RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00575
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20040618

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Single Channel Radio Operator, medically separated from the Temporary Disability Retired List (TDRL) for “bipolar I disorder” with a disability rating of 10%.

CI CONTENTION:  The CI made no specific 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 - 20040528	VARD - 20020820	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bipolar I Disorder	9432	10%	Bipolar Disorder	9432	70%	20020801	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Bipolar I Disorder.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI was diagnosed with bipolar condition in October 2001 after a command directed mental health evaluation due to conflict at work.  He was hospitalized and begun on medications.  Previously he had been seen and treated for anxiety and marital problems.  It was noted that he had a brother with bipolar disorder as well.  The CI was thought to be stabilized on medications and then placed on TDRL status effective 28 June 2002.

One month later, and almost 2 years prior to TDRL removal, the CI was seen for a VA Compensation and Pension (C&P) mental health evaluation.  The CI reported that he was caring for his two children while his wife worked as a nurse’s aide.  He was unemployable and was determined to be incompetent to handle his funds.

There were no further records in evidence until the TDRL re-evaluation which was accomplished on 8 May 2004, 1 month prior to TDRL removal.  The CI continued to care for his children while his wife worked.  He had not been employed or attended school since TDRL placement.  The record was silent as to whether this was due to his mental health condition or childcare responsibilities.  The CI attended a VA mental health day group for treatment, but stopped to provide childcare.  He continued to see a VA psychiatrist once every 3 months for medication management.  Current symptoms included occasional symptoms of panic at least once a month, and irritability and agitation when not on medications for a day or two.  He denied current neurovegetative signs (weight loss, anorexia or insomnia) of depression and manic symptoms.  During the mental status examination the CI’s speech was normal, thoughts were linear, logical and goal directed.  Insight and judgement were intact.  He denied hallucinations, and suicide or homicide ideations.  Mood was okay, congruent and full with occasional inappropriate laughter.  There were no emergency room visits documented.   The examiner rendered an Axis I bipolar I disorder and Global Assessment of Functioning (GAF) 60 (moderate symptoms) with impairment for military duty as marked, and impairment for social/industrial adaptation as severe.  The examiner opined the CI required continued outpatient psychiatric treatment and recommended the CI’s removal from TDRL status and permanent retirement.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bipolar disorder condition 10%, coded 9432 (bipolar disorder), citing the CI appeared to have stabilized and was in partial remission.  The VA rated the bipolar disorder condition 70%, coded 9432, based on the C&P examination 23 months before TDRL removal, citing significant impairment.  There was no re-evaluation accomplished proximate to TDRL removal.

Panel members first agreed that there was no specific, highly stressful service-related event to invoke VASRD §4.129 for a mental disorder due to traumatic stress.  Therefore, the panel only considered a single mental health rating recommendation IAW VASRD §4.130 at the time of TDRL removal.  The criteria for a 10% rating are: "Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.”  Those for a higher 30% rating are “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).”

The panel found that the TDRL evaluation mental status examination was essentially normal; showing the CI’s mood was okay and affect was mood congruent and full, with occasional inappropriate laughter.  However the panel majority stressed that the examiner still rendered an Axis I:  bipolar I disorder diagnosis and GAF of 60 moderate symptoms with impairment of military duty as marked, and impairment for social/industrial adaptation as severe.  The examiner also opined that the CI required continued (initiated during TDRL placement) outpatient psychiatric treatment and recommended the CI’s removal from TDRL status and permanent retirement (requiring at least a 30% rating).  The panel majority opined that the requirement for continued outpatient psychiatric treatment was indicative of mental health systems not controlled by continuous medication which overcomes the 10% rating threshold.  Although the CI provided childcare, the panel majority also stressed that the CI remained unemployed and did not attend school after being placed into TDRL placement (validated by subsequent C&P examinations).  The panel majority conceded that the CI's mental health condition may have been in partial remission, as stated by the PEB, at TDLR removal; however, the panel majority determined that the CI's mental health impairment was greater than the 10% impairment at TDRL removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority 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 submitted the appended 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 I Disorder	9432	30%	

Minority Opinion
As the minority voter on this panel, I respectfully request the Designated Decision Authority (DDA) carefully review this CI’s record to establish the fact that at the time of his medical separation from the US Army, the evidence did not support a majority conclusion that the CI was impaired at a level greater than the 10% level adjudicated by the PEB IAW §4.130 of the VASRD. 

The panel majority determined that a 30% level of disability was present at the time of medical separation.  This was based on 3 assumptions.  First, that the CI was not employed or attending school due, at least in part, to the mental health condition.  Second, that the statement by the TDRL examiner that the CI required continued outpatient psychiatric treatment indicated that the CI was not well controlled by continuous medications.  And third, that the final assessment of the examiner for the CI, "Impairment for Military Duty: Marked and Impairment for Social/Industrial Adaptation: Severe," supported an impairment greater than the 10% level.  The minority voter disagreed with all three of these positions.

First, the CI was clearly documented to be the caregiver for his two children, aged 3 and 6 at that time, while his wife worked during the day.  There was no evidence to indicate that he required assistance for this at the time of separation.  The NARSUM documented that the CI was not employed nor attending school; however, the minority voter opined that this is not unusual when caring for two small children.  The NARSUM did not record why he was unemployed and did not attend school.  But more to the point, it did not attribute this to the mental health condition.  The NARSUM is silent in that regard.  Therefore, to attribute either the unemployment or non-attendance of school to the underlying mental health condition is speculative and not supported by the evidence.

Second, the majority concluded that the statement “He requires continued outpatient psychiatric treatment” as indicative of inadequate control from medications.  The minority voter, also the medical officer, strongly disagreed with this assumption.  The CI reported that he was essentially asymptomatic as long as he took his medications.  In addition, the mere fact that the CI was being seen for medication management is not evidence that the symptoms were not well controlled with medications; rather, this is standard of care.  Medications should not be refilled indefinitely without periodic visits with the provider of care.  Moreover, there is no evidence that the CI was seen in outpatient therapy other than for medication management.  Finally, being seen for medication refills, even if quarterly, is sufficient without other outpatient visits to satisfy the recommendation by the NARSUM examiner that the CI receive continued psychiatric treatment.  It was also noted by the panel majority that the medications were refilled by a psychiatrist rather than a primary care physician.  While it is true that those patients with more severe mental health issues are typically seen by a psychiatrist rather than a primary care physician, being seen by a psychiatrist does not necessarily imply that there is a higher level of impairment than in someone seen in primary care.  The majority asserted that since the medications were managed by a psychiatrist, this implied that the condition was more serious than if the medications had been managed by a primary care physician.  The minority voter did not agree with this conclusion and noted that it was quite plausible that this simply showed continuity of care, again a desired practice. 

Third, the impairment recorded (marked and severe) was not consistent with the global assessment of function (GAF) which was at the upper limit of moderate.  Moreover, the impairment appeared to be a copy forward from the prior assessment with minimal modification even though the GAF improved from 45 (serious symptoms or impairment) at TDRL placement to 60 at TDRL removal.  The minority voter also observed that the CI reported that he was essentially asymptomatic unless he missed his medications for 1-2 days.  Accordingly, the probative value of this assessment impairment is questionable and reduced.

The evidence showed that the CI was functioning well at separation with minimal symptoms and was the caregiver for 2 minor children.  There was no evidence that he required assistance with this at TDRL removal.  There is no evidence that the mental health condition was the reason he did not work or attend school.  There were no recent hospitalizations or emergency room visits nor was there evidence for ongoing outpatient treatment other than for medication management.  The minority voter did not find evidence to support a rating higher than the 10% adjudicated by the PEB and recommended that the PEB rating stand.

AR20170016265, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR)
reviewed your application and recommended that your percent of disability be increased
to 30%. I have reviewed the Board’s record of proceedings, majority recommendation,
and minority opinion (copy enclosed). I regret to inform you that I reject the Board’s
majority recommendation and accept the Board’s minority opinion
as accurate that your final Physical Evaluation Board disability rating remains
unchanged. There is insufficient justification to support the Board’s recommendation in
accordance with Army and Department of Defense regulations.
This decision is final. Recourse within the Department of Defense or the
Department of the Army is exhausted; however, you have the option to seek relief by
filing suit in a court of appropriate jurisdiction.
A copy of this decision has also been provided to the counsel you listed on your
application.