RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-00933
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Counterintelligence Agent, medically separated from the Temporary Disability Retired List (TDRL) for “chronic pain syndrome involving both feet and both hips” and “fibromyalgia syndrome,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the unfitting medical condition(s) at the time of separation.  The panel 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20051215	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Syndrome Involving Both Feet and Both Hips	5099-5003	10%	
No VA Examination Proximate to Separation in Evidence
	
Fibromyalgia Syndrome	5025	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Pain Syndrome Involving Both Feet and Both Hips.   The PEB combined the chronic pain syndrome involving both feet and both hips conditions as a single unfitting condition coded analogously 5099-5003 and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy AR 635-40 B24.f.  The approach by the PEB commonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The panel also noted that “bundling,” the combining of two or more major joints may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.   The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel 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 DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the chronic pain syndrome involving both feet and both hips conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Chronic Pain Syndrome Both Feet.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s foot condition began in 2000 while running and ruck marching.  She was diagnosed with a bunion of the right first metatarsal for which she had surgery, and a left Morton’s neuroma between the third and fourth toes. The CI was separated and placed on TDRL in March 2004 for chronic bilateral foot and right hip pain.  

She was seen by a primary care provider in 2005 and recommended to take a nonsteroidal anti-inflammatory drug, which she continued to use.  On 8 November 2005, X-rays showed bilateral pes cavus and degenerative changes in the first metatarsophalangeal joints, right first metatarsal with fixation screws in place, a mild left hallux valgus, and a small sclerotic focus in the medial aspect of the second left phalangeal head.  

At a podiatry clinic evaluation on 9 November 2005, the CI complained of a “dull ache and tiredness” of the right arch and calf and left third intermetatarsal space.  Although the bunion pain had resolved, she felt that her right big toe had not touched the ground since surgery, which altered her gait and resulted in arch and calf discomfort rated at 7/10 after prolonged standing/walking greater than 15 minutes.  She also had sharp pain between her left third and fourth toes for 6 months and denied any history of trauma to either foot besides the bunionectomy.  The left foot neuroma pain was not constant, but sharp in nature, and relieved by taking off her shoe and/or taping the third and fourth toes together.  On examination, bilateral pedal pulses were palpable, epicritic (sensory nerves that enable the perception of slight differences in intensity) sensation was intact, and there was no edema.  There was a positive Mulder’s sign (to determine Morton’s neuroma) and click of the left third intermetatarsal space with reproducible pain.  Ankle dorsiflexion was limited to 0 degrees (normal 20) with knee extension and 10 degrees with knee flexion.  There was no tenderness along the Achilles tendon or at the insertions bilaterally.  The right first metatarsophalangeal joint was limited to 40 degrees of dorsiflexion and 0 degrees of plantar flexion, and remained dorsiflexed while standing.  There were no open lesions, erythema, or ecchymoses (black and blue marks) bilaterally.

The 10 November 2005 MEB NARSUM examination, 2 months prior to TDRL removal, noted CI complaints of bilateral foot pain.  Physical examination showed a slightly antalgic gait, but that she was able heel-toe walk.  The remainder of clinical findings were essentially the same as the podiatry evaluation.  There was no VA examination proximate to separation in evidence.  

As mentioned above, the PEB rated the bundled the bilateral foot and hip pain 10%, analogously coded 5099-5003 (arthritis, degenerative), citing the USAPDA pain policy and slight, frequent pain.  Members first considered the right foot condition, and based on neuroma pain, impaired function of the first toe, and an abnormal foot strike pattern resulting in a slight antalgic gait, the panel concluded that it was reasonably supported by the record as separately unfitting.  Members next considered the left foot condition, and based on the presence of a Morton’s neuroma, which was painful and only relieved by shoe removal or taping the contiguous toes, the panel concluded that it was separately unfitting as well.  

The panel then directed attention to its rating recommendations based on the above evidence.  Members agreed that since each foot had a neuroma, use of code 5279 (metatarsalgia, anterior (Morton's disease)), which is appropriate for either unilateral or bilateral involvement, warranted a 10% rating for both feet.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the chronic bilateral foot pain, coded 5299-5279. 

Chronic Pain Syndrome Both Hips.  According to the STR and MEB NARSUM, the CI began to experience right hip pain in 2000 while running and ruck marching.  At a rheumatology visit on 8 November 2005, the examiner noted the CI had fibromyalgia that caused pain in several joints including the hips.  Right hip and pelvis X-rays the same day demonstrated a right superior acetabular subchondral (below the cartilage of the hip socket) lucency likely a sequela of degenerative change; there was no radiographic evidence of osteonecrosis. 

