RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02712
		INDEX NUMBER:  108
	XXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

Her disability discharge be changed to a medical retirement.

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APPLICANT CONTENDS THAT:

She was never appropriately or timely counseled.  Appropriate Department of Defense (DOD) and Air Force (AF) directives were not complied with.  Medical reports on her were ignored or taken out of context.  The disability ratings and codes in her case are wrong.

In support of her appeal, applicant provides a chronological summary of events pertinent to her case, extracts from her medical records, results of her Physical Evaluation Board (PEB) and her appeal of the findings and recommendations.  The applicant also provided an addendum letter to her initial application advising of her efforts to get a certified copy of her medical records for the Board’s use.  She also discusses the basis of her appeal; that the disability code given her fails to address the complete extent of her disability.  She contends that the medical evaluation board (MEB) conducted on 19 Jan 99 did not have all of the appropriate board members present, that there was no commander’s signature, and there was a letter of exception attached from her commander.  The two-member panel violated DOD 1332.38, paragraph E3.P1.2.1 and 3, by not documenting all medical conditions and therefore not stating whether each condition was cause for referral.

Applicant also indicates problems that she had with her military counsel and problems in which her formal PEB (FPEB) was conducted.

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

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 25 Feb 86.  She was promoted up through the grade of staff sergeant (SSgt).  On 17 Dec 98, the applicant was evaluated for referral to an MEB.  On 19 Jan 99, the applicant was evaluated by an MEB.  The MEB established diagnoses of attention-deficit hyperactivity disorder, depressive disorder not otherwise specified, and chronic neck pain and degenerative disc disease.  It recommended that the applicant be referred to an Informal PEB (IPEB).  On    8 Feb 99, the applicant met an IPEB.  The IPEB diagnosed her with an unfitting and ratable condition of chronic neck pain associated with degenerative disc disease and depression.  She was given a disability rating of 10 percent.  The IPEB also diagnosed attention deficit disorder, but determined that it existed prior to service (EPTS) and was not compensable.  On    22 Feb 99, the applicant indicated that she did not agree with the findings and recommended disposition in her case and demanded a formal hearing.  On 31 Mar 99, a FPEB upheld the earlier findings of the IPEB.  In her acknowledgement of the FPEB’s findings, the applicant indicated that she did not agree with the findings and recommended disposition of the FPEB.  She elected to submit a rebuttal.

On 19 Apr 99, the applicant filed a complaint with the Air Force Academy Inspector General regarding the MEB process.  She made the following allegations with the indicated results.

	  a.  When she was identified for an MEB by a physician, a complete physical examination was not done.  This allegation was unsubstantiated.

	  b.  The MEB did not accept the examination narrative of her Physician Assistant.  This allegation was unsubstantiated.

	  c.  Her medical records were not charged out by 10 AMS personnel.  This allegation was substantiated.

	  d.  The MEB did not thoroughly evaluate her medical records for the accurate scheduling of proper disabilities ratings.  This allegation was unsubstantiated.

	  e.  She was not briefed of her rights by 10 AMS personnel.  This allegation was substantiated.

	  f.  The PEB did not communicate to her or the Medical Group Medical Evacuation Resource Management that she should not take leave in conjunction with medical TDY for a PEB.  This allegation was substantiated.

The IG encouraged the applicant to use her chain of command and appointed MEB counsel in submitting her appeal to SECAF regarding her concerns with the MEB/PEB process.  The IG indicated that they would assist the applicant with her concerns with AMS personnel.

On 1 May 99, the applicant submitted her rebuttal to the FPEB findings.  On 24 Jun 99, the Secretary of the Air Force Personnel Council (SAFPC) concurred with the findings and recommended disposition of the IPEB and FPEB regarding the applicant’s disability.  They directed that the applicant be discharged and receive severance pay with a disability rating of ten (10) percent.  In making their determination, SAFPC indicated that they considered the applicant’s rebuttal letter with a contention for disability retirement and higher compensation form.  They also reviewed the evidence and testimony presented to the FPEB, the remarks by the FPEB, the remarks by the IPEB, the applicant’s service medical record, and the narrative of the MEB.

The applicant was discharged effective 25 Aug 99 under AFI 36-3212, with a disability rating of ten percent, for chronic neck pain associated with degenerative disc disease and depression.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends that the applicant’s records be corrected to show disability discharge with severance at 20 percent under the VASRD for intervertebral disc syndrome.  The applicant was disability discharged with chronic neck pain associated with degenerative disc disease and depression.  The applicant had a history of ADHD diagnosed and treated since 1996, and intermittent symptoms of depression, which responded to therapy and alone did not form a basis for being found unfit.  Following an Apr 97 motor vehicle accident in which she sustained a whiplash injury, the applicant developed chronic neck and shoulder girdle pain, and symptoms of arm numbness.  Evaluation by radiographic imaging studies, electromyography (EMG) and evaluations from a variety of specialists, including orthopedic surgery, neurosurgery, neurology, and physical medicine were in concurrence with regard to diagnoses of degenerative spine disease and associated myofascial pain (muscular pain syndrome associated with the cervical spine sprain, whiplash).  Although the applicant’s MRIs revealed impressive changes of bulging intervertebral discs appearing to make contact with the spinal cord and the left C7 nerve root, no objective neurologic findings were reported prior to her MEB and PEBs.  It was not until April and May 1999 that examination findings consistent with mild neurologic involvement were documented.  An orthopedic examination in Feb 00 and the Jul 00 VA rating decision are consistent with the findings and conclusions of the Air Force PEBs.

The applicant’s functional limitations while on active duty were likely the result of intertwined effects of her chronic neck pain from her spine disease, ADHD, and depressive symptoms.  The PEBs accurately acknowledged this by associating her depression with her neck pain in rating her overall disability.  However, accurate information regarding the applicant’s functional limitations and her neurologic impairments did not appear to be available to the PEBs in their deliberations.  The Apr 99 neurology and physical medicine evaluations documented mild neurologic functional limitation in mowing grass and lifting and carrying heavy objects, and pain associated with the leaning, head forward posture required to perform duty as a dental laboratory technician.  The FPEB interpreted the applicant’s ability to travel extensively as inconsistent with a high level of work disability.  The BCMR Medical Consultant concurs that the applicant’s condition was unfitting for continued service, but does not find clear evidence that the disabilities were sufficient to attain the 30% level to qualify for permanent retirement.  In view of the findings of the Apr 99 neurology examination, and supported by stable symptoms in Feb 00, the BCMR Medical Consultant recommends a rating of 20 percent under the VASRD for intervertebral disk syndrome, moderate recurring attacks.  He concurs with the PEB findings regarding the applicant’s other medical conditions.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant indicates in her response to the Air Force evaluation that she disagrees with the BCMR Medical Consultant’s statement of her request.  She indicates that she is still concerned with the recommended rating of 20 percent.  She still experiences ongoing and increasingly painful episodes with her neck/shoulder area, and extreme bilateral hip pain.  The applicant also disagrees with combining depression with the 5293 code.  In her understanding of the disability codes, Directives, Policies, and Instructions, you cannot combine disabilities without “building a code” to reflect the exact disability.  It would also appear that the MEB would have listed all of her medical conditions and state whether each condition is/was cause for referral into the Disability Evaluation System.

The applicant is also concerned that no action has been taken to correct the numerous violations she listed in her letter to SECAF.  The applicant indicates that the recommendation by the BCMR Medical Consultant to increase her disability to 20 percent is not an accurate representation of her medical condition at the time of her discharge.

The applicant’s complete response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFPC/DPPR evaluated the applicant’s appeal.  They recommend denial of the applicant’s request.

