RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01455
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Motor Transportation Operator, medically separated for “chronic neck pain” with a disability rating of 10%; and “bipolar disorder,” which was determined to exist prior to service (EPTS) and was not permanently aggravated, therefore not compensable.

CI CONTENTION:  His mental health and neck conditions continue to worsen.  He was not evaluated for PTSD.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based upon a 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 PEB - 20051110	VARD - 20071109	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5299-5237	10%	Cervical Spine Strain	5237	0%	20070524	
Bipolar Disorder	9432	EPTS	PTSD with Bipolar Disorder	9432-9411	50%	20070524	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an onset of neck pain in 2003 without a specific injury during a deployment Iraq.  Intermittent pain persisted and was aggravated by a second deployment in 2005.  Imaging (MRI) after each deployment demonstrated stable disc disease (“small” posterior protrusion C5/6 with questionable mild stenosis and no neuroforaminal impingement).  There were intermittent complaints of left upper extremity (LUE) sensory symptoms, but no complaints of weakness and there were multiple normal neurological examinations (5/5 bilateral strength) in evidence.  An orthopedic consultant in July 2006 (7 months prior to separation) documented modestly decreased range of motion (ROM) measurements and normal neurological findings, and opined that surgery was not indicated.  There was corroboration in STR clinical entries of normal gait and spinal contour, and no entries indicated more significant ROM limitation or documented periods of incapacitation.  Further conservative treatment did not result in improvement sufficient to allow unrestricted duty and the CI was referred for an MEB.  The MEB forwarded “chronic neck pain with small central disk protrusion at C5-C6” for PEB adjudication.

The NARSUM examination on 08 November 2006 (3 months prior to separation) noted complaints of “constant” pain rated 5-6/10 with intermittent LUE sensory symptoms (no pain radiation or motor complaints) aggravated by sit-ups and limiting lifting to 30 pounds.  The physical examination recorded “mild” tenderness, no spasm, normal spinal contour, and normal neurological findings (intact sensory, 5/5 strength).  Measured ROM was flexion to 45 degrees (normal) and combined ROM of 310 degrees (normal 340), specifying painful motion. 

At the 24 May 2007 VA Compensation and Pension (C&P) evaluation, performed 4 months after separation, the CI reported “chronic pain and stiffness” with occasional LUE radiation and mild increases of pain after lifting weights, which did not affect his work.  The physical examination recorded a normal gait, normal neurological findings and normal measured ROM in all planes, specifying “no DeLuca losses.”  Painful motion was not specified and there was no documentation of tenderness, spasm or abnormal contour.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10% under the analogous 5237 code (cervical strain) cited tenderness and was consistent with VASRD §4.71a criteria for the ROM evidence and other ratable findings.  The VA assigned a 0% rating under the same code, cited failure to meet 10% criteria.  There was no ROM evidence supporting a rating higher than 10%, no evidence of an abnormal gait or contour to support a 20% rating, and no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome which would provide for a higher rating under that formula.  The Board considered whether additional rating could be recommended under a peripheral nerve code for the LUE radicular symptoms but members agreed that neither the functional link to fitness requisite for rating, nor the presence of a VASRD ratable deficit, were supported by the evidence.  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 of the cervical spine condition.  

Bipolar Disorder.  Evidence from the STR and VA files documented a history of childhood mental health (MH) and behavioral issues with a period of residential treatment, but no specific MH diagnosis.  The CI’s mother, sister, and son were diagnosed with bipolar disorder.  The CI had a prior enlistment (1993-1995) during which he suffered a severe case of meningitis with a period of induced coma, and there may have been some mild cognitive impairment as a residual (conflicting evidence).  He reenlisted in April of 2002 and disclosed the meningitis episode on the entry (15 November 2001) DD Form 2807-1, Report of Medical History, but denied any MH symptoms and no MH diagnosis was listed on the DD Form 2808, Report of Medical Examination.  The second enlistment included the two Iraq deployments referenced above, February through December 2003 and December 2004 through October 2005.  These entailed significant exposure to combat as a turret gunner and the witnessed death of friends.  The medication profile documented prescriptions for Xanax (anti-anxiety) and Lexapro (mood stabilizer) commencing in September 2004 (between deployments), although no associated clinical entries were available in the STR.  This corroborated later reports that the CI developed mood swings during this period.  The Post-Deployment Health Reassessment (PDHRA) after the first deployment was illegible, but the PDHRA after the second deployment denied any MH symptoms.  Although some MH treatment notes were clearly not included in the available records, there was no STR documentation of any symptoms suggestive of, or a diagnosis (differential or otherwise) of, post-traumatic stress disorder (PTSD).  There was no STR evidence of suicidal ideation or attempts, serious disciplinary or legal issues, alcohol/substance abuse, or psychiatric crisis/hospitalization.

A psychiatric addendum to the NARSUM on 04 October 2006, 4 months prior to separation, documented the above childhood history but “no unstable mood episodes until the last two or three years,” with an initial presentation to behavioral health for marital counselling (presumably in September 2004, as suggested by the medication profile).  The psychiatric addendum described an escalating pattern of mood swings with alternating manic episodes (mild euphoria, moderate anxiety, high energy, and irresponsible spending sprees) and “depressive episodes, hopeless, anhedonic, and denies suicidality.”  The psychiatric addendum, corroborated by the medication profile, indicated that the CI was first diagnosed with bipolar disorder a month earlier and started on Lamictal (anticonvulsant with antidepressant and mood stabilization properties).  The addendum stated, “Early indications suggest an excellent response to this drug, and the soldier's behavior has remained stable and appropriate throughout the evaluation and treatment process to date.”  The mental status examination (MSE) recorded a “depressed and dysphoric” mood with “sad” affect and was otherwise normal without suicidal ideation, psychotic features, or gross cognitive impairment.  The only Axis I diagnosis was “bipolar disorder Type II” with no reference to PTSD or other MH diagnoses in the differential.  The Global Assessment of Functioning (GAF) assignment was 65 (mild range of impairment) and the assessment of social and industrial impairment (IAW DoDI 1332.39 [rescinded]) was “mild” but the examiner noted an “inability to focus on routine duty assignments.”  The CI’s last non-commission officer evaluation (NCOER) was dated 1 June 2006 (8 months prior to separation) and was summarized as “fully capable.”  The commander’s performance statement from November 2006 reported performance “to standard” limited only by the physical limitations of the profile.  An STR entry 2 days prior to separation documented “no high irritability and stable on medications.”  

At the 24 May 2007 VA psychiatric C&P examination, performed 4 months after separation, documented that the CI was continuing to take Lamictal but was not under active MH care, and that he was seeking work in the field of telecommunications.  There was no documentation of domestic strife and the CI was “currently working to rebuild his home and reports he is pretty much busy nonstop, coaching his two sons’ baseball teams.”  The examiner described the evolution of bipolar disorder symptoms described above, but noted that the CI had “responded somewhat” to treatment with “no inappropriate behavior described in recent months.”  In addition to the bipolar disorder symptoms, however, the CI endorsed PTSD-associated symptoms of nightmares, intrusive memories, hyperarousal, and avoidance and related a history (corroborated in the STR) of PTSD Criterion A stressors.  The MSE recorded an “irritable” mood and “quite intense” affect and the only other abnormalities noted were “general restlessness” and “difficulty with attention” on cognitive testing.  There were no signs of psychosis, no suicidal ideation, and no panic attacks or other incapacitating symptoms.  The VA psychiatrist listed two Axis I diagnoses: “PTSD, chronic and severe, secondary to combat in Iraq” and “bipolar disorder, Type I, current mood is hypomanic and irritable, exacerbated by PTSD.”  The GAF assignment was 52 (moderate range of impairment) and the examiner opined that there was “reduced reliability and productivity” due to the MH conditions.

The Board directed attention to its recommendations based on the above evidence.  The PEB’s DA Form 199 decision referred to details of the history as elaborated above and determined that the bipolar disorder condition EPTS without permanent service aggravation (PSA), opining that it followed “a natural course of progression” and was thus ineligible for service rating.  The VA rating decision judged it to be “a non-pre-existing condition,” with PTSD as the primary diagnosis and the §4.130 based rating of 50% cited evidence from the C&P examiner.   The Board’s first charge was an assessment of the fairness of the PEB’s determination that the condition was EPTS without PSA.  The Board’s recommendation in that regard was premised on (and the PEB’s decision subject to) DoDI 1332.38 which is excerpted below.
[E3.P4.5.2.3. Presumption of Aggravation] The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training.  Such medical evidence must be based upon well-established medical principles [E2.2.1]. Fundamental deductions consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct, as distinguished from personal medical opinion alone. Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.
Although there was no formal diagnosis of bipolar disorder until close to separation, it was agreed that the clinical features and family history strongly supported a conclusion that bipolar disorder was the operant MH diagnosis throughout service.  It is well established that bipolar disorder is a genetically pre-disposed organic psychiatric disorder, and it can be rationally argued in this case that it emerged in childhood and was in remission at the time of the CI’s enlistments.  That conclusion, however, must be well grounded enough to meet the above DoDI 1332.38 standards.  Members agreed that there was no certainty that the CI’s pre-service MH symptoms were linked to bipolar disorder, since the children of mothers with bipolar disorder are vulnerable to a wide range of behavioral disturbances and other MH conditions.  Members further agreed that the CI’s history of severe and service-connected meningitis raised the possibility that the resulting brain injury triggered the gene responsible for the subsequent manifestation of bipolar disorder, a gene which might have otherwise remained dormant.  Furthermore, members agreed that the combat stress itself, although not manifesting as PTSD in service, could not be excluded with the level of certainty defined by DoDI 1332.28 as a trigger for genetic expression.  Finally, the medical literature recognizes the association of environmental factors, including stress, with the symptom severity and response to treatment of bipolar disorder and there is no research establishing whether this is temporary or long term.  After deliberation and consideration of the various issues raised above, members ultimately agreed that the above standards of DoDI 1332.38 were not satisfied in support of the PEB’s opinion that the natural course of bipolar disorder was unaffected by events linked to the CI’s military service and that it was fair to concede PSA.

Implicit in the PEB’s determination was the assumption that the bipolar disorder was considered unfitting, an assumption supported by the evidence, thus the Board next considered whether the provisions of VASRD §4.129 for any “mental disorder that develops in service as a result of a highly stressful event” were applicable.  As per the rationale for conceding PSA, it was judged that the more remote meningitis and the later combat stressors may have been contributory with regards to the severity and course of bipolar disorder but they did not cause the disorder.  Members thus agreed that there was no service-connected event which was logically consistent with the meaning and purpose of §4.129, and its application was not appropriate for this case.  The Board then turned to deliberation of a fair rating recommendation for bipolar disorder at the time of separation.  Members agreed that the §4.130 criteria for a 70% rating (occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) were not supported by the evidence.  Members next considered whether the criteria for a 50% rating, as conferred by the VA, were fairly supported.  Those criteria are “occupational and social impairment with reduced reliability and productivity,“ elaborating reference symptoms of flat affect, stereotyped speech, frequent panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and difficulty with establishing relationships.  The objective functional evidence from the STR, psychiatric addendum, commander’s statement and C&P does not suggest more than modestly impaired social or occupational impairment.  The most significant impairment gleaned from the STR proximate to separation, in fact, was an attention deficit.  Members therefore agreed that the overall functional evidence was not a reasonable fit with the 50% criteria.  Deliberations thus settled on recommendations for a 10% rating “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” versus a 30% rating “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  

The psychiatric addendum characterized the impairment as mild, and the STR entry at separation indicated that the condition had remained stable.  The NCOERs and commander’s statement documented good performance and did not identify any psychiatric impairment.  The C&P evidence soon after separation also did not identify any objective functional limitations (seeking work commensurate with education and experience, engaged in full time productive work at home, and socially engaged).  Although it was conceded that the residual symptoms (specifically the difficulty with concentration identified by the MEB psychiatrist) would logically impair occupational efficiency, members agreed there was no indication that they resulted in any “periods of inability” as stipulated by 30% criteria and the consensus was that the objective evidence for psychiatric impairment was more closely aligned with the 10% criteria of mild and controlled on medication, than it was with the 30% criteria.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a 10% rating for the bipolar disorder under the code 9432.

BOARD FINDINGS:  In the matter of the cervical spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bipolar disorder, the Board unanimously recommends that permanent service aggravation be conceded and the Board majority recommends a disability rating of 10%, coded 9432 IAW VASRD §4.71a.  The minority voter recommended a rating of 30% for the bipolar disorder, but did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:   

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain with Atraumatic Onset	5299-5237	10%	
Bipolar Affective Disorder, Type II	9432	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140324, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXX, AR20160011571 (PD201401455)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA