RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02224
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070413

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E-4, Armor Crewman, medically separated for “low back pain” and “bipolar II disorder,” rated 10% and 10%, respectively, with a combined disability rating of 20%. 

CI CONTENTION:  “Review all conditions.” 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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20070207	VARD - 20070912	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	DJD Lumbosacral Spine	5237-5003	10%	STR	
Bipolar II Disorder	9432	10%	Bipolar Disorder to Include Anxiety	9432	NSC	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back pain was the result of an IED injury in Iraq in July 2004 and falling down a bluff in July 2005.  MRI of August 2005 noted L5-S1 central disk protrusion without evident nerve root compression.  Physical therapy, rest, activity modification, and non-narcotic medication were not beneficial.  Orthopedics physical examination (possibly in March 2006) noted tenderness at T6-T8 and L5-S1 levels.

The 27 September 2006 MEB NARSUM orthopedics consultation, 7 months prior to separation, noted complaints of pain localized mostly in his lower sacrum, radiating to his left buttock and down his left leg to his foot.  He also reported numbness in the stocking /glove distribution in his left leg, but this had improved somewhat.  He occasionally had left leg pain but this was only 5% of his pain with the other 95% coming from his low back.  Narcotic medication helped to relieve the pain.  A medication profile showed recurring prescriptions for narcotic medications from September 2005 to August 2006.  He reported increased urine frequency and occasional incontinence.  X-rays showed mild degeneration of L5-S1.  Physical examination showed an antalgic gait and an exaggerated limp with pain out of proportion to the examination.  He flexed to about 20 degrees before his pain was disabling and he had negative bilateral straight leg raises.  Strength was 5/5 in all muscle groups on the right and 4/5 on the left.  Reflexes were 2+ bilaterally.  The examiner noted the condition was stable.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP 10%, coded 5237 (lumbosacral strain), citing tenderness and painful motion.  The VA also rated the low back pain 10%, analogously coded 5237-5003 (degenerative arthritis) based on the STR, citing painful or limited motion of a major joint or group of minor joints.  The panel noted the absence of ROM measurements.  However, the NARSUM addendum noted tenderness in the lumbar spine, thereby meeting criteria for 10% disability rating.  The addendum noted the CI flexed to 20 degrees due to pain but also noted the pain was disproportionate to findings.  There was no evidence of muscle spasms or abnormal contour to meet criteria for a higher 20% rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.  

Bipolar II Disorder.  According to the STR and MEB NARSUM, the CI was first seen for sleep problems in mental health with difficulty initiating and sustaining sleep in September of 2003, just prior to a deployment to Iraq.  He had no prior history of psychiatric illness.  He also had symptoms of anxiety and slight racing thoughts thinking about deploying to Iraq at the time.  Sleep problems persisted during the November 2003 to October 2004 deployment, and there were increased family problems. The CI received a Combat Action Badge (CAB).  Upon his return he discovered his wife had taken his money and been unfaithful.  He began to have increased difficulty with anger, irritability, and experienced poor emotional stability going from feeling fine to upset, tearful and depressed through the day.  

Psychological testing in May 2005 was generally unremarkable and consistent with adjustment disorder.  He separated from his wife and self-referred to Behavioral Health in July 2005 for increased irritability, anger outbursts and sleep problems.  He also developed symptoms of hyper sexuality, impulsive and reckless driving, increased racing thoughts, impulsive spending, and unstable relationships.  The major focus of treatment was sleep problems, post-deployment stress-related issues, and alcohol abuse.  He received anti-depression, anti-nightmare medication and a sleep aid.  

He was admitted to inpatient psychiatry in October 2005 due to a suicidal gesture and bizarre behavior.  He reportedly took an overdose of prescription medications and had a motor vehicle accident.  He reported mood lability and mood cycling, was treated and then discharged with a diagnosis of mood disorder not otherwise specified (NOS).  He said he was ready to return to duty.  He followed up with psychiatry on an outpatient basis with symptoms improved but he had increased symptoms of sleep deprivation and stress.  At the February 2006 clinic visit, the CI reported feeling better overall.  He reported he was more irritable than depressed and sleep was variable.  Symptoms were worse with stress in the unit.  

The 15 May 2006 MEB NARSUM addendum examination, 11 months prior to separation, noted complaints of continued problems at work though he felt things were slightly improved.  With increased stress or sleep deprivation he had increased problems with impulse control, anger/rage outbursts, and mood instability.  His work assignment was moved and he was no longer as stressed.  He was not allowed to work nights.  He had monthly psychiatric visits and periodically had increased difficulty and was seen more frequently.  He was taking a mood stabilizer medication and a sleep aide.  Mental status examination was unremarkable.  A diagnosis of bipolar disorder II was rendered with a Global Assessment of Functioning (GAF) score of 60 (moderate impairment bordering on mild symptoms,). 

A psychiatric NARSUM addendum dated 31 January 2007 noted the CI was currently stable although he had re-entered care for bipolar disorder, chronic sleep disorder and substance abuse that was in remission.  He had recently restarted an antidepressant for low mood and lack of energy and interests.  He continued to have difficulty with impulse control, mood lability, and poor performance at work.  There was no VA examination proximate to separation in evidence.  A 30 May 2008 VA Compensation and Pension examination, 13 months after separation, noted the CI had been unemployed since discharge.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bipolar II disorder 10%, coded 9432 (bipolar disorder), citing mild social and industrial impairment with likely application of AR 635-40.  The VA also rated the bipolar disorder 10%, coded 9432 (bipolar disorder), based on the STR, citing 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.  A July 2008 VA Rating Decision changed the rating to 50%, citing the DD Form 214, which showed the CI to be a combat veteran with stressors therefore considered verified. A diagnosis of post-traumatic stress disorder was rendered due to the May 2008 VA examination.  

The panel considered the provisions of VASRD §4.129 (mental disorders due to traumatic stress), and agreed there was no evidence of a traumatic event or stressor causing the unfitting mental health condition, and that application of VASRD §4.129 was not appropriate in this case.  The CI was exposed to combat, however, the panel noted that psychiatric symptoms presented prior to and in anticipation of deployment.  The STR noted symptoms worsened upon redeployment in accordance with marital conflict/stressors, resulting in separation and divorce.  The STR showed primary stressors were sleep deprivation, marital issues, chronic back pain, and work/financial stress, and not deployment-related stressors.  The panel then considered if there was evidence for a §4.130 rating higher than the 10% assigned by the PEB.  

The §4.130 criteria for a 10% rating is “symptoms controlled by continuous medication,” for a 30% rating is “occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks,” while criteria for a 50% rating requires “occupational and social impairment with reduced reliability and productivity.”  The NARSUM psychiatry addendum noted mood symptoms were slightly improved but increased with stress and sleep deprivation, despite a high dose mood-stabilizing agent (Depakote).  The January psychiatric addendum noted symptoms were stable but the CI had multiple medication changes, including the recent addition of an antidepressant.  He continued to have mood instability and sleep problems.  After some discussion, the panel majority concluded the CI most closely met the criteria for 30% disability.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 30% for the bipolar condition, coded 9432.  

BOARD FINDINGS:  In the matter of the low back condition and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  In the matter of the bipolar II disorder, the panel majority recommends a disability rating of 30%, coded 9432 IAW VASRD §4.130.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5237	10%	
Bipolar II Disorder	9432	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190004128, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

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 40% 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), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557.
A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure