RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01717
BRANCH OF SERVICE:  coast guard	BOARD DATE:  20150625
SEPARATION DATE:  20091113

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-6 (Marine Science Technician) medically separated for bipolar disorder.  The condition could not be adequately rehabilitated to meet the physical requirements of her Rating and she was referred for a Medical Evaluation Board (MEB).  The bipolar disorder, characterized as “bipolar disorder II, depressed phase” was forwarded to the Physical Evaluation Board (PEB) in accordance with (IAW) United States Coast Guard Commandant’s Instruction M6000 Series.  The MEB also identified and forwarded “posttraumatic stress disorder (PTSD), chronic” for PEB adjudication.  The Informal PEB (IPEB) adjudicated bipolar disorder as unfitting rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The IPEB adjudicated the PTSD as “not duty limiting.”  The CI made no appeals and was medically separated.

CI CONTENTION:  “While on medical hold in the Coast Guard and under review for medical separation my doctor/psychiatrist informed me that usually a 10% is always offered and that it would be a long dragged out (continued) process that would further aggravate my condition.  Additionally I only had contact one time with my assigned counsel who was stationed in Virginia.  She informed me that she would be on leave for over two weeks and I would be reassigned another representative because she would be transferred after her leave.  My decision was due before she would return and I was given the impression that the VA would handle benefits of retirement.  My MRI’s for my back injury came after the decision and I was afraid to stay because my attacker remained unknown and no investigation was ever conducted on the rape, sodomy and beating I suffered during a period of harassment in 2006.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  By mentioning the absence of investigation into the attack which precipitated her PTSD, it is unclear if the CI has requested a review of that condition; consequently, it will be reviewed below in conjunction with her other mental health (MH) condition. Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20090406	VA - C&P examination ~10 Mos. Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar Disorder	9432	10%	PTSD	9411	30%	20100726	
PTSD	Not duty limiting	Not rated					
Other X 1 (Not in Scope)	Other x 5	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20111216 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Bipolar Disorder.  Review of the service treatment records (STR) revealed that in January 2008, the CI was first referred by her military primary care manager to psychiatry for evaluation of depression and anxiety.  After sending a confidential letter alleging harassment and poor treatment by people in her command, she reported she was sexually and physically assaulted in her hotel room by a stranger.  She was knocked unconscious and bleeding from the rectum but did not discuss the incident for 2 years.  A reference to the assault appeared in a psychiatry note dated May 2008, which also documented the presence of bipolar disorder and possible PTSD, treated with psychotherapy and medication “with limited success (Celexa, Abilify, Seroquel).”  At the MEB medical examination 13 months prior to separation, the CI reported depression, excessive worry, difficulty sleeping, anxiety, and possible panic attacks.  The examiner noted the diagnoses of bipolar disorder Type II and chronic PTSD, noting that the CI was “not qualified for service.”

The MEB narrative summary (NARSUM) documented that, in addition to periods of “expansive energy” and “little need for sleep,” the CI also reported exaggerated startle reflex, avoidant behavior, nightmares and anxiety since being sexually assaulted 2 years previously.  She had nightmares of her trauma and nearly nightly feeling frozen in her sleep with nightmarish people around her.  There was no noted ritualistic behavior, suicidal or homicidal ideation, sleep impairment, memory loss, or inability to perform occupational tasks.  She denied symptoms consistent with alcohol abuse/dependence.  Mental status examination (MSE) revealed normal speech and thought patterns, with “tired and irritable” mood and affect.  Insight, judgment and impulse control were intact.  The STR noted the diagnoses of bipolar disorder and PTSD, with the best symptom control from using Depakote, which requires periodic blood level measurement.  The NARSUM noted the diagnoses of bipolar disorder Type II and chronic PTSD, adding that there were “no other disabilities noted” and that the CI was not “fit for worldwide duties” due to her requirement for “mood stabilizing medication that will require periodic blood levels.”  The MEB forwarded the two diagnoses of bipolar disorder Type II and chronic PTSD to the PEB noting the CI did not satisfy medical retention standards.  The CI did not elect to submit a rebuttal to the MEB, signing a statement that all impairments had been evaluated adequately by the MEB.

