ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00942

  	COUNSEL: 
	
	HEARING: YES

APPLICANT REQUESTS THAT:

1. His disability percentage rating be changed to 70 percent for Major Depressive Disorder.

2. The authority and narrative reason for separation be changed to a Permanent Medical Retirement with the associated back pay and allowances.

RESUME OF THE CASE:

On 16 Jan 14, the Board considered and denied a similar request for correction of military records submitted by the applicant, finding that 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 H.

On 26 Dec 16, through counsel, the applicant requests reconsideration of his request to be medically retired with a 70 percent disability rating.    In a 10-page brief, counsel requests reconsideration based on the following key contentions:

	As new evidence, the applicant’s previous supervisor provides a letter that acknowledges the applicant’s psychiatrist, at the time, was someone he knew, which had his supervisor known this, he would have had someone else evaluate the applicant.  As the newly presented evidence demonstrates, it was an error for a provider with a previous relationship with the applicant to conduct such an important evaluation.  How can a person be unfit to stay in the Army [sic], but only receive a 10 percent disability rating with a mental health (MH) condition?  

	Why would a person who was diagnosed with Major Depressive Disorder and evaluated at a 30 percent disability level in late 2006, be temporarily retired, and the same disorder later evaluated by the VA at a 70 percent disability rating in 2007, be discharged with only 10 percent disability rating.  He is currently 100 percent disabled with the VA.  

	At the time of his reevaluation in 2009, his Outcome Questionnaire (OQ) 45 score had jumped to 73.  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.  

	On 22 Oct 09, he was reevaluated using the same report from the 2006 evaluation that included the psychiatrist’s recommendation that he deserved a 10 percent rating and separation from the service with severance pay.  The reevaluation did not take into consideration the OQ-45 score of 73, which clearly shows he was not in remission.  

	The applicant intended to “non-concur” with the IPEB reevaluation; however, he missed the deadline.  The paperwork he received from the Chief Counsel of the IPEB was confusing.  On the one hand, the memo he received said that his election must be received no later than 20 Nov 09.  The memorandum was dated 26 Oct 09, which would have given him 25 days to respond.  However, in the instructions from Chief Counsel, he was informed “Upon receipt of the decision of the IPEB regarding your case, you have the right to confer with government provided legal counsel on whether to rebut the IPEB’s findings.  As you have only 45 days to do so, it is in your best interest to contact counsel as soon as possible.”  When he responded to the IPEB finding, he non-concurred but was told he only had 10 days to respond with his election.

The applicant’s complete submission is at Exhibit I.

AIR FORCE EVALUATION:

The BCMR Psychological Advisor opines that the applicant’s MH symptoms align with a 30 percent disability rating and recommends an increase from 10 percent to 30 percent due to Major Depressive Disorder under VASRD code 9434, IAW 38 C.F.R, Section 4.130.  After reviewing the applicant’s available medical records and utilizing relevant policies published by the DoD and VA, the Psychological Advisor finds there is not enough evidence to support granting the applicant’s request to increase his disability rating to 70 percent; however, his records does support an increase to a 30 percent disability rating.

By way of background, when a service member enters the Medical Evaluation Board (MEB) for separation, under the Integrated Disability Evaluation System (IDES), the VA is the single rating authority and the Department of Defense (DoD) to include the Air Force must accept the VA rating for the unfitting condition(s).  Nonetheless during the TDRL reevaluation and adjudication process, DoD is not bounded by the VA’s ratings and makes its decision independently considering the VA and/or civilian medical records and the results of the TDRL reevaluation.  The decision by the DoD are based upon the evidence present and available at the “snapshot” time of TDRL assessment; albeit within reasonable proximity to the date of an examination and recommendation by the VA.  Nevertheless, the Psychological Advisor recognizes reasons for disparities in disability ratings and variances in diagnostic impressions within the mental health profession; some based upon variances in clinical presentation at a given time, different disclosures during a subsequent interview, clinical bias between equally competent clinicians, or legitimate differences due to new observations made over the longer period of care.  In this case, the most significant reason for the variance between the rating, and diagnostic impression of the DoD at TDRL reevaluation and the VA rating and diagnostic impression, appears to be due to variances in disclosures during interview.  It was less severe and more anxiety-related at the DoD assessment versus disclosure of more classic features of Major Depressive Disorder at the VA clinical examinations.

The complete advisory is at Exhibit J.

AFPC/DPFDC recommends denial.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice occurred during the processing of his medical case. At that time, the IPEB was operating under the “Legacy Disability Evaluation System (LDES).”  At the time, the IPEB used Narrative Summaries provided by the applicant’s servicing Military Treatment Facility (MTF) to determine both fitness for duty and ratings for any unfitting conditions.  In this case, the IPEB found the applicant unfit for continued service for Major Depressive Disorder with a rating of 10 percent.  His rating was based on his social and industrial adaptability impairment rating, which was classified as “mild” at that time.  Additionally, he had not been hospitalized, had good supportive marriage, and was working as a pharmacist. The Board used the guidelines established in the Veterans Administration Schedule for Rating Disabilities (VASRD) to derive his rating.  Under LDES, each Service determined their own VASRD ratings for unfitting conditions, whereas the VA provided disability ratings independent of those of the Services.  It was common for rating differences between the Services and the VA to occur.

The complete advisory is at Exhibit K.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 13 Sep 18 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

After reviewing all Exhibits and the new evidence provided in support of the applicant’s appeal, the Board finds that the applicant has not provided sufficient evidence to warrant the requested relief.  While the BCMR Psychological Advisor recommends increasing the applicant’s disability rating to 30 percent, the Board instead agrees with the opinion and recommendation of AFPC/DPFDC and adopt the rationale expressed as the basis for its decision the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  Therefore, the Board recommends against correcting the applicant’s records.

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

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

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-2013-00942 in Executive Session on 20 Nov 18:

, Panel Chair 
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit H:	Record of Proceedings, w/ Exhibits A-G, dated 18 Feb 14.
Exhibit I:	Application, DD Form 149, w/atchs, dated 29 Dec 16.
Exhibit J:	Advisory opinion, BCMR Psychological Advisor, 3 Aug 18.
Exhibit K: Advisory opinion, AFPC/DPFDC, dated 11 Sep 18.
Exhibit L:	Notification of Advisory, SAF/MRBC to applicant, dated 13 Sep 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9 pertaining to Docket Number BC-2013-00942.