With his permission, I have posted below the letter I sent to the Navy PEB on Sir Sly's behalf in prepartion for his formal board. Upon reading the contents, the medical advisor for the board determined that he should remain on the TDRL at a 40% rating. This letter has many of the same points I have made before to various entities.
Sir Sly had a couple of things going in his favor. First he was being evaluated by the Navy PEB which is probabaly the least of the evils amongst the Service PEB's. More importantly, the medical advisor got it. She understands that AS is more than a back condition; it is a systemic, body-wide autoimmune disease with numerous medical considerations.
Incomplete MEBs are a foundational issue with improper PEB ratings. Trash in will lead to trash out. This is just a true for VA ratings. If your VA C&P exam did not cover the issues in the physician worksheets, your are heading in the wrong direction.
Finally, I prepared a detail brief on rating AS per the VASRD. It has many Army specific issues but includes information that is applicable to VA as weel as AF and Navy PEB's.
I briefed a different version to the VA and I believe thay will be taking action in short order to help ensure the VA rate AS correctly in the future. I should know more by the end of the month so stand by.
If you would like a copy of this brief, please send me an email at email@example.com. It will be useful for both VA and military appeals. We already used it for mapmaker's VA appeal. He should get his decision soon.
SUBJECT, Incomplete Medical Evaluation Board for Sir Sly,(USMC)
Sir Sly's Medical Evaluation Board (MEB) is incomplete. As such, his fitness and disability ratings cannot be properly assessed. Request Sir Sly's formal disability evaluation board be held in abeyance until he receives a complete and proper MEB IAW the requirement of the VASRD, DoDI 1332.38, DoDI 1332.39 and SECNAVIST 1840_E. Specific issues with his MEB are addressed below:
DoDI 1332.38 E3.P1.2.3 requires all current medical conditions to be addressed in the original MEB. DoDI 1332.38 E3.P1.2.5 requires all medical conditions to be addressed in TDRL periodic reexaminations as well. This was not done in Sir Sly's case. In addition, his MEB laboratory tests demonstrated an positive ANA test. A positive ANA test is not associated with Ankylosing Spondylitis but it is associated with lupus, other autoimmune conditions and cancer, all of which are known side effects of Humira, the drug Sir Sly uses to control his Ankylosing Spondylitis. Also, as described below, Sir Sly has recently experienced hand and finger pain and inflammation, a sign of drug induced lupus. This issue must be thoroughly vetted before the degree and stability of his condition can be properly addressed.
Ankylosing Spondylitis is an autoimmune, inflammatory arthritic condition. It is rated in the VASRD under Diagnostic Code DC 5009, arthritis, other types. DC 5009 conditions are rated under the criteria of DC 5002 which begins with rating criteria for the active disease process. Sir Sly's Ankylosing Spondylitis is in an active phase which is why he must take the immunosuppressive drug Humira on a continuous basis. DC 5002 then directs the rater to rate the chronic residuals under the appropriate diagnostic codes. Ankylosing Spondylitis can affect numerous body parts. Therefore, a body wide assessment for residual damage must be done in order to rate the condition properly. DC 5240(Ankylosing Spondylitis) is the appropriate chronic residual diagnostic code for rating residual damage to the spine. X-rays must be taken of the areas affected by Ankylosing Spondylitis as degenerative changes are a part of the overall rating criteria. Only Sir Sly's back and hips have been recently X-rayed.
DoDI 1332.38 encourages the use of DVA worksheets to ensure all needed information to rate conditions properly is elicited during the physical exam. For Ankylosing Spondylitis, this would include, at a minimum, the DVA worksheets for:
Immune disorders Examination,
Shoulder, Elbow, Wrist, Hip, Knee, and Ankle Examination,
The chronic residuals from Ankylosing Spondylitis, such as DC 5240, are based on range of motion criteria. In addition to the range of motion measurements, the provisions of paragraphs 4.40, 4.45 and 4.59 of the VASRD must be assessed as well to establish the overall rating. These issues were not addressed fully in Sir Sly's case and they must be addressed in order to rate him properly.
Sir Sly's MEB physical was completed in April 2007. Over the past 2-3 months, he has had exacerbations of his conditions involving his hands for which he has sought treatment for at the rheumatology department of Walter Reed. It is imperative that this new issue be fully vetted as an exacerbation of his active Ankylosing Spondylitis as well as for any residual damage. Without proper vetting of this flare up, he cannot be properly rated.
It order to be properly rated under range of motion based criteria, a range of motion test must be conducted. Sir Sly did not have a range of motion test performed on the joints affected by his Ankylosing Spondylitis during his lastest MEB physical. Such a test must be done (to include back pain Waddell's signs), in Compliance with the range of motion testing requirements of the VASRD, DoDI 1332.38, DoDI 132.39 and SECNAVINST 1840.E. Without such an examination, he cannot be properly rated.
Michael A. Parker
LTC, USA (Retired)