RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01911

						COUNSEL:  NONE

						HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

His rating for disability at the time of his retirement be reviewed.  


APPLICANT CONTENDS THAT:

His rating for lumbar spine disease was not included in his disability rating.  Also, his rating for post-traumatic stress disorder (PTSD) was incomplete.  

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


STATEMENT OF FACTS:

The applicant’s military personnel records indicate he served in the Air Force Reserve in the grade of staff sergeant (E-5) during the matter under review.  

On 3 January 2005, an AF IMT 348, Line of Duty Determination (LOD), was initiated that indicated during deployment from 19 June 2004 through 2 September 2004, the applicant injured his right great toe three times, which required surgical correction.  The applicant’s commander recommended his condition be found in the LOD and the appointing authority concurred.  

On 15 June 2006, a Form 275, Medical Record Report, was initiated because the applicant self-referred to the Life Skills Support Center for an evaluation due to complaints of mood disturbance associated with multiple medical problems and traumatic experiences while serving in Iraq.  

On 10 August 2006, the applicant underwent his initial evaluation for PTSD.  The applicant was diagnosed with personality disorder not otherwise specified (NOS).  His prognosis was good and seen as competent for VA benefits purposes to manage any financial benefits in his own best interest.  

On 18 April 2007 and 1 May 2007, a Form 275 was initiated for the applicant’s individual psychotherapy sessions, which disclosed he continued to struggle with some symptoms of PTSD and depression.  

On 14 September 2007, a LOD was initiated due to the applicant’s meniscal tear of his left knee.  The applicant’s commander recommended his condition existed prior to service (EPTS) and the LOD was not applicable.  The staff judge advocate (SJA) non-concurred and recommended a formal LOD investigation.  

On 2 November 2007, a DD Form 261, Report of Investigation Line of Duty and Misconduct Status, was initiated in regards to the applicant’s knee injury.  The investigating officer found the applicant’s injury to be EPTS; however, it was service aggravated and the approving authority concurred.  

On 5 January 2008, a compensation and pension examination for PTSD was completed which determined the applicant met the criteria for PTSD.  

On 11 January 2008, an AFRC IMT 348, Informal Line of Duty Determination, was initiated for the review of the applicant’s initial treatment of PTSD and major depressive disorder (MDD) on 31 May 2006.  The unit commander recommended his conditions to be in LOD.  The SJA non-concurred and recommended a formal LOD investigation and the appointing authority concurred.  

On 22 May 2008, a psychiatrist’s Medical Evaluation Board (MEB) narrative summary (NARSUM) indicated the applicant was not likely to be deployable until his primary symptoms of PTSD and his secondary symptoms of mistrust and anger are more consistently and fully resolved.  However, he could perform military duties commensurate with his rank and training within a CONUS-based unit.  

On 30 June 2009, a DD Form 261 was initiated as a result of the applicant’s traumatic experiences while deployed between June and September 2004, resulting in PTSD and MDD.  The investigating officer found the applicant’s conditions to be in LOD and the approving authority approved the decision.  

On 30 September 2009, an AF Form 469, Duty Limiting Condition Report, was initiated that restricted the applicant’s mobility for no flying duties through 30 March 2010.  Specifically, he was required to undergo a MEB to determine his medical fitness for continued worldwide duty and retention.  

On 22 October 2009, the applicant presented to the podiatry clinic for a MEB.  The physician recommended the applicant be considered for separation because his fitness for continued active duty was questionable.  He will be on continued profiles and would not be able to meet the Air Force physical fitness assessments.  
On 13 November 2009, a MEB NARSUM addendum was initiated in which the psychiatrist indicated the recommendation from the original MEB NARSUM of 22 May 2008 had not changed.  

On 20 November 2009, a MEB NARSUM prepared by an orthopedic surgeon, indicated the applicant would most likely have continued pain secondary to his arthrosis in his knee, limiting him from any kind of vigorous physical activity.  

On 4 December 2009, a MEB convened to consider the applicant for retention in the military due to his diagnoses of PTSD, persistent left knee pain and chronic right foot pain.  The MEB recommended referral to an Informal Physical Evaluation Board (IPEB).  

On 11 December 2009, the applicant acknowledged receipt of his MEB, MEB NARSUM and Disability Evaluation System (DES) process.  He did not request an impartial review of his MEB.  

On 16 February 2010, an IPEB was convened and determined the applicant was unfit for his duties due to his diagnosis of PTSD, left knee pain, and right foot pain.  Since the applicant’s conditions had not yet stabilized he was placed on the temporary disability retired list (TDRL), with a combined compensable disability rating of 60 percent.  

On 24 February 2010, the applicant concurred with the findings and recommendation of the IPEB.  

On 1 March 2010, the Secretary of the Air Force directed the applicant be placed on the TDRL.  

On 27 May 2010, the applicant was relieved from active duty and placed on the TDRL, effective 28 May 2010, with a compensable percentage for physical disability rating of 60 percent.  

On 10 November 2011, the applicant underwent a periodic TDRL orthopedics and psychiatry examination, as it relates to his diagnosed left knee pain, right foot pain, PTSD and MDD.  The orthopedic physician and psychiatrist recommended the applicant be permanently retired.  Specifically, it was determined to be unlikely the conditions of the applicant’s knee, foot, and ongoing symptoms and functional impairment of his PTSD and MDD will ever improve to the point of returning to active duty status.  

