RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: coast guard

CASE NUMBER: PD1100638 SEPARATION DATE: 20090813

BOARD DATE: 20120224

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SK2/E-5 (Storekeeper) medically separated for bipolar disorder which began in 2007. He responded well to treatment, but the diagnosis and treatment rendered him medically disqualified to perform within his specialty rating and he underwent a Medical Evaluation Board (MEB). Mood disorder, bipolar II or cyclothymia, was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable. No other conditions appeared on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) file will be discussed below. The PEB adjudicated the bipolar disorder condition as unfitting, rated 10% IAW the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI did not appeal, and was then medically separated with a 10% disability rating.

CI CONTENTION: The CI states: “While it was decided that my disability percentage rating was only 10%, it was also noted that I was completely unfit for military service and hence, discharged. Since being discharged I have been unemployable and have lost my marriage due to my disability. If I am unfit for service and unemployable, I should at the very least, be retired.” He additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that his service-incurred condition has had on his current earning ability and quality of life. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA). The Board further notes that the presence of a diagnosis, in and of itself, is not sufficient to render a condition unfitting and ratable. 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 service member's career, and then only to the degree of severity present at the time of final disposition. However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to periodically re-evaluate Veterans for the purpose of adjusting the disability rating should the degree of impairment vary over time.

Bipolar Disorder Condition. The Board noted that since the only stressors associated with the bipolar condition were those related to everyday social and work situations (no “highly stressful event” for which provisions of §4.129 would apply), the rating recommendation will be premised on the psychiatric acuity at the time of separation. Although the CI had a pre-service history of untreated mood problems that had waxed and waned for much of his life, he presented for care of worsening symptoms in 2007. He reported periods of depressed mood, decreased motivation and appetite, and increased sleep. These periods would alternate with periods of feeling very good, extreme talkativeness and diminished need for sleep. Bipolar disorder was subsequently diagnosed in January 2008. Treatment with two psychotropic medications resulted in improved and stabilized symptoms, but despite the well-controlled condition, the diagnosis and medications were considered disqualifying for further service. The CI’s symptoms at the time of the MEB (13 May 2008, 15 months before separation) could best be described as mild. The narrative summary (NARSUM) examination was not performed by a psychiatrist and lacked details except to note that his mood had improved and stabilized, and that the psychiatric examination was “normal.” An outpatient note at the time of the MEB reported that he was “doing fine” and a psychiatrist reported his affect was euthymic. The commander’s endorsement, which strongly supported retaining the CI for continued service due to his outstanding performance, described his medical condition as “transparent without adverse impact on the unit whatsoever.” Several months after the MEB, the CI experienced a temporary worsening of symptoms due to sub-therapeutic medication levels (January 2009). In April 2009 a third medication (lithium) was added to the regimen due to suicidal thoughts. However, by July 2009 (one month prior to separation) outpatient notes documented that his mood was good, he was not experiencing significant depression and that he was “very pleased” with his overall condition. At the time of the VA psychiatric C&P examination (7 October 2009, two months after separation), the CI’s symptoms were similar or somewhat better than those reported in the MEB exam. The psychotropic medications resulted in mood swings that were shorter (up to one week instead of one to seven months) and less frequent. He was employed part-time, engaged in hobbies and planned to attend school. Mental status exam (MSE) showed normal communication, speech and behavior. Mood and affect were normal and thought processes and content unremarkable. There was no evidence of suicidal ideation or psychosis. The Global Assessment of Functioning (GAF) was 75, connoting transient symptoms with no more than slight impairment in social, occupational, or school functioning. The examiner considered the prognosis to be favorable. In its deliberation, the Board relied more heavily on the C&P examination because it was more detailed and more proximal to separation than the MEB exam. Boards members all agreed that this VA exam was most consistent with a §4.130 rating of 10% (“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”) and was consistent with the commander’s endorsement showing virtually no impact on occupational functioning. Outpatient clinical notes just prior to separation also clearly supported this rating. The Board further agreed that no criteria for a 30% rating were present (“occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks”). The CI contends for an increased rating based on post-service worsening. As noted previously, DES disability ratings are based on the condition at the time of separation, not based on potential worsening. There was no evidence at the time of separation or the post-separation C&P examination that the CI’s condition was unstable. Ratings are assigned based on the VASRD which provides guidance for ratings that reflect the average impairment in civil occupations (§4.1), not military occupation. All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s rating decision for the bipolar disorder condition.

Other Contended Conditions. The CI’s application implies that compensable ratings should be considered for left ankle osteoarthritis and bilateral foot pronation. Left ankle osteoarthritis was diagnosed by an x-ray performed in 2007 for ankle pain. However, follow-up x-rays in 2008 and 2009, and a magnetic resonance imaging (MRI) in 2008, did not show evidence of arthritis. Although the CI complained of persistent left ankle pain that did not respond well to medications or physical therapy, pre-separation notes indicate the pain resolved with use of orthotics. Bilateral foot pronation initially presented as foot pain in February 2009 (five months after the PEB). This condition also was noted to respond well to use of orthotic inserts. Both of these conditions were reviewed by the action officer and considered by the Board. There was no evidence for concluding that either of the conditions interfered with duty performance to a degree that could be argued as unfitting. The Board determined therefore that neither of the stated conditions was subject to service disability rating.

Remaining Conditions. The other condition identified in the DES file was stomach problems. It was not significantly clinically or occupationally active during the MEB period, did not carry an attached duty limitation and was not implicated in the commander’s statement. This condition was reviewed by the action officer and considered by the Board. It was determined that it could not be argued as unfitting and subject to separation rating. Additionally pseudofolliculitis barbae was noted in the VA rating decision proximal to separation, but was not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.

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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the bipolar disorder condition and IAW VASRD §4.130, the Board unanimously recommends no change in the PEB adjudication. In the matter of the left ankle condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional rating at separation. In the matter of the bilateral foot pronation condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional rating at separation. In the matter of the stomach condition or any other medical conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

RECOMMENDATION: The Board therefore recommends that there be no recharacterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110812, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

President

Physical Disability Board of Review