RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX		CASE: PD-2017-03747 BRANCH OF SERVICE: MARINE CORPS	SEPARATION DATE: 20090330

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Personnel Clerk, medically separated for “fibromyalgia (pain disorder)” with a disability rating of 20%.

CI CONTENTION: Review all conditions (fibromyalgia, back, migraines, and mental health also specified). 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 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 - 20081215	VARD - 20090515	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fibromyalgia (Pain Disorder)	5025	20%	Fibromyalgia	5025	10%	
20081107	
Chronic Pain Disorder	Cat II					
Headache Disorder…	Cat II	Migraine Headaches	8100	0%		
Mild Herniated Lumbar Discs	Cat II	Lumbar Spine Sprain w/ Disc Disease and Muscle Spasm	5242	10		
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 20%	

ANALYSIS SUMMARY:

Fibromyalgia. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low right back pain and complaints of headaches and body pains began in July 2006. In August 2007, she was seen in the emergency room (ER) for back pain, and in October 2007 she reported lower back pain radiating down both legs; treatment included a short course of systemic steroids. An MRI revealed a mild L4-5 disc bulge with no nerve impingement, and electrodiagnostic testing noted an absent right superficial peroneal nerve, but was otherwise normal. The CI later developed diffuse pains, paresthesia, weakness and headaches, and upon referral to rheumatology in December 2007, it was determined that she met criterion for fibromyalgia with 15/18 trigger points. She also reported sleep disturbance, Raynaud’s-like symptoms with body pain, and paresthesia triggered and worsened by sunlight and heat; amitriptyline (anti-depressant) was started but later changed to Lyrica (anti-convulsant).

At the 10 April 2008 NARSUM mental health (MH) addendum examination, 12 months prior to separation, the CI reported significant pain starting in the back, then head and neck, and moving to the shoulders and legs, with periods of shortness of breath. The pain worsened with exertion, cold, or anger, and the examiner noted “average pain is a 2 (although she is likely minimizing this level),” and “exacerbations of her pain level to 10…cause her to miss work for 4-7 at least once per month.” The mental status examination was benign and the psychiatrist diagnosed “fibromyalgia (pain disorder)” and “chronic pain syndrome,” with the opinion that the CI was “not felt to be mentally ill…, and could, from a psychiatric perspective, return to full duty.” The May 2008 neurology re-evaluation noted complaints of near continuous extremity numbness and weakness as well as twitching and periodic headaches.

At the 6 July 2008 NARSUM examination, 9 months before separation, the CI complained of headaches, body pains, paresthesias, and almost daily headaches associated with nausea and photophobia. Physical examination revealed tenderness in multiple muscle groups including the back, arms, and lower extremities. The diagnoses were “headache disorder, probable migraine” and “probable fibromyalgia.” The commander’s non-medical assessment (NMA) dated 11 August 2008 indicated the CI “currently goes in and out the hospital at least once a month and is SIQ for at least a whole week for recuperation.”

The 7 October 2008 MEB NARSUM addendum, 6 months prior to separation, noted complaints of chronic pain all over the body, but mainly in the spine, knees, and neck, as well as frequent headaches. Physical examination revealed no acute distress and full neck range of motion (ROM) without adenopathy. Extremity examination showed no clubbing, cyanosis or edema, and musculoskeletal findings demonstrated full ROM of all joints without synovitis as well as normal strength in all extremities. There were 15/18 classic fibromyalgia tender areas. A lumbar spine CAT scan documented mild central disc bulges at L3-4, L4-5 and L5-S1. The diagnoses were fibromyalgia and mild herniated lumbar discs.

At the 7 November 2008 VA Compensation and Pension (C&P) examination, 5 months before separation, the CI reported symptoms of easy fatigability, headache, sleep disturbance, stiffness, anxiety, depression, extremity sensitivity to cold, and abnormal sensation. She used Lyrica and yoga to alleviate symptoms. Physical examination did not reveal evidence of muscular pain or tender points, and there was no evidence of generalized muscle weakness or wasting. Motor strength was normal in all extremities, and thoracolumbar spine ROM was full with painful motion on repetition. The examiner diagnosed intermittent fibromyalgia and lumbar sprain. An X-ray documented “mild disc narrowing at L3-4 and L4-5. Straightening and mild levoscoliosis possibly could be due to muscle spasm,” and the C&P examiner changed the back diagnosis to “mild disc disease…muscle spasm of the lumbar spine.”

