RECORD OF PROCEEDINGS

IN THE MATTER OF				DOCKET NUMBER: BC-2017-00694

XXXXXXXXXXXXX				COUNSEL: XXXXXXXXXX

							HEARING: YES 

APPLICANT REQUESTS THAT:

His permanent retirement disability rating be changed to 50 percent for his Generalized Anxiety Disorder with Depressive Disorder. 

The untimeliness of his request be waived.

APPLICANT CONTENDS THAT:

While on the temporary disability retired list (TDRL) he was rated at 50 percent for his anxiety disorder.  Concurrently, he was rated by the Department of Veterans Affairs (VA) at 50 percent for the same condition, which has since been increased to 70 percent.  Upon removal from TDRL, the Physical Evaluation Board (PEB) determined his condition had improved and he was permanently retired with a rating of 30 percent.  However, both the examiner and the VA provided evidence his condition had not improved.

His untimely filing is due to his severe mental health condition.  He is unable to cope with the appeal process with the VA and the Department of Defense (DoD).

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a retired Air Force Reserve master sergeant.  

Effective 25 Mar 11, the VA awarded the applicant Major Depressive disorder, with a disability rating of 50 percent.

Effective 26 Mar 11, per Special Order ACD-00806, dated 9 Jan 11, the applicant was placed on the temporary disability retired list with a disability of 50 percent.

Effective 29 Aug 12, per Special Order ACD-03279, dated 9 Aug 12, the applicant was removed from the temporary disability retired list and retired with a compensable percentage of 30 percent for physical disability.

Effective 23 May 16, the VA awarded the applicant Other Specified Trauma and Stressor-Related disorder (previously Major Depressive Disorder), with a disability rating of 70 percent.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denying the application.  

The applicant was placed on the TDRL with a 50 percent disability rating.  However, he was reevaluated and the Informal Physical Evaluation Board (IPEB) recommended discharge from TDRL with a disability rating of 30 percent.  On 9 Aug 12, the applicant was sent the IPEB recommendation, but did not respond with the concurrence letter, denoting concurrence.

The Air Force and VA disability systems operate under separate laws.  The Air Force PEB determines if a member’s medical condition renders them unfit for continued military service, and applies the VA rating provided at the time of the disability processing (a snapshot in time).  That rating determines the final disposition and is not subject to change after the service member has separated.  Under the VA system the member may be reevaluated over the years and their rating may be increased or decreased based on changes in the member’s condition.  However a change by the VA after separation does not warrant a change in the total compensable rating awarded at the time of the member’s separation.  The complete advisory is at Exhibit C.

AFBCMR Psychological Advisor recommends granting the application.  

The applicant’s last psychiatry appointment before his TDRL reevaluation was 10 Feb 12, during which he reported his anxiety and mood improved on medications, and he was reported to be compliant with his psychiatry treatment.  The applicant was reported to have received individual psychotherapy services from a civilian psychologist.  A letter from this psychologist was included in the applicant’s petition to the BCMR reporting that he began psychotherapy with this provider on 28 Jan 09.  His psychiatry notes reported that he had some difficulties in therapy sessions and wanted to take a break.  This indicated that he was avoiding confronting his past trauma and signifies his symptoms were not improved.  

The applicant’s TDRL reevaluation was completed on 4 Jun 12, and his evaluator was also his treating psychiatrist.  His reevaluation report presented a different clinical picture of the applicant than his previous treatment notes.  His reevaluation reported his difficulties were “essentially unchanged since he was medically separated in March 2011.”  There can be disparities in disability ratings and variances in diagnostic impressions within the mental health profession.  Disparities can be based on variances in clinical presentation at a given time, different disclosures during an interview, bias between clinicians, or legitimate differences due to new observations made over the longer period of care.  After review of applicant’s available records and utilizing policies, the SAF Mental Health Consultant recommends granting the applicant’s request to increase his disability rating to 50% due to Generalized Anxiety Disorder and Depressive Disorder.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 24 Aug 18 for comment (Exhibit E), and the applicant’s counsel replied on 31 Aug 18.  The applicant’s counsel contended the SAF Mental Health opinion was more relevant than the AFPC opinion, noting the difference in the evaluation of the TDRL reviewer and the applicant’s treating psychiatrist, and indicating the applicant has not improved.  The applicant’s complete response is at Exhibit F.

THE BOARD CONCLUDES:

1.  The application was not timely file.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  While the Board notes the comments of the AFBCMR Psychological Advisor recommends the request should be granted, the Board believes a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the Board concurs with the rationale and recommendation of AFPC/DPFDD and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  Moreover the applicant has offered no plausible reason for the delay in filing the application.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS:  

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

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-2017-00694 in Executive Session on 9 Oct 18:

, Panel Chair
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following regarding AFBCMR Docket Number BC-2017-00694:

Exhibit A:  Application, DD Form 149, w/atchs, dated 16 Feb 17.
Exhibit B:  Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Advisory opinion, AFPC/DPFDD, dated 16 Oct 17.
Exhibit D:  Advisory opinion, AFBCMR Psychological Advisor, dated 30 Jul 18.
Exhibit E:  Notification of Advisory, SAF/MRBC to applicant, dated 24 Aug 18.
Exhibit F:  Counsel’s response, dated 31 Aug 18.

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