On 17 January 2012, an IPEB was convened to reevaluate the applicant’s medical conditions.  The IPEB determined his conditions had some mild improvement since being placed on the TDRL and appeared to have stabilized and would not likely change over the next several years.  The applicant was permanently retired with a compensable disability rating of 40 percent.  

On 4 February 2012, the applicant concurred with the findings and recommendation of the IPEB.  

On 14 February 2012, the applicant was removed from the TDRL and retired in the grade of staff sergeant per Air Force Instruction 36-3212, Physical Evaluation for Retention, Retirement and Separations, with a compensable percentage of 40 percent for physical disability, effective 5 March 2012.  The applicant was credited with six years, seven months, and two days total active service for retirement.  


AIR FORCE EVALUATION:

Physical Disability Board of Review (PDBR) Special Review Panel (SRP) recommends that there be no change of the applicant’s disability and separation determination as it relates to his diagnosed PTSD.  After a thorough review of the evidence of record, it was determined a 10 percent disability rating best fit the description; however, it is not recommended that the applicant receive a rating less than that what was adjudicated by the PEB, which was 30 percent.  In this case, the applicant endorsed feeling in great danger of being killed while deployed, nightmares, avoidance behavior and hypervigilance on his 13 September 2004 post-deployment health assessment.  However, a periodic health assessment on 24 September 2004 found him fit for duty and flight status.  

Furthermore, in this case consideration was given for the appropriateness of changes in the MH diagnoses, PEB fitness determination; and, a disability rating recommendation in accordance with VASRD §4.130.  The MEB forwarded the MH diagnoses of chronic PTSD to the PEB for adjudication.  The PEB adjudicated the applicant for the diagnosis of PTSD at TDRL entry and at TDRL exit.  While the applicant was also noted to have MDD in the clinical history, this did not impact the level of disability awarded.  There were no changes to the applicant’s MH diagnoses which placed him in a possible disadvantage in the disability evaluation process.  In this case, the applicant was rated at 50 percent at TDRL entry and 30 percent at TDRL exit.  It was determined that the applicant did not meet the criteria for a 70 percent rating at TDRL entry and, therefore, no change in adjudication is recommended.  

A complete copy of the PDBR SRP evaluation is at Exhibit C.

A copy of the PDBR SRP evaluation endorsed by a psychiatrist as required by the Fiscal Year 2015 National Defense Authorization Act (FY 15 NDAA) Section 521 (Exhibit E) was forwarded to the applicant on 30 March 2015 for review and comment within 30 days.  


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the PDBR SRP evaluation was forwarded to the applicant on 7 May 2014 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.


ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s request to include lumbar spine degeneration in his military disability rating computation.  The applicant argues his lumbar spine degenerative disc disease was not included in his overall disability rating computation.  However there are no recurring medical progress notes, summaries, or profile documents presented that depict treatment for a recalcitrant lower back condition prohibiting worldwide qualification.

In the case under review, no evidence is provided to demonstrate a lumbar spine condition represented a “decided medical risk” to the applicant or welfare and safety of others; nor imposed an “unreasonable requirement” on the military for maintain or protect him.  Moreover, there is no objective evidence presented that demonstrates existence of a low back condition, so severe as to interfere with the applicant’s ability to perform his military duties; or render him non-worldwide to the extent or duration that warranted referred for MEB/PEB processing.  This includes the fact that no AF Forms 469s, Duty Limiting Condition Reports, are presented that is [are] to depict existence of lumbar spine problem affecting the applicant’s duties and mobility requirements, warranting MEB/PEB processing.  The Board is reminded that applicant also declined an Impartial Review of his case by a disinterested medical professional.  This would have been the time and opportunity to state his case regarding inclusion of additional medical conditions he, or his impartial provider, believed should be included in the MEB process.  Additionally, the applicant’s AF Form 618, Medical Board Report coversheet, did not include a lumbar spine condition nor was it discussed to any degree in any of the MEB narrative summaries or any subsequent PEB deliberations; neither at the time of his placement on neither the TDRL nor the time of his release from the TDRL and permanent retirement.  The applicant’s lumbar spine condition was not considered unfitting and, thus, was not included in his military DES processing.

On the other hand, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition determined to have a nexus with military service; without regard to [and independent of] its demonstrated or proven impact upon a service member’s retainability or fitness to serve.  This is the reason why an individual can be found unfit for military service for one or more medical conditions, under Title 10, and yet sometime thereafter receive compensation ratings from the DVA for additional medical conditions that were service-connected, but not militarily unfitting.  The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran.  

A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit F.


APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant on 29 July 2015 for review and comment within 30 days (Exhibit G).  However, the advisory was returned to sender.  


THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the PDBR SRP and BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.  


THE BOARD DETERMINES THAT:  

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


The following members of the Board considered AFBCMR Docket Number BC-2014-01911 in Executive Session on 27 May 2015 and 2 September 2015 under the provisions of AFI 36-2603:

	Chair
	Member
	Member

The following documentary evidence pertaining AFBCMR Docket Number BC-2014-01911 was considered:

	Exhibit A.  DD Form 149, dated 29 June 2013.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, PDBR SRP, dated 5 May 2014.
	Exhibit D.  Letter, SAF/MRBR, dated 7 May 2014.  
	Exhibit E.  Memorandum, PDBR SRP w/Psychiatrist  
                 endorsement, dated 25 February 2015.
	Exhibit F  Memorandum, BCMR Medical Consultant, dated 
                 20 July 2015.
	Exhibit G  Letter, SAF/MRBR, dated 29 July 2015.