RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02031 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His Mental Health (MH) diagnosis be reviewed. APPLICANT CONTENDS THAT: His disability rating of 30 percent he received from the Physical Evaluation Board (PEB) is incorrect. His disability rating was not in accordance with the Department of Defense (DoD) policy to use the Veterans Affairs Schedule for Rating Decisions (VASRD) code 4.129., to determine the appropriate rating. The applicant’s complete submission, with attachment, is at Exhibit A. STATEMENT OF FACTS: On 18 Aug 10, a Medical Evaluation Board (MEB) diagnosed the applicant with Chronic Pain Syndrome (Lower Back) and Post- Traumatic Stress Disorder (PTSD). The applicant was referred to the Informal PEB (IPEB). On 14 Oct 10, the IPEB diagnosed the applicant with Pain Disorder due to Both Psychological Factors and General Medical Condition with Anxiety Disorder and Lower Back Pain due to Degenerative Disc Disease. The applicant agreed with the findings of the IPEB. On 24 Jan 11, the Secretary of the Air Force Personnel Council (SAFPC) determined the applicant was physically unfit for continued military service due to physical disability and directed the applicant be retired with disability benefits. On 26 Mar 11, the applicant was medically retired with a compensable disability rating of 40 percent in the grade of captain. He was credited with 19 years, 3 months, and 17 days of active service for retirement. AIR FORCE EVALUATION: Physical Disability Board of Review (PDBR) Special Review Panel (SRP), recommends, by a majority vote, the applicant’s separation be modified to reflect placement on the Temporary Disability Retired List (TDRL) with a combined disability rating of 60 percent and after six months he be permanently disability retired. The SRP considered the appropriateness of changes in the MH diagnoses, PEB fitness determination; and if unfitting, whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130. Members noted that there had been changes made to the MH diagnosis during the course of the applicant’s processing through the Disability Evaluation System (DES). PTSD was noted on the Medical Narrative Summary (NARSUM) as a final diagnosis. However, the psychiatric NARSUM, written three months later, diagnosed anxiety disorder Not Otherwise Specified (NOS) and stated that it did not impair the applicant’s ability to function in the military. Rather, it indicated that pain disorder was responsible for any impairment for military duty. Nevertheless, the MEB, signed by the same psychiatrist who had countersigned the Psychiatric NARSUM, forwarded PTSD along with chronic pain syndrome as not meeting medical standards. Finally, the PEB adjudicated “Pain Disorder Due to both Psychological Factors and General Medical Condition with Anxiety Disorder.” The SRP concluded that this case did appear to meet the inclusion criteria of the Terms of Reference of the MH Review Project. The SRP then turned to a discussion of the appropriateness of the MH diagnosis. The lack of data regarding the applicant’s symptoms and treatment in the 14 years between 1996 and 2010 when the NARSUM was written makes it difficult to conclusively link the onset of symptoms with the traumatic event. Although it is certainly possible that such a linkage existed, it would appear from the NARSUM that psychological testing did not support an effect of trauma at the time of testing. It stated: “the patient did not elevate any PTSD scales or scales which would suggest his trauma or trauma symptoms have impacted him to a clinically significant level” and the examiner felt that Anxiety Disorder NOS was a more appropriate diagnosis than PTSD. The NARSUM further indicates that although stress might have contributed to increased pain, anxiety itself was not felt to be medically disqualifying for military service. The Department of Veterans Affairs (DVA) Compensation and Pension (C&P) exam, while documenting a diagnosis of PTSD did not appear to provide a great deal of data supporting how the criteria had been met. Additionally, the long delay between the occurrence of the stressor and the onset of symptoms with no documentation of treatment for PTSD or anxiety symptoms raised questions with members with regard to the fulfillment of Criterion A. Also, the fact that the symptoms are described by the C&P examiner as impacting functioning “only mildly” as opposed to the Criterion F requirement for symptoms to cause “clinically significant distress or impairment in social, occupational, or other important areas of functioning” was also discussed by the SRP. The SRP found the diagnosis of pain disorder with anxiety disorder NOS given in the NARSUM to be most consistent with the clinical picture and the diagnostic requirements of DSM IV. The SRP concluded that there was not a preponderance of evidence to support a change in the PEB’s diagnoses to PTSD. Regardless of final PEB diagnosis, §4.129 does not specify a diagnosis of PTSD, rather it states “mental disorder due to a highly stressful event,” and its application is not restricted to PTSD. There is a difference of opinion between the C&P exam which attributes the symptoms to PTSD resulting from the incident in 1996 and the NARSUM which states that that relationship was not demonstrated. Both documents were written by psychologists although the NARSUM was countersigned by a psychiatrist. The NARSUM was also supported by psychological testing which the SRP concluded endowed it with somewhat higher probative value. After thorough discussion and review of the available evidence, the SRP was divided in terms of the appropriateness of applying §4.129. The majority of SRP noted that the psychiatric NARSUM had indicated that there had been “minimal symptoms…increasing over the years,” and that while psychological testing had not demonstrated a significant effect of trauma-related symptoms, it had stated the results “were guarded as patient claimed to be somewhat unrealistically virtuous.” Although, the report of symptoms "increasing over the years" was very non-specific, and the only corroborative evidence was in 2007, when the applicant started medication for anxiety at Family Practice, the symptom onset and timing are critical in how one perceives the anxiety relative to a combat event. The MH symptoms had been noted to begin soon after the applicant’s deployment, though they were well controlled at that time. Additionally, the majority considered that it would be over-speculative to try to tease out a component of the MH conditions that had been found by the PEB to be both disqualifying and combat-related. The majority of SRP concluded the application of §4.129 would have been appropriate in this case. The SRP then discussed the rating at the beginning of a period of constructive TDRL if §4.129 were applied. The majority of SRP noted that the NARSUM had found the applicant to be medically acceptable, assigned a GAF score of 70 and stated that “his anxiety is not impairing his ability to hold a military position.” The C&P exam found that his symptoms were “transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress (language consistent with a VASRD §4.130 10 percent rating). An independent rating of the treatment record did not support a greater than 30 percent rating IAW §4.130 criteria and independent rating of the C&P exam would similarly suggest no greater than a 30 percent disability rating IAW §4.130. The DVA rating determination of 50 percent referenced the PEB MH diagnoses and finding of “physically unfit for duty” which appeared to apply VASRD §4.129, rather than VASRD §4.130 rating criteria. However, the DVA rating decision does not specifically mention §4.129 and does reiterate the §4.130 criteria wording, although a future exam was also required. The majority of the SRP recommended application of §4.129, and concluded that there was insufficient evidence to recommend a rating higher than the required 50 percent MH rating at the time of entry onto a 6- month period of constructive TDRL. The Panel also considered the tenants of §4.126 (Evaluation of disability from mental disorders) which supported the PEB coding under 9422 (Pain disorder) with the Anxiety Disorder included in a single MH rating. There was no post-retirement evidence in the record to warrant higher than a 30 percent VASRD §4.130 rating at the end of a constructive TDRL period. The Panel majority could not find sufficient evidence to support a disability rating higher than the 30 percent MH rating assigned by the PEB at the conclusion of a six - month period of constructive TDRL. The complete SRP 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 19 May 14 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ADDITIONAL AIR FORCE EVALUATION: On 10 Mar 15, a clinical psychologist, within the PDBR, agreed with the opinion and the recommendation of the SRP (Exhibit E). APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant states that while he agrees with the SRP's recommendation with placement on the TDRL with a compensable disability rating of 60 percent; he disagrees with no change to his permanent retirement disability rating of 40 percent (attached). He believes his rating should be increased to a combined rating of 50 percent as subsequently approved by the Department of Veterans Affairs. In support of his appeal, he provides copies of his DVA rating decisions. The applicant’s complete response, with attachments, is at Exhibit G. 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. We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of the Physical Disability Board of Review and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice. 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 the APPLICANT be corrected to show that: a. On 25 Mar 11, he 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; the diagnosis in his case was Pain Disorder due to Both Psychological Factors and General Medical Condition with Anxiety Disorder, under VASRD code 9422 and Lower Back Pain due to Degenerative Disc Disease under VASRD code 5243; with a combined [not added] disability rating of 60 percent, which comprised an initial disability rating of 50 percent due to Pain Disorder associated with Anxiety Disorder, under Authority of 38 U.S.C., Section 4.129, and a 20 percent rating due to Lower Back Pain; the degree of impairment was temporary; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and that the disability was received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and was combat-related. b. On 25 Mar 11, he was honorably discharged from active duty and on 26 Mar 11, his name was placed on the Temporary Disability Retired List (TDRL). c. On 26 Sep 11, the applicant was removed from the TDRL and transferred to the Permanent Disability Retired List (PDRL) with a combined [not added] disability rating of 40 percent, which was comprised of a reduced rating of 30 percent due to Pain Disorder associated with Anxiety Disorder and a 20 percent rating due to Lower Back Pain. d. 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 following members of the Board considered AFBCMR Docket Number BC-2014-02031 in Executive Session on 11 Mar 15 and 15 May 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. Although ---- chaired the panel, in view of his unavailability, ----- has signed as Acting Panel Chair. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 12 Apr 13, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, PDBR, dated 14 May 14. Exhibit D. Letter, SAF/MRBR, dated 19 May 14. Exhibit E. Letter, PDBR Clinical Psychologist, dated 10 Mar 15. Exhibit F. Letter, SAF/MBRB, dated 30 Mar 15. Exhibit G. Electronic Mail (E-Mail), Applicant, dated 16 Apr 15, w/atchs.