DEPARTMENT OF THE NAVY
SECRETARY   OF   THE   NAVY  COUNCIL   OF  REVIEW  BOARDS
720    KENNON  STREET  SE  STE  309
WASHINGTON NAVY YARD, DC 20374

From: To:

Director, Secretary of the Navy Council of Review Boards PD-2017-01949

IN  11.EPLY  P.EITR TO:
1850
CORB:003
27 Feb 20

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 4 Mar 19

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation to the Department of the Navy for appropriate action.

2.	On 21 February 2020, the Assistant General Counsel of the Navy (Manpower & Reserve Affairs) took action in your case by   accepting the recommendation of  the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 10% to 20% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, has been forwarded to the office of the Deputy Commandant, Manpower and Reserve Affairs for appropriate changes to your personnel records and notification to you upon  completion.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-01949 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20050928

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Organizational Automotive Mechanic, medically separated for “fibromyalgia” with a disability rating of 10%.

CI CONTENTION: In addition to the fibromyalgia condition, the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20050509	VARD - 20060427	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fibromyalgia	5025	10%	Fibromyalgia	5025	20%	20060314	
Depression	Cat III	No VA Placement	
Opioid Addiction	Cat IV	No VA Placement	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 30%	
	
ANALYSIS SUMMARY:

Fibromyalgia. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI complained of intractable back pain following childbirth in September 2003. Imaging (multiple modalities) did not reveal any etiology and the pain did not respond to treatment, although therapy was complicated by the development of opioid dependency (addressed separately). Later in the clinical course her pain became more widespread and was associated with fatigue, myalgias and arthralgias.  In September 2003, she was diagnosed   with

fibromyalgia by a rheumatologist. Treatment remained compromised by opiate dependency and required some emergency department visits and hospital admissions (the latter directed more at opiate withdrawal than pain control). Although the 15 December 2004 non-medical assessment documented that the “condition constantly takes her away from her duties [and she] claims to be in so much pain that she can’t come to work at all,” several subsequent provider notes in the STR from the weeks preceding the NARSUM documented improving symptoms and better pain control. These entries were not explicit regarding the frequency and constancy of the symptoms, although indicated that they were variable (intermittent or at least waxing and waning) and dependent upon activities. There was ample documentation of a normal gait and spinal contour, normal range of motion (ROM) of the cervical and thoracolumbar spine and all joints, normal neurological findings and the absence of any consistent findings in support of separate VASRD spine or joint ratings.

The 10 February 2005 MEB NARSUM examination, 8 months prior to separation, documented persistent spine and diffuse musculoskeletal pain without elaboration of frequency, constancy, or severity of symptoms. It was noted that efforts to fully wean the CI from narcotics remained unsuccessful, and the current response to therapy was not further elaborated. Documented functional limitations included running, physical training and prolonged standing or walking. The physical examination recorded a normal gait, “full [ROM] in all joints,” and normal strength and neurological findings. The only positive finding was “diffuse tenderness throughout most muscle groups.” Clinical STR entries in the interim between the NARSUM and separation, documented a continued variable response to treatment, with some noting satisfactory control and others reflecting treatment failures. There were none specifically probative to the frequency and constancy of symptoms. There was, however, a distinctly probative primary care entry on the day of separation that stated, “She is not having difficulty with any meds; and finds that this regimen has been able to control pain, increase exercise capability and improve sleep.” The frequency of symptoms was again not specified.

At the 14 March 2006 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported diffuse pain, fatigue, headache and sleep disturbance. The examiner stated the symptoms were present “constantly” but “precipitated by weather changes...emotional stress, or overexertion.” The examiner specified that the CI “had some favorable response without any side effects” to current treatment modalities. The physical examination was significant only for tender points with a normal gait and normal ROM of the spine and affected joints.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the fibromyalgia 10%, coded 5025 (fibromyalgia). Although the PEB did not elaborate a rationale, the VASRD §4.71a 10% criteria for code 5025 specifies symptoms “that require continuous medication for control.” The VA rated the fibromyalgia 20%, also coded 5025, based on the C&P examination, citing the 20% criteria 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 highest 40% rating under code 5025 specifies symptoms “that are constant, or nearly so, and [emphasis added] refractory to therapy.”

The panel agreed that code 5025 specifies that it subsumes all of the CI’s related complaints, including cervical and lumbar pain, myalgias and joint pain, fatigue and sleep disturbance. The panel thus concluded that no additional ratings or alternate codes were applicable for consideration without pyramiding (VASRD §4.14). The panel then deliberated which of the above 5025 criteria were best matched with the evidence. With regards to the 10% criteria, the panel agreed that it was difficult to reconcile the evidence with the implication that symptoms be controlled, not just that they require continuous medication.  Members ultimately agreed   that

the preponderance of evidence demonstrated that the symptoms were only intermittently controlled by medication as a ratable baseline at separation.

The panel next considered whether the evidence was better aligned with the 20% or 40% criteria. Whether the symptoms were present “more than one-third of the time” (20%) or were “constant, or nearly so” (40%) could not be precisely ascertained by the evidence, although it was clear that they were at least somewhat episodic and linked to the precipitants specified in the 20% criteria. That notwithstanding, the 40% rating has the additional requirement that symptoms be refractory to therapy. Members agreed that the improving response to treatment at separation per STR provider entries and the “favorable response” noted by the C&P examiner were sufficient to justify a conclusion that the symptoms were not refractory to therapy to an extent that would satisfy the 40% requirement. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 20% rating for the fibromyalgia condition under code 5025.

Contended PEB Condition: Depression and Opioid Addiction. The panel’s main charge is to assess the fairness of the PEB determination that the depression was not unfitting (Category III). There was no performance-based evidence from the record for mental health impairment that significantly interfered with satisfactory duty performance at separation. The panel also noted that depression is another symptom listed under the 5025 the fibromyalgia rating (raising the issue of pyramiding even if conceded as unfitting and ratable). After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the depression, so no additional disability rating is recommended. The PEB’s Category IV (conditions which do not constitute a physical disability) determination for the opioid condition was compliant with DoDI 1332.38 (E5.1.3.9.1), and the latter does not conflict with any VASRD provision. The panel concluded there was insufficient cause to recommend a change in the PEB’s non-compensable adjudication for opioid addiction.

BOARD FINDINGS: In the matter of the fibromyalgia, the panel recommends a disability rating of 20%, coded 5025 IAW VASRD §4.71a. In the matter of the contended depression and opioid addiction, the panel recommends no change from the PEB adjudications. There are no other conditions within the panel’s scope of review for consideration.

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Fibromyalgia	5025	20%