RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300120
BRANCH OF SERVICE:  Army	BOARD DATE:  20130813
SEPARATION DATE:  20041015

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserves CPT/O-3(E) (Quartermaster Officer) medically separated for bipolar disorder, Type II and non-displaced meniscus tear.  The CI first injured his right knee in 1997 and then reinjured it in May of 2004.  He underwent conservative treatment and was being prepared for knee surgery when the surgery was halted due to emergency complications.  The CI began experiencing depression and mental health issues while stationed at Camp Zama, Japan in December of 2001.  He reported a series of work and relationship issues.  Neither condition could be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U2/L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The bipolar disorder II and the meniscus tear conditions, characterized as “bipolar type II disorder” and “non-displaced tear, lateral meniscus, right knee,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (see rating chart below) for PEB adjudication.  The PEB adjudicated “bipolar disorder type II” and “non-displaced meniscus tear, lateral, right knee”as unfitting, rated 10% and 0%.  The remaining conditions were determined to be not unfitting, existed prior to service (EPTS) and/or non-compensable. The CI made no appeals, and was medically separated.

CI CONTENTION:  “Currently in receipt of V.A. disability 80% paid at 100% rate for unemployability.  Currently in receipt of Social Security Disability.  Completely unable to work.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting bipolar disorder and the meniscus tear conditions are addressed below.  Additionally the malignant hyperthermia condition meets the board’s scope and is also addressed below.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040909	VA - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar Disorder, Type II	9432	10%	Bipolar Disorder	9432	30%	20050119	
Non-displaced Meniscus Tear, Lateral, Right Knee	5299-5258	0%	Degenerative Arthritis, Right Knee	5010-5260	10%	20050412	
Malignant Hyperthermia	Not Unfitting	Malignant Hyperthermia	8099-8045	Not Service Connected	
Adult Residual ADHD	EPTS	No VA Entry	
Alcohol Dependency	Not Ratable	Alcohol Dependence	9499-9410	Not Service Connected	
No Additional MEB/PEB Entries	Other x 4	20050119	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20050513 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Bipolar Disorder Type II Condition.  The MEB psychiatric narrative summary (NARSUM) notes that the CI had a history of attention deficit hyperactivity disorder (ADHD) as a child and adolescent (with severe impulsivity, hyperkinesis, distractability, frequent fighting) treated with medication.  He stated he continued to experience a short temper, impatience, fast driving and occasional road rage.  A history of alcohol abuse prior to entering service was noted by the MEB NARSUM as well as the VA examination following separation.  According to a comprehensive evaluation in 1997, the CI reported he deployed to the Gulf region (Saudi Arabia and Kuwait) from August 1990 to March 1991 as a radio operator and denied any significant injuries.  A service treatment record (STR) entry dated 12 January 1991, while the CI was on active duty in the Marines, documented complaints of temper control, alcohol abuse and marital discord.  The symptoms were affecting duty performance (radio watch and guard mount).  There was suicidal ideation on two occasions without plan or current ideation.  The CI separated from the Marines in August 1991.  At the time of the separation medical examination on 12 June 1991 and at the time of an enlistment examination for entry into the Army Reserves, on 22 October 1991, the CI checked “no” in response to questions regarding a history of depression, sleep problems, memory problems or nervous trouble.  The CI attended college (ROTC) during his break in service.  At a periodic examination on 3 April 1993 and at a medical examination on 6 June 1995, the CI checked “no” in response to questions regarding a history of depression, sleep problems, memory problems or nervous trouble.  The CI reentered active duty on 12 June 1996.  At a comprehensive clinical evaluation, on 8 October 1997, the CI reported experiencing intermittent episodes of depression since returning from the Gulf (USMC radioman) in 1991 with sleep disturbance, difficulty falling asleep due to racing thoughts and daytime fatigue.  The CI reported drinking a six-pack of beer a day.  In 1997, the CI participated in an alcohol rehabilitation program (according to CI report during the VA examination after separation).

According to the MEB psychiatry NARSUM (28 July 2004), the CI reported that he first developed severe depression with a very negative attitude towards his duties as a Company Commander during deployment in December 2001 to January 2002 where he felt overwhelmed with responsibility (300 soldiers including O-6s and general officers) in a high visibility job without real authority.  According to his Officer Record Brief, he was assigned to this position beginning 12 October 2001.  At the time of a periodic medical examination performed on 30 January 2002, there was no mention or complaint of depressive symptoms.  According to the MEB psychiatry NARSUM, the CI reported that he developed severe sleep disturbances, anhedonia, a sense of hopelessness and helplessness, weight gain of 27 pounds over a 2-year period, poor concentration, fatigue, and subjective sadness.  He became paranoid and attempted to cope by increasing his alcohol consumption to the point that he drank to unconsciousness every Friday and Saturday, frequently coming to work intoxicated.  Two Officer Evaluation Reports (OER) encompassing the rating periods of 16 July 2001 to 15 July 2002 and 16 July 2002 to 10 January 2003, reflected excellent performance of duties as Company Commander and Commandant of a 250 soldier company with a recommendation for below the zone promotion to the rank of major.  The reports indicated the CI met standards for leadership attributes in the spheres of mental (possesses desire, will, initiative and discipline), emotion (displays self control under pressure), and interpersonal (shows skill with people, coaching, teaching, counseling, motivating and empowering).

