RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00942 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. His disability percentage rating be changed to 70 percent for Major Depressive Disorder. 2. His authority and reason for separation be changed to Permanent Medical Retirement with all back pay and allowances. ________________________________________________________________ _ APPLICANT CONTENDS THAT: In an 8-page brief, applicant’s counsel makes the following key contentions: a. On 4 Dec 06, he was found to be unfit for military duty and placed on the Temporary Disability Retirement List (TDRL) with a 30 percent disability rating for Major Depressive Disorder. In Oct 09, he received a re-examination where the Informal Physical Evaluation Board (IPEB) determined he warranted 10 percent disability rating, severance pay, and discharge. He intended to non-concur with the IPEB findings; however, he did not meet the 10-day deadline and could not request a formal hearing. b. Prior to his TDRL re-examination, the Department of Veterans Affairs (DVA) rated him with a 70 percent disability rating for Major Depressive Disorder with psychotic features. c. In 2006, his scores on the Outcome Questionnaire (OQ) 45 were very low, 2 and 17. This would indicate a mild impairment indicative of a condition in remission and managed well on medication, and this is how both of the applicant’s doctors described his condition at the time. However, after being re- examined in 2009, his OQ-45 score had jumped to 73. In scoring the OQ, the higher the score, the greater the report of patient distress in the areas of symptom distress, interpersonal relationships, and social roles. A total score of 63 or more is clinically significant. d. The IPEB TDRL Re-evaluation that met on 22 Oct 09 used the doctor’s report. Unlike the first IPEB, where his condition was described as severe but in remission on medication, his OQ-45 scores of 2 and 17 resulted in a 30 percent disability rating. The second IPEB re-evaluation, three years later, found his condition was not in remission with an OQ-45 score of 73, which resulted in a 10 percent disability rating. e. Under the new Integrated Disability Evaluation System, the DVA is tasked with rating disabilities and the military services now determine only fitness for duty. The applicant was precluded from contesting his TDRL IPEB findings and therefore has exhausted administrative remedies. In support of his request, the applicant provides excerpts from his medical records, a copy of his TDRL package, and his DVA Rating Decision. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant served in the Regular Air Force in the grade of captain. On 4 Dec 06, the applicant met an IPEB and was found unfit for Major Depressive Disorder, Social and Industrial Impairment Definite, and was placed on the TDRL with a 30 percent compensable rating. On 22 Oct 09, the applicant met a TDRL IPEB re-evaluation and was found unfit for duty for Major Depressive Disorder. On 27 Dec 09, he was discharged with 10 percent severance pay. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which is at Exhibit C and F. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPFD recommends denial stating there was no error or injustice that occurred during the applicant’s disability processing or at the time of his separation. The IPEB reviewed the medical information and recommended removal from the TDRL and discharge with severance pay. The findings were mailed to the applicant on 26 Oct 09 with instructions to return his election statement by 20 Nov 09, if he agreed or disagreed with the IPEB. The letter also noted that if they did not receive his signed reply by the suspense date, it was understood that he agreed with the recommended findings. Additionally, the Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws. 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. The complete DPSOE evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a 4-page brief, applicant’s counsel provides the following rebuttal comments: a. The AFPC/DPFD advisory opinion merely reiterates the scope of the service disability rating versus the scope of the determination by the DVA, but does not discuss the evidence or comment on the arguments as submitted. The advisory opinion does cite one portion of the IPEB narrative concerning work impairment; however, this analysis adds nothing to the determination of whether an abuse of discretion occurred. Although the Integrated Disability Evaluation System purports to avoid reevaluation, it also addresses the perennial complaint that the ratings given by the military services were often inconsistent and inaccurate in interpreting the Veterans Affairs Schedule for Rating Disabilities (VASRD). b. The reiteration of his disability rating with the DVA is noted. In addition, if the rating reflects a snapshot of the member’s condition at the time, then the vast disparity between the assessment of the DVA and the assessment of the doctor must be addressed as both examinations occurred during the same time period and addressed the exact same medical condition of Major Depressive Disorder. The applicant believes the DVA disability rating is accurate and is an unbiased reflection of his condition. Counsel’s complete rebuttal is at Exhibit E. ________________________________________________________________ _ ADDITIONAL AIR FORCE EVALUATION: 1. The BCMR Medical Consultant recommends denial. The Medical Consultant is aware of concerns raised by Congress regarding disparities in disability ratings between the Military Departments and the DVA. The National Defense Authorization Act of 2008 remedied this recurring problem by prohibiting use of Service-unique or Department of Defense policies in assigning disability ratings, and directing strict adherence to unifying rating policies outlined in the VASRD; or mutually agreed upon joint DoD/DVA policies. Having said that, the problem periodically raises its head in our TDRL system, where a former service member may apply for DVA benefits and receive an evaluation greater than that of the Military Department at parities in rating determination under these circumstances, which include variations in professional opinions among different professionals, variances in the time and date the evaluation was conducted and, more importantly, variances in the level and degree of signs and symptoms [or observed behavior] reported at a given time. 2. The applicant’s level of impairment in civilian social and industrial adaptability was characterized as “mild.” His Global Assessment Functioning (GAF) score was characterized as “70” [previously 65 in the MEB narrative summary]. Note the counter- balancing GAF and OQ-45 score, one depicting mild overall function and the other, his self-responses to a questionnaire. 3 Noting the applicant was first placed on the TDRL with a 30 percent rating in 2006, the Medical Consultant concedes that the interval for the TDRL re-evaluation should normally not exceed 18 months. The Medical Consultant opines that the intervening 2008 date of the DVA evaluation more closely matches the time when a TDRL re-evaluation would or should have normally taken place. However, this fact alone does not invalidate the final action taken by the Military Department in 2009, when the applicant’s level of impairment was characterized as “mild.” Additionally, a comparative review of the contents of the TDRL narrative [from 2009] and that by the DVA examiner [in 2008] shows significant differences that likely resulted in the variance in disability ratings. 4. Absent a formal investigative report or substantiated complaint regarding the applicant’s provider raising doubt to the validity of his medical assessments or the allegation that he was “coerced into significantly discounting his condition,” it is the BCMR Medical Consultant’s opinion that these statements are insufficient to invalidate the evaluation by the military doctor as a “complete fabrication” which, implicitly, did not represent the applicant’s “true mental condition,” as alleged. The complete BCMR Medical Consultant’s evaluation is at Exhibit F. ________________________________________________________________ _ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 1. The BCMR Medical Consultant opinion acknowledges that there is a significant disparity in the ratings that were given to the applicant. The opinion indicates that the applicant’s statements regarding the doctor’s bias as insufficient to invalidate his report. They disagree, arguing the fact that because a significant disagreement exists is an indication that one or the other report is inadequate, and that “variations in medical opinions” should not operate to deny a service member a medical retirement and should be resolved in favor or the member. The DVA is the expert in interpreting the VASRD and their opinion should carry great weight. 2. The Medical Consultant indicates the applicant has not provided sufficient proof that the doctor’s report does not represent the true medical condition. They argue that all one needs to do is to read the doctor’s report. In the report, the doctor indicates that the applicant complained of the exact psychotic symptoms that he complained about to the DVA and that he reported this on his OQ-45. The difference is that the doctor chose to interpret the complaints as “cultural” differences instead of as symptoms of a distressing psychosis, which makes no sense. 3. In the OQ-45, his score of 73 indicates that he acknowledged symptoms in approximately 75 percent of the questions. If a person marked at least a “2,” indicating symptoms at least some of the time, to each question he would score a 90. This is consistent with the DVA determination of a GAF of 45 which then coincides with a 70 percent rating per the VASRD. Even a cursory review of the MEB/PEB history in this case illustrates the inconsistencies in the system. Further, there is no apparent relationship between his OQ and GAF scores and his original 30 percent rating for Major Depress Disorder and his scores for the TDRL examination and the 10 percent rating. 4. Finally, there is no indication that his condition at his TDRL appointment had improved and more than sufficient evidence shows that his condition has worsened. The applicant’s complete submission is at Exhibit H. ________________________________________________________________ _ 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. After a thorough review of the evidence of record and applicant's submission, we are not persuaded that his contentions are sufficient to override the rationale provided by the Air Force Personnel Center and BCMR Medical Consultant. In this respect, although the applicant claims there was an apparent coercion tactic being used by the military medical doctor, we find no evidence to substantiate this claim. We believe the doctor, at the time of the applicant’s reevaluation, was in the best position to assess the degree or level of impairment. In this case, the doctor found the applicant’s medical condition of Major Depressive Disorder, Social and Industrial Impairment Definite, had improved from a “severe” level to a “mild” overall functioning ability that met the standard to be discharged with severance pay; as reflected in his ability to perform pharmaceutical duties. The applicant has not provided evidence to prove otherwise. In view of the above and absent evidence to the contrary, we agree with the assessment of the Air Force office of primary responsibility and the BCMR Medical Consultant and adopt their rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice. Therefore, we find no basis to recommend granting the relief sought. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ _ 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 AFBCMR Docket Number BC-2013-00942 in Executive Session on 16 Jan 14, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence for AFBCMR Doket Number BC- 2013-00942 was considered: Exhibit A. DD Form 149, dated 13 Feb 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 12 Mar 13. Exhibit D. Letter, SAF/MRBR, dated 31 Mar 13. Exhibit E. Letter, Counsel’s Rebuttal, dated 23 Apr 13. Exhibit F. Letter, BCMR Medical Consultant, dated 31 Oct 13. Exhibit G. Letter, AFBCMR, dated 4 Nov 13. Chair