating recommendation for the FM condition at TDRL removal based on the above evidence.  The PEB rated the FM condition (inclusive of IBS and MH conditions) 0%, coded 5025, based on the “TDRL examination,” which appears to be the VA C&P examination dated 17 December 2003, citing findings identical to those summarized for that examination above - essentially a normal musculoskeletal examination for FM and no psychiatric care or psychotropic medication use.  There was no VARD in record in proximity to either the December 2003 or October 2004 C&P examinations.  Based on the findings at the C&P examinations in 2003 and 2004 the CI’s FM condition was controlled with medications supporting a 10% rating for FM, coded 5025 and no higher.  Although the CI was noted to be working part time at the 2004 C&P examination and had lost some work time, there was no explanation as to how the FM condition contributed to this, because there was no functional impairment noted at either examination.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the FM condition at permanent separation, coded 5025.  

Contended PEB Condition:  Depression.  According to STR and the MEB NARSUM, in June 1999, the CI presented to the emergency room and reported sleeping 20 hours per day with loss of pleasure and was referred to a MH clinic.  The MEB psychiatric addendum indicated that in June 1999 the CI was admitted to an Adult Partial Psychiatric Hospitalization Program for two weeks with symptoms of depressed mood, hyper somnolence, feeling guilty, helpless, and hopeless, with decreased concentration and appetite and no symptoms of mania or psychosis.  The examiner noted that the CI did report multiple medical symptoms and the onset of the symptoms was associated with increased medical, personal, and work stressors.  The CI reported increased stress due to separation from his spouse due to normal work travel that required her to be away for several months.  There were administrative and legal charges by his command pending due to his failure to report to duty.  He reported being emotionally abused by his mother as a child and sexually molested by his father as a child (age 8 to 13) and four other men at age 13.  He went to college for 2 years until he ran out of money for tuition and then joined the military.  The CI attended multiple types of talk therapy and was treated with psychotropic medications, but there was a poor response to treatment interventions and he was referred to outpatient MH care.

The mental status examination (MSE) on the day of the MEB NARSUM examination on 7 December 1999, 5 months before TDRL placement, was normal.  The CI described his mood as “not overly happy or sad,” and his affect was noted to be “full range, non-labile, and appropriate to thought content.”  The Axis I diagnoses were MDD, single episode, moderate, and undifferentiated somatoform disorder with a global assessment of functioning (GAF) assignment of 55, which is in the moderate impairment range on this scale.  Continued MH treatment with medication and therapy were recommended.  

At the 21 October 2000 VA C&P Mental Health Disorders examination, performed 6 months after TDRL placement, the CI reported 2 years of treatment with medication and psychotherapy for depression, but had not had any antidepressant medication since his separation from the military in May 2000.  He also reported a history of panic attacks in June 1999, but reported he did not have them often now.  He reported a decreased appetite and significant sleep problems, which had only been helped by a specific antidepressant medication.  He reported feelings of worthlessness and decreased concentration.  He denied any SI or auditory hallucinations, but noted that at times in the past he saw figures of people, but it had not occurred recently.  The CI had recently started a job and it was going well (later notes indicated this was a part time job).  He described being married as “okay.”  He and his wife were trying to purchase a house.  The MSE noted a “flat line affect, noticeably flat.”  The MSE was otherwise normal.  The CI was described as “guarded” when discussing the depression diagnosis.  The examiner provided the diagnosis of MDD of moderate severity with a GAF of 55 and indicated the CI needed to be involved in outpatient psychotherapy.  

The Board directed attention to its rating recommendation for the MH condition at TDRL placement based on the above evidence.  As noted above the PEB subsumed the MH conditions under the 40% rating, coded 5025 code.  The VA assigned a 30% rating for major depression with anxiety, coded 9434 (major depressive disorder).  The two MH diagnoses are rated according to the same criteria IAW VASRD 4.130 (Mental disorders) and only one rating may be provided based on total occupational and social functioning and they are addressed together below as the “MH condition.”  The Board first considered if the MH condition remained separately unfitting when separated from the PEB’s combined adjudication with the FM condition.  The commander’s statement implicated the MH condition as impairing the CI’s duty performance and the permanent psychiatric profile was S3.  The Board concluded that the evidence reasonably supports that the CI’s MH condition was separately unfitting at the time of TDRL placement and deliberated a MH rating.  

The Board noted that there was no traumatic event causing the unfitting MH condition and therefore concluded that application of VASRD §4.129 was not appropriate in this case.  The commander’s statement indicated the CI was late for work and missing work due to the MH condition and on this basis the Board concluded that there was evidence of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” 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 to support the 30% rating at the time of TDRL placement.  The Board noted that examinations did not evidence symptoms such as abnormal speech, impaired memory, panic attacks more than once per week, impaired judgment, or difficulty establishing and maintaining effective work and social relationships that are supportive of the 50% rating or other symptoms which caused this level of impairment.  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 MH condition, coded 9423-9434 (undifferentiated somatoform disorder-major depressive disorder) at the time of TDRL placement.  

