RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02904
BRANCH OF SERVICE:  Army	BOARD DATE:  20150629
SEPARATION DATE:  20050216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Light Wheeled Vehicle Mechanic) medically separated for bipolar disorder.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB).  The “bipolar disorder” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “bipolar disorder” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals 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:

IPEB – Dated 20040825	VA* - (~12 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar Disorder	9432	10%	Schizo-Affective Disorder claimed as Bipolar Disorder	9211	50%	20060209	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 9	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20050701 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board makes note that the VA Compensation and Pension (C&P) examination dated 10 May 2005 was not available in the evidence before it.  However, the exam findings were summarized in the original VARD and the VA C&P examination on 9 February 2006 and members unanimously agreed that this provided sufficient evidence for its rating recommendation at separation.

Bipolar Disorder.  The narrative summary (NARSUM) notes that the CI had a history of depression following the birth of her first child approximately two and a half years earlier during active duty.  She was treated with an anti-depressant medication which was stopped after 3 months due to side effects, and she had no further problems until after the birth of twins, nine months before the NARSUM.  The CI was placed on an antidepressant medication, again with resolution of her depression symptoms within a few weeks.  However, according to the NARSUM the CI was observed by her chain-of-command to be acting inappropriately at night after taking the medication, “like a little girl, playing tag with her peers.”  Over the next several weeks she became more anxious and had one panic attack.  The CI became more distractible and was counseled on her inability to stay on task.  The CI was observed to be more talkative with racing thoughts, as well as easily distracted, and she reported decreased sleep, feeling “violent,” “feeling of being out of control,” and “mood feeling like it was going to crash.”  The CI was evacuated from theater for the mental health (MH) symptoms after an episode of hiding in an abandoned warehouse for several hours until she was found, after being reprimanded for distractibility.  The movement request for medical evacuation noted a long history of mild hypomanic symptoms that “manifested as a full bipolar II diagnosis criteria after the birth of her first child (2.5 years ago), with a recurrence after the second pregnancy (9 months ago).”  The NARSUM noted that during air evacuation the CI had two more anxiety attacks and was prescribed anti-anxiety medication.  Upon return the CI was started on a mood stabilizer (lithium) and a normal mood was achieved within several weeks of treatment.  The anti-anxiety medication was continued for continued irritability.

There were scant MH notes in the service treatment records following the CI’s return.  The CI reported anxiety around other people and at a primary care visit on 2 June 2004, she was noted to be overmedicating with prescribed anti-anxiety medication.  The exam noted she was crying and agitated and was put in an office alone because of her “fear of sitting in the waiting room.”  A week later the CI was sent for evaluation by primary care by her command and she reported being disturbed by loud noises and other people and was noted to have an exaggerated startle response.  The CI was placed on quarters until a scheduled the psychiatric evaluation.

At the MEB examination on 10 August 2004, 6 months prior to separation, the CI denied symptoms of psychosis, including auditory or visual hallucinations.  The NARSUM examiner noted the CI denied panic or generalized anxiety disorder symptoms, other than the one panic attack and the examiner indicated that the criteria for post-traumatic stress or obsessive-compulsive disorder were not met.  A family history of bipolar d/o was noted.  The MEB mental status exam (MSE) noted the CI was well groomed and fully oriented.  She reported an “okay” mood, but had a constricted affect, with slow, low volume speech and psychomotor retardation.  There were no thought abnormalities or cognitive deficits, and insight and judgment were considered fair.  There was no evidence of suicidal ideation (SI) or psychotic features.  The MEB examiner summarized the CI’s MH history as “four distinctive cyclic moods over the past three years” characterized by “highs” that last 3 to 6 days, with periods of normality for several months, with three episodes of depression that were precipitated by two childbirth events and deployment, but none before.  The Axis I diagnosis was bipolar disorder, most recent episode mixed, with a Global Assessment of Functioning (GAF) of 61 (on the cusp of mild to moderate impairment ranges).  Severe stressors were noted as “combat environment where there were several mortar attacks near the patient’s work area.”  The MEB examiner noted the CI continued to report symptoms of sleep difficulties and mild depressive symptoms and characterized her functional status as having a chronic disorder not requiring hospitalization, but requiring continued therapy and medication to remain in “partial remission.”

The initial VA C&P examination on 10 May 2005, 3 months after separation, is not in record as noted above.  However, the VARD dated 1 July 2005 summarized the examination.  The CI reported sleep difficulties, improved by sleep medication and one panic attack in the last three months.  She was not working and reported not wanting to be around people.  The CI reported that she had taken herself off lithium and was only using a sleep medication.   There was no impairment of thought or speech noted.  The examiner indicated that testing showed no evidence of bipolar disorder, but there was evidence of schizoaffective disorder (symptoms of schizophrenia and a mood disorder).  The CI reported that since stopping lithium and being out of the military she was feeling much better.

The VA C&P examination on 9 February 2006, 12 months after separation, noted the same findings on the 2005 C&P exam as the VARD above, but added that at the earlier C&P the CI reported periods of increased energy and no psychotic features or SI were noted.  The VA examiner recounted that during active duty the CI was placed in a psychiatric holding facility “after becoming hypomanic and running away from her unit.”  At the exam, the CI reported that she was currently taking psychotropic medications for depression and anxiety, but was not involved in ongoing psychiatric care.  She reported symptoms of sleep difficulties, both decreased and increased sleeping, decreased concentration and attention, hypervigilance regarding safety and security, anxiety around other people, and only left home when absolutely necessary.  She also reported periods of “high” energy, with racing thoughts and difficulty concentrating.  She denied any delusions or psychotic beliefs, but reported an occasional auditory hallucination of hearing someone call her name.  The CI was caring for her 4-year-old child, but her younger twins lived with their grandmother.  She reported that she was asked to leave a couple jobs since the previous C&P due to her lack of ability to stay on task, but she was currently working as a retail clerk.  The MSE noted anxiety and mistrust of others but was otherwise without abnormal thought or speech, cognitive deficits, impaired judgment, or SI.  The CI denied delusions or recent hallucinations or panic symptoms.  She reported being hypervigilant about her safety, but did not express any specific paranoid ideas.  The examiner indicated standardized psychiatric testing (Personality Assessment Inventory –PAI) was performed and the profile supported disordered thinking, chronic anxiety, and PTSD symptoms.  Regarding the CI’s competence to manage her own funds the VA examiner commented, “The veteran does not have any fundamental problems with cognition or memory.  Furthermore, she does not have any disruption in basic reality, contact, or evidence, signs and symptoms of inability to manage money in her own best interest.  Thus, she should be considered competent…”  The Axis I diagnosis was Bipolar II disorder, indicated as the primary diagnosis and anxiety disorder, not otherwise specified.  On Axis II personality disorder traits were listed and the GAF was 50 (on the cusp of serious and moderate impairment ranges).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bipolar d/o 10%, coded 9432 (bipolar disorder).  The VA originally rated the MH condition 50%, coded 9211 (schizoaffective d/o), citing the provisions of VARSD §4.129 stating, “Although, your current symptoms do not warrant an evaluation of 50 percent, an evaluation of 50 percent is warranted when a mental disorder develops in service as the·result of a stressful event and is the cause of your release from military service.  Your service medical records reflect that you symptoms began shortly after being sent to Kuwait and having to leave your three children behind.”  The VARD on 7 June 2006, after the 2006 C&P examination, proposed lowering the rating to 30% based on the MSE.  The CI did not respond to the proposed rating and it was lowered to 30% by the VARD on 7 November 2006.  The VA received the CI’s Notice of Disagreement with the 30% rating 30 January 2007.  The VA Decision Review Officer decision (DROD) 7 May 2007 continued the 30% rating, noting that the CI had residual MH symptoms, but no psychotic features, was not receiving ongoing psychiatric care, and was working.

The Board first deliberated whether application of VARSD §4.129 (elaborated in the VARD above) was supported in this case.  Members noted that the CI’s MH symptoms began before deployment with a diagnosis of Bipolar II disorder first noted after the birth of the CI’s first child prior to deployment.  Board consensus was that although the CI’s MH symptoms were aggravated by general deployment stressors, §4.129 applies to “a mental disorder that develops in service as a result of a highly stressful event” and the evidence in record supports that was not the circumstance in this case.  The Board therefore concluded that the application of §4.129 is not appropriate in this case.

The Board next considered the rating of the MH condition IAW VASRD §4.130.  Members agreed that there was no evidence of total occupational and social impairment to support the 100% rating.  The “deficiencies” referenced in the 70% rating are not defined as to severity but typical markers for the 70% rating are under-employment, persistent SI, sporadically incapacitating symptoms, serious cognitive impediments and the need for occasional psychiatric admissions.  The CI did not report any hallucinations at the MEB exam or C&P exam 3 months after separation, but reported occasional auditory hallucinations at the C&P exam 12 months after separation.  However, the Board noted that the VA examiner at the later C&P exam indicated that the CI did not have any loss of contact with reality.  The Board consensus was that the significant threshold indicators for the 70% rating were not evidenced in this case at separation.  The Board majority reviewed to see if the evaluation of 50% was supported, but there was no evidence of symptoms that discriminate between the 30% and 50% ratings after the CI was treated with medication to support the 50% rating, such as stereotyped speech, frequent panic attacks, deficits in comprehension and memory, impaired judgment and difficulty with establishing relationships.

The Board noted that the PEB rated the MH condition 10%, and next focused deliberations on the 10% rating, specified as “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”, versus the 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 …)”; with characteristic symptoms of depression, anxiety, suspiciousness, occasional panic attacks, sleep disturbance, and mild memory loss.  The Board majority agreed that the evidence of “partial remission” noted by the MEB psychiatrist, with the intermittent symptoms of anxiety and depression, occasional panic attacks, and sleep difficulties documented in the service treatment record and at the C&P exam 12 months after separation (while on medication), was consistent with the 30% rating and exceeded the 10%.  The Board majority concluded that the evidence supports rating the disability due to the bipolar disorder at separation 30% IAW VASRD §4.130 and no higher.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 30%.

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 disorder condition, the Board majority recommends a disability rating of 30%, coded 9432 IAW VASRD §4.130.  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	
Bipolar Disorder Condition	9432	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140611, 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 XXXXXXXXXXXXXXXXXXXX, AR20160003765 (PD201402904)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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 the memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement 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 date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA