IN THE CASE OF:	  

		BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20100029652


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his disability rating be increased.

2.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's disability rating be increased to minimum of 70 percent.

2.  Counsel states the applicant's mental condition was improperly rated.

	a.  He was rated at 30-percent disabled when he was statutorily entitled to a higher rating of 50 percent.  Under Title 38, Code of Federal Regulations (CFR), section 4.129, the applicant is entitled to a minimum 50-percent disability rating.  The Veterans Affairs Schedule for Rating Disabilities (VASRD), section 4.129, states:

section 4.129.  Mental disorders due to traumatic stress.  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 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted.

	b.  Under Title 38, CFR, section 4.130, he is entitled to at least a 70-percent disability rating based on the severity of his mental condition.

section 4.130.  Schedule of ratings – mental disorders.  The nomenclature employed in this portion of the rating schedule [i.e., the VASRD] is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV).  Rating agencies must be thoroughly familiar with this manual to properly implement the directives in section 4.125 through section 4.129 and to apply the general rating formula for mental disorders in section 4.130.

3.  Counsel states the applicant was a highly-decorated, exemplary Soldier with service in both Operation Desert Storm and Operation Iraqi Freedom.  He was "quickly rising to the top" as a military police officer until beset with mental problems.  Counsel argues the applicant:

* suffered from a mental disorder that "was incurred in the line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense" and shown on a DA Form 199 (PEB Proceedings)
* indicated he was suicidal and was asked to go to Behavioral Health where it was noted he was "not being suicidal but stressed"
* was involuntarily committed to an Army psychiatric ward after a 2-hour counseling session with a superior who found him "incapable of analyzing, developing and prioritizing and was not able to separate his emotions"
* received a mental health progress report "only one day before his discharge [from inpatient admission – 11 November 2007]" stating he had "possible homicidal ideations"
* fit the 50-percent disability rating as he clearly demonstrated occupational and social impairment with reduced reliability and productivity due to such symptoms as:

* flattened affect
* circumstantial, circumlocutory, or stereotyped speech
* panic attacks more than once a week
* difficulty in understanding complex commands
* impairment of short and long-term memory
* impaired judgment
* impaired abstract thinking
* disturbances of motivation and mood


* difficulty in establishing and maintaining effective work and social relationships

* fit the 70-percent category of the VASRD general rating formula for mental disorders based on occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as:

* suicidal ideation
* obsessional rituals which interfere with routine activities
* speech intermittently illogical, obscure, or irrelevant
* near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively
* impaired impulse control (such as unprovoked irritability with periods of violence)
* spatial disorientation
* neglect of personal appearance and hygiene
* difficulty in adapting to stressful circumstances (including work or a work-like setting)
* inability to establish and maintain effective relationships.

4.  Counsel provides:

* an 8-page brief
* exhibit A – page 1 of 2 pages, Record of Inpatient Treatment, dated 13 December 2007
* exhibit B – page 2 of 2 pages, Specialty Care Consult for Medical Evaluation Board (MEB), dated 19 December 2007
* exhibit C – page 1 of 3 pages, Physical Evaluation Board (PEB) Proceedings, dated 26 February 2008
* exhibit D – page 2 of 2 pages, Standard Form 509 (Medical Record Progress Notes)
* exhibit E – page 2 of 2 pages, DA Form 67-9 (Officer Evaluation Report (OER)) for the period 20000121-20010120
* exhibit F – page 2 of 2 pages, DA Form 67-9 for the period 20020116-20020510
* exhibit G – DD Form 214 (Certificate of Release or Discharge from Active Duty)
* exhibit H – page 2 of 2 pages, DA Form 67-9 for the period 20030514-20020510


* exhibit I – page 2 of 2 pages, DA Form 67-9 for the period 20050601-20051003
* exhibit J – page 2 of 2 pages, DA Form 67-9 for the period 20051004-20061003
* exhibit K – page 2 of 2 pages, DA Form 67-9 for the period 20070704-20071130
* exhibit L – 2 pages of a memorandum for record (MFR), dated 15 August 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army captain.  He served on active duty in a commissioned status as a Military Police officer from 8 May 1999 to 18 June 2008.  A review of his OERs contained in his Official Military Personnel File (OMPF) show he was a "center of mass" or average officer prior to 2006.  

