RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00234
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Military Police, medically separated for “bipolar II disorder” and “chronic right ankle pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  The CI contends that her ratings should be changed for ongoing issues with not only her unfitting psychiatric disorder and right ankle condition, but also for her not unfitting left ankle condition and various other conditions not adjudicated by the PEB.  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 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 on 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 - 20070904	VARD - 20080919	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar II Disorder	9432	10%	Bipolar Disorder	9432	50%	20080723	
Chronic Right Ankle Pain	5099-5003	0%	No VA Placement	
Left Ankle Pain	Not Unfitting	Left Ankle S/P Reconstruction	5271	0%	20080723	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Bipolar II Disorder.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) mental health (MH) narrative summary (NARSUM), the CI’s bipolar disorder began in December 2006 when she “began experiencing severe mood swings.”  The CI presented to the emergency department (ED) in April 2007 and reported her symptoms worsened over the past 6 months.  She reported frequent mood swings and paranoia at times with increasing alcohol use and illicit drug use a “couple times per month” (ecstasy).  She also reported use of cocaine, with her last use some months ago.  The history noted the CI had started drinking at age 14 and used marijuana, cocaine and ecstasy between ages 17 and 20.  There was a family history of bipolar disorder on both sides of the family and depression, as well as alcohol and/or drug abuse by her mother, father and a brother.  The CI reported her brother was physically abused at home and possibly sexually abused, but denied she was the victim of physical or sexual abuse.  She saw a counselor for anger management in grade school, as well as during her deployment overseas (but not to a combat zone) and had started seeing a MH care provider for depression 3 weeks earlier.  At the ED she reported she had gotten into a fight with her boyfriend 2 nights earlier and was drinking heavily and taking over the counter sleeping pills throughout the next day.  She reported suicidal ideation (SI) with thoughts of driving her car off the road and a previous suicide attempt 3 months earlier by taking a bottle of over-the-counter sleep medication (Tylenol PM).  She denied she was trying to hurt herself, but was deemed a high risk of threat to herself and was admitted.  The CI noted her mood swings were increasingly difficult to control and she related them to dissatisfaction with her new duty station and new position as a recruiter where she had been for 2 years.  During admission the CI was started on medications to stabilize her mood.  Her Axis I diagnosis was bipolar II disorder, most recent episode depressed, and alcohol dependence in early remission, cocaine and ecstasy abuse.  At discharge, the Global Assessment of Functioning (GAF) assignment was 60, which is in the moderate impairment range.  She was discharged to a partial hospitalization program and was going to continue that on an outpatient basis.  A nearly illegible MH note in late April 2007 indicated an episode with manic symptoms shortly after her inpatient discharge.  A MH note dated 8 May 2007 indicated the CI reported her fiancé had threatened her life and she did not feel safe returning home.  She was transferred to a Med Hold company and a permanent profile was written.  The MEB forwarded “bipolar II disorder” for PEB adjudication.  

At a MH visit on 16 May 2007, the CI reported she had been raped by a friend of her former fiancé within the last week.  She denied being suicidal but reported she was very scared and upset and unable to function.  She was admitted as an inpatient for a couple days to cope with her assault.  Mental health treatment notes indicated the CI responded well to treatment and in June 2007 she was discharged from the partial health program to an intensive outpatient program.  

The MEB Psychiatric NARSUM examination on 12 July 2007, 5 months prior to separation, noted mood swings since December 2006 that alternated between depression and rage as often as 6 to 7 times per day.  The examiner noted the CI had passive SI, but no active suicidal thoughts, plans, or intent.  The CI denied anxiety or symptoms of mania.  The mental status examination (MSE) noted a normal mood and a full ranging affect, appropriate to content.  The CI did become tearful when discussing her recent sexual assault.  There was no SI, evidence of delusions or hallucinations (or other symptoms suggestive of psychosis), speech disturbance, cognitive impairment or other abnormalities.  The MEB NARSUM psychiatrist noted the CI required ongoing psychotherapy and psychotropic medications for her symptoms to remain well controlled.  The psychiatrist noted while undergoing the MEB, the CI had not worked, but in his opinion, the CI was “capable to work fulltime in civilian employment in a position with salary commensurate with her current military pay grade.”  The Axis I diagnosis was Bipolar II disorder, MRE, Depressed with a GAF assignment of 60 at the time of the summary.  

In August 2007, the CI was being discharged to her home duty station and the treating psychiatrist indicated the CI should be returned to work gradually, 10 to 12 hours for 6 weeks and recommended that while waiting for her MEB she should work no more than 4 hours per day.  

The CI called the VA 11 March 2008, 3 months after separation, and asked for help because she had nowhere to live, no job, her medications were not working, and she had no means of transportation.  The VA arranged transportation for a visit the next day and a social worker arranged for her to have a place to stay overnight.  A MH evaluation the next day noted the CI’s history of sexual trauma and bipolar d/o with depression, anxiety and nightmares about her sexual assault in May 2007.  The CI reported taking her drugs regularly and denied use of alcohol or illicit drugs.  On MSE the CI was depressed and tearful, slightly agitated and hyper-verbal.  The remainder of the exam was normal.  The Axis I diagnoses were PTSD and Bipolar d/o with a GAF assignment of 40, which is in the serious range of impairment on this scale.  The CI’s psychotropic medications were adjusted and therapy was recommended.  The CI was accepted into a VA homeless housing program (GOALS).  At MH visits after this the CI reported severe job stress had led to worsening of her symptoms and she ended up “flipping out.”  She also referred to the sexual assault in May 2007 at multiple visits.  The CI reported she was much improved after her medication changes and being accepted into housing.  She reported medication compliance and no use of alcohol or drugs.  A psychological assessment dated 25 March 2008 noted the CI had bipolar disorder with depressed mood more days than not with feelings of helplessness, fatigue, irritability, loss of pleasure and interest, sleep problems and suicidal ideation and manic symptoms of irritability, engaging in reckless activities, being hyper-verbal, easily distracted, with minimal sleep.  The last manic episode was 3 weeks earlier, with episodes lasting 2 to 3 weeks precipitated by stressful events.  The note indicated the CI had also been diagnosed with PTSD approximately 9 months earlier.  At this visit the CI related 2 incidents of being sexually assaulted, 1 time occurring while she was in the military.  The Axis I diagnoses remained the same and the GAF assignment was 45, which is in the serious impairment range on this scale.  Following a note in April 2008 which indicated there had been an “incident” in GOALS group, a psychiatry note the next day indicated the CI reported some difficulty staying asleep but was otherwise doing fair and the MSE was normal and GAF was 50, improving but still in the serious impairment range.  When the CI was discharged from the homeless program in May 2008 due to misconduct, she was angry and upset and stated she would slit her wrists.  At the time of the urgent psychiatric evaluation, she was not suicidal and contracted for safety.  Her MSE was normal except for noted depression and nervousness following the discharge from the GOALS program.  She was determined to not be a threat to herself or others and medications were adjusted.  There was no change in diagnoses and the GAF was 53, which is in the moderate range of impairment on this scale.  At a visit 2 weeks later she reported feeling “stable” and her MSE was normal.  

At the 23 July 2008 VA Compensation and Pension (C&P) evaluation, performed 7 months after separation, the CI reported at age 10 she was molested by a “troubled youth” visiting her grandparents farm.  She also reported having been sexually assaulted in the military by a soldier sometime before 2005 and was treated at a civilian crisis center.  She stated she reported the assault to the military and was reassigned to a new duty station and position.  She reported she did well at first, but there was a supervisor change and she did not get along with the second supervisor.  She reported already being in MH counseling at the time, but the stress of her work situation increased her alcohol use.  Regarding substance use, the CI reported her use of alcohol and drugs increased following the first alleged sexual assault.  She again noted a second alleged sexual assault in 2007.  The CI noted she had been discharged from the VA housing due to misconduct (missing bed check and general disruption) and was currently living with her boyfriend, with whom she had a good relationship.  She reported she did have friends.  She was unemployed and was running out of money but had not started to look for employment.  She reported current use of marijuana.  She spent time playing with her dog and writing stories.  The VA examiner noted the CI did not seem motivated to seek employment at the time.  The CI was on anti-psychotic, antidepressant and anti-anxiety medications at the time of the VA exam.  The CI reported sleep difficulties and racing thoughts before sleep.  The MSE noted the CI was restless, irritable and guarded, with an agitated mood and flat affect.  Her memory, attention and concentration were mildly impaired.  Speech and thought processes and content were normal.  There was no evidence of hallucinations or delusions.  There was no SI/HI.  The CI reported panic attacks for the past 1 and a half years, especially while she was in the housing program, but prior to that she had not had a panic attack in 2 months.  The Axis I diagnoses were bipolar disorder, PTSD, and cannabis abuse and the GAF assignment was 52, which is in the moderate impairment range on this scale.  The VA MH examiner characterized the CI’s occupational and social function as “reduced reliability and productivity” due to MH symptoms.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bipolar II d/o 10%, coded 9432 (bipolar disorder), citing “occupational and social impairment due to mild symptoms” which decreased work efficiency during times of “significant stress.”  The VA rated the bipolar disorder 50% coded 9432, based on the C&P examination 7 months after separation, citing “reduced reliability and productivity.”

The Board first considered if application of VASRD §4.129 was warranted in this case.  After separation, the CI reported a military sexual assault sometime prior to 2005, which she alleges she reported at the time and was reassigned as a consequence; however, there is no documentation in the STR that references the alleged assault or the reassignment in approximately April 2005 was due to a sexual assault.  The first mention of this incident in the available records was in March 2008 at the VA and the CI alleged she increased her alcohol use and drug use as a consequence, though records indicated the CI had used alcohol heavily in adolescence and used illicit drugs prior to entering the military.  Additionally, at MH visits in the STR the CI had reported she did well in her reassigned position until she did not get along with a new supervisor and attributed increased MH symptoms and alcohol use to her dissatisfaction with her occupational situation.  It appears from the record the CI was first diagnosed with PTSD following a second reported assault by a friend in 2007, while the CI was still in the military; however, the bipolar disorder had been diagnosed and the MEB process was already being initiated prior to the second reported sexual assault.  The applicability of §4.129 rests on whether the first reported sexual assault was the highly stressful event that brought about the development of a mental health condition which led to the CI’s separation from the military.  The records showed the CI also reported molestation as a child, anger problems in childhood and during her first deployment (before the alleged MST), alcohol and drug use in adolescence, and family history of bipolar disorder, depression, and substance abuse.  The Board could not conclude from the available evidence that the CI’s MH condition diagnosed as bipolar II disorder was caused by the first alleged sexual assault while in the military; therefore the Board concluded the application of §4.129 was not appropriate in this case.  

There was evidence at the time of separation the CI was well controlled on her psychotropic medications.  At the MEB NARSUM exam, the MSE was normal and as noted the MEB NARSUM examiner indicated the CI was capable of civilian employment, though she needed psychotropic medications to do so.  Outpatient VA treatment notes showed the CI was not functioning well for a period of time after separation; however, when she entered into the VA homeless program, she improved.  At the time she denied use of alcohol or drugs, said she was compliant with her psychotropic medications and she was noted to be stable under these conditions.  There was no evidence that when under appropriate care the CI was unable to work.  At the C&P examination the CI reported use of marijuana and noted she was running out of money and had not yet started looking for a job.  She reported a good, supportive relationship with a boyfriend and had friends.  The VA examiner indicated the CI did not seem to be motivated to seek employment at the time.  The Board consensus was, based on the available records, the disability due to the bipolar II was consistent with “occupational and social impairment due to mild symptoms” which decreased work efficiency during times of “significant stress” proximate to separation, and that despite continued unemployment after separation, there was no evidence in the record this was not by choice.  The Board concluded there was not enough evidence of “occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks” to support recommending the next higher rating of 30%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded there was insufficient cause to recommend a change in the PEB adjudication for the bipolar II disorder.

Chronic Right Ankle Pain.  According to STR and the MEB NARSUM, the CI’s right ankle condition began in August 2003 after she twisted it while exiting a helicopter.  She underwent right ankle reconstruction surgery in November 2004 and a follow-up arthroscopy in December 2005 for debridement of scar tissue.  Right ankle instability persisted with “giving way” of the ankle.  Ankle X-rays in December 2005 and October 2006 were normal.  The MEB forwarded “right ankle pain and instability” for PEB adjudication.  The MEB NARSUM examination on 25 July 2007, 5 months prior to separation, noted complaints of right ankle pain graded 5-7/10, worse at the end of the day.  The CI was not taking any medication for the right ankle.  The physical exam showed a scar over the outside of the right ankle.  There was no swelling.  The feet were normally aligned.  The right ankle was stable.  Right ankle range of motion was dorsiflexion (DF) of 16 degrees (normal 20) and plantar flexion (PF) of 55 degrees (normal 45).  The CI was able to walk on her toes and heels.  On stress X-rays the right ankle was noted to have instability with inversion stresses.  

At the 23 July 2008 C&P evaluation, performed 7 months after separation, the CI reported constant right ankle pain with stiffness and giving way.  She wore an ankle brace especially for prolonged weight bearing.  Physical examination showed an antalgic gait favoring the left.  There was a non-tender scar of the right ankle without fixation.  There was no tenderness to palpation or effusion.  There was pain with motion.  Ankle ROM was DF to 20 degrees with pain and PF to 45 degrees with pain, and there was no additional loss of ROM with repetitive use.  Right ankle X-rays were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 0%, coded analogous to 5003 (degenerative arthritis), citing the US Army Physical Disability Agency (USAPDA) pain policy.  The original VA Rating Decision (VARD) did not address the right ankle condition.  The VARD dated 30 January 2013 noted that the decision to not service connect the right ankle condition in 2008 was a clear and unmistakable error and the right ankle was rated 10%, coded 5271 (limited ankle motion), effective the day after the date of separation.  The Board considered if the limitation of motion was moderate or marked when considered under 5271, limitation of ankle motion.  The Board agreed the ROM examinations proximate to separation detailed above were consistent with a moderate limitation of motion for the 10% rating under this code.  There was no ankylosis, nonunion or malunion, and therefore VASRD §4.71a offers no applicable ankle code which would yield a rating higher than a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right ankle condition, coded 5271.  

Contended PEB Conditions:  Left Ankle Pain.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  The MEB NARSUM noted the CI also had a lateral reconstruction surgery of the left ankle in January 2007 and a nondisplaced fracture of the ankle in February 2007, treated with a cast.  At the MEB NARSUM in July 2007 the left ankle was stable and the CI reported decreased pain.  Left ankle X-rays were normal and stress X-rays showed no instability with inversion stresses.  At the MEB NARSUM examination the CI reported she thought she would be able to do a ruck march with her left ankle despite pain, but was limited by the pain and instability of her right ankle.  There was no performance-based evidence from the record that the left ankle condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bipolar II disorder condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic right ankle pain condition, the Board unanimously recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the contended left ankle pain condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Bipolar II Disorder	9432	10%	
Chronic Right Ankle Pain	5271	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150318, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB										

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 XXXXXXXXXXXXXXXXXXXXX, AR20170003452 (PD201500234)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

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.   

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