ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-02528

	COUNSEL: 	YES
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request to find chronic adjustment disorder and post-traumatic stress disorder (PTSD) incurred in the line of duty (ILOD), his PTSD be considered unfitting with a disability rating of 50 percent, his other service-related injuries rated by the Department of Veterans Affairs (VA) be included for a combined disability rating of 60 percent and he be medically retired (amended).

RESUME OF THE CASE

The applicant is a former Air Reserve technical sergeant.

On 6 Nov 16, the Board considered his request for a medical discharge with severance pay noting the AFBCMR Psychiatric Advisor’s comments indicating that relief should be granted because the applicant was subsequently awarded a 10 percent disability rating for PTSD by the VA. However, the Board took notice of the applicant's complete submission in judging the merits of the case, agreed with the opinion and recommendation of AFRC/SGO, and adopted their rationale the applicant was not the victim of an error or injustice, as the Board did not find where the applicant’s mental health issues were the result of military stressors. 

For an accounting of the applicant’s original request, see the Record of Proceedings at Exhibit F.

On 10 Jun 15, after being notified of his separation action for physical disqualification, the applicant filed an application to the Air Force Board for Correction of Military Records (AFBCMR) to correct his record to reflect he be medically discharged with severance pay instead of being administratively discharged.

On 4 Feb 16, the applicant was honorably discharged under authority AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 3.14, Physical Disqualification, Reserve Order No. CA-51, dated 21 Jan 16.

In Dec 16, the AFBCMR denied his request.

On 28 Apr 21, the United States Court of Federal Claims ordered the applicant and the defendant (United States) to meet and confer regarding how to proceed with the applicant’s case before the Court.  

On 14 May 21, the applicant and the defendant (United States) submitted a joint status report  stating that on remand, by agreement of the Air Force, the Board shall:

(a)	Rescind its 2016 decision, agreeing to following the United States Court of Federal Claims;

(b)	Rescind, and provide no further consideration of, the 2016 AFRC/SG advisory opinion;

(c)	Notify the applicant he has an opportunity to submit additional claims, evidence, and arguments to the Board;

(d)	Consider requesting new advisory opinions addressing the issues set forth in the Court’s remand instructions;

(e)	If applicable, provide the applicant with an opportunity to comment upon any new advisory opinions;

(f)	Reconsider fully all claims asserted by the applicant without regard to whether they were asserted or considered previously, including any claims for permanent disability retired pay pursuant to 10 U.S.C. §§ 1201 or 1204, temporary disability retired pay pursuant to 10 U.S.C. §§ 1202 or 1205, or disability severance pay pursuant to 10 U.S.C. §§ 1203 or 1206; 

(g)	Re-adjudicate the applicant’s claims based upon a complete set of his medical records and any further evidence that he may submit, all of which shall be considered by the Board and be made part of the Board record; and,

(h)	Follow the Court’s remand instructions (Exhibit G).

On 19 May 21, the United States Court of Federal Claims remanded the applicant’s case to the AFBCMR (Exhibit H).  

On 26 May 21, the AFBCMR staff reached out to the applicant’s counsel requesting any additional evidence for the Board’s consideration (Exhibit I). Furthermore, on 3 Jun 21, the AFBCMR staff provided the consolidated clarifying guidance as it pertains to the applicant’s case.

On 23 Jun 21, the applicant submitted his amended request for reconsideration to have his record corrected to reflect his chronic adjustment disorder and Post-Traumatic Stress Disorder (PTSD) were incurred in the line of duty (ILOD), entitled to disability benefits under Title 10, Chapter 61, Retirement or Separation for Physical Disability and medically retired with 60 percent disability.

