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

1850
CORB:003
12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-04087 

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW  (PDBR)

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

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

2.	On 31 January 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 10 to 40 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the Navy Personnel Command for correction of your records as stated above.	You will be notified once those changes are complete.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX		CASE: PD-2017-04087 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20081031

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Nuclear Field Electronics Technician, medically separated for “fibromyalgia” with a disability rating of 10%.

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 - 20080730	VARD - 20090409	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fibromyalgia	5025	10%	
Fibromyalgia	
5025	
40%	
20081223	
Major Depression	Cat II					
Chronic Lower Back Pain	Cat II					
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Fibromyalgia. According to the service treatment record and MEB narrative summary (NARSUM), the CI’s fibromyalgia began insidiously in June 2007 as lower back pain without any trauma. Initial treatment consisted of analgesics, muscle relaxants, and physical therapy (PT), and lumbar spine X-rays on 26 July 2007 were normal. The lower back pain continued with paresthesias down the legs, but a lumbar spine MRI on 9 October 2007 was unremarkable. At a physical medicine and rehabilitation visit on 20 November 2007, lumbar range of motion (ROM) was normal and pain- free in all directions.   There was a sensory deficit but without other objective findings.        At  a

rheumatology visit on 26 November 2007, the examiner considered fibromyalgia and treatment consisted of Flexeril (a muscle relaxer). Electrodiagnostic studies on 29 November 2007 were normal. In a letter dated 5 December 2007, the rheumatologist indicated the CI had progressive soft tissue pain consistent with fibromyalgia, which was treated with Neurontin (for nerve pain). At a follow-up physical medicine clinic visit, a brain MRI was reported to have a flow void associated with the distal aspect of both vertebral arteries, which appeared to be somewhat prominent and tortuous.

During a chiropractic evaluation on 7 January 2008, the provider noted neck and back muscle tenderness. Cervical and thoracolumbar spine ROM was normal, but with shooting pain down the spine during flexion. A CT scan dated 22 January 2008 demonstrated mild attenuation and irregularity of the intracranial arterial branches, and the possibility of an underlying vasculitis was raised. At a pain clinic visit on 20 February 2008, the CI received lumbar steroid/anesthetic facet injections. She continued to have pain and had additional injections on 5 March 2008. A sleep study on 10 March 2008 showed no evidence of sleep apnea. At a neurosurgical clinic visit on  18 March 2008, there was no surgical indication and the examiner felt the CI’s pain was consistent with early fibromyalgia. Lyrica (for nerve pain) was recommended, but she had a subsequent reaction to it. At a pain clinic visit on 19 March 2008, she received trigger point injections of an anesthetic for muscle spasms and was prescribed Lidoderm (a topical anesthetic). Additional trigger point injections were given on 16 April 2019.   Neurosurgical evaluation on   17 April 2008 showed full ROM with pain on forward flexion. The examiner indicated the CI had a chronic pain syndrome (fibromyalgia) along with neck and low back pain.

During the 4 March 2008 MEB examination (recorded on DD Forms 2807 and 2808), 8 months prior to separation, the CI reported chronic pain. Physical examination revealed full cervical ROM, but lumbar spine ROM measurements were incomplete and in a format inconsistent with VASRD guidelines.  Muscle testing and sensation of the lower extremities were intact.

The 1 April 2008 non-medical assessment (NMA) indicated the CI was working out of her specialty because of the medical condition. She was exempt from the readiness and fitness testing and was away from her current duties (as an electronics technician/nuclear power plant trainee) for treatment, evaluation, and/or recuperation for 24-33 hours per week. The officer-in-charge specifically wrote that the CI’s “condition limits her ability to perform the duties of her rate and rank.” She “is currently absent from duty on an average of two to three days during the normal work week. When at work, her performance has been exceedingly efficient” as a personnel clerk.

At the 2 April 2008 MEB NARSUM examination, 7 months prior to separation, the CI complained of lower back pain, and the examiner noted the inability to touch the floor with her fingertips. Lateral bending was less than 10 cm bilaterally and extension was 5 cm. Neurologic evaluation was unremarkable. The 17 April 2008 MEB NARSUM psychiatry addendum, 6 months before separation, noted the CI complained of “a lot of pain” and was diagnosed with fibromyalgia on 28 March 2008, and major depression, single episode (moderate) on 20 March 2008. Treatment with Effexor XR (antidepressant) was instituted and the dosage was titrated up, which provided moderate relief of the depressive syndrome; Ambien was prescribed for sleep. A mental status examination revealed the CI was calm, cooperative, pleasant, and easily engaged with spontaneous, goal directed conversation. Mood was described as good with congruent affect, and there was no evidence of suicidal/homicidal ideation or psychosis. She was oriented fully in all spheres, with good insight and judgment, and intelligence clinically estimated to be above average. The Axis I diagnosis was major depression, single episode, moderate, in partial remission, and primarily as a reaction to a chronic pain syndrome. The General Assessment of Functioning (GAF) score was 55-60 (moderate symptoms). The CI had additional mental health visits from 4 June-11 August 2008, with GAF scores in the mid-60 range (some mild symptoms), and reports that the Effexor helped her mood, but not the pain. The CI also had multiple PT sessions from mid-July though early September 2008 with continued pain despite treatment.

At the 23 December 2008 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI complained of pain over the entire body, mostly muscular in nature, but with some joint pain. Effexor helped her depression, but did not control the pain. Physical examination showed a normal gait and that she appeared somewhat depressed. There were 11/18 tender points in both the anterior and posterior cervical region, anterior medial elbows, over the sacroiliac joints and anterior pelvis, and at the medial knees. Cervical ROM measurements were normal with pain at the end of each motion, while thoracolumbar spine ROMs were normal with pain during flexion, extension, and rotation. With repetition there was no loss of motion. Muscle strength of the upper and lower extremities was normal, sensation was intact, and ROM measurements of the extremity joints were normal.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the fibromyalgia 10%, coded 5025 (fibromyalgia). The PEB identified major depression, single episode, moderate in partial remission, and chronic lower back pain as Category II conditions (contribute to the unfitting condition but not considered separately unfitting). The panel agreed that these Category II diagnoses were intrinsic to the rated condition and a separate rating for either condition could not be supported without pyramiding (VASRD §4.14); thus, each condition is appropriately subsumed in the Category I unfitting fibromyalgia rating. The VA rated the fibromyalgia 40%, coded 5025 (fibromyalgia), 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 are constant, or nearly so, and refractory to therapy.

The panel majority noted the CI had widespread, constant, rather than episodic, musculoskeletal pain with tender points and depression as well as some sleep disturbance. There were no clear cut environmental, emotional, or overexertion stressors in evidence that caused or exacerbated the fibromyalgia. Despite medications, multiple facet joint and trigger point injections, and PT, her pain persisted and the condition was refractory to treatment. The severity of the condition was evident to NMA author, who indicated she was working out of her specialty due to the medical condition and was absent from work 2-3 days a week. Despite multiple therapeutic interventions and medication, the very fact that she did make it to work for a limited time each week did not negate her still having constant widespread pain, or nearly so, which was refractory to therapy. The VASRD does not require an individual to be incapacitated, bed bound, hospitalized, or be unemployable in order to achieve a 40% rating using code 5025. Therefore, the panel majority determined a 40% rating is clearly consistent with the CI’s symptoms, failure to improve with treatment, and inability to perform assigned duties according to her rate, rank, and office. After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 40% for the fibromyalgia, coded 5025.

BOARD FINDINGS: In the matter of the fibromyalgia, the panel majority recommends a disability rating of 40%, coded 5025 IAW VASRD §4.71a. The single voter for dissent submitted the appended minority opinion. 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	5025	40%	

Minority Opinion. The minority voter, considering all the evidence, supports a disability rating of 20% for the fibromyalgia, coded 5025. Bottom line up front: The CI’s fibromyalgia did not meet the VASRD 40% rating standard of being “constant or nearly so” for fibromyalgia.

A 40% rating using code 5025 (the highest rating possible using this code) requires widespread musculoskeletal pain and tender points that are…constant, or nearly so, and refractory to therapy. A 20% rating requires widespread musculoskeletal pain and tender points 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. A 10% rating, which the PEB adjudicated, requires continuous medication for control.

The CI’s commander stated the CI "missed 24-33 hours per week" and "[The CI] is currently absent from duty on an average of two to three days during the normal work week." Both of these comments show the condition was not constant or nearly so in a standard military work week. Applying a 40-hour work week as the standard for 5 days per week equates to the CI only missing 60% - 82% of work per week, which still is not constant, or nearly so. Additionally, missing 2 days out of 5 is missing work 40% of the time; missing 3 out of 5 days is 60% of the time. Neither 40% nor 60% of missed work is constant, or nearly so.

If one was to be liberal and speculate, and take in to account weekends in addition to the commanders work week comments, one could say an additional two days should be added to give benefit of the doubt. The data doing that would then project 4 out of 7 days where the condition potentially affected the CI, which is 57% of the time (not constant, or nearly so (just over half the time), or 5 out of 7 days it potentially affected the CI 71% of the time (again, not constant, of nearly so (not even three quarters of the time)). The sterile facts we have about the CI’s condition, or a liberally applied potential speculative framework of where it would be with weekends included, clearly shows the condition was not constant, or nearly so, which is the first hurdle to obtain a 40% rating. For the record, the CI did clear the second hurdle of refractory to therapy, but that is irrelevant since the VASRD language for 40% uses “and” with the rating for this condition.

Therefore, based on the CI’s episodic bouts of fibromyalgia present more than one-third of the time, a 20% rating is both reasonable and appropriate. Therefore, the minority voter recommends the ROP be modified as follows.

BOARD FINDINGS: In the matter of the fibromyalgia, the panel recommends a disability rating of 20%, coded 5025 IAW VASRD §4.71a. The Navy PEB’s Category II diagnoses of major depression and chronic low back pain are intrinsic to the rated condition and a separate rating for either condition cannot be supported without pyramiding (VASRD §4.14); thus, each condition is appropriately subsumed in the Category I 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, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Fibromyalgia	5025	20%