RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04421 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: Her compensable disability rating of 30 percent should be changed to not less than 50 percent in accordance with (IAW) 38 Code of Federal Regulations (CFR) 4.129 and Department of Defense (DoD) policy retroactive to her Date of Separation (DOS). ________________________________________________________________ THE APPLICANT CONTENDS THAT: She was assigned a 30 percent disability rating and placed on the Temporary Disability Retired List (TDRL) upon her separation from active duty. However, IAW the class action notice, her military records should be corrected to reflect the highest disability rating applicable, of not less than 50 percent for her Post-Traumatic Stress Disorder (PTSD); which is consistent with the governing law and DoD policy to the extent that such increase should not adversely affect her total compensation, including but not limited to benefits under the Combat-Related Special Compensation (CRSC). In support of her appeal, the applicant provides a personal statement. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Prior to the applicant’s separation, the applicant underwent a Medical Evaluation Board (MEB), which began in Aug 05 through Oct 05, resulting in a diagnoses of PTSD and Major Depressive Disorder. The primary stressor resulting in the applicant's clinical diagnoses was due to her being raped while deployed, in late 2002; additional history reflects the applicant required hospitalization in Sep 03 for symptoms of depression and anxiety after attempting suicide by cutting her wrists. The applicant did not report the incident of rape formally to military officials or an investigative agency until the day of her mental health assessment in Aug 05. The applicant’s case was referred to the Informal Physical Evaluation Board (IPEB) and she was diagnosed with PTSD associated with Major Depressive Disorder, Social and Industrial Adaptability, Definite. The IPEB recommended the applicant be placed on the TDRL with a 30 percent disability rating. The applicant agreed with the decision of the IPEB and the Secretary of the Air Force Personnel Council (SAFPC) directed the applicant’s name be placed on the TDRL with a compensable disability rating of 30 percent. The applicant was relieved from active duty, on 9 May 06, and placed on the TDRL. She was credited with 1 year, 9 months, and 24 days of active service for retirement. The applicant returned for a TDRL medical re-evaluation on 15 Oct 07 and they determined the applicant’s name should be removed from the TDRL and she be permanently retired with a 30 percent disability rating. The applicant name was removed from the TDRL, on 22 Jan 08, and she was permanently disability retired with a compensable rating of 30 percent. ________________________________________________________________ THE AIR FORCE EVALUATION: The BCMR Medical Consultant recommends a change of the record to reflect the applicant was placed on the TDRL with a 50 percent disability rating, effective the previously established date of TDRL placement, and that she was removed from the TDRL and retired permanently with a 30 percent disability rating, effective 22 Jan 08. The BCMR Medical Consultant notes that the Military Departments are required to utilize the Veterans Affairs (formerly Administration) Schedule for Rating Disabilities (VASRD) when assigning disability ratings. This requirement was punctuated by the National Defense Authorization Act of 2008, which prohibited use of Service or DoD policies when making disability rating determinations. The IPEB assigned the applicant's disability rating of 30 percent, but did not follow the specific guidance under Section 38 CFR 4.129, which was applicable to the veteran's illness, which reads: "When a stressful event is severe enough to bring about the veteran's release from active military service, a disability rating of no less than 50 percent will be assigned, followed by the scheduling of an evaluation within the 6 month period following the veteran's discharge to determine whether a change in evaluation is warranted." The Office of the Under Secretary of Defense thereafter issued specific guidance to Service BCMR's (including Naval Records) when conducting appellate reviews of qualifying cases, by directing the retroactive assignment of an initial disability rating not less than 50 percent for a period of six months, with the final disability rating based upon applicable evidence. This retroactive six-month period can be best characterized as a de facto TDRL status with the subsequent rating decision based upon the available evidence. In the case under review, the applicant was indeed placed on the TDRL. However, the IPEB assigned an initial disability rating of 30 percent, in violation of Section 38 CFR 4.129. To correct this deficiency, the Medical Consultant opines the record should be changed to reflect the applicant was, instead, placed on the TDRL with an initial disability rating of 50 percent. However, following this initial period on the TDRL, the evidence is insufficient to reflect the 50 percent disability should have been sustained; or that the applicant should have been permanently retired at this rating. Although the IPEB referred to the applicant's clinical status as "essentially unchanged" since the previous evaluation, it should be noted that their previous evaluation was at the 30 percent rating level. The Medical Consultant opines, by a preponderance of evidence, the applicant's medical condition and her ability to function had indeed improved since her placement on the TDRL and justified the reduced rating to reflect this improvement in function. From a pay standpoint, the applicant is advised that although she was on the TDRL at the 30 percent rating level, her actual pay, by policy, was at the 50 percent rating level. This means, the applicant is unlikely to warrant disbursement of additional pay as a result of the recommended change of the record. Nevertheless, the Consultant is aware of often competing/different medical assessments made by the Department of Veterans Affairs (DVA), utilizing templates to guide evaluation of patients and the assignment of disability ratings; as compared to evaluations conducted by military health care providers. Should the applicant present evidence to reflect the final rating determination by the Military Department requires reconsideration, evidence should be supplied to this effect, e.g., competing disability ratings and evidence assigned by the DVA for the same condition at or about the time of the rating decision by the Military Department. The complete BCMR Medical Consultant evaluation, with attachment, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 13 Aug 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. It appears the applicant has not exhausted all remedies provided by existing law or regulations in regard to her request for benefits under CRSC. The Board advises the applicant to apply for CRSC benefits and or compensation through the appropriate office at the Air Force Personnel Center. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. The BCMR Medical Consultant has provided a thorough review of the applicant’s case and has adequately addressed the issues presented, and we are in agreement with his opinion and recommendation. In addition, we note, since the governing law and policy requires members placed on the TDRL to be rated at the 50 percent level; this means, the applicant is unlikely to warrant disbursement of additional pay as a result of the recommended change of the record. Therefore, we recommend the applicant’s record be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. On 9 May 2006, she was relieved from active duty and her name was placed on the Temporary Disability Retired List (TDRL), with a compensable disability rating of 50 percent, rather than 30 percent. b. On 22 January 2008, her name was removed from the TDRL and she was permanently retired in the grade of Senior Airman by reason of physical disability with a compensable rating of 30 percent. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04421 in Executive Session on 13 September 2011, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 27 Sep 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Medical Consultant, dated 12 Aug 11, w/atch. Exhibit D. Letter, SAF/MRBR, dated 13 Aug 11.