On reconsideration, the applicant, through counsel contends the following:

The AFBCMR should provide relief based on the existence of an error or injustice that occurred during his discharge proceedings. During his discharge proceedings, the Air Force failed to meet the legal requirements established by Air Force Instruction (AFI) 36-2910, Line of Duty  Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, and AFI 48-123, Medical Examinations and Standards. Specifically, the Air Force never performed a line of duty (LOD) determination as required by AFI 48-123 to assess whether his potentially disqualifying defect occurred ILOD using the process outlined in AFI 36-2910. As a result, the Air Force only reviewed his fitness for continued military service and never considered whether he qualified for disability processing. Furthermore, the Board should review his request under liberal consideration due to his mental health conditions and in accordance with the Secretary of Defense Clarifying Guidance memorandums, dated 3 Sep 14 and 25 Aug 17.

During his deployment to Afghanistan from Aug 2011 to Feb 2012, he encountered traumatic situations and endured personal hardships. These stressors caused him to develop mental health issues diagnosed by the Air Force as chronic adjustment disorder and by the VA as PTSD.

In Aug 12, the Air Force became aware of his mental health symptoms after he completed a post-deployment re-assessment. Based on the re-assessment, he was advised to seek behavioral health services.

In Sep 12, his physician diagnosed him with anxiety and depression, noting a significant catalyst for his condition was the fact his wife had filed for divorce and moved to another state with their three children three weeks prior to his return from Afghanistan.

In Sep 13, the medical group mental health clinic examined and diagnosed him with chronic adjustment disorder with anxiety and depressed mood, and issued a duty limiting condition report. The report stated he was identified with a non-duty physical disqualification that must be processed through the non-duty Disability Evaluation System (DES). Instead, the Air Force referred him to the Physical Evaluation Board (PEB) to have his case reviewed for a fitness determination only. In Apr 14, the Air Force Reserve Command determined he was disqualified for continued service due to chronic adjustment disorder with anxiety and depression. In Apr 15, he was informed of the decision to initiate an honorable administrative discharge.

In Sep 16, the VA determined his PTSD that included his depressive, anxiety and alcohol use disorders, was service-connected and assigned 50 percent disability rating.

In support of his request, the applicant provided 22 attachments consisting of copies of an Air Force Achievement Medal, various VA/medical/civilian medical documents, post-deployment questionnaire, duty limiting condition report, medical disqualification memorandum, notification of discharge action, worldwide duty checklist, and Compensation and Pension (C&P) initial evaluation.

The applicant’s complete submission is at Exhibit I.

APPLICABLE AUTHORITY

The Department of Defense (DoD) and the Department of Veterans Affairs (VA) disability evaluation systems operate under two separate laws.  Under Title 10, United States Code, 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 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 Air Force (AF) 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 AF 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.

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered by this guidance.

On 25 Aug 17, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued clarifying guidance to Discharge Review Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions [PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment].  Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 26 May 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit I).

AIR FORCE EVALUATIONS

AFRC/SGO recommends partially granting the application. There is little debate that the applicant has PTSD, but at the time of processing through SG, the member had not been given the formal PTSD diagnosis. Therefore, an LOD could not have been considered at the time of his disqualification. However, an LOD evaluation of chronic adjustment disorder should have been considered upon returning from his 2012 deployment. The combination of his marital issues, alcohol use, and financial concerns likely did contribute to development of PTSD symptoms. In the applicant’s case, his condition falls into the category of service aggravation. It is clear an LOD was warranted, but not completed. Had the applicant been evaluated on the condition of existed prior to service (EPTS), it is probable, based on the traumatic events that occurred while deployed, his condition would have been considered service aggravated, therefore ILOD.

In mental health cases, it is not easy to separate some diagnoses, as one does not rule out another. A diagnosis of depression, anxiety, and PTSD are often placed in the same category when determining fitness and disability. Frequently a mental health condition can morph into the diagnosis of PTSD, which may not be diagnosed for years after the trauma was encountered. In the applicant’s case, he received a formal PTSD diagnosis in May 15 after being processed through SG but prior to the time of his discharge order (Jan 16). If he had returned with medical documentation stating that he had a new diagnosis, the discharge should have been help [halted] to address new medical information. The Reserve Medical Unit (RMU) then should have obtained another military mental health exam and if that diagnosis concur with PTSD, then an additional LOD would have been initiated. If this LOD was then found to be ILOD, then the condition of PTSD would have been submitted through the Medical Evaluation Board (MEB) and Integrated Disability Evaluation System (IDES) pathway. The applicant then could possibly have had an LOD for chronic adjustment disorder from 2014 and a LOD for PTSD in 2015.

