RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04249 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Disability with Severance Pay (DWSP) discharge, rated at 20 percent, be increased to 40 percent and he receive a permanent disability retirement. APPLICANT CONTENDS THAT: His disability discharge, effective 23 Aug 11, should be increased to 40 percent based on his Department of Veterans Affairs (DVA) rating he received in May 12. His appeal through the DVA was submitted prior to his separation as a part of the “Quick Start Program.” His Generalized Anxiety Disorder (GAD) should be appropriately rated at 50 percent disabling. In Accordance With (IAW) criteria established by the Department of Defense (DoD) Policy Memorandum, dated 14 Oct 08, that implemented the Disability-Related Provisions of the National Defense Authorization Act (NDAA) of 2008, it states “The Secretaries of the Military Departments may not deviate from the schedule or any interpretation of the schedule, including any applicable interpretation of the Veterans Affairs Schedule for Rating Disabilities (VASRD) by the United States Court of Appeals for Veterans Claims.” The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 10 Feb 04, the applicant initially entered active duty in the Regular Air Force for a period of four years. According to his Medical Evaluation Board (MEB) report, dated 29 Mar 11, the applicant was diagnosed with Myalgia and Myositis; Sleep Apnea, and Anxiety. The MEB recommended the applicant’s case be referred to the Informal Physical Evaluation Board (IPEB). On 3 May 11, the IPEB diagnosed the applicant with Myalgia and Myositis, diagnosed with Fibromyalgia (FM); Obstructive Sleep Apnea (OSA) requiring CPAP, and GAD. The IPEB found the applicant unfit for further military service and recommended he be disability separated with severance pay, with a compensable disability rating of 20 percent. On 13 May 11, the applicant concurred with the findings of the IPEB. On 18 May 11, the Secretary of the Air Force Personnel Council (SAFPC) directed the applicant be separated for physical disability with severance pay, rated at 20 percent. On 23 Aug 11, the applicant was discharged with severance pay with a compensable disability rating of 20 percent. He was credited with 7 years, 6 months, and 14 days of active service for retirement. According to information provided by the applicant, a DVA Rating Decision, dated 23 May 12, rated the applicant at 40 percent for Fibromyalgia. AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of separation. DPFD notes that prior to full Initial Operating Capability (IOC) of the Integrated Disability Evaluation System (IDES) in 2011, all disability cases were processed under what is now referred to as the Legacy Disability Evaluation System (LDES). Under LDES, the military services were charged with determining a member's disability rating utilizing the VASRD. In making that determination, they were required to take into account all medical conditions, whether individually or collectively, that rendered the member unfit to perform the duties of the member's office, grade, rank or rating. This determination was based on the medical documents provided as a part of the MEB. A review of the applicant's MEB resulted in the IPEB determining the level of his unfitting condition of Myalgia and Myositis, diagnosed with fibromyalgia, was best rated at 20 percent. The Directive Type Memorandum (DTM-11-015), dated 19 Dec 11, Policy, states: “All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES.” Based on this guidance, a change of the rating applied to the applicant's unfitting condition at the time of the IPEB to that provided by the May 12 DVA decision is not warranted and does not meet the intent of the DTM. The complete DPFD evaluation is at Exhibit C. The BCMR Medical Consultant recommends amending the applicant’s record to reflect a compensable disability rating of 40 percent due to Fibromyalgia, under VASRD code 5025, effective 23 Aug 11. The Medical Consultant notes the significant evidence in the applicant’s service treatment records that would lead a Physical Evaluation Board (PEB) to reach the conclusion that his symptoms were not constant or nearly so; which would justify the 20 percent disability rating. At the same time, some of the statements indicate a baseline level of pain that was possibly constant, e.g., “consistently even” and “constantly about two to 3/10” but with “exacerbations” up to 9/10. Quantifying this pattern of pain in the context of the rating criteria exposes the flaws in the subjective criteria. Whether the aforementioned description of pain should be interpreted as episodic, to mean periods of no pain, versus some pain with periodic worse pain, is open for Court interpretation. Since the applicant’s VA treatment records and Compensation & Pension examination are not supplied, the Consultant can only speculate that the VA examiner interpreted the applicant’s complaints as being constant or nearly so, based upon whatever was disclosed during clinical evaluations. The applicant’s counsel advises the Board to consider the “benefit of doubt” doctrine and contends he should be given the 40 percent rating as assigned by the DVA. Furthermore, the Board is confronted with the fact that disparities in rating decisions between the Military Department and DVA for the same medical condition(s) on the same member are what contributed to Congressional actions leading to establishment of the IDES. Under the IDES only the DVA assigns disability ratings for all service connected medical conditions, while the Military Department only applies the applicable rating to the unfitting medical condition(s) in reaching its final personnel disposition; namely, either discharge with severance pay [if condition(s) rated less than 30 percent], permanent retirement [if rated at least 30 percent and stable or not likely to change], or temporary retirement [if rated at least 30 percent, but condition not yet stabilized]. Had the IDES been fully implemented at the time of the applicant’s case, we would not be in the current discussion of the rating disparity. The Medical Consultant considered the totality of evidence and noted the interactive nature of the components of the applicant illness, which involved his sleep quality, level of anxiety, possible somatization beyond the applicant’s ability to placate in the presence of co-morbid anxiety disorder [and possible pain disorder], at a given time, in deciding to recommend granting the 40 percent disability rating. The complete BCMR Medical Consultant evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant and counsel agree with the 40 percent disability rating with permanent retirement as recommended by the AFBCMR Medical Consultant. The counsel’s complete response is at Exhibit E. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice. While we note the comments of AFPC/DPFD indicating that relief should be denied because the applicant’s records contain no documentation substantiating the applicant’s contention or that no error or injustice occurred during the disability process or at the time of separation; we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has been the victim of an error or injustice. In this respect, we note the BCMR Medical Consultant indicates that based on the available evidence of record, the DVA examiner interpreted the applicant’s complaints as being constant or nearly so and he notes the applicant experienced episodic pain and worsening pain, from his condition which justifies a rating increase to 40 percent. However, the Board found no evidence within the record to support the applicant’s contention for a 50 per cent rating for GAD. Therefore, we recommend the applicant's records be corrected as indicated below. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. On 18 May 11, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; the diagnosis in his case was Fibromyalgia, that his condition was under VASRD code 5025; with a disability rating of 40 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not as a direct result of armed conflict or caused by an instrumentality of war and was not combat-related. b. On 23 August 2011, he was discharged from active duty and on 24 August 2011, he was permanently retired with a compensable percentage for physical disability of 40 percent. c. His election of the Survivor Benefit Plan option will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. The following members of the Board considered AFBCMR Docket Number BC-2014-04249 in Executive Session on 19 Jan 2016 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 23 Aug 14, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 17 Dec 14. Exhibit D. Letter, BCMR Medical Consultant, dated 5 Jun 15. Exhibit E. Letter, SAF/MRBR, dated 17 Sep 15. Exhibit F. Letter, Counsel, dated 10 Oct 15.