At the 9 November 2005 and 10 November 2005 MEB NARSUM examinations, 2 months prior to TDRL removal, the CI reported right hip pain which had migrated to the left hip.  She denied any history of clicking, popping, catching, clunking, instability, or trauma.  Over the prior 18 months, her pain and symptoms had worsened despite physical therapy (PT).  Right groin pain was present for three quarters of the day and exacerbated on arising, starting to walk, everting her hip while pivoting to turn, and with prolonged periods of activity.  The pain travelled to the posterior pelvic girdle, the sacrum, and lumbar spine, and she felt that the left hip had started to develop similar symptoms, which could have been in conjunction with her fibromyalgia.  The examiner documented “near symmetric rotation and extension from just beyond hyperextension of 2-3 degrees to approximately 125 degrees bilaterally, with internal rotation on the right to 30 degrees and on the left 20 degrees; external rotation on the right to 50 degrees and on the left to 60 degrees.”  There was no catching, clunking, or clicking with provocative maneuvers of either hip, no pain with internal rotation or resisted hip extension, and minimal pain with hyperextension.  The CI’s gait was mildly antalgic, but otherwise demonstrated all normal phases of gait including heel strike, flat foot and toe walk.  Pelvis and right lateral hip X-rays showed mild degenerative changes with increased sclerosis over the hip joint with some mild joint space narrowing and osteophytosis (osteoarthritis) with a small amount of cyst formation, especially of the right hip.  The examiner’s diagnosis was “right greater than left hip pain with mild degenerative change.”  

On 10 November 2005, MEB PT right hip ROM measurements, in degrees, showed: flexion to 100/110/100 (normal 125), extension to 15/15/20 (normal 30), abduction to 45 (normal) times three, adduction to 15/15/20 (normal 20), external rotation to 30 (normal 60) times three, and internal rotation to 25 (normal 40) times three.  Pain was present at the endpoints of all motions. 

As mentioned above, the PEB rated the bundled bilateral foot and hip pain 10%, analogously coded 5099-5003, citing the USAPDA pain policy and slight, frequent pain.  Panel members first considered the right hip condition, and based on painful motion with functional limitations, the panel concluded that it was reasonably supported by the record as separately unfitting.  Panel members next considered the left hip condition, and noted that at TDRL placement, only the right hip was identified as a bundled unfitting condition.  While the “pain migrated to the left hip,” the ROM was normal and there were no X-ray, significant clinical findings, or specific functional limitations to support the condition as unfitting.  The panel concluded that the preponderance of evidence showed that the left hip condition would not reasonably have caused the CI to be referred into the DES or be found unfit.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right hip pain condition, coded 5099-5003.  There were no other hip codes that could warrant a higher rating.

Fibromyalgia Syndrome.  According to the STR and MEB NARSUM, the CI’s fibromyalgia syndrome began in May 2003 after noticing increasing insomnia as well as muscle and joint tenderness following a miscarriage.  At the 8 November 2005 rheumatology visit, she continued to experience daily pain involving her neck, shoulders, hips, and knees with continued muscle tenderness, stiffness in the morning for 3 hours, fatigue, and the feeling of having the “flu all the time.”  She continued to have difficulty with sleep and had intermittent diarrhea/constipation as well.  Pool PT was reported to be helpful, and she took an antidepressant and sedative for sleep as well as a pain reliever.  On examination, her neck had normal ROM and no lymphadenopathy or temporomandibular dysfunction.  There was no synovitis or abnormal ROM of the joints, and 16 or 18 tender points were identified.  The examiner noted the CI could fairly function living on her own and engaging in regular exercise, and diagnosed “fibromyalgia syndrome manifested by chronic widespread pain, sleep dysfunction, and irritable bowel syndrome.”  

The 10 November 2005 MEB NARSUM examination noted complaints of fibromyalgia, and physical examination incorporated the findings of the rheumatologist and the previously discussed findings for the hips and feet.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the fibromyalgia syndrome condition 10%, analogously coded 5025 (fibromyalgia (fibrositis, primary fibromyalgia syndrome), citing unchanged symptom complex and management since TDRL placement.  Panel members noted the CI was rated 10% for the fibromyalgia by the PEB, which requires continuous medication for control.  However, her symptoms were nearly constant, but not resistant to therapy.  Therefore, a 20% rating is appropriate since she did have worsening of symptoms by overexertion and they were present more than one-third of the time.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the fibromyalgia condition, coded 5025.  

BOARD FINDINGS:  In the matter of the chronic bilateral foot pain condition, the panel recommends a disability rating of 10%, coded 5299-5279 IAW VASRD §4.71a.  In the matter of the chronic right hip pain condition, the panel recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the fibromyalgia syndrome, the panel recommends a disability rating of 20%, coded 5025 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.   

The panel recommends 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Bilateral Foot Pain	5299-5279	10%	
Chronic Right Hip Pain	5099-5003	10%	
Fibromyalgia Syndrome	5025	20%	
COMBINED 	40%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170222, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record  

AR20180009932, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs. 

Sincerely,					      
Enclosure