The primary decision to recommend a partial grant is that the applicant’s participation would have been required to start the LOD for PTSD after the diagnosis. There is evidence of injustice by the medical element for not initiating a LOD for chronic adjustment disorder. SG does not believe that there was an error or injustice not processing an LOD for PTSD. AFMAN 48-123 (9.4.2.1) states that Air Reserve Component (ARC) service members must report “within 72 hours any illness, injury, disease, operative procedure or hospitalization not previously reported to their commander or supervisor and to the supporting medical facility personnel in accordance with AFI 36-2910. 9.4.2.2. Any concealment or claim of disability made with the intent to defraud the government may result in legal action and subsequent discharge from the ARC.” 

The RMU would have had no way of knowing that there was an additional diagnosis unless the applicant had provided that information directly to the unit. Therefore, there was no injustice or error by the RMU, but rather a failure of the applicant to provide the new medical diagnosis to the RMU. 

The complete advisory opinion is at Exhibit K.

AFRC/JA recommends fully granting the application. Based on the documentation provided by the applicant and analysis of the facts, there is evidence of an error or injustice in that an LOD was not done when he returned from the 2012 deployment to determine if the applicant’s chronic adjustment disorder was incurred ILOD. Furthermore, there is evidence of an error or injustice in that the discharge process was not stopped when the government learned of the PTSD diagnosis in Jun 2015, seven months prior to the applicant’s administrative discharge date. The discharge process should have been stopped and the case returned to the RMU for consideration of the VA PTSD diagnosis to determine if it was incurred ILOD. Even though it will never be known if a military mental health evaluation (MME) would have supported the diagnosis of PTSD, when the evidence is ambiguous, the benefit of the doubt inures to the member.

The significant factor is the time period between his May 15 PTSD diagnosis and his Jan 16 [sic] date of discharge. After a member has been found to have a disqualifying condition, as in this case, the member’s case does not go back through AFRC/SG. Unless the member is forthcoming with additional information, SG has no way of knowing of additional issues once the case has left them. If the applicant had returned to the RMU any time prior to discharge with the medical documentation from the VA regarding the PTSD diagnosis, then the RMU would likely have requested another MME, and initiated an LOD for PTSD, if the MME supported that diagnosis. The applicant did not do that and the Reserve did not become aware of the VA PTSD diagnosis until he filed his BCMR complaint in Jun 15. It is the JA’s opinion in Jun 15, the Reserve should have stopped the administrative discharge process. The government had a duty to act when it became aware of the VA PTSD diagnosis. The discharge processing should have stopped and the case should have been returned to the RMU for consideration of the VA PTSD diagnosis. 

The complete advisory opinion is at Exhibit L.

AFRC/A1 recommends fully granting the application. Based on the documentation provided by the applicant and analysis of the facts, there is evidence of an error or injustice in that an LOD to determine if the applicant’s chronic adjustment disorder was not done when he returned from the 2012 deployment. Furthermore, there is evidence of an error or injustice in that the discharge process was not stopped when the government learned of the PTSD diagnosis in Jun 15, seven months prior to the applicant’s administrative discharge date. The discharge process should have been stopped and the case returned to the RMU for consideration of the VA PTSD diagnosis to determine if it was incurred ILOD. When evidence ambiguity exists, the benefit of the doubt goes to the member.

The complete advisory opinion is at Exhibit M.

AFBCMR Psychological Advisor recommends the Board partially grant the applicant’s request by finding sufficient evidence to partially support his requests and based on liberal consideration. There was an identifiable procedural error of an LOD determination not being completed for the applicant, which had altered the narrative and trajectory of the applicant’s discharge outcome. To provide relief to the applicant, the psychological advisor recommends the Board find his mental health condition of PTSD, VASRD code 9411, as ILOD and unfitting and he be placed on the Temporary Disability Retired List (TDRL) with a 50 percent disability rating. The applicant should then be removed from the TDRL and discharged with a final 10 percent disability rating in alignment with his VA treatment records, C&P exam, and the VASRD rating criteria.

There is clear evidence in the records the applicant experienced emotional distress and PTSD-like symptoms from his deployment experiences in Afghanistan that were exacerbated by his marital conflict/wife leaving him which also occurred during his time down range. The applicant’s mental health condition should have been found ILOD as he was on orders when he experienced the onset of his adjustment issues manifested as anxiety and depressive symptoms and marital problems. These incidents had exacerbated and aggravated his condition. Invisible wounds are often difficult to pinpoint its onset, but there was no doubt the applicant was affected by his deployment experiences as his symptoms had appeared within six months of an identifiable situational stressor(s) (deployment and marital problems). Reasons for why an LOD determination was not completed for the applicant was unspecified in his records even though his provider had recommended this action. Had the applicant been found ILOD for his mental health condition and coupled with the unfitting finding by the IPEB, the applicant would have been processed through the DES for a medical discharge. Therefore, the psychological advisor finds a procedural error had existed with his discharge process.

In terms of the applicant’s contention that his condition of chronic adjustment disorder and PTSD should have been found ILOD and unfitting, the psychological advisor finds evidence to support one of these conditions but not both. A review of the applicant’s mental health treatment records found that the VA initially diagnosed him with an adjustment disorder caused from his deployment experiences, and this was the condition that was reported to his military provider and adjudicated by the IPEB. On 3 Feb 14, the applicant requested to be evaluated for PTSD by his VA provider. He reported having nightmares and flashbacks of rockets, bombs and mortars, being hyper-vigilant, easily startled, and having anxiety and panic attacks when around others caused by his three cumulative deployment experiences to Pakistan, Iraq, and Afghanistan. His VA provider reported in the note, “He worried that being diagnosed with PTSD may affect his military career. We decided to not put in a referral for PTSD evaluation. If he has PTSD, it is probably mild.” He was given a diagnoses of ETOH [alcohol] use, history of DUI in 2013 and adjustment disorder with anxiety and a rule out of PTSD due to not enough information for a confirmed diagnosis. 

The following year, on 19 May 15, the applicant received a formal evaluation for PTSD by the VA and this time, he met full diagnostic criteria for PTSD and was officially given this diagnosis. This information indicated that he was indeed diagnosed with PTSD while in the service, because it preceded his discharge date of 21 Jan 16 [sic]. The applicant’s next visit with his VA provider dated on 8 Jul 15, replaced adjustment disorder diagnosis with PTSD. Adjustment disorders often are assigned as temporary or precursor disorders that may elevate to another or more serious mental disorder, as symptoms tend to develop and evolve over time. It is not uncommon and occur rather frequently, to be initially diagnosed with an adjustment disorder and later the diagnosis may change to PTSD, Major Depressive Disorder or other specified appropriate disorders as more information are gathered and become available. This appeared to be the situation for the applicant because he was initially given an adjustment disorder diagnosis that was later changed to PTSD by his VA providers. Thus, only one and not two unfitting conditions would have been processed through the DES because of the conversion of his diagnosis from adjustment disorder to PTSD. Regardless of whether the applicant had one, two or multiple mental health conditions, this information would not have affected or altered the outcome of his fitness for duty determination since he was already found to have an unfitting mental health condition by the IPEB. The military/DoD assigns only one combined rating for multiple mental health conditions, and the disability rating is not based on the number of conditions or disorders one has but rather, based on the severity or degree of impairment of the unfitting condition(s).

