ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2009-02357
		
	 	COUNSEL:  NONE

		HEARING DESIRED:  NO



APPLICANT REQUESTS THAT:

1.  Her diagnosed Post-Traumatic Stress Disorder (PTSD) be rated at 70 percent and included in her original Temporary Disability Retired List (TDRL) rating computation.  

2.  Her disability rating of 20 percent for Fibromyalgia be increased to 40 percent.  


RESUME OF CASE:
On 14 Oct 10, the Board considered and denied the applicant’s original request to correct her records to reflect the inclusion of a compensable disability rating of 50 percent for PTSD and 30 percent for migraine headaches when her name was placed on the TDRL.  In the original case, the applicant contended her psychiatrist was unable to provide proper input to the Medical Evaluation Board (MEB) or Informal Physical Evaluation Board (IPEB), resulting in neither appropriately considering her PTSD.  Nevertheless, she should have been rated for PTSD and migraine headaches in addition to her 40 percent rating for Fibromyalgia.  The AFBCMR Medical Consultant indicated that although the applicant’s medical records reflect she received individual diagnostic determinations at given times, the individual symptoms that resulted in terminating her career are appropriately subsumed under the unifying diagnosis of Fibromyalgia.  As for her PTSD, there was insufficient evidence that it was individually unfitting, or would have been the individual ratable cause for her career termination, were it not for her Fibromyalgia.  As a result, the Board determined the evidence provided was insufficient to conclude that, were it not for the applicant’s Fibromyalgia, that her PTSD and migraine headaches would have been individually unfitting and, thus, formed the basis for additional disability benefits.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit E.  
On 18 Jul 11, during a TDRL periodic review, the IPEB determined that the applicant’s fibromyalgia, which was originally rated at 40 percent disabling when she was transferred to the TDRL, should be rated as 20 percent disabling, noting that her medical condition had improved somewhat since being placed on the TDRL and appeared to have stabilized.  In addition, it was noted that the applicant was a full-time student about to finish her Master’s Degree in gerontology, that she has relationships and a social life, was exercising regularly, and able to take care of herself.  The IPEB concluded that the applicant’s medical condition “is not refractory to therapy, but that she does have exacerbations which still make her unfit for military duties.”

On 29 Aug 11, as a result of the reduction of her disability rating to 20 percent, the applicant was removed from the TDRL and discharged for physical disability with entitlement to disability severance pay.

By virtue of a DD Form 149, with attachments, the applicant requested reconsideration of the Board’s previous decision regarding her PTSD, indicating that the Department of Veterans Affairs (DVA) currently and historically rates PTSD as 70 percent disabling.  Additionally, she requests that her records be corrected to reflect that she was not recently removed from the TDRL and discharged with severance pay when her disability rating for fibromyalgia was reduced from 40 percent to 20 percent.  She contends the IPEB underrated her fibromyalgia at 20 percent during her periodic TDRL review.  Were it not for the omission of her PTSD as an unfitting condition and the unjust reduction in her disability rating for fibromyalgia, she would not have been removed from the TDRL during her 18 month TDRL re-evaluation and discharged with severance pay, but instead would have continued to receive a disability retirement.  
The applicant’s complete submission, with attachment, is at Exhibit F.  


AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends consideration for restoring the applicant’s ten percent disability rating for her migraine headaches, such that when combined with the 20 percent rating for her fibromyalgia, a combined disability rating of 30 percent would be achieved for permanent retirement, made effective the date of her removal from the TDRL, and release with severance pay.  There are key factors which differentiate a 40 percent disability rating from a 20 percent disability rating criteria for fibromyalgia.  Specifically, symptoms of headaches associated with fibromyalgia which are constant, or nearly so and refractory to therapy are rated at 40 percent, whereas the same symptoms which are episodic with exacerbations are rated at 20 percent.  In the applicant’s case, the Secretary of the Air Force Personnel Council (SAFPC) removed migraine headaches as a separately unfitting condition with the belief that it should be considered as a symptom of her diagnosed fibromyalgia.  However, had the applicant not sought further appellate review by SAFPC, she would likely have been retired with the 30 percent disability rating at the final (contested) TDRL evaluation.  The 30 percent disability rating was previously assigned by the Formal Physical Evaluation Board (FPEB), which included the reduced 20 percent disability rating for Fibromyalgia and ten percent disability rating for migraine headaches.  It is reasonable that SAFPC included headaches under the diagnosis of fibromyalgia with a 40 percent disability rating; however, the an unintended injustice occurred in the applicant’s case when she appealed the FPEB’s decision and her disability rating for fibromyalgia was reduced to 20 percent with the exclusion of the ten percent disability rating for the removal of Migraine headaches, which was previously determined to be a separately unfitting and ratable conduction, that would have resulted in retirement eligibility.  In regards to the applicant’s diagnosed PTSD, the evidence is insufficient to demonstrate she would have been unfit for retention in an alternative career field.  In accordance with Department of Defense Instruction (DoDI) 1332.38, Physical Disability Evaluation, a member that adequately performs his or her duties until referral for a physical evaluation may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duties.  Also, regardless of the presence of an illness, inadequate performance of duty by itself is not evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors.  In this case, the applicant was initially found to be worldwide qualified from a psychiatric perspective until she expressed her dissatisfaction with the IPEB’s decision.  As such, this is why it was likely the applicant’s PTSD was not found separately unfitting, despite her mental health provider’s later submission that the applicant had a delayed onset of PTSD.  The actions carried out in the applicant’s case were within the substantive policies of the Military Disability Evaluation System and represented no error in logic or rationale leading to various Board decisions.  However, from the standpoint of justice, but not for the applicant’s decision to appeal the FPEB finding, she would likely have been retired at her final TDRL evaluation with a 30 percent disability rating, with ratings of 20 percent for her fibromyalgia and ten percent for her migraine headaches.  