2.  In October 2005, the applicant served as a U.S. Army Criminal Investigation Command (USACIDC, also known as CID) Battalion S-4 [logistics] officer.  The battalion, consisting of a headquarters detachment and four CID detachments, was deployed in Iraq.  His OER for October 2005 to October 2006, covering the period of his deployment, rated his performance "Satisfactory Performance-Promote" and his potential for promotion "Fully Qualified."  The senior rater stated he had "performed marginally well as the battalion S4 during this rating period."  There were no stressors indicated and he did not receive any valor awards, combat action badges, or Purple Hearts.

3.  The applicant's OMPF is not clear as to the facts, but the applicant began to exhibit uncharacteristic behavior in 2007.  At some point in time he was command-referred for a psychiatric evaluation.  As a result of that evaluation, he was diagnosed with bipolar 1 disorder, a mood disorder characterized by at least one manic or mixed [where mania and depression occur simultaneously] episode.  He was referred to the Physical Disability Evaluation System (PDES) for an MEB.

4.  The complete results of the applicant's MEB are not available in his OMPF; however, the second page of a multi-page narrative summary prepared on 19 December 2007 for his MEB stated, "His fixed persecutory ideation has significantly impaired the Soldier's ability to successfully advocate for himself in court and his relationships with his unit are strained as a result of his perception of their failure to assist him in his legal conflict with his estranged wife."  His MEB officially gave three diagnoses.  The first diagnosis was bipolar 1 disorder; the other two diagnoses are unknown [not stated].  He was then referred to a PEB to determine if any of the diagnoses were disabling.  The consult also stated the applicant remained stable with medication and remained capable of independent living.

5.  A PEB was convened at Walter Reed Army Medical Center (WRAMC), Washington, DC, on 26 February 2008.  The PEB found:

VA Code 9432 – Bipolar 1 disorder, recent manic episodes with psychotic features manifested by:  decreased sleep requirement, pressured speech, elevated intensity of affect with irritability, circumstantial and concrete thought processes fixed persecutory ideation.  The Bipolar 1 disorder is extremely disruptive to normal family and occupational functioning during the acute crisis phase.  With optimal therapeutic management, breakthrough episodes of depression and mania are present.  Soldier has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks resulting from his symptomology.  The Soldier requires medication and therapy and cannot perform the duties listed in block 5 of DA Form 3349 (Physical Profile).  The Soldier is competent to make legal, medical, and financial decisions.

MEB diagnoses 2 [and] 3 meet medical retention standards, are not listed on the physical profile as limiting any of the Soldier's functional activities, are not commented upon by the commander as hindering the Soldier's performance, and the case file contains no evidence that these diagnoses independently, or combined, render the Soldier unfit for his assigned duties.

Disability was incurred in the line of duty in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (10 USC 1212 – NDAA 2008 Sec 1646).

6.  The PEB rated the applicant 30-percent disabled for bipolar 1 disorder and recommended that he be permanently retired for disability.  That disability rating was taken from the 30-percent category of the VASRD general rating formula for mental disorders based on occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as:

* depressed mood
* anxiety
* suspiciousness
* panic attacks (weekly or less often)
* chronic sleep impairment
* mild memory loss (such as forgetting names, directions, recent events)

The applicant concurred on 17 March 2008.

7.  On 18 June 2008, the applicant was permanently retired by reason of permanent disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1).  Orders 093-0272, Headquarters, U.S. Army Garrison, Fort Bragg, NC, dated 2 April 2008, retired the applicant with a 30-percent disability rating.  The orders also stated the applicant's disability:

* was not the direct result of armed conflict or caused by an instrumentality of war
* did not result from a combat-related injury as defined by Title 26, U.S. Code, section 104

8.  In accordance with Title 38, CFR, section 4.130 (Schedule of Ratings – Mental Disorders), the VASRD rates bipolar disorder (VASRD Code 9432) as 
50-percent disabling for occupational and social impairment with reduced reliability and productivity due to such symptoms as:

