RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00306 COUNSEL: NO HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he was assigned a disability rating of at least 50 percent for his diagnosis of Post- Traumatic Stress Disorder (PTSD) to the extent that such a correction will not adversely impact his total disability compensation (including, but not limited to, Combat-Related Special Compensation (CRSC)). _________________________________________________________________ APPLICANT CONTENDS THAT: He was assigned a disability rating of less than 50 percent for his unfitting PTSD upon his discharge. In accordance with Title 10, Section 1201-03, of the United States Code (10 USC § 1201- 03) and Section 4.129, Title 38, of the Code of Federal Regulation (38 CFR § 4.129) a rating of no less than 50 percent should have been rendered by the Air Force for his unfitting PTSD. In support of the appeal, the applicant submits a personal statement. The applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force, who served on active duty from 22 Jan 02 through 27 Jul 09. He was processed through the Disability Evaluation System (DES), resulting in his name being placed on the Temporary Disability Retired List (TDRL), effective 12 Jun 07, with a disability rating of 30 percent for his diagnosis of PTSD with major depressive disorder. He received a combined compensable disability rating of 60% (which included his PTSD and other service connected disorders). He was removed from the TDRL and permanently retired with a combined disability rating of 50 percent, effective 27 Jul 09. In accordance with Title 38, Code of Federal Regulation, Section 4.129, Mental Disorders due to Traumatic Stress, when a mental disorder that develops in-service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran’s discharge to determine whether a change in evaluation is warranted. A class action lawsuit, i.e., Sabo, was filed against the United States of America on behalf of veterans who served on active duty in the U.S. Army, Navy, Marine Corps, or Air Force and were found by a Physical Evaluation Board (PEB) to be unfit for continued service due, at least in part, to PTSD, were assigned a disability rating for PTSD of less than 50 percent, and, as a result, were released, separated, retired, or discharged from active duty on or after 17 Dec 02 and before 14 Oct 08 (regardless whether such release, separation, retirement, or discharge resulted in the individual’s placement on the Temporary Disability Retirement List (TDRL)). Under the Rules of the United States Court of Federal Claims, the Court has reportedly allowed the class action lawsuit to be a class action on behalf of the individuals who chose to opt in. The plaintiffs seek, among other things, a Court Order requiring the military services to award to each member of the class the compensation and other benefits to which they would have been entitled if they had been assigned at least a 50 percent disability rating for PTSD from the date of release from active duty to the present. _________________________________________________________________ AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends the applicant’s record be changed to reflect he was placed on the TDRL with a 50% disability rating for his PTSD, retroactive to 13 Jun 07, and was removed from the TDRL and permanently disability retired with a 50% disability rating for PTSD, effective 14 Dec 07. In accordance with the existing DOD guidance, the rating should not be less than 50% while on TDRL, with a follow up examination to be scheduled within six months of discharge. However, there was no evidence in the documents provided that the applicant’s PTSD was reassessed following retirement from TDRL. A review of the rating determination and the clinical rationale for the December 2007 DVA rating decision does provide objective evidence for the level of impairment present during that period. After reviewing the finding and the rationale for determining a 50% disability rating, the Medical Consultant opines that the prescribed DVA disability rating assignment is clinically appropriate. Therefore, the Medical Consultant concurs with the rating determination assigned by the DVA and concludes that it is more likely than not that a six month DoD follow up determination would have been consistent with the determination made by the DVA indicating the applicant’s PTSD was 50 percent disabling. The AFBCMR Medical Consultant’s complete evaluation, with attachment, is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 15 Apr 11 for review and comment within 30 days. 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 error or injustice. After careful and deliberate review of the evidence presented in this case, we agree with the opinion and recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant’s records should be corrected as noted in his advisory opinion. We note the applicant has requested his records be corrected to the extent that such a correction would not adversely affect his overall disability compensation. We have been advised by the Air Force office of primary responsibility the proposed correction will not result in a reduction to the applicant’s overall Air Force and DVA disability compensation. Therefore, we recommend that the records be corrected as indicated below. ______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. On 13 Jun 07, he was placed on the Temporary Disability Retired List (TDRL) with a disability rating of 50 percent for Post-Traumatic Stress Disorder (PTSD) and a combined compensable disability rating of 70 percent. b. On 14 Dec 07, he was removed from the TDRL and permanently retired with a 50 percent disability rating for PTSD and a combined compensable disability rating of 70 percent. ______________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-00306 in Executive Session on 7 Nov 11, 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 3 Dec 10, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR Medical Consultant, dated 12 Apr 11. Exhibit D. Letter, SAF/MRBR, dated 15 Apr 11. Panel Chair