At a TDRL MH evaluation on 11 September 2001, the CI reported three to four distinct episodes of periods of depressed mood difficulty with sleep, concentration and irritability, changes in appetite and loss of interest and general problems with frequent “anxiety attacks” and low self- esteem.  He reported multiple medical complaints which the examiner stated “cannot be explained by his known medical conditions” and were “in excess of what would be expected” from objective information, and were “consistent with somatoform disorder.”  He reported marital strain and financial strains due in part to his working part time and his wife’s unemployment.  He was attending college classes.  The MSE was normal except for noting the CI appeared “mildly anxious” and exhibited “mild” psychomotor agitation.  The MH diagnoses remained the same and the GAF assignment was again 55.  The psychiatrist noted that the CI did not continue with MH treatment after discharge from the military, but was receiving psychotropic medication prescriptions from his primary care physician.  The CI had stopped one of his antidepressant medications six months earlier due to side effects, but had noted an increase in depressive symptoms since then and requested that the medications be restarted.  The TDRL psychiatrist prescribed one of his prior antidepressant medications and continued an additional one and also indicated that MH treatment was arranged for the CI.  The examiner’s assessment was that the CI was not fit for duty and due to the chronic nature of his symptoms it was unlikely he would improve to the point that he could re-enter active duty and should be referred for consideration of permanent disability retirement.  The PEB on 12 February 2002 recommended continuation of the CI on TDRL.

At the 17 December 2003 VA C&P examination, performed 10 months before TDRL removal, the CI reported a history of major depression and that he was not currently on any medication for this condition.  The examiner indicated further evaluation was need by a MH physician 

The 27 January 2004 VA C&P MH examination, performed 10 months before TDRL removal (separation), noted the CI had no psychiatric hospitalizations since his prior C&P examination.  The CI reported being in outpatient treatment until December of 2002 when he moved and did not re-establish care.  He was not currently on any medications for the MH condition.  He reported sleep and memory difficulties and decreased concentration.  He reported one recent panic attack three months earlier and that his wife thought his moods were erratic and he needed to be on medication.  He reported periods of depression where he stayed in bed for days, but denied SI.  He endorsed anxiety attacks while driving which caused him to become confused about where he was going and he would have to pull off the road and “get his mind together.”  He reported acting out sexually for many years, but not in the last eight months, although he currently had a strong urge to do so.  He endorsed hearing female voices several times per year, but would not give further information on the topic.  He reported drinking alcohol to excess before the birth of his 2.5 month old daughter, but currently said he was not drinking hard liquor but had two to three beers per night.  He was working part time and took one to two “mental health“ days per month and had not enrolled in school since he moved.  He and his wife were about to declare bankruptcy due to high debt levels.  The MSE noted the CI was pleasant and cooperative, but “smiled ironically very frequently.”  Speech was described as “somewhat pressured,” but otherwise normal.  There was no evidence of a thought or communication disorder.  He denied delusions, SI or homicidal ideation.  The Axis I diagnosis was major depression and rule out bipolar disorder and GAF assignment was 48, which is in the serious impairment range on this scale.  The psychiatrist noted that the CI was off medication and out of treatment with “considerable symptoms of depression and anxiety.”  The CI was urged to get into treatment.  The examiner recommended that his disability rating should remain “at least at 30% level and perhaps higher in view of his symptomology at the present time.”  

A medication profile in record showed a prescription for an antidepressant medication (nortriptyline) was filled on 31 August 2004.

The VA C&P examination on 13 October 2004 for FM noted the CI was working part time.  A brief note from a non-VA psychiatrist dated 1 November 2004, 1 month before TDRL removal documented that the CI was under his care for an Axis I diagnosis of major depression with a GAF assignment of 51, which is in the moderate range of impairment on this scale.  A second brief letter from a MH therapist documented that the CI had been in therapy with her since 13 September 2004 on a weekly basis with plans for that to be continued (6-8 weeks before TDRL removal).  

The Board directed attention to its rating recommendation for the MH condition at TDRL removal (separation) based on the above evidence.  The PEB rated the FM condition, subsuming the MH condition at 0%, citing the C&P examination in December 2003 as documenting no medication or psychiatric treatment.  As noted above, there was no VARD in proximity to either of the C&P examinations in 2003 or 2004.  A remote VARD dated 1 September 2010 increased the MH rating from 30% to 50%, effective 23 June 2010, thereby indicating that the VA continued the 30% rating for the MH condition proximate to TDRL removal.  

The Board reviewed the totality of the evidence in record.  Although at the time of permanent separation the CI was not in psychiatric treatment or currently taking psychotropic medications, he was deemed to have “considerable symptoms” by the examining psychiatrist at the January 2004 C&P examination, which was taken in context by the Board to be part of the TDRL evaluation.  The CI was working part time and taking “mental health days” monthly.  He described periodic exacerbations of his MDD when he would not get out bed for days, with recurrent anxiety symptoms, memory problems, and impaired impulse control.  Although there were some elements consistent with a 50% rating, the Board determined that the disability picture due to the MH condition was more nearly approximated by the 30% rating described as elaborated above.  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 MH condition, coded 9423-9434 (undifferentiated somatoform disorder-major depressive disorder) at permanent separation.  

BOARD FINDINGS:  In the matter of the FM with depression and irritable bowel syndrome condition, the Board unanimously recommends a disability rating as follows an unfitting FM condition rated 10% at TDRL placement and permanent separation, coded 5025 IAW VASRD §4.71a and an unfitting MDD condition rated 30% at TDRL placement and 30% at TDRL removal, coded 9423-9434 IAW VASRD §4.130.  There were no other conditions within the Board’s scope of review for consideration.  

The Board 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 prior to medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Fibromyalgia	5025	10%	10%	
Major Depressive Disorder	9423-9434	30%	30%	
Combined	40%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140513, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160013314 (PD201402769)

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 re-characterize 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 decision:

	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