RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00505 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He be medically retired. APPLICANT CONTENDS THAT: He was retained on the TDRL for five years and is rated 50% disabled for Post-Traumatic Stress Disorder (PTSD) by the Veteran’s Affairs. His overall rating is 90%. After more than five years, he still requires care for his leg and PTSD. He has missed countless days of work. He had to close his business due to PTSD related symptoms such as depression, anxiety and hyper- vigilance. Because of these symptoms, he is unable to care for himself and his family. A decision of discharged with severance pay is detrimental to his recovery and his family. An error exists because he sent the appropriate documentation within the appropriate time limits to non-concur with the determinations of the Physical Evaluation Board (PEB) to request a Formal PEB to contest the decision. The documents were never received by the TDRL office and he was never scheduled to meet the FPEB. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a former member of the Air Force. On 27 June 2013, the Informal PEB (IPEB) found him unfit for combat related PTSD and recommended he be discharged with severance pay with a compensable percentage of 10%. On 30 October 2013, he was removed from the TDRL and discharged with entitlement to severance pay, in the grade of senior airman. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and E. AIR FORCE EVALUATION: AFPC/DPFD recommends denial. The applicant was placed on the TDRL 27 August 2008, for a diagnosis of Post-Traumatic Stress Disorder (PTSD) rated at 50% and delayed union of left fibular with injury to peroneal and posterior tibial nerve rated at 30% for a combined compensable rating of 70%. On 20 March 2009, the applicant had his first TDRL re-evaluation. The IPEB retained him on TDRL with a 30% disability rating for his PTSD. The IPEB reviewed his second TDRL re-evaluation on 7 September 2010 for his PTSD and retained him on TDRL with a 30% disability rating. The IPEB reviewed the applicant's third TDRL re-evaluation on 27 June 2013, and recommended he be removed from TDRL and discharged with severance pay with a disability rating of 10%. The narrative summary from the physician noted the applicant was feeling better since his last TDRL exam in August 2010, which he attributes to focusing on one of his passions, mechanical/engine repair, and turning his passion into a business. The IPEB noted: "Applicant reports struggling with PTSD symptoms on a regular basis though he does not consider the symptoms severe. The SM lives in a house with his wife and two small children. He works alone but states his business has been doing well enough that he is considering hiring someone soon to help with the work load. His social/industrial impairment is mild with a GAF of 65." The findings were sent to the applicant on 5 July 2013 noting his election statement should be received by 30 July 2013; it would be understood that he agreed with the recommendation of the IPEB, and officials within the Office of the Secretary of the Air Force would take action to finalize his case. No concurrence was received and a special order was issued on 10 October 2013 which removed him from TDRL effective 30 October 2013. The IPEB's recommendation was sent to the applicant’s home address of Cleveland, Texas on 5 July 2013. This was the same address that his past two travel orders were sent to for him to attend his TDRL re-evaluation exams. He had until 30 July 2013 to return his signed election statement. Due to personnel changes and relocation of the TDRL office, his case was not worked until 10 October 2013. The case should have been worked out in July 2013. However, due to administrative personnel changes, it was not finalized until October 2013. As background, the Department of Defense and the Department of Veterans Affairs (DVA) disability evaluation systems operate under separate laws. Under Title 10, 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 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 their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their 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 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 preponderance of evidence reflects that no error or injustice occurred during the disability process. The complete AFPC/DPFD evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 22 September 2014 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: The BCMR Clinical Psychology Consultant recommends denial. The applicant has included a statement from his prescribing provider in support of his request. This statement seems to echo the conclusion drawn from the applicant’s final TDRL re-evaluation: his symptoms had decreased in severity over time and were largely stable. He may in fact have experienced an “intermittent flare” of PTSD following the last TDRL re-evaluation. However, the applicant is advised that the Military Department operates under Title 10, United States Code (U.S.C.), and must base its actions upon the evidence available at the “snap shot” in time of final military disposition. In this case, the information gleaned during the last TDRL re- evaluation served to provide the relevant “snap shot.” On the other hand, the VA, operating under a different set of laws (Title 38, U.S.C.) with a different purpose, is authorized to offer service connection and compensation for any medical condition for which it has established a nexus with military service without regard to the narrative reason for release from service or the length of time transpired since discharge. The VA is also empowered to periodically conduct re-evaluations to adjust a veteran’s disability ratings as the level of impairment for a given medical condition may vary over a lifetime. The applicant argued that he is “unable to work” and “…had to close the business due to PTSD related symptoms…”, concerns that will be important to convey during his next re-evaluation through the VA. Unfortunately, this post-discharge progression of symptoms is not something the Military Departments, by law, are permitted to rate. The Board may or may not concur with the applicant’s claim that he should have been provided a forum with the Formal PEB. Nevertheless, the Clinical Psychology Consultant concludes from the information available at the “snap shot” in time of the applicant’s last TDRL re-evaluation, he was a successfully self- employed individual with chronic and stable, but not severe, symptoms of PTSD controlled with a continuous, albeit decreased, medication regimen. A similar description ultimately led the Informal PEB to recommend the applicant’s discharge with severance pay and a rating of 10% for PTSD. Regrettably, the Clinical Psychology Consultant identifies no error or injustice in this regard and does not recommend changing the applicant’s compensable rating. The complete BCMR Clinical Psychology Consultant’s evaluation is at Exhibit E. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 29 May 2015 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. 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. 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 Air Force office of primary responsibility (OPR) and the BCMR Clinical Psychology Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. We took note of the applicant’s contention that his request to appeal to the Formal PEB was never received by the TDRL office; however, he did not provide evidence to substantiate this claim. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 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-2014-00505 in Executive Session on 7 July 2015 under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Jan 14, w/atchs. Exhibit B. Applicant's Master Personnel Record. Exhibit C. Letter, AFPC/DPFD, dated 4 Mar 15. Exhibit D. Letter, SAF/MRBR, dated 22 Sep 14. Exhibit E. Letter, BCMR Clinical Psychology Consultant, dated 19 May 15. Exhibit F. Letter, SAF/MRBR, dated 29 May 15.