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AF | PDBR | CY2012 | PD2012 01572
Original file (PD2012 01572.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    Branch of service: Army
CASE NUMBER: PD1201572   DATE OF PLACEMENT ON TDRL: 20000720
BOARD DATE: 20130611 Date of Permanent SEPARATION: 20020313

SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (79R30/Recruiter), medically separated for bipolar disorder (D/O) condition. The CI had a long history of psychiatric symptoms that worsened in May 1997. He did not improve adequately with psychiatric treatment to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded bipolar disorder to the Informal Physical Evaluation Board (IPEB) as medically unacceptable IAW AR 40-501. No other conditions were listed on the DA Form 3947. The IPEB adjudicated the bipolar disorder, mixed type as unfitting, rated 30% for definite social and industrial impairment with application of the Department of Defense Instruction (DoDI) 1332.39. The CI was placed on Temporary Disability Retired List (TDRL) with ratings as reflected in the chart below. After the 27 August 2001 TDRL examination approximately 6 months prior to final separation, an IPEB adjudicated the CI’s condition as “Bipolar disorder with psychotic features to include visual and auditory hallucinations, complicated by alcohol dependence,” noted noncompliance with treatment, and assigned a 10% disability rating IAW Department of Defense Instruction (DoDI) 1332.39, paragraph 6.1.3. The CI appealed to a Formal PEB, which affirmed the IPEB findings and he was then medically separated.


CI CONTENTION : “100%.” The CI elaborated no other specific contention in his application.


 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. The bipolar disorder condition requested for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview, and it is addressed below. Any condition or contention either not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for the Correction of Military Records.


 RATING COMPARISON :

Service FPEB – Dated 20020212
 VA – 100% Effective Date 20020311
Condition
 Code Rating Condition Code Rating Exam
On TDRL – 20000720
 TDRL Sep.
Bipolar Disorder
 9432 30% 10% Bipolar Affective Disorder 9432 50% 20000907
100% 20020311
No Additional MEB/PEB Entries
 Other x 2 20000927
Combined: 30%/10%
 Combined: 100%
invalid font number 31502

ANALYSIS SUMMARY : The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the 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 Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

The Board acknowledges that s ervice t reatment r ecord’s ( STRs) from 27 September 2000 to 27   March 2002 and the Madison VA treatment records from 12 June 2002 to 26 July 2002 were referenced, but not available in the evidence before it; and, could not be located after the appropriate inquiries. Several attempts at obtaining the relevant documentation were futile and introduced additional delay in processing the case. The missing evidence will be refere nced below in relevant context.

Bipolar Disorder Condition . While admitted after a motor vehicle accident that occurred during a period of active duty in July 1985, the CI was evaluated by psychiatry for suicidal ideations with depression and anxiety. The psychiatrist’s impression was an adjustment disorder with depressed mood versus mild to moderate depression. No current suicidal ideation was present and the CI was cleared for discharge from the hospital. There is no evidence in the STR to indicate that the CI was treated with medications for depression at that time. In May 1997, he began work as a recruiter and within a month, he began to have symptoms consistent with bipolar disorder including racing thoughts, problems with concentration, marked irritability, angry outbursts , and markedly diminished sleep. The CI sought treatment and he was placed on psychiatric medications . He stopped the medications on his own after approximately 3 months when he felt that he could “beat it” without medications or follow-up. The CI was able to maintain some stability as he channeled all of his energy into his work despite racing thoughts and difficulty sleeping. In March or April 1999, the CI became more depressed , he endorsed feeling of irritability , and he had angry outbursts that interfered with his relationships and caused problems at work evidenced by repeated counseling statements . He successfully attended the Basic NCO Course; however , his illness worsened once he returned to his recruiting duties in J une 1999 . He experienced suicidal ideation, auditory hallucinations that told him to kill himself , and feelings of worthlessness and hopelessness . The CI re - entered treatment and was started on Neurontin ( anti convulsant that is also used to treat bipolar disorder ), Serzone ( anti depressant), and Risperdal ( atypical antipsychotic used to treat the manic state of bipolar disorder, schizophrenia, and dementia ). These medications were changed to Depakote ( anticonvulsant also used to treat manic episodes of bipolar and depression ), Effexor ( anti depressant ) , and Zyprexa ( atypical anti psychotic used to treat the manic state of bipolar disorder and schizophrenia ). The CI was not admitted for treatment but he was placed on convalescent leave through the end of October 1999 . H e returned to work in November 1999 but was restricted to limited staff duty. However, the CI had a relapse after returning to this limited duty and he started to experience pathologically increased levels of guilt as well as excessive worry and a pervasive ly depressed mood. He also experienced suicidal ideations , although there was never any definitive plan. A later note in the STR documented that the CI was diagnosed with depression, bipolar mixed type in September 1999, and this was verified by the CI on the Med Exam (DD Form 2808). The CI was issued a permanent S3 Profile in March 2000 for bipolar disorder with a Code F limitation of no assignment where definite psychiatric care was not available and a Code U limitation of no handling of weapons. The MEB n arrative s ummary (N ARS UM) examination approximately 4 months prior to TDRL entry indicated a weight gain ; feelings of depression ; being overwhelmed with worry ; feelings of hopelessness, helplessness , and worthlessness ; impaired concentration ; low energy levels ; occasional crying spells ; marked irritability ; and marital conflict. There were no auditory hallucinations at the time of the TDRL entry MEB NARSUM. The examiner noted that on the mental status examination (MSE) , the CI exhibited symptoms of psychomotor agitation, tremulousness, shaky speech, nervous mood, dysphoric affect , and passive suicidal ideations without any active intent or plan. The examiner diagnosed the CI with bipolar disorder, mixed ep isode with considerable impairment for military s ervice and definite impairment for civilian soc ial and industrial adaptability. The Global Assessment of Functioning (GAF ) was 40 ( s ome impairment in reality testing or communication OR major impairment in several areas) to 50 ( s erious symptoms OR any serious impairment in social, occupational, or school functioning). The c ommander’s s tatement indicated that the CI ’s mental condition prevented him from effectively performing recruiting duties and that he was unable to perform his MOS duties without creating undue stress on himself, his coworkers, and the community. The CI was placed on TDRL in July 2000 . An initial VA C ompensation and P ension (C&P) examination was completed approximately 6 weeks after the CI entered TDRL. This examination reported the same clinical history with initial treatment and medication in 1997, the CI stopp ing his medication on his own thinking he could beat the disease on his own, and the return of increasing symptoms with treatment re-entry in 1999. The same medications are noted with the addition of lorazepam (antianxiety) . This examination reports the presence of auditory hallucinations that told the CI to harm himself. The CI reported he was currently receiving psychiatric care and was taking the medications noted above. With this treatment, he was usually free of suicidal ideations but he would have auditory hallucinations and severely depressed mood with crying spells once or twice a week. During these periods, he would isolate himself from h is family and he would spend 1 to 2 days every couple of weeks alone in his room. At his baseline, he would have erratic symptoms of daily racing thoughts, irritability, and depressed mood and he would occasionally have thoughts of suicide. The CI was currently in his third marriage and he felt this one was more stable . At the time of this examination, the CI was employed at Wonder Bread as a sales representative. The CI reported that during the period of no medication between May and September 1999, he had attempted to self-medicate with seven or eight beers a day but that this was only briefly helpful and when he discontinued drinking, his symptoms would return and intensify. The MSE noted the CI was dressed casually and neatly and was friendly and cooperative. There was a paucity of movement and eye contact was maintained sporadically. His mood was depressed and his affect was blunted but congruent. He reported vague fleeting thoughts of suicide but had no plan or intent. The examiner noted the current examination confirmed the diagnosis of bipolar affective disorder, T ype I, most recent episode mixed and that the CI continued to suffer residual symptoms that at times would severely restrict his daily activities and interests. This examiner estimated a GAF of 50 with the highest GAF in the past year also at 50.

The Board directs its attention to the question of applicability of §4.129, mental disorders to traumatic stress, and the rating recommendation based on the evidence just described. The Board could not identify any discreet “highly stressful event” and it determined that §4.129 did not apply.

The Board directs attention to its rating recommendation at TDRL entry based on the above evidence. The TDRL entry PEB coded the bipolar disorder condition as 9432 bipolar disorder and rated 30%. The VA chose the same disability code and initially rated at 50%. There is clear documentation at the time of TDRL entry the CI’s condition had worsened and that he was unable to perform in his MOS. He was given a permanent S3 profile that specifically restricted the CI from handling weapons and specified that he needed to have definite psychiatric care available wherever he was to be assigned. The c ommander’s s tatement noted that the CI was unable to perform his MOS duties without creating undue stress on himself, his coworkers , and the community. The MEB NARSUM examiner noted symptoms of psychomotor agitation, tremulousness, shaky speech, nervous mood, dysphoric affect, and passive suicidal ideations without any active intent or plan. The GAF was 40-50, which correlates a serious impairment in social, occupational, or school functioning. The C&P examination provides the same evidence with the addition of periods of complete isolation that would last a day or two and occurred once or twice every 2 weeks. The VA exam noted the CI was working as a sales representative but did not contain any information about his level of functioning at work other than the fact that he was able to maintain employment . The Board reviewed the criteria for a 50% rating ( occupational and social impairment with reduced reliability and productivity ) versus a 30% rating ( occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) and agreed that the CI exhibited symptoms that reflected the 50% rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a TDRL entry rating of 50%.

The TDRL periodic assessment NARSUM exam approximately 6 months prior to TDRL exit and permanent separation documented the continuation of significant and worsening symptoms. This included severe depressive symptoms; decreased sleep with sleeping three to four hours per night and regular delayed sleep onset of 2.5 hours; no appetite; regular crying spells; racing thoughts; irritability; no energy; feelings of hopelessness and helplessness; a lack of motivation; suicidal thoughts three to four times per week lasting up to 30 minutes; auditory hallucinations with voices saying, “you do not need to be alive;” and visual hallucinations of dead people walking occurring three to four times week and lasting 30 to 40 minutes. Although VA records document the CI was in treatment at the VA from 27 September 2000 to 27 March 2002, no specific treatment dates are available and at this examination in August 2001, the CI reported that he was not currently receiving any psychiatric care and was not taking medication. The CI reported that for the previous 2 to 3 months, he had been drinking 6 to 8 drinks per night and he had developed an increased tolerance and had experienced several alcoholic blackouts. He would sometimes drive his car while intoxicated. The CI had divorced his third wife and was living with a female friend. He reported two friends but stated he rarely sees them. His only recreational outlet was walking occasionally. He had been working 40 hours a week in sales at a uniform company for the previous 4 to 5 months. There is no information about why he had left his previous job. The examiner noted that the CI was regularly depressed on the job, could not concentrate, was often late, and had been absent from work 4 days. The MSE showed a disheveled physical appearance; clear dysphoria in mood and affect; significant anxiety; passive suicidal ideations without plan or intent; poor insight and judgment; and evidence of both visual and auditory hallucinations. The examiner diagnosed an Axis I: bipolar disorder, most recent episode, depressed, alcohol dependence, no Axis II diagnosis was made. The examiner noted the CI’s emotional and overall functioning had considerably regressed during the previous several months without psychiatric treatment. The examiner further opined that the CI had severe military and civilian impairment and that without therapy or medication, the probability for his continued mental deterioration was “extremely high” and that even with ongoing treatment the prognosis was “still guarded.” He also stated the CI’s mental illness was severe, chronic, and unfitting and he highly recommended the CI initiate psychotherapy and medication at the VA.

The C&P examination approximately 4 months after permanent separation documented that at the time of this exam on 18 July 2002, the CI was in the inpatient psychiatric unit for increased symptoms with auditory hallucinations instructing him to harm himself. It is not clear how long the inpatient stay was, but on the day of the C&P examination, the CI had been an inpatient for 6 days. He experienced racing thoughts, an inability to sleep more than 3 to 4 hours per night, frequent crying spells, difficulty with concentration, chronic suicidal thoughts, and an inability to enjoy other aspects of his life. The examiner notes the findings from the initial VA examination noted above and he also mentions computer notes for the CI’s VA psychiatrist dated from November 2001, stating he was in treatment for bipolar disorder and PTSD. The current hospitalization was his only inpatient psychiatric treatment, although he had been hospitalized in March 2002 for a head injury and acute mental status changes and it was noted he was in counseling at that time. His current medications were Gabapentin (anticonvulsant that is also used to treat bipolar disorder), Quetiapine (Seroquel--atypical antipsychotic for bipolar disorder and schizophrenia), Lorazepam (antianxiety), Lithium (treatment for bipolar disorder), and Celexa (antidepressant). The CI reported that in the 2 weeks prior to admission he had increasing symptoms with his auditory hallucinations intensifying and instructing him to harm himself, either by overdosing with medication or finding another method to kill himself. At that time, his 4-year-old daughter was visiting and he was able to hold things together until her mother picked her up. At that time, he drove himself to the VA to get help with the auditory hallucinations and he was admitted. He normally heard the voices from his head but on the day of the examination, he reported he also heard the voices coming from the radio. Prior to admission, he had continued to enjoy being with his daughter but otherwise had been extremely depressed with frequent crying spells, had difficulty concentrating, and had an inability to enjoy other aspects of his life. He had been working as a bartender but had been unable to attend work because of the intensity of the voices. The voices interfered with his ability to concentrate on work and accomplish his tasks. He reported extreme financial stress due to his inability to work and was worried about losing his apartment. His only income was from the VA and most of his money was used to pay child support. He had divorced in August 2001 and currently was not able to sustain any meaningful relationship or maintain employment. The CI reported the previous excessive use of alcohol in 1999 but denied any other period of excessive use, stating his last drink was approximately a week ago (the day prior to admission) and that since starting medications he had not been drinking heavily. This is incongruent with the reported heavy alcohol use in the summer of 2001 reported in the TDRL exit NARSUM. He was currently living alone in an apartment and was not working. On the MSE, the examiner noted that the CI was very anxious and was moderately disheveled, had anxious and mildly pressured speech, exhibited suicidal thought content, paranoia, dysphoric mood, poor insight and an impaired judgment, and chronic suicidal thoughts. The examiner diagnosed the CI with Axis I: history of bipolar disorder, currently depressed with psychotic features and a GAF of 35 (major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood). The examiner noted the CI’s current symptoms were more severe as compared to the previous C&P and that the CI was at risk of losing housing, unable to tolerate employment, and had little to no insight into his illness. He opined the CI did not meet the diagnostic criteria for PTSD.