A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit G.





APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the AFBCMR Medical Consultant’s evaluation was forwarded to the applicant on 19 Sep 13 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit H).  


THE BOARD CONCLUDES THAT:

1.  After again reviewing the applicant’s request pertaining to her PTSD, we are not convinced the evidence presented by the applicant meets the criteria for reconsideration.  In this respect, we note that once an application has been considered and denied by the Board established by law for that purpose, reconsideration is only authorized upon the submission of new and relevant evidence that was not available at the time of the original submission.  The applicant was previously advised that reconsideration by the Board must be accompanied with newly discovered relevant evidence that was not available at the time of her original application.  Therefore, we conclude the applicant’s renewed submission regarding her PTSD diagnosis does not meet the criteria for reconsideration by this Board.

2.  Apart from the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s removal from the TDRL and subsequent discharge with entitlement to disability severance pay.  After a thorough review of the applicant’s complete submission and the totality of the evidence provided, we believe some measure of relief is warranted.  To that end, we note the comments of the AFBCMR Medical Consultant indicating that had the applicant not sought further appellate review by SAFPC for an unrelated medical claim during her original processing through the disability evaluation system (DES), she would likely have still carried the original ten percent disability rating for migraine headaches as a separately unfitting medical condition that she lost when she appealed to SAFPC.  Acknowledging that headaches could be reasonably subsumed under the collective criteria for the diagnosis of fibromyalgia, the decision of the FPEB indicates that an exception likely existed based upon the applicant’s testimony and the record.  Consequently, the Medical Consultant opined that the applicant would have remained qualified for disability retirement benefits when combining her reduced disability rating of 20 percent for fibromyalgia with the 10 percent disability rating for migraine headaches, which then would have resulted in a combined disability rating of 30 percent and retirement eligibility.  While we note this is not the relief the applicant seeks, in our view, we believe it is proper and fitting.  Accordingly, we recommend the applicant’s records be corrected to the extent indicated below.  

THE BOARD RECOMMENDS THAT:

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

		a.  On 27 May 08, the applicant did not appeal the findings of the Formal Physical Evaluation Board (FPEB), but on that date accepted said findings, which indicated that she was found unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; that the diagnoses in her case were fibromyalgia, VASRD code 5025, rated at 40 percent and migraine headaches, VASRD code 8100, rated at 10 percent; that the total compensable percentage was 50 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

		b.  On 16 Sep 08, the applicant was relieved from active duty and placed on the temporary disability retired list (TDRL), effective 17 Sep 08, with a combined compensable disability rating of 50 percent for her fibromyalgia (rated at 40 percent) and migraine headaches (rated at 10 percent).

		c.  On 18 Jul 11, during her periodic TDRL re-evaluation, the informal physical evaluation board (IPEB) found the applicant unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; that the diagnoses in her case was fibromyalgia, VASRD code 5025, rated at 20 percent and migraine headaches, VASRD code 8100, rated at 10 percent; that the total compensable percentage was 30 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

		d.  On 29 Aug 11, the applicant was not removed from  TDRL and discharged with severance pay, but on that date was permanently retired for physical disability with a combined compensable disability rating of 30 percent.  



The following members of the Board considered the applicant’s request for reconsideration of AFBCMR Docket Number BC-2009-02357 in Executive Session on 29 May 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit E.  ROP, dated 28 Oct 10, w/atchs.  
	Exhibit F.  DD Form 149, dated 2 May 11, w/atchs.  
	Exhibit G.  Letter, BCMR Medical Consultant, 
	            dated 19 Sep 13.  
	Exhibit H.  Letter, SAF/MRBR, dated 19 Sep 13.