IN THE CASE OF

		BOARD DATE:	    4 June 2014

		DOCKET NUMBER:  AR20140007368 


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 a review of the military disability evaluation pertaining to a mental health (MH) condition.

2.  The applicant states, in effect, the case file should be reviewed in accordance with the Secretary of Defense directive for a comprehensive review of members who were referred for a disability evaluation between 11 September 2001 and  30 April 2012 and whose mental health diagnosis was changed during that process.

3.  The applicant submitted an application through the DOD Physical Disability Board of Review (PDBR) Mental Health Special Review Panel (SRP).

CONSIDERATION OF EVIDENCE:

1.  The PDBR SRP conducted a comprehensive review of the applicant’s submissions and records for evidence of inappropriate changes in the diagnosis of a mental health condition during processing through the military disability system.  

2.  The Department of Defense memorandum, dated 27 February 2013, directed the Service Secretaries to conduct a review of mental health diagnoses for service members completing a disability evaluation process between 11 September 2001 and 30 April 2012 in order to determine if service members were disadvantaged by a changed diagnosis over the course of their physical disability process.
3.  In the processing of this case, an advisory opinion was obtained from the PDBR SRP and the applicant was provided a copy.

4.  The applicant did not respond to the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  After a comprehensive review of the applicant’s case, the SRP recommended by unanimous vote that the applicant's records should be corrected to reflect that her bipolar disorder condition was found unfitting, compensable, and ratable and  was rated at 30 percent upon Temporary Disability Retired List (TDRL) entry with a combined disability rating of 50 percent; and upon final disposition, a permanent rating of 70 percent for the bipolar disorder condition with a combined disability rating of 80 percent.

2.  The SRP considered the appropriateness of changes in the MH diagnoses;
physical evaluation board (PEB) fitness determination and, if unfitting, whether the provisions of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Section 4.129 were applicable; and whether a disability rating recommendation in accordance with VASRD Section 4.130 was made.  The MH diagnoses were not changed during processing through the Disability Evaluation System (DES) and therefore the applicant’s case did not appear to meet the inclusion criteria in the Terms of Reference of the MH Diagnosis Review Project.  The hospital discharge diagnosis of mood disorder not otherwise specified (NOS) was not part of the DES, but even if it were part of the DES, it was a "less significant" diagnosis than the bipolar disorder adjudicated by the PEB.  

3.  The SRP noted the evidence of record clearly indicated that MH symptoms interfered with the performance of duty at the time of theTDRL entry; however, the key issue is if the duty impact was due to the non-compensable Axis II personality disorder (with the Axis I bipolar disorder in essence being not unfitting), or if the Axis I bipolar disorder interfered with duty to the level of being unfitting and compensable.

4.  The commander's statement was limited to physical limitations; however, the applicant rarely completed a full work day even though she was physically capable of performing light clerical duties and the commander's memo regarding the chapter 5-13 administrative separation pending PEB determination was without any detail of command chain or personality conflict issues.  The record did not indicate any duty impairment, conflict with command, or interference with satisfying her military occupational specialty requirements prior to 2004 while deployed to Iraq.  The first record of mention of separation under chapter 5-17 was dated 27 November 2004 for Axis I adjustment disorder while deployed.  The second opinion diagnosis within 2 weeks was bipolar I, affective disorder moderate.

5.  The SRP noted the applicant was hospitalized for symptoms commonly associated with mood disorders.  The psychiatrist entry on 9 December 2004 noted the diagnosis of manic, bipolar affective disorder, moderate, with a disposition to restrict duty and recommended removing the Soldier from theater and pursuing a PEB.   The command-directed mental status exam (MSE) performed by the psychologist in December 2004 recorded a depressed mood and manic or hypomanic affect, bipolar I disorder single manic episode, and personality disorder NOS with histrionic features.

6.  The SRP noted the examiner wrote that there was clear evidence of a personality disorder that predated the service member’s (SM's) entry into the military service that rendered this individual unfit for military service.  Medical standards for diagnosing a personality disorder require evidence that certain criteria existed, one of which is the criteria that "pattern of behaviors" began prior to or during early adulthood, and that "enduring pattern" was not better accounted for by another mental illness.

7.  The SRP noted the available records in evidence (to include the commander's statement) did not provide sufficient documentation to establish clear evidence that the applicant met any diagnostic criteria for a personality disorder.  Historical data replete with corroborating, collateral information from reliable historians were not in evidence.  

8.  The applicant's treating psychiatrist (civilian) noted in November 2005 that she required medications to treat her bipolar condition and wrote, "The patient required treatment immediately with medication, to prevent any further deterioration".  The psychiatric addendum implicated both conditions as contributing to unfitness; "history reveals long standing patterns of conflictual relationships with authority figures,  as well as recurrent hypomanic if not manic episodes."

9.  The SRP noted although psychiatry treatment entries opining the medication
prescribed for treating bipolar symptoms had improved her labile affect, regarded by the writer a symptom of personality issue the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) criteria described mood lability in personality disorder and mood lability was a hallmark symptom of bipolar illness.  Therefore, in the applicant’s case it was not clear if mood lability would be present in the absence of a diagnosed bipolar condition.  Diagnostic criteria for any personality disorder required the ability to determine that symptoms described in a personality disorder are not better accounted for by another mental illness. 

10.  The SRP acknowledged the opinion that her personality construct contributed significantly to the expression of her symptoms; however, the SRP found insufficient evidence to support the opinion that the bipolar condition would not be separately unfitting for continued military service.  Therefore, SRP agreed that the symptoms of bipolar disorder and personality disorder could not be delineated from each other.

11.  The SRP considered, as a result, that the preponderance of evidence supported that both conditions were unfitting and that the condition of bipolar disorder was ratable and, therefore, compensable.  The SRP could not find convincing evidence for a pre-existing formally-diagnosed bipolar condition prior to service (existed prior to service (EPTS)) and the entry (military entrance processing station) physicals from December 1996 and June 1999 had no evidence of any MH disorder or MH symptoms.  The SRP considered that in accordance with (lAW) Department of Defense Instruction (DODI) 1332.38, E3.P4.5.2.1., the presumption of sound condition at entry was not overcome by a single unverified self-report of a history of bipolar disorder.  The personality disorder, being developmental, could have been characterized as EPTS.  The SRP, therefore, deferred to the medical evaluation board (MEB) determination of a pre-existing condition considered permanently aggravated by service.

12.  The SRP agreed that the diagnosis of bipolar disorder, NOS was well supported by the evidence and the diagnosis was appropriate.  The SRP unanimously agreed that there was not a preponderance of the evidence sufficient to change the diagnosis to Post-Traumatic Stress Disorder (PTSD) at either Temporary Disability Retired List (TDRL) entry or permanent retirement.  There was remote history in 2011 of a rape in-theater, which was not reported in the record prior to 2011 and had little substantiation in the records.  The SRP discussed the provisions of VASRD Section 4.129 (mental disorders due to traumatic stress) and adjudged that there was insufficient evidence to support application of VASRD Section 4.129 in this case.

13.  The SRP next considered the evidence for a VASRD Section 4.130 rating of the bipolar condition at TDRL entry.  The SRP considered a possible deduction for EPTS, but any MH VASRD Section 4.130 rating at the time of service entry would be either undeterminable or at the 0 percent for "... symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication."  The SRP also considered the VA's 10 percent disability evaluation for the condition of bipolar disorder proximate to the TDRL entry; however, the apportionment of symptoms to the Axis I and Axis II diagnoses was considered speculative. 

14.  The SRP finally considered if the record better supported the VASRD criteria for the 30 percent rating of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) or the 10 percent criteria of 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.  The SRP majority determined that the MH condition was compensable at a 30 percent level at entry into theTDRL.

15.  The SRP agreed that at the time of permanent retirement the record adequately demonstrated that the applicant continued to meet diagnostic criteria for bipolar disorder.  During the TDRL period, the record provided evidence of significant deterioration.  The applicant was homeless, had multiple psychiatric hospitalizations, was marginally compliant with medication treatment, and was unemployed. 

16.  The SRP noted the VA mental examiner recorded diagnoses of bipolar disorder and PTSD, removed the personality disorder diagnosis, and the VA increased the MH disability rating to 70 percent.  The TDRL evaluation was primarily focused on the unfitting wrist condition and referenced the above June 2011 VA exam for the MH condition of bipolar disorder, although that exam was stated as not available to the examiner.  The TDRL evaluation was considered in final rating determination, but was not a comprehensive MH evaluation, as it was highly focused on the unfitting orthopedic TDRL condition.  Therefore, the VA exam was the primary data used for MH rating.  The source exam appeared to primarily base conclusions on the applicant's statements with the examining physician citing the claimant as a "reliable historian."  There was little objective testing documented (such as informal testing of memory and concentration).

17.  The SRP deliberated between a 70 percent or 50 percent permanent rating. There was clear evidence of occupational and social impairment with reduced reliability and productivity noted in the record proximate to permanent retirement to support a 50 percent rating.  The SRP discussed if there was sufficient evidence for a 70 percent rating: "occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood."  There were medication non-compliance and substance abuse noted during this rating period, however, the SRP agreed that this non-compliance and abuse were clearly tied to the underlying MH condition and no rating deduction was possible. 

18.  After due deliberation in considered of the preponderance of the evidence, the SRP majority concluded with consideration of VASRD Section 4.7 (reasonable doubt), that the record in evidence best supported the 70 percent MH disability rating at the time of permanent retirement.

19.  The available evidence shows the SRP’s assessment should be accepted. 

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the applicant's records to reflect her bipolar disorder condition was found unfitting, compensable and ratable; and was rated at 30 percent upon TDRL entry with a combined disability rating of 50 percent; and upon final disposition, a permanent rating of 70 percent for the bipolar disorder condition, with a combined disability rating of 80 percent.




      _______ 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)                                         AR20040003532



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ABCMR Record of Proceedings (cont)                                  AR20140007368



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