The Board directs attenti on to its permanent separation rating recommendation at TDRL exit rating recommendation based on the above evidence . The PEB rated the b ipolar disorder at a 10 % permanent separation rating and noted complications of alcohol dependence. Although specific numbers are not stated, it appears the PEB deducted for noncompliance with psychotherapy and medication IAW DoDI 1332.39, paragraph 6.1.3. The guidance in this publication is not part of the VASRD and the publication has since been rescinded. However, the paragraph cited specifically states that the compensable disability rating may be reduced to compensate for aggravation of a condition due to noncompliance when the existence and degree of aggravation are ascertainable by application of accepted medical principles, and where it is clearly demonstrated that: 1) The member was advised clearly and understandably of the medically proper course of treatment, therapy, medication or restriction; and 2) The member’s failure or refusal was willful or negligent, and not the result of mental disease or of physical inability to comply. None of these conditions were present in this case. There is no discussion of how much the noncompliance contributed to the overall disability rating. No treatment records from the time the CI was on TDRL are available to determine if the proper treatment was explained clearly and understandably. However, while specific dates of treatment are not available, the C&P examination from July 2002 noted the CI had been in outpatient treatment as late as November 2001. It does appear that, more likely than not, that if the CI was noncompliant, it was due to his mental disease. At the time of the TDRL evaluation, the examiner noted that he highly recommended the CI initiate psychotherapy and medication, the CI agreed to do so, and the C&P notes he was seen at the VA.

The September 2002 VA rating decision rated the CI’s bipolar disorder at 100% based on a significant worsening of the CI’s mental state. The MEB NARSUM noted significant auditory hallucinations and visual hallucinations seeing dead people walking, regular crying spells; racing thoughts; irritability; no energy; feelings of hopelessness and helplessness; a lack of motivation; suicidal thoughts three to four times per week lasting up to 30 minutes. At the MSE, the CI demonstrated dysphoria in mood and affect; anxiety; passive suicidal ideations without plan or intent; poor insight and judgment; and he was disheveled. The examiner clearly indicated that the CI had a severe military and civilian impairment and that without therapy or medication, the probability for his continued mental deterioration was “extremely high” and with ongoing treatment, his prognosis was “still guarded.” At the time of the C&P exam, the CI was receiving treatment as an inpatient on the psychiatric unit for increased symptoms with auditory hallucinations instructing him to harm himself. He was unable to maintain employment or social relationships.

The Board agreed that the CI’s symptoms were greater than the 30% criteria (occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks). The Board then considered the 70% rating criteria (occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood) versus the 50% (occupational and social impairment with reduced reliability and productivity). Although some elements supporting a 100% rating were present at both the periodic TDRL NARSUM and the second C&P examination (persistent hallucinations), the CI’s level of functional impairment at the time of final separation in March 2002 is more accurately described by the 70% criteria with deficiencies in most areas, including employment, family relations, judgment, thinking, and mood. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a change in the permanent separation rating to 70% for the bipolar disorder 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 b ipolar d isorder was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the b ipolar d isorder condition, the Board unanimously recommends a TDRL entry rating of 50% and a 70% permanent rating, 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
TDRL PERMANENT
Bipolar Disorder
 9432 50% 70%
COMBINED
 50% 70%


The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 120610 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record




Physical Disability Board of Review


SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130015087 (PD2012001572)


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 70% effective the date of the individual’s original medical separation for disability with severance pay.

2. I reject the DoD PDBR recommendation related to the individual’s temporary rating. The DoD PDBR is not given the legal mandate to review temporary separations. Additionally, the PDBR is not entitled to review separations prior to 11 September 2001 and separations with a rating of 30% or more. The individual’s Temporary Disability Retirement List (TDRL) rating was 30% and was assigned in July 2000.

3. 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 70% 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.

4. 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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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