RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00381
		INDEX NUMBER:  108.02
	XXXXXXXXXXXXXXXX	COUNSEL:  

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His Air Force disability rating be increased from 40 percent to 75 percent retroactive to his date of retirement.

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APPLICANT CONTENDS THAT:

In a four page brief with seven exhibits submitted by counsel, applicant contends that the medical conditions that forced him to involuntarily leave the Air Force before he would have normally retired, and from which he still suffers, should have been rated as separate conditions with a minimum total rating of 75 percent.

He was diagnosed with Multilevel Degenerative Disk Disease after the Formal Physical Evaluation Board (FPEB) rated his disability at 40 percent and before he left active duty.  The doctors treating him verified the condition and called it “significantly disabling.”  This assessment by itself fulfills a rating of 60 percent and supports his request for an increase in his disability rating.

He is also suffering from the disease Fibromyalgia, which both the Departments of Defense and Veterans Affairs accept as a debilitating disease.

If he only suffers from the single diagnostic code the FPEB incorrectly assigned, then it was malpractice for the Air Force to give the applicant the treatments he received for Degenerative Disk Disease.  It is more likely that the doctors treating the applicant did so correctly and that the FPEB acted inappropriately by combining both conditions.

Based on the method of computing the disability rating in cases like his, the two disability ratings added together would come to 76 percent and be rounded to 75 percent.

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

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STATEMENT OF FACTS:

The applicant was involuntarily retired due to physical disability with a rating of 40 percent in the grade of major on 29 Dec 99.  The remaining relevant facts pertaining to this case are contained in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C and D.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s request.  It is his opinion that there is no clear evidence of impropriety or inequity in this case.  He recommends that the Board in determining if the Air Force disability rating was accurate, proper, and equitable, focus on judging the applicant’s functional capacity and ability to work at the time he underwent his physical evaluation board in 1999.

The applicant suffers from two conditions unfitting for military service, chronic back pain apparently due to degenerative disc disease without neurologic findings, and fibromyalgia syndrome (FMS).

The applicant had a variety of mild abnormalities on imaging studies that were of unclear relationship to his chronic back pain.  One spine specialist felt his response to discography supported his degenerative disc disease as a source of pain.  The applicant did not have neurologic deficits, his neuro-electrodiagnostic testing (EMG/NCV) was normal, and a bone scan which frequently shows abnormalities in degenerative spine disease was also normal.  Until he developed fibromyalgia, the applicant appeared to be performing his duties very well despite his chronic back pain from 1995 to 1998.

Of importance in considering the issue raised by the applicant is the interaction between these two chronic pain conditions.  The consulting rheumatologist concluded that the applicant’s FMS the primary disabling condition and that the FMS was the cause for his report of back pain that seemed out of proportion to the objective findings of physical examination, electro-diagnostic testing and imaging studies reported in his records.  In other words, the FMS amplified his back pain as producing widespread pain and other symptoms.  In addition, his back injury may have been a triggering event for his FMS.

Prior to the development of the FMS, the applicant was receiving excellent performance reports and was even continuing to exercise.  There was no evidence, other than his report of pain that his spine disease had objectively changed since the initial rating of 20 percent.  Although he has both a painful back condition and FMS, a generalized pain condition, it appears that it was predominantly the FMS that resulted in disability making him unfit for continued military service, and that FMS amplified his back pain.  At the time of his Physical Evaluation Board, the FPEB felt that his pain and functional limitations due to pain were mostly the result of his FMS.  They rated his disability by grouping the two conditions (VASRD 5293 and 5025) and rating him at 40 percent based on their judgement of his global level of functioning at his job.  The FPEB concluded that his continued excellent duty performance as reflected in his OPRs was evidence of his ability, at that time, to continue to function in an employed status, though his condition was unfitting for continued military service.  His excellent duty performance did seem to be in conflict with the subjective limitations that the applicant reported in his letters, and descriptions of the limitations contained in the other supporting documentation available to the FPEB.

It would seem reasonable to rate the two conditions separately.  Although the FMS aggravated the back pain, it would seem reasonable to rate the back pain separately but not to the degree it was aggravated by the FMS.  Determining the relative contributions of each condition to his overall disability and the proportion that the FMS increased the pain associated with the degenerative disc disease is impossible.  The FPEB took the only rational approach it could by lumping them together since the common symptom of pain was shared by both conditions and the two conditions were intimately intertwined in their final manifestation of disabling pain.  The next step is to rate the disability using the appropriate VASRD codes as a guideline at the time the applicant was undergoing his PEB.  At the time of the FPEB, the applicant reported missing work due to his conditions, and the commander’s letter, dated 25 Nov 98 reported physical limitations impacting his performance of tasks that required him to move about, climb stairs or travel, though he continued to make significant contributions within those constraints.  The FPEB rated his disability at 40 percent.  The maximum for fibromyalgia in the VASRD (code 5025) is 40 percent.  The VASRD code 5293, invertebral disc syndrome, requires neurologic signs and symptoms to be rated at the maximum of 60 percent.  Lower ratings of severe, recurring attacks with intermittent relief (40%), moderate, recurring attacks (20%) and mild (10%) are not clear as to requirement for neurologic signs or symptoms.

The complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPD recommends denial of the applicant’s request.  The applicant appeared before the FPEB accompanied by his private counselor on 15 Jul 99 for the purpose of adjudicating his case.  Following an extensive review of the additional medical evidence, and testimony by the individual, the FPEB diagnosed his medical condition as chronic back pain associated with Fibromyalgia and pain amplification syndrome.  They then recommended that he be permanently retired with a 40 percent disability rating.  The applicant’s medical condition for bilateral carpal tunnel syndrome was also examined; however, it was not considered unfit at the time of the evaluation.  Applicant agreed with the Board’s findings and recommendation and shortly thereafter he was permanently retired with a 40 percent disability rating under the provisions of Title 10, USC, Section 1201.

It is essential that the individual understand the difference between Title 10 and 38 of the USC.  The Air Force and DVA disability systems operate under separate laws.  Under the Air Force system, Physical Evaluation Boards must determine if a member’s medical condition renders them unfit for continued military service.  The fact that a person may have a medical condition while on active duty does not automatically mean that the condition is unfitting for continued military service.  Air Force disability boards can only rate unfitting conditions based upon the individual’s medical status at the time of his or her evaluation; in essence a snapshot of their condition at the time.

The DVA, however, is charted to provide continual medical care to the veteran for service-connected medical conditions once they depart active service.  Under Title 38, USC, the DVA may increase or decrease an individual’s disability rating based on the seriousness of the medical condition throughout his or her life span.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel forwarded a statement prepared by the applicant; however, applicant forwarded a second statement with instructions to substitute it for the statement forwarded by counsel.

The applicant indicates that the rating given by the PEB was improperly combined as he showed in the original letter to the board by the Chief of Reumatology who stated that he had two separate and distinctly ratable conditions.  He states that he has shown an injustice based on incorrect categorizing and diagnosis coding and a biased, desire by the FPEB to save money by inappropriately assigning medical disability percentages to incorrect nondiagnosed medical conditions.  He maintains that the video of the PRB shows the personnel officer (and Board President) tell him that he was trying to get out of the Air Force only to secure a very lucrative position elsewhere.  He maintains that his retirement percentage was purposely deflated for this reason.  He indicates that he is presently rated as 100 percent disabled by the VA and provides information on how difficult his life is.  He also maintains that he was retired 3 days short of CY2000 to avoid giving him a $300.00 monthly increase he would have been entitled to.

The applicant maintains that the staff person wants to confuse the issues with false statements like “Member has been in the weight management system since 1988.”  Applicant states that anyone knows that this is impossible for anyone, much less anyone on track to make colonel.  The evaluations also make several other false assumptions regarding his condition.  

He asks the Board to consider that he was a major working at the CINCPAC staff and on time and target to make lieutenant colonel and colonel prior to his medical conditions, which worsened to the point he was no longer able to sustain his job performance, which is clearly outlined in his appeal and by the doctors letters.  He wants the Board to know that he is in a wheelchair full time and unemployable due to his medical conditions.  The applicant describes the current state of pain he is in.  He states that he had a great career going and recounts some of the things he can no longer do because of the pain he is in.

He states that he has shown that if the FPEB had rated both of his separately ratable, distinct medical conditions (Fibromyalgia and Degenerative Disk Disease) that he would have been awarded the 75% rating that his counsel and he had requested.  The FPEB stated that both conditions forced him to stop working.  They also acknowledged that the combination of these diagnosed conditions forced him to stop working.

Applicant’s complete response, with attachment, is at Exhibit F.

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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  We also reviewed the FPEB video referenced by the applicant, but were unable to validate his claims of bias.  Based on the evidence of record, we believe that the disability rating determined by the Formal Physical Evaluation Board was reasonable and appropriate at the time it was rendered.  We note the difficulty, as discussed by the BCMR Medical Consultant, in determining the relative contributions of both the Degenerative Disk Disease and Fibromyalgia to the applicant’s overall disability.  While the applicant’s condition has progressively worsened since his retirement, the critical issue before this Board is the assessed degree of disability at the time of his retirement.  It does appear that the applicant is receiving the appropriate care and benefits through the VA disability system.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 Docket Number 02-00381 in Executive Session on 1 August 2002, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Nov 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant, dated.
                23 Apr 02.
    Exhibit D.  Memorandum, AFPC/DPPD, dated 10 May 02.
    Exhibit E.  Letter, SAF/MIBR, dated 17 May 02.
    Exhibit F.  Letter, Applicant, dated 10 Jun 02.