ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2012-01249

  						COUNSEL:  YES

						HEARING DESIRED:  NOT INDICATED

APPLICANT REQUESTS THAT:

1.  Through counsel, she be retired for disability, as of the date of her separation, based on her unfitting conditions rated as follows;
a.  Traumatic Brain Injury (TBI) - rated at least 70 percent
b.  Headaches - rated at least 30 percent
c.  Chronic Adjustment Disorder (or any other mental health condition) - rated at least 30 percent

2.  She be rated at least 100 percent disabled based on her total disability which resulted in and prevented her ability to work and engage in substantially gainful activity.

3.  She be entitled to Combat-Related Special Compensation (CRSC) as of the date of her retirement (should she be ultimately found to have been retired for disability).  

STATEMENT OF FACTS:

On 31 Dec 09, the applicant was placed on the Retired Reserve List.  

On 18 Dec 12, a similar request was considered and denied by the Board.  The Board relied upon the Air Force Office of Primary Responsibility’s (OPR) advisory recommendation, dated 25 Apr 12, specifying the preponderance of evidence reflected that no error or injustice occurred during her disability processing.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the AFBCMR Letter and Record of Proceedings at Exhibit E.

On 10 Jun 16, the United States Court of Federal Claims, Washington, DC, issued an order remanding the applicant’s case to the AFBCMR allowing the applicant to:

	1)  Allow plaintiff to, by no later than 13 Jul 16, file an amended petition and/or any additional documents that she wishes the Board to consider during the remand proceedings; 
	2)  Provide recommendations as to what relief, if any, plaintiff should obtain with respect to her current or amended petition; and 
	3)  Issue a decision regarding plaintiff's current or amended petition by no later than 13 Dec 16 (see Exhibit F).

On 13 Jul 16, the applicant, through counsel, provided a memorandum outlining alleged errors and injustices in the case from the original adjudication through the various levels of appeal, specifically the applicant’s unfitting conditions warranted a 100 percent disability rating from the Air Force just as the Department of Veterans Affairs (DVA) found.  In the memorandum, counsel reiterates the requested relief sought, highlighting each impairment and associated Veterans Administration Schedule for Rating Disabilities (VASRD) [sic] rating.  Furthermore, counsel requests the applicant’s record be corrected to reflect the combat-related finding and CRSC should the Board grant relief resulting in a retirement finding.  

In support of her request, counsel provides a memorandum outlining the findings of the Air Force, originally and on appeal, were erroneous and did not properly assess and adjudicate her case in accordance with the laws and regulations covering military disability cases.  

The applicant’s complete submission, with attachments, is at Exhibit G.

The Department of Defense (DOD) and the Department of Veterans Affairs (DVA) disability evaluation systems operate under two separate laws. Under Title 10, United States Code, Physical Evaluation Boards must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the AF disability boards must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of their condition at that time.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denying the applicant’s request indicating there is no evidence of an error or injustice and states the facts in their previous advisory remain unchanged (see Exhibit E).  The applicant contends the Physical Evaluation Board (PEB) did not fully diagnose or explore her injuries; however, the PEB is not a diagnostic panel.  The PEB is charged with determining if a member’s condition(s) renders them unfit for continued military service relating to their office, grade, rank or rating, and assign a fair compensation for conditions that ultimately result in a service member’s inability to continue performing their assigned duties.  The scope of their responsibility is to review all medical documentation provided and, based on guidance in effect at the time of adjudication, determine appropriate compensation.  While the DVA determined compensation for her service-connected diagnoses of TBI, Major Depression, and Migraine Headaches was appropriate under their guidance, there is no indication the conditions rendered her unfit to perform the duties of her office, grade, rank or rating. 
 
A complete copy of the AFPC/DPFDD evaluation is at Exhibit H.

The BCMR Psychiatric Advisor recommends partially granting the applicant’s request, by correcting her disability rating to the following; 

Migraines rated at 30 percent under Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8100; 
Depressive Disorder Not Otherwise Specified (NOS) rated at 30 percent under VASRD code 9434; 
Residuals of TBI rated at 10 percent under VASRD 8045;
with a total disability rating of 60 percent.  

The case is very complex, given the applicant’s diagnoses and their overlapping presentations, which can explain existence of diverse opinions.  Although many psychiatric disturbances appear to result directly from damage to the brain, the contributions of premorbid factors are also important in determining the nature of post-TBI psychiatric and behavioral syndromes, particularly in patients with mild to moderate brain injuries.  Any number of emotional and behavioral difficulties that existed in milder form before the brain injury can be accentuated after it.  From the record review, the applicant’s psychosocial environment was not conducive to recovery.  Due to her Duty Not Involving/Including Flying (DNIF) status at work, she was not able to perform her job in any capacity, which most likely left her feeling isolated, inadequate, and hopeless, potentially decreasing her motivation for recovery.  Per applicant’s report, she tried to avoid people which drastically limited her support network, which is a vital component of recovery.  At home, her situation was not much better and she had to endure physical and emotional abuse from her husband.  Subsequent to the meticulous review of Armed Forces Health Longitudinal Technology Application (AHLTA) records, the advisor agrees with the initial diagnosis of Adjustment Disorder.  However, with the progression of symptoms, it appears that it evolved into a more severe mental illness.  In fact, the diagnosis of Major Depressive Disorder (MDD), was considered by her provider and included as a deferential in the psychiatric notes.  A diagnosis of Depression NOS and Anxiety NOS would be very appropriate, given the severity of the applicant’s symptoms.  The applicant’s cognitive problems have a substantial psychological component and do not represent deficits due to the organic brain injury.  There is also sufficient evidence the applicant suffered from migraines at the time of her discharge and the condition was unfitting due to the reported missed days of work and medical appointments due to migraines.  

A complete copy of the BCMR Psychiatric Advisor evaluation is at Exhibit I.

AFPC/DPFDC recommends denying the applicant’s request, indicating there is no evidence of an error or injustice as the applicant fails to satisfy the preliminary CRSC criteria as she is not a retiree.  The CRSC program was established to provide compensation to certain retirees with Combat-Related disabilities that qualify under established criteria.  If the veteran fails to satisfy the preliminary CRSC criteria, no further consideration by their service department is required and the claim will be denied accordingly.

A complete copy of the AFPC/DPFDC evaluation, with attachments, is at Exhibit J.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant’s counsel on 12 Sep 16 for review and comment within 30 days (Exhibit K).  As of this date, no response has been received by this office.

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 an error or injustice.  While we note the comments of AFBCMR Psychiatric Advisor indicating that partial relief should be granted because the applicant’s records contain documentation substantiating the applicant’s contention that her additional medical conditions should have been unfitting and rated at the time of her separation, we believe a preponderance of the evidence substantiates that no corrective action is warranted.  In this regard, the Board agrees with the AFPC/DPFDD rationale as well as the Secretary of the Air Force Personnel Council finding, contrary to the AFBCMR Psychiatric Advisor’s recommendation, that even though the Department of Veterans Affairs determined compensation for her service-connected diagnoses of Major Depression and Migraine Headaches was appropriate under their guidance, these conditions did not rendered her unfit to perform the duties of her office, grade, rank, or rating.  In this respect, we agree with the opinion and recommendation of AFPC/DPFDD and AFPC/DPFDC and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Furthermore, the Board agrees the Physical Evaluation Board is not a diagnostic panel; rather, they determine if a member’s condition(s) renders them unfit for continued military service relating to their office, grade, rank or rating, and assign fair compensation for conditions that ultimately result in a service member’s inability to continue performing their assigned duties. The scope of their responsibility is to review all medical documentation provided and, based on guidance in effect at the time of adjudication, determine appropriate compensation.  The Board further agrees with the findings of the Secretary of the Air Force Personnel Council that directed the applicant be discharged with severance pay with a disability rating of 10 percent for post-concussive syndrome (residuals of traumatic brain injury) including features of Cognitive Disorder NOS and the previous findings of the AFBCMR on 18 Dec 12.  Furthermore, the Board agrees with AFPC/DPFDC that the applicant does not meet the preliminary Combat-Related Special Compensation eligibility criteria.  Therefore, in view of the above, we find no basis to recommend granting the relief sought in this application.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2012-01249 in Executive Session on 18 Oct 16 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-01249 was considered:

	Exhibit E.  Letter, AFBCMR, dated 2 Jan 13, w/ROP.
	Exhibit F.  Remand Documents, dated 10 Jun 16.
`	Exhibit G.  Letter, Counsel, dated 13 Jul 16, w/atch.
	Exhibit H.  Memorandum, AFPC/DPFDD, dated 19 Jul 16.
	Exhibit I.  Memorandum, Psychiatric Advisor, dated 30 Aug 16.
	Exhibit J.  Memorandum, AFPC/DPFDC, dated 1 Sep 16, w/atchs.
	Exhibit K.  Letter, AFBCMR, dated 12 Sep 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.