RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-03972
BRANCH OF SERVICE:  army                                                                 Separation date:  20040330

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E-5, Power Generation Operator, medically separated by the Informal PEB (IPEB) for bipolar disorder and placed on the Temporary Disability Retired List (TDRL), rated 30%, and removed from the TDRL with a rating of 10%. 

CI CONTENTION:  The CI asked the Board to consider all conditions.  The applicant’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 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

SERVICE PEB – 20040430	VARD - 20000630	
TDRL Placement – 19990425	Code	Rating	Condition	Code	Rating
Proximate	
Condition		TDRL
Placement	TDRL Removal			TDRL2
Placement	TDRL3
Removal	
Bipolar Disorder	9432	30%	10%	Mood Disorders With Depressive Features	9435	10%	100%	
RATING:  30% → 10%	RATING: 10% → 100%  	

ANALYSIS SUMMARY:

Bipolar I Disorder.  The MEB addendum documented that the CI had no history of mental illness prior to his TBI injury in 1997.  He was involved in a motorcycle accident and reportedly was unconscious for a prolonged period of time with subsequent motor deficits.  He had reportedly done well prior to being admitted to the psychiatry service on 6 July 1998.  At the time he was reported to have behaved in a disorganized manner, was grandiose, and had disorganized thoughts with paranoid content and hypervigilant.  The addendum dated 21 August 1998 was accomplished while the CI was inpatient.  The examiner recorded that the mental status exam (MSE) at admission was positive for grandiose and paranoid delusions.  The CI expressed concerns that the examining psychiatrist was from the Pentagon and wanted to take him to work on a special government project.  His judgment and insight were poor, and he appeared to have been intellectually limited.  The CI was agitated on admission, requiring Haldol injection to calm him.  He was treated with mood stabilizing medication (Depakote), and he participated in group therapy.  He was frequently observed as confused, but his interactions with staff and other patients were appropriate.  At the time of discharge, he was reportedly stable on medication, without evidence of psychosis, or formal thought disorder, and without suicidal ideation.  The diagnosis of bipolar disorder, single manic episode, severe with mood-congruent psychotic features was recorded and opined to have caused marked impairment for military duty.  A global assessment of functioning (GAF) score of 25 (behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment) was assessed.  Approximately 7 months after the addendum, the CI was placed on the TDRL.  Six months after TDRL placement, he was again admitted to psychiatry (September 1999) after exhibiting behaviors and mood symptoms suggestive of bipolar mania with catatonic features.  He was uncommunicative, exhibited slowed thought processes and reaction time.  Brain magnetic resonance imaging in September 1999 was consistent with evidence of brain injury; however, no mass lesion or hematomas were identified.  Repeat imaging in July 2003 noted mild diffuse cortical atrophy, greater than would be expected in a patient of his age.  He was diagnosed with mood disorder, bipolar type secondary to TBI, and personality change due to head injury.  The record demonstrated that the CI had various medication trials consisting of neuroleptics, stimulants, antidepressants, and anticonvulsant medications.  In August 2000, he was involuntarily admitted after his family reported he had become withdrawn and was not eating or attending to his activities of daily living.  The examiner noted that the CI reported he had been worried about the stigma of being labeled “crazy” although he had some anxiety and depressive symptoms.  In March 2002, the CI was admitted to the hospital because of hallucinations and illogical thinking.  Depakote had been discontinued, and Zyprexa (antipsychotic) was started during the admission.  He was discharged with a GAF of 70-75 (mild).  The CI underwent TDRL examinations in 2000, 2001, and 2002, and was retained due to no change in his condition.

At the TDRL removal exam, February 2004, the CI reported intermittent periods of depression.  He denied recent psychotic symptoms or thoughts of self-harm, and indicated his sleep and appetite were stable.  He noted that he tried exercising regularly in an effort to control the weight gain induced by his medication.  He reported he had less conflict with others than before, however, he continued to have poor communication with his now ex-wife regarding visits with their 9-year old son.  He reported he had continued monthly visits with the psychiatrist and took daily medication of Zyprexa and Mirtazepine (antidepressant).  He also attended weekly group therapy.  The MSE was unremarkable.  Although the examiner noted the CI’s last manic episode occurred in March 2002, it was also noted that he required inpatient hospitalization in January 2004 (1 month prior to the TDRL removal exam).  The examiner opined that the CI’s psychiatric condition had not significantly improved since the June 2002 TDRL exam.

The Board directed attention to its rating recommendation, based on the evidence just described.  The PEB assigned a 30% rating at TDRL placement.  All members agreed that at the time of placement of the TDRL, the VASRD §4.130 threshold for a 30% rating was met.  The Board first considered if the provisions of VASRD §4.129 (mental disorders due to traumatic stress) were applicable in this case.  The CI was involved in a traumatic accident that led to his mental health condition. Therefore, all Board members agreed the provisions of 4.129 were applicable and therefore, the Board must assign a disability rating of not less than 50% for an initial period of 6 months following separation, with subsequent fitness and ratings based on the applicable evidence.

The Board next considered if there was sufficient evidence to support a rating higher than 50% at TDRL placement.  The narrative summary exam was accomplished while the CI was on the inpatient unit.  The examiner noted he was relatively stable on medication and was assigned a GAF of 25 which implies a significant degree of impairment, and some symptom instability. However, he was stable enough for discharge.  The CI remained relatively stable in the intervening year subsequent to his admission, and although he was hospitalized with serious symptoms 6 months after TDRL placement, all Board members agreed at the time of TDRL placement, there was insufficient evidence to support the 70% disability level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the bipolar I disorder condition at TDRL placement.  

The Board next directed attention to the permanent rating recommendation based on the available evidence.  The PEB noted the 10% rating “more accurately reflects the current degree of severity”.  However, the PEB also noted that the CI was non-compliant with medical management and referenced the TDRL exam as the basis for the rating.  The PEB also wrote, “the Soldier is supposed to be using daily medications and he reports daily use: however, the TDRL-supplied pharmacy record notes intermittent use.”  The TDRL examiner noted that the CI was hospitalized in the month prior to the TDRL removal exam.  The examiner also opined that his condition had not significantly changed from the 2002 exam.  That exam documented that the CI had been hospitalized twice in 2002, and that his condition had not shown any significant progress since his October 2000 TDRL exam.  The 2002 exam recommended final adjudication, noting that his condition was chronic and that he had an “unremitting symptom course since the initial evaluation in December 1998.”  The CI continued to demonstrate intermittent episodes of symptom instability that resulted in another hospitalization within 2 months of permanent separation.  All Board members agreed the condition was not mild or transient, but rather chronic and had an unpredictable course, with or without the use of medication.  All Board members agreed that the 50% rating more accurately reflected the CI’s condition at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the bipolar condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the TBI condition was 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.  The Board observed that the condition of status post TBI was recorded in the profile as the cause of the psychiatric condition, and thus, was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The record demonstrated that the primary residual of the TBI was the unfitting psychiatric disorder.  There was not a preponderance of evidence to support a cognitive disorder diagnosis.  There was no performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 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 unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129 as DOD directed; and a 50% permanent rating IAW VASRD §4.130.  In the matter of the contended TBI condition, 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.  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	
		TDRL	PERMANENT	
Bipolar Disorder	9432	50%	50%	
RATING	50%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140908, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160005148, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 50% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.   Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army

Enclosure