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AF | PDBR | CY2013 | PD-2013-01902
Original file (PD-2013-01902.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-01902
BRANCH OF SERVICE: Army  BOARD DATE: 20140617
SEPARATION DATE: 20040514


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reservist MAJ/0-4 (88C/Marine and Terminal Operations Officer) medically separated for bipolar disorder. The bipolar condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent S3 profile and referred for a Medical Evaluation Board (MEB). The “bipolar d/o” condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded four other conditions. The Informal PEB adjudicated “bipolar d/o, complicated by alcohol and substance abuse” as unfitting, rated 10% with application of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI appealed to the Formal PEB, but withdrew his appeal, and was released from active duty due to medical disability and transferred to the Retired Reserve List awaiting retired pay at age 60 pursuant to his request.


CI CONTENTION: The CI writes: “Please review board findings & further VA documentation”.


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting bipolar condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20031113
 VA - (9 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bipolar Disorder 9432 10% Bipolar Disorder 9432 50% 20050203
Other x 4 (Not in Scope)
 Other x 1 20050203
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 50420 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation. The Disability Evaluation System has neither the role nor the authority to compensate 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.

Bipolar Disorder. The service treatment record indicated that the CI first received MH treatment in 1988 as he was having “significant marital problems.” Due to unusual, resistant, and belligerent behavior demonstrated to command leadership during military proceedings, coupled with interaction with police authorities, the CI was psychiatrically hospitalized for 8 days in April 2003. His admitting diagnosis was psychosis and depression and the discharge diagnosis was bipolar disorder, not otherwise specified (NOS). Inpatient psychological testing (19-20 April 2003) revealed findings consistent with hypomania and/or mania, without symptoms of depression. “He does endorse several Axis II symptoms in the areas of: narcissistic, antisocial, and or paranoid traits.” The evaluator recommended continued observation, additional referral follow-up and medication. The narrative summary (psychiatry) examination (also initial hospital discharge summary) dated April 2003 (13 months pre-separation) provided a detailed summary of the CI’s past psychiatric history and treatment. He denied personal history of any psychiatric illness. His mental status examination (MSE) revealed a penetrating stare, tearful appearance, pressured speech with angry tone, angry mood and a wide spectrum affect between “calm and angry.” Recent memory was poor and he revealed a ‘flight of ideas’ as his anger increased. There were no hallucinations, illusions, or ideations of suicide and or homicide. Cluster “B” personality traits were identified (antisocial, borderline, narcissistic, and histrionic). Additional Axis I diagnoses other than bipolar disorder included alcohol and cannabis abuse and partner relational problem. His Global Assessment of Functioning (GAF) was 60; connoting “moderate” impairment. Civilian and military impairment was assessed as “definite” and “marked” respectively. The commander’s letter did not identify any specific medical condition, but did relate the CI’s inability to perform his duties were due to physical limitations. He was not recommended for retention. His permanent profile of 16 September 2003 listed bipolar disorder and one other non-MH condition.

At the VA Compensation and Pension examination on 3 February 2005 (8 months post-separation), the CI provided various reasoning for his past societal and occupational issues and frequently denied his substance abuse history. He reported taking psychotropic medication and feeling “stable.” He admitted to sleeping well and having adequate concentration. He lived with his father and admits the ability to perform yard work. He denied suicidal/homicidal ideation and or hallucinations. “{The CI} reports that he does not believe he has ever had a substance abuse problem.” On MSE he exhibited pressured speech with a defensive posture manifested by underlying anger and hostility…focused “towards his wife and the military.” There was an appearance of self-persecution. There was no evidence of gross memory loss, or inappropriate behavior and his judgment was not impaired. He maintained the ability to perform personal hygiene as well as his activities of daily living. His GAF was 52; connoting near “serious” impairment. He met diagnostic criteria for bipolar disorder with a prognosis described as “guarded” due to his limited insight into his condition.

There were two additional inpatient psychiatric hospitalizations within 16 months of separation; both were court ordered. The hospitalizations were for 9 days in June 2004 (2 weeks after separation) and 28 days in September/October 2005. In the June 2004 hospitalization, the CI’s diagnosis was changed to depressive disorder (NOS) and poly-substance dependence. The examiner’s summary is excerpted below.

“[The CI] primarily has a substance dependence problem. He also has an associated problem with depression. I believe he is in need of counseling for dual diagnosis of depression and chemical dependency. Condition at the time of discharge is improved over the time of admission and he does not represent a risk of harm to himself or other people due to mental illness. There is certainly a risk of him becoming violent or losing his temper, which is somewhat tediously controlled at best if he gets himself heavily under the influence of substances and I believe court supervised treatment to help ensure abstinence from substance abuse will be helpful in improving his prognosis.”
On 8 June 2004, the day before his hospital discharge and 24 days after separation, his examination noted a relaxed affect, improved mood, and above average in cognition, memory, and intellect. There was no suicidal/homicidal ideation or any degree of guardedness or paranoia. Although not angry, he remained with a degree of irritableness. “He is much less hostile towards his family.”
The Board directs attention to its rating recommendation based on the above evidence. Disability associated with any psychiatric condition, regardless of the diagnosis or multiple diagnoses, is subsumed under a single rating using the same criteria IAW VASRD §4.130 general rating formula for MH conditions. Both the PEB and VA applied the clinically appropriate code 9432 (bipolar disorder) and arrived at different ratings (10% and 50% respectively) under the VASRD §4.130. The PEB cited ongoing psychotherapy and medication management for 10% and the VA cited occupational and social impairment with reduced reliability and productivity for 50%. The Board first considered if the definition of VASRD §4.129 was met for any psychiatric condition resulting in medical separation; i.e., “a mental disorder that develops in service as a result of a highly stressful event.” Board members agreed that although some contribution of military-related stressors to the psychiatric condition was present; the requisite §4.129 link that the condition occurred “as a result of a highly stressful event” was not adequately satisfied. The Board therefore will consider only the VASRD §4.130 impairment present at separation for a single rating recommendation. Members then considered if there was evidence for a §4.130 rating higher than PEB’s 10% at time of separation.
A significant issue confronted in this case is the probative value of clinical exams as they relate to the time-reference to the CI’s separation, which must remain as the Board’s definitive benchmark in its recommendations. Member’s agreed that the first court-appointed hospitalization discharge only three weeks post separation provided the most accurate picture of the CI’s condition nearest to his separation. On 8 June 2004, the day prior to his hospital discharge and 24 days after separation, his examination noted a relaxed affect, improved mood and above average in cognition, memory and intellect. There was no suicidal/homicidal ideation or any degree of guardedness or paranoia. Although not angry, he remained with a degree of irritableness. Board members agreed that the §4.130 threshold for a 70% rating was not approached and that the criteria for a 10% rating were well-exceeded. The deliberation settled on arguments for a 30% versus a 50% impairment rating recommendation.
Members extensively discussed the etiologic factors fostering the CI’s anger and irritability issues. The post-hospitalization summary depicting such behavior as not an outcome of his substance abuse alone, but rather its synergistic effect in combination with his mental health condition provided evidence to support a degree of impairment strictly as a result from his bipolar condition. Additional evidence of having “improved symptoms” and “better family relations” indicated a functioning level (at least socially) of satisfactorily. Therefore, after due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the bipolar 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. 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, 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 9432 30%
COMBINED
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130925, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review


 AMR-RB                                                                          


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXX , AR20150007060 (PD201301902)
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 Reserve retirement.

2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days for 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 Reserve retirement.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with Reserve retirement.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for payment of permanent retired pay at 30% effective the date of the original medical separation for disability with Reserve retirement.

         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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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