RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-00028 XXXXXXXXXX COUNSEL: XXXXXXXXXX HEARING DESIRED: YES APPLICANT REQUESTS THAT: His discharge with a 50 percent disability rating be increased to a 100 percent disability rating retroactive to 17 August 1978. APPLICANT CONTENDS THAT: His disability due to his burns had not changed during his time on the Temporary Disability Retired List (TDRL). The Physical Evaluation Board (PEB) relied on an examination limited to the functionality of his hands. The PEB failed to consider his other disabilities: (1) his psychological trauma, and (2) his severe intolerance to extreme temperatures. As a result of a catastrophic military plane crash in 1976, he suffered second and third degree burns over 25 percent of his body, was found 100 percent disabled, and placed on the TDRL. The next year his injuries caused him to be permanently retired from the Air Force and the PEB unjustly rated him as only 50 percent disabled. The Department of Veterans Affairs (DVA) examination completed on 10 November 2009, yielded results that are exactly the same as those enumerated in the 1977 Medical Evaluation Board (MEB). It is therefore a clear and unmistakable error for the PEB conducted in 1978 to use the Veterans Affairs Schedule for Rating Disabilities (VASRD) code for second degree burn scars (7802) when the fact is that the burn scars are third degree (7801). The Board should find it in the interest of justice to excuse his failure to timely file because he was not aware the 50 percent disability rating was erroneous. He received a memorandum from the Air Force Physical Disability Division dated 6 August 2010, which showed that he was still suffering from the identical injuries that placed him on the TDRL with a disability rating of 100 percent. In support of his request, the applicant provides copies of his AF Forms 356, Findings and Recommended Disposition of USAF Physical Evaluation Board; newspaper articles, clinical records, DVA Rating Decisions; and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to AF Form 711, USAF Mishap Report, dated 11 October 1976, the applicant was 1 of 5 passengers who survived an aircraft accident that killed 5 crew members and 10 passengers on 16 September 1976. According to DA Form 8-18, Medical Board Proceedings dated 20 January 1977, the applicant received second and third degree burns involving the rear, anterior trunk, arms, hands and thighs. The MEB determined the applicant was not qualified for duty and recommended his case be presented to the PEB. According to AF Form 356 dated 31 January 1977, the Informal PEB (IPEB) recommended the applicant be placed on the TDRL with a 100 percent disability rating for the aforementioned injuries with an effective date of 22 February 1977. Unfitting burn areas were assigned specific disability ratings under the VASRD codes 7801 (Scars, burns, third degree) and 7802 (scars, burns, second degree). According to AF Form 356 dated 16 June 1978, the IPEB found the applicant fit and recommended he be removed from the TDRL and returned to duty. In a letter dated 20 June 1978, the applicant was advised of his options as they pertained to the IPEB findings. On 30 June 1978, the applicant did not concur with the recommended findings and requested an appearance before the Formal PEB (FPEB) In a letter dated 1 August 1978, a plastic and reconstructive surgeon who cared for the applicant's hands provided a letter to the PEB challenging the notion that he was fit to return to duty. The provider concluded, “It would be fallacious to say that this man's hands are not capable of not flying an airplane.” Additionally, the surgeon expressed that the extent of the applicant's “burns both second and third degree, which were the genesis of the board action, have not changed.” Among concluding remarks, the provider stated that although the applicant is capable of flying, after a thorough psychiatric evaluation, to evaluate his reaction to the accident, there is no way to expunge the burn scars and resultant skin defects that he has acquired. According to AF Form 356 dated 17 August 1978, the FPEB found the applicant unfit and recommended removal from the TDRL and permanent retirement with a combined disability rating of 50 percent. Special Order Number 16864 issued on 8 September 1978, removed the applicant from the TDRL and retired him with a disability rating of 50 percent effective 26 September 1978. According to the DVA Rating Decision dated 23 March 2006, the evaluation of Post-Traumatic Stress Disorder (PTSD) which was 30 percent disabling was increased to 70 percent effective 31 August 2004. In a letter to the applicant dated 19 February 2010, the DVA advised the applicant that some of his individual disability percentages increased. However, his overall combined rating of 100 percent remains unchanged. A memorandum from AFPC/DPSDC dated 6 August 2010, addressed to the applicant, indicates approval for Combat Related Special Compensation (CRSC) with a combined rating of 90 percent for his burn scars and for PTSD effective January 2008 and increased to 100 percent effective November 2008. AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. Aside from the 34 years that have transpired since the applicant's release from the TDRL and his permanent retirement with a 50 percent disability rating, he is reminded that disability ratings assigned for compensation by the Military Department, under the Legacy Disability· Evaluation System, were only applied to those aspects of an illness, disease, or injury that were determined unfitting for military service. One can argue the post-service characterization of some of the applicant's third degree burns might indicate no change has occurred since initial injury and that in 1978 some burns were characterized as “unchanged.” However, the fact that the DVA assigned the applicant a 100 percent disability rating and he has received CRSC for PTSD is not proof that the ratings underlying these actions are reflective of the applicant's actual functionality at the time of his release from the TDRL in 1978. Specifically, operating under Title 10, United States Code (USC) the Military Department assigns fitness and rating determinations based upon the clinical evidence [severity, stability, functional impairment] present at the “snap shot” time of final military disposition, and not upon future changes or developments; particularly those occurring or identified decades post service, notwithstanding the 1978 letter from the applicant's plastic and reconstructive surgeon. Operating under a different set of laws, Title 38 USC, the DVA is authorized to offer compensation for any medical condition with a nexus to military service, e.g., the applicant's PTSD, without regard to its proven or demonstrated impact upon a service member's retainability or fitness to serve at the time of release from military service; nor the intervening period since release from military service. Thus, it is conceivable that the DVA assigned disability ratings for some of the applicant's scars, which were not considered separately unfitting. Nevertheless, the use of the term “unchanged” in the 1978 letter challenges the notion of a reduction in a previously assigned higher disability rating when first placed on the TDRL. However, it appears this letter was largely generated to challenge the decision of the IPEB to return the applicant to duty, fit to resume pilot duties. Although the applicant's arguments suggest he may have been 'short-changed' in his military disability ratings of 1978, the Medical Consultant finds it difficult to supplant or invalidate clinical evidence of 1978 which resulted in the specific unfit findings, with a clinical opinion based upon symptoms reported and rating decisions made two to three decades later. The complete Medical Consultant’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 18 October 2011, the applicant requested his case be administratively closed until such time he is able to proceed. In a letter dated 28 March 2014, the applicant’s counsel requested the applicant’s case be reopened. Counsel asserts that while the BCMR Medical Consultant recommends the applicant’s request be denied, an examination of the clinical evidence available in 1978 demonstrates that the applicant was 100 percent disabled at the time of his release from TDRL. Counsel’s complete response, with attachments, is at Exhibit F. ADDITIONAL AIR FORCE EVALUATION: AFPC/DPFD concurs with the BCMR Medical evaluation and recommends denial. The preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of separation. As background, the Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws. Under Title 10, USC, PEBs must determine if a member's condition renders him or her unfit for continued military service relating to his or her office, grade, rank or rating. The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling his or her military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of his or her career. Further, it must be noted the USAF disability boards must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of the member’s condition at that time. It is the charge of the DVA to pick up where the Air Force must, by law, leave off. Under Title 38, the DVA may rate any service- connected condition based upon future employability or reevaluated based on changes in the severity of a condition. This often results in different ratings by the two agencies. The complete DPFD evaluation is at Exhibit C. APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: The entire “Discussion” section is devoted to one point, that the DoD and the DVA have different laws, which may lead to different disability ratings by the different Departments. That point is not relevant to the applicant’s claim, which is that at the time of his release from the TDRL on 17 August 1978 the PEB incorrectly found that his condition had improved from 100 percent disabled to 50 percent disabled, when all of the medical evidence on that date showed he was still 100 percent disabled just as he was the day he was placed on TDRL. The PEB ruling in 1978 was unjust and erroneous because all of the medical evidence available to the PEB showed that the applicant’s disability due to his burns had not changed during his time on the TDRL; any reliance by the PEB on an examination limited to the functionality of the applicant’s hands was misplaced; no consideration was given to the psychological trauma that he was suffering; and no consideration was given to the fact that his burns made him unfit to work in extreme temperatures. The only two physicians who conducted complete, full-body examinations before the PEB hearing were the plastic and reconstruction surgeon who treated the applicant for the four months after the plane crash and who re-examined him again two weeks before the PEB, and the chief of plastic surgery who examined the applicant two days before the PEB hearing. These physicians found his burn injuries 100 percent disabling. The third physician, a hand surgeon, focused his evaluation solely on the burns on the applicant’s hand and concluded, “As a hand surgeon, I can honestly say I feel that this gentleman would be very able to fly an aircraft providing that his psychological status would warrant this.” (Emphasis added.) No such examination was performed until many years later. Despite the reports provided by the two physicians who conducted complete, full-body examinations and with no other evidence to the contrary, the PEB downgraded the applicant’s disabilities to 50 percent. Further, in finding that his disabilities had changed and in downgrading his disabilities by 50 percent, the PEB made no mention of the plastic and reconstruction surgeon’s 1 August 1978 report in which he concluded that “the areas of burns for which he was initially boarded have not changed” in the 18 months he was on TDRL (emphasis added). Counsel’s complete response is at Exhibit K. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We note the applicant requests his discharge with a 50 percent disability rating be increased to 100 percent retroactive to 17 August 1978. However, based on the available evidence it is our opinion the applicant's disability rating of 50 percent was properly adjudicated and the applicant has not provided substantial evidence which would lead us to believe that his separation was in error or contrary to the governing Air Force instructions. The applicant's case has also undergone an exhaustive review by the BCMR Medical Consultant and we do not find the evidence sufficient to overcome his assessment of the case. Therefore we agree with the opinions and recommendations of the Air Force office of primary responsibility and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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. The following members of the Board considered this application in Executive Sessions on 12 February 2015, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR BC-2012- 00028 was considered: Exhibit A. DD Form 149, dated 1 September 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Medical Consultant, dated 1 October 2012. Exhibit D. Letter, SAF/MRBC, dated 5 October 2012. Exhibit E. Email, Applicant, dated 18 October 2012. Exhibit F. Letter, SAF/MRBC, dated 18 October 2012. Exhibit G. Letter, Counsel, dated 28 March 2014, w/atchs. Exhibit H. Letters, Counsel, dated 30 May 2014 and 3 June 2014. Exhibit I. Letter, AFPC/DPFD, dated 3 June 2014. Exhibit J. Letter, SAF/MRBR, dated 12 November 2014 Exhibit K. Letter, Counsel, dated 11 December 2014.