RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03835 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His disability rating be increased from ten percent to 50 percent. ________________________________________________________________ APPLICANT CONTENDS THAT: The Formal Physical Evaluation Board (FPEB) did not consider the Department of Veterans Affairs (DVA) 50 percent rating decision when rating his Post-Traumatic Stress Disorder (PTSD) at ten percent. Based on the DVA’s separate and concurrent review of his disability nine days prior to the FPEB’s decision, his PTSD should have been rated at 50 percent by the Air Force. In support of his request, the applicant provides a supporting statement and copies of extracts of his military personnel records related to the FPEB decision, his DVA rating decision, separation orders, and excerpts from an accident report related to his PTSD. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he served as a member of the Connecticut Air National Guard in the grade of master sergeant (E-7) during the matter under review. On 19 Jan 99, a medical evaluation board (MEB) was convened to determine the applicant’s fitness for duty. After consideration of clinical records, laboratory findings, and physical examination, the MEB established that his PTSD and Major Depressive Disorder served to possibly undermine his qualifications for worldwide duty and referred the matter to the Informal Physical Evaluation Board (IPEB). On 8 Mar 99, the IPEB determined the applicant’s PTSD rendered him unfit for military service and recommended he be temporarily retired with a 30 percent combined compensable disability rating. On 9 Jun 99, the applicant was relieved from his assignment and placed on the temporary disability retired list (TDRL), effective 10 Jun 99. In accordance with 10 USC 1210, a physical examination shall be given at least once every 18 months to each member of the armed forces whose name is on the TDRL to determine whether there has been a change in the disability for which they were temporarily retired. If it is determined the member’s physical disability is of a permanent nature and stable and rated at least 30 percent under the VA Schedule for Rating Disabilities (VASRD) at the time of the determination, their name shall be removed from the TDRL and he/she shall be permanently retired. However, if it is determined the member’s physical disability is less than 30 percent disabling at the time of the determination, and if the member has less than 20 years of service, his name shall be removed from the TDRL and he may be separated. On 22 Sep 00, the applicant was directed to undergo a periodic physical evaluation on 6 Oct 00 in accordance with the requirements of 10 USC 1210. On 2 Nov 00, the IPEB determined the applicant’s PTSD had improved somewhat since his last TDRL evaluation, but still rendered him unfit to perform his military duties. Accordingly, the IPEB recommended he be assigned a combined compensable disability rating of ten percent and discharged with severance pay. On 26 Nov 00, the applicant acknowledged receipt of the action and elected to appeal the finding to the Formal Physical Evaluation Board (FPEB). On 11 Jan 01, the FPEB determined the applicant’s PTSD was more appropriately rated at 30 percent and recommended that his name be retained on the TDRL and the applicant concurred with that finding. On 18 Dec 01, the applicant was again directed to undergo a periodic physical evaluation on 10 Jan 02 in accordance with the requirements of 10 USC 1210. On 12 Feb 02, the IPEB determined that while the applicant’s PTSD continued to be unfitting, his condition had continued to improve since being placed on the TDRL allowing him to further stabilize his life. Accordingly, the IPEB recommended he be assigned a combined compensable disability rating of ten percent and discharged with severance pay. On 2 Mar 02, the applicant acknowledged receipt of the action and elected to appeal at a formal hearing, contending that his PTSD had not improved, that he continued to struggle on a daily basis. On 18 Apr 12, the FPEB upheld the IPEB determination and recommended the applicant be given a combined compensable disability rating of ten percent and discharged with severance pay due to physical disability. The applicant acknowledged receipt of the action and elected to submit an appeal to the Secretary of the Air Force Personnel Council (SAFPC). On 3 Jun 02, SAFPC directed the applicant be removed from the TDRL and discharged with severance pay with a disability rating of ten percent. In arriving at its decision, SAFPC reviewed the evidence and testimony presented and the remarks of both the IPEB and FPEB, the TDRL evaluation, the applicant’s service medical record, and the medical summary leading to the MEB. On 26 Jun 02, the applicant’s name was removed from the TDRL and he was discharged by reason of physical disability with entitlement to severance pay. The remaining relevant facts pertaining to this application are contained in the letter prepared by the AFBCMR Medical Consultant, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends denial, indicating there is no evidence of an error or injustice. The pivotal issue for consideration is the rating disparity between the DoD and DVA. In order to evaluate the applicant's petition for a higher disability rating, the TDRL examination report dated January 10, 2002 is essential to completing a proper assessment. The psychiatrist notes summarize the applicant's PTSD symptoms which include recurrent and intrusive thoughts, flashbacks, nightmares, and other symptoms. The PTSD is further described as chronic with marked impairment for further military duty and definite impairment for civilian social and industrial adaptability. Prognostic comments indicate the requirement for lifetime therapy and medication to control symptoms. Also stated, "The applicant remained competent for pay and records purposes." In regards to social functioning, comments by the psychiatrist indicate, "He continues to run a small business and is financially stable. He currently owns a house and has a roommate." Under Title 10, United States Code (USC) the military departments can only offer compensation for and when an illness or injury is the cause for termination of a service member's career; and then only to the degree of impairment present at the "snap shot" time of final military or TDRL disposition. The DVA rating schedule designates a 50 percent rating for the following, "Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory or stereotyped speech; panic attacks more than once per week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationship." However, the information contained in the TDRL examination report fails to document a degree of functional impairment consistent with these findings, and the documentation presented by the applicant is not sufficient for a 50 percent disability rating. Moreover, there is no documentation describing the more salient features of a DVA 50 percent disability rating such as panic attacks, memory loss or impaired judgment/thinking. To the contrary, the applicant was noted to run a small business, performed duties as an Emergency Medical Technician, and owned and operated a home with a roommate. These entries imply that a significantly higher level of functioning was present at the time of TDRL separation compared to those described in the DVA 50 percent rating description. While there are Congressional concerns of disparities in rating decisions between Military Departments and the DVA for the same medical condition, resulting in legislation directing the use of DVA or mutually agreed upon (DoD) policies when adjudicating disability cases, this does not guarantee there will be no variation in clinical assessments and opinions between or among equally competent and credentialed medical authorities; whether a DVA, civilian, or military provider. Finally, the applicant should also be reminded that, unlike the Department of Defense, operating under Title 10, United States Code, the DVA, operating under a different set of laws (Title 38, USC), offers compensation for any service incurred or aggravated medical condition, without regard to its impact upon a service member's retainability, fitness for duty, or reason for career termination. Moreover, the DVA is authorized to conduct periodic re-evaluations for the purpose of adjusting the disability rating award (up or down) as the level of impairment from a given medical condition may vary (improve or worsen) over the lifetime of the veteran. Thus, the mere fact the applicant has received a different (higher) disability rating and compensation by the DVA does not constitute a justification for a like action by the DoD. The applicant has not met the burden of proof to justify the desired change of the record. A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the AFBCMR Medical Consultant evaluation was forwarded to the applicant on 26 Jun 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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 recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. 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 RECOMMENDS 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-2011-03835 in Executive Session on 26 Jul 12, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-03835 was considered: Exhibit A. DD Form 149, dated 28 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR Medical Consultant, dated 22 Jun 12. Exhibit D. Letter, AFBCMR, dated 26 Jun 12.