RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02049 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Disability With Severance Pay discharge, with a compensable disability rating of 10 percent, effective 11 May 10, be increased to 50 percent. APPLICANT CONTENDS THAT: He was prematurely removed from the Temporary Disability Retired List (TDRL) due to an error made by the Physical Evaluation Board (PEB) on reexamination. He initially did not concur with the findings of the PEB; however, he eventually concurred with the findings because he realized he did not have substantial evidence to contradict the findings of the PEB and based on the recommendation from the examining psychologist, who indicated that his condition may have continued to improve. The Department of Veterans Affairs (DVA) conducted a reevaluation of his condition, on 29 Mar 14, and rated his disability at 50 percent. He believes this rating proves that his condition has remained static and had not stabilized in 2009 as originally concluded by the PEB. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 11 Apr 01, the applicant initially entered the Regular Air Force. According to his Medical Evaluation Board (MEB) report, dated 8 Feb 08, the applicant was diagnosed with Post-Traumatic Stress Disorder (PTSD). He first reported a traumatic experience, in May 02. During his evaluation, he reported, while stationed at Edwards AFB, he was on duty with two others driving in an M151A1 vehicle that rolled over throwing him from the vehicle; he was pinned under an M151A1 vehicle, and reports subsequent recollections of numerous incidents where his life was put at risk to support the mission in deployed locations. The MEB recommended the applicant’s case be referred to the Informal Physical Evaluation Board (IPEB). On 28 Mar 08, the IPEB diagnosed the applicant with PTSD, combat- related and found the applicant unfit for further military service and recommended placement on the TDRL with a compensable disability rating of 50 percent. On 2 Apr 08, the applicant appealed this finding to the IPEB and his case was referred to the Secretary of the Air Force Personnel Council (SAFPC). On 3 Apr 08, SAFPC directed the applicant’s name be placed on the TDRL with a compensable disability rating of 50 percent. On 14 May 08, the applicant’s name was placed on the TDRL with a compensable disability rating of 50 percent, in the grade of Staff Sergeant (SSgt). He was credited with 7 years, 1 month, and 4 days of active service for retirement. After reviewing the 11 Aug 09 TDRL reevaluation exam, on 4 Feb 10, the IPEB recommended removing the applicant’s name from the TDRL and that he be disability separated with severance pay, with a compensable disability rating of 10 percent. On 3 Mar 10, the applicant non-concurred with the IPEB’s findings and his case was referred to the Formal Physical Evaluation Board (FPEB). However, on 13 Apr 10, the applicant waived his earlier election for a formal hearing and concurred with the findings of the IPEB. On 21 Apr 10, SAFPC directed the applicant’s name be removed from the TDRL and be disability separated with severance pay, with a compensable disability rating of 10 percent. On 11 May 10, the applicant’s name was removed from the TDRL and he was disability separated with severance pay and a compensable disability rating of 10 percent. According to information provided by the applicant, a DVA Rating Decision, dated 7 Apr 14, rated the applicant with 50 percent for PTSD. AIR FORCE EVALUATION: AFPC/DPFD recommends denial, indicating the preponderance of evidence reflects that no error or injustice occurred during the disability process or at time of separation. DPFD notes, on 28 Mar 08, the IPEB diagnosed the applicant with PTSD and recommended placement on the TDRL with a disability rating of 50 percent. The applicant concurred on 2 Apr 08 and Special Order ACD-00995 issued 4 Apr 08, established 15 May 08 as the retirement date. The applicant was scheduled for his first TDRL re-evaluation exam on 11 Aug 09 at Seymour Johnson AFB NC. The IPEB reviewed the medical information on 4 Feb 10 and recommended removal from TDRL and discharge with severance pay with a 10 percent disability rating for PTSD. The IPEB noted: “The service member's medical condition has improved since being placed on the TDRL and appears to have stabilized. SMS's OQ is 61 (nonclinical range-low level of severity) and recommends discharge with severance pay.” The complete DPFD evaluation is at Exhibit C. The BCMR Medical Consultant determined the burden of proof of an error or injustice is questionable; however, the Consultant found no procedural error in the management of the applicant’s case. The BCMR Medical Consultant noted the applicant contends that the IPEB prematurely removed him from the TDRL in 2009. The basis for this assumption appears to be clearly founded in the 50 percent disability rating awarded to him on 7 Apr 14 by the DVA; over five years after placement on the TDRL and nearly 5 years after the applicant’s removal from the military’s TDRL system. The Board should be aware that the statutory limit in TDRL status is 5 years, following which the individual MUST be removed from the TDRL and be either returned to duty FIT, discharged with severance pay, or retired permanently. At the time of the applicant’s TDRL evaluation in 2009, the IPEB determined that his condition had improved. Such a conclusion could reasonably be reached in the psychological assessment that the condition was “in partial remission.” Additionally, the applicant’s occupational pursuits would suggest reasonable social and occupational adaptation to civilian life. The provider also entered the applicant’s Global Assessment of Functioning (GAF) of 60; albeit depicting “moderate” impairment, as opposed to “mild.” While the GAF is not relied upon as a sole determinant of an individual’s mental status, it does offer a general overall assessment of functioning. The Medical Consultant acknowledges that attempting to refute the rating assigned by the DVA serves no useful purpose, since the rating was likely based upon information disclosed during the VA examination of 28 Mar 14. Similarly, this does not invalidate the assessment of stability determined in 2009; for a mental disorder that may variably manifest over a lifetime, with intervening fluctuations depending upon external and internal factors [interpersonal, occupational, financial, physical health, and other life circumstances]. Thus, no one can accurately determine what transpired clinically between the Aug 09 examination and the Mar 14 examination. The DVA clinical examination of Mar 14 has not been supplied for review and consideration. The Medical Consultant finds no scientific way to refute the applicant’s mental disorder was improved or in partial remission in 2009 or whether it became unstable and warranted continuation of the 50 percent rating level soon thereafter, through 2010, 2011, 2012, and 2013. Drawing any inference the applicant’s medical condition was not stabilized in 2009 would be based upon conjecture. Additionally, the Mar 14 examination and rating determination also fell outside of the statutory TDRL limit, since the applicant first placed on the TDRL in May 08. Access to the applicant’s DVA examination may offer additional insight as to what transpired between his Sep 08 DVA examination and his Mar 14 DVA examination to optimize fairness in this assessment. Nevertheless, the Board has within its authority to draw its own conclusions based upon the supplied documentation. But not for the intervening military TDRL assessment of 2009, the Consultant would be more inclined to greater consider probative value of the rating by the DVA as a final disposition; albeit delayed. Should the Board decide to grant the applicant relief, the record would need to be changed to reflect that the applicant was extended on the TDRL in 2009 with a 50 percent disability rating and remained so until removed from the TDRL and retired permanently with a 50 percent rating effective 8 May 13; the maximum statutory period in TDRL status. Note: This would be well BEFORE the examination of Mar 14, yet, is oddly being asked to be taken into consideration in the applicant’s petition. Unlike the Military Department that has a statutory requirement to conduct TDRL re-evaluations approximately every 18 months, the DVA, operating under Title 38, United States Code, has within its discretion to conduct evaluations at much greater intervals; bearing in mind that the disability rating process and the clinical treatment processes are totally separate functions within the DVA and that Compensation & Pension examinations are not intended to document treatment, but to record information that is utilized for a rating determination. Moreover, the DVA may conduct such periodic evaluations and adjust disability ratings [decrease or in as the severity of a medical condition may vary [improve or worsen] over the lifetime of the veteran. The complete BCMR Medical Consultant evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation(s) were forwarded to the applicant on 23 Jan 15 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: The Clinical Psychology Consultant recommends approval of the requested relief in the form of a medical retirement with a 30 percent rating. The Board is advised the 30 percent rating is provided as a suggestion and not intended to bind the board to a decision. Regrettably, this Consultant did not find evidence in the medical record to support a recommendation for a 50 percent disability rating and opines the current 50 percent rating from the DVA reflects the applicant’s deterioration since discharge. Therefore, by law, the DVA has picked up where the Military Department left off. The Clinical Psychology Consultant notes and appreciates the applicant’s clear and succinct application to the Board which contains most of the relevant information for this case. Some extra details were gleaned from the electronic medical record such as OQ-45.2 scores and mental status observations from therapy notes. This Consultant observed a few facts during review of case materials that could support granting this applicant relief. First, the OQ-45.2 assesses a patient’s psychological functioning over a one week period. It is designed to be given every few months during treatment to track a patient’s progress on general psychological symptoms. Therefore, the PEB’s conclusion of symptom stability and decreased rating due to this single subclinical score is not, in the opinion of this Consultant, tenable. The applicant’s scores on the OQ-45.2 in treatment were below the threshold of clinical significance 50 percent of the time. Thus, it could be concluded that general psychological symptoms at TDRL reexamination were essentially the same as his experience prior to the initial PEB findings. A general psychological measure of distress is likely to mask the effect of specific symptoms associated with PTSD. For instance, the PTSD Checklist is an assessment tool commonly used across Air Force mental health clinics, and available at the time of the applicant’s TDRL reexamination, which would have more clearly elucidated the