RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00028
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20030703

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O1, Nurse, medically separated for “mechanical low back pain” and “fibromyalgia,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

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 - 20030423	VARD - 20040224	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Mechanical Low Back Pain	5295	10%	L4-L5 and L5-S1 Disc Herniation and Asymptomatic T9-T10 Disc Herniation	5243	20%	20030923	
			L5-S1 Radiculopathy, Right	8799-8720	10%	20030923	
Fibromyalgia	5025	10%	Fibromyalgia	5025	10%	20031022	
Trochanter Bursitis	Cat II	No VA Placement	
Chronic Pain	Cat II	No VA Placement	
Mood Disorder	Cat III  	Adjustment Disorder, Mild Depressed Mood	9499-9439	10%	20030924	
Psoriatic Arthritis, Right Great Toe And Left Fourth Finger	Cat III	Right Second Hammer Toe 	5010-5282	10%	20030923	
		Residuals of Psoriatic Arthritis	7816	10%	20031023	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Mechanical Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered an onset of low back pain in January 2002 after moving a heavy patient.  This was associated with right lower extremity (RLE) radiation with intermittent reports of sensory symptoms; and, he reported to some examiners that he had been experiencing a foot drop and other subjective complaints of RLE weakness.  Magnetic resonance imaging (MRI), initial and repeat MRI, demonstrated degenerative disc disease (“small” protrusions at T9/10, L4/5, and L5/S1 without nerve root impingement), and electrodiagnostic (EMG) testing was normal.  The majority of neurological examinations in STR clinical entries were normal, although some documented mild (4-4+/5) RLE deficits at the L4-S1 levels (ankle and great toe dorsiflexion), and there was occasional note of RLE sensory (distal L5) and reflex (patellar) deficits.  There were some STR entries that noted grossly normal or mildly limited range of motion (ROM) and others that noted non-specifically decreased ROM; but, none that indicated severe ROM limitation.  There were no goniometric ROM measurements in evidence from the service file.  There was occasional note of gait disturbance, but there were other entries that noted a normal gait, and there were no entries that documented the use of an assistive device.  There was no STR documentation of acute flares or periods of incapacitation.  Surgery was not recommended; conservative treatment did not result in sufficient improvement to allow unrestricted duty.  The MEB forwarded “mechanical low back pain” for PEB adjudication.  

The NARSUM examination on 14 January 2003 (6 months before separation) documented persistent low back pain with RLE radiation and did not identify any interim re-injury or exacerbation.  The examiner did not elaborate severity or functional limitations, other than verifying the inability to meet the demands required of a sailor and the CI’s specialty (critical care nurse).   The physical examination recorded an antalgic gait “favoring his right leg” with the use of a cane, and “moderate” ROM limitation in all planes.  The neurological findings were mild weakness of distal RLE muscle groups (ankle extension and flexion, great toe extension), but symmetric reflexes and intact sensation.  

At the  23 September 2003 VA Compensation and Pension (C&P) examination, performed 11 weeks after separation, documented persistent low back pain with RLE radiation (no elaboration of severity or functional limitations) and also did not note any interim re-injury or exacerbation.  The CI reported a right foot drop at this examination.  Findings on physical examination were taken from a description in the VA rating decision (VARD), since that page was missing from the available C&P document.  The VARD recorded a “broad-based slow gait” and use of a cane, no thoracic spine tenderness, and “mild discomfort in the lumbar spine.”  The VARD listed two ROM measurements: flexion to 60 degrees (normal 90) and extension to 10 degrees (normal 30).  Neurologic findings (available from the VA C&P) were RLE sensory impairment “in the L5 distribution,” “weak” (unquantified) ankle and great toe extension without specifying foot drop, and a patellar reflex disparity on the right.

Another VA C&P examination, directed at fibromyalgia (including low back pain) and psoriatic arthritis (addressed below), was conducted on 22 October 2003 (a month after the above VA C&P examination); but, it was also probative to the lumbar condition.  It documented significant improvement of all complaints including the back pain and opined that “the subjective aspect is much greater than the objective findings.”  The physical examination recorded the continued use of a cane (no comment regarding gait), a “normal physiologic curvature” of the spine, the absence of any atrophy, “no significant motor or sensation deficits,” and “mild to moderate [ROM limitation] of the lumbar spine due to pain.” 

The Board directed attention to its rating recommendation based on the above evidence.  The 2003 VASRD coding and rating standards for the spine, in effect at the time of the PEB, differed significantly from the current §4.71a general rating formula for the spine.  The effective date of the latter was 26 September 2003; thus, it was in effect and applied at the time of the VA decision.  The VA’s rating under code 5243 (intervertebral disc syndrome) cited the VA C&P ROM evidence as satisfying the 20% criterion of “flexion...greater than 30 degrees but not greater than 60 degrees.”  

The earlier VASRD standards in effect at separation must be applied to the Board’s recommendation IAW DoDI 6040.44.  The PEB’s rating under the older code 5295 (lumbosacral strain) satisfied the criterion of “characteristic pain on motion” for a 10% rating.  The higher ratings under 5295 required loss of lateral motion, listing, and other findings not supported by the evidence.  The two remaining 2003 codes applicable for consideration in this case were 5292 (limitation of motion) conferring ratings of 10% for “slight,” 20% for “moderate,” and 40% for “severe” limitation; and, code 5293 (intervertebral disc syndrome) conferring escalating ratings for “recurring attacks.”  Since there was no evidence for incapacitating episodes or any “recurring attacks” in this case, members agreed that code 5293 was not advantageous to rating.  Members deliberated, however, whether a higher rating under code 5292 (IAW VASRD §4.7, higher of two evaluations) was reasonably recommended.

The NARSUM examiner characterized the ROM limitation as “moderate;” but, this degree of ROM limitation was not corroborated by the preceding STR evidence that encompassed a stable clinical course for more than a year.  There was no ready explanation for a deterioration in ROM, and the NARSUM provider’s “moderate” assessment may have represented a different personal judgment of the same baseline ROM.  The 33% reduction in flexion per the VA measured ROM could be fairly characterized as moderate (although a 50% reduction would be more convincing); but, this degree of ROM limitation (along with neurological findings and other evidence) was not corroborated by another VA C&P examiner a month later.  Member consensus was that the second VA C&P examiner’s opinion regarding the disconnect between the subjective reports and objective findings in this case was correlated with other evidence as presented above; and, that this posed some probative value mitigation of the ROM evidence as well, the latter easily influenced by subjective factors.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar disc condition.

The Board also considered if additional rating was justified for peripheral nerve impairment due to radiculopathy (as conferred by the VA).  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.  The intermittently documented sensory deficits were of no functional consequence.  The critical decision was whether or not there was a significant RLE motor weakness that would impact military occupation-specific activities.  Members agreed that the mild (none worse than 4/5) motor deficits intermittently identified by various examiners would not pose a significant limitation with the CI’s nursing specialty.  The reported foot drop was considered, but the objective evidence (lack of nerve root impingement on imaging, normal EMG, no supporting findings on examination) did not indicate that this was a functionally significant feature of this case.  Members thus agreed that there was insufficient evidence for peripheral nerve impairment that would have impacted fitness to a degree meriting separate service disability rating.  

Fibromyalgia (Subsuming Category II Bilateral Hip and Chronic Pain Conditions).  Soon after (possibly preceding or concurrent with) the January 2002 onset of the above lumbar and RLE symptoms, the CI developed malaise, fatigue, myalgia, and bilateral arthralgia (knees, shoulders, hips, hands, and feet).  Bilateral hip pain was a prominent complaint and was diagnosed as bursitis by some providers, but STR clinical notes did not address it out of context with all the other arthralgia and complaints; thus, it was not well established as a distinct separate diagnosis or condition.  A diagnostic impression of fibromyalgia (encompassing lumbar and bilateral hip pain) was offered by a rheumatology consultant in December 2002, although trigger points and standard diagnostic criteria were not documented (at that time or later in the service or VA files).  Clinical progress notes documented an improving course with treatment, and the final entry of 27 May 2003 (2 months before separation) documented that the CI was “doing much better.”  

The MEB NARSUM (4 months prior to the above clinical entry) noted concurrent treatment (prednisone and methotrexate) and monitoring without commenting on separate severity of fibromyalgia; and, the physical examination was not probative to rating.  The commander’s non-medical assessment (NMA) was not probative to rating and did not address a separate complaint of hip pain.

The initial general VA C&P examination (11 weeks after separation, see above) did not address a diagnosis of fibromyalgia, but rather a diagnosis of “psoriatic arthritis [addressed separately below] with multiple joint involvement” (specified the hips and the other joints identified in the STR).  It additionally documented that the hip pain (conversely characterized as trochanteric bursitis) “has been helped significantly with injections.”  A month later the specialty VA C&P examination (for skin, psoriatic arthritis and fibromyalgia [also referenced above for the spine condition]) documented that all of the myalgia and arthralgia complaints were alleviated by taking Celebrex [non-steroidal anti-inflammatory]; and, opined that the “veteran currently appears in almost total and complete remission of most of his symptoms and practically all of the signs of fibromyalgia, psoriasis, and psoriatic arthritis.”

The Board directed attention to its rating recommendation based on the above evidence.  The VASRD §4.71a description under code 5025 (fibromyalgia) provides for rating of “widespread musculoskeletal pain,” but the question was raised in this case of whether the bilateral hip pain was subject to additional rating as a separately unfitting condition.  A separate diagnosis of bilateral trochanteric bursitis was not made in the MEB NARSUM, but was appealed by the CI and added to the PEB decision, adjudicated as Category II (conditions that contribute to the unfitting condition but are not separately ratable).  Bilateral hip pain, although possibly affected by a separate diagnosis of bursitis, was also involved by the fibromyalgia syndrome.  The contribution of bursitis to the overall disability could not be specifically ascertained, but members agreed that a distinct bilateral hip condition could not be reasonably justified as separately unfitting; and, further agreed that, even if conceded as separately unfitting, a separate rating could not be supported without violation of VASRD §4.14 (avoidance of pyramiding) since the hip impairment was intrinsic to the overall impairment from the fibromyalgia syndrome.  It was thus agreed that the bilateral hip condition (to the extent that it may have constituted a separate diagnosis) was appropriately subsumed in the fibromyalgia rating.  Members readily agreed that the PEB’s Category II “chronic pain” condition was intrinsic to the fibromyalgia rating, was not a candidate for separate rating without pyramiding, and was appropriately subsumed under code 5025.

With regards to the fibromyalgia rating itself, both the PEB and the VA provided a 10% rating for which the 5025 criteria are symptoms “that require continuous medication for control.”  A 20% rating under 5025 is for symptoms “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.”  The only higher 5025 rating is 40% for symptoms “that are constant, or nearly so, and refractory to therapy.”  The service and VA evidence confirmed that the fibromyalgia symptoms were responsive to treatment, thus the 40% criteria were not supported.  Although the “present more than one-third of the time” criterion for a 20% rating could not be specifically excluded by the evidence, members agreed that a distinction from the 10% criteria would require symptoms that were not reasonably controlled; and, there was convincing evidence that the symptoms were well controlled at separation.  

After due deliberation, considering all evidence and with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the fibromyalgia syndrome.
Contended PEB Conditions:  Mood Disorder and Psoriatic Arthritis of the Right Great Toe and Left Fourth Finger.  The CI self-referred for a mental health (MH) evaluation in November 2002 (7 months before separation) and was diagnosed with “mood disorder secondary to general medical condition.”  A month later his mother died and he was psychiatrically admitted overnight in crisis.  Subsequent outpatient MH entries documented a stable and improving course, with no change from the original diagnosis.  A psychiatric addendum to the MEB NARSUM documented symptoms controlled with medication (Effexor, Elavil, and Neurontin [all with therapeutic overlap for pain management]).  The MEB psychiatrist listed the same Axis I diagnosis as that above, assessed the Global Assessment of Functioning (GAF) at 60-70 (moderate to mild range of impairment), and recommended primary care follow-up.  There was no directed opinion regarding fitness for duty, but there was no indication to the contrary; and, the same psychiatrist had opined that the CI was fit for duty in an earlier outpatient entry.  The commander’s NMA did not document any MH diagnosis or impairment and indicated that side-effects of pain medications were the main impediment to fitness.  A VA C&P mental disorders examination (11 weeks after separation) noted a “mild depressed mood” without identifying any psychiatric occupational limitations, made an Axis I diagnosis of adjustment disorder, and assigned a GAF of 70 (mild, but generally functioning pretty well).  

At the time of the above rheumatologic consult for fibromyalgia, the examiner made an additional diagnosis of psoriatic arthritis (there was a pre-existing diagnosis of skin psoriasis).  This specified diagnostic findings (dactylitis) of the toe and finger as reflected in the above MEB NARSUM and PEB condition description; although, it was not clear from the record whether the joint involvement was more widespread.  The disease followed a tandem course with that elaborated above for fibromyalgia; and, there was a favorable response to the addition of a biologic agent (Enbrel) to the treatment regimen.  The MEB NARSUM and VA evidence after separation was equivalent to that already described for fibromyalgia.  The condition was not directly addressed in the commander’s NMA.

The Board’s main charge was to assess the fairness of the PEB’s determinations that the above conditions were not unfitting.  Members agreed that there was no performance-based evidence indicating that any of the above conditions interfered with duty requirements to an extent that would have prohibited further military service.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determinations for the mood disorder and psoriatic arthritis conditions; thus, they were not eligible for rating.

BOARD FINDINGS:  In the matter of the lumbar disc condition and IAW VASRD §4.71a, the Board by a majority vote recommends no change in the PEB adjudication.  The single voter for dissent recommended a 20% rating under code 5292 and did not elect to submit a minority opinion.  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 mood disorder and psoriatic arthritis conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150105, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 13 Dec 16

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

		- XXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXX, former USMC 
		- XXXXXXXXXXXXXXXXXX, former USN 
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN 

						 XXXXXXXXXXXXXXXXXX	     				  			   	            Assistant General Counsel
                                                                              (Manpower & Reserve Affairs)