RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXX                		      BRANCH OF SERVICE:  MARINE CORPS
CASE NUMBER:  PD20110005		      SEPARATION DATE:  20050731
BOARD DATE:  20111129

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty member, SGT/E-5 (0621 / Field Radio Operator), medically separated for bipolar I disorder and anxiety disorder, not otherwise specified (NOS).  The CI sought treatment for mood swings and depressed mood as early as 1998.  In 2001, his symptoms progressed to include anxiety, nightmares, hypervigilance and flashbacks of childhood trauma.  The CI was subsequently diagnosed with posttraumatic stress disorder (related to the childhood trauma) and dysthymia.  After treatment with medication and therapy, he was determined fit for duty and successfully deployed with his unit.  In 2005, however, the CI began to display overt signs of mania with psychotic symptoms and he was subsequently diagnosed with bipolar disorder.  Despite therapy and medication, he did not respond adequately to perform within his military occupational specialty (MOS).  He was placed on limited duty (LIMDU) and underwent a Medical Evaluation Board (MEB).  Bipolar affective disorder (manic severe, specified as with psychotic behavior), anxiety state (unspecified) and gender identity disorder were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E.  No other conditions appeared on the MEB’s submission.  The condition of gender identity disorder is not a ratable condition IAW DoD and Department of Veterans’ Affairs (VA) regulations and that condition will not be discussed further.  Other conditions included in the Disability Evaluation System (DES) packet will be discussed below.  The Informal PEB (IPEB) adjudicated bipolar I disorder and anxiety disorder, NOS, as unfitting, rated 10% each IAW the SECNAVINST 1850.4E.  The CI made no appeals, and was medically separated with a 20% combined disability rating.

CI CONTENTION:  The CI states:  “I was medically separated from the US Marines July 31, 2005.  I was identified with 20% disability rating resulting from borderline personality disorder and tinnitus.  During treatment at Raleigh-Durham NC, I was evaluated and received 50% disability rating.  Eventually, following additional diagnosis (sic), this 50% disability rating was increased to 70%.  I am requesting a re-evaluation through the Wounded Warrior program to reconsider my original 20% disability rating from the Marines.”  He additionally lists some of his VA conditions and ratings as per the rating chart below.  A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:  

Service IPEB – Dated 20050525	VA (2 Mos. Pre-Separation) – All Effective 20050801	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar I Disorder	9432	10%	Bipolar D/O with Anxiety D/O	9413-9432	30%*	20050513	
Anxiety Disorder NOS	9413	10%					
Gender Identity Disorder	Cat IV					
↓No Additional MEB/PEB Entries↓	Residuals C-Spine Strain	5237	20%	20050503	
	R Knee … Chondromalacia 	5099-5019	10%	20050503	
	Tinnitus	6260	10%	20050418	
	0% x 1 / Not Service Connected x 3	20050503	
Combined:  20%	Combined:  60%*	
*Increased 9413-9432 to 50% effective 20051110 from VA notes and VA exam of 20070907 (combined 70%)

ANALYSIS SUMMARY:

Bipolar Disorder and Anxiety Disorder.  At the time of the MEB psychiatric exam, the CI was on medications for depression, anxiety and manic symptoms.  He was experiencing symptoms of his manic phase and revealed that he had recently been in a depressed phase.  The CI noted that his manic episodes occurred several times per year, lasting from days to two months at a time.  During his manic episodes, the CI noted racing thoughts, flight of ideas, impulsive behavior and extremely reactive mood with rapid rage.  He also reported going for days with minimal sleep and noted a tendency to take on multiple goal-directed activities which he was too distracted to actually complete.  During severe episodes, the CI also developed psychotic symptoms to include delusions of grandeur, paranoid ideation and ideas of reference.  He reported that his manic symptoms often led to aggressive behavior and had led to the end of his marriage.  The CI additionally endorsed episodes of depression with symptoms of sadness, anhedonia, increased sleep, decreased energy, anxiety, irritability and episodes of rage.  On mental status exam (MSE), his mood was slightly euphoric and his affect was expansive.  The examiner additionally documented distractibility, pressured speech with excessive productions, flight of ideas, tangential and circumferential thought processes, and some signs of inflated self esteem.  The CI was not suicidal or homicidal.  The examiner commented on the history of severe manic episodes with psychotic symptoms and concluded that the CI had a poor prognosis for continued military service and a moderate prognosis for civilian employment.  The Axis I diagnoses were bipolar I disorder (most recent episode manic, severe with psychotic features); anxiety disorder, NOS and gender identity disorder.  The GAF was assigned at 55, in the range of moderate symptoms.  The non-medical assessment (NMA) commented that the “SNM does not respond well to the stresses of field exercises, deployments, or real world military operations.”  The PEB rated the bipolar disorder condition and the anxiety disorder condition, separately, at 10% each on the basis of this exam.  

