ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2006-03406-2

XXXXXXX (APPLICANT)	COUNSEL: XXXXXXX & XXXXXXXX	
		          
	HEARING REQUESTED: YES
	
APPLICANT’S REQUEST

Through counsel, for the Board to reconsider his request to be permanently retired for physical disability, or in the alternative, placement on the temporary disability retired list (TDRL), effective 1 August 1990 and be moved to permanent disability retirement by 1993 or 1995.  

His military records be corrected to reflect an 80 percent disability rating for seizure disorder and a 30 percent disability rating for PTSD, giving him a 90 percent combined disability rating at the time of discharge.

RESUME OF THE CASE

The applicant is a former airman first class, discharged with entitlement to severance pay along with a 10 percent disability rating.  On 18 September 2007, the Board considered and denied his request to be permanently retired for reason of physical disability, with all associated back pay and allowances.  The Board was unpersuaded that the applicant’s disability rating should be changed.  Moreover, the applicant had provided insufficient evidence of an error or injustice to justify relief.  

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit E. 

On 27 July 2019, through counsel the applicant requested reconsideration of his request to be permanently retired for physical disability or as an alternative, his placement on the TDRL and subsequent assignment for permanent disability retirement.  The applicant contends his military records at discharge should reflect an 80 percent disability rating for seizure disorder, and a 30 percent disability rating for post-traumatic stress disorder (PTSD), resulting in a combined disability rating of 90 percent.   The assignment of a 90 percent disability rating at discharge would result in qualification for permanent military disability retirement.  He further contends he suffered from seizure disorder and PTSD since early 1990, which resulted in the end to his military career.  A Physical Evaluation Board (PEB) unlawfully assigned him a low disability rating for seizure disorder and “conversion disorder,” foreclosing his ability to qualify for permanent military disability retirement or placement on the TDRL.  

Counsel argues that according to Johnson v. Shinseki, 2010 WL 729932, for a claimant to receive a certain disability rating for epileptic seizures, the claimant must average the requisite number of seizures “per month over the previous year.” Based on his medical records, he averaged one major seizure every one-and-a-half months for the year preceding the PEB’s decision, which is more frequent than the rate of major seizures required for an 80 percent disability rating.  

The applicant further contends that he sustained three head injuries and was the victim of a violent sexual assault during his two-plus years of Air Force service.  His memory of the assault caused his mental health to decline, contributing to his seizure disorder and PTSD.  Although he confided in family and friends, he never reported the assault to military authorities because of embarrassment, and the stigma associated with homosexuality and sexual assault.  In addition, he feared that no one would believe him and did not want attention brought to his sexual orientation.

His first diagnosed seizure was about two months after the sexual assault and a month later, he was hospitalize because of further episodes.  He continue to have seizures that led to the Medical Evaluation Board’s diagnosis of “Seizure Disorder.” A PEB ultimately diagnosed him with “Seizure Disorder” and “Conversion Disorder, recurrent, with no social and industrial impairment,” resulting in the assignment of a disability rating of 10 percent for the “Seizure Disorder” and zero percent for the “Conversion Disorder.”  

As of today, the applicant experiences multiple seizures per month, displays the symptoms associated with PTSD and has the human immunodeficiency virus (HIV).  His doctor indicated that despite a previous negative HIV test, it is impossible to exclude the episode of sexual assault as the source of the HIV infection, and the Board of Veterans Appeals (BVA) granted him service connection for HIV.  The Department of Veterans Affairs (DVA) raised the applicant’s disability rating for seizure disorder from 10 percent to 60 percent within 18 months, and his rating for Conversion Disorder went unchanged.  The DVA later raised the disability rating for Seizure Disorder to 100 percent.  

The applicant’s diagnosis of “Conversion Disorder,” relabeled as PTSD set his disability rating at 50 percent.  His veterans affairs (VA) doctor identified the stressor for his PTSD was the result of his sexual assault that he incurred during his military service, and concluded the “Conversion Disorder” was not the proper diagnosis.  The symptoms exhibited by the applicant shortly after the sexual assault match those associated with a 30 percent disability rating for PTSD.  

Moreover, at a minimum the applicant should have been placed on the TDRL because his conditions had not achieved a state of stability to accurately be assigned a disability rating.  The PEB record indicated the applicant’s disabilities “may be permanent.” 

The applicant’s complete submission is at Exhibit F.

