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 applicants 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 veterans
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 veterans
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 individuals 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 applicants 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 applicants 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 applicants
PTSD was 50 percent disabling.
The AFBCMR Medical Consultants 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
applicants 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 applicants
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
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