RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01865

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:	

His disability rating be increased from 50 percent to 70 percent.

APPLICANT CONTENDS THAT:

The rating applied at the time of his processing through the Disability Evaluation System should be changed to reflect the change awarded to his service-connected disabilities from the Department of Veterans Affairs (DVA), dated 5 March 2015.

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

STATEMENT OF FACTS:

On 10 August 2011, the Informal Physical Evaluation Board (IPEB) evaluated the applicant’s case – diagnosed him with Post-Traumatic Stress Disorder (PTSD) and found him unfit because of physical disability, and recommended he be placed on the Temporary Disability Retired List (TDRL) with a 50 percent disability rating.

The applicant non-concurred with the recommendation and requested to appear before the Formal Physical Evaluation Board (FPEB).

On 4 November 2011, the applicant appeared before the FPEB where they also recommended he be placed on the TDRL with a 50 percent rating.  The member concurred with the FPEB's recommendation but requested to have a onetime DVA reconsideration for his disability ratings.

On 13 March 2012, the DVA rated the applicant at a 50 percent for PTSD.

On 27 June 2014, the FPEB reevaluated the applicant’s case – diagnosed him with PTSD and found him unfit because of physical disability with a compensable percentage of 50 percent and recommended transfer from the Temporary Disability Retired List to Permanent Retirement.

On 9 February 2015, per Special Order No. ACD-01075, dated 20 January 2015, the applicant was removed from the TDRL and retired in the grade of captain per AFI 36-3212 with a compensable percentage of 50 percent for physical disability.  He served 15 years and 6 days of service for basic pay and 6 years and 6 days of active service for retirement.

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 B and E.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial indicating there is no evidence of an error or an injustice.

The Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws.  It must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation, in essence a snapshot of their condition at that time, while the DVA rating may fluctuate as the condition changes.  Based on the evidence presented at the time of the applicant’s processing through the IDES, it was determined that an assignment of 50 percent disability was the appropriate rating for those conditions determined to be unfitting at that point in time.

On 13 March 20l2 the DVA decided, “No change is warranted in the prior decision and the previously assigned 50 percent evaluation assigned for post-traumatic stress disorder (PTSD) and depressive disorder, not otherwise specified is confirmed.  There is no error in the prior decision.”  The DVA’s rating mirrored the Physical Evaluation Board’s applied disability rating of 50 percent. On 5 March 2015 the DVA increased the applicant’s disability rating from 50 percent to 70 percent.  That is more than three years after the applicant went through the IDES process.

A complete copy of the AFPC/DPFDD evaluation, with attachments, is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that AFPC/DPFDD failed to review his case both objectively and in its entirety.  The summary and argument are erroneously and entirely based on the Temporary Retirement Board in 2011, and not the Permanent Retirement Board in 2014.  While on temporary retirement his symptoms worsened.  The IPEB in 2014 recommended a decrease of rating to 30 percent.  He was granted a formal board.  The FPEB in 2014 used the most recent DVA evaluation dated May 2014 and the VASRAD rules specifically to keep him at a 50 percent rating.  At the same time the DVA evaluated his case and increased his rating to 70 percent effective May 2014 - based on the same evaluation used by the FPEB.  DPFDD tries to give the impression that the rating for the DVA and the AF are not related or conflicting one with the other.

If in 2014 the Air Force tried to decrease his disability rating to 30 percent based on some symptoms that improved, but kept it at 50 percent due to the symptoms that did not improve, they then have the responsibility to increase it to 70 percent for the symptoms that worsened during the same timeframe as when they tried to make the change by decreasing it.  Keeping the percentage at 50 percent is an injustice.  “Separate Laws” is not an argument for denial, it’s an argument for clarifying the proper application of the laws.  It does not liberate the AF of this responsibility, especially when all requirements for the application of the laws and regulations are met.

The applicant’s complete response, with attachments, is at Exhibit D.

AIR FORCE EVALUATION:

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

The applicant experienced sexual abuse at the age of four years and then trauma in his duties as a civilian police officer working in Puerto Rico and later in Washington D.C, prior to entering military service.  While in the service he experienced his Survival, Evasion, Escape, & Resistance (SEER) training.  Thus, his current state was caused by several insults prior to entering military service which is supported by his C&P evaluation conducted in 2015.  However, no Existed Prior to Service (EPTS) factor was considered in the disability rating computation to account for his pre-existing impairment. 

However, it is very clear that the applicant would like his disability raised, but I think that the applicant may not fully understand the way the disability is determined by the DVA versus the Military.  

Addressing the applicant’s desire for increase in his disability rating assigned by the Military Department from 50 percent to 70 percent, the Military Disability Evaluation System (MDES),was 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.  To the contrary, the DVA, operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length of time transpired since the date of discharge.  The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.  

He has been evaluated three times by the DVA and the first two times he was given the 50 percent rating which was in concert with the military assessment.  His last rating by the DVA was higher.  This is in keeping with Title 38 U.S.C. which allows the DVA to make such adjustments.  At the time that his TDRL was completed he had his second DVA evaluation.  He had already had the extended time of the TDRL and the conclusions were the same.  To note, his review of May 2014 by the DVA was the same as the Air Force assessment at the completion of the TDRL.  With the end of the TDRL period, his assessments by the Military Department are complete and no further changes are made.

The Psychiatric Advisor finds no inequity or impropriety and the review done in 2015 does not give any reason to change the disability assessment.  In fact, there is indication in the 2015 evaluation that the causative factor for his condition might be more related to his abuse when he was four years of age.  The training escalated the memory of the initial trauma.  This psychiatric advisor would also like to point out that the majority of his trauma was prior to his active duty experience.  That is not to minimize his current condition but to point out that the military is awarding a compensation for his inability to be in the military due to those aspects that were related to his military experience.

It might be also noted that the applicant refused medication to deal with his symptoms.  He is not participating in any treatment that would help him to resolve the symptoms that he is experiencing.  There is nothing to indicate that something is different from previous evaluations.  There is indication that he might in fact be doing better.  He is going to school even though it may not be continuous.  He continues to be restricted in his other activities but these are not changed from his previous evaluations.  

The Psychiatric Advisor would like to say that this evaluation is not meant to minimize the trauma that the applicant is experiencing and she would hope that he will return to treatment because his condition is amenable to treatment.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He is seriously concerned with the lack of objectivity and complete lack knowledge of rules, regulations, and laws presented by the people reviewing, evaluating and making the recommendations in his case.  The notes in the Psychiatric evaluation are both inaccurate and alarmingly misleading.  There is only one sentence in the entire evaluation that he agrees with.  The evaluation states “There is nothing to indicate that something is different from previous evaluations” is absolutely true and goes along his contention that his case has been handled unfairly.  His symptoms met the criteria for a 70 percent disability rating prior to being placed on the TDRL.

The evaluation also states that there’s evidence about him not being fully compliant with prescribed medication.  He has taken all medications given.  He has received recommendations but never been prescribed any drug to treat PTSD.  However, after seven funeral services for members of his wing who committed suicide in only a 10 month period, which was the reason that sparked his MEB - nobody has the right to question his decision of refusing medications that have a high risk of inducing suicidal thoughts listed as a common side effect.

While the advisory tries to make it look as if PTSD is part of “any medical condition with an established medical nexus with military service without regard to its impact upon a member’s fitness to serve, the narrative reason for separation, or the length of time that transpired since the date of discharge” - the advisory failed to grasp that PTSD is the debilitating service incurred disability that rendered him unfit for duty and was the cause for his career termination.  The Psychiatric Consultant either skimmed over his case or never read Title 10 § 1210 of the USC and DoDI 1332.18, or both.  He is not asking for the same percentage of the VA’s total disability percentage - he is asking for the same legal rating for the one and only disability for which he was found unfit for duty.

The applicant’s complete response, with attachments, is at Exhibit G.

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 an error or injustice.  The applicant’s contentions, to include his rebuttals, are duly noted; however, we agree with the opinion and recommendations of the Air Force OPRs and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The applicant has not provided any evidence which would lead us to believe otherwise.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.

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-2015-01865 in Executive Session on 11 August 2016 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01865 was considered:

	Exhibit A.  DD Form 149, dated 24 April 2015, w/atchs.
	Exhibit B.  Memorandum, AFPC/DPFDD, dated 3 June 2015,
  w/atchs.
	Exhibit C.  Letter, SAF/MRBR, dated 31 July 2015.
	Exhibit D.  Letter, Applicant, dated 5 August 2015, w/atchs.
	Exhibit E.  Memorandum, AFBCMR Psychiatric Advisor,
  dated 7 July 2016.
	Exhibit F.  Letter, AFBCMR, dated 13 July 2016.
	Exhibit G.  Letter, Applicant, dated 22 July 2016, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.