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the fibromyalgia 20%, analogously coded 5025 (fibromyalgia (fibrositis, primary fibromyalgia syndrome)), and listed chronic pain disorder, headache disorder, and mild herniated lumbar discs as related diagnoses (Category II) contributing to the disability in this case (discussed in more depth below). The VA rated the fibromyalgia 10%, analogously coded 5025, based on the C&P examination, citing 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 that require continuous medication for control. Panel members noted that the CI had rheumatologist diagnosed fibromyalgia with STR evidence of widespread musculoskeletal pain and tender points, associated fatigue, sleep disturbance, stiffness, paresthesias, headache, depression, anxiety, and Raynaud’s-like symptoms (without anxiety or irritable bowel symptoms). There was mixed STR documentation regarding the responsiveness of symptoms to medication, and whether the symptoms were present more than one third (20%) of the time, or nearly constant (40%); however, the pre-

separation C&P examination clearly documented that symptoms did not reach the 40% criteria for symptoms that were “constant, or nearly so, and refractory to therapy." Given the commander’s NMA and STR evidence, panel members agreed that the CI’s fibromyalgia symptoms reasonably supported the 20% criteria. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the fibromyalgia condition.

PEB Category II Conditions: Headache Disorder, Probable Migraine; Chronic Pain Disorder; and Mild Herniated Lumbar Discs. The panel’s first considered whether the Category II conditions were separately unfitting and ratable, or if they constituted various components of the CI’s fibromyalgia that were appropriately captured by code 5025, and would therefore not be considered separately ratable under VASRD §4.14 (avoidance of pyramiding).

Headache Disorder, Probable Migraine: The MEB specified a referred diagnosis of “migraine, unspecified, without intractable migraine,” however, the NARSUM listed headache disorder and the STR predominately noted a headache condition with possible migraine headaches. The panel considered that the rating for fibromyalgia includes symptoms of headache and the headache frequency and symptoms were included to support the 20% fibromyalgia rating above IAW VASRD §4.14. After due deliberation, considering all 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 for the headache disorder as a Category II condition, and therefore no additional rating is recommended.

Chronic Pain Disorder: The panel considered that the NARSUM MH addendum indicated the CI was not felt to be mentally ill and could return to full duty from a psychiatric perspective. Additionally, the VA examiner did not diagnose an MH condition. Panel members agreed that the rating for fibromyalgia includes MH symptoms, and these symptoms were included to support the 20% fibromyalgia rating above IAW VASRD §4.14. After due deliberation, considering all 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 for the pain disorder as a Category II condition, and therefore no additional rating is recommended.

Mild Herniated Lumbar Discs: Lower back pain with radiating pain and lower extremity paresthesias was an initiating complaint in 2006 and there were multiple STR entries and an ER visit for back pain and associated gait disturbance. The NMA indicated an inability to accomplish fitness testing without specifying any diagnosis, but there was clear diagnostic imaging of lumbar spine multi-level degenerative changes (organic degenerative changes not seen in fibromyalgia). The panel consensus was that there was not a preponderance of evidence to adjudge that the back condition was not separately unfitting, therefore it was adjudged as separately unfitting and separately ratable from the fibromyalgia condition. Panel members also deliberated over whether the back pain, if separated from the general widespread musculoskeletal pain under the unfitting fibromyalgia condition, constituted pyramiding (VASRD §4.14) or decreased the fibromyalgia rating. Given the CI’s 15/18 trigger points, headache, fatigue, sleep disturbance, and other non-back symptoms, panel consensus was that separately rating the herniated lumbar disc condition and removing those back-related symptoms from the fibromyalgia condition did not either decrease the fibromyalgia rating or violate VASRD §4.14. The pre-separation C&P documented painful lumbar spine motion with X-ray evidence consistent with spasm. The VA rated the back condition 10% coded 5242 (degenerative arthritis of the spine) citing pain on repetitive use. Although there was insufficient limitation of motion to support a rating, the panel majority agreed that a 10% rating was justified for the presence of painful motion. There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis. There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula. After due deliberation, the panel majority agreed the back condition

was reasonably separately unfitting; it is appropriately coded 5242 and meets the VASRD §4.71a criteria for a 10% rating.

BOARD FINDINGS: In the matter of the fibromyalgia and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the Category II back condition the panel majority agrees it was separately ratable and recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a. The single voter for dissent submitted the appended minority opinion. In the matter of the Category II chronic pain disorder and headache disorder, the panel recommends no change from the PEB determinations that they were as Category II and appropriately included within the unfitting fibromyalgia rating. 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	
Fibromyalgia (Pain Disorder) with Headache Disorder	5025	20%	
Mild Herniated Lumbar Disks	5242	10%	
	COMBINED	30%	

The following documentary evidence was considered:
MINORITY OPINION: The minority concurs with the majority recommendation that fibromyalgia is appropriately rated 20%. However, the minority strongly disagrees with the majority recommendation to add a 10% service disability rating for the lumbar condition. The minority objects to the rationale applied by the majority to support the latter recommendation.

The conclusion that the lumbar condition was separately and distinctly unfitting from the fibromyalgia, which included back pain as a rating element, is debatable. There is no clear performance based evidence in the record implicating limitations, attributable solely to back pain, as unacceptably interfering with duties and preventing continued military service. Therefore, to conclude that the lumbar condition was separately unfitting is based entirely on speculation. However, since the PEB did not classify the lumbar condition as Category III and clearly establishing it as not unfitting, a preponderance of evidence standard was determined by the panel to conclude that it was not unfitting. Therefore, the minority concedes that the lumbar condition was separately unfitting. However, the minority, strongly asserts that a service disability over 0% is not justified.

As discussed in these proceedings, the criterion to support a minimum 10% rating was painful motion. The only evidence advanced for painful motion was the pre-separation C&P examiner’s note that painful motion was present with repetition. There was no indication that painful motion was present with baseline ROM testing. VASRD §4.59 (painful motion) states that joints “should be tested for pain on both active and passive motion” and does not address pain only with repetitive use. The majority applied a DeLuca-derived rationale to its interpretation of
§4.59, whereas DeLuca is directed at ROM limitation with repetition that was not present in this case. The minority contends that this sole basis for satisfying the provisions of §4.59 is questionable and does not constitute satisfactory evidence of painful motion. Additionally, back pain only with repetitive use and not limiting motion cannot be justified as unfitting. The actual disability that the majority proposes to rate cannot itself be justified as unfitting and subject to service rating.

Even if painful motion were conceded, after conceding the fitness issue, and arguably having exhausted all reasonable doubt, the majority maintains that this rating of the back condition does not constitute pyramiding. The minority strongly disagrees. VASRD §4.14 clearly and specifically states “evaluation of the same manifestation under different diagnoses are to be avoided.” Code 5025 specifically subsumes “widespread musculoskeletal pain” that is further defined as including the axial skeleton and “low back.” The minority asserts that the lumbar condition was properly subsumed under Fibromyalgia and does not agree with the majority to rate separately.

The minority maintains that the above concessions and interpretations of standards necessary to support the majority recommendation for additional rating of the lumbar condition are not reasonable. Noting that the addition of a condition with a 0% rating would result in no change to the combined disability rating previously assigned, and consistent with the DoDI 6040.44 standard that Physical Disability Board of Review recommendations are fair and equitable to both the service and the CI, the Secretary is respectfully requested to consider the minority recommendation that there be no modification or re-characterization of the CI’s disability and separation determination.

DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD, DC 20374-5023

IN REPLY REFER TO
6040
CORB:003 14 May 21

From: Director, Secretary of the Navy Council of Review Boards To:	XXXXXXXXXXXXXXXXXXXX

Subj:	Physical Disability Board of Review Determination Ref:	(a) 6040.44(Series)
1.	The Physical Disability Board of Review (PBDR) reviewed your case in accordance with reference
(a) and forwarded their recommendation for action.

2.	On 23 April 2021 the Assistant Secretary of the Navy (Manpower and Reserve Affairs) accepted the PDBR’s recommendation of an increase in disability rating to 30% and placement on the Permanent Disability Retired List. This decision was then sent to Navy Personnel Command for appropriate action.
3.	The PDBR determination is final and not subject to appeal or review.