RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX                 		                           BRANCH OF SERVICE:  navy
CASE NUMBER:  PD1100191 		                              SEPARATION DATE:  20060106
BOARD DATE:  20120228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty HM3/E-4 (68086 / Hospital Corpsman), medically separated for bipolar II disorder.  The CI injured her left knee during basic training in May 2002 and developed bilateral knee pain.  Her symptoms did not improve with limited duty (LIMDU) and conservative management and she subsequently underwent left knee surgery in May 2005.  Despite surgery, her left knee pain persisted.  She did not respond adequately to treatment and was unable to perform within her rating or meet physical fitness standards.  She was continued on a second LIMDU and a third LIMDU was denied and she underwent a Medical Evaluation Board (MEB).  During the MEB time period, the CI sought treatment for mood swings, depressive symptoms and suicidal ideation.  She was diagnosed with bipolar II disorder and treated with therapy and medication.  The MEB forwarded chondromalacia of patella, other acquired deformities of the knee, and bipolar II disorder to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E.  No other conditions appeared on the MEB’s submission.  Other conditions included in the Disability Evaluation System (DES) packet will be discussed below.  The PEB adjudicated the bipolar II condition as unfitting, rated 10%, with application of the SECNAVINST 1850.4E.  Additionally the conditions of left knee status post-tibial tubercle realignment and bilateral chondromalacia of the patella (due to malalignment) were adjudged category III (cat III - not separately unfitting and do not contribute to the unfitting condition).  The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION:  “After being medically separated from the United States Navy, I was evaluated by the Veterans Administration, and I was found to be 70% disabled due to PTSD, bipolar disorder, endometriosis, lumbar degenerative disc disease, and bilateral degenerative joint disease due to chondromalacia.  Approximately two years later, I was found to be 100% disabled by the VA and was permanently disabled.”

RATING COMPARISON:  

Service IPEB – Dated 20051026	VA (~12 Mo. After Separation) – All Effective Date 20060107	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar II Disorder	9432	10%	Bipolar Disorder & PTSD	9432	50%*	20070119	
L Knee S/P … Realignment	Cat III	L Knee Chondromalacia	5099-5014	10%	20070302	
Bilateral Chondromalacia of the Patella … Malalignment	Cat III					
		R Knee Chondromalacia	5099-5014	10%	20070302	
↓No Additional MEB/PEB Entries↓	Lumbar DJD	5237	10%	20070302	
	Endometriosis	7629	10%	20070302	
	0% x 4/Not Service Connected x 1	20070302	
Combined:  10%	Combined:  70%	
*Bipolar Disorder and PTSD, 9432, increased to 100%, effective 20080307.

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which her service-incurred condition continues to burden her.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the DES operates.  The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code).  The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation.  The Board also acknowledges the CI's contention suggesting that service ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected by the DVA).  While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  The DVA, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  

Bipolar II Disorder.  The psychiatric addendum to the MEB, dated October 2005 noted that the CI had self-referred one month prior for symptoms of mood swings and depression.  She described her mood swings as either high, or low.  The CI endorsed symptoms of distractibility, insomnia without feeling tired, increased goal directed activity, irritability, pressured speech, racing thoughts and anxiety occurring during the “highs.”  She noted that these symptoms “do not cause significant problems, but the patient notes them as significantly out of the norm for her and distressing.”  The “highs” would last from days to weeks, after which time she would return to a normal mood.  This period of normal mood would then be followed by a “low” period of depressed mood which would last for three to four weeks.  The CI’s low periods were characterized by symptoms of hypersomnia, amotivation, decreased interest, anhedonia, crying spells, poor appetitie, guilt, negative self-talk and suicidal ideation.  Additionally, the CI endorsed symptoms of increasing anxiety as well as increasing frequency and severity of her mood swings.  The examiner noted that three weeks prior to the psychiatric narrative summary (NARSUM), the CI had experienced thoughts of wanting to harm her patients at work in the setting of significant irritability and depressed mood.  She denied any intent or plan and she did recognize the thoughts as distressing and intrusive.  The CI was started on treatment with Effexor (anti-depressant) at that time, but was later changed to Paxil and Lamictal due to side effect of insomnia.  