After reviewing the BCMR Medical Consultant’s evaluation, in which he recommended an increase in the applicant’s disability rating from 10 to 20 percent, they decided that an additional review by the IPEB was necessary.  After reviewing the additional evidence, the IPEB concluded that even with the orthopedic examination of Jan 00, proximate enough to the Disability Evaluation System process to be considered, no evidence was presented to warrant a change in the diagnoses and disability ratings awarded by the IPEB, FPEB, and SAFPC in 1999.  Specifically, the nerve condition studies were negative and other than trigger points around the shoulder blades, the examination was essentially normal.  Regarding the applicant’s referral to her adjustment disorder, along with her ADHD, according to DODI 1332.38, E4, 13.1.4, which overrides the VASRD, these diagnoses are considered unsuiting rather than unfitting, and therefore are not compensable or ratable under disability laws and policies, and are listed under Category III of the Air Force disability rating categories.

They provide the following responses to the applicant’s comments regarding her MEB/PEB process:

	  a.  The applicant’s MEB package appears to appropriately focus on those unfitting medical conditions that refer her into the DES.  AF Form 618, Medical Board Report, coupled with the narrative summaries/consultations, commander’s letters, etc., address her unfitting conditions as required for review by the PEB.  It must be noted that the MEB only addresses unfitting medical conditions that affect the member’s ability to perform his or her military duties at that time, and not her entire military medical history.

	  b.  An administrative oversight in item 26 of the AF Form 618 was noted in the area that was supposed to be signed by a third board member.  Records show that only two physicians signed the Medical Board Report.  The Medical Board Report also lacks the hospital commander’s signature, although the concurrence block shows an “X” in the “Approved” block.  Although a third medical board member’s signature was not included on the AF Form 618, all the narrative medical summaries (including the medical narrative summary completed by Capt Vanderburgh) provided were inclusive and properly signed.  Although the lack of the above mentioned signatures make the report somewhat unofficial, it apparently did not deter from the overall objective of the MEB.

	  c.  The comment made by the applicant concerning item 29c of the AF Form 618 in which the service member makes comments concerning a letter of exception from her commander is null and void.  This is probably due to her misunderstanding of the overall MEB process.  This block does not address the requirement for a commander’s letter, but shows if a letter of exception from the member is included in the MEB package.  Applicant’s signature affixed on the Medical Board Report shows she was briefed and informed of the findings and recommendations of the medical board.

	  d.  MEB package and associated documentations were forwarded and received by the PEB within the 90-day window required by AFI 36-3212.

	  e.  Applicant’s contention that she was not provided appropriate counseling at the FPEB concerning her hearing rights is incorrect.  Disability processing records include an AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, which indicates a counseling was received and acknowledged by the member on 31 Mar 99.  Her legal counsel at the board conducted counseling.  Her comment that her legal counsel lied to her, and that she requested he be relieved from that duty cannot be ascertained.

	  f.  Applicant’s comments that she was mistreated by the FPEB is controversial and cannot be verified or denied.  AFPC/DPPD cannot entertain why the Board, which is made up of Air Force senior leadership, would have reason to be biased towards the service member and believes that the statements in the findings were professionally based on the preponderance of the evidence provided to them concerning the case.

They conclude that the applicant was treated fairly throughout the Air Force DES process, and she was properly rated under federal guidelines at the time of her evaluation as required under military disability laws and policy.  Based on their evaluation, they could not justify why the applicant’s records should be corrected to show an increase in her disability rating and the award of disability retirement.

The complete evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In her response to the additional Air Force evaluation, applicant indicates that she is not confused regarding the Air Force disability processing system.  She states that she has read and reread the applicable instructions, regulations, etc., and that is the reason she is appealing.  She truly believes her code 5290 is wrong, the rating is wrong, and the depression should never have been included in the 5290 code.  There is overwhelming and superior evidence in her record to justify her requests for correction of codes, ratings, and disability retirement.  The 5290 code should be corrected to reflect 5293.  The Intervertebral disc syndrome and depression should be identified, coded, and rated separately.