One month later, at the VA compensation and pension (C&P) exam, the CI endorsed feelings of sadness, depression, sleep impairment, poor concentration, nightmares, intrusive thoughts and appetite disturbance.  He reported having few friends and limited recreational or leisure pursuits.  On MSE, he was extremely anxious, with a tense mood and appropriate affect.  There were no delusions, flight of ideas, hallucinations or ideas of reference.  He was not suicidal or homicidal and his insight and judgment appeared to be adequate.  The examiner concluded “moderately serious impairment in psychosocial functioning.”  The Axis I diagnoses were attention deficit hyperactivity disorder, bipolar disorder and gender identity disorder.  The GAF was assigned at 53 (MEB GAF=55), in the range of moderate symptoms.  The examiner further noted “three Axis I diagnoses that mutually aggravate one another.  I cannot ascribe a specific degree of impairment of any one independent of the other with any medical certainty without resorting to speculation.”  The VA assigned a rating of 30% on the basis of this exam.  VA records indicate a decrease in global functioning from four months post-separation and a VA exam 26 months post-separation indicated significant new symptoms for memory and thought process impairment with a GAF of 48.  This was adjudged to be post-separation worsening of the CI’s condition.  

The Board directs its attention to its rating recommendations based on the evidence just described.  It was noted that the PEB’s decision to rate the two unfitting mental health conditions separately was not consistent with the VASRD.  The CI had some treatment notes indicating a diagnosis of post traumatic stress disorder (“PTSD, dysthymia”) from 2002 through 2004 with indications of “fit for deployment,” and appeared to successfully deploy.  The condition of PTSD was not significantly clinically or occupationally active during the MEB period, and could not be argued as unfitting or subject to separation rating.  The CI’s unfitting bipolar disorder appeared to be long-standing and the unfitting anxiety disorder did not include PTSD, but was coupled with depressive periods of his bipolar disorder.  There was not sufficient evidence in the record supporting application of VASRD §4.129, Mental disorders due to traumatic stress.  

Separating the psychiatric impairment due to bipolar disorder from that due to anxiety disorder requires undue speculation and is a moot exercise for practical purposes.  The psychiatric impairment from both conditions must be combined under a single §4.130 rating since the VASRD does not allow otherwise, except in unique circumstances (older 8045-9304 codes, eating disorders, etc.) which are not found in this case.  Deductions for excluded, or not unfitting, mental health disorders is not permitted unless the symptoms and impairment are distinctly apportioned by the examiner.  Such was not the case and the Board must rate the total psychiatric impairment as if the two Axis I conditions were a single unfitting mental disorder condition.  

The MEB exam and the VA exam were both proximate to time of separation and both carried equal probative value.  The degree of impairment described at both exams was in the range of moderate symptoms, with both exams documenting significant social impairment.  Both exams also documented periods of intermittent occupational impairment when the CI was experiencing symptoms of his manic phase or his depressive phase.  The 30% description (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”) is a better fit with the occupational functioning in evidence.  The Board deliberated if the CI’s history of severe manic episodes with psychotic symptoms supported the higher 50% rating recommendation.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 30% for the bipolar disorder and anxiety disorder conditions, coded 9413-9432.

Other PEB Conditions.  Gender identity disorder is a condition which does not constitute a physical disability IAW DoDI 1332.38, E5, and is not compensable.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB Category IV adjudication for the gender identity disorder condition.

Other Conditions.  The conditions of right knee chondromalacia, cervical spine strain and tinnitus were noted in the VA rating decision and documented in the DES file.  None of these conditions were clinically or occupationally significant during the MEB period, none were the basis for limited duty and none were implicated in the NMA.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating. 

Remaining Conditions.  Several additional non-acute conditions or medical complaints were documented in the MEB history and physical.  None of these conditions were clinically or occupationally active during the MEB period, none were the basis for limited duty and none were implicated in the NMA.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on SECNAVINST 1850.4E for rating the bipolar disorder and anxiety disorder conditions was operant in this case and the conditions were adjudicated independently of that instruction by the Board.  In the matter of the bipolar disorder and anxiety disorder conditions, the Board unanimously recommends a rating of 30% coded 9413-9432 IAW VASRD §4.130.  In the matter of the gender identity disorder condition, the Board unanimously recommends no recharacterization of the PEB adjudication as Category IV (not a disability and not compensable).  In the matter of the right knee chondromalacia, cervical spine strain and tinnitus conditions or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows and that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Bipolar I Disorder with Anxiety Disorder	9413-9432	30%	
COMBINED	30%	

______________________________________________________________________________

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20101201, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record

                             		

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION
           ICO XXXXX, FORMER USMC, XXX XX XXXX

Ref:   (a) DoDI 6040.44

1.  I have reviewed the subject case pursuant to reference (a) and direct the subject member’s official records be corrected to reflect the following disposition:

a.	Separation from the Naval Service due to physical disability rated at 30 percent with transfer to the Temporary Disability Retired List effective 31 July 2005.

b.	Separation due to disability rated at 10 percent effective 30 January 2007. 

2.  Please ensure all necessary actions are taken to implement this decision, including the recoupment of previously paid disability separation pay if warranted, and notification to the subject member once those actions are completed.