RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201508 SEPARATION DATE: 20050427 BOARD DATE: 20130409 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, SPC/E-4(91W/Medic), medically separated for bipolar disorder, in partial remission, associated with anxiety symptoms similar to those of posttraumatic stress disorder (PTSD). The CI was evacuated from theater for possible PTSD and hospitalized for approximately 11 days in the psychiatric ward of Walter Reed Army Hospital (WRAMC). He did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent S4 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded two Axis I diagnosis: PTSD, chronic, treated and improved; and bipolar I disorder, as medically unacceptable IAW AR 40-501. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB combined the two Axis I diagnoses and adjudicated bipolar disorder, in partial remission, associated with anxiety symptoms similar to those of PTSD as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated with a 10% disability rating. CI CONTENTION: The CI states: “Awarded ten percent evaluation for PTSD (chronic) and bipolar disorder (manic/moderate). Both incurring while deployed in OIF (Samaria 1st/4th CAV).” [sic] SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service Admin PEB – Dated 20050301 VA – All Effective Date 20050428 Condition Code Rating Condition Code Rating Exam Bipolar Disorder, in partial remission, associated with anxiety symptoms similar to those of PTSD 9432 10% Bipolar Disorder w/PTSD 9432-9411 10%* STRs .No Additional MEB/PEB Entries. 0% X 0 / Not Service-Connected x 0 STRs Combined: 10% Combined: 10% *Increased to 50%, effective 20080915, increasing combined to 50%, see VARD of 20081210. ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA), but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. Bipolar Disorder. The MEB narrative summary (NARSUM), dictated 13 October 2004, noted that the CI started having difficulty during his Operation Iraqi Freedom (OIF) deployment. The CI reported that he experienced several episodes of shortness of breath (SOB), palpitations, tremulousness, diaphoresis, and lightheadedness, starting in March 2004, following a mass casualty involving Iraqi civilians. He first came to the attention of his command when he showed up for duty wearing a soiled uniform that he had been wearing the day before while caring for a soldier with a head injury. The CI was instructed to take a 3 day rest period. However, on his first day, the CI learned of the death of two of his friends. They had been on a mission he had not been able to attend. He then had another episode of anxiety symptoms and was evaluated by mental health. Soon afterwards, he was sent to Landstuhl for admission to the psychiatric unit. The CI was reportedly tangential and displaying symptoms felt to be consistent with an acute manic episode prior to his evacuation to Landstuhl Regional Medical Center although the air evacuation card noted that he was showing signs of PTSD. During his admission, he was reported as having elated mood, racing thoughts, difficulty concentrating, pressured speech, mild agitation, and pacing. He was treated with Risperdal which resulted in a significant reduction of his symptoms. He reported having difficulty sleeping (about two hours/night) during June and July of 2004. He was smoking up to three packs of cigarettes a day. The CI endorsed recurrent nightmares, flashbacks of the events experienced in March 2004, increased startle response, avoidance of certain situations, and depressed mood. He also experienced anhedonia, feelings of guilt, and decreased appetite. The CI was admitted to WRAMC on 6 September 2004, following his evacuation from Iraq via Landstuhl. He was given a trial off the Risperdal to further assess the diagnosis of PTSD. This resulted in increased anxiety, irritability, and tremulousness which responded positively to treatment with Clonidine. The CI was given a weekend pass which resulted in increased irritability and anxiousness. The CI came close to several physical confrontations on that pass. He remained in the hospital. He then failed a discharge attempt on 13 September 2004. The CI had mood lability (excessive crying), paranoia, agitation, and restlessness. He remained in the hospital and was started on Lithium which was effective. At the time of discharge, the CI was calm and cooperative, with occasion irritability and angry outbursts. His thoughts were linear, logical, and goal directed. There was no evidence of delusions, hallucinations, homicidal ideation, or suicidal ideation. He reported improvement in his mood. He had normal speech, full range of emotion, and appropriate behavior. His judgment and insight was fair. His cognition was intact. The CI was discharged on 16 September 2004 with a diagnosis of PTSD and bipolar disorder. He was felt to be competent to handle all financial affairs and to participate in MEB proceedings. The CI did not show for the mental health Compensation and Pension (C&P) examination in August 2005. The VA Rating Decision on 15 September 2005, the closest to separation, was based on the service and VA treatment records and awarded the CI a 10% rating. It noted that he had failed to show up for his initial examination, but that the VA treatment records indicated that he had stopped taking his medication, and was working in construction 50-60 hours per week. At the time, the CI denied having any symptoms of mania, hypomania, depression, or panic attacks. He reported that he had occasional generalized anxiety, increased irritability, and occasional feelings of depression, some of which were controlled by the use of cannabis. The CI was given an offer to schedule an examination should he want to appeal the decision, but it appears that there was not a C&P examination performed until 15 November 2008, almost 3 years following separation. This examination had little probative value regarding the decision made by the PEB; however, it recorded some record of the social and occupation functioning of the CI following his discharge from military service. The CI reported that he had had several jobs following his discharge from the military and met his girlfriend in December 2005. The CI reported that he worked in construction, but was unable to hold any job for longer than 6 months and would often quit out of frustration with coworkers. He also reported that he was fired a few times for not showing up or not getting along with coworkers. The CI reported that he lived with and supported his girlfriend and her daughter with the income from his various jobs. His girlfriend was a stay at home mom. He reported the relationship was rocky due to mood swings and alcohol use and ended in July 2008. The Board directs attention to its rating recommendation based on the above evidence. The Board first considered if VASRD §4.129 was applicable. The PEB rating, as described above, was derived from DoDI 1332.39 and preceded the promulgation of the National Defense Authorization Act (NDAA) 2008 mandate for DoD adherence to Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.129. While the primary diagnosis was bipolar disorder, which has a strong genetic component to it, the evidence is clear that this condition had its onset shortly after exposure to a series of traumatic events while in a combat zone. IAW DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all Board cases), the Board is obligated to recommend a minimum 50% mental disorder as a result of a highly stressful event rating for a retroactive 6-month period on the Temporary Disability Retired List (TDRL) for those mental health cases in which the condition is secondary to a traumatic event. All members agreed that the §4.130 criteria for a TDRL rating higher than 50% at the time of placement on TDRL were not met. After due deliberation and consideration of all of the evidence, and mindful of the VASRD §4.3 (reasonable doubt), the Board unanimously recommends a 6 month TDRL rating of 50% for the bipolar with anxiety symptoms similar to PTSD condition. The Board then considered the rating at the 6 month point. The Board noted that the PEB and VA both rated the condition at 10% based on the service treatment records (STRs) and that the VA, which rated the condition near the 6 month point after separation, also had access to VA records for treatment after separation. The PEB adjudged the Bipolar I Disorder, in partial remission, associated with anxiety symptoms similar to those of PTSD condition to be unfitting and used the VASRD diagnostic code 9432. The VA rated the condition using combined codes 9432-9411 for bipolar disorder with PTSD. The Board noted the considerable overlap of symptoms and that the same symptoms cannot be used to support multiple conditions IAW VASRD §4.14 (avoidance of pyramiding). The Board then directed its attention to its permanent rating recommendation following the 6 month TDRL. All members agreed that the VASRD §4.130 threshold for a 50% rating was not met. The deliberation settled on arguments for a 10% vs. 30% permanent rating. The 10% rating description in VASRD §4.130 (occupational and social impairment due to mild or transient symptoms which decrease work efficiency, during periods of significant stress) was clearly a better fit than the 30% description (occupational and social impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks). The CI was not under psychiatric care and was requiring no medications. While the CI may have had symptoms during that period of time, he was working and provided all the support for his girlfriend and her daughter. After due deliberation and consideration of all the evidence, and mindful of VASRD §4.3 (Reasonable doubt), the Board unanimously recommends a permanent rating of 10% for the PTSD condition. 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. As discussed above, PEB reliance on DoDI 1332.39 for rating for the bipolar condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the bipolar condition the Board unanimously recommends an initial TDRL rating of 50% and a permanent rating of 10% at 6 months, coded 9432, IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows: A 50% rating for the period of TDRL directed by the service (IAW §4.129 and DoD direction); followed by permanent disability separation with severance pay by reason of physical disability, with a final 10% rating as indicated above. UNFITTING CONDITION VASRD CODE RATING TDRL PERMANENT Bipolar I Disorder, in partial remission, associated with anxiety symptoms similar to those of PTSD 9432 50% 10% COMBINED 50% 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120413, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Director of Operations Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxx, AR20130009520 (PD201201508) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to constructively place the individual on the Temporary Disability Retired List (TDRL) at 50% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%. 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 as follows: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was separated with a permanent combined rating of 10% effective the day following the six month TDRL period with no recharacterization of the individual’s separation. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will provide 50% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service. 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: Encl xxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards) SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxx, AR20130009520 (PD201201508) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to constructively place the individual on the Temporary Disability Retired List (TDRL) at 50% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period no recharacterization of the individual’s separation or modification of the permanent disability rating of 10%. 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 as follows: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was separated with a permanent combined rating of 10% effective the day following the six month TDRL period with no recharacterization of the individual’s separation. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will provide 50% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and adjusting severance pay as necessary to account for the additional TDRL time in service. 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: Encl xxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)