In support of her appeal, the applicant provides extracts from DOD Instruction 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities, that defines Intervertebral Disc Syndrome and the level of symptoms required for ratings of 40 to 60 percent.  She then references the Board to documentation in her medical records that she believes supports a rating of 40 percent for her Intervertebral Disc Syndrome.

In support of her contention that her mental disorders should be rated, applicant provides an extract from Air Force Instruction 36-3212, Physical Evaluation for Retention, Retirement, and Separation, that defines how disability evaluation boards will assign disability ratings, DODI 1332.39, and DODI 1332.38, Physical Disability Evaluation, which defines “Physical Disability.”  Applicant points out that the term physical disability includes mental disease and that for a medical impairment or physical defect to constitute a physical disability, it must be of such a nature or degree of severity as to interfere with the member’s ability to adequately perform his or her duties.  The applicant refers the Board to a consult from an Air Force Psychiatrist, dated 17 Dec 98, that identified her impairment as moderate for military duty and considerable for civilian/social/industrial adaptability.

The applicant indicates that a rating of 40 percent for her Intervertebral Disk Syndrome and 30 percent for mental disorders comes to a combined rating of 58 percent, well within the requirement for a medical retirement.

The applicant’s complete response 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 regarding the applicant’s request for a medical retirement.  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 regarding this issue and adopt their rationale as the basis for our conclusion that the applicant’s condition at the time of her discharge does not warrant a medical retirement.  The applicant indicates that she is concerned that no action has been taken in regard to violations she listed in her letter of 1 May 99 to the Secretary of the Air Force.  However, we note that the Secretary of the Air Force Personnel Council indicated in their letter of 24 Jun 99 that they considered the applicant’s letter before reaching their decision that she be discharged with a disability rating of 10%.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting this portion of the relief sought in this application.

4.  Notwithstanding our findings above, we believe sufficient relevant evidence has been presented justifying a measure of relief regarding the applicant’s diagnosis and associated disability discharge rating.  In that regard, we accept the opinion of the BCMR Medical Consultant that accurate information regarding the applicant’s functional limitations and her neurologic impairments did not appear to be available to the Physical Evaluation Boards in their deliberations.  As such, we concur with his recommendation that the applicant’s disability be rated at 20% under the VASRD for intervertebral disk syndrome, Code 5293, moderate recurring attacks.  We note the applicant’s disagreement with the combining of her depression with her intervertebral disk syndrome to determine her disability rating.  However, we accept the opinions of the Air Force offices of primary responsibility that her depression when considered alone was not an unfitting condition at the time of her discharge.  Therefore, we believe that the decision to combine the two conditions was proper and that her records should only be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 25 August 1999, she was discharged for physical disability with entitlement to severance pay, based on the diagnosis of intervertebral disk syndrome, VASRD 5293, rather than chronic neck pain associated with degenerative disk disease and depression, VASRD 5290, rated at 20% rather than 10%.

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The following members of the Board considered Docket Number BC-2002-02712 in Executive Session on 7 May 2003, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 22 Aug 02, w/atchs;
                 Letter, dated 29 Dec 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, BCMR Medical Consultant,
                 dated 10 Feb 03.
     Exhibit D.  Letter, AFBCMR, dated 14 Feb 03.
     Exhibit E.  Memorandum, Applicant, dated 26 Feb 02.
     Exhibit F.  Memorandum, AFPC/DPPD, dated 25 Mar 03.
     Exhibit G.  Letter, SAF/MRBR, dated 28 Mar 03.
     Exhibit H.  Memorandum, Applicant, dated 18 Apr 03.

                                   

AFBCMR BC-2002-02712

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXX, XXX-XX-XXXX, be corrected to show that on 25 August 1999, she was discharged for physical disability with entitlement to severance pay, based on the diagnosis of intervertebral disk syndrome, VASRD 5293, rather than chronic neck pain associated with degenerative disk disease and depression, VASRD 5290, and rated at 20% rather than 10%.