RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 02-01026

	APPLICANT	COUNSEL:  XXX

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her disability rating be changed back to a compensable rating greater than 30%.

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THE APPLICANT CONTENDS THAT:

Based on a Temporary Disability Retired List (TDRL) reevaluation in October 1999, which did not portray her condition, her disability rating was reduced from 50% to 30%.  However, five months prior to the TDRL reevaluation, the Department of Veterans Affairs (DVA) rated the same condition as severe, with a compensable rating of 70%.

The applicant states that she disagrees with the Informal Physical Evaluation Board (IPEB) findings that her condition is not expected to significantly change in the next couple of years.  Since the reevaluation, she has been hospitalized on four occasions.  Her condition was not stable and has deteriorated.  Had the reevaluation discovered her instability, she would have remained on the TDRL throughout her hospitalizations and an accurate picture of the permanent impairment would have been possible.

In support of the appeal, the applicant submits extracts from her service and DVA medical records.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force and entered active duty on 21 January 1985.

A Medical Evaluation Board (MEB) convened on 27 February 1998, to determine whether she should be continued on active duty due to depressed mood with disturbance in occupational functioning.  Based on the diagnosis of major depressive disorder, recurrent, severe, with psychotic features, they referred her to an Informal Physical Evaluation Board (IPEB).

On 21 May 1998, an IPEB convened and determined she was unfit and based on the diagnosis of major depressive disorder, recurrent, with considerable social and industrial adaptability impairment, VASRD 9434, recommended she be temporarily retired with a 50% disability rating.  She agreed with the findings and recommendations of the IPEB.

On 3 August 1998, her name was placed on the Temporary Disability Retired List (TDRL) with a compensable disability rating of 50%.  She completed 13 years, 6 months, and 12 days of active service.

On 10 August 1999, the Department of Veterans Affairs (DVA) awarded her a combined compensable disability rating of 90% based on major depressive disorder, with psychotic features - 70%; allergic conjunctivitis, shin splints and stress fracture right leg - 10%; hypothyroidism with goiter - 10%; chronic lumbosacral strain - 10%; left wrist fracture, post operative with scars - 10%; left carpal tunnel syndrome - 10%; temporal mandibular joint syndrome - 10%; ecema - 10%; cholecustectomy - 0%; and scars residual to tattoo removal, mole excision, right shoulder - 0%.  She was entitled to receive compensation at the 100% rate because she was unemployable due to service-connected disability.

On 19 October 1999, she underwent a TDRL reevaluation that diagnosed her condition as major depressive disorder, recurrent, in partial remission with treatment.  Her degree of impairment for military service was determined to have been marked and her degree of impairment for civilian social and industrial adaptability was determined to have been moderate.

An IPEB convened on 1 November 1999, and based on the diagnosis of major depressive disorder, definite social and industrial adaptability impairment, VASRD 9434, rated at 30%, recommended she be permanently retired with a 30% disability rating.  The IPEB noted that the applicant’s medical condition had improved since her placement on the TDRL and her symptoms were minimal.  The applicant did not agree with the findings and recommendation of the IPEB and submitted a written rebuttal in lieu of a formal board.

The Secretary of the Air Force Personnel Council (SAFPC) considered the applicant’s rebuttal to the findings of the IPEB and determined the level of impairment of her major depressive disorder was best described as definite, with a 30% disability rating.

Effective 22 February 2000, she was removed from the TDRL and permanently retirement by reason of physical disability in the grade of staff sergeant, with a compensable disability rating of 30%.

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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant states, in part, that the applicant’s supporting evidence rests only on her report and her civilian psychologist’s report rendered two years after the final disposition of her case and only weakly supports consideration for an increase in her military disability rating.  There is no clear evidence of impropriety or inequity in her disability discharge or rating; however, the adjudication of 30% versus 50% is based on subjective reporting of symptoms that are in dispute.  The applicant contends that her TDRL evaluation and rating were improper because the Air Force psychiatrist rushed the evaluation and made errors in the narrative summary.  In spite of this, she waived her right to a formal hearing that would have afforded the opportunity for a second psychiatry evaluation to be considered by the board.  The evidence does not support a rating of 70% at the time of permanent retirement.  Although the DVA rated her at 70% based on historical information she reported to them, she does not receive her mental health care through the DVA and their assessment was based on information she reported to the evaluating psychologist.  Furthermore, although the Air Force is required to rate disabilities in accordance with the DVA Schedule for Rating Disabilities, the DVA operates under a totally separate system with a different statutory basis.  The DVA rates for any and all service-connected conditions, to the degree they interfere with future employability, without consideration of fitness.  Whereas the Air Force rates a member's disability based on the degree of severity at the time of separation.  The psychologist reports submitted by the applicant detailing more severe symptoms seem as credible as the TDRL evaluation report and there is no way to resolve the conflict.

The BCMR Medical Consultant evaluation is at Exhibit C.

AFPC/DPPD recommends the application be denied.  AFPC/DPPD states, in part, that the applicant has not submitted any documentation to show she was improperly rated or processed under the provisions of federal law and policy at the time of her permanent disability retirement.

The AFPC/DPPD evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

She met the criteria for a higher disability rating; however, the results of her examination did not portray her condition because it was inadequate.  Had the examination been adequate, it would have shown that her condition was unstable and she would have remained on the TDRL.

The applicant’s complete response, with attachments, is at Exhibit F.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that relief should be granted.  The applicant contends, in essence, that had her TDRL reevaluation examination properly portrayed her condition as being unstable, she would have remained on the TDRL throughout her hospitalizations and ultimately awarded a disability rating higher than 30%.  We disagree.  In this respect, we note that during the TDRL reevaluation examination, the applicant denied recurrence of any symptoms suggestive of psychosis or depression.  In addition, she indicated that she was spending a considerable amount of time caring for her elderly parents and enjoying her part time job. In view of this, and since she was responding to her prescribed medication, with minimal side effects and remission of depressive symptoms, the examining psychiatrist determined the severity of her Social and Industrial adaptability was moderate.  The IPEB, however, noted that her symptoms were minimal and that she did not demonstrate a significant requirement for hospitalization.  Therefore, the IPEB determined the severity of her Social and Industrial adaptability was best described as definite and recommended that she be permanently retired with a rating of 30%.  The applicant did not concur with the IPEB’s findings and waived her right to a formal PEB, instead choosing to provide a written appeal to the Secretary of the Air Force Personnel Council (SAFPC).  The SAFPC considered her written appeal, which included her 10 August 1999 DVA rating decision, and concurred with the IPEB’s recommendation to permanently retire her with a 30% rating.  Although the Air Force is required to rate disabilities in accordance with the DVA Schedule for Rating Disabilities, the DVA operates under a totally separate system with a different statutory basis.  The DVA rates for any and all service-connected conditions, to the degree they interfere with future employability, without consideration of fitness.  Whereas the Air Force rates a member's disability based on the degree of severity at the time of separation.  In the applicant’s case, at the time of her TDRL reevaluation examination there had been no requirement for hospitalization since her initial hospitalization in January 1998.  Based on a review of the evidence provided, we are not persuaded that she was inappropriately rated at the time of her permanent retirement or that the assigned rating was contrary to the governing Air Force Instruction which implements the law.  In view of the foregoing, and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number 02-01026 in Executive Session on 16 January 2003 under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Jan 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 17 Sep 02.
    Exhibit D.  Letter, AFPC/DPPD, dated 6 Nov 02.
	Exhibit E.  Letter, SAF/MRBR, dated 15 Nov 02.
	Exhibit F.  Letter, Applicant, dated 11 Dec 02, w/atchs.