applicant’s self-report of symptom severity associated with specific symptom of PTSD. It is unknown why this instrument was not utilized for any of his mental health examinations. Second, the applicant’s seemingly odd introspectiveness and lack of interest in psychiatric modalities of treatment noted during the TDRL reevaluation were present prior to his MEB and do not appear to be deviations from baseline. Third, this Consultant opines that conclusions drawn from the results of the MMPI-2 were prejudiced in that the examiner did not offer standard alternative hypotheses that may have prevented a reader from only concluding the applicant was exaggerating his symptoms. As noted in an interpretative manual for the MMPI-21, research on the Infrequency Scale (referred to by the TDRL examiner) with different clinical groups have revealed that score elevations more often than not reflect the actual severity of an examinee’s mental health condition. In fact, it offers self- unfavorable reporting, severe psychological distress, and extensive psychopathology as potential hypotheses for elevations on this scale. The TDRL examiner also failed to reconcile the applicant’s subclinical OQ-45.2 scores when stating, in reference to Infrequency Scale scores, “…it became obvious that he endorsed them with the intent of presenting himself as a great deal more impaired than he actually is, given his ability to secure and maintain employment and deal with the public recently.” Lastly, the examiner argued the applicant’s movement between three jobs and active seeking of a fourth demonstrated an ability to secure and maintain employment and this Consultant interprets the examiner’s final recommendations to essentially be speculation about the positive life benefits the applicant may experience should his problems essentially disappear (e.g., resolves conflict with wife, maintains a full time job, etc.). The Clinical Psychology Consultant argues that conclusions from the TDRL reexamination were not based on a “snap shot” of the applicant’s functioning at that time. Instead, they were tied to projected changes in the applicant’s psychological functioning that were heavily dependent on poor evidence of occupational stability (approaching 4 job changes in a year) and anticipation of the resolution of chronic psychosocial problems. The Clinical Psychology Consultant is aware the Military Department operates under Title 10, United States Code (U.S.C.), and must base its actions upon evidence available at the “snap shot” in time of final military disposition. This Consultant is also aware the DVA operates under a different set of laws (Title 38, U.S.C.) with a different purpose and post-service DVA ratings do not necessarily equate to Military Department ratings at discharge. Indeed, the DVA is authorized to adjust ratings based on progression of a mental disorder; whereas, the Military Department is not granted the same latitude. Nevertheless, the Clinical Psychology Consultant argues the applicant’s “snap shot” of psychological functioning at his TDRL reexamination reflects symptom stability with occupational and social impairment consisting of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms depressed mood, anxiety, and paranoia. Descriptors typically resulting in a 30 percent disability rating according to the DVA schedule of ratings for mental disorders. The complete Clinical Psychology Consultant evaluation is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 7 Jul 15 for review and comment within 30 days (Exhibit E). 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. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice. We note the comments of AFPC/DPFD indicating that relief should be denied because the applicant’s records contain no documentation substantiating that an error or injustice occurred during the disability process and the BCMR Medical Consultant who found the applicant’s request for relief questionable. Nonetheless, we are inclined to agree with the analysis of the BCMR Psychology Consultant who determined that based on the supported evidence the applicant has met the burden of proof that the TDRL reevaluation more likely than not should have found the applicant unfit for military service and permanently retired the applicant with a compensable disability rating of 30 percent. Therefore, we conclude the relief proposed by the BCMR Psychology Consultant is a fair and equitable determination in this case. Accordingly, we recommend the applicant’s records be corrected as indicated below. 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 pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. On 21 Apr 10, 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 Post-Traumatic Stress Disorder (PTSD), that his condition was under VASRD code 9411; with a disability rating of 30 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and 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 11 May 10, he was not removed from the TDRL and discharged with a compensable disability rating of 10 percent with severance pay; but on that date, he was permanently retired with a compensable percentage for physical disability of 30 percent. c. 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-2014-02049 in Executive Session on 27 Aug 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 May 14, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 24 Jul 14. Exhibit D. Letter, BCMR Medical Consultant, dated 31 Dec 14. Exhibit E. Letter, SAF/MRBR, dated 23 Jan 15. Exhibit F. Letter, BCMR Psychology Consultant, dated 25 Jun 15. Exhibit G. Letter, SAF/MRBR, dated 7Jul 15.