At the time of the psychiatric NARSUM, the examiner noted that the CI’s symptoms had stabilized on medication; commenting that her mood and anxiety had improved and documenting that she was no longer suicidal.  The CI continued to endorse symptoms of insomnia, not responsive to medication.  On mental status exam (MSE), she was mildly anxious with a mildly depressed mood and a mood-congruent, reactive affect.  The examiner documented intact attention and concentration as well as good insight and judgement.  The CI’s speech was normal and there were no psychotic symptoms, perceptual disturbances or abnormalities of memory.  The examiner commented that although the CI’s mood was responding to treatment, she continued to have prominent depressive symptoms, “part of which may include adjustment difficulties to transition out of the military.”  Additionally, the examiner noted that the CI’s “low episodes are more dysfunctional to the patient in regard to both work and social functioning.”  The examiner assessed marked impairment for further military duty and mild impairment for social and industrial adaptability.  The prognosis was “hopeful to return to a pre-morbid level of functioning with ongoing therapy and psychopharmocologic optimization.”  The axis I diagnosis was bipolar II disorder, most recent episode depressed and the global assessment of functioning (GAF) was assigned at 55 – 60, in the range of moderate symptoms.  The CI’s mental health condition did not result in any LIMDU and the condition was not implicated in the non-medical assessment (NMA), which had been accomplished prior to the CI’s mental disorder diagnosis.  The PEB worksheet (JDETS) noted that “the impairment is minimal,” but recommended unfit due to concern that “bipolar often progresses.”

At the time of the VA Compensation and Pension (C&P) exam, approximately 12 months after separation, the CI continued to endorse bipolar symptoms.  She also reported a history of a suicide attempt by overdose that was not treated by medical personnel.  She had not been in treatment for her mental health disorder since leaving the service.  The CI reported the development of symptoms of nightmares related to missile attacks during deployment and her (pre-service) emergency care of victims of the September 2001 terrorist attacks.  She also endorsed symptoms of avoidance, emotional detachment, lack of trust, lack of friends, loss of interest in leisure activities, sleep disturbance, irritability, frequent arguments with her boyfriend and others, exaggerated startle response and hypervigilance.  She stated that she would only leave her home in order to go to work, out of fear that something terrible might happen.  The CI also complained of being tearful and having suicidal thoughts, without recent intent.  Despite these symptoms, the CI reported that she had successfully completed a paramedic certification program and was currently employed as an emergency medical technician.  The examiner noted that the CI was performing well on the job, without difficulties in her relationships with supervisors or coworkers.  On mental status exam, the CI’s mood was described as depressed with an incongruous affect.  The examiner commented that “she frequently laughed and smiled when discussing her experience of depression, and her other recent difficulties and stressors.”  The CI reported daily suicidal ideation without intent.  There was no homicidal ideation, paranoia, delusions or hallucinations.  Her insight and judgment were good, her cognition was intact and her thought processes were logical and goal-oriented.  The axis I diagnoses were bipolar I disorder, most recent episode depressed, and posttraumatic stress disorder (PTSD).  The GAF was assigned at 50, in the range of serious symptoms, and indicated it was for current functioning and the highest in the past past year.  The examiner concluded that her depressive symptoms were in the moderate to severe range and more debilitating to her daily functioning than her episodic hypomanic and manic symptoms.  The examiner further noted that although the CI “continues to manage her daily work environment, which typically involved a good deal of stress, as well as difficult relationship issues, her mental state appears to be quite fragile.”  The VA assigned a rating of 50% for the mental health conditions based upon this evaluation.  The Board concluded that the CI’s condition at the time of the VA exam, some 12 months after separation, represented post-separation worsening in the conditon and was not indicative of her condition at time of separation.

The Board directs its attention to its rating recommendations based on the evidence just described.  It was first adjudged that PTSD was not diagnosed or apparent prior to separation and that this case of bipolar disorder did not meet the requirements for application of a retroactive TDRL rating IAW VASRD §4.129, or as directed by DoD for PTSD.  The CI’s psychiatric condition was adjudged to be of an intrinsic nature, and not a result of a “highly stressful event” (as per §4.129).  As regards the separation rating recommendation, all members agreed that the §4.130 threshold for a 50% rating was not approached.  The Board acknowledged that the VA assigned a 50% rating for the mental health conditions based upon their exam at 12 months after separation.  As discussed above, the Board considered that the VA exam represented some post-separation decline in the CI’s condition and was not indicative of the CI’s level of functional impairment at time of separation.  The service psychiatry addendum was more proximate to separation and was adjudged of greater probative value.  The deliberation settled on arguments for a 10% versus a 30% separation rating recommendation.  In support of the argument for a 10% rating, both the service exam and the C&P exam noted similar symptoms, but noted the CI was functioning in her fulltime employment.  Additionally, the service exam documented no social impairment and noted that the CI’s symptoms were responding to treatment and her prognosis was “hopeful;” although this was within the first month of treatment.  The Board noted, however, that the GAF assignment, symptom description and clinical course noted at the service exam argue against a characterization of the severity as mild or transient, and it is clear that symptoms were not completely controlled on medication.  The Board considered the CI’s prominent depressive symptoms, sleep disturbance, decreased energy, decreased motivation and increased suicidal ideation, and deliberated if decreased efficiency can be assumed even though reliability and productivity were not affected.  The Board noted that the severity of the symptoms supported a 30% rating recommendation, although assessing only pre-separation evidence and a “hopeful prognosis” may support a 10% rating.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a permanent bipolar II disorder disability rating of 30% in this case.  

