RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-04637

						COUNSEL:  NONE

						HEARING DESIRED:  NOT INDICATED

APPLICANT REQUESTS THAT:

He receive a Mental-Health Diagnosis Review and Traumatic Brain Injury Review.

APPLICANT CONTENDS THAT:

He was never properly diagnosed.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 12 November 2002.

On 19 October 2004, the applicant was seen by a Medical Evaluation Board (MEB) and his case was referred to an Informal Physical Evaluation Board (IPEB) with a diagnosis of left transtibial amputation, traumatic; chronic neuropathic (phantom) pain to left low limb; and post-traumatic stress disorder.

On 17 November 2004, the IPEB evaluated the applicant’s case, found him unfit because of physical disability, and recommended temporary retirement with compensable percentage for physical disability of 50 percent.

On 12 January 2005, per Special Order No. ACD-00140, dated 9 December 2004, the applicant was retired in the grade of senior airman under the provisions AFI 36-3212 (Disability, Temporary).  He served 2 years and 2 months on active duty.  On 12 January 2005 the applicant was placed on the Temporary Disability Retired List (TDRL) with a combined compensable physical disability rating of 50 percent.

On 7 August 2006, the IPEB reevaluated the applicant’s case and found his unfitting conditions to be - left below-the-knee amputation 40 percent service connection (SC) and Anxiety disorder not otherwise specified 30 percent SC.  They found him unfit for duty and recommended permanent retirement with a disability rating of 60 percent.

On 27 September 2006, per Special Order No. ACD-01284, the applicant was removed from the TDRL and permanently retired with a compensable percentage of 60 percent for physical disability.  The applicant was credited with two years and two months of service for basic pay.

On 15 March 2013, the Air Force Personnel Center, issued a DD Form 215, Correction to DD Form 214, changing the applicant’s grade to Senior Airman, his pay grade to E-4, and his effective date of grade to 27 October 2004.

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and E.

AIR FORCE EVALUATION:

Physical Disability Board of Review (PDBR) Special Review Panel (SRP) recommends denial indicating there is no evidence of an error or an injustice.

The SRP reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military Disability Evaluation System (DES).  The evidence of the available records show that diagnoses of PTSD and anxiety disorder NOS were rendered during the DES process.  PTSD was changed to anxiety disorder NOS; therefore, this applicant appeared to meet the inclusion criteria in the Terms of Reference of the Mental Health Review Project.

The SRP considered if there was evidence for a § 4.130 rating higher than 50 percent at the time of TDRL entry.  The higher 70 percent rating is for “Occupational and social impairment, with deficiencies in most areas.”  There was no evidence in the record of recurrent suicidal behaviors, no visits to the emergency room for mental health treatment, no recurrent psychiatric hospitalizations and no impairment in judgment.  The record did not support a higher than 50 percent rating at TDRL entry and there was insufficient reasonable doubt for recommending a 70 percent TDRL entry rating.

The SRP agreed at the time of permanent retirement that the record adequately demonstrated that the applicant did not meet diagnostic criteria for PTSD.  It was noted that he continued to have persistent, but improved, anxiety, and determined that anxiety disorder NOS was the appropriate diagnosis.  The SRP considered if there was evidence for a § 4.130 rating higher than 30 percent at the time of TDRL removal.  The applicant attended college full-time and was near completion of requirements for a Bachelor’s Degree.  There was no reported history of suicidal or homicidal thoughts, plan, intent or attempts.  There was no indication of a pattern of alcohol abuse.  There was no report of legal problems.  There was no report of domestic violence or violence outside of the home.  His mental status evaluation (MSE) recorded no impairment in judgment, noted no evidence of psychosis, and no issues in orientation or hygiene.  The symptoms had stabilized with no hospitalizations and no recorded visits to the emergency room for mental health issues.  The record does not support a higher than 30 percent rating at the TDRL removal and there was insufficient reasonable doubt for recommending a 50 percent TDRL entry rating.  There is insufficient cause to recommend a change in the PEB adjudication of the applicant’s TDRL entry and permanent retirement ratings for the mental health conditions.

A complete copy of the PDBR/SRP evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 31 March 2015 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor recommends denial indicating there is no evidence of an error or an injustice.