* flattened affect
* circumstantial, circumlocutory, or stereotyped speech
* panic attacks more than once a week
* difficulty in understanding complex commands
* impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks)
* impaired judgment
* impaired abstract thinking
* disturbances of motivation and mood
* difficulty in establishing and maintaining effective work and social relationships

9.  A rating of 70 percent is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as:

* suicidal ideation
* obsessional rituals which interfere with routine activities
* speech intermittently illogical, obscure, or irrelevant
* near-continuous panic or depression affecting the ability to function independently, appropriately and effectively
* impaired impulse control (such as unprovoked irritability with periods of violence)
* spatial disorientation
* neglect of personal appearance and hygiene
* difficulty in adapting to stressful circumstances (including work or a work like setting)
* inability to establish and maintain 	effective relationships

10.  In the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) which states:

* an MEB diagnosed the applicant with bipolar I disorder characterized as "definite" and "marked" for industrial impairment
* although symptoms became noticeable while he was deployed, there is no evidence to suggest combat stressors as the cause; in fact, the applicant indicated his problems (i.e., stressors) were marriage-related
* the applicant could perform many of his assigned duties, but his increasingly erratic behavior was causing problems and he couldn’t be counted on to perform his daily responsibilities
* his diagnosis was not a result of a highly stressful event so VASRD section 4.129 is not applicable
* at the time, the term "definite" as used in describing psychiatric impairment was equal to a 30-percent disability rating under Department of Defense Instruction (DoDI) 1332.39

The advisory opinion concluded a 30-percent rating was supported by the evidence in the applicant's case; however, the current VASRD rating guidance "would appear to support a 50-percent rating…"

11.  The advisory opinion was provided to applicant's counsel for a response and/or rebuttal.  In a 13-page rebuttal, applicant's counsel:

* reiterated applicant's stellar career, citing passages from Officer Evaluation Reports (OERs) from 1999 to 2006
* highlighted the precipitous decline in applicant's performance from 2006 to his retirement, citing:

* an October 2006 OER noting "marginal performance"
* a redacted 15 August 2007 memorandum for record (MFR) documenting applicant's bizarre behavior
* applicant's involuntary commitment to the hospital for psychiatric evaluation

* disagrees with the advisory opinion's recommended 50-percent disability rating because:

* the original PEB disability determination of 30 percent is wrong
* the USAPDA advisory opinion recommendation to increase the rating to 50 percent is wrong because the applicant was "severely incapacitated" upon discharge, as follows:

* his "symptoms of suicidal ideation and manic behavior resulted in psychiatric care, against his will"
* an 8 November 2007 medical report wrote:

He was found to be paranoid, distractible, have a decreased need for sleep, increased psychomotor activity, increased rate of speech, and be emotionally labile….He has demonstrated a pattern of poor behavioral control and progressive worsening of [symptoms] that precipitated an emergent CDMHE (command-directed mental health evaluation) after he made comments regarding wanting to die to his command.  He requires hospitalization for diagnostic clarification and potential [treatment], that he is currently refusing….he refused to take all his medication yet he will have the option to refuse Zyprexia 10mg [immediate release] qhs to address his psychotic and manic [symptoms].  Pt at high risk for self harm and is likely to decompensate further if discharged from the hospital.  His poor insight and severity of [symptoms] make him a poor candidate for out-pt care.

* his mother had to come live with him to care for him during his discharge processing and found:

* his medications were too strong and dosages too high
* she feared for herself and her son
* he would lock himself in his room
* he had uncontrollable shakes
* he had blank stares

* a doctor wrote on 11 November 2007, the day before his discharge from the hospital "possible homicidal ideations, thought process is circumferential, loose association, tangential, insight limited, judgment impaired….patient shows worsening symptoms, including agitation and hostility

* the applicant met the VASRD criteria for a 70-percent disability rating, if not 100 percent

* cites the applicant's post-service behavior, including involuntary commitment, incarceration for assault, and his increasingly paranoid and delusional behavior as proof he is 100-percent disabled

12.  Title 38, CFR, section 4.129 (Mental Disorders Due to Traumatic Stress) directs that 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 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted.

