RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02749 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: His discharge with a 30 percent disability rating be increased to a 70 percent disability rating for Post-Traumatic Stress Disorder (PTSD). APPLICANT CONTENDS THAT: The applicant suffered several traumatic events during his numerous deployments. Subsequently, he was diagnosed with PTSD, found unfit for duty and placed on the Temporary Disability Retired List (TDRL) with a 70 percent disability rating for PTSD. In February 2011, the Department of Veterans Affairs (DVA) increased his PTSD rating from 50 percent to 70 percent. In May 2011, the Air Force decreased his 50 percent disability rating, without an explanation. In fact, the Air Force presented facts which mitigate in favor of maintaining the 70 percent disability rating as it explicitly stated that the decedent’s medical condition [was] essentially unchanged since being placed on the TDRL and will not likely change over the next several years. In 2012, the applicant was notified that he had been moved from the TDRL to permanent retirement, and, again without proper explanation, further decreased his disability rating to 30 percent because he no longer suffered from panic attacks or auditory hallucinations and had not been hospitalized since his retirement. However, these reasons for a decrease in the disability rating are dubious because he never reported having auditory hallucinations in the first place and was never hospitalized. Moreover, the further decrease is questionable because the Air Force stated he still suffered from a depressed mood, anxiety, suspiciousness, panic attacks, and chronic sleep impairment, and thus failed to identify a single improvement in his symptoms. Because there is no basis in his medical records for decreasing the rating of PTSD with Depressive Disorder from 70 percent to 30 percent the Board must correct this injustice. In support of his request, the applicant provides copies of the applicant’s AF Forms 356, Findings and Recommended Disposition of USAF Physical Evaluation Board; DVA Rating Decision; medical documents, and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 16 April 2010, the Informal Physical Evaluation Board (IPEB) recommended the applicant be placed on the TDRL with a 70 percent disability rating for PTSD with Depressive Disorder with an effective date of 22 July 2010. According to the DVA Rating Decision dated 3 February 2011, the evaluation of PTSD with depression, which was 50 percent disabling, was increased to 70 percent effective 7 September 2010. On 16 May 2011, the IPEB recommended the applicant be removed from the TDRL with a permanent retirement and disability rating of 50 percent for his PTSD. On 24 May 2011, the applicant non-concurred with the IPEB’s rating decision and elected to waive his right to a hearing before the Formal PEB (FPEB) and appealed directly to the Secretary of the Air Force Personnel Council (SAFPC) for a 70 percent disability rating. On 15 February 2012 the SAFPC directed the applicant be removed from the TDRL and permanently retired with a disability rating of 30 percent. Special Order ACD-01550 issued 7 March 2012, removed the applicant from TDRL effective 27 March 2012, and retired him with a disability rating of 30 percent. On 8 September 2014, the Board was notified that on 4 September 2014, the applicant died in a motorcycle accident. AIR FORCE EVALUATION: AFPC/DPFD recommends denial. DPFD states that the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of separation. The IPEB quotes SAFPC in noting that "Addressing the applicant's disability rating award, the Board is required by law to rate a disability using criteria outlined in the VASRD ... it is noted that member received a rating of 70% by the VA which was solely based on review of records from November 2009 to April 2010, since then the member has failed to report for recommended VA exams to assess the severity of his disability. Although the member contends his medical conditions have not improved and he remains the same he no longer suffers with panic attacks, has auditory hallucination and has not been hospitalized since his retirement. He states he gets along well with his sons and has not recommences psychotherapy or psychotropic medication despite being symptomatic. TSgt [H's] medical records failed to provide evidence to support a rating of 70% under the VASRD code 9411. However in the case under review and Board finds that TSgt [H] clearly demonstrates occupational and social impairment with occasional decrease in work efficiency...due to symptoms as: depressed mood, anxiety, panic attacks....mild memory loss which correlates to a disability rating of 30%." Special Order ACD- 01550 issued 7 March 2012, removed the applicant from TDRL effective 27 March 2012 and he was retired with a disability rating of 30 percent. As background, the Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws. Under Title 10, USC, PEBs must determine if a member's condition renders him or her unfit for continued military service relating to his or her office, grade, rank or rating. The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling his or her