According to the psychiatry MEB NARSUM, the CI noted that both his depressive symptoms and his excessive alcohol consumption improved when he left command to serve as the AC liaison to the Army Guard in February 2003.  He briefly enjoyed the opportunity of living next to his adoptive parents and working in a less stressful environment, until March 2003, when he again became depressed, subsequently resuming his heavy drinking by May 2003.   In August 2003, he began taking medications for depression and adult residual ADHD, both prescribed by a civilian physician.  Upon self-referral in November 2003, the CI was treated for alcohol abuse in an in-patient treatment program for 3 weeks.  Upon discharge, he stated he maintained sobriety for most of the preceding 4 months prior to the MEB psychiatric consultation, but only because he did not want to be unfaithful again.  The OER encompassing the rating period of 11 January 2003 to 10 January 2004 reflected outstanding performance of duties with a recommendation for promotion to the rank of major.  On 6 March 2004, the CI underwent a pre-deployment health assessment for deployment to Southwest Asia.  The CI reported symptoms of depression, inattentiveness and inability ability to concentrate, and was referred to the mental health clinic.  According to the MEB psychiatry NARSUM, the CI presented to the mental health clinic with a chief complaint of coming apart and feeling depressed.  The CI underwent various modifications of his medication treatment regimen and by March 2004, he had much better attention and concentration, decreased kinesis, was euthymic, sleeping well, and felt much better.  A psychiatry evaluation on 18 May 2004 noted he had been off of his medications since 6 May 2004 “without exacerbation of symptoms.”  The CI was started on new medications for his bipolar disorder and an MEB for bipolar disorder was initiated.  At the time of the MEB psychiatry NARSUM examination, the CI was alert and oriented, and respectful and pleasant to the examiner; however, the CI appeared angry and hostile, denigrating the Army and the leadership.  The examiner noted that “He made it clear that his immediate goal was to get out of the Army ASAP.”  The MEB examiner’s final diagnosis and functional conclusions were "Bipolar Type II Disorder, moderately severe, manifested by recurrent episodes of clinical depression, periods of normal mood, and episodes of hypomania with euphoria, increased pleasure seeking activities, financial irresponsibility, hypersexuality, and irritability, improved on medications.  The psychiatrist assigned a Global Assessment of Functioning (GAF) score of 61, indicating mild to moderate symptoms.

At the VA Compensation and Pension (C&P) examination for mental disorders, on 19 January 2005, 3 months after separation, the CI reported he had been working at a factory since separating from the service and was buying a house.  His wife managed the finances since he tended to overspend.  He reported his moods fluctuated fairly rapidly, but with much less severity of fluctuation with the current medications.  He described periods of depression lasting 4 to 5 days per week and then periods of elation and/or irritability which lasted a day or so.  The attention deficit problem was noted to consist of decreased attention and concentration, impulsivity, easy distractibility, and being unable to stay on task for any length of time.  He reported consuming 8 to 10 beers per night.  On mental status examination, the CI was alert, oriented, and neatly dressed.  He was noted to be somewhat fidgety but tried to be attentive and cooperate with the exam.  The mood was a little anxious with appropriate affect.  He had a normal rate and rhythm to his speech.  Thought processes were normal and the cognitive exam was intact (attention, concentration, memory).  Based on the reported symptoms and history the examiner assigned a GAF score of 50 (with the best GAF in the preceding year of 50); connoting serious to moderate symptoms.  The examiner concluded that the CI appeared to be mildly to be moderately impaired vocationally and socially with his difficulty interacting with others at times due to his mood fluctuations and his dependence on alcohol.  He had good social support and is independent of others to perform activities of daily living and appeared capable of managing his own financial affairs with his wife's assistance and regulation.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% coded 9432 (bipolar disorder), noting the CI was functioning fairly well and noting the presence of “strong Axis II traits operative (narcissistic and antisocial) contributing to functional impairment, justifying apportionment to mild.”  The VA rated the condition 30% also coded 9432.  The Board first addressed if application of §4.129 (mental disorders due to traumatic stress) was applicable.  The onset of the severe episodes of depression in December 2001 and again in 2003 were related to stressors of routine military duties.  The Board noted the 1991 deployment but concluded that the bipolar disorder was not due to a “highly stressful event” as used in the VASRD, and that §4.129 is not applicable in this case.  Multiple psychiatric diagnoses were identified in the record, including bipolar Type II disorder, adult residual ADHD, alcohol dependence and personality traits.  In rating the CI’s mental conditions, the Board considered his total mental impairment, including other Axis I diagnoses, IAW §4.126 (evaluation of disability from mental disorders) as all are rated IAW the general rating formula for mental disorders IAW VASRD §4.130.  Also, IAW DoDI 1332.38, “…in the absence of an underlying ratable causative disorder,” ADHD and personality disorders are, considered “conditions and circumstances not constituting a physical disability.”  However, any impairment due to ADHD, as well as the other psychiatric diagnoses cited above, is considered in the Board’s §4.130 rating of the CI’s total mental impairment without any rating reduction.  Despite his Axis II traits and history of ADHD, the CI performed military duties in an excellent manner.  All members agreed that the §4.130 criteria for a 50% rating were not approached at the time of separation or at the post-separation C&P evaluation.  Deliberations then focused on considering the 10% versus the 30% rating.  The CI noted improvement and stabilization in his conditions with ongoing medical treatment and with separation from the stresses of military service.  The Board noted that despite the descriptions of severe symptoms, officer performance reports covering the periods of time described as severely symptomatic reflected excellent duty performance (three performance reports spanning the period of time from 16 July 2001 to 10 January 2004).  Further, the symptoms at the time of the MEB psychiatry examination were described as less severe than those when the CI’s duty performance was reported as excellent.  Members concluded that the 10% description (“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”) is a better fit with the CI’s level of impairment at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bipolar disorder condition.

Non displaced Meniscus Tear, Right Knee Condition.  The CI initially injured his right knee in 1997 while exiting a tank and reinjured it in a March 2004 in a motorcycle accident.  Imaging studies revealed a non-displaced tear of the lateral meniscus.  Ligaments (including anterior cruciate, posterior cruciate and medial and lateral collateral ligaments) were intact.  He was taken to surgery for arthroscopy in May 2004; however, the CI developed an emergent complication (malignant hyperthermia) early in the procedure and the surgery was cancelled.  The NARSUM noted that the CI reported his knee pain severity was 4 out of 10.  He had some tenderness to palpation at the lateral joint line of the knee.  Range-of-motion of the knee was full and there was no instability noted.  At the VA C&P examination performed 6 months after separation, the CI reported pain over the lateral knee when he walked and no instability.  On exam, the right knee showed "... a mildly increased laxity, and he has a soft end point to Lachman's exam on the right.  He does not pivot shift, but he does guard significantly.  He has no instability of varus/valgus stress."  There was no evidence of recurrent subluxations in the STRs.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated 0% coded analogously to knee cartilage impairment (5299-5258) with application of the Army pain policy.  The VA rated 10% dual coded for arthritis and limitation of flexion (5010-5260), although their rationale cited instability (code 5257).  With no evidence of recurrent subluxation or lateral instability and normal range of motion, the Board notes that the evidence does not support a compensable rating for any applicable codes for the knee and arthritis; and, no other available lower extremity codes are applicable to this case, barring concession to either VASRD §4.59 (painful motion) or §4.40 (functional loss).  Single joint involvement precludes a compensable rating under code 5003 (arthritis).  Members also agreed that the nature of the injury and the functional limitations in evidence were difficult to reconcile with a 0% rating, and that VASRD §4.59 was supported to achieve the minimum rating of 10%.  The NARSUM description that the CI had 4 out of 10 pain and the VA description that the CI reported pain when he walked provided support for a 10% rating for painful motion (§4.59).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee condition under code 5299-5258.

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was malignant hyperthermia.  The Board’s main charge is to assess the fairness of the PEB’s determination that malignant hyperthermia was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The malignant hyperthermia was a one-time complication during surgery from which the CI recovered without permanent residuals.  This condition was given one profile at the time of occurrence (and then was re-mentioned only in the final profile at time of MEB).  Additionally it was not implicated in the commander’s statement and was not judged to fail retention standards.  All evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for malignant hyperthermia and so no additional disability rating is recommended.

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 the USAPDA pain policy for rating right knee meniscus tear condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the bipolar disorder Type II condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the non-displaced meniscus tear, right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5258 IAW VASRD §4.71a.  In the matter of the contended malignant hyperthermia condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Bipolar Disorder, Type II	9432	10%	
Non-Displaced Meniscus Tear, Right Knee	5299-5258	10%	
Malignant Hyperthermia	Not Unfitting		
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXXXXXX, AR20130021879 (PD201300120)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl