RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02683
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20090929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3, Test Diagnostic Equipment Calibration Technician, medically separated for “Bipolar I disorder” rated 30% with a 10% existed prior to enlistment (EPTS) deduction of 10%, resulting in a rating of 20%. 

CI CONTENTION:  The CI was given a higher rating for his condition by the VA and his conditions continue to worsen and negatively impact his daily activities.  The CI’s 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 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 PEB - 20090609	VARD - 20091123  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar I Disorder	9432	20%**	Bipolar Disorder	9432	30%	20090922	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Bipolar I Disorder.  The service treatment record (STR) contained only a paucity of records pertaining to a single emergency visit secondary to a suicide attempt.  Upon diagnostic clearing, the CI was hospitalized with the VA on 22 March 2008.  Therefore, the Medical Evaluation Board (MEB) driven documents provided the historical basis for determining an impairment rating.  Continued psychiatric treatment did not result in overall improvement sufficient to allow unrestricted military duty.  The MEB forwarded “bipolar I disorder, unspecified” for PEB adjudication.  
         
At the MEB NARSUM on 09 February 2009, 8 months prior to separation, the CI reported having had two separate psychiatric inpatient admissions due to suicide attempts during the last 12 months.  It was reported that “…he became suicidal due to leaving his family and girlfriend to go to Mississippi for his technical training.”  The CI stated, "I was telling everyone goodbye so it seemed like a good time to kill myself."  He reported his suicidal ideation to be a sudden and with strong feeling.  Additionally, the CI indicated that he had been depressed in high school but never sought treatment.  He thought joining the military would help to alleviate his depression.  All parameters in his mental status examination (MSE) were reported as good, appropriate, organized, adequate, average, or intact.  He denied suicidal or homicidal thoughts. 

At the VA Compensation and Pension (C&P) examination performed a week before separation, the CI endorsed being “emotionally close” with his girlfriend; getting along well with no significant arguments.  Although no specific MSE was documented, the CI’s varying symptoms were apportioned and or averaged over the course of time.  The CI endorsed experiencing moderate to severe levels of depression and or mania nearly 50% of the time.  However, the provider noted, “Overall, the [CI] becomes depressed two or three times a month and he has only had two or three extremely manic episodes.”  

The Board directed its attention to its rating recommendation based on the above evidence.  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.  Both the PEB and VA applied the clinically appropriate code 9432 (Bipolar disorder) and arrived at different ratings (20% and 30% respectively; after the PEB’s EPTS deduction of 10%) under VASRD §4.130.  The Service cited no specific reasoning for its rating whereas the VA cited occupational and social impairment with occasional decrease in work efficiency for its 30% rating.    
The Board first considered if the definition of VASRD §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”.  All Board members agreed that the requisite §4.129 link that the mental health 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 near the time of separation for a single rating recommendation. 
All Board members agreed that from a time reference to separation, the VA examination would be exclusively probative in this case.  However, its lack of a MSE attenuated its exclusive value.  Members then further considered the normal MSE 8 months prior to separation and concluded that having no interim documentation of worsening MH symptoms, there was no firm support for any rating higher than the PEB’s initial 30% (pre-EPTS deduction).
Lastly, although the STR contained inconsistent comments indicating a negative MH history prior to service entry, all Board members agreed that the absence of “clear and unmistakable “ evidence indicating the existence of such a pre-service MH condition, did not support the PEB’s 10% EPTS deduction.  Therefore, after due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), all board members agreed with the PEB’s initial 30% rating and did not support any additional deduction with regards to an EPTS condition.  

BOARD FINDINGS:  In the matter of the bipolar condition and IAW VASRD §4.130, the Board unanimously recommends no change in the ‘initial’ PEB adjudication of 30% and furthermore recommends there be no EPTS deduction.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation: 

CONDITION	VASRD CODE	PERMANENT RATING	
Bipolar Disorder	9432	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140520, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXX   
	(c) PDBR ltr dtd 22 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 21 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 21 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 19 Sep 16 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 4 Oct 16 ICO  XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (j) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     b. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.  

     c. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months with a 50 percent disability rating effective date of discharge followed by assignment to the Permanent Disability Retired List with a final disability rating of 30 percent (increased from 10 percent).  

     c. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.   

     e. XXXXXXXXXXXXXXXXXX, former USMC: An increase in disability rating from 30 percent to 60 percent for the period on the Temporary Disability Retired List followed by a final disability rating of 20 percent with entitlement to disability severance pay.

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     f. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.
 
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.