The primary issue regarding the applicant’s diagnosis was due to him being reluctant to disclose his actual symptoms to his providers. This situation may create many problems and complications in the long term for the applicant and would deprived both him and his providers the ability of a proper assessment. It is understandable the reason the applicant did not want to disclose his condition due to potentially adverse impact on his military career; however, providers rely on the open and honest reporting from their clients/patients in order to the make the most informed and appropriate diagnosis based on the information reported. Furthermore, it is erroneous to believe that being diagnosed with PTSD would automatically lead to career termination. The applicant never reported to his military provider or military treatment facility he had been diagnosed with PTSD by the VA. It was not until he filed a petition with the BCMR in Jun 2015 that this diagnosis was discovered. 

The advisory from AFRC/JA dated on 14 Sep 15, reported that once his PTSD diagnosis had been known, his case would have been stopped and returned to RMU for consideration of the VA’s PTSD diagnosis. Based on this additional information, the psychological advisor finds an error was made by both the applicant and the Air Force. The applicant had the responsibility to fully disclose his true mental health condition and diagnosis, which he did not do and the Air Force did not return his case to RMU to re-evaluate the applicant to determine if his condition of PTSD would be found unfitting.

Moving forward from the identifiable errors that were made, the psychological advisor finds sufficient evidence his mental health condition of PTSD in lieu of chronic adjustment disorder to be unfitting based on review of the available records. The challenge would then be to decipher his final rating. Should the applicant be properly processed through the DES, the IPEB would find his condition of PTSD, VARSD code 9411 as unfitting, designated as Combat Related and would recommend he be placed on the TDRL with a rating of 50 percent because his condition had not been determined as stable in accordance to AFI 36-3212. He would also be required to receive a TDRL re-evaluation once every 18 months for up to three years or until his condition was determined to be stable by a duly qualified psychiatrist or doctoral level psychologist. If his condition was determined to be stable, he would be removed from TDRL and be given another and final rating (the rating could remain the same, increase or decrease depending on level of impairment) from the Air Force. Since the applicant never received a TRDL re-evaluation and it would not be possible for him to receive one in present time due to statutory limits, his VA treatment records are utilized to determine his final rating. These VA records from his treating psychiatrist demonstrated his PTSD symptoms have improved from psychotropic medication interventions and his condition had stabilized. He was able to function as he was able to maintain full-time employment and even worked over time on multiple occasions and simultaneously attended Heating, Ventilation, and Air Conditioning (HVAC) schooling. There were no significant impairments noted with his occupational, social, and academic functioning. Providing further support that his condition had improved or was stable, the applicant received a C&P exam from the VA on 31 Aug 16 during the “TDRL” or would be TDRL period. The C&P exam evaluator endorsed the following level of occupational and social impairment: “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.” Using the information from these treatment records and the VASRD, his condition meets a 10 percent rating. It is acknowledged the applicant was given a 50 percent disability rating from the VA from the same C&P exam despite the C&P exam evaluator determining the level of impairment that exactly fits and meets the 10 percent criteria. To explain the disparity and for general awareness, when a service member enters the MEB for separation, under the IDES, the VA is the single rating authority and the DoD to include the Air Force must accept the VA rating for the unfitting condition. Nonetheless during the TDRL re-evaluation and adjudication process, DoD is not bounded by the VA’s rating and makes its decision independently considering the VA and/or civilian medical records and the results of the TDRL re-evaluation if available. The assessment and rationale of a 10 percent rating rendered by the psychological advisor is based upon the evidence presented and available at the “snapshot” time of the records following 18 months of his discharge in lieu of an official TDRL assessment, which was also, albeit within reasonable proximity to the date of a C&P exam and recommendation by the VA. The 10 percent rating is also consistent and proposed by the previous psychiatric advisor. As a result, the psychological advisor recommends the Board find only his condition of PTSD, VASRD code 9411, and not in conjunction with chronic adjustment disorder, as ILOD and unfitting with a final 10 percent disability rating.

The complete advisory opinion is at Exhibit N.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent copies of the advisory opinions to the applicant on 16 Sep 21 for comment (Exhibit O), and the applicant replied on 16 Oct 21. In his response and through counsel, the applicant agrees with the advisory opinions in part, in that his mental health injuries incurred ILOD and he should retroactively be placed on the TDRL with a 50 percent disability rating for his mental health injuries. However, the Board should adopt the VA’s final 50 percent disability rating because it represents the best available assessment of his mental health injuries, provides him with the best rating in accordance with the “benefit of the doubt” doctrine, and is supported by a presumption of regularity. The psychological opinion’s reliance on the prior psychiatric opinion is flawed in that it explicitly relies on a preliminary VA examiner opinion that was issued before the VA’s final decision awarding the applicant a 50 percent disability rating for his mental health disabilities. Both opinions find support for a 10 percent disability rating by focusing exclusively on the boiler-plate characterization of some of the applicant’s symptoms that matches the criteria for a 10 percent rating to the exclusion of other evidence of more serious symptoms and effects on his mental health injuries. 

Removing him from the TDRL with less than 50 percent rating would be arbitrary and capricious because the Air Force has not provided him with the full and fair hearing in accordance with 10 U.S.C. § 1214 to which he is entitled to. Additionally, he requests the Board award him a total combined disability rating of 60 percent to include all of his service-related injuries with the VA disability determination and grant him a medical disability retirement. 

With his response, the applicant provided additional evidence, specifically a copy of the C&P Initial PTSD disability benefits questionnaire, dated 31 Aug 16. 

The applicant’s complete response is at Exhibit P.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the report provided by the Court remand order, the applicant’s new evidence and rebuttal, the Board concludes the applicant is the victim of an error or injustice in part.  Specifically, the applicant has provided sufficient evidence that his PTSD should have been considered ILOD, found to be unfitting with placement on the TDRL with a disability rating of 50 percent and subsequently be removed from the TDRL and discharged with 10 percent disability rating for his PTSD.  In our review, the Board explicitly followed the Court remand order to; a) rescind its original 2016 decision; b) rescind and provide no further consideration of the 2016 advisory opinion by AFRC/SGO); c) notify the applicant he has an opportunity to submit additional claims, evidence and arguments to the Board; d) consider requesting new advisory opinions; e) provide the applicant an opportunity to comment upon any new advisory opinions; f) reconsider fully all claims asserted by the applicant without regard to whether they were asserted or considered previously, including any claims for permanent disability retired pay, temporary disability retired pay or disability severance pay; g) re-adjudicate the applicant’s claims based upon a complete set of the applicant’s medical records and any further evidence the applicant may submit, and h) follow the Court’s remand instructions. Specifically, the Board ordered advisories to address the author’s following four takeaways:

1)	The Board shall consider the rating decision by the DVA, submitted by the applicant and explain how it weighed evidence of the VA’s rating decision and any finding by the VA under 38 U.S.C. § 1154(b) of sufficient proof of service connection as that phrase is defined under 38 U.S.C. § 101(16). 

2)	The Board shall determine and explain why any percentage rating determined is most appropriate for the disability when compared to the next higher percentage rating and next lower percentage rating under the VASRD.

3)	The Board shall explain why the rating percentage determined is more appropriate than the rating percentage sought by the applicant.

4)	The Board shall determine if the applicant’s unfitting, chronic adjustment disorder was considered ILOD.

As for the author’s first take away, the Board considered the VA’s rating decision made on  21 Sep 16 where they determined service connection for the applicant’s PTSD and agrees the medical condition should have been considered ILOD as the applicant was diagnosed with PTSD while he was still in service.  Additionally, the Board finds no evidence that the remaining medical conditions, service connected and rated by the VA; tinnitus, torn labrum and degenerative joint disease, left shoulder, hearing loss, left ear, and chronic allergic rhinitis were unfitting at the time of his discharge. 
 
As for the author’s second take away, the Board finds the applicant’s PTSD symptoms outlined in the VA C&P examiner’s notes, dated 31 Aug 16, align with a 10 percent disability rating in accordance with (IAW) the VASRD general rating formula for mental disorders.  Specifically, the VA C&P examiner indicated all of the applicant’s mental diagnoses could be summarized as, “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication,” which is the criteria for 10 percent rating verbatim. The Board believes that according to the VASRD criteria the applicant’s symptoms are greater than zero percent but do not warrant a higher rating of 30 percent rating.  In order to assign a higher percentage of 30 percent rating, the applicant would need to exhibit “occupational and social impairment with 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 as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) IAW the VASRD.  The VA C&P examiner’s notes do not indicate the applicant meets the criteria for 30 percent rating. In fact, the examiner’s assessment indicated, “the applicant’s symptoms are in better control and he is functioning consistently well. I will continue current medications.”

Additionally, the Board notes the VA’s final rating for the applicant’s medical condition of, “PTSD to include depressive disorder, anxiety disorder, and alcohol use disorder,” was rated at 50 percent. The Board cannot speculate why the VA assigned a 50 percent rating but elucidates that the Air Force may assign disability ratings independently for TDRL re-evaluations by consideration of the VA and, or, civilian medical records along with the results of the TDRL re-evaluation and is not bound by the VA’s determination as is required when a service member enters the MEB for separation, under the IDES.

As for the author’s third take away, although the applicant is requesting 60 percent disability rating based upon the VA’s assigned ratings (50 percent for PTSD and 10 percent for tinnitus), the Board finds his symptoms outlined in the VA C&P examiner’s notes, dated 31 Aug 16, align with a 10 percent rating in accordance with the VASRD general rating formula for mental disorders.  Specifically, the VA C&P examiner indicated all of the applicant’s mental diagnoses could be summarized as, “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication.”  Additionally, the applicant’s tinnitus, was not found to be an unfitting condition and therefore would not be assigned a disability rating by the Air Force.

For the reasons discussed above, the Board finds that subsequent to the final TDRL re-evaluation, a final 10 percent rating for his PTSD and no other medical conditions is more appropriate than the applicant’s request for 50 percent for PTSD and 10 percent for tinnitus.

As for the author’s fourth take away, the Board does not find the applicant’s chronic adjustment disorder to be unfitting nor separately rated as this diagnosis was replaced with PTSD prior to his discharge.

Consequently, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request. Therefore, the Board recommends correcting the applicant’s records as indicated below.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show the following:

a.  On 21 January 2016, 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), under VASRD code 9411; with a disability rating of 50 percent; 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 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 21 January 2016, he was released from active duty with an honorable  character of service and on 22 January 2016, his name was placed on the Temporary Disability Retired List (TDRL) per AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation; in the grade of staff sergeant in accordance with Title 10 USC 1372(2) Grade on Retirement for Physical Disability.

c.  On 31 August 2016, his name was removed from the TDRL and he was medically separated by reason of physical disability, with entitlement to severance pay with a compensable percentage for physical disability rating of 10 percent.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant, the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2015-02528 in Executive Session on 9 Nov 21:

Panel Chair
Panel Member
Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 8 Nov 16.
Exhibit G:	Joint Status Report, 14 May 21.
Exhibit H:	United States Court of Federal Claims Order, dated 19 May 21.
Exhibit I:	Email, SAF/MRBC to applicant, beginning 26 May 21.
Exhibit J:	Additional Evidence/Application, DD Form 149, w/atchs, dated 23 Jun 21.
Exhibit K:	Advisory opinion, AFRC/SGO, dated 14 Sep 21.
Exhibit L:	Advisory opinion, AFRC/JA, dated 14 Sep 21. 
Exhibit M:	Advisory opinion, AFRC/A1, dated 14 Sep 21.	
Exhibit N:	Advisory opinion, AFBCMR Psychological Advisor, dated 15 Sep 21.
Exhibit O:	Notification of advisory, SAF/MRBC to applicant, dated 16 Sep 21.
Exhibit P:	Applicant’s response, dated 16 Oct 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.