RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04514 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Post Traumatic Stress Disorder (PTSD) be rated by the Informal Physical Evaluation Board (IPEB) so his combined rating would increase and entitle him to a permanent disability retirement. _________________________________________________________________ APPLICANT CONTENDS THAT: He was not rated for his PTSD due to an administrative oversight. He was clearly misrepresented at his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB), and in turn was not given an accurate PEB disability rating upon discharge. His diagnosis of PTSD was not included in the letter written by his doctor for the MEB. His doctor was remiss in not addressing the PTSD that one of her professional colleagues at Parkview Medical Center addressed and describes. She noted his diagnosis was not substantiated in the admission/discharge write-ups. However, the medical documentation from Parkview Medical Center describes his diagnosis of PTSD. Nevertheless, upon the discharge from Parkview and his Veterans Administration (VA) evaluation, he was certainly rated for PTSD and it was tied to his combat tour in Iraq. In a four-page letter, the applicant depicts his life from the start, as the son of a dedicated soldier, to the present time, a former airmen who fought for his country and now struggles to cope with the reoccurring images of violence and death, after war. According to federal law, the military is required to give anyone whose PTSD is severe enough to warrant discharge, a rating of at least 50 percent--a level that qualifies them for lifetime medical treatment for the veteran and his family, as well as monthly tax-free retirement payments if the rating is combat- related. In support of his request, the applicant provides a personal statement, a letter from his former First Sergeant, and copies of his service medical records and Department of Veterans Affairs (DVA) rating decision. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 12 Sep 08, the applicant underwent a MEB for anxiety/personality disorder. The MEB Medical Summary, dated 2 Sep 08 and prepared by a USAF psychiatrist, outlines the applicant’s medical condition and states, during this examination the member specifically denied having experienced any symptoms which would have been consistent with the diagnosis of PTSD at that time. His diagnosis on that occasion was “Axis I: Anxiety Disorder, Not Otherwise Specified (NOS) and Axis II: Personality Disorder NOS.” On 24 Nov 08, his case was referred to the Informal Physical Evaluation Board (IPEB). The IPEB reviewed his case and found the applicant unfit for continued military and recommended discharge with severance pay with a disability rating of 10 percent for a diagnosis of Anxiety Disorder, NOS. The IPEB noted “Per Department of Defense Instruction (DoDI) 1332.38, Physical Disability Evaluation, paragraph E5.1.3.9.1, a Personality Disorder is unsuiting rather than unfitting for military service, and therefore not subject to disability law/policy.” On 16 Dec 08, the applicant agreed with the IPEB’s findings and recommended disposition, and officials within the Office of the Secretary of the Air Force directed his discharge on 30 Jan 09. He served 7 years, 4 months, and 12 days of active military service. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states the preponderance of evidence reflects that no error or injustice occurred during the disability process and at the time of separation. DPSD states the applicant’s MEB was for anxiety/personality disorder; not for PTSD. PTSD is a subtype of anxiety disorder that was considered but rejected as a possible more specific diagnosis at the time. It was noted in the narrative summary that the applicant denied specific PTSD symptoms of re- experiencing, avoidance or hyper-arousal and noted: “SSgt S. was discharged 18 Aug 08 from Parkview Medical Center with a diagnosis of Mood Disorder NOS and PTSD although the PTSD diagnosis was not substantiated in the admission of discharge write-ups.” The IPEB did not feel the narrative summary writer found sufficient medical evidence to diagnose PTSD, but did diagnose the more general anxiety disorder, which was found unfitting. If the applicant had disagreed with the FPEB’s recommendation, he could have submitted a rebuttal to have his PTSD considered and rated. His case would have been forwarded to the Secretary of the Air Force Personnel Council for their review and finalization. This appeal process, when followed, assures members receive the benefit of a full and fair hearing in accordance with disability policy. The Department of Defense (DoD) and the DVA operate under separate laws. Under Title 10, United States Code (USC), Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating. The fact a person may have a medical condition does not mean the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. 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. It is the charge of the DVA to pick up where the Air Force must, by law, leave off. Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition. This often results in different ratings by the two agencies. The complete DPSD evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He does not understand how his PTSD diagnosis would be blatantly ignored when two separate professional mental health providers diagnosed him with this condition prior to his IPEB. He submitted copies of the discharge summaries from Cedar Springs Behavioral Health Center and Parkview Medical Center, which are clearly being disregarded. He is one of thousands of veterans who have fallen victim to the military’s broken rating process and the downplaying of PTSD as “anxiety/personality disorder” to minimize the cost of compensation. How can the Military Health Care System trust civilian medical professional organizations to care for their airman yet discount their diagnosis when rating and discharging them? He acknowledges the statement “he was given the opportunity to submit a rebuttal to the FPEB’s decision.” However, it should be noted he was not in the mental state to make sound decisions. The thoughts of suicide, losing all he ever worked for, how to support his family, and disturbing images of war, are the thoughts that relentlessly consumed his days. For these reasons, he was not capable of making a reasonable decision regarding his rating decision and compensation, not realizing how it would impact the rest of his life. With continued therapy over the past three years along with extensive research, he has come to the determination that although he will never be healed, an unjust decision was made on his behalf and should now be corrected. The applicant provided an additional letter from his former First Sergeant and discharge summaries from Cedar Springs Behavioral Health Center and Parkview Medical Center. The applicant's complete response, with attachments, is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. The applicant has not met his burden of proof of an error or injustice that warrants the desired change of the record. There is also no suggestion that any error or injustice occurred during his PEB process. The Medical Consultant states given the information which was available at the time of the MEB, including the interview with the applicant, the USAF psychiatrist came to a logical diagnosis after a complete and through examination. One might ask, therefore, why other providers later came up with PTSD as a different diagnosis. Anxiety Disorder, NOS and PTSD are both Mood Disorders, and they share many common features, which are outlined in detail in the Diagnostic and Statistical Manual (DSM) of Mental Disorders. The fact that a previous provider may have stated that a patient has PTSD is not sufficient evidence to conclude the diagnosis is correct. It is clear from the record the USAF psychiatrist did diligently attempt to determine if PTSD was indeed present, and came to the conclusion that, at the time, it was not. Additionally, the USAF psychiatrist cogently communicated the reasons for the conclusions which she reached. The complete BCMR Medical Consultant’s evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: In Nov 11, he submitted several forms of documentation supporting his case. After reading the recommendation of the BCMR Medical Consultant, it is clear this information was not reviewed properly. In the facts and discussion sections of the advisory it states the diagnosis of PTSD was subsequent to his discharge by the DVA. However, this is false, the documentation of medical records dating back to Jul 07 and Aug 08 clearly diagnoses him with PTSD, proving the diagnosis was prior to his MEB narrative summary dated 2 Sep 08, and prior to his discharge on 30 Jan 09. The applicant’s complete response, and attachments, is at Exhibit H. _________________________________________________________________ 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 error or injustice warranting relief. We note that both AFPC/DPSD and the BCMR Medical Consultant have recommended denial of the applicant’s request to have PTSD included in his disability rating computation so that his combined rating would entitle him to a permanent disability retirement. In considering the applicant’s contentions, we acknowledged that prior to his medical separation from the Air Force, the applicant had been admitted twice to a civilian hospital, once on or about 3 Jul 07 with a diagnosis of Depressive Disorder, Not Otherwise Specified (NOS) and PTSD [at which time he reported being depressed and anxious for the past six months and that, as a deployed medic, he “saw people die every day”] and again on or about 10 Aug 08, when he was given a diagnosis of Mood Disorder, NOS, and PTSD. After leaving military service, the applicant received service connection and a rating evaluation of 70 percent from the DVA only for the primary diagnosis of PTSD, and neither an Anxiety Disorder nor a Personality Disorder. We also took into consideration the commander’s concerns for the applicant’s ability to perform duties in garrison and in a deployed environment, citing “it is the graphic nature and trauma of performing, Respiratory Technician duties which set off the chain of events leading to the applicant’s suicidal ideations and subsequent diagnosis.” After collectively considering the totality of evidence, to include the civilian mental health assessments and the post- service mental health assessments by the DVA, we have determined that PTSD was the more appropriate basis for the applicant’s release from military service. Addressing the disability rating for PTSD, we are aware that as a result of the National Defense Authorization Act of 2008, Military Departments were prohibited from utilizing Service or Departmental rating policies and were held to only utilizing the rating standards of the DVA or mutually [DoD/DVA] agreed upon policies. Thus, understanding that 38 C.F.R. [Veterans Schedule for Rating Disabilities], Section 4.129 addressing PTSD, which reads: “When a stressful event is severe enough to bring about the veteran’s release from active military service, a disability rating of no less than 50 percent will be assigned, followed by the scheduling of an evaluation within 6 months following the veteran’s discharge to determine whether a change in evaluation is warranted.” After consideration of the probative value of the 70 percent assigned by the DVA for the applicant’s PTSD and the lack of competing post-service evidence of improvement or worsening of the condition within the 12 months after separation, we determined that permanent retirement with a 70 percent disability rating is appropriate. We find this action consistent with the additional guidance memorandum, dated 17 Jul 09, from the Under Secretary of Defense, Personnel & Readiness, the purpose of which was to facilitate uniform corrective measures where a Military Department failed to follow Section 4.129, which directs, “as a matter of policy, all three BCMRs to apply Section 4.129 to PTSD unfitting conditions for applicant’s discharged after 11 Sep 01, and that in such cases, where a grant of relief is appropriate, assign a disability rating of not less than 50 percent for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD ratings based upon applicable evidence.” This retroactive six-month period can be best characterized as a de facto Temporary Disability Retired List (TDRL) status with the subsequent fitness and rating disposition based upon the available or applicable evidence. Thus, with invoking of Title 38, C.F.R., Section 4.129 and utilizing the probative value of the rating assigned by the DVA within three months following the applicant’s release from active duty, we believe that permanent retirement with a 70 percent disability rating due to PTSD, effective on the previously established date of discharge [30 Jan 09], is appropriate. Therefore, we recommend the applicant’s records be corrected as indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on a. On 29 Jan 09, the applicant 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; that the diagnosis in his case was Post Traumatic Stress Disorder, a condition which is rated at a compensable percentage of 70 percent under Veterans Administration Schedule for Rating Disabilities (VASRD) code 9411; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. On 30 Jan 09, he was relieved from active duty and on 31 Jan 09, he was permanently disability retired in the pay grade of Staff Sergeant with compensable percentage for physical disability of 70 percent for PTSD. c. The election of Survivor Benefit Plan option(s), will be corrected in accordance with the member’s expressed 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-2011-04514 in Executive Session on 14 Aug and 13 Sep 12, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 Oct 11, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 16 Dec 11. Exhibit D. Letter, SAF/MRBR, dated 29 Dec 11. Exhibit E. Rebuttal, Applicant, dated 15 Jan 12, w/atchs. Exhibit F. Letter, BCMR Medical Consultant, dated 16 Jun 12. Exhibit G. Letter, SAF/MRBC, dated 26 Jun 12, w/atch. Exhibit H. Letter, Applicant, not dated, w/atchs.