RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00515
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Quartermaster and Chemical Equipment Repairer, medically separated for “bipolar disorder” with a disability rating of 10%.   

CI CONTENTION:  The CI submitted a lengthy brief which detailed her contention.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20040130	VARD - 20040309	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar Disorder…	9432	10%	Bipolar Disorder	9432	70%	20040621	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70% 	

ANALYSIS SUMMARY:  

Bipolar Disorder (BP d/o).  According to the service treatment record (STR) and the mental health (MH) Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s BP d/o began in November 2002 when the CI self-referred to outpatient psychiatry after she alleged she was sexually assaulted by a fellow soldier 1 month earlier.  She was stationed overseas at the time, but not in a combat area.  The CI displayed symptoms of irritable mood, racing thoughts, decreased need for sleep, distractibility, impulsivity, pressured speech and increased goal directed behavior.  However, at that time the she continued to function well in regards to her military duties.  The CI experienced an exacerbation of her symptoms in January 2003, when her alleged assailant was “acquitted” by a military court, when all charges were dropped except unlawful entry.  After 3 weeks, the depressive symptoms resolved and the CI returned to her baseline mental status.  A 6 January 2003 MH intake visit noted the CI had a long psychiatric history – she reported 12 years of therapy and a trial on anti-depressant medications, which was helpful at the time.  The MH examiner noted the CI had a chaotic relationship history, poor coping skills, with a history of self-mutilation.  The CI reportedly experienced emotional and physical abuse between the ages of 4 and 17.  The CI’s mother believed those traumatic experiences were the basis of the CI’s emotional state and behavior to date.  The CI’s mother also expressed concern that “fitness or weight loss pills” made her daughter “hyper” and impaired her sleep, as well as any antidepressant medication she was taking.  The psychiatrist agreed with the CI’s mother that much of the CI’s symptomology was the result of childhood trauma, but after the alleged assault the psychiartrist said the CI was “different now.”  BP II d/o was diagnosed, with a rule out diagnosis of BP I d/o and on Axis II borderline personality traits were noted.  The CI was prescribed an anti-anxiety agent and Lithium, a medication for BP d/o.  Following this the 24 February 2003 MH entry indicated the CI re-enlisted to stay an additional year in Korea until March 2004.  Eventually the CI responded to the psychotropic medications.  In a 2 June 2003 note the CI’s commander told the psychiatrist that the CI was a hard worker and was doing “good things in her unit” while on her current psychotropic medications.  However, the Lithium was stopped and replaced with another medication for BP disorder (Depakote) due to concerns over toxicity under active duty conditions and the CI did well on the new medication regime, with some residual symptoms noted at psychiatry visits that included irritability, difficulty sleeping, and being “mildly hypomanic,” without depression symptoms or evidence of psychosis.  On 22 September 2003, 7 months before separation, the Division Psychiatrist wrote a memo to the commander and indicated that the CI was doing well and exhibited “no signs of the disorder.”  He stated there were no plans to refer the CI for MEB at the time and recommended that she be allowed to participate in the Primary Leadership Development Conference (PLDC).  

However, in late August 2003, 8 months before separation, the CI had experienced another personal stressor of an unwanted pregnancy.  Consequently she experienced an exacerbation of MH symptoms and was hospitalized on 25 September 2003, 7 months before separation, with a diagnosis of BP I d/o, manic episode with symptoms of increased irritability and concern that she would not be able to control her urge to physically assault people who aggravated her, though there is no indication in the record that she did physically assault anyone.  On the day of admission, the psychiatrist indicated that 2 different medications had been tried but the CI’s BP d/o symptoms were still “poorly” controlled and recommended an MEB.  As an inpatient, the CI’s medications were adjusted and according to the NARSUM, her symptoms were quickly stabilized and she was medically evacuated for further treatment.  

The 17 October 2003 MEB NARSUM examination, 6 months prior to separation, was the discharge summary of the inpatient psychiatric hospitalization that was continued following redeployment.  When the CI redeployed she had persistent symptoms of irritability and anxiety.  She denied symptoms of depression or psychosis and she was admitted as a psychiatric inpatient.  The history noted the CI’s mother abused illicit drugs when the CI was an infant.  She was sexually abused as a child by her father, an uncle, and an older brother.  She reported she was a social drinker, with occasional binge drinking and that she was intoxicated at the time of the alleged sexual assault and did not “completely remember what actually took place.”  She denied any illicit drug use.  On the 1 October 2003 mental status examination (MSE) on the day of hospital admission (following redeployment), the CI’s mood was “stressed” and her affect was mood congruent.  There was no suicidal ideation (SI), delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The Axis I diagnosis was BP d/o, not otherwise specified.  Axis IV noted stressors as “moderate, alleged sexual assault acquitted, recent elective abortion and routine overseas duty.”  The global assessment of functioning (GAF) was 65, which is in the range of mild impairment on this scale.  The MEB psychiatrist noted that the CI’s first episode of hypomania in November 2002 did not lead to “significant occupational impairment” but that due to the “recurrent nature of her symptoms when under stress” and the unique stresses of military service, an MEB was recommended.  Psychotropic medications started in Korea were continued and medications were added and adjusted until symptoms of mood lability, irritability, sleep disturbance, nightmares, and anxiety were controlled.  After 2 to 3 weeks, the CI was discharged to the Adult Psychiatric Partial Hospitalization Program.  The CI’s discharge medications were Depakote, Zoloft, Seroquel, and Klonopin – BP d/o, antidepressant, antidepressant/sleep medication, and an anti-anxiety agent.  

At the 21 June 2004 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported that during the trial of her alleged sexual assailant, she attempted suicide by an overdose of pills, which was not noted in the contemporaneous STR.  She reported a history of 3 suicide attempts since high school, all by overdose.  The CI was job hunting in restaurants and retail stores but had not yet secured a job.  She reported being compliant with her medications and saw her doctor once a month.  She was able to take care of herself, including such tasks as pay her bills and utilize public transportation without assistance.  The MH examiner noted the CI was adjusting socially but continued to be withdrawn.  There was no evidence of thought or communication difficulties.  Her behavior was appropriate to circumstances.  She was cooperative and able to establish a rapport with the MH examiner.  The MSE was notable only for an “anxious and depressed” mood, with an appropriate, but constricted affect.  There was no active SI, delusional or hallucinatory symptoms, or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The Axis I diagnosis was BP d/o, mixed, most recent episode depressed.  The GAF was 50, which is on the cusp of serious and moderate impairment ranges on this scale (41-50 serious and 51-60 moderate).  The VA examiner indicated that BP illness was a life-long condition and stated that although “remission of symptoms can occur like on today’s examination,” clinical improvement with medications and treatment should not be interpreted as the CI “becoming fully functional.”  He described the CI’s symptoms as daily and moderate to severe in severity and primarily depressive symptoms.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bipolar disorder 10%, coded 9432 (bipolar disorder), citing resolution of symptoms through the use of medications with social and industrial impairment as mild (application of DoD rating criteria).  The VA also initially rated the bipolar disorder 10%, coded 9432 (bipolar disorder), based on the STR.  The VA increased the rating to 70%, based on the C&P examination 2 months after separation, effective 16 April 2004 (the day following separation from active duty).  The panel considered whether the provisions of VASRD §4.129 (Mental disorders due to traumatic stress) were applicable and deliberated this issue at length.  VASRD §4.129 is applicable to a “mental disorder that develops in service as a result of a highly stressful event” that is severe enough to “bring about the veteran’s release from active military service.”  Panel members unanimously agree that sexual assault is “a highly stressful event” for which the application of §4.129 may be appropriate.  However, the panel majority opinion was that §4.129 was not applicable in this case for two interrelated reasons.  First, the sexual assault was alleged.  The alleged assailant was acquitted at court martial of all but a charge of unlawful entry.  The panel majority also weighed the evidence that at the time of the inpatient hospitalization the CI reported she had been intoxicated on the night of the alleged assault and did not “completely remember” what “actually took place.  Therefore, the allegation that a sexual assault was perpetrated appeared to the panel majority to be refutable based on the evidence in record.  Second, following the alleged assault, the CI voluntarily re-enlisted to remain overseas (the location of the alleged assault) for an additional year.  She was undergoing MH treatment but performing her duties well and desired to remain in the military in the aftermath of the October 2002 incident.  There were no plans for an MEB until after the CI experienced an additional personal life stressor in August 2003 (approximately 10 months after the alleged incident), which precipitated a psychiatric hospitalization.  For these reasons the panel majority found insufficient evidence to conclude that a singular “highly stressful event” in October 2002 brought about the development of a MH disorder severe enough to bring about the CI’s release from military service.  Therefore the panel majority concluded that the application of §4.129 was not appropriate in this case.

The panel next considered the §4.130 rating at the time of separation.  The CI had been hospitalized as a psychiatric inpatient approximately 6 months before separation.  The CI was initially hospitalized in Korea, stabilized and medically evacuated.  The hospitalization was continued upon redeployment and the CI was discharged to a partial hospitalization program for close MH supervision, supporting the VA MH examiner’s contention that BP d/o is recognized as a life-long illness.  Prior to separation the CI was able to function well at work, despite her symptoms, punctuated by an episode of inability to perform occupational tasks which supports a 30% rating for “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).”  There were no treatment notes in record after the CI was discharged from the hospital in December 2003 and prior to the date of separation.  At the time of the VA examination, only 2 months after separation, the CI was functioning adequately in routine activities of caring for herself, however, she was receiving regular MH treatment, taking multiple psychotropic medications, and she was not yet employed.  The evidence in record supports the CI’s MH symptoms were recurrent and future exacerbations could be reasonably anticipated.  The panel found that given the limited period of time since the CI’s inpatient hospitalization, there was insufficient evidence to conclude that the BP illness was either well controlled on medications or that the CI was subject to transient symptoms only during periods of significant stress to support the lower 10% rating.  The panel did not find evidence of symptoms that help to discriminate a 50% rating from a 30% rating such as circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; difficulty in establishing and maintaining effective work and social relationship for a higher rating than 30%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the bipolar disorder condition, coded 9432.  

BOARD FINDINGS:  In the matter of the bipolar disorder condition, the panel majority recommends a disability rating of 30%, coded 9432 IAW VASRD §4.130.  The single voter for dissent recommends placement on the Temporary Disability Retired List (TDRL) with a 50% rating followed by a 30% permanent disability retirement.  The single voter for dissent elected not to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  

The panel 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:  

CONDITION	VASRD CODE	PERMANENT RATING	
Bipolar Disorder 	9432	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160810, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170015805, 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 30% 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure