RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER: BC-2013-02749
			COUNSEL:
				HEARING DESIRED: NO


APPLICANT REQUESTS THAT:

His discharge with a 30 percent disability rating be increased 
to a 70 percent disability rating for Post-Traumatic Stress 
Disorder (PTSD).


APPLICANT CONTENDS THAT:

The applicant suffered several traumatic events during his 
numerous deployments.  Subsequently, he was diagnosed with PTSD, 
found unfit for duty and placed on the Temporary Disability 
Retired List (TDRL) with a 70 percent disability rating for 
PTSD.

In February 2011, the Department of Veterans Affairs (DVA) 
increased his PTSD rating from 50 percent to 70 percent.

In May 2011, the Air Force decreased his 50 percent disability 
rating, without an explanation.  In fact, the Air Force 
presented facts which mitigate in favor of maintaining the 
70 percent disability rating as it explicitly stated that the 
decedent’s medical condition [was] essentially unchanged since 
being placed on the TDRL and will not likely change over the 
next several years.

In 2012, the applicant was notified that he had been moved from 
the TDRL to permanent retirement, and, again without proper 
explanation, further decreased his disability rating to 
30 percent because he no longer suffered from panic attacks or 
auditory hallucinations and had not been hospitalized since his 
retirement.  However, these reasons for a decrease in the 
disability rating are dubious because he never reported having 
auditory hallucinations in the first place and was never 
hospitalized.  Moreover, the further decrease is questionable 
because the Air Force stated he still suffered from a depressed 
mood, anxiety, suspiciousness, panic attacks, and chronic sleep 
impairment, and thus failed to identify a single improvement in 
his symptoms.  Because there is no basis in his medical records 
for decreasing the rating of PTSD with Depressive Disorder from 
70 percent to 30 percent the Board must correct this injustice.

In support of his request, the applicant provides copies of the 
applicant’s AF Forms 356, Findings and Recommended Disposition 
of USAF Physical Evaluation Board; DVA Rating Decision; medical 
documents, and various other documents associated with his 
request.

The applicant’s complete submission, with attachments, is at 
Exhibit A.


STATEMENT OF FACTS:

On 16 April 2010, the Informal Physical Evaluation Board (IPEB) 
recommended the applicant be placed on the TDRL with a 
70 percent disability rating for PTSD with Depressive Disorder 
with an effective date of 22 July 2010.

According to the DVA Rating Decision dated 3 February 2011, the 
evaluation of PTSD with depression, which was 50 percent 
disabling, was increased to 70 percent effective 7 September 
2010.

On 16 May 2011, the IPEB recommended the applicant be removed 
from the TDRL with a permanent retirement and disability rating 
of 50 percent for his PTSD.

On 24 May 2011, the applicant non-concurred with the IPEB’s 
rating decision and elected to waive his right to a hearing 
before the Formal PEB (FPEB) and appealed directly to the 
Secretary of the Air Force Personnel Council (SAFPC) for a 
70 percent disability rating.

On 15 February 2012 the SAFPC directed the applicant be removed 
from the TDRL and permanently retired with a disability rating 
of 30 percent.

Special Order ACD-01550 issued 7 March 2012, removed the 
applicant from TDRL effective 27 March 2012, and retired him 
with a disability rating of 30 percent.

On 8 September 2014, the Board was notified that on 4 September 
2014, the applicant died in a motorcycle accident.


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial.  DPFD states that the preponderance 
of evidence reflects that no error or injustice occurred during 
the disability process or at the time of separation.  The IPEB 
quotes SAFPC in noting that "Addressing the applicant's 
disability rating award, the Board is required by law to rate a 
disability using criteria outlined in the VASRD ... it is noted 
that member received a rating of 70% by the VA which was solely 
based on review of records from November 2009 to April 2010, 
since then the member has failed to report for recommended VA 
exams to assess the severity of his disability.  Although the 
member contends his medical conditions have not improved and he 
remains the same he no longer suffers with panic attacks, has 
auditory hallucination and has not been hospitalized since his 
retirement.  He states he gets along well with his sons and has 
not recommences psychotherapy or psychotropic medication despite 
being symptomatic.  TSgt [H's] medical records failed to provide 
evidence to support a rating of 70% under the VASRD code 9411.  
However in the case under review and Board finds that TSgt [H] 
clearly demonstrates occupational and social impairment with 
occasional decrease in work efficiency...due to symptoms as: 
depressed mood, anxiety, panic attacks....mild memory loss which 
correlates to a disability rating of 30%."  Special Order ACD-
01550 issued 7 March 2012, removed the applicant from TDRL 
effective 27 March 2012 and he was retired with a disability 
rating of 30 percent.

As background, the Department of Defense (DoD) and the DVA 
disability evaluation systems operate under separate laws.  
Under Title 10, USC, PEBs must determine if a member's condition 
renders him or her unfit for continued military service relating 
to his or her office, grade, rank or rating.  The fact that a 
person may have a medical condition does not mean that the 
condition is unfitting for continued military service.  To be 
unfitting, the condition must be such that it alone precludes 
the member from fulfilling his or her military duties.  If the 
board renders a finding of unfit, the law provides appropriate 
compensation due to the premature termination of his or her 
career.  Further, it must be noted the USAF disability boards 
must rate disabilities based on the member's condition at the 
time of evaluation; in essence a snapshot of the member’s 
condition at that time.  It is the charge of the DVA to pick up 
where the Air Force must, by law, leave off.  Under Title 38, 
the DVA may rate any service-connected condition based upon 
future employability or reevaluated based on changes in the 
severity of a condition.  This often results in different 
ratings by the two agencies.

