RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-00553
BRANCH OF SERVICE:  Army	BOARD DATE:  20141030
SEPARATION DATE:  20040308

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4/Aviation Operations Specialist medically separated for bipolar disorder condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB).  The bipolar disorder condition, characterized as “bipolar disorder” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “bipolar disorder” as unfitting rated 10% citing criteria of AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  In November 2003, the PEB rating him 10% for his bipolar but did not assign ratings for his additional conditions.  In March 2004, the VA assigned a combined rating of 70% which included all of his conditions.

His complete submission, with attachments, is at Exhibit A.

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.  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 Veterans Affairs Schedule for Rating Disabilities (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 20040116	VA* - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar Disorder	9432	10%	Bipolar Disorder	9432	10%	STR	
Other x 0  (Not in Scope)	Other x 16 (Not in Scope)	
Combined:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20040505 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Bipolar Disorder Condition.  The CI was evaluated by a rheumatologist on 4 August 2003 for a 2-year history of fatigue, weakness, diffuse pain and feeling depressed.  It was noted that she appeared quite depressed, tried to sleep all the time, and locked herself away from her family.  The evaluation concluded that depression was a “major contributor” to her problems and she was prescribed an antidepressant medication.  The narrative summary (NARSUM) examiner later indicated she took this medication for 3 weeks.

On 10 September 2003 (6 months prior to separation), the CI was seen in the emergency room (ER) for taking too many prescribed pain medications in an effort to relieve pain after a hysterectomy.  She denied suicidal thinking or intent.  An evaluation in the ER by a MH provider rendered a diagnosis of adjustment disorder with depressed mood.  According to the NARSUM examiner, at follow-up MH evaluations after her ER visit the CI reported several weeks of depressed mood in the setting of medical issues and learning she would soon be deployed despite being on convalescent leave.  She also endorsed previous, but not current, hypomanic episodes (less severe forms of manic episodes).  The NARSUM reported that on 17 October 2003, approximately 2 weeks after starting psychotropic medication, the CI presented with decreased need for sleep, auditory hallucinations, increased energy, racing thoughts, irritability and paranoia.  She had remained home from work due to difficulty focusing.  She was hospitalized for 10 days which resulted in stabilization of the condition with two psychotropic medications, a medication for sleep and psychotherapy.  The hospitalization led to a diagnosis of Bipolar I disorder.  Because she reported difficulty readjusting to her duty station due to confidentiality concerns after hospital discharge, her command approved duty as a chaplain’s aide, but her actual duties were not specified.

The commander’s statement on 17 November 2003 (4 months prior to separation) reported excellent duty performance and stated that profile restrictions consisting of inability to go to the field, use weapons or deploy, prevented her performance of MOS duties.  A psychological questionnaire on 20 November 2003 reported the CI’s “symptom distress” had worsened somewhat compared to the same questionnaire 2 months previously.  It also indicated that she perceived the quality of her relationships were still a problem but had improved; and that performance in social roles (including work) had significantly worsened.

At the NARSUM exam on 2 January 2004 (2 months prior to separation), the CI reported that she was recently separated from her husband, who returned to New York with their youngest child.  The current relationships with her two other children were not described.  Although she continued to endorse depressive symptoms, she was able to perform her duties as a Chaplain’s aide; but her actual duties were not specified.  The mental status exam showed normal appearance and speech.  Affect was slightly anxious and mood depressed.  Thinking, judgment and impulse control were normal.  The examiner rendered a diagnosis of bipolar disorder, not otherwise specified (NOS) and assigned a Global Assessment of Functioning (GAF) of 65 (connoting mild symptoms or impairment).

A permanent L2S4 profile (knee pain and bipolar disorder) on 2 February 2004 (a month after the MEB) stated “Doing poorly with current meds, no nighttime duties, no more than 20 hour work week.”  It restricted her access to weapons and required she be stationed within 50 miles of a Military Treatment Facility (MTF) with “inpatient” psychiatric support.

At a general medical VA Compensation and Pension exam performed 6 months after separation, the CI reported that “she does not work at this time.”  However, she also indicated that migraine headaches caused lost time from work: “…it is about a week every month.”  She also stated that a physical condition “prevented her from doing activities that she loves to do like working out in the gym, running, and swimming.”  A VA exam in 2011 reported that the CI worked in 2007 at a call center.

The Board directed attention to its rating recommendation based on the above evidence.  Application of VASRD §4.129 is considered by the Board for all cases of service-connected psychiatric conditions resulting in separation; but, all members agreed that the “highly stressful event” requisite for §4.129 was not satisfied in this case.  The PEB assigned a 10% rating under the 9432 code (bipolar disorder), implying that symptoms were “mild or transient” or were “controlled by continuous medication.”  The VA relied on the STR in assigning the same rating and code.  The Board considered if a rating higher than 10% was warranted at the time of separation.  The §4.130 criteria for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks.”  While there was one to possibly three 30% threshold symptoms, there were no 50% threshold symptoms such as flattened affect, panic attacks or memory impairment.  The Board also debated the significance of a history of hallucinations, but agreed these did not reflect the “persistent” characterization of the possible 100% threshold symptom.  Board members considered that the NARSUM’s GAF score reflected mild impairment and the commander’s statement portrayed excellent duty performance.  While relevant VA evidence proximal to separation was sparse, the record did suggest some employment as well as engagement in enjoyable activities.  However, the Board also considered that psychiatric hospitalization was required 5 months prior to separation and that the final profile in evidence (a month after the MEB and over 2 months after the commander’s statement) indicated the condition was “doing poorly;” and restricted her access to weapons and required she be stationed within 50 miles of an MTF with “inpatient” psychiatric support.  Ultimately, the Board majority concluded that the evidence at hand was not described by the “mild or transient” or “controlled by continuous medication” stipulations of the 10% rating; and that the clinical picture was most accurately depicted by the next higher 30% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the bipolar disorder condition.

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 AR 635-40 for rating bipolar disorder was operant in this case and the condition was adjudicated independently of that regulation by the Board.  In the matter of the bipolar disorder condition, the Board by a majority vote recommends a disability rating of 30%, coded 9432 IAW VASRD §4.130.  A psychiatrist’s independent review concurs with the 30% rating.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

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 Disorder, NOS	9432	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131017, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

XXXXXXXXXXXXXXXXX
PDBR Psychiatrist

MINORITY OPINION:

The overall facts of the case are presented in the record of proceedings.  The minority voter feels that both the PEB and VA correctly adjudicated this case at 10% for bipolar disorder, 9434, which is a fair and equitable rating of the CI’s mental condition at the time of separation.

Documents reviewed by the Board members identified an individual who was diagnosed with bipolar disorder in October 2003, 2 years after her enlistment, and approximately 6 months prior to her separation.  A myriad of facts were presented in diagnosing her MH condition.  Among those was the indication that “she reported several weeks of depressed mood…and her Command’s indication that she would soon be deployed;” a family history of mental illness; depression after her father’s death and a “history suggesting previous hypomanic episodes.”  The CI was trained as an Aviation Operations Specialist, one who schedules and dispatches tactical aircraft missions and performs associated operational administrative duties.  However, based upon her diagnosis and after an inpatient psychiatric stay and the potential for confidentiality concerns, her commander agreed to assign her to act as a Chaplain’s aide as she may have been able to continue functioning in her MOS.  According to the NARSUM, “...she is able to perform her duties as a chaplain’s aide.”  It is the reassignment of the CI and her continued satisfactory performance, albeit in a different MOS, that indicates to the minority voter that the 10% rating is fair and equitable.

If the CI had been assigned to a Medical Holding Company while undergoing the MEB/PEB process, then the data provided in the record might indicate that the CI could have been adequately rated at the 30% level.  However, the fact that her Commander endorsed the reassignment indicates that he felt the CI could handle a much less stressful job, and potentially still be a productive member of the Military.

When one views the totality of evidence in the case file, a more accurate evaluation of the MH condition at the time of separation would be based on the fact that the CI was able to continue in a MOS, vice being assigned to a Medical Holding Company where her primary function would have been completion of the MEB/PEB process.  Additionally, the commander’s endorsement indicates to the minority voter that the 10% rating criteria is more applicable at the time of separation.

RECOMMENDATION: The minority voter therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

SAMR-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 XXXXXXXXXXXXXXXXX, AR20150007104 (PD201400553)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA