RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00685
BRANCH OF SERVICE:  Air Force 	SEPARATION DATE:  20041119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Integrated Avionics Systems Journeyman, medically separated for “chronic low back pain” with a disability rating of 20%.   

CI CONTENTION:  “Only one disability was rated, finding me unfit for service.  In reality the back injury led to the fibromyalgia which also led to the mental health issues.  These disabilities are so intertwined that one disability cannot be rated without the others.  When I was discharged only one disability was rated, creating an inaccurate reason of why I was unfit for service.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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 panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel 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 - 20040813	VARD - 20050822	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	20%	Lumbar Scoliosis	5299-5237	10%	20050728	
Fibromyalgia	Cat II	Fibromyalgia	5025	20%		
Pain Syndrome		Major Depression … Anxiety … Mood … Pain Disorders	9400-9434	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The first entry in the service treatment record (STR) with regard to this condition was an X-ray survey for scoliosis in June 2002.  This stated that the CI had a history of scoliosis and that he was asymptomatic (corroborated by the CI in a follow-up phone call).  Later entries confirmed a history of scoliosis diagnosed in childhood with regular X-ray surveillance that had not progressed.  The first documented complaint of back pain was in August 2003 after weight lifting (15 months before separation).  There were intermittent complaints of pain radiation, sometimes characterized as “right sciatica,” but there were numerous conflicting accounts stating that the CI denied radiation or any neurological symptoms.   There were multiple normal neurological examinations in evidence, with none to the contrary.  Magnetic resonance imaging in January 2004 was normal except for the baseline scoliosis, and it was opined that surgery was not indicated.

There were multiple STR entries that documented grossly normal range of motion (ROM) and there were none that indicated any significant ROM limitation.  There was documentation of painful motion, but no formal ROM measurements were in evidence.  There was ample documentation of a normal gait; and, although the baseline scoliosis was often noted, there were no entries that documented spasm or guarding severe enough to result in abnormal spinal contour.  There was no STR documentation of incapacitating episodes.  

The 27 April 2004 Medical Evaluation Board (MEB) narrative summary (NARSUM), 7 months prior to separation, documented “chronic back, muscle and joint pain depending on his activity level for the day” without mention of radicular symptoms.  Documented functional limitations (in the context of all symptoms and conditions) included limitation to a 6-hour workday, a 20-pound lifting restriction, and prohibition of running and sit-ups.  The physical examination recorded scoliosis and mild spasm, without comment regarding tenderness or guarding, and normal neurological findings.  There was no comment regarding gait or ROM.  Subsequent STR entries, however, did document normal gait and grossly normal ROM.   

There was an evaluation in evidence from a civilian provider that was dated a day before separation, at which time the CI reported significant right leg radicular symptoms that had not been noted by recent service providers.  This provider documented pain rated 6-10/10 without note of any recent injury or other exacerbation of the condition.  The physical examination recorded a normal gait and normal neurological findings except for “subjectively decreased” sensation over the left foot.  Recorded ROM measurements were flexion to 40 degrees (normal 90), extension 10 degrees (normal 30), and bilateral flexion to 20 degrees (normal 30).  Wording indicated that these measurements may have reflected the onset of pain rather than full excursion, and no rotation measurements were provided for calculation of combined ROM.

The 28 July 2005 VA Compensation and Pension (C&P) evaluation, 8 months after separation, documented non-specific back pain with sporadic right leg radiation (no sensory or motor complaints).  Specific functional limitations were not elaborated, but a mental health C&P the same day documented that the CI was employed full time as a “production engineer technician.”  The physical examination recorded “normal posture and gait,” scoliosis without spasm or localized tenderness, and normal neurological findings (strength, reflexes, and sensation).  Measured ROM was flexion to 80 degrees with a combined ROM of 190 degrees (normal 240), associated with “discomfort” but no degradation with repetition.