AIR FORCE EVALUATION

The Psychological Advisor recommends denying the application.  The applicant’s counsel contends the applicant’s diagnosis of Conversion Disorder was relabeled as “PTSD.” The relabeling of the applicant’s diagnosis was based on a Compensation and Pension (C&P) examination performed by a VA mental health provider.  The VA provider reported that there was no evidence of the applicant meeting the criteria for a Conversion Disorder and opined that he was not given the proper diagnosis for his very rare condition.  As noted, Conversion Disorder is very rare and the applicant most likely did not meet the criteria for Conversion Disorder at the time of the C&P exam.  The VA provider arrived at a PTSD diagnosis due to the reports from VA and private physicians that extended years beyond the applicant’s separation from service, statements from his family and friends that described their observations of his behaviors after being sexually assaulted, and the applicant’s own disclosure of the sexual assault.  

The applicant did not report his sexual assault while in the service.  As such, the VA had information not given to military providers.  While it is understandable and common that sexual assault victims may not choose to report their assault, a mental health care provider can only assess and determine the most accurate and appropriate diagnosis through the reporting of such information.  Therefore, it is erroneous to conclude that the diagnosis made by the military providers was deliberately inaccurate.  His diagnosis contributed to the clinical presentation, observation, and information provided by the applicant to the provider and considered the best-fit diagnosis at the time.  Claims for diagnostic errors [particularly mental health conditions] have been on the rise, fueled largely by differences between a non-compensable service diagnosis and service connection for a different [and compensable] diagnosis made by the VA; sometimes soon and sometimes much later after separation. Policies are established within the DVA to address diagnostic changes in the implicit effort to render the most appropriate rating decisions within this Agency. 

The military’s Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot”  time of separation and not based on post-service progression of disease or injury. To the contrary, the VA, operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length of time transpired since the date of discharge. The VA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.

The applicant did not meet the criteria for a PTSD diagnosis in service or any other mental health condition that warranted a higher disability rating at the time of separation.  In addition to military providers, the applicant received an evaluation by the VA during his MEB process and evaluated twice by the VA for compensation purposes. Each time, he received a zero-percent disability rating for Conversion Disorder and no other mental health condition.  While noted that it may take time for symptoms to develop that meets criteria for a disorder, the applicant received the diagnosis of PTSD, 18 years after his separation from the military.  He had anxiety and other than Conversion Disorder, there was no evidence that he had any other mental health conditions that were unfitting and warranted a higher disability rating.  

The application of liberal consideration in this case is due to the applicant’s contention of PTSD from a sexual assault during his military service.  However, there is no substantiated evidence that the applicant suffered from PTSD while serving in the military.  In addition, there is no evidence that he had any other unfitting mental health conditions that would provide him a higher disability rating than he received when awarded zero percent for Conversion Disorder.  Since there is no substantiated evidence that the condition of PTSD existed during service or at the time of discharge, it is impossible to opine if his condition or experience mitigates or outweighs the applicant’s discharge.  

The complete advisory opinion is at Exhibit I.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion and consent letter to the applicant on 24 July 2020 for comment (Exhibit J), and the applicant’s counsel replied on 22 August 2020.  In response, counsel contended the Psychological Advisor’s credentials are unclear and it seems unlikely to be that of an expert in trauma specific to sexual assault.  Moreover, implementation of policy guidance and liberal consideration were void in the review.  The opinion was limited to the applicant’s PTSD condition.  However, the Board should consider the severe nature of the applicant’s seizure disorder at the time of his military service.  Moreover, the opinion failed to address the arguments raised as it relates to the applicant’s medical conditions.  The advisor further erred in basing a determination on whether the diagnosis of Conversion Disorder made by the military providers at the time was deliberately inaccurate.  The reliance on the applicant’s zero-percent disability rating for Conversion Disorder is inadequate, for the condition was misdiagnosed.  The applicant warranted a 90 percent combined disability ratings at discharge for his seizure disorder and PTSD, resulting in qualification for permanent military disability retirement.  

It is evident that the applicant suffered from a seizure disorder while in the service, qualifying him for an 80 percent disability rating at the time discharge.  Had the psychological advisor used the correct method of inquiry and properly applied the evidence and arguments presented, it is clear that the evidence sufficiently establishes that the applicant suffered from PTSD as a result of the sexual assault, qualifying for a 30 percent disability rating at the time of discharge.  Specifically, the applicant’s symptoms from his sexual assault while in the military were depression, anxiety, nightmares, isolation, and memory loss.  In fact, he suffered from both a seizure disorder and a mental health condition, then diagnosed as Conversion Disorder and subsequently clarified as PTSD.  All of which was qualification for a 90 percent combined disability rating at the time of military service.

In addition to the applicant’s request to be granted a permanent disability retirement or in the alternative his placement on TDRL and subsequent receipt of permanent military disability retirement by 1993, he now specifically request a 90 percent combined disability rating at the time of discharge which would qualify him for a permanent military disability retirement. Counsel further contends had the applicant received placement on the TDRL, his disabilities would have been evaluated at least once every 18 months, and it would have been discovered that his seizure disorder became worse.  A review of his medical records clearly shows that the Air Force would have moved him from the TDRL to permanent military disability retirement by 1993 because by then, his PTSD has become permanent and stable.  His suicide attempt would have merited a 70 percent disability rating for PTSD.    

The applicant had another condition other than the advisor’s sole focus on his PTSD.  The applicant’s records demonstrate that he received the diagnosis of a seizure disorder and found to be unfitting during the time he was in the service. At the very least, he should have been retired with an 80 percent disability for seizure disorder, alone.  However, since the applicant also suffers from PTSD, that condition must also be taken into consideration when determining the proper combined disability rating at the time of his discharge.  It was during the applicant’s March 2008 VA Compensation and Pension Examination that doctors pinpointed the sexual assault, which happened during his service as the “stressor” for his PTSD.  Moreover, doctors and the applicant’s family and friends all date his symptoms to be shortly after his sexual assault.  With the advancement in knowledge and improved understanding of PTSD, in addition to the evidence presented, the applicant was suffering from a condition, now understood to be PTSD due to sexual assault that merited a 30 percent disability rating at the time of his discharge.  The applicant’s testimony, coupled with the testimony of his friends and family, is sufficient to establish the existence of PTSD due to the results of his sexual assault, and should be substantial evidence of an in-service diagnosis.  

The impact of the applicant’s sexual assault was completely disregarded, as well as, why he did not report his sexual assault.  He felt he had no other option but to hide his symptoms and impairment.  His fellow service members frowned upon reporting PTSD symptoms, doubted those who reported their symptoms and branded victims of PTSD with a harsh stigma, and military policy would have prohibited him from serving as an openly gay man.   

The applicant’s counsel complete response is at Exhibit K.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, which include the additional documentation submitted in support of the applicant’s appeal and the evidence of record, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of the Psychological Advisor and finds a preponderance of the evidence does not substantiate the noted contentions.  In this respect, the Board notes the Air Force and the DVA disability system operate under separate laws.  Under the Air Force system (Title 10, U.S.C.), Physical Evaluation Boards must determine whether an Airman’s medical condition renders them unfit for duty and apply the rating best associated with the level of disability processing (a snapshot in time).  That rating determines the final disposition (discharge with severance pay, placement on the temporary disability retired list, permanent retirement) and is not subject to change after the service member has separated.  Under the VA system (Title 38, U.S.C.), the member may be evaluated after separation and their rating may be increased or decreased based on changes in the member’s medical condition at the current time.  However, a higher rating by the DVA “based on new and/or current examinations conducted after discharge from service” does not warrant a change in the total compensable rating awarded at the time of the members’ separation.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Specifically, there is no evidence presented indicating the applicant was unfit above the 10 percent disability rating at the time of separation.  It is undisputed that the applicant’s condition worsen post-service, hence the change in his VA ratings.  Moreover, we note counsel cited a case essentially asserting that for a claimant to receive a certain disability rating for epileptic seizures, the claimant had to experience a certain number of seizures per month over the previous year.  Counsel asserts the circumstances cited are significantly close enough to this application, which warrants similar consideration and for granting relief.  We note that each case presented before this Board is considered on its own merits.  While we do strive for consistency in the manner in which evidence is evaluated and analyzed, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case.  We believe that the Air Force appropriately considered the applicant’s condition at the time of discharge does not warrant a higher rating.  Therefore, the Board recommends against granting the relief sought in this application.  

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2006-03406-2 in Executive Session on 11 September 2020 and on 19 February 2021.

, Panel Chair
, Panel Member
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit E:	Record of Proceedings, w/ Exhibits A-D, dated 15 October 2007.
Exhibit F:	Application, DD Form 149, w/atchs, dated 27 July 2019.
Exhibit G:	Documentary evidence, including relevant excerpts from official records.
Exhibit H:  Consolidated Clarifying Guidance, various dates, dated 19 December 2019.
Exhibit I:	Advisory opinion, Psychological Advisory, dated 21 January 2020. 
Exhibit J:	Notification of consent letter and advisory, SAF/MRBC, dated 24 July 2020.

Exhibit K:	Applicant’s counsel response, dated 22 August 2020 (received 20 October 
                 2020).

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.