RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX 	CASE: PD-2014-02936
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE: 20060715

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Field Radio Operator) medically separated for Bipolar I disorder, rated at 0%.

CI CONTENTION:  The applicant requests consideration of all of his conditions.  His 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 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 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 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 20060330	VA* - ~3 Months  Post-Separation 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar I Disorder	9499-9432	0%	Bipolar Disorder	9432	70%**	20061010	
Antisocial/Borderline Personality D/O	Not Unfitting, Cat IV	No VA Placement	
Other x 0 (Not In Scope)	Other x 3 	
RATING:  0%	COMBINED RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20080124 (most proximate to date of separation (DOS)).  **As of 20070926 hospitalization the CI was rated 100% for Bipolar Disorder.

ANALYSIS SUMMARY: 

Bipolar I Disorder.  The CI first came to mental health attention on 23 September 2003, just under 11 months after accession, when he was overheard to threaten to “drive a truck through his workplace.”  He was determined to not present a significant threat to himself or others.  One week later on 29 September 2003, he was evaluated in psychiatry and noted to have a history of illicit drug use and dependence (withdrawal) prior to enlistment, as well as a past history of frequent fighting, reckless driving, and fire setting.  He was thought to have borderline and anti-social traits, possibly a disorder, but to be responsible for his own behavior and fit for full duty.  He was seen 5 weeks later for back pain and the medical technician commented “clearly seems to be malingering.”  Subsequently, he was placed into a substance abuse rehabilitation program (SARP) on 20 February 2004.  When seen by psychiatry on 25 February 2004, he noted a recent DUI and was again thought to have occupational problems and borderline and anti-social traits, rule-out disorder.  A note the next day indicated that he had failed to complete the SARP and was projected to be discharged.  The record then falls silent until an emergency room note dated 28 August 2004 in which he was noted to be intoxicated and to have been assaulted.  One month later, he was brought to the VA by his parents while home on leave.  He reported that he drank a lot and had been left behind by his unit when it deployed as he was thought to be unstable for combat.  He also reported that he was pending separation from the USMC.  His father noted that the CI had a “record” at his home base.  Two days later, he was again seen requesting paperwork to state that “he should not be in the marine corp[sic]…”   He noted that he was to have been “kicked out” due to the DUI, but that this was apparently not going to happen.  He reported that he was gay and that this had led to fights.  In addition, there were indications on physical examination of chronic or frequent substance abuse.  The next mental health entry was a request for a psychiatric consultation dated 5 January 2005 in which the CI was “in trouble for aggravated assault and illegal drugs.”  He was seen in psychiatry on 23 January 2006 and found psychologically fit for full duty, but was diagnosed with alcohol abuse and an antisocial/borderline personality disorder (PD).  His mother had reported that the CI placed foil on his teeth (which the CI stated was to keep food from (between) his teeth and that he wanted gold caps) and heard voices.  It was noted that illegal drugs and drug paraphernalia had been found when his room was searched.  

The CI was admitted on 7 February 2006 for auditory and visual hallucinations and had gone several days without sleep.  He also had delusions.  This is detailed in the narrative summary (NARSUM).  The CI declined “Screening/Treatment” for substance abuse on 14 February 2006 (during his hospitalization).  The NARSUM was dated 6 March 2006, 4 months prior to separation, and dictated during the hospitalization.  The CI was noted to be “easy to anger and rather aggressive.”  Record review showed an evaluation in mental health in September 2003 when he was diagnosed with a major depressive episode.  On mental health examination (for admission), he had pressured speech, but was directable.  He showed anxiety and suspicion.  Thought processes were tangential and content had paranoid ideations.  Impulse control and judgment were impaired and insight limited.  He was placed on medications with improvement.  He remained an inpatient at the time of the dictation.  He was diagnosed with Bipolar I disorder, most recent episode manic, severe, with psychotic features.  