Fibromyalgia.  In March of 2004 (7 months after the onset of back pain) the CI began to complain of associated depression, fatigue, and generalized pain that prompted a referral to rheumatology.  Standard rheumatologic serology tests were negative.  A civilian rheumatologist made a diagnosis of fibromyalgia, although the physical examination, i.e., “generalized soft tissue tenderness,” did not document the trigger points required for that diagnosis.  A pain specialist disagreed with the diagnosis based on the absence of the requisite criteria, and expressed concern about an escalating use of narcotics.  At a follow-up visit the same provider opined that the diagnosis was “congenital scoliosis which was well-compensated prior to lumbar/thoracic strain [and it] is in his best interest to start reconditioning himself;” and, recommended a return to unrestricted duty.  The CI disagreed and was referred to another rheumatologist for a second opinion.  The latter opined that a diagnosis of fibromyalgia was not supported based on the absent tender points criterion.  

Provider notes in the STR addressing all of the CI’s conditions documented an interplay of the initial back pain with various other specific joint complaints, arthralgia, myalgia, sporadic headache, atypical neurological symptoms, sleep disturbance, fatigue, and depression.  There were conflicting entries that documented the CI’s denial of complaints other than those related to his back.  There was no STR evidence that specifically addressed constancy or frequency of these varied symptoms.  Multiple medication regimens and other treatment modalities were generally unsuccessful, although some improvement was reported by a chiropractor.  The greatest improvement was noted with psychiatric treatment more proximate to separation (see below).  The NARSUM evidence was consolidated with that for the back pain as above.  The commander’s performance statement referenced “significant medical issues and his condition [singular, not further elaborated]” that restricted the CI to desk duty and shortened duty hours.  A P4 profile incorporated a diagnosis of fibromyalgia.  

The post-separation C&P evaluation (same as above) documented the CI’s complaint of fatigue and “hurts all over, all his joints, and all his muscles.”  The severity, constancy, and response to treatment were not elaborated.  The examiner documented, “He also states that it is ‘rather taxing’ to work eight hours a day and then have to exercise after that.  He states he is however able to his job.”  The physical examination did not document any specific tenderness; and, recorded normal measured ROM for all major joints without “discomfort or difficulty.”

Pain Syndrome.  Earlier primary care entries documented a history of “mood swings” treated with anti-depressants.  There were a series of mental health (MH) notes that commenced in January 2004 (3 months prior to the NARSUM).  These documented an Axis I diagnosis of “pain disorder associated with both psychological factors and a general medical condition” and an S1 profile status.  The condition was stable and there was no indication of any significant psychiatric acuity (psychoses, hospitalization, active suicidality, etc.).  In the interval between an informal PEB (IPEB) and formal PEB (FPEB), the CI began to report panic attacks, one of which was associated with non-cardiac chest pain and an emergency department visit.  As a consequence, he was placed on anxiety medication and it was recommended that his profile be raised to S4.  The permanent profile in place at separation, however, was S1, and was dated two months after the preceding recommendation.  The Axis I diagnosis remained the same as above throughout the clinical course.  Subsequent MH entries documented improvement, and a final note indicated that the panic attacks had resolved; but, mood swings and “mild depression” persisted.  

The NARSUM listed a diagnosis of “depression” without elaboration or presentation of any evidence probative to psychiatric acuity.  The NARSUM examiner, in the context of all symptoms and conditions, stated, “I have recently questioned if he may have a conversion disorder.”  The commander’s statement did not cite any specific MH issues or impairment, but did note that the CI’s “attitude has been poor and he has required constant supervision to prompt him to complete the minimal work he does do.”

A VA psychiatric C&P evaluation on the same day as the general C&P evaluation documented a history of depression associated with insomnia and fatigue that fluctuated “depending on his pain condition” (note the implication that the fibromyalgia symptoms were intermittent, or at least waxing and waning, rather than constant).  The VA psychiatrist corroborated that the anxiety symptoms had responded to treatment, and that there had been no further panic attacks.  The mental status examination recorded a “somewhat dysphoric” mood with an appropriate affect, and was otherwise normal with intact cognition.  The examiner opined that there was overall “moderate” impairment, but this included the contribution from “his multiple medical problems.”

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating for the lumbar condition was under code 5237 (lumbosacral strain), and did not cite a rationale.  Members noted that the ROM evidence available to the PEB would not support a rating higher than 10% (conceding painful motion) under the VASRD §4.71a general spine formula.  It is possible (e.g., speculative) that the PEB conceded the 20% criterion for abnormal spinal contour on the basis of the scoliosis, although the requisite spasm and guarding for that criterion were not in evidence.  The VA’s 10% rating was premised on, and consistent with, the C&P ROM and findings.  

The isolated measurement of flexion to 40 degrees from the civilian provider at separation (see above) would support a §4.71a rating of 20% based on that criterion alone, but members agreed that it did not carry the probative weight to justify that recommendation (preponderance of contrary evidence and uncertainty regarding validity).  Given the absence of any objective neurological impairment from the radicular symptoms, members agreed that additional rating for spinal neuropathy was not supported.  There was no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome that would provide for a higher rating under that formula.  

The PEB determined that the fibromyalgia and pain syndrome were Category II (conditions that can be unfitting but are not currently compensable or ratable).  The panel faced a key question in this case as to whether either or both of these two conditions could be reasonably recommended as unfitting due to combined effect, and thus subject to separate rating(s).  Based on his contention regarding this same issue, the CI requested an FPEB.  The FPEB affirmed the IPEB findings, and the CI then appealed to the Secretary of the Air Force Personnel Council (SAFPC).  The SAFPC upheld the FPEB findings, stating that it “considered the possible interrelationship of the member's chronic low back pain and the evolution of his fibromyalgia and pain disorder.”  It opined that it “must rate that condition which best encompasses the member's actual functional impairment … [and] … the member's chronic low back pain is the principal medical condition which has prevented him from reasonably performing his military duties.”  

Members agreed that the back pain was the dominant condition; and, that, more likely than not, it would have independently rendered the CI unfit.  Although the exact timing and precipitant for MEB referral could not be ascertained from the STR, the lumbar condition was already profiled and not improving with treatment before the fibromyalgia and pain disorder surfaced as clinically active conditions.  The panel questioned the SAF/MRB premise that only the condition which best encompassed the functional impairment was subject to rating, since that principle was not stipulated by DoDI 1332.38 in effect.  It was stipulated in DoDI 1332.38 (E3.P3.4.4), however, that “each of them, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability.”  Since that stipulation was not satisfied for the lumbar condition (as per the preceding panel opinion), the other two conditions could not be rated for combined effect in concert with a condition that was in itself unfitting.  Each of them (or both in combined effect) would have to be justified as separately unfitting to be justified for additional service rating.  

Even though a preponderance of the evidence refuted a diagnosis of fibromyalgia, members considered whether the condition, whatever the diagnostic label, could be reasonably justified as separately unfitting.  That decision, however, was rendered moot by the fact that the §4.71a rating for fibromyalgia (code 5025), specifies “widespread musculoskeletal pain … that affects both the axial skeleton … and the extremities.”  A rating under 5025 would thus negate a separate rating for back pain, since to rate both would constitute a violation of VASRD §4.14 (avoidance of pyramiding).  Even if conceded as separately unfitting, the panel would therefore have to subsume the rating for back pain with that for fibromyalgia.  In order for that approach to be a favorable over the PEB’s 20% spine rating, the panel would have to support the highest 40% rating under code 5025.  The 40% rating is for symptoms “that are constant, or nearly so, and refractory to therapy;” whereas, the 20% rating is for symptoms that are “episodic … more than one-third of the time.”  Members agreed that the evidence did not sufficiently establish that the symptoms were constant, and it was not clear that they were refractory to therapy.  The panel thus concluded that a separate rating for fibromyalgia was not favorable, regardless of whether it was justified for service rating via combined effect.

With regards to the pain syndrome, members agreed that it could not be reasonably justified as separately unfitting.  The evidence indicated that there was no significant psychiatric impairment until the emergence of the panic attacks in the final adjudication phase of MEB proceedings.  The service evidence probative to the date of separation, corroborated by the VA evidence, indicated that these had resolved.  The profile remained S1, and even the recommendation for an S4 was based on the temporary emergence of panic attacks.  The commander did not implicate MH impairment, nor did any other performance-based evidence from the STR.  The panel thus concluded that a separate rating for the pain syndrome could not be recommended.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar, fibromyalgia, and pain syndrome conditions.

BOARD FINDINGS:  In the matter of the lumbar condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended fibromyalgia and pain syndrome conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160915, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

SAF/MRB

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2016-00685.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings