RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201075 SEPARATION DATE: 20060622 BOARD DATE: 20130313 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92A10/Automated Logistical Specialist), medically separated for bipolar disorder. The CI’s condition could not be adequately rehabilitated and did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). Posttraumatic stress disorder (PTSD) and alcoholism conditions, identified in the rating chart below, were also identified and forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the bipolar disorder condition as unfitting, rated 10%. The remaining condition(s) were determined to be not unfitting. The CI made no appeals and was medically separated with a 10% disability rating. CI CONTENTION: “It is requested that my records be retroactively amended to reflect that on my date of separation, I was placed on the Temporary Disability Retirement List (TDRL) for 6 months, with a rating of 50% for Bipolar Disorder and PTSD in compliance with 38 CFR 4.129 and that my records also be retroactively amended to show that, following 6 months on TDRL I was placed on Permanent Disability Retirement (PDR) with a Bipolar and PTSD rating equal to my first VA Bipolar and PTSD rating that was the result of a medical exam. I was separated from active duty with a rating of 10% and was not initially placed on TDRL, and therefore did not receive the requisite follow-up medical exam, It is requested that the initial (first) VA evaluations and ratings be used as the best replacement for that evaluation. Additionally, the narrative evaluation for the MEB clearly cites Bipolar disorder and PTSD (both as Axis I) as primary causes for disability separation. Both MEB records and VA findings indicate that neither Bipolar disorder or PTSD existed prior to military service and that the physician's diagnostic impression was that BOTH occurred during the line of duty and are service connected. The MEB diagnostic impression states that the degree of impairment for further military service and occupational/social impairment are severe. Original VA findings determined that both Bipolar disorder and Post Traumatic Stress Disorder were related to military service and granted service connection at the 100% rating. They do not separate the two. They also indicate the impairments are severe. Ratings for degenerative joint disease, tinnitus, and hypertension were also awarded. Current VA rating continues at present time to be 100%. Additionally, I dispute discharge orders dated 07 June 2006 which does not indicate LOD. Years of service is also inaccurate at 7 years, 3 months, and 1 day. It does not reflect years of service in the Army Reserve dating back to 28 May 1993. Total years should reflect 13 years of service. Thank you for your time and attention to this matter. You are appreciated.” 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 conditions “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The conditions bipolar disorder and PTSD, as requested for consideration, meet the criteria prescribed in DoDI 6040.44 for Board purview and are addressed below. The remaining conditions rated by the VA at separation and listed on the DD Form 294 are not within the Board’s purview. 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 IPEB – Dated 20060418 VA (# Mos. Pre/Post-Separation) – All Effective Date 20060623 Condition Code Rating Condition Code Rating Exam Bipolar Disorder 9432 10% PTSD, Bipolar Disorder w/ Depression, Anxiety, and Alcohol/Substance Abuse (competent) 9411 100% 20070921 Posttraumatic Disorder Not Unfitting Alcoholism Not Unfitting .No Additional MEB/PEB Entries. Degenerative Changes Lumbar Spine 5242 10% 20070821 Tinnitus 6260 10% 20071204 Hypertension 7101 10% 20071204 Not Service-Connected x 11 20070821 Combined: 10% Combined: 100% ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the 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 With Associated Post Traumatic Stress Disorder Condition. The Board noted that PTSD was an associated diagnosis that the PEB determined to be not separately unfitting. Service treatment records (STR) confirm that the predominant mental health condition was the bipolar disorder and the MEB narrative summary (NARSUM) in rendering a PTSD diagnosis, noted CI report of a traumatic stressor while deployed and that “at times he has experienced symptoms consistent with PTSD.” In accordance with DoDI 6040.44 and DoD guidance the Board is obligated to apply current VASRD §4.129 to Board cases with PTSD where appropriate, and recommend a minimum 50% PTSD rating for a retroactive 6 month period on the Temporary Disability Retired List (TDRL). The Board must then determine the most appropriate fit with VASRD 4.130 criteria at 6 months for its permanent rating recommendation. Regardless of final PEB diagnosis, §4.129 does not specify a diagnosis of PTSD, rather it states “mental disorder due to a highly stressful event,” and its application is not restricted to PTSD. The Board also noted that relative contribution to impairment from bipolar disorder and PTSD could not be separated, therefore the Board considered the mental health conditions together in its deliberations. According to the MEB psychiatry NARSUM dated 13 March 2006, the CI reported symptoms consistent with bipolar disorder for the prior 5 years predating his deployment to Iraq by 2 years including depressive periods interspersed with distinct periods of increased energy with irritability, grandiosity, decreased need for sleep, increased involvement in projects, impulsive purchases, increased talkativeness, increased creativity, decreased concentration, and racing thoughts occurring two to three times per year. A VA treatment record from 4 October 2005 noted the CI reported periods of depression and anxiety since he was age 12 or 13. A VA treatment record from 5 October 2005 noted CI report of difficulty concentrating on a single task which previously caused significant difficulty in elementary and high school. A VA treatment record from 18 June 2007 recorded report of a long history of anger mismanagement problems and numerous fights as child and while in Army. The CI entered active duty in August 1999 at age 32 and served as an automated logistical technician. The first STR entry relating to psychological symptoms was 31 March 2003 when the CI sought care for feeling tense and anxious related to work stress. At the time of the pre-deployment health assessment, 20 August 2003, the CI indicated he had not sought care or counseling for mental health concerns in the preceding year. The CI deployed to Iraq at the end of August 2003 arriving in theater 11 September 2003. According to the post deployment health assessment completed by the CI on 22 January 2004, he was assigned to Mosul and Qayyarah Air Base (near Mosul). During the deployment his health stayed the same, and he had no sick call visits. He checked “no” in response to question 7 regarding seeing anyone wounded, killed or dead during the deployment (coalition enemy or civilian). He checked “no” in response to question 8 regarding being in direct combat. The CI checked “yes” to question 9, feeling in great danger while deployed. The CI checked “no” to question 17 regarding whether he was in or entered or closely inspected any destroyed military vehicles. He checked “yes” to question 11 for experiencing little interest and feeling down, and “no” to thoughts of self harm. The CI checked “no” to question 12 regarding whether he had any experience that was so frightening, horrible, or upsetting, that in the prior month he had had nightmares, unwanted thoughts about it, avoidance of reminders, was hypervigilant, experienced an exaggerated startle response, felt numb or felt detached from others, activities, or surroundings. He checked “no” to the question regarding concerns about losing control. He checked “unsure” to the question regarding concerns about having serious conflicts with spouse family or friends. Subsequent treatment records recorded the CI’s wife asked for a divorce while he was deployed. The CI returned from deployment in February 2004. A clinic encounter on 21 July 2004 noted the CI was still depressed related to the break up with his spouse and the CI was referred to the mental health clinic. No related records are available but the MEB NARSUM indicates he was treated with medications. The next STR entry is nearly a year later on 21 March 2005 which states the CI was undergoing separation and divorce from his wife but was “Doing well on meds…Resolving depression.” The CI had been in marital counseling from January to July2005 (according to later VA records). A clinic encounter on 8 July 2005 noted use of an antidepressant medication without mention of complaint of depression or psychological symptoms. In the fall of 2005, the CI sought care for alcohol abuse and entered into a VA alcohol rehabilitation program at the end of September 2005. Increased alcohol use was related to marital discord and deployment. A long history of alcohol abuse was noted in VA treatment records and the longest period of sobriety was while the CI was at his first duty station in approximately 2002. Diagnoses of alcohol dependence and bipolar disorder were rendered. Symptoms suggestive of PTSD were noted and the CI reported experiencing combat while deployed without any detail. The commander’s letter dated 6 February 2006 reported good duty performance since the CI returned from alcohol rehabilitation treatment, and noted his supervisors recommended retention if possible. According to the MEB NARSUM, the CI was hospitalized for 3 days in February 2006 (25-28 February) due to worsening mood control with mixed depressive and manic symptoms with racing thoughts. The MEB psychiatry NARSUM dated 13 March 2006 recorded improved symptoms but with continued problems with anxiety, irritability, and energy bursts. The CI noted some obsessive compulsive behaviors (“some difficulties with the inability to see anything get dirty, for instance, before preparing a meal, he will clean his kitchen or when pulling out his tool box, if it is in disarray, he feels very anxious unless it is arranged He has noted this has been going on for a few months”). On mental status examination (MSE), the CI was well groomed, cooperative, and conversant with normal speech (normal rate, rhythm and volume). Mood was “better” with congruent affect. Thought processes were normal (linear, logical and goal directed), without evidence of hallucinations, delusions, paranoid thoughts, or suicidal ideation. Insight and judgment were considered good and there were no cognitive deficits evident. The MEB NARSUM recorded a diagnosis of bipolar The Board considered whether VASRD §4.129, mental disorders due to traumatic stress, was applicable. This paragraph states “When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted.” While examiners may have readily accepted an account of a stressor given in the setting of an evaluation, the actual existence of a stressor is a factual determination that must be based on a review of the entire record. Clinicians routinely accept and report statements of history given by patients, ordinarily without efforts at independent verification, and with scant ability by the examiner to objectively confirm events. Thus the clinician is in the role of a conduit of information that does not involve the application of actual medical expertise. Unless the clinician was present at that time, he or she cannot assume the role of witness to past events advanced as stressors, or validate symptoms and severity. The Board noted that the stresses of deployment to a combat zone, although considerable under the best of circumstances, do not automatically equate to the §4.129 standard of “a highly stressful event” or to Criterion A stressors for PTSD – a typical mental disorder for which the provisions of §4.129 would apply. The MEB NARSUM recorded “He states that while he was deployed, he experienced mortar fire, witnessed dead Iraqis and has noted some guilt about acting on anger towards Iraqis while deployed there. While he was deployed, his wife asked him for a divorce which was very upsetting to him.” The Board considered the post deployment health assessment form completed by the CI detailed above which did not corroborate this history related 2 years later. Treatment records documented problems with symptoms of bipolar disorder and alcohol abuse predating his deployment to Iraq. The Board also noted worsening of symptoms after return from Iraq but also noted the predominant stressor was the ongoing marital discord leading to divorce and separation from his child. The Board concluded that the application of §4.129 was not appropriate or warranted in this case. The Board next considered its recommendation for a rating for the unfitting mental condition based on the most appropriate fit with VASRD §4.130 criteria at separation. All members agreed that the §4.130 threshold for a 70% rating (“occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood”) was not supported by the evidence and that the criteria for a 10% rating were exceeded. The deliberation then settled on arguments for a 30% vs. a 50% permanent rating recommendation. With regard to a 30% evaluation, “occupational and social impairment with reduced reliability and productivity,” reduced reliability and productivity could be surmised from some of the documented symptoms at the time of the NARSUM examination and the hospital discharge summary from June 2006 including the CI’s disturbance of mood, irritability and anger. The potential confounder of the increased transient significant stresses involved with imminent separation from the military following the PEB, and his divorce were considered. The Board also noted the commander’s letter indicating satisfactory duty performance when not using alcohol and taking his medications. The Board noted the absence of other symptoms that would otherwise support a 50% evaluation such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of memory; impaired judgment; or impaired abstract thinking. The Board noted the recurrent symptoms in November 2006 associated with cessation of medications and subsequent increased problems with substance abuse and bipolar disorder following the death of his girlfriend. The Board noted the VA 100% rating was based on an examination over a year after separation when worsening of symptoms were related to the death of the CI’s girlfriend, and recurrent substance abuse. After due deliberation, considering the totality of the evidence, the Board concluded that the CI’s mental condition at the time of separation more nearly approximated the 30% evaluation for occupational and social impairment with reduced reliability and productivity. 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. In the matter of the bipolar disorder with PTSD condition the Board unanimously recommends that application of VASRD 4.129 is not appropriate. In the matter of the bipolar disorder associated with PTSD condition, the Board unanimously recommends a disability rating of 30% coded 9432 IAW VASRD §4.130. 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Bipolar Disorder Associated with Posttraumatic Stress Disorder 9432 30% COMBINED 30% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120621, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxx, AR20130007735 (PD201201075) 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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay. 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: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay. d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 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)