RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2021-00054
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090509

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an O3E, Military Intelligence officer, medically for “fibromyalgia,” with a disability rating of 20%.   

CI CONTENTION:  The covered individual (CI) submitted a lengthy contention specifically requesting that his right knee and sleep apnea conditions be considered as potentially separately unfitting. 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 - 20090812	VARD - 20090608	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fibromyalgia	5025	20%	Fibromyalgia	5025	20%	20090310	
Right Knee Pain	Not  Unfitting 	Residuals, Patellar Fracture Right Knee	5299-5260	0%		
Obstructive Sleep Apnea (OSA)	Not Unfitting 	Obstructive Sleep Apnea	6847	50%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Fibromyalgia.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s fibromyalgia condition was diagnosed April 2008 after continuing fatigue in addition to pain. 

During the 03 December 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 17 months prior to separation, the CI reported he had arthritis in his wrists that was “Probably Fibromyalgia,” and his pain was partially controlled by medicine.  Physical examination showed decreased flexion in bilateral wrist without mention of pain in any other part of the body.

The 12 September 2008 MEB NARSUM examination, 8 months prior to separation, noted complaints of fibromyalgia and right knee pain.  He had occasional numbness of both sides of his face and of both legs below the knees. He had physical fatigue related to his fibromyalgia condition. The CI also reported numbness in the forearms bilaterally.  He reported he felt as if he had a constant sunburn across his shoulders.  He had intermittent pain in his hands, elbows, knees, ankles, legs and arm muscles, with a pain intensity that generally was at 4/10 (10 being the worst).  He had no problems with headaches.  The CI noted he had injured his right knee; however, prior to the injury he was able to jog only five minutes and walk minutes without feeling excessively fatigued.  Physical examination showed normal range of motion of all joints, and no swelling of any joints with the exception of the right knee that appeared to have fluid.  Tenderness was present over the shoulder muscles, greater trochanter, and costochondral junctions, and the lateral epicondyles. 

At the 10 March 2009 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported symptoms of muscle pain, fatigue, weakness, stiffness, paresthesias, alternating constipation/diarrhea, depression, and anxiety fairly constant.  He had constant burning in his posterior shoulders, and occasional burning in elbows, lateral feet, posterior neck and back.  When stressed, he had intermittent tingling in the arms, hands and shins, and numbness in the face.  The CI had not lost time from work due to fibromyalgia. He reported no significant effect on daily activities.  He was prescribed medication for his condition.  The examiner found tender/trigger points at bilateral suboccipital, bilateral trapezius, left lateral elbow, bilateral lower spine, left anterior costochondral junction of the 2nd rib junction, and posterior left trochanter.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the fibromyalgia 20%, coded 5025 (fibromyalgia), citing condition is “episodic with exacerbations often precipitated by environmental or emotional stress or by overtaxation, with symptoms present more than one third of the time. Right knee pain cannot be separately rated from fibromyalgia in that both conditions involve knee pain and this would constitute pyramiding which is prohibited by VASRD paragraph 4 .14.”   

The VA also rated the fibromyalgia 20%, also 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 are episodic with exacerbations often precipitated by environmental or emotional stress or be overexertion, but are present more than one-third of the time.”  

Panel members agreed, the 20% rating and no higher was warranted for the condition of fibromyalgia for “widespread musculoskeletal pain and tender points, with or without associate fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s-like symptoms that are episodic….and present more than one-third of the time.” Panel members found no evidence to support a 40% rating for symptoms that were constant, or nearly so, and refractory to therapy.  The CI reported an intermittent pattern of widespread pain, and intermittent tingling during stressful times.  The pain level was generally mild (4/10); however, could go up to 8/10 depending on activity level.  He reported medication was beneficial, and there was no evidence of the condition being refractory to therapy.
 
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.  

Contended PEB Conditions:  right knee pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  Although the right knee pain was profiled separate from the fibromyalgia condition, and failed retention standards, the condition was not implicated in the commander’s statement.  As noted above, the PEB stated, the right knee pain “Cannot be separately rated from fibromyalgia in that both conditions involve knee pain and this would constitute pyramiding which is prohibited by VASRD 4.14.”The panel noted full ROM of the right knee at both NARSUM and C&P examination.  Painful motion was not recorded at the NARSUM, and was reported as absent at the C&P examination, 2 months prior to separation.  There was no evidence of knee instability.  Only mild knee pain was documented during the C&P exam, and only tenderness about the knee, and mild crepitus was recorded during the NARSUM examination, remote from separation.  The panel members concluded that there was not a preponderance of evidence showing that the right knee pain standing alone would have caused the CI to be referred into the DES or be found unfit due to the condition.   

The panel assessed the right knee diagnoses from a fitness perspective to determine if the condition was separately unfitting.  Ultimately the panel agreed that the right knee pain diagnosis was not a separate condition which could be reasonably justified as separately unfitting; nor would a separate rating be achievable without violation of VASRD §4.14 (avoidance of pyramiding).  

OSA.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The OSA condition was not profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the OSA condition, so no additional disability rating is recommended.   

BOARD FINDINGS:  In the matter of the fibromyalgia condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.   In the matter of the contended Right Knee Pain and OSA conditions, the panel agrees it cannot recommend it for additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  

Therefore, the panel recommends 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 20210409, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20210017112, XXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,