RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-01056 (Case 2)
		INDEX CODE:  110.00

		COUNSEL:  DAV

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His disability rating of 20 percent be increased; that he be placed on the Temporary Disability Retired List (TDRL) effective 18 Nov 91; and, that he be permanently retired effective 18 Nov 91.
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APPLICANT CONTENDS THAT:

His rating at the time of separation from the ANG should have been 30 percent based on the civilian orthopedic surgeon’s Oct 91 opinion.  Pertinent medical records or evidence were not sent to the Informal Physical Evaluation Board (IPEB).

In support of his request, the applicant submits a personal statement, copies of a letter from the civilian orthopedic surgeon, AF Form 618 (Medical Board Report), NGB Form 22 (NGB Report of Separation and Record of Service), VA letter of 11 Dec 89, and DVA Rating of 17 Oct 95.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Applicant contracted his enlistment in the Regular Air Force on 17 Jul 81.  He reenlisted in the Regular Air Force for a period of 6 years on 1 Jul 85.  The applicant was progressively promoted to the grade of staff sergeant (E‑5).  On 3 Jul 89, he was honorably discharged under the provisions of AFR 39-10 (Volunteered to Serve with ANGUS).  He had completed a total of 7 years, 11 months and 17 days and was serving in the grade of E-5 at the time of discharge.

Applicant enlisted in the TN Air National Guard (ANG) on 2 Oct 89.  He received an honorable discharge from the TN ANG and Reserve of the Air Force on 18 Nov 91 under the provisions of ANGR 39-10 (Chapter 7, paragraph 7-1a, Medical Disqualification).  He had completed a total of 2 years, 1 month and 16 days and was serving in the grade of sergeant (E-4) at the time of discharge.

In 1992, applicant applied to the Air Force Board for Correction of Military Records (AFBCMR) requesting a medical discharge and related benefits since his disability was incurred while on active duty.  On 20 Apr 94, the Board approved his application recommending that his records be corrected to show that, on 18 Nov 91, he was found unfit to perform the duties of his office, rank, grade or rating by reason of physical disability, incurred while entitled to receive basic pay, with the VA diagnostic code of 5257, rated at 20 percent, that the degree of impairment was permanent; and, that he be discharged under the provisions of AFR 35-4, with entitlement to disability severance pay.  A copy of the Record of Proceedings (ROP), Docket Number 93‑02726, is at Exhibit B.

The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C and D.

The Department of Veteran’s Administration records reflect that the applicant was granted a 20 percent disability rating.
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AIR FORCE EVALUATIONS:

The AFBCMR Medical Consultant recommends the application be denied.  The AFBCMR Medical Consultant stated that the applicant entered active duty 17 Jul 82 and was honorably discharged from the Regular Air Force on 3 Jul 89 due to voluntary “Palace Chase” early discharge to enter the Air National Guard (ANG).  The applicant enlisted in the ANG on 4 Jul 89 and served from 9 Oct 89 to 18 Nov 91.

The AFBCMR Medical Consultant stated that the applicant injured his left knee twice on active duty while engaging in sports activities that resulted in a tear of his anterior cruciate ligament producing instability (abnormal movement) of the joint, and a partial team of his medical meniscus (cartilage between the bones that adds to the stability of joint motion).  The applicant underwent surgical repair 1 Jan 85 of his injuries and remained on active duty with some physical restrictions (running and lifting over 70 pounds) due to ongoing symptoms of discomfort and giving way.  There are no service medical record entries in over 12 months prior to his Palace Chase separation from the Regular Air Force to indicate the applicant was experiencing any difficulties with his left knee.  Because his knee interfered with performance of the aerobics test, the ANG discharged him due to medical disqualification.  Following discharge from the Regular Air Force, the Department of Veterans Affairs (DVA) awarded the applicant a 10 percent disability rating for his left knee and subsequently increased it to 20 percent.

The applicant contends that his rating at the time of separation from the ANG should have been 30 percent based on the civilian orthopedic surgeon’s Oct 91 opinion.  The AFBCMR Medical Consultant indicated that the civilian orthopedic surgeon suggested that the applicant’s knee condition was a total of 30 percent disability by adding (“pyramiding”) three abnormalities together.  The VA Schedule of Rating Disabilities (VASRD) rating of impairments of the knee does not list all possible anatomic abnormalities that can affect the knee; rather the rating is based on overall functional impairment.  Adding up percentages from multiple abnormalities of a single extremity is called pyramiding and is not allowed by the VASRD.  The most severe of the abnormalities is rated.  At the time of the most recent DVA examination available for review, 24 Apr 02, there is no evidence that the applicant’s knee condition is any more disabling than the 20 percent awarded by the DVA.

The AFBCMR Medical Consultant stated that, at the time of separation from active duty with the Regular Air Force, the applicant’s left knee condition was not “unfitting” for continued active military service.  Applicant’s knee condition was not the reason he left active duty with the Regular Air Force.  The applicant’s chronic condition interfered with performance of the aerobics test, but was not incurred or aggravated while on active duty in the ANG; thus, he was not eligible for disability compensation from the Air Force.  The reason the applicant could be fit for duty despite the presence of a medical problem and later be granted a service-connected disability by the DVA lies in understanding the differences between Title 10, USC and Title 38 USC.  The applicant’s condition did not render him unfit for continued military service while he was on active duty in the Regular Air Force.  Subsequently, his condition disqualified him from continued service in the ANG.  The action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.  The AFBCMR Medical Consultant’s evaluation is at Exhibit C.

HQ AFPC/DPPD recommends the application be denied.  DPPD stated that the decision to process an individual through the military disability evaluation system (DES) is determined by an MEB when he or she is determined medically disqualified for continued military service.  The decision to conduct an MEB is made by the medical treatment facility providing health care to the member.  Air Reserve Component (ARC) members who undergo disability processing through the Air Force DES must meet eligibility requirements of AFI 36-3212, Chapter 8.  DPPD stated that a physical examination conducted on 13 Mar 89, for his anticipated discharge and entry into the ANG, indicates the applicant was medically qualified for worldwide service.  In view of the fact that the applicant’s left knee injury was acquired while on active duty, his condition would be considered as having existed prior to service once he entered the ANG.  Individuals who enter the ANG are required from that point to meet their medical accession standards.  A Medical Evaluation Board (MEB) was initiated by the ANG on 9 Jun 91 in which the National Guard Bureau Air Surgeon’s Office found the applicant medically disqualified for continued service for an Anterior Cruciate Deficient Knee.  Additionally, the MEB was not forwarded to the Informal Physical Evaluation Board (IPEB) for adjudication of the case.  The applicant was subsequently discharged from the ANG for failing to meet ARC medical standards.

DPPD stated that medical records reflect the applicant was treated for various medical conditions throughout his military career.  The fact that a person may have been treated for a specific medical condition does not automatically mean it is unfitting for military service.  DPPD indicated that military disability laws and policy stipulate that USAF disability boards can only rate unfitting medical conditions based upon the individual’s status at the time of his evaluation; in essence, a snapshot of their condition at the time.  Records clearly show the applicant was reasonably capable of performing his military duties right up until the time of his voluntary separation and his active duty military career was not cut short as a result of his knee problem.

DPPD’s examination of the applicant’s case file found no rationale or grounds why his records should be amended to reflect he was awarded a discharge or retirement under the military disability laws and policy.  DPPD wholeheartedly agrees with the AFBCMR Medical Consultant’s evaluation.  The applicant has not submitted any documentation to show an injustice occurred at the time of his release from active duty and subsequent medical disqualification from the ANG.  The HQ AFPC/DPPD evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and provided a point-by-point reply.  Refer to the applicant’s response for his detailed comments.  The applicant’s complete submission, with attachments, is at Exhibit F.
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ADDITIONAL AIR FORCE EVALUATION:

The additional advisory opinion is provided following review of the previous AFBCMR action granting the applicant disability discharge from the Air National Guard (ANG), with severance pay at 20 percent for his knee condition.

The AFBCMR Medical Consultant states, that following discharge from the Regular Air Force, the Department of Veterans Affairs (DVA) awarded the applicant a 10 percent disability rating for his left knee and subsequently increased it to 20 percent.  After reviewing the 24 Apr 02 DVA examination, there is no evidence that the applicant’s knee condition is any more disabling than the 20 percent awarded by the DVA and the stable DVA rating over 10 years is evidence that his knee condition was stable as defined by DoD policy.  Placement on the Temporary Disability Retired List (TDRL) requires that both the disability rating be at least 30 percent and that the condition be unstable such that it is likely that a different disability rating, either higher or lower would result over 5 years. There is no indication that the applicant’s condition would have been awarded a higher rating than 20 percent.  The AFBCMR Medical Consultant is of the opinion that no change in the records is warranted.  The AFBCMR Medical Consultant’s evaluation is at Exhibit G.
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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and stated that his legal rights were violated because no medical evaluation was performed and his right to counsel or appeal was not allowed.  He has provided a synopsis of his medical treatment subsequent to his discharge.  He indicated that the Medical Evaluation Board (MEB) did not have the authority to declare him unfit.  Because of the violations of legal rights, the unstable nature of the injury could not be presented for evaluation.  This leads to the fact that the injury could not legally be declared as stable and the disability percentage could not be reviewed.  He indicates that, if the injury is determined unstable, then the member is eligible for placement on the Temporary Disability Retirement List (TDRL).  If the injury is determined to be 30 percent, the member is eligible for retirement.  Refer to the applicant’s response for his detailed comments concerning the issue(s) under review.  The applicant’s complete submission is at Exhibit I.
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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 unpersuaded that relief should be granted.  Applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the respective Air Force offices.  In our view, the issues raised in the submission have been adequately addressed by the BCMR Medical Consultant.  We have seen no persuasive evidence by the applicant that would lead us to believe that his medical condition would have been awarded a higher rating than 20 percent at the time of his 1991 separation.  We, therefore, agree with the opinions and recommendations of the BCMR Medical Consultant and adopt the 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.  Furthermore, we have seen no persuasive evidence that the finding that he was physically unfit at the time permanent disposition was made was contrary to the provisions of the governing regulation, which implements the law.  In view of the foregoing and absent 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 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 this application in Executive Session on 8 May 03, under the provisions of AFI 36‑2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2002-01056.

   Exhibit A.  DD Form 149, dated 15 Mar 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, BCMR Medical Consultant, dated 21 Aug 02.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 26 Sep 02
   Exhibit E.  Letter, SAF/MRBR, dated 4 Oct 02.
   Exhibit F.  Response from Applicant, undated, w/atchs.
   Exhibit G.  Letter, BCMR Medical Consultant, dated 21 Mar 03
   Exhibit H.  Letter, AFBCMR, dated 1 Apr 03.
   Exhibit I.  Letter from Applicant, dated 11 Apr 03, w/atchs.