RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05224 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His diagnosis of stress related pseudo-seizures be included as an unfitting and compensable condition. ________________________________________________________________ APPLICANT CONTENDS THAT: His AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 14 May 09, included depression as a Category II, Condition that can be unfitting but was not compensable or ratable at the time. The Department of Veterans Affairs (DVA) rated him at 30 percent for anxiety disorder. In support of his request, the applicant provides copies of his DVA rating decision, AF Form 356, and AF IMT 348, Line of Duty Determination. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to AF IMT 618, Medical Board Report, a Medical Evaluation Board (MEB) convened on 5 Nov 08 and referred the applicant to the Informal Physical Evaluation Board (IPEB) for diagnosis of peripheral autonomic neuropathy. According to Special Order ACD-01674 dated 23 Jul 09, the applicant was placed on the Temporary Disability Retired List (TDRL) in the grade of Technical Sergeant (TSgt, E-6) with a compensable percentage for physical disability of 30 percent. Per AF Form 356 dated 13 May 11, the IPEB recommended the applicant be retired with a 30 percent disability rating for diagnosis of incomplete, moderate ulnar neuritis right hand. According to Special Order ACD-02491 dated 16 Jun 11, the applicant was removed from the TDRL effective 6 Jul 11 and retired in the grade of TSgt with a compensable rating of 30 percent for physical disability. ________________________________________________________________ AIR FORCE EVALUATION: The Physical Disability Board of Review (PDBR) Special Review Panel (SRP) recommends there be no change of the applicant’s disability and permanent disability retirement determination. After careful review of the evidence, the panel members concluded there was no indication that the mental health conditions, although contended by the applicant for the DVA rating, significantly interfered with satisfactory duty performance. The SRP concluded that there was insufficient cause to recommend addition of any unfitting mental health condition and therefore no additional disability ratings can be recommended. According to his medical treatment records he sought care on 22 Apr 06 while in Qatar for three episodes of shaking inside (which the applicant described as feeling like he was going to have a seizure). He returned to the United States and was evaluated by his family physician and a civilian neurologist who found no underlying medical cause for the shaking episodes. The neurologist diagnosed probable anxiety attacks with associated, hyperventilation, and made a referral to psychiatry. On 21 Jun 06, the applicant reported on his post deployment health assessment he had been getting anxiety attacks after his deployment and was receiving treatment. On 18 Jun 07, a mental health entry noted diagnosis of depression, ADHD-inattentive type and partner relational problem. The applicant reported his “panic attacks” had improved, his anger had diminished, there were periods of depressed feelings, but the episodes were less frequent and less severe. His ADHD symptoms had also improved. At the time of processing through the Disability Evaluation System (DES), depressive disorder, but not anxiety disorder, was listed by the PEB. The SRP however concluded that this indicated the PEB did consider the anxiety disorder since it was associated with the depressive disorder diagnosis and the PEB had the service treatment records for review in reaching the not unfit determination. At the time of the PEB removing the applicant from the TDRL and permanent disability retirement, no mental health diagnoses were listed; therefore the depression and anxiety were appropriately not considered by the PEB at the time of removal from TDRL and permanent disability disposition. The SRP noted the mental health conditions were never profiled. The applicant therefore did not meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project. The complete PDBR SRP evaluation is at Exhibit C. _____________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 8 Nov 13, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit D). As of this date, this office has not received a response. ________________________________________________________________ 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that he was improperly separated from active duty. The DES established to maintain a fit and vital fighting force can by law under 10 U.S.C. only offers compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snap-shot” time of final military disposition and not based on future occurrences. On the other hand, the DVA, operating under a different set of laws, 38 U.S.C., is authorized to offer compensation for any medical condition determined service incurred, without regard to its demonstrated or proven impact upon a service member’s fitness for continued service. This is the reason why an individual can be found fit for release from active military service for one reason and yet receive a compensation rating from the DVA for one or more other conditions found service connected that was not proven militarily unfitting during service or at the time of release from military service. Therefore, we agree with the opinion and recommendation of the Physical Disability Board of Review (PDBR) Special Review Panel (SRP) and adopt the rationale expressed 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 favorably consider the applicant’s request. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that 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 Docket Number BC- 2013-05224 in Executive Session on 28 Aug 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Apr 13, w/atchs. Exhibit B. Applicant’s Master Personnel Records Exhibit C. Letter, PDBR SRP, dated 18 Oct 13, w/atch. Exhibit D. Letter, SAF/MRBR, dated 8 Nov 13.