Other PEB Conditions.  The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were left knee status post-tibial tubercle realignment and bilateral chondromalacia of the patella due to malalignment.  The CI had a lengthy history of left knee pain that was well documented in the service treatment records (STR).  Prior to entry on active duty, the CI had undergone diagnostic arthroscopy and joint debridement of the left knee in 1997, and of the right knee in 1998.  Following the surgeries, she had complete resolution of symptoms and was cleared to enter onto active duty without restrictions or limitations.  The CI injured her left knee while in basic training in May 2002.  After a lengthy trial of conservative management, to include LIMDU, left knee injections and physical therapy, she underwent arthroscopic exploration, followed by an open tibial tubercle realignment and open lateral release procedure on the left knee in May 2005.  The CI displayed some improvement in her left knee pain symptoms following surgery, however at the time of her third LIMDU Board, in          July 2005, the narrative summary noted that she would require a significant period of additional time to completely rehabilitate the left knee.  That summary also noted that the CI was having similar symptoms in the right knee which might also require surgery and further extension of her LIMDU.  The narrative listed limitations of no participating in impact activities and no running, but added that “she is more than capable to provide the service that is necessary from her in her daily activities and current work space.”  This request for a third limited duty period was denied by Navy Personnel Command, which cited, “mbr has exhausted all LIMDU.  Further LIMDU for another surgery is not in the best interest of the service.”  The NMA noted that the CI was performing adequately within her specialty and commented that she had good potential for continued service in her present condition.  However, the NMA also commented that she was not wordwide assignable and recommended against retention on active duty in a permanent LIMDU status.  The (final, September 2005) MEB noted that the CI continued to have significant bilateral knee pain with walking up and down stairs as well as riding the bike, and stated that her symptoms were not likely to improve.  The MEB concluded that her bilateral knee pain with running, climbing and daily activities “would interfere with her ability to carry out her assigned duties on active duty.”  Despite the findings of the MEB and the NMA, the PEB stated (JDETS notes) “knees not unfitting as HM3.”

The Board considered the considerable documentation of duty impairment related to the left knee condition and referral into the DES was for the left knee condition.  All evidence considered, the Board cannot find enough strength in the PEB position to overcome the sound arguments favoring the CI’s position regarding the left knee fitness adjudication.  The Board, therefore, recommends that the left knee condition be rated as an additionally unfitting condition.  

Left Knee Status Post Tibial Tubercle Realignment and Left Knee Chondromalacia Patella.  There were three left knee evaluations in evidence, one with goniometric range-of-motion (ROM) measurements, which the Board weighed in arriving at its rating recommendation.

Goniometric ROM –
Left Knee	Ortho ~6 Mo. Pre-Sep
(20050719)	MEB Info. ~2 Mo. Pre-Sep
(20051107)	VA C&P ~14 Mo. After-Sep
(20070302)	
Flexion (140⁰ normal)	“Full range of motion of the knee” 		0-85⁰	
Extension (0⁰ normal)			5⁰	
Comment	Pain elicited by motion of the knee; normal Q-angle	More normal Q-angle; regained biceps strength; full ROM; documented painful use with running, climbing and daily activities	Antalgic gait; walks w/ cane, crutch and uses hinged brace; painful motion; pain with squatting; flexion further limited to 80⁰ with repetitive use.	
§4.71a Rating	10%*	10%*	10%*	
	*With application of §4.59, painful motion or §4.40 functional loss.

The MEB narrative summary did not include an examination of the knee.  A post-operative orthopedic exam done six months prior to separation noted full ROM with painful motion.  The VA C&P exam, which took place 14 months after separation, documented complaints of left knee pain, weakness and giving out.  The CI stated that she had to quit her job with an ambulance company because her knee pain prevented her from climbing in and out of the ambulance.  The examiner noted tenderness over the area of pin placement, but did not find evidence of effusion, redness or heat.  There was no instability on Lachman’s, McMurray’s, anterior drawer or posterior drawer testing, however, the examiner documented “+valgus in neutral and in 30 degrees of flexion.”  The exam also documented painful limitation of motion, with additional limitation of flexion due to pain following repetitive use.  Plain films of the left knee noted post-surgical changes without malalignment.  The films also documented a transverse nondisplaced lucency which may have been due to remodeling.  A 2002 MRI of the left knee was interpreted as normal.  The VA utilized coding analgous to osteomalacia (5014) and rated at 10% based upon evidence of painful limitation of motion.  The degree of limitation of flexion and limitation of extension documented at the VA exam was not compensable under the knee joint specific coding.  There was no evidence of frequent locking or joint effusion to warrant a higher rating under alternate coding of 5258, cartilage, semilunar, dislocated.  The service exams did not comment on joint stability and the “+valgus” noted at the VA exam would not meet the criteria for the higher 20% rating under coding for lateral instability.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of left knee condition favors its recommendation as an additionally unfitting condition for separation rating.  It is appropriately coded 5099-5014 and meets the VASRD §4.71a criteria for a 10% rating.  

