RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03113

XXXXXXXXX	COUNSEL: XXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  His medical condition, adjustment disorder with anxiety and depressed mood, rated at 50 percent be increased to 70 percent.

2.  His chronic knee and back issues be rated as Category I, unfitting conditions which are compensable and ratable, at 10 percent for each medical condition.

APPLICANT’S CONTENTIONS

While he was on the Temporary Disability Retired List (TDRL) for his disability, which was rated at 50 percent, the Department and Veterans Affairs (DVA) increased the rating for his condition of adjustment disorder with anxiety and depressed mood to 70 percent.  He was later permanently retired from the Air Force at the 50 percent disability rating instead of the recommended 70 percent by the DVA.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air Force captain (O-3). 

On 19 Jul 16, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for Chronic Adjustment Disorder with anxiety/depression.

On 26 Sep 16, the DVA proposed a 50 percent disability rating for his service-connected medical condition of Chronic Adjustment Disorder with anxiety and depression.  The DVA also provided a 10 percent service-connected disability rating for Tinnitus with a combined rating of 60 percent.  Several other medical conditions were found as service-connected with a disability rating of 0 percent to include his back and knees conditions.

Dated 28 Sep 16, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to his medical condition of Chronic Adjustment Disorder with anxiety and depression  with a disability compensation rating of 50 percent with a recommendation of “Temporary Retirement.”

On 29 Sep 16, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant agreed with the findings of the board and waived his rights for any further appeal.  

Dated 3 Oct 16, Special Order XXXXX, indicates the applicant was placed on the Temporary Disability Retirement List (TDRL) with compensable percentage for physical disability of 50 percent, effective 28 Oct 16.

On 28 Oct 16, DD Form 214, Certificate of Release or Discharge from Active Duty, indicates the applicant was discharged in the grade of captain after serving nine years, three months, and one day of active duty.  His narrative reason for separation is “Disability, Temporary (Enhanced).”

Dated 6 Jul 18, AF Form 356, indicates the applicant was found unfit by the IPEB due to his medical condition of Adjustment Disorder with anxiety and depressed mood with a disability compensation rating of 50 percent with a recommendation of “TDRL to Permanent Retirement.”

Dated 26 Jul 18, Special Order XXXXXX, indicates the applicant was removed from the TDRL and permanently retired with compensable percentage for physical disability of 50 percent, effective 15 Aug 18.

On 27 Oct 20, the applicant’s counsel asked that his client’s application be withdrawn.  On 27 Oct 20, SAF/MRB letter was sent to the applicant closing his case as requested stating the case would remain closed until a request was received to resume the case. 

On 31 Jan 21, the applicant submitted a new application.  In this new application, the applicant’s counsel contends that at the time he was placed on the TDRL, he was suffering from chronic back and knee disabilities and should have been referred to the Disability Evaluation System (DES) and deem unfitting, rating each condition at 10 percent.  Also during this time, his mental health condition worsened to the point that the condition more accurately fell within the 70 percent rating under the applicable Veteran Affairs Schedule for Rating Disabilities (VASRD) formula but the IPEB failed to increase his rating upon TDRL reevaluation before recommending he be permanently retired.  The PEB should have rated is mental health condition at 70 percent instead of 50 percent.  

For more information, see the excerpt of the applicant’s record at Exhibit B, the additional application at Exhibit D and the advisories at Exhibits E, F, and J.

APPICABLE AUTHORITY/GUIDANCE

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.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge? 
d. Does that condition or experience outweigh the discharge?

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 11 Feb 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

AIR FORCE EVALUATION

AFPC/DPFDC recommends denying the applicant’s request to increase his mental health rating to 70 percent and to find his knee and back issues as unfitting.  Based on the documentation provided by the applicant’s counsel and the analysis of the facts, there is no evidence of an error or injustice occurred during the medical processing.  His rights were upheld throughout the DES process; no changes should be made to his Air Force file at this time.  The applicant had multiple opportunities to appeal the findings of the IPEB during the DES process, and he elected not to appeal or rebut his case at any point.    The DVA is charged with addressing any changes or adjustments to a member’s rating once they have been separated from the Service.  Therefore, any requests for rating changes or adjustments should be directed to the DVA.  

The complete advisory opinion is at Exhibit E.

The AFBCMR Psychological Advisor recommends denying the applicant’s request finding insufficient evidence to support a change to his disability rating based on his mental health condition.  When a service member enters the medical evaluation board (MEB) process, under the Integrated Disability Evaluation System (IDES), the DVA is the rating authority and the Department of Defense (DoD), to include the Air Force, must accept the DVA rating for the unfitting condition(s).  In the applicant’s case this was Adjustment Disorder with Anxiety and Depressed Mood.  However, during the TDRL re-evaluation and adjudication process, DoD is not bound by the DVA’s ratings and makes it’s decision independently, considering the relevant DVA and/or civilian medical records and the results of the TDRL re-evaluation examination.  The decisions rendered by DoD are based on evidence presented and available at the “snapshot in time” of the TDRL assessment.  In considering the applicant’s request for an increase from 50 percent to 70 percent, the disability rating is a functional-symptom based rating determined by the VASRD at the “snapshot in time” the applicant becomes unfit for duty.  This psychological advisor concurs with the findings of the IPEB.  The applicant’s social and occupational functioning impairments (due to his adjustment disorder with anxiety and depressed mood) did not rise to the level of a 70 percent rating during the “snapshot in time” at which he was removed from TDRL and permanently retired.  The applicant reported to the psychologist during his 6 Mar 18 evaluation that he has significant difficulties concentrating at school, has difficulties with sleep, and difficulties relating with others at school.  The provider stated the applicant’s military impairment continued to be marked and his social/industrial impairment was considerable with no significant improvement.  At the time of the evaluation, the applicant denied any thoughts of self-harm or suicidal ideations.  The IPEB found the applicant remained unfit for military service and recommended discharge with permanent retirement with a disability rating of 50 percent in accordance with the VASRD. This psychological advisor concurs and finds no error or injustice in this rating determination.  The applicant’s counsel noted the IPEB referenced a personality disorder “as an apparent attempt to attribute some of his function impairment to a non-ratable condition.”  The applicant’s personality disorder did not affect the IPEB’s rating; ratings are based only upon the severity and functional impairment of unfitting conditions.  However, the applicant’s personality disorder and traits likely caused his behavioral and misconduct issues in service and are considered incompatible for military service.  Personality disorders and traits are conditions of a developmental nature- they are pervasive, stable, persistent, and often resistant to treatment.  They are non-ratable and non-compensable in the IDES.  For awareness, the military’s DES can by law under Title 10, United States Code (U.S.C), only offer compensation for those service-incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only to the degree of impairment present at the “snapshot in time” of separation from service and not based on post-service progression of disease or injury.  In contrast, the DVA, operating under a different set of laws, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus to military service, without regard to its impact on a member’s fitness to serve, the narrative reason for release for service, or the length of time that has transpired since the date of discharge.  The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating as the level of impairment from a given condition may improve or worsen over the life of the veteran.   The board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, there was no evidence the applicant’s condition rose to the level of 70 percent rating while on TDRL.  The applicant was medically retired with a 50 percent disability rating due to his unfitting mental health conditions of adjustment disorder with anxiety and depressed mood.  The applicant was also med boarded for a personality disorder, which is an unsuiting and non-compensable mental health condition.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 5 May 21 for comment (Exhibit D), and the applicant replied on 14 May 21.  In his response, the applicant’s counsel contended the psychological advisor’s opinion framed its discussion around a statement the applicant made in the original application which was requested to be withdrawn.  Furthermore, the Psychological Advisory failed to consider with relevant evidence detailed in his application that findings of the IPEB were incorrect and just accepted the results of this finding as correct engaging in circular, myopic reasoning.  The application details numerous records that support his argument that his symptoms met the 70 percent criteria at the time of the TDRL re-evaluation and contradict the IPEB’s findings.  The advisory opinion addresses none of this material.  In the AFPC/DPFDC advisory, the opinion is that the applicant did not appeal any of the previous decisions therefore no error or injustice occurred.  There is no authority that would preclude the AFBCMR to correct the applicant’s records based on this argument.

The applicant’s complete response is at Exhibit I.

ADDITIONAL AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends denying the applicant’s request finding insufficient evidence to support a change to his disability rating based on his back and knee injuries.  Stepping back to the time the applicant first entered the IDES, the Medical Advisor noted on page 11 of the applicant’s legal brief, he contends that, at the time, “his back and knee conditions were actually worsening.”  The applicant’s counsel added, “On or about 21 Jun 16, in the course of seeking reconsideration for the DVA’s ratings for his non-DES disabilities, the applicant annotated disability benefits questionnaires (DBQs) with rebuttal information.”  The Medical Advisor noted the hand-written entries with X-marks on the applicant’s DBQs, depicting a worse characterization of his back and knee conditions, e.g., weakness, fatigability, than as determined on printed entries made by the examining medical professional.  Addressing the zero percent disability ratings initially assigned by the DVA for each knee and the back condition, the Board is advised that the DVA assigns zero percent ratings when there is no discernable functional impairment present during assessment that reaches the minimum rating of 10 percent for the given medical condition.  The Medical Advisor noted the counsel’s belief that, “Even if the condition was initially rated as zero percent, if it properly had been deemed unfitting by the PEB before separation, it is likely that the rating would have increased to 10 percent upon required reevaluation, consistent with the DVA’s increase.”  However, the Medical Advisor confirmed with a HQ AFPC/Disability Division, Policy and Quality official, that the only condition eligible for a change in rating would have been the condition for which the applicant qualified for placement on the TDRL.  Thus, even if found unfitting at zero percent, any future worsening of the conditions would not be subject to a change in rating by the Military Department; even though later increased by the DVA; unless each was determined to have been initially erroneously rated at zero percent by a DVA Decision Review Officer or other authority.

The complete advisory opinion is at Exhibit J.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Oct 21 for comment (Exhibit K), and the applicant replied on 1 Nov 21.  In his response, the applicant’s counsel contends the advisory opinion provided by the AFBCMR Medical Advisor only addresses the narrow issue of whether the applicant’s back and knee conditions should be added to the disability rating.  He does not address the issue of whether his PTSD should be increased from 50 percent to 70 percent.  With regards to the applicant’s knee and back condition, the medical advisor incorrectly states the unfitting condition that is a zero percent rating is ineligible for a change while on the TDRL.  The relevant determination, regardless of the rating percentage, is whether the condition is unfitting and unstable at the time the member was placed on the TDRL.  The applicant’s back and knee condition should have been found unfitting at zero percent at the time he was placed on the TDRL and, thus subject to re-evaluation within 16 months and potential rating increase due to worsening of the condition.

The applicant’s complete response is at Exhibit L.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendations of AFPC/DPFDC and the AFBCMR Psychological and Medical Advisors and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

4.  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 Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2020-03113 in Executive Session on 23 Nov 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 2 Sep 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Letter to Applicant, SAF/MRBC (Admin close per request), 27 Oct 20.
Exhibit D: New Application, DD Form 149, w/atchs, dated 31 Jan 21.
Exhibit E:	Advisory Opinion, AFPC/DPFDC, atchs, dated 25 Mar 21.
Exhibit F:	Advisory Opinion, AFBCMR Psychological Advisor, dated 16 Apr 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 5 May 21.
Exhibit H: Letter to Applicant, SAF/MRBC (Liberal Consideration), dated 5 May 21.
Exhibit I:	Applicant’s Response, w/atchs, dated 14 May 21.
Exhibit J:	Advisory Opinion, AFBCMR Medical Advisor, dated 6 Oct 21.
Exhibit K:  Letter to Applicant, SAF/MRBC to Applicant, dated 7 Oct 21.
Exhibit L:  Applicant’s Response, dated 1 Nov 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.