The non-medical assessment dated 10 March 2006 noted that the CI had lost his security clearance in his previous command due to two non-judicial punishments; it was noted that he had received a total of four.  He took “an above normal amount of command attention since joining this unit.”  This date was not specified.  At the MEB examination on 13 March 2006, the CI reported seizures from heavy use of cocaine and beer in November 2005, anxiety and a panic attack in February 2006, PTSD and Bipolar disorder, and the use of marijuana and cocaine to cope with the stress from his deployment.  A separate note documented that he was physically qualified for separation.  It is not clear when the CI was discharged from the hospital.  The CI was readmitted on 4 June 2006 until 13 June 2006.  He was again treated with medications and daily therapy.  He was discharged with the diagnosis Bipolar I, MRE (most recent episode) manic, severe with psychotic features, alcohol abuse.  He was discharged to his parent command without activity restrictions, but was restricted from weapons access.  Follow-up with the VA immediately upon return to his home (after separation) was recommended.  It was noted that his medications required close follow-up.  

Following separation, the CI worked in construction and on an assembly line as per VA Compensation and Pension (C&P) examinations remote from separation (19 November 2007 and 26 March 2008).  At the VA C&P examination performed on 10 October 2006, 3 months after separation, the CI reported the use of alcohol beginning at age 17 of a case of beer over a weekend and marijuana beginning at age 18 on a monthly basis.  He denied behavioral problems.  He had been arrested for a DUI 3 days earlier and spent the night in jail.  He was collecting unemployment and had been smoking cocaine since his separation.  He reported depression and daily suicidal ideation.  He also had a pending court appearance for drug possession from the previous November.  He denied having a mood disorder.  His mental status examination was unremarkable, with normal thought processes and content, absent delusions and hallucinations, adequate hygiene and grooming, no abnormal behavior, and intact memory.  He was thought to have poly-substance abuse and anti-social behaviors.  The PEB diagnoses were noted, but not listed.  The next record in evidence is a social work note dated 8 March 2007, 8 months after separation.  He stated that he was able to work, but that he had not worked much since leaving the USMC.  He had been admitted to the VA domiciliary care the previous day (after release from jail) at the recommendation of his attorney.  He was on probation for the possession charge (above) and had charges pending for arson (lit a dumpster on fire to warm him while he was intoxicated).  He had spent 3 months in jail.  He continued to use alcohol, marijuana, and cocaine (he reported that he started the latter after return from deployment).  Both parents had substance abuse problems.  He was not taking any medications.  A mental health evaluation the next day noted that he had normal cognitive function and no depressed mood.  He was diagnosed with substance abuse and a history of BAD (bipolar affective disorder) diagnosis and treatment.  He was then seen by a psychiatrist on 15 March 2007.  The above was noted although the history recorded that he was jailed while in the service rather than afterwards.  He was again thought to have a Bipolar I disorder and to be in a hypomanic state at the present as well a history of substance induced psychosis.  His insight was poor and he showed chronic maladaptation.  One week later, he went AWOL (absent without leave) from the VA program on 23 March 2007.  A breath analyzer was 0.161 (above the legal limit for intoxication of 0.08) although he denied drinking.  A urine specimen was requested, but he dumped it into a sink.  He was then medically cleared for Irregular discharge (one for disciplinary issues or refusal to undergo treatment).  He was escorted off the VA grounds by police and then went to get some food.  He then presented to the VA emergency room the next day on 24 March 2007 and was admitted to psychiatry.  While in the hospital, he did show PTSD symptoms, evidence of Bipolar disorder, a history of poly-substance abuse, and borderline dynamics (signs of borderline traits/disorder).  He improved with medications and was discharged to PART (Prodrome Assessment Research and Treatment) treatment on 17 April 2007.  He showed both signs of mania and psychosis despite treatment.  However, he also continued substance abuse and was found to be using an inhalant (which is not detected on a drug screen) and again discharged irregularly.  A note by an addiction specialist dated 4 June 2007 noted that the CI was difficult to work with, inconsistent in his answers, and appeared to be unmotivated.  His effort appeared to be minimal and progress poor.  However, at an appointment 1 week later, he showed improved motivation.  A mental health note dated 19 December 2007 documented that the CI began smoking, alcohol use, marijuana use, and cocaine abuse while in high school and reported almost daily use through February 2007 with intermittent periods of sobriety while in the military.  

The Board noted that at different interviews, the CI reported the onset of cocaine abuse as in high school, in the military following deployment, and after separation.  He consistently reported the use of alcohol and marijuana prior to service.  At the initial mental health assessment in September 2003, he reported a history of fighting, reckless driving, and setting fires.  He was noted to have had a major depressive episode at that evaluation.  He also had four instances of non-judicial punishment before his hospitalization for Bipolar disorder in February 2006 and was found fit for duty in Janaury 2006, implying that he was mentally competent and responsible for his actions.  The record also showed that the CI endorsed PTSD symptoms and combat stress on some interviews, but discounted these on others.  The Board first considered if the provisions of VASRD §4.129 (mental disorders from a traumatic event) were applicable.  It noted that the CI attributed some symptoms to his deployment at times, but discounted this at other interviews.  Bipolar disorder is not typically associated with a traumatic event and no link was made by any examiner in the records available for review.  The Board determined that the evidence does not support the application of VASRD §4.129.  It then considered the rating recommendation based on the above evidence and IAW VASRD §4.130.  The PEB rated the bipolar disorder at 0%, coded 9499-9432 (analogous to bipolar disorder).  The personality disorder was determined to be a Category IV condition.  No comment was made on the substance abuse problem.  While the CI received severance pay for disability, the discharge was characterized as “General (Under Honorable Conditions).”  The VA also used the code 9432, but rated the CI at 70% at separation and later, effective 26 September 2007, at 100%, the date he was hospitalized 14 months after separation.  The VA did not separate out either the personality disorder or substance abuse for adjudication.  Prior to separation, the CI was admitted twice for symptoms from bipolar disorder.  Following separation, he was employed, at least temporarily, in two jobs.  He had legal issues, but these stemmed from actions taken the previous year before he was diagnosed and during a period in which he was determined to be fit for full duty from a mental health standpoint; in other words, responsible for his actions.  The Board also noted that the CI endorsed ongoing substance abuse following separation and that this dated to high school, prior to accession.  The action officer observed that cocaine abuse can mimic psychosis and that substance abuse can increase the likelihood of poor behavior seen in personality disorders such as his.  The CI was on medications supporting a minimum of a 10% rating.  The CI was initially employed, but was collecting unemployment at the time of the VA C&P examination.  It is not clear why he was not working as this was, as best as can be determined, several months prior to his incarceration.  While the record shows that the CI was readmitted a month prior to separation, the VA examiner clearly documented that the symptoms shown by the CI at the examination 3 months after separation were primarily due to the substance abuse and anti-social behavior (and consequences of both).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the Bipolar I condition.  

Contended PEB Conditions: Antisocial/Borderline Personality Disorder.  The PEB determined the personality disorder to be a Category IV condition.  It is specifically noted, in DoDI 1332.38 E5.1.3.9.2., that personality disorders are developmental and do not constitute a physical disability.  They are not ratable absent an underlying ratable causative disorder.  While the personality disorder contributed to the disability from the unfitting Bipolar disorder, it was separate from rather than caused by it.  Accordingly, no separate rating is appropriate.  The Board also noted that any contribution from the personality disorder to the underlying condition which cannot be separately attributed to the personality disorder is subsumed under the overall rating under VASRD §4.130.  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 personality disorder and so 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 I condition, the Board, by a majority vote, recommends a disability rating of 30%, coded 9499-9432IAW VASRD §4.130.  In the matter of the antisocial/borderline personality disorder condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended personality disorder condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Bipolar I Disorder	9499-9432	30%	
Anti-social/Borderline Personality Disorder	Not Ratable	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140606, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 31 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 15 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX  
	(e) PDBR ltr dtd 31 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 
	(f) PDBR ltr dtd 21 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX 
	(g) PDBR ltr dtd 11 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 22 Jan 16 ICO XXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 29 Dec 15 ICO XXXXXXXXXXXXXXXXXXXX

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

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     b.  XXXXXXXXXXXXXXXXXXXX, former USN: Assignment to the Temporary Disability Retired List on date of discharge for a period of six months with a 50 percent disability rating followed by transfer to the Permanent Disability Retired List with a final rating of 50 percent  

     c.  XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     d.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Assignment to the Temporary Disability Retired List on date of discharge for a period of six months with a 50 percent disability rating followed by transfer to the Permanent Disability Retired List with a rating of 30 percent. 

     f.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     g.  XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 0 percent) and placement on the Permanent Disability Retired List effective date of discharge.

     h.  XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability retirement pay with a 30 percent disability rating (increased from 10 percent) and placement on the Permanent Disability Retired List 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.

                                       XXXXXXXXXXXXXXXXXXXX
                                       Assistant General Counsel
                                      (Manpower & Reserve Affairs)