RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-02608

	COUNSEL: NONE

	HEARING: YES

APPLICANT REQUESTS THAT:

His discharge with severance pay be changed to a permanent disability retirement based in part on information that was not available to the Formal Physical Evaluation Board (FPEB) at the time his case was adjudicated.  

APPLICANT CONTENDS THAT:

In Jun 12, he was placed on the Temporary Disability Retirement List (TDRL) at 60 percent.  In May 13, an Informal Physical Evaluation Board (IPEB) and subsequent FPEB (Sep 13) lowered his Post-Traumatic Stress Disorder (PTSD) rating to 10 percent and he was medically discharged.  The Department of Veterans Affairs (DVA) conducted their own review of his PTSD and rated him at 50 percent, shortly after the FPEB finding.  He should have received a permanent disability retirement.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a medically discharged Air Force technical sergeant.

On 29 Jun 12, the applicant was placed on the TDRL with a compensable percentage for physical disability of 60 percent for PTSD and bilateral plantar fasciitis and credited with 12 years, 5 months, and 10 days of active service.  

On 11 Jun 13, the IPEB reassessed the applicant’s unfitting medical conditions, changed his PTSD unfitting condition to Anxiety Disorder, and recommended discharge with severance pay with a compensable percentage for physical disability of 20 percent.  

On 27 Jun 13, the applicant disagreed with the IPEB findings and requested a FPEB appearance.  

On 24 Sep 13, the FPEB agreed with the IPEB findings and recommended discharge with severance pay with a compensable percentage for physical disability of 20 percent.

On 25 Sep 13, the applicant disagreed with the FPEB findings and requested his case be referred to Secretary of the Air Force personnel council (SAFPC).  

On 7 Oct 13, the applicant emailed AFPC/DPFDF stating he was “requesting to withdrawal that appeal and accept discharge from the TDRL and separation from the services.”  

On 28 Jan 14, the applicant was notified SAFPC directed he be removed from the TDRL and discharged with severance pay.  

On 17 Feb 14, the applicant was removed from the TDRL and discharged with severance pay.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and E.

AIR FORCE EVALUATION:

AFPC Disability recommends denying the application based on the applicant’s medical condition being stabilized at the time the decision was made.  The complete advisory is at Exhibit C.

The AFBCMR Medical Advisor recommends denying the application; however, recommends an additional assessment by a mental health consultant in accordance with the 2015 National Defense Authorization Act based on the overlapping symptoms among several mental disorders.  

Although the DVA twice maintained the 50% disability rating for PTSD, the TDRL evaluation by the Air Force psychiatrist determined the applicant did not meet full criteria for the PTSD diagnosis and that his symptoms more closely were consistent with an Anxiety Disorder.  It was also determined that the Anxiety Disorder was “mild” or had a minimal negative effect on the applicant’s social and occupational/industrial adaptability consistent with assignment of a 10% disability rating.  Doing so resulted in a reduction in the applicant’s combined disability rating below the requisite 30% to warrant retirement eligibility.  Consequently, the applicant was removed from the TDRL, only with entitlement to severance pay.

While one could argue that the mental health diagnosis and rating determination by the Military Department were erroneous, the decisions by the Air Force 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 DVA recommendation.  Nevertheless, there are recognized reasons for disparities in disability ratings and variances in diagnostic impressions within the mental health profession; some base 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 Air Force at TDRL re-evaluation and the DVA rating and diagnostic impression appears to be due to variances in disclosures during interviews; less severe and more anxiety-related at the Air Force assessment versus disclosure of more classic features of PTSD at the DVA clinical examinations. The latter decision is also confounded by the applicant’s presentation at an emergency room in June 2013; albeit precipitated by the notice that his disability would remove him from retirement eligibility. Thus, it stands to reason why the DVA retained the applicant’s 50% disability rating, as well as the diagnosis of PTSD.

