RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01774
BRANCH OF SERVICE:  Army	BOARD DATE:  20150430
DATE OF PLACEMENT ONTO TDRL:  20010604
DATE OF REMOVAL FROM TDRL:  20041122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Unit Supply Specialist) medically separated for bipolar II disorder and chronic low back pain (LBP).  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty but she was authorized to perform an alternate physical fitness test.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “bipolar II disorder” and “LBP musculoskeletal in origin” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions (meralgia paresthetica bilateral hips, bilateral hand swelling of unknown etiology, alcohol abuse, borderline personality disorder and migraine headaches) for PEB adjudication.  The Informal PEB (IPEB) adjudicated Bipolar II disorder and chronic LBP as unfitting rated 30% and 10% respectively, citing application of AR 635-40 for the bipolar condition and with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the back condition.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was placed on the Temporary Disability Retired List (TDRL).  Almost 4 years later, the IPEB adjudicated the Bipolar II disorder and chronic LBP conditions as unfitting, rated 10% and 10% respectively with likely application of the VASRD.  The CI appealed to the Reconsideration PEB, which affirmed the PEB findings and ratings and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 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:

Recon Final PEB – 20041109	VA Rating Decision1 - 20020403	
TDRL Placement – 20010409	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3 Removal	
Bipolar II Disorder 	9432	30%	10%	Bipolar Disorder	9432	10%	10%	
Chronic Low Back Pain…	5243
5299-5237	10%	10%	Chronic Low Back Pain	5292	NSC	NSC	
Meralgia Paresthetica Bilateral Hips	Not Unfitting	Neuralgia, Paresthesias, Left Hip	8726	10%	10%	
		Meralgia Paresthesias Right Hip	8726	10%	No entry	
Bilateral Hand Swelling of Unknown Etiology	Not Unfitting	Bilateral Hand Swelling	5299-5215	NSC	NSC	
Alcohol Abuse	Not Unfitting	No VA Placement	
Borderline Personality Disorder	Not Unfitting	No VA Placement	
Migraine Headaches	Not Unfitting	Migraines	8100	10%	10%	
Other x 0 (Not in Scope)	Other x 1	
RATING:  40% → 20%	RATING:  40%	
1. Most proximate to TDRL Placement; 2. Rating derived from C&P exam dated 20020313, ~11 mos. post-TDRL placement and based on STR; 3. Rating based on review of CI’s case file

ANALYSIS SUMMARY:  Two additional conditions were also forwarded on the DA Form 3947:  alcohol abuse and borderline personality disorder.  These are not ratable conditions IAW both DoD and VA regulations and will not be discussed further.

Bipolar II Disorder.  The service treatment record (STR) indicated that while home on leave from Korea, the CI sought mental health (MH) treatment at a civilian facility where she was initially diagnosed with depression and later with Bipolar II disorder.  She endorsed depressed symptoms, poor appetite, insomnia, crying, loss of pleasure, frustration, and hopelessness.  Additional history noted that 4 months prior in May 2000, she began cutting her wrist after receiving divorce papers; “she never received treatment.”  She underwent 3 weeks of “day-hospital” treatment (5 hours per day) in September 2000.  Her daily impatient treatment consisted of physical and psychological evaluations and the initiation of psychotropic medication.  Upon discharge from day-hospital, she reported to “medical hold” awaiting a medical Board for other orthopedic conditions.  During the next 3 months (October-December 2000), she experienced multiple mood swings associated with issues including anxiousness about concurring medical board, marital discord, loss of a pet cat, and alcohol abuse.  On 27 December 2000 she attempted suicide by cutting her wrist.  She was hospitalized in the VA center from 28 December 2000 to 4 January 2001.  Her discharge diagnoses included major depressive disorder (MDD) (rule out bipolar disorder) and borderline personality traits.  Her Global Assessment of Functioning (GAF) was 20 on admission and 50 upon discharge; connoting “serious” impairment.  Approximately 6 weeks prior to entering TDRL, an outpatient MH assessment (narrative summary [NARSUM]) dated 22 February 2001, reviewed the CI’s MH history and reported her as having poor insight and judgment with intermittent auditory and visual hallucinations.  A follow-up psychiatry note dated 24 March 2001 (3 weeks prior to TDRL entry) noted her as doing “OK” with no alcohol use, no side effects from medication, and improved sleep.  Her diagnosis remained unchanged.  On 9 April 2001, the IPEB rated the CI at 30% with entry into TDRL stating “Rated as definite social and industrial impairment” in reference to her bipolar condition.  At the VA Compensation and Pension (C&P) MH examination on 13 March 2002 (12 months after placement on TDRL), the CI was employed and compliant with attending the psychiatric clinic in dealing with her “manic depression and violent mood swings.”  Her mental status examination (MSE) revealed a confused thought process, poor memory, depressed feeling, and poor impulse control.  There were no hallucinations, delusions or ideations of suicide or homicide.  Her diagnoses remained unchanged.  Her GAF was noted to be 80; connoting “transient symptoms” that are expected reactions to psychosocial stressors.  At her MH TDRL evaluation on 28 June 2004, she endorsed less frequent periods of debilitating depression.  She was a full-time student and passed all of her courses.  She has had no symptoms of hypomania or mania over the last 12 months.  She was dating regularly and socially interactive.  She did report a history of continued self-mutilation when she has to deal with an unpleasant feeling.  Her MSE was normal excepting an anxious mood.  Her diagnoses remained unchanged and her assessed prognosis was “fair.”  The examiner commented that the CI was clearly better than previous examinations.  The final IPEB of 14 September 2004 permanently rated the CI’s MH condition at 10% citing successful college student and absent symptoms of hypomania.

The Board directed attention to its rating recommendation based on the evidence just described.  Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for MH conditions.  However, the Board first considered if the definition of §4.129 was met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.”  Board members agreed that the requisite §4.129 link that the condition occurred “as a result of a highly stressful event” was not adequately satisfied in this case.  The Board therefore will consider only the VASRD §4.130 impairment present upon TDRL entry and at permanent separation.

At the time of TDRL entry, the PEB assigned a 30% rating.  All Board members agreed that the psychiatry encounter 3 weeks prior to TDRL entry did not support any §4.130 criteria for the higher 50% impairment level; and, therefore, recommends no change from the 30% impairment rating going into TDRL.  The Board next considered if a rating higher than the 10% adjudicated by the PEB at the time of permanent separation 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.”  In this case, the final TDRL NARSUM examiner describes no current evidence of the “intermittent periods of inability to perform occupational tasks” stipulation for the 30% rating, nor were any of the 30% threshold symptoms present, such as anxiety, panic attacks, or chronic sleep impairment.  Although periods of “depression” were intermittently present, any decrease in her performance was directly associated with periods of increased stress in support of the 10% impairment level.  Board members agreed that the 10% rating most accurately depicted the clinical condition at the time of permanent separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB’s adjudication for the bipolar disorder condition of 10% at permanent retirement.

Low Back Condition.  The CI complained of LBP after “someone put her ruck sack (approximately 75 pounds) on her back” in April 1999.  Initially, there were no associated symptoms and her treatment remained conservative.  Despite physical therapy, restrictions, and medications, her fleeting low back symptoms remained.  A magnetic resonance image of the lumbar spine revealed a narrowed and protruding lumbosacral disc, indicative of degenerative disc disease (DDD) of the spine.  At the NARSUM examination, she endorsed occasional radicular LBP down into both hips.  She stated that she is not able to run and has an extreme amount of pain with walking up and down stairs.  Her focused spine physical examination (PE) was normal.  Her diagnosis remained LBP musculoskeletal in origin.  Her permanent profile listed LBP as one of three diagnoses.  At the VA C&P examination, the CI endorsed a “hard achy” and “mild” LBP once or twice a month with a duration of 2 hours to 2 days.  She admitted that symptoms were associated with either prolonged standing or with menstruation.  She denied stiffness, fatigue, or weakness in relation to her lower back.  Her PE revealed tenderness about the lumbar spine and decreased non-painful range-of-motion (ROM).  At a TDRL examination performed on 28 June 2004 (3 months prior to TDRL removal), she repeatedly endorsed that her LBP was “basically unchanged.”  She admitted the ability to lift 40 pounds and sit or stand up to 30 minutes or more.  Her PE revealed minimally decreased and painful motion of the thoracolumbar spine.  Her diagnoses remained as chronic LBP.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB (NARSUM) ~6 wks Pre-TDRL entry
(20010222) 	VA C&P ~11 Mo 
Post-TDRL entry
(20020326) 	Ortho  ~4 Mo
Pre-TDRL exit
(20040628) 	
Flexion (90 Normal)	FROM	60	normal	
Extension (30)		30	25	
R Lat Flexion (30)		25	25	
L Lat Flexion (30)		25	25	
R Rotation (30)		30	-	
L Rotation (30)		30	-	
Combined (240)	240	200	-	
Comment	-	tenderness	painful motion	
§4.71a Rating	0%	20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the service and VA titled the back condition the same, but as for impairment rating the service utilized a dual code of lumbosacral strain and DDD under the new VASRD spinal rules whereas the VA found the condition “Not Service-Connected” with a rating under the old spinal rules.  The date of service separation in this case is subjected to rating under the old spinal rules which will be applied by this Boards’ recommendation.

At the time of TDRL entry, the PEB assigned a 10% rating.  All Board members agreed that the NARSUM examination 6 weeks prior to TDRL entry did not support any §4.71a criteria greater than 10% impairment level; and, therefore, recommends no change from the PEB’s 10% impairment rating entering into TDRL.  The Board next considered if a rating higher than the 10% adjudicated by the PEB near the time of permanent separation was justified.  Board members agreed that the evidence of painful motion coupled with the CI’s own statement of her condition being “basically unchanged” supports impairment of 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB’s adjudication for the low back condition of 10% at permanent retirement.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the meralgia paresthetica (bilateral hips), swelling (bilateral hands), alcohol abuse, borderline personality disorder, and migraine headache conditions were 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.

Bilateral Hip Condition.  In 1998, the CI was diagnosed with meralgia paresthetica (a condition characterized by altered sensation or pain in the outer aspect of the thigh caused by compression of a cutaneous nerve) and complained of left hip pain for the previous 2 years.  She endorsed that the left hip pain caused her thigh to go numb.  Her treatment remained conservative and included various modified profiled restrictions.  In early 1999, the STR noted that she stepped off a vehicle and landed on her left foot whereby she experienced sudden bilateral hip and LBP.  She progressed with aggressive PT to include performing alternate physical training.  On 9 November 1999, without specifics on the mechanism of injury, a PT note indicated, “[CI] returned to clinic secondary to re-injury of left hip, secondary to a fall.”  In January 2000, the STR specifically addressed bilateral hip pains; left > right (left greater than right).  X-rays of both hips were normal.  Orthopedic follow-up on 10 January 2001 noted a subjective history of “lose feeling on anterolateral aspect of thigh times five years on the left and times four years on the right.”  Her examination corresponded in-kind with decreased light touch to the sides of her thighs.  A month later, her NARSUM examination revealed similar physical findings.  Despite being listed on the permanent profile, Board members extensively deliberated if her bilateral hip condition was unfitting.  In their deliberation, Board members considered that her original diagnosis of meralgia paresthetica with associated left hip pain was present for nearly 2 years without adverse occupational discord and subsequently, did not progress to any degree of incapacitation.  Members agreed that there was no performance based evidence from the record that the hip condition, either singularly or bilaterally, significantly interfered with satisfactory duty performance near the time of separation and no additional disability rating is recommended.

Other PEB Conditions.

Bilateral Hand Swelling and Migraine Headaches.  The CI experienced episodes of hand swelling beginning in 2000.  Differential diagnoses of Raynaud’s phenomenon and carpal tunnel were ruled out.  Secondary to childhood history of hand trauma, as well as pain upon typing, the diagnoses of traumatic osteoarthritis versus repetitive motion injury causing tendonitis were entertained.  In reference to her migraine headache condition, the Neurology addendum revealed her as having a history of childhood migraines.  Her permanent profile did not implicate a migraine condition, but did include the bilateral hand condition.  Both conditions were reviewed by the action officer and considered by the Board.  All members agreed that there was no performance based evidence from the record that either the hand condition (singularly or bilaterally) or migraine headache condition significantly interfered with satisfactory duty performance near the time of service separation and 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.  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, the Board unanimously recommends no change in the rating for the period of TDRL and or upon permanent retirement.  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral hip condition, bilateral hand condition, and migraine headache condition IAW VASRD §4.71a and §4.124a, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141422, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013664 (PD201401774)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

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