Right Knee Patellofemoral Syndrome Condition.  The documentation of functional impairment attributed to the right knee condition was somewhat limited and, absent the duty limitations imposed by the left knee condition, there was insufficient evidence that the right knee condition was separately unfitting.  All evidence considered, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness adjudication for the right knee condition.  

Other Contended Conditions.  The CI’s application asserts that compensable ratings should be considered for lumbar degenerative disc disease (DDD), endometriosis, and PTSD.  The lumbar DDD did not result in any LIMDU and was not implicated in the NMA.  This condition was reviewed by the action officer and considered by the Board.  There was no evidence for concluding that the lumbar DDD condition interfered with duty performance to a degree that could be argued as unfitting.  The Board determined therefore that the lumbar DDD condition was not subject to service disability rating.  The conditions of endometriosis and PTSD were not documented in the DES file.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  

Remaining Conditions.  Several additional non-acute conditions or medical complaints were also documented.  None of these conditions were significantly clinically or occupationally active during the MEB period, none carried attached duty limitations, 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the bipolar II disorder condition, the Board by a vote of 2:1 recommends a permanent service disability rating of 30%, coded 9432 IAW VASRD §4.130.  The single voter for dissent (who recommended no change in the PEB 10% adjudication for 9432) submitted the addended minority opinion.  In the matter of the left knee chondromalacia status post-tibial tubercle realignment condition, the Board unanimously recommends that it be added as an additionally unfitting condition for separation rating, coded 5099-5014 and rated 10% IAW VASRD §4.71a.  In the matter of the right knee chondromalacia condition, the Board unanimously recommends no change from the PEB adjudication as not unfitting.  In the matter of the lumbar DDD condition 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 her prior medical separation.  

UNFITTING CONDITION	VASRD CODE	RATING	
Bipolar II Disorder 	9432	30%	
Left Knee Chondromalacia S/P Tibial Tubercle Realignment	5099-5014	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110321, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	 

MINORITY OPINION:

The CI was found unfit for Bipolar II Disorder by the PEB and rated 10% and was separated January 6, 2006. 
The CI self-referred for evaluation on September 7, 2005, four months prior to separation with complaints of depression with anxiety. The CI reported her symptoms had been going on for about a year to a year and a half.  The service treatment record has minimal treatment notes. Her psychiatric addendum was completed for the MEB on October 7, 2005.  At this time, treatment notes indicate she was responding well to treatment.  Her symptoms had stabilized on medication and her mood and anxiety had improved and she was no longer suicidal, but continued to endorse symptoms of insomnia. 

Although the CI reports she had symptoms for over a year, there was no indication that any of these symptoms were apparent to her chain of command or interfering with her duty performance. She continued to work in her specialty and her Non Medical Assessment (NMA) stated “has performed her duties adequately to support the mission of Naval Health Care New England.”

The VA C&P exam completed approximately 12 months after separation noted the CI continued to endorse bipolar symptoms. Despite her symptoms, the CI reported she successfully completed a paramedic certification program and was employed as an emergency medical technician, performing well on her job, without difficulties in her relationships with supervisors or coworkers and reported no significant time missed from work. She also was a scuba instructor. 

The members of the Board deliberated between 10% and 30%.

 30%- Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as:  depressed mood, anxiety,  suspiciousness,  panic attacks (weekly or less often) chronic sleep impairment,  mild memory loss (such as forgetting names, directions, recent events) 

10%- Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  Despite her symptoms, there was no evidence of decrease in work efficiency or any intermittent periods of inability to perform occupational tasks. 

I believe a final rating of 10% more closely approximates the elements of the CIs Bipolar condition at the time of separation.  The Board unanimously agreed the left knee be added as an additional unfitting condition, appropriately rated at 10%.

As the minority member, I recommend the CI’s prior determination be modified to reflect a combined rating of 20%.

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION           

Ref:   (a) DoDI 6040.44
       (b) PDBR ltr dtd 15 Mar 12  
                    
1.  Pursuant to reference (a) I have reviewed the recommendation of the PDBR set forth in reference (b), and direct correction of the subject member’s Naval records as follows:

    a.  Effective 6 January 2006, disability separation with a rating of 20 percent (increased from 10 percent), with entitlement to disability severance pay.
	
2.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay if warranted, and notification to the subject member once those actions are completed.