Although most of the applicant’s somatic complaints were not found unfitting these have also affected his occupational desires and, hence, likely contribute to his overall emotional status at a given time.  Thus, the Board may consider the probative value of the sustained DVA decisions and the apparent exacerbation of the applicant’s mental status in June 2013 in considering permanent retirement with a 30 percent disability rating due to Anxiety Disorder.  The complete advisory is at Exhibit D.

The AFBCMR Psychiatric Advisor recommends granting the application, concurring with the Medical Advisor opinion and recommendation for a permanent retirement of 30 percent due to Anxiety Disorder (VASRD code 9413).  The complete advisory is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 27 Apr 18 for comment (Exhibit F), and the applicant replied on 14 May 18.  In his response, the applicant concurs with the opinions of the medical advisors and does not desire to submit any further evidence.  The applicant’s complete response is at Exhibit G.

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor, in addendum, clarifies the basis for the recommendation to increase the PTSD disability rating.  It is evident that during his 13 May 13 TDRL re-evaluation, the applicant did not meet Diagnostic and Statistical Manual of Mental Disorders (DSM) IV criteria for PTSD.  However, by the time the applicant appealed to the FPEB, his presentations had changed.  The medical consultant has described in details the applicant’s visit to the Emergency Room and subsequent DVA mental health appointments.  The FPEB failed to incorporate the new clinical information into their rating decision and therefore, the final rating decision was not consistent with the applicant’s presentation at the snapshot time of the FPEB adjudication.

Addressing the PTSD disability rating, the DVA is the ultimate rating authority in the IDES process and DOD must accept the proposed DVA rating.  Since the Air Force adopted the original DVA’s rating recommendation of 50 percent for PTSD, it was in compliance with the policy.  In contrast, during TDRL re-evaluation the Air Force considers all the clinical information available; however, is not bound by DVA disability decision.  Consequently, the applicant’s occupational and social impairment was consistent with the 30 percent disability rating for Anxiety Disorder and the applicant’s diagnostic change (PTSD to Anxiety Disorder) does not impact his final disability rating.  The complete advisory is at Exhibit H.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board emailed a copy of the addendum Air Force evaluation to the applicant on 10 Jul 18 for comment, but has received no response.  

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is the victim of an error.  While the Board notes the comments of AFPC Disability and the AFBCMR Medical Advisor indicating that relief should be denied, the Board believes a preponderance of the evidence substantiates the applicant’s contentions.  In this regard, the Board concurs with the rationale and recommendation of the AFBCMR Psychiatric Advisor that the applicant’s Anxiety Disorder warrants a permanent rating of 30 percent.  The Board further notes the applicant had a 10 percent rating due to Bilateral Plantar Fasciitis with Arthritis, and when combined with the Anxiety Disorder rating of 30 percent results in a final combined rating of 40 percent.  The Board agrees with the AFBCMR Medical Advisor that the applicant’s other medical conditions do not warrant any further change in the record.  Therefore, the Board recommends correcting the applicant’s records 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 the Board’s understanding of the issues involved.

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 17 February 2014, the applicant was removed from the Temporary Disability Retired List (TDRL) and transferred to the Permanent Disability Retired List (PDRL) with a combined disability rating of 40 percent, which was comprised of an increased rating of 30 percent due Anxiety Disorder Not Otherwise Specified (VASRD code 9413) and a 10 percent rating due to Bilateral Plantar Fasciitis with Arthritis (VASRD code 5003-5284).  

b.	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 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-2016-02608 in Executive Session on 27 Jun 18 and on 21 Sep 18:

Chair
Panel Member
Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 22 Jun 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC Disability, dated 13 Oct 16.
Exhibit D:	Advisory opinion, AFBCMR Medical Advisor, dated 1 Aug 17.
Exhibit E:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 28 Mar 18.
Exhibit F:	Notification of Advisory, SAF/MRBC to applicant, dated 27 Apr 18.
Exhibit G:	Applicant’s response, dated 14 May 18.
Exhibit H:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 5 Jul 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.