RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02282

	COUNSEL: NONE
	
	HEARING:YES

APPLICANT REQUESTS THAT:

His permanent disability rating be increased to 70% from 50%.

APPLICANT CONTENDS THAT:

The Secretary of the Air Force Personnel Council’s (SAFPC) decision was in error and his final disability rating should be increased to 70% from 50% for post-traumatic stress disorder (PTSD). On 6 Dec 16, the Department of Veterans Affairs (VA) increased his disability rating for PTSD to 70% from 50%, effective 29 Jan 13.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a permanently retired Air Force major. 

On 18 Sep 12, the Medical Evaluation Board (MEB) recommended Integrated Disability Evaluation System (IDES) by the VA for major depressive disorder and alcohol dependence. 

On 15 Nov 12, the VA reviewed the applicant’s case and rated his PTSD with major depression and alcohol dependence as 50% service connected disability.

On 10 Dec 12, the IPEB found the applicant unfit for continued military service with diagnosis of PTSD with major depression and alcohol dependence (combat zone, not combat related) with recommendation for “temporary retirement-reevaluate in six months” and combined compensable percentage of 50%.

On 28 Jan 13, the applicant was discharged and placed on Temporary Disability Retired List (TDRL) with compensable percentage for physical disability of 50% and determined not a direct result of armed conflict and determined incurred in a combat zone. 

On 1 Oct 13, the IPEB found the applicant continued to be unfit for military service with diagnosis of  PTSD and major depression, recurrent (combat zone, not combat related) and indicated his medical condition improved since being placed on TDRL and appeared to have stabilized. He was recommended for permanent retirement and reduction of combined compensable percentage to 30% from 50%.

On 7 Dec 13, the applicant non-concurred with the IPEB findings and requested appearance before the Formal Physical Evaluation Board (FPEB).

On 29 Jan 14, the FPEB found the applicant to be unfit for military service with diagnosis of PTSD and major depression, recurrent (combat zone, not combat related) and recommended permanent retirement of combined compensable percentage of 50%.

On 30 Jan 14, the applicant non-concurred with the FPEB findings and requested reconsideration by SAFPC.

On 3 Jun 14, SAFPC reviewed the applicant’s appeal for permanent retirement with the disability rating of 70%, but determined the applicant’s unfitting condition of PTSD was most consistent with the 50% disability criteria outlined in the VASRD for rating mental disorders.

On 21 Jul 14, the applicant was removed from the TDRL and permanently retired with a disability rating of 50% for physical disability and indicated as not a direct result of armed conflict or combat related injury. 
 
For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATIONS:

AFPC/DPFDC recommends denying the application.  The Air Force and the Department of Veteran’s Affairs (DVA) disability systems operate under separate laws.  Under the Air Force system (Title 10, United States Code), Physical Evaluation Boards must determine whether an airman’s medical condition(s) renders them unfit for duty and apply the rating best associated with the level of disability at the time of 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 (Title 38, U.S.C), the member may be reevaluated over the years and their rating may be increased or decreased based on changes in the member’s medical condition.  However, an increase or decrease in rating by the DVA after separation from the service 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.

BCMR Psychological Advisor recommends denying the application.  As a result of a thorough and extensive review of the applicant’s mental health records during the TDRL period, there is no evidence to support an increase of the applicant’s request to 70% from 50% disability rating.  When a service member enters the MEB for separation, under the IDES, the VA is the single rating authority and the Department of Defense (DoD) to include the Air Force must accept the VA rating for the un-fitting condition(s). Nonetheless during the TDRL re-evaluation and adjudication process, DoD is not bounded by the VA’s ratings and makes its decision independently considering the VA and/or civilian medical records and the results of the TDRL re-evaluation. The decision by the DoD are based upon the evidence present and available at the “snapshot” time of TDRL assessment; albeit within reasonable proximity to the date of an examination and recommendation by the VA.  The VA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran. 

The applicant entered the MEB and the VA proposed a disability rating of 50% on 15 Nov 12, the Air Force accepted and assigned to applicant when he entered TDRL.  His percentage of 50% was increased to 70% by the VA on 6 Dec 16, approximately four years after his MEB completion and two years after the ending of his TDRL period. This increase in disability percentage from the VA reflects his post-service level of impairment and not his condition at the snapshot in time of separation.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The Board sent a copy of the Air Force evaluation to the applicant on 13 Sep 18 for comment (Exhibit E), and the applicant replied on 11 Oct 18.  In his response, the applicant contends the Air Force evaluation recommendations are arbitrary, ambiguous, unreasonable and unfair.  He is not asking for a 70% disability rating because the VA rated his disability at 70%, but rather his disability satisfies the conditions for a 70% disability rating under the Veteran’s Administration Schedule for Rating Disabilities (VASRD) at the time he was first placed in the MEB process.  His appeal for 70% disability rating has been in the appeal process since the IPEB, long before the VA awarded him 70% disability rating.   The applicant’s complete response is at Exhibit F.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

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 injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDC and the BCMR Psychological advisor and finds that a preponderance of the evidence does not substantiate the applicant’s contentions. Therefore, the Board recommends against correcting the applicant’s records.

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-2017-02282 in Executive Session on 24 Oct 18:

	Chair
	Member
	Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 May 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDC, dated 13 Dec 17.
Exhibit D:	Advisory opinion, BCMR Psychological Advisor, dated 5 Sep 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 13 Sep 18.
Exhibit E:	Applicant’s response, dated 11 Oct 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 for Docket Number BC-2017-02282.