13.  The 2008 National Defense Authorization Act provides that the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA in making a determination of a member's disability rating.

14.  In a 14 October 2008 policy memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) provided supplemental and clarifying guidance on implementing those disability-related provisions of the National Defense Authorization Act of 2008 (Pub 1. 11 0-181).  Enclosure E7 (Application of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) provided the Secretaries of the Military Departments may not deviate from the schedule or any interpretation of the schedule, including any applicable 
interpretation of the VASRD by the United States Court of Appeals for Veterans Claims.  The Secretary concerned may utilize in lieu of the VASRD such criteria as the Secretary of Defense and the Secretary of Veterans Affairs may jointly prescribe if utilization of such criteria will result in a greater percentage of disability than would be otherwise determined through the utilization of the schedule.  Paragraph E7.2 specifically provided:

E7.2.  Mental Disorders Due to Traumatic Stress (application of Title 38, CFR, section 4.129 of the Schedule for Rating Disabilities.)  The Military Department Secretary concerned will abide by 10 USC 1216a and Title 38,CFR, section 4.129, VASRD for disposition of Service members found unfit because of a mental disorder due to traumatic stress.  When a mental disorder that develops on active duty as a result of a highly stressful event is severe enough to bring about release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the 6-month period following discharge to determine whether a change in rating and disposition is warranted.  The disposition of Service members diagnosed with a mental disorder due to traumatic stress found to be an unfitting condition in the DES process will be as follows:

E7.2.2.  All other such members must be placed on the Temporary Disability Retirement List (TDRL) and re-evaluated within a timeframe that is not less than 90 days, but within 6 months, from the date of placement on the TDRL.

E7.2.1.  For members found unfit with a rating of 80 percent or greater for a permanent and stable condition (or conditions) not related to diagnosis of the mental disorder due to traumatic stress, the member will be permanently retired.

DISCUSSION AND CONCLUSIONS:

1.  Counsel states the applicant's mental condition was improperly rated at 30 percent by the PEB.  Counsel argues that under Title 38, CFR, section 4.129 the applicant is entitled to a rating of no less than 50 percent and is entitled to at least a 70-percent rating under Title 38, CFR, section 4.130.  In rebuttal to a USAPDA advisory opinion recommending an increase to 50 percent, counsel modifies the applicant's initial request and still argues the applicant is entitled to a 70-percent disability rating.

2.  The evidence of records shows the applicant served in Iraq as an S-4 for the 10th Military Police Battalion (CID).  The evidence does not support an argument he suffered any significant combat-related stressors which caused PTSD.  All evidence supports the argument the applicant's mental condition – bipolar I disorder – was precipitated by bitter marital problems which devolved into a contentious court battle with his estranged, and soon to be ex-wife.  As a person suffering from bipolar I disorder, he experienced a manic episode with psychotic features.  Since the record is devoid of significant combat-related stressors, he was not entitled to a 50-percent rating under Title 38, CFR, section 4.129.

3.  A PEB on 26 February 2008 rated the applicant 30-percent disabled, not for PTSD, but for bipolar I disorder.  It was recommended he be retired for permanent physical disability because he exhibited "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks," as manifested by:

* decreased sleep requirement
* pressured speech
* elevated intensity of affect with irritability
* circumstantial and concrete though processes
* fixed persecutory ideation

4.  The applicant concurred with the PEB on 17 March 2008 and was retired by reason of a permanent disability on 18 June 2008.  His retirement orders clearly state his disability was not the direct result of armed conflict or caused by an instrumentality of war, and did not result from a combat-related injury as defined by Title 26, U.S. Code, section 104.

5.  Counsel has shown that subsequent to his retirement, the applicant's mental condition has deteriorated even further as evidenced by involuntary commitment, incarceration for assault, and his increasingly paranoid and delusional behavior.

6.  In an advisory opinion, the USAPDA stood by the Army's original 30-percent disability rating; however, that agency stated "…a review of all the evidence and current VASRD policy rating guidance would appear to support a 50-percent rating based on reduced reliability and productivity regarding the workplace."

7.  The applicant's counsel disagreed with the USAPDA advisory opinion, essentially stating a 50-percent disability rating is too low given the applicant's severe incapacitation at discharge.

	a.  Counsel cites an 8 November 2007 medical report which found the applicant to be "…paranoid, distractible, have a decreased need for sleep, increased psychomotor activity, increased rate of speech, and to be emotionally labile…."  That same report indicated the applicant was refusing treatment.

	b.  Counsel also cites the applicant's increasingly bizarre post-service behavior as proof of entitlement to a 70-percent or 100-percent disability rating.

8.  The Army Board for Correction of Military Records is subject to the same laws for service disability entitlements as those under which the PDES operates.  The PDES has neither the role nor the authority to compensate service members for unanticipated future complications of conditions resulting in medical separation or retirement.  That role and authority is granted by Congress to the VA, operating under a different set of laws (Title 38, U.S. Code).  The Board evaluates VA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of PDES fitness decisions and rating determinations for disability at the time of separation.  While the PDES considers all of the Soldier's medical conditions, compensation can only be offered for those medical conditions that cut short a career, and then only to the degree of severity present at the time of final disposition.  The VA, however, is empowered to compensate all service-connected conditions without regard to fitness for military duties, 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.

9.  The MEB narrative summary (NARSUM) reports exacerbation of the applicant’s mental disorder following return from his deployment to Iraq.  Mental health records following that deployment document manic episodes related to non-combat stressors.  Mental health treatment records reflect the applicant’s symptoms developed following return from deployment in the context of marital conflict, divorce proceedings, and work related problems (the applicant’s displeasure with his chain of command in not actively assisting him in his legal problems with his estranged wife).

10.  It appears the PEB’s determination that the applicant is disabled because of his bipolar I disorder was proper.  However, based on the totality of the medical evidence, it also appears that the applicant's condition was more severe than originally stated, and more closely resembles the VASRD criteria for a 50-percent disability for occupational and social impairment with reduced reliability and productivity due to such symptoms as:

* flattened affect
* circumstantial, circumlocutory, or stereotyped speech
* panic attacks more than once a week
* difficulty in understanding complex commands
* impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks)
* impaired judgment
* impaired abstract thinking
* disturbances of motivation and mood
* difficulty in establishing and maintaining effective work and social relationships

Thus, the increase in disability rating from 30 percent to 50 percent is not related as much to Title 38, C.F.R section 4.129 as it is to the severity of his symptoms for bipolar I disorder at the time of his June 2008 discharge. 

11.  The applicant's disability rating should be increased to 50 percent, effective 18 June 2008.  Although his condition have deteriorated further in the years post-discharge, any additional rating increase should be pursued through the VA.

12.  Counsels argues for a 70-percent rating based on a note of “possible homicidal ideations” in his November 2007 discharge summary.  There is also an unsupported reference to suicidal ideation.  Counsel states that “Homicidal ideations in a patient, noted by an Army medical professional, and less than      24 hours before discharge does not, nor can it ever, support a rating of 30 percent.  Amazingly, [applicant] was nonetheless discharged the following day and assigned a 30-percent rating."

13.  The applicant was discharged the next day from the hospital, not from the Army.  It was another 3 months before an informal PEB first assigned a 
30-percent rating.  Suicidal ideation (not homicidal ideation) is a part of the description of a 70-percent rating and perhaps homicidal ideation should be viewed similarly.  The extent of disability, however, is judged after obtaining maximum medical benefit, not during the patient’s first manic episode.  The applicant was admitted because of some initial concern about suicide, but this was dispelled by the patient and the medical providers.  Homicidal ideation was said to be “probable.”  In any event, this assessment was made during a serious manic episode occurring several months before his PEB.  At the time of his PEB, suicidal ideation was no longer a factor warranting a higher rating.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X_____  ___X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by increasing the applicant's disability rating from 30 percent to 50 percent effective the date of his disability retirement.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 


much of the application that pertains to increasing the disability rating to 70 percent or higher.



      ____________X_____________
       	       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100029652



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ABCMR Record of Proceedings (cont)                                         AR20100029652



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