In an undated memorandum to the MEB, the CI’s commander noted that the CI “is a very high performer,” is a “great asset,” and “completes all her daily duties.”  A clinic note at the time of the MEB stated that the CI was not fit for worldwide duty, specifying “no shipboard duty or deployments,” but added no other duty limitations unless her medications caused her to become sedated.  In a clinic follow-up, 8 months prior to separation, the CI “appeared to be benefitting from Depakote…for targeted mood stability.”  At this occasion, her mood was “OK” with neutral affect.  There continued to be no suicidal ideation, delusional or hallucinatory symptoms, speech disturbance, cognitive impairment or other abnormalities.  In an “Amplifying Statement,” signed by the PEB president 8 months prior to separation, the IPEB noted this most recent MH evaluation, concluding that the CI’s single unfitting condition was bipolar disorder and that the PTSD was “not duty limiting.”  The IPEB 7 months prior to separation recorded a diagnosis of “bipolar disorder, symptoms controlled by continuous medication” as unfitting.

At the VA Compensation and Pension (C&P) examination, 10 months after separation, the CI recalled a traumatic event in 2006 during which she was sexually assaulted and knocked unconscious, since which time she noted symptoms of anxiety, hypervigilance, exaggerated startle reflex and panic attacks “which she described as pressured speech, overreacting to situations” and speaking impulsively, often “offending many people.”  She described her depression as “pain related depression.” She often drank a bottle of wine nightly since 2007 to relieve her physical symptoms and her pain.  She had a driving under the influence (DUI) charge in 2007, had counseling for eight sessions, and last saw a counselor in December 2009.  She had difficulty with male counselors and would not show up for appointments.  She noted being unemployed since leaving the USCG and reported that she is unemployable due to anxiety and mood swings.  She had been in a steady relationship for the past 5 years.  At the time of the C&P, she was taking no psychotropic medication except for Klonopin for muscle spasms.  She acknowledged she did need to seek psychiatric services. Upon MSE, she was noted to be anxious and hypomanic (rapid pressured speech, grandiosity, flight of ideas, tangential thoughts).  Disagreeing with the diagnosis of bipolar illness, she stated that she would stay up for several days “being paranoid and anxious and then crash.”  A diagnosis of PTSD, bipolar II disorder and alcohol abuse were rendered with a global assessment of functioning (GAF) score of 55 (moderate impairment, symptoms.)  The VA examiner noted that her two MH diagnoses were distinct; that is, that she had PTSD from her traumatic experiences, which is clinically separate from her bipolar illness.  The examiner also noted she had significant PTSD symptoms which were affecting her occupational, social, interpersonal and behavior functioning, and that the alcohol abuse appeared directly related to her desire to self-medicate because of PTSD symptoms.

Records referenced in the VA rating decision (VARD), added that she was started on treatment for PTSD at the VA medical center in November 2010, 12 months after separation and 4 months later, in March 2011, was given a GAF of 41, a score which connotes serious symptoms or serious impairment in social or occupational functioning.  The VA noted no further treatment after this date (at least until the date of the VARD), 25 months after separation.

The Board directed attention to its rating recommendation based on the above evidence.  Having determined that the PTSD condition was “not duty limiting,” and therefore not ratable, the IPEB rated the CI’s condition, bipolar disorder, at 10%, using VASRD code 9432.  The VA examiner noted that the symptoms of the two MH conditions were distinct and separate.  The Board noted that total psychiatric impairment, all MH symptoms, and all duty restrictions, regardless of co-existing MH diagnoses, are subsumed under a single rating IAW VASRD §4.130; consequently, any impairment which could possibly be attributable only to PTSD was nonetheless subsumed in this Board’s rating.  The Board first considered if application of VASRD §4.129 with a 6-month (50% minimum) period on the Temporary Disability Retired List (TDRL) was indicated in this case (per Board directive from DoDI 6040.44).  Board members agreed that the provisions of VASRD §4.129 were applicable in this case due to the sexual assault.  The Board then considered if there was evidence for a §4.130 rating higher than the §4.129 minimum mandated 50% at time of TDRL entry.  The Board agreed that §4.130 criteria for a rating higher than 50% was not met near the time of separation, and therefore the minimum 50% initial TDRL rating is applicable.

In regards to a recommendation at the time of removal from the constructional TDRL period, the most proximate source of comprehensive evidence in this case was the VA C&P examination performed 10 months after separation.  There was no relevant VA outpatient or civilian provider evidence providing psychiatric details during the 6-month interval.  Especially since the C&P examination also reflects the stress of transition to civilian life, which is a core intent of §4.129, it carries the preponderance of probative value in the Board’s assessment of a fair permanent rating recommendation.  The service evaluations nevertheless serve as useful reference points and retain relevant probative value.  The Board considered if a rating higher than the 10% adjudicated by the PEB was justified.  The 10% rating specifies “occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress, or; symptoms controlled by continuous medication.”  The §4.130 criteria for the 30% rating are “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.” 

The Board noted the disparity between the pre-separation and post-separation examinations.   One example might be her denial of alcohol problems during the MEB examination.  Yet, a primary care visit dated July 2007 documented a DUI charge with a blood alcohol concentration of .13 which was referenced in the April 2007 C&P examination.  The Board discussed the likelihood that prior to separation, the CI minimized her symptoms in an attempt to be safe and avoid possible harassment and perhaps a repeat attack.  After separation, the CI’s MH condition either worsened or she was more forthright with the VA C&P examiner (a female) than with the MEB psychiatrist (a male) about her symptoms.  No GAF score was offered during the MEB examination but at the C&P examination she received a GAF of 55 (moderate impairment, symptoms.).  The Board agreed that the disparities had very significant implications regarding the Board's rating recommendation, and deliberated the probative value assignment to these conflicting evaluations and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  A psychiatry note, dated April 2009, observed that she had, “numerous psychotropic medication trials due to either hypersensitive nervous system or stomach intolerability that prevented her from having a potentially favorable response to medication therapy.”  The MEB as well as MH treatment notes more proximal to separation, repeatedly document symptoms of depression, anxiety, and sleep impairment.  Therefore, the PEB’s conclusion that the CI’s condition met the criterion for the 10% rating, “symptoms controlled by continuous medications,” does not appear accurate.  Given independent rating of the CI’s MH condition, at the time of the MEB and separation as being closer to the 30% criteria, as well as clear worsening of symptoms by the 6-month timeframe for rating at the end of the constructive TDRL period, the Board adjudged that the CI met the 30% criteria at TDRL exit.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a retroactive 6-month constructive TDRL rating of 50% and a permanent rating of 30% for the bipolar condition.

The Board turned its attention to its assessment of the fairness of the PEB’s determination that the established PTSD condition was “not duty limiting.”  The MEB establishes that the applicant remained occupationally functional at the time of separation, but not fit for worldwide duty largely due to the requirements for management of the medication for her illness.  The commander’s statement corroborates that conclusion and the STR provides no evidence of significantly compromised performance due to psychiatric impairment.  After due deliberation, and 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 the PTSD condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD, Military Department, or USCG-specific directives 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 condition, the Board unanimously recommends a disability rating of 50% for a prescribed 6-month period of temporary retirement IAW VASRD §4.129; followed by a 30% permanent rating, coded 9432, IAW VASRD §4.130.  In the matter of the PTSD condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that the CI’s prior determination be modified to reflect a 6-month period on TDRL with a disability rating of 50% (IAW 4.129), and then permanently retired with a disability rating of 30%.

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Bipolar Disorder Condition	9432	50%	30%	
COMBINED	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		

Dear XXXXXXXXXX,
I am the Designated Decision Authority for the Coast Guard on applications submitted to the Department of Defense Physical Disability Board of Review (PDBR).  Under the authority of Title 10, United States Code, section 1554a, I accept the PDBR’s recommendation in your case (Case Number PD-2013-01717) and hereby modify the disability rating previously assigned to reflect a rating of 50% and placement on the Temporary Disability Retired List for 6 months from the initial date of separation and then a rating of 30% and re-characterization of your separation to permanent disability retirement. This decision will be effective as of the date of your prior medical separation.  Please allow up to ninety (90) days for the corrections to be made. 

Please note, if you received a lump-sum or other payment of back pay and allowances at separation, your disability retired pay may be reduced to take into account receipt of such lump-sum or other payment.  Please contact the Coast Guard Pay and Personnel Center at (800) 772-8724 for questions relating to retired pay matters. 

Enclosed for your information are a copy of the PDBR’s recommendation and a copy of the record of proceedings. 

A copy of this decision has also been provided to Coast Guard Enlisted Personnel Management Branch, the PDBR, and the Department of Veterans Affairs. 

Additionally, the PDBR's summary noted you suffered an assault in 2006.  If you would like to speak to someone about the possibility of a Coast Guard investigation of this assault, I recommend you reach out to (510) 871-0114.  She is a Coast Guard Sexual Assault Response Coordinator (SARC) based in Alameda, California, and can talk with you, in confidence, about your options

If you have any further questions, please contact the Coast Guard Personnel Service Center at (703) 872-6628. 

2 Enclosures		
	
Copy:	CG Personnel Service Center (EPM-1)
DoD Physical Disability Board of Review
Department of Veterans Affairs