RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02342
BRANCH OF SERVICE:  Army	BOARD DATE:  20150602
DATE OF PLACEMENT ONTO TDRL:  20030422 
DATE OF REMOVAL FROM TDRL:  20040602 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (Cryptologic Linguist Trainee) medically separated for a 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 L2S4 profile and referred for a Medical Evaluation Board (MEB).  The “bipolar disorder type I” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (pes planus bilateral, greater tuberosity bursitis bilateral, and tibial stress fractures bilateral) for PEB adjudication.  The Informal PEB (IPEB) adjudicated “bipolar I disorder” as unfitting, rated 30% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was placed on Temporary Disability Retired List (TDRL).  Approximately 13 months later, the IPEB adjudicated the bipolar disorder I condition as unfitting, rated 10% with likely application of the VASRD. The CI appealed to the Formal PEB (FPEB) which affirmed the PEB findings and ratings.  The CI made no further appeal, 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:  

Final PEB – 20040602	VA* - 20060120	
TDRL Placement – 20030422	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL
Placement	TDRL Removal					
Bipolar Disorder I	9432	30%	10%	Bipolar Disorder	9434	30%	20050302	
Tibial Stress Fractures Bilateral	Not Unfitting	Stress Fracture of Both Legs	5260	NSC	Service Treatment
Records	
Greater Tuberosity Bursitis Bilateral	Not Unfitting	No VA entry	
Pes Planus Bilateral	Not Unfitting	No VA entry	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4	
RATING:  30% → 10%	RATING:  30%	
1Derived from VA Rating Decision (VARD) dated 20060120 (most proximate to date of TDRL removal).

ANALYSIS SUMMARY:  The PEB placed the CI on TDRL in April 2003 because the MH condition was judged to be not sufficiently stabilized for permanent adjudication.  The first TDRL re-evaluation was 12 months after TDRL placement and the CI was permanently separated at that time.  The VA Compensation and Pension (C&P) examination on 2 March 2005, was 23 months after separation, and was thus closer to TDRL removal.  Therefore the Board deliberated its rating recommendation at TDRL placement based on the service treatment record and the MEB NARSUM examination, and the permanent rating recommendation based on the MEB NARSUM at TDRL removal and the initial VA C&P examination.  The Board clarifies that, in cases involving a period of TDRL, it must adhere to the military standard that only those conditions which were present and unfitting at the time of temporary retirement (TDRL placement) may be considered for rating; regardless of their status at the time of permanent separation (TDRL removal).

Bipolar Disorder (d/o) I Condition.  The MEB psychiatric narrative summary (NARSUM) at TDRL placement notes the evaluation was performed while the CI was a psychiatric in-patient.  The CI had been experiencing depressed moods lasting 2 to 3 weeks, alternating with elevated moods lasting a week.  During the depressed moods the CI reported sadness, loss of interest and pleasure in activities, fatigue, increased sleeping, decreased appetite, with feelings of hopelessness with suicidal ideation (SI).  The CI took an overdose of pain medication in January 2002, but was released the next day because she related to staff that it was an accidental overdose and reported that she was not suicidal.  The periods of elevated mood were characterized by lack of need for sleep, racing thoughts, spending too much money and drinking too much alcohol.  During these periods she related engaging in risk-taking behavior and felt like “nothing could stop me.”  She denied hallucinations, but did recall feeling paranoid.  According to the NARSUM during “a manic episode” in September 2002 the CI was absent without leave (AWOL) and reported that she went to see her mother, who was allegedly suicidal.  In November 2002 she reported being depressed and took an overdose of sleep medications and remained hospitalized for 2 weeks.  She was diagnosed with bipolar II d/o and prescribed an atypical anti-psychotic and sleep medication.  She was returned to duty and an MEB was recommended.  The CI continued to have mood instability while the MEB was pending and during a depressed mood in January 2003 she attempted suicide again by an overdose of sleep medication, after being reprimanded by her command, again for being AWOL.  She was admitted to a civilian hospital and transferred to psychiatric inpatient care at military treatment facilities and as noted above, at the time of the Psychiatric NARSUM the CI remained hospitalized.  She was started on different psychotropic medications for her mood instability (Geodon and Depakote), with significant benefit, which were still being adjusted during the hospitalization.  The commander’s statement dated 23 January 2003 noted the CI had at least 2 suicide attempts and had been AWOL for 20 days.  The commander commented that the CI had “widely changing views on her military service” and he indicated the CI repeatedly requested to be separated and had initiated two congressional hearings to facilitate her separation.  However, following return from being AWOL, the CI declared she wanted to remain in the military and “prove that she was an outstanding soldier.”  The commander noted that because of repeated suicide attempts and suicidal ideation, the CI was pending an MEB.

At the MEB Psychiatric NARSUM examination on 18 February 2003, 2 months before TDRL placement, the CI reported she never had a past history of MH problems and denied any illegal drug use, but it was noted that she did drink large quantities of alcohol at the extremes of her alternating moods.  A family history of bipolar d/o in her mother was noted.  The CI was married and notes in the service treatment record (STR) indicated that her spouse was allegedly abusive and she was considering divorce.  The MEB mental status exam (MSE) at the time of hospital admission, noted a depressed mood and affect, with mildly impaired concentration and attention.  The CI was fully oriented without evidence of impaired memory, thought or speech, delusions, hallucinations, or current suicidal ideation.  She was judged to be of above average intellect with good judgment and insight, with adequate impulse control.  The Axis I diagnosis was bipolar I d/o with a global assessment of functioning (GAF) of 45 (serious impairment range).

The TDRL re-evaluation MEB NARSUM dated 11 March 2004, 11 months after TDRL placement, noted that following separation, the CI was employed for a few months and living with her husband.  Her psychotropic medications had been changed by her VA provider, but were still medications indicated for bipolar d/o treatment.  The CI reported she had been depressed and had experienced an episode of being unable to sleep for 72 hours and had gone to an emergency room for treatment.  She also alleged that her husband was physically abusive and she decided to get a divorce and moved to be near her sister in another state.  She moved again a few months later to another state, and was in therapy for several weeks and on multiple psychotropic medications.  She reported she took the prescribed medications until approximately December 2003 and then moved back to where her sister lived.  In January 2004 she saw another psychiatrist and was again prescribed medication, which she reportedly did not take because she did not like the medication or the psychiatrist who prescribed it.  The CI reported that she was depressed and slept 12 hours per day and was unemployed “living off her retirement”.  She saw an internal medicine physician in February 2004 and was diagnosed with an endocrine condition (polycystic ovary syndrome) and was treated.  She reported that within weeks she was less irritable, was sleeping better, and had more energy.  The CI reported she had not felt suicidal since February 2003 and believed that her symptoms were due to her physical medical condition and that she did not have bipolar d/o.  She was not in therapy or on psychotropic medication and expressed a desire to return to active duty in her old MOS.  The CI reported that she was moving across the country within a week to take a job translating for a financial company.  The NARSUM examiner recommended the CI continue on TDRL and be re-evaluated in one year.  

There was no VA Compensation and Pension (C&P) examination in the 12 months after TDRL placement as noted above.  At the initial VA C&P exam on 2 March 2005, 23 months after separation and 9 months after TDRL removal, the CI reported she was living with her grandmother and working at an assisted care facility.  The examiner noted that the CI had lived with her mother in 2004 and worked as an Army recruiter, but moved to another state to be with a married boyfriend and worked as a waitress, but in December 2004 moved in with her grandmother.  The CI noted she had married her husband during active duty in an impulsive act in Las Vegas.  The MSE noted a normal mood and affect with normal speech, intact memory, normal thought, no evidence of SI, and no evidence of psychosis.  At the end of the interview, the CI reported that she had been sexually assaulted in the military, but the interviewer did not have to time to complete the evaluation and wanted to reschedule, and there was no diagnosis noted at the exam.  However, the CI reported she was moving within 1-2 weeks.  A partial VA C&P evaluation dated 10 November 2005 seemed to be related to completing the earlier VA evaluation.  The examiner summarized incomplete service medical records and noted the CI had only been “marginally involved in treatment since her discharge.”  The CI reported she was not on any medications because she could not afford them, but reported her primary care physician wanted to restart medications.  The CI reported she frequently forgot to pay bills and engaged in spending sprees.  Regarding the CI’s occupational function, the examiner noted that since the earlier VA exam of March 2005 the CI had had four different jobs in at least three states.  The examiner commented that “it appears she can do these jobs but she is constantly on the go and quits when she moves to another state.  There is no stability in her life.”  No information regarding diagnosis was noted.  The VA rating decision dated 20 January 2006 noted the examiner diagnosed bipolar disorder and assigned a Global Assessment of Functioning of 50 (moderate symptoms) and cited the examination dated 10 November 2005.

The Board directed its attention to its rating recommendation at TDRL placement based on the above evidence.  The PEB rated the bipolar I d/o 30%, coded 9432 (bipolar disorder) and as indicated placed the CI on TDRL.  The Board agreed that the evidence at separation met and exceeded the 10% rating IAW VASRD §4.130 criteria for rating MH disability.  The Board next considered a 30% rating specified as “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily …)”; elaborating reference symptoms of depression, anxiety, suspiciousness, panic attacks (≤ weekly), sleep disturbance, and mild memory loss.  However, the Board reviewed the evidence of inpatient psychiatric hospitalization and treatment with psychotropic medications and surmised from the evidence that the CI was not “generally functioning satisfactorily” with occasional decreased work inefficiency and intermittent inability to perform occupational tasks, and therefore, agreed that the 30% rating was also exceeded.  Board deliberations therefore settled on consideration of the 50% rating.  A 50% rating specifies “occupational and social impairment with reduced reliability and productivity”; elaborating reference symptoms of flat affect, stereotyped speech, frequent (> weekly) panic attacks, deficits in comprehension and memory, impaired judgment, mood disturbance, and difficulty with establishing relationships.  A 70% rating specifies “occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood”; elaborating reference symptoms of suicidal ideation, obsessional rituals, illogical speech, near continuous panic or depression, spatial disorientation, neglect of hygiene, and inability to establish relationships.  

After deliberations, the Board determined the evidence supported a 50% rating at TDRL placement due to mood disturbance with impaired judgment evidenced by the recurrent SI and SAs, the inpatient hospitalization, the periods of being AWOL, and the CI’s erratic behavior regarding whether she desired to stay in the military or not.  The Board considered if the next higher rating of 70% was supported, but considered that during the hospitalization there was significant benefit from the medications noted.  The MSE noted a depressed mood, but was otherwise within normal, and members agreed that there were not sufficient typical features present to support recommendation of a 70% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating for the bipolar I d/o at TDRL placement of 50%, coded 9432.

The Board next directed its attention to its rating recommendation at TDRL removal based on the above evidence.  The FPEB rated the bipolar I d/o 10%, coded 9432.  The VA rated bipolar disorder at 30%, coded 9434 (major depressive disorder).  The Board noted the evidence at the TDRL re-evaluation indicated the CI had moved multiple times, and had stopped and started treatment with medications multiple times, with multiple MH providers.  The Board considered that at the TDRL re-evaluation the CI indicated she wanted to be found fit for duty and return to active duty and therefore she may have made a specific effort to not be in therapy or on medication.  At the VA C&P examination, performed 9 months after TDRL removal, the CI was working and described a normal daily routine, however, the record indicates this was the case only for a few months period of time.  In the 12 months since the TDRL re-evaluation she had moved four times with different associated jobs and in the 8 months between the first and second VA C&P evaluations, four more moves to different states and multiple jobs were catalogued by the MH examiner and ongoing irresponsible behavior of not paying bills and “spending sprees” was reported.  The Board thought the evidence suggested significant continued impaired judgment and indirectly suggested continued mood instability, although the exams did not document ongoing clinical symptoms in a clear manner.  However, the CI was able to obtain and work at many different jobs and appeared to leave them and move by choice.  After lengthy deliberations, Board majority determined the evidence supported a 50% rating since the CI continued to have occupational and social impairment with “reduced reliability and productivity.  The Board did not find evidence to support a 70% rating, such as impaired thought or speech, ongoing SI, or inability to care for herself.  The Board majority was of the opinion that the periods of time when the CI was employed at various different jobs did not represent “generally functioning satisfactorily” characteristic of a 30% rating in this case, but instead represented  possibly euthymic periods of variable length in between periods of elevated and depressed moods, characteristic of an untreated bipolar d/o.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating for the bipolar I d/o at TDRL removal of 50%, coded 9432.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral pes planus, bilateral hip bursitis, and the bilateral tibia stress fractures were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Bilateral Pes Planus.  A bone scan on 14 March 2002 noted a probable stress fracture of the base of the left first metatarsal.  At a primary care visit 21 March 2002 the CI reported a 9-month history of bilateral foot pain.  On the exam mild pes planus was noted.  The CI was placed on profile, referred to PT, and given orthotics.  The CI injured her left foot acutely by getting it caught in a sidewalk and X-rays noted no fracture.  The pain of the left foot continued and the CI was diagnosed with tendinitis of the great toe.  At a PC follow-up visit the CI reported seeing a civilian physician.  She was wearing a walking boot and indicated she was told she had cartilage injury to the great toe.  The MEB Orthopedic consult 5 February 2003 noted bilateral foot pain, worsened by prolonged standing, running, or marching.  The examiner noted the CI was on a P2 profile with “no run and no ruck”, which the CI reported took care of her pain.  The exam noted no abnormality of the feet except pes planus.  Bilateral foot X-rays were unremarkable.

Bilateral Hip Bursitis.  The bone scan noted no abnormality of the hips.  At a PC visit on 21 June 2002 the CI reported bilateral hip and foot pain that was getting worse and was given a permanent L2 profile.  The MEB orthopedic consult on 5 February 2003 noted bilateral hip pain, worsened by prolonged standing, running, or marching.  The examiner noted the CI was on a P2 profile with “no run and no ruck”, which the CI reported took care of her pain.  The exam noted mildly reduced left hip range-of-motion with painful motion.  There was TTP of the greater trochanters and no popping or snapping noted with ROM.  Bilateral hip X-rays were unremarkable.  

Bilateral Tibia Stress Fractures.  A note in the service treatment records dated 20 November 2001 indicated a 6 week history of shin splints.  Bilateral tibia/fibula X-rays were normal.  Bone scan showed bilateral tibia stress fractures (periostitis).  At a PC visit on 30 April 2002 the CI reported continued bilateral leg pain and was continued on a temporary profile.  The MEB orthopedic consult on 5 February 2003 noted bilateral tibial pain, worsened by prolonged standing, running, or marching.  The examiner noted the CI was on a P2 profile with “no run and no ruck,” which the CI reported took care of her pain.  The exam noted tenderness over both tibias, with an otherwise normal exam of the lower leg.  Bilateral tibial X-rays were unremarkable.

The MEB orthopedic examiner recommended that due to the fact that the CI was able to remain pain free with the L2 profile, she met retention standards for all the lower extremity conditions.  The permanent profile was L2/S4 and listed bipolar type II, chronic bilateral hip pain, and bilateral shin splints.  The commander’s statement indicated that the CI was pending an MEB for her MH condition, but noted the permanent L2 profile limitations.

The bilateral hip pain and bilateral shin splints were profiled on 22 August 2002 and the permanent profile also listed the bilateral hip and shin splint conditions.  The bilateral pes planus was not profiled, nor was any other individual or bilateral foot condition.  The commander’s statement noted the permanent physical limitations but did not implicate them as impairing the CI’s duty performance.  A “2” profile indicates some limitations are required, but does not in all cases preclude continued military service and the CI was on the L2 profile prior to the initiation of an MEB for a MH condition.  The MEB orthopedic examiner indicated all three bilateral lower extremity conditions met retention standards with the L2 profile.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions 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 the any of the contended conditions and so no additional disability ratings are 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 I condition, the Board unanimously recommends a disability rating of 50% for the period of TDRL and the Board majority recommends a permanent rating of 50%, coded 9432 IAW VASRD §4.130.  In the matter of the contended bilateral pes planus, bilateral hip bursitis and bilateral tibia stress fractures conditions, 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 recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Bipolar Disorder I	9432	50%	50%	
RATING	50%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140513, w/atchs
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 XXXXXXXXXXXXXXXXX, AR20150018408 (PD201402342)

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  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
50% disability rather than 30% for the period 22 April 2003 to 1 June 2004 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50%.

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 temporary disability 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 day following the TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 50% retired pay for the constructive temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 50% effective the day following the TDRL period.  

	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:

CF: 
(  ) DoD PDBR
(  ) DVA