RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00942
		COUNSEL:  Ms. Lisa Marie 
Windsor
		HEARING DESIRED: YES

	 

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APPLICANT REQUESTS THAT:

1. His disability percentage rating be changed to 70 percent for 
Major Depressive Disorder.

2. His authority and reason for separation be changed to 
Permanent Medical Retirement with all back pay and allowances.

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APPLICANT CONTENDS THAT:

In an 8-page brief, applicant’s counsel makes the following key 
contentions:

	a. On 4 Dec 06, he was found to be unfit for military duty and 
placed on the Temporary Disability Retirement List (TDRL) with a 
30 percent disability rating for Major Depressive Disorder.  In 
Oct 09, he received a re-examination where the Informal Physical 
Evaluation Board (IPEB) determined he warranted 10 percent 
disability rating, severance pay, and discharge.  He intended to 
non-concur with the IPEB findings; however, he did not meet the 
10-day deadline and could not request a formal hearing.  

	b. Prior to his TDRL re-examination, the Department of 
Veterans Affairs (DVA) rated him with a 70 percent disability 
rating for Major Depressive Disorder with psychotic features.  

	c. In 2006, his scores on the Outcome Questionnaire (OQ) 45 
were very low, 2 and 17.  This would indicate a mild impairment 
indicative of a condition in remission and managed well on 
medication, and this is how both of the applicant’s doctors 
described his condition at the time.  However, after being re-
examined in 2009, his OQ-45 score had jumped to 73.  In scoring 
the OQ, the higher the score, the greater the report of patient 
distress in the areas of symptom distress, interpersonal 
relationships, and social roles.  A total score of 63 or more is 
clinically significant.  

	d. The IPEB TDRL Re-evaluation that met on 22 Oct 09 used the 
doctor’s report.  Unlike the first IPEB, where his condition was 
described as severe but in remission on medication, his OQ-45 
scores of 2 and 17 resulted in a 30 percent disability rating.  
The second IPEB re-evaluation, three years later, found his 
condition was not in remission with an OQ-45 score of 73, which 
resulted in a 10 percent disability rating.

	e. Under the new Integrated Disability Evaluation System, the 
DVA is tasked with rating disabilities and the military services 
now determine only fitness for duty.  The applicant was 
precluded from contesting his TDRL IPEB findings and therefore 
has exhausted administrative remedies.

In support of his request, the applicant provides excerpts from 
his medical records, a copy of his TDRL package, and his DVA 
Rating Decision.

His complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant served in the Regular Air Force in the grade of 
captain.  

On 4 Dec 06, the applicant met an IPEB and was found unfit for 
Major Depressive Disorder, Social and Industrial Impairment 
Definite, and was placed on the TDRL with a 30 percent 
compensable rating.  

On 22 Oct 09, the applicant met a TDRL IPEB re-evaluation and 
was found unfit for duty for Major Depressive Disorder.  On 27 
Dec 09, he was discharged with 10 percent severance pay. 

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force, which is at Exhibit C and F.

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AIR FORCE EVALUATION:

AFPC/DPFD recommends denial stating there was no error or 
injustice that occurred during the applicant’s disability 
processing or at the time of his separation.  The IPEB reviewed 
the medical information and recommended removal from the TDRL 
and discharge with severance pay.  The findings were mailed to 
the applicant on 26 Oct 09 with instructions to return his 
election statement by 20 Nov 09, if he agreed or disagreed with 
the IPEB.  The letter also noted that if they did not receive 
his signed reply by the suspense date, it was understood that he 
agreed with the recommended findings.  

Additionally, the Department of Defense (DoD) and the DVA 
disability evaluation systems operate under separate laws.  It 
is the charge of the DVA to pick up where the AF must, by law, 
leave off.  Under Title 38, the DVA may rate any service-
connected condition based upon future employability or 
reevaluate based on changes in the severity of a condition.  

The complete DPSOE evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a 4-page brief, applicant’s counsel provides the following 
rebuttal comments:

	a. The AFPC/DPFD advisory opinion merely reiterates the 
scope of the service disability rating versus the scope of the 
determination by the DVA, but does not discuss the evidence or 
comment on the arguments as submitted.  The advisory opinion 
does cite one portion of the IPEB narrative concerning work 
impairment; however, this analysis adds nothing to the 
determination of whether an abuse of discretion occurred.  
Although the Integrated Disability Evaluation System purports to 
avoid reevaluation, it also addresses the perennial complaint 
that the ratings given by the military services were often 
inconsistent and inaccurate in interpreting the Veterans Affairs 
Schedule for Rating Disabilities (VASRD).  

	b. The reiteration of his disability rating with the DVA is 
noted.  In addition, if the rating reflects a snapshot of the 
member’s condition at the time, then the vast disparity between 
the assessment of the DVA and the assessment of the doctor must 
be addressed as both examinations occurred during the same time 
period and addressed the exact same medical condition of Major 
Depressive Disorder.  The applicant believes the DVA disability 
rating is accurate and is an unbiased reflection of his 
condition.  

Counsel’s complete rebuttal is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

1. The BCMR Medical Consultant recommends denial.  The Medical 
Consultant is aware of concerns raised by Congress regarding 
disparities in disability ratings between the Military 
Departments and the DVA.  The National Defense Authorization Act 
of 2008 remedied this recurring problem by prohibiting use of 
Service-unique or Department of Defense policies in assigning 
disability ratings, and directing strict adherence to unifying 
rating policies outlined in the VASRD; or mutually agreed upon 
joint DoD/DVA policies.  Having said that, the problem 
periodically raises its head in our TDRL system, where a former 
service member may apply for DVA benefits and receive an 
evaluation greater than that of the Military Department at 
parities in rating determination under these circumstances, 
which include variations in professional opinions among 
different professionals, variances in the time and date the 
evaluation was conducted and, more importantly, variances in the 
level and degree of signs and symptoms [or observed behavior] 
reported at a given time.  

2. The applicant’s level of impairment in civilian social and 
industrial adaptability was characterized as “mild.”  His Global 
Assessment Functioning (GAF) score was characterized as “70” 
[previously 65 in the MEB narrative summary].  Note the counter-
balancing GAF and OQ-45 score, one depicting mild overall 
function and the other, his self-responses to a questionnaire.  

3 Noting the applicant was first placed on the TDRL with a 
30 percent rating in 2006, the Medical Consultant concedes that 
the interval for the TDRL re-evaluation should normally not 
exceed 18 months.  The Medical Consultant opines that the 
intervening 2008 date of the DVA evaluation more closely matches 
the time when a TDRL re-evaluation would or should have normally 
taken place.  However, this fact alone does not invalidate the 
final action taken by the Military Department in 2009, when the 
applicant’s level of impairment was characterized as “mild.”  
Additionally, a comparative review of the contents of the TDRL 
narrative [from 2009] and that by the DVA examiner [in 2008] 
shows significant differences that likely resulted in the 
variance in disability ratings.

4. Absent a formal investigative report or substantiated 
complaint regarding the applicant’s provider raising doubt to 
the validity of his medical assessments or the allegation that 
he was “coerced into significantly discounting his condition,” 
it is the BCMR Medical Consultant’s opinion that these 
statements are insufficient to invalidate the evaluation by the 
military doctor as a “complete fabrication” which, implicitly, 
did not represent the applicant’s “true mental condition,” as 
alleged.  

The complete BCMR Medical Consultant’s evaluation is at Exhibit 
F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

1. The BCMR Medical Consultant opinion acknowledges that there 
is a significant disparity in the ratings that were given to the 
applicant.  The opinion indicates that the applicant’s 
statements regarding the doctor’s bias as insufficient to 
invalidate his report.  They disagree, arguing the fact that 
because a significant disagreement exists is an indication that 
one or the other report is inadequate, and that “variations in 
medical opinions” should not operate to deny a service member a 
medical retirement and should be resolved in favor or the 
member.  The DVA is the expert in interpreting the VASRD and 
their opinion should carry great weight.  

2. The Medical Consultant indicates the applicant has not 
provided sufficient proof that the doctor’s report does not 
represent the true medical condition.  They argue that all one 
needs to do is to read the doctor’s report.  In the report, the 
doctor indicates that the applicant complained of the exact 
psychotic symptoms that he complained about to the DVA and that 
he reported this on his OQ-45.  The difference is that the 
doctor chose to interpret the complaints as “cultural” 
differences instead of as symptoms of a distressing psychosis, 
which makes no sense.  

3. In the OQ-45, his score of 73 indicates that he acknowledged 
symptoms in approximately 75 percent of the questions.  If a 
person marked at least a “2,” indicating symptoms at least some 
of the time, to each question he would score a 90.  This is 
consistent with the DVA determination of a GAF of 45 which then 
coincides with a 70 percent rating per the VASRD.  Even a 
cursory review of the MEB/PEB history in this case illustrates 
the inconsistencies in the system.  Further, there is no 
apparent relationship between his OQ and GAF scores and his 
original 30 percent rating for Major Depress Disorder and his 
scores for the TDRL examination and the 10 percent rating. 

4. Finally, there is no indication that his condition at his 
TDRL appointment had improved and more than sufficient evidence 
shows that his condition has worsened.

The applicant’s complete submission is at Exhibit H.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.



3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  After a 
thorough review of the evidence of record and applicant's 
submission, we are not persuaded that his contentions are 
sufficient to override the rationale provided by the Air Force 
Personnel Center and BCMR Medical Consultant.  In this respect, 
although the applicant claims there was an apparent coercion 
tactic being used by the military medical doctor, we find no 
evidence to substantiate this claim.  We believe the doctor, at 
the time of the applicant’s reevaluation, was in the best 
position to assess the degree or level of impairment.  In this 
case, the doctor found the applicant’s medical condition of 
Major Depressive Disorder, Social and Industrial Impairment 
Definite, had improved from a “severe” level to a “mild” overall 
functioning ability that met the standard to be discharged with 
severance pay; as reflected in his ability to perform 
pharmaceutical duties.  The applicant has not provided evidence 
to prove otherwise.  In view of the above and absent evidence to 
the contrary, we agree with the assessment of the Air Force 
office of primary responsibility and the BCMR Medical Consultant 
and adopt their rationale expressed as the basis for our 
decision that the applicant has failed to sustain his burden 
that he has suffered either an error or an injustice.  
Therefore, we find no basis to recommend granting the relief 
sought.  

4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice; that 
the application was denied without a personal appearance; and 
that the application will only be reconsidered upon the 
submission of newly discovered relevant evidence not considered 
with this application.

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The following members of the Board considered AFBCMR Docket 
Number BC-2013-00942 in Executive Session on 16 Jan 14, under 
the provisions of AFI 36-2603:

	, Chair	
	, Member
	, Member



The following documentary evidence for AFBCMR Doket Number BC-
2013-00942 was considered:

    Exhibit A.  DD Form 149, dated 13 Feb 13, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPFD, dated 12 Mar 13.
    Exhibit D.  Letter, SAF/MRBR, dated 31 Mar 13.
    Exhibit E.  Letter, Counsel’s Rebuttal, dated 23 Apr 13.
    Exhibit F.  Letter, BCMR Medical Consultant, dated 31 Oct 13.
    Exhibit G.  Letter, AFBCMR, dated 4 Nov 13.




                                   
                                   Chair








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