military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of his or her career. Further, 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 the member’s 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 reevaluated based on changes in the severity of a condition. This often results in different ratings by the two agencies. The complete DPFD evaluation is at Exhibit C. The BCMR Medical Consultant recommends amending the applicant’s record to reflect he was removed from the TDRL and permanently retired with a 50 percent disability rating due to PTSD, under VASRD Code 9411, effective 12 March 2012. Despite the suggestion that the applicant may not have been fully compliant with treatment recommendations, the evaluating psychiatrist believed that his level of impairment remained "Severe" throughout. If one utilizes the phrase extracted from the rationale of the IPEB decision, indicating that the applicant's medical condition had remained “essentially unchanged” since initial TDRL placement, one might argue that the final rating should also not be changed from its original 70 percent rating award. The "Severe" characterization of the applicant's level of impairment by the evaluating psychiatrist at the time of the TDRL re-evaluation also indicates that the condition has not changed. While the Medical Consultant recommends granting the applicant the 50 percent rating, he does not believe this should be based upon the documentation from the DVA; as this evidence was the same old evidence utilized by the Air Force for its initial TDRL placement decision. It should also be noted that the applicant missed a scheduled DVA evaluation, placing the DVA at the disadvantage of utilizing non-concurrent information [2009 and 2010] in making its rating decision [in 2011]. The Consultant presents another probable explanation for the 70 percent rating assigned by the DVA. He presumes that the 50 percent disability rating apparently first assigned by the DVA was made under provisions of 38.C.F.R, Section 4.129, 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 the 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted." Consequently, upon the applicant's appeal to the DVA it is apparent that the disability rating was increased solely upon the old evidence from the Military Department and not upon a more current Compensation and Pension examination. Therefore, while the psychiatric evaluations have characterized the applicant's impairment as "Severe," both at the time of initial TDRL placement [2010] and remained so ["Severe"] at the time of TDRL reevaluation [2011], a 50 percent rating would be a reasonable compromise, based upon both a probable error [in rationale] and injustice [in its reduced rating] on the part of the IPEB in its, otherwise, inaccurate explanation of the rating deduction to 50 percent; particularly as noted in the characterization of the applicant's condition as "essentially unchanged." The complete Medical Consultant’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant’s disability rating should never have been reduced from 70 percent to 30 percent based on the erroneous findings of the IPEB in May 2011. Accordingly, in order to correct the error, his rating for PTSD should be increased to 70 percent because it is a more accurate reflection of his severe symptoms and will correct the error in his military record. Counsel’s complete response with attachment is at Exhibit F. ADDITIONAL AIR FORCE EVALUATION: After reviewing the applicant’s rebuttal dated 7 May 2014, and in view of the consistent determination that the applicant’s level of impairment was "severe," the BCMR Medical Consultant verbally agreed that the applicant’s discharge with a 30 percent disability rating should be increased to a 70 percent disability rating for PTSD. As required by 10 U.S.C. 1556(a), a summary of the verbal communication made by the BCMR Medical Consultant to the Board was provided to counsel for review and comment. APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: In an email dated 7 November 2014, counsel agreed with the BCMR Medical Consultant’s recommendation to increase the applicant’s disability rating to 70 percent. Counsel’s complete response 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. Having carefully reviewed this application, we agree with the recommendation of the BCMR Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. Therefore, we recommend the applicant's records be corrected as set forth below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to MEMBER, be corrected to show that on 27 March 2012, he was removed from TDRL with a compensable rating of 70 percent for physical disability. The following members of the Board considered this application in Executive Sessions on 25 March 2014 and 20 June 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC-2013-02749: Exhibit A. DD Form 149, dated 20 May 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 16 July 2013. Exhibit D. Letter, BCMR Medical Consultant, dated 29 August 2013. Exhibit E. Letter, SAF/MRBC, dated 3 September 2013. Exhibit F. Letter, Counsel, dated 7 May 2014, w/atch. Exhibit G. Email, AFBCMR, dated 23 October 2014. Exhibit H. Email, Counsel, dated 7 November 2014. 1 2