VASRD §4.129 policy states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted.  (Authority: 38 U.S.C. 1155). In compliance with the regulation the applicant was retired on TDRL and reevaluated in April 2006.  During that psychiatric reevaluation the applicant reported nightmares, flashbacks, intrusive thoughts, insomnia, irritability and startled response.  All the above mentioned symptoms have improved from 2004.  In addition, the applicant reported having several social interactions a week, dating frequently, going to the bars, clubs, attending college and being only two semesters and an internship away from his Bachelor’s Degree.  The applicant has denied avoiding “stimuli that may be associated with his deployment”.  As a result of this report the applicant’s diagnosis was changed to Anxiety Disorder NOS and his level of impairment to “definite”.  

The applicant has carefully reviewed the psychiatric evaluation in question and agrees with the evaluating psychiatrist and the determination of the SRP.  The applicant did not meet full criteria for PTSD at that time.  By DSM-IV, PTSD is an anxiety disorder that can develop in the individual who has been exposed to a traumatic event.  It is diagnosed following very strict criteria.  The individual must exhibit at least one symptom in the “re-experiencing” category, two symptoms or more in “increased arousal” category and three in “avoidance”.  If at least one criterion is missing, the diagnosis of PTSD is not applied and instead the diagnosis of Anxiety Disorder NOS is used.  It does not imply that the disturbance is not caused by trauma or that the symptoms are not as severe as in someone with diagnosis of PTSD.  Some individuals might fit the whole criteria set up by DSM-IV but their PTSD is mild.  On the other hand, another individual might have some disabling symptoms, but not suffering from all required to be diagnosed with PTSD.  When the ratings are assigned to the diagnosed disability, the most important factor is the extent of disability and not the diagnosis in itself.  In the case of the applicant, he did not report any symptoms in the “avoidance” category, such as: avoidance of thoughts, feelings, conversations, associated with trauma; avoidance of activities, places or people associated with trauma, inability to recall an important aspect of the trauma; diminished participation in activities, feeling of detachment, inability to have loving feelings, sense of foreshortened future.  The lack of those disturbances disqualified him for PTSD diagnosis, despite many other symptoms that he continued to experience.  Of note, DVA, in 2008, awarded the applicant 50 percent SC disability, effective 12 January 2005; as a way of correcting their non-compliance with §4.129 and originally assigning the applicant only 30 percent.  It should be noted that the disability rating by the Military Department was also initially 50 percent, but was also later reduced to 30 percent based upon the evidence of improved social and occupational functioning.

Addressing the issue of possible undiagnosed TBI, this consultant would like to point out that this agency’s role does not include evaluation and treatment of patients.  In fact, the BCMR is entrusted with evaluation of records and determination if an applicant was subjected by the Department of the Air Force to an error or injustice.  In the file provided by the applicant there was limited evidence that applicant has suffered from the symptoms supporting the TBI diagnosis.  Even though, the applicant consistently complained of irritability and poor sleep, on 27 October 2004 during Compensation and Pension Psychiatric Exam the applicant reported taking nine college credits and getting A’s and B’s.  He did not have any memory related issues.  Then again, on 1 November 2004 during a Compensation and Pension Medical Exam, the applicant also denied headaches, loss of consciousness or seizures.  This consultant recognizes that the applicant was at risk of TBI by being “within 50 m of a blast; within structure hit by an explosive device” (DOD TBI initiative).  Diagnosis of mild TBI can be difficult because of the subjective nature of complaints and significant overlap with other conditions.  This consultant is not aware if applicant was screened for TBI due to the nature of his trauma and his complaints of the hearing loss and tinnitus, but since 2007 all veterans and service members at the VA are evaluated for TBI, and if the applicant did not take advantage of this opportunity he certainly should.

Even if this consultant is to presume that diagnosis of TBI was missed at the time of his discharge, it would not automatically apply that it was “unfitting” during or at the time of release from military service.  The Military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer 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 “snapshot”  time of separation and not based on post-service progression of disease or injury.

A complete copy of the Psychiatric Advisor’s evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 22 March 2016 for review and comment within 30 days (Exhibit F).  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 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 an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendations of the AFBMCR Psychiatric Advisor and the Physical Disability Board of Review and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  The Board recommends the applicant contact the Department of Veterans Affairs (DVA) to determine his full eligibility for benefits and to pursue an entitlement to receive an evaluation for TBI if necessary.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 

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 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-2014-04637 in Executive Session on 10 May 2016 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04637 was considered:

	Exhibit A.  DD Form 149, dated 18 December 2013, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, PDBR/SRP, dated 25 February 2015.
	Exhibit D.  Letter, AFBCMR, dated 31 March 2015.
	Exhibit E.  Memorandum, AFBCMR Psychiatric Advisor, dated
			  11 March 2016.
	Exhibit F.  Letter, AFBCMR, dated 22 March 2016.