The complete DPFD evaluation is at Exhibit C.

The BCMR Medical Consultant recommends amending the applicant’s 
record to reflect he was removed from the TDRL and permanently 
retired with a 50 percent disability rating due to PTSD, under 
VASRD Code 9411, effective 12 March 2012.  Despite the 
suggestion that the applicant may not have been fully compliant 
with treatment recommendations, the evaluating psychiatrist 
believed that his level of impairment remained "Severe" 
throughout.  If one utilizes the phrase extracted from the 
rationale of the IPEB decision, indicating that the applicant's 
medical condition had remained “essentially unchanged” since 
initial TDRL placement, one might argue that the final rating 
should also not be changed from its original 70 percent rating 
award.  The "Severe" characterization of the applicant's level 
of impairment by the evaluating psychiatrist at the time of the 
TDRL re-evaluation also indicates that the condition has not 
changed.  While the Medical Consultant recommends granting the 
applicant the 50 percent rating, he does not believe this should 
be based upon the documentation from the DVA; as this evidence 
was the same old evidence utilized by the Air Force for its 
initial TDRL placement decision.  It should also be noted that 
the applicant missed a scheduled DVA evaluation, placing the DVA 
at the disadvantage of utilizing non-concurrent information 
[2009 and 2010] in making its rating decision [in 2011].  The 
Consultant presents another probable explanation for the 
70 percent rating assigned by the DVA.  He presumes that the 
50 percent disability rating apparently first assigned by the 
DVA was made under provisions of 38.C.F.R, Section 4.129, which 
reads: "When a stressful event is severe enough to bring about 
the veteran's release from active military service, a disability 
rating of no less than 50 percent will be assigned, followed by 
the scheduling of an evaluation within the 6-month period 
following the veteran's discharge to determine whether a change 
in evaluation is warranted."  Consequently, upon the applicant's 
appeal to the DVA it is apparent that the disability rating was 
increased solely upon the old evidence from the Military 
Department and not upon a more current Compensation and Pension 
examination.  Therefore, while the psychiatric evaluations have 
characterized the applicant's impairment as "Severe," both at 
the time of initial TDRL placement [2010] and remained so 
["Severe"] at the time of TDRL reevaluation [2011], a 50 percent 
rating would be a reasonable compromise, based upon both a 
probable error [in rationale] and injustice [in its reduced 
rating] on the part of the IPEB in its, otherwise, inaccurate 
explanation of the rating deduction to 50 percent; particularly 
as noted in the characterization of the applicant's condition as 
"essentially unchanged."

The complete Medical Consultant’s evaluation is at Exhibit D.


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

The applicant’s disability rating should never have been reduced 
from 70 percent to 30 percent based on the erroneous findings of 
the IPEB in May 2011.  Accordingly, in order to correct the 
error, his rating for PTSD should be increased to 70 percent 
because it is a more accurate reflection of his severe symptoms 
and will correct the error in his military record.

Counsel’s complete response with attachment is at Exhibit F.



ADDITIONAL AIR FORCE EVALUATION:

After reviewing the applicant’s rebuttal dated 7 May 2014, and 
in view of the consistent determination that the applicant’s 
level of impairment was "severe," the BCMR Medical Consultant 
verbally agreed that the applicant’s discharge with a 30 percent 
disability rating should be increased to a 70 percent disability 
rating for PTSD.  As required by 10 U.S.C. 1556(a), a summary of 
the verbal communication made by the BCMR Medical Consultant to 
the Board was provided to counsel for review and comment.


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

In an email dated 7 November 2014, counsel agreed with the BCMR 
Medical Consultant’s recommendation to increase the applicant’s 
disability rating to 70 percent.

Counsel’s complete response is at Exhibit H.


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 an error or injustice warranting 
relief.  Having carefully reviewed this application, we agree 
with the recommendation of the BCMR Medical Consultant and adopt 
the rationale expressed as the basis for our decision that the 
applicant has been the victim of either an error or an 
injustice.  Therefore, we recommend the applicant's records be 
corrected as set forth below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to MEMBER, be corrected to show that on 27 March 
2012, he was removed from TDRL with a compensable rating of 
70 percent for physical disability.



The following members of the Board considered this application 
in Executive Sessions on 25 March 2014 and 20 June 2014, under 
the provisions of AFI 36-2603:

       , Panel Chair
       , Member
       , Member

All members voted to correct the record as recommended.  The 
following documentary evidence was considered in AFBCMR BC-2013-
02749:

Exhibit A.  DD Form 149, dated 20 May 2013, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, AFPC/DPFD, dated 16 July 2013.
Exhibit D.  Letter, BCMR Medical Consultant, dated 
29 August 2013.
Exhibit E.  Letter, SAF/MRBC, dated 3 September 2013.
Exhibit F.  Letter, Counsel, dated 7 May 2014, w/atch.
Exhibit G.  Email, AFBCMR, dated 23 October 2014.
Exhibit H.  Email, Counsel, dated 7 November 2014.