RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02730
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070517

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “bipolar I disorder” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  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 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 - 20070312	VARD - 20071203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar Disorder I	9432	10%	PTSD with History of Bipolar Disorder	9411	30%	20070911	
Low Back Pain	Not Unfitting	Lumbosacral Strain w/Degenerative Disc Disease	5237	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Bipolar I Disorder.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bipolar disorder condition began in after he deployed to Afghanistan from April 2004-March 2005 where he was exposed to direct combat and stated he was involved in about six fire fights with multiple blast contacts.  He received the Combat Infantryman Badge (CIB).  He self-presented to the Soldiers’ Assistance Center for extreme depression/nightmares in January 2006.  Depression resolved by nightmares and anger issues persisted and he needed less sleep.  He was treated with medication.  The MEB forwarded bipolar I disorder for PEB adjudication.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated January 2007, months prior to separation, the CI reported nervous trouble, stuttering, memory loss, sleep difficulty and depression.  

The MEB NARSUM examination on 3 January 2007, 5 months prior to separation, noted complaints of more irritability, limited sleep to 2-3 hours per night usually, spending sprees, distraction and “high anxiety” about everything.  He had auditory hallucinations about 20 times per day, saw “shadows” that moved, olfactory hallucinations twice, racing thoughts, and at times felt “all-powerful.”  He was treated with anti-psychotic medications and hallucinations resolved.  He required frequent follow-ups and phone consults.  He had been seen for conduct disorder and drug use during high school and saw a psychiatrist a few times when he was 17 years old and did not take any medication.  His next contact with mental health was the January 2006 visit.  His entry examination indicated he had no psychiatric diagnosis and was generally consistent with this description.  He denied current illegal drug use.  He was working on a college degree and was having difficulty in his marriage.  

The Mental status examination (MSE) showed a disheveled appearance per military regulations, significant psychomotor agitation, pressured speech, slight tangential thought process, elevated affect and low to moderate impulsivity.  A diagnosis of bipolar I disorder was rendered with a Global Assessment of Functioning (GAF) score of 75 (transient symptoms, mild impairment.)  At the 11 September 2007 VA Compensation and Pension (C&P) evaluation, performed 4 months after separation, the CI reported he was stable with a mood-stabilizing medication and an anti-depression medication.  He had been drinking heavily for a year and had nightmares of being chased and shot at 3-4 times per week.  He had a fear of the dark and could not show love to his wife and son.  He was married and looking for a job.  MSE examination was unremarkable.  A diagnosis of PTSD was rendered with a GAF score of 55 (moderate symptoms, impairment.)  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bipolar disorder condition 10%, coded 9432), citing mild industrial impairment.  The VA rated the PTSD with history of bipolar condition 30% coded 9411 (PTSD), based on the VA C&P examination 4 months after separation, citing VA C&P examination findings of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

The Board first considered if application of VASRD §4.129 with a 6 month (50% minimum) period on the TDRL was indicated in this case (per Board directive from DOD).  Board members agreed that the provisions of VASRD §4.129 were applicable in this case due to the combat stressors. The commander noted the drastic effect of his combat experiences and he was awarded the CIB.  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.  The Board then considered if there was evidence for a §4.130 rating higher than the §4.129 minimum mandated 50% at time of TDRL placement.  The Board agreed that the §4.130 criteria for a rating higher than 50% were not met near the time of separation, and therefore the minimum 50% initial TDRL rating is applicable.  

The most proximate source of comprehensive evidence on which to base the permanent rating was the C&P examination performed 2 months after separation.  The §4.130 criteria for a 10% rating is “symptoms controlled by continuous medication,” for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks,” while criteria for a 50% rating requires “occupational and social impairment with reduced reliability and productivity.”  The C&P examination noted his symptoms and impairment was at a moderate level with a GAF score of 55.  The CI was taking two psychotropic medications and felt he was stable though he had not found a job, still had nightmares of being chased and shot at several times per week, was fearful and had been drinking heavily though not using drugs.  The Board noted that his symptoms were not mild or transient and not stabilized with medication.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 6-month retroactive TDRL rating of 50% and a permanent rating of 30% for the bipolar disorder.  

Contended PEB Condition.  Low Back Pain.   The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The CI reported he had chronic back pain since 2005.  He injured his back while in Special Forces Section.  A memo dated in January 2007 noted he was diagnosed with degenerative disc disease in 2005 and had not taken a fitness test since due to a temporary profile for his lower back.  Neuroimaging in 2006 showed herniated discs at L4-L5 and L5-S1 and mild degenerative discs changes at the L4-S1 level.  NARSUM examination in January 2007 noted tenderness at L4-L5-S1 para spinous muscles with increased pain with forward flexion and hyperextension.  Gait, stance, reflexes, posture and muscle strength were normal.  STR noted repeated emergency room and clinic visits due to back pain, which persisted despite conservative therapy.  The commander noted he was unable to carry a fighting load and was not able to carry a ruck sack.  The C&P examination noted flexion to 63 degrees (normal 90 degrees) with pain and mild paravertebral spasm.  He did not tolerate prolonged standing or walking and holding certain positions or heavy lifting.  

The Board noted the MEB NARSUM examiner’s conclusion that due in part to the low back pain condition, the soldier was not able to physically perform to the level required all of a soldier regardless of MOS.  STR document follow-up visits and ER visits for low back pain through 2006.  The DD Form 2697, Report of Medical Assessment documents the CI’s report that the back condition limited his ability to work in his primary military specialty.  The Board determined the CI’s low back pain condition was exacerbated by the physical activities and interfered with the satisfactory duty performance and soldiering physical requirements.  After due deliberation, members agreed that the preponderance of the evidence with regard to the functional impairment of the low back pain condition favors their recommendation as additional unfitting conditions for disability rating.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain at 10% under code 5003 (degenerative arthritis), which meets the §4.59 (painful motion), §4.40 (functional loss), and §4.10 (The joints) criteria for a 10% rating at TDRL placement.  The Board must determine rating recommendations for the low back pain condition based on §4.129 constructional TDRL requirements cited in the bipolar I disorder above.  The C&P General examination performed 4 months after separation is the most proximate source of comprehensive evidence to evaluation of the CI at TDRL removal.  The C&P examination, 4 months after separation, reported low back pain with flexion to 63 degrees and paravertebral spasm.  The VA used 5237 code (lumbosacral strain) rated 10%, citing forward flexion greater than 60 degrees but not greater than 85 degrees).  Neither coding was predominate and all examinations were rated at 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a TDRL placement rating of 10% and permanent disability rating after removal from TDRL of 10% for the low back pain condition.  

BOARD FINDINGS:  In the matter of the bipolar condition, the Board unanimously recommends a disability rating of 50% coded 9432 IAW VASRD §4.129 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 30% IAW VASRD §4.130.  In the matter of the contended low back pain condition, the Board agrees that it was unfitting and recommends an initial TDRL and a permanent separation disability rating of 10%, coded 5003 IAW VASRD §4.71a.  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:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Bipolar Disorder	9432	50%	30%	
Low Back Pain	5003	10%	10%	
COMBINED	50%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140602, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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, AR20160016966 (PD201402730)

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 for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40%.

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 six month 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 six month period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 40% effective the day following the constructive six month 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