RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02227
		INDEX CODE:  108.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  20 Jan 06

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that his name was placed on the Temporary Disability Retired List (TDRL), rather than being discharged with severance pay.

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APPLICANT CONTENDS THAT:

The Physical Evaluation Board (PEB) rated his multiple disabilities as one single disability and assigned him a 20 percent disability rating.  His disabilities should have been evaluated as three separate and distinct disabilities and a separate rating should have been assigned to each disability.  If this had been done, he believes a rating of at least 30 percent would have been assigned and he would have been medically retired.

In support of his appeal, the applicant provided a rating decision from the Department of Veterans Affairs (DVA).

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

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STATEMENT OF FACTS:

Available documentation indicates the applicant served on active duty from 23 Jul 81 to 11 Jul 89.  He entered the Air Force Reserve on 12 Jul 89.  He reenlisted on 10 Jul 95 for a period of six years in the grade of staff sergeant.  He reenlisted again on 24 Jun 01 for a period of two years in the grade of technical sergeant.

Applicant was honorably discharged from the Air Force Reserve on 20 Jan 04 under the provisions of AFI 36-3209 (Disability - Entitled to Severance Pay).  He was credited with 12 years, 5 months, and 9 days of total active service, and 10 years, 4 months, and 15 days of total inactive service.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force.

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AIR FORCE EVALUATION:

The Medical Consultant recommended denial indicating that the applicant actively participated in the Reserves as an aerospace maintenance craftsman (C-5 aircraft).  He was called to extended active duty on 1 October 01 for a one year mobilization.  Beginning in Feb 02 the applicant reported bilateral knee pain interfering with the performance of his duties involving climbing, squatting, or prolonged walking diagnosed as patello-femoral pain syndrome.  A 10 Jun 02 Flight Surgery entry indicated the applicant had been assigned to administrative duties (since Feb 02).  The applicant's active duty orders were extended to accommodate his medical evaluation and treatment.  In Oct 03, the applicant had attained sufficient service to become eligible for Reserve retired pay at age 60.  Because of continued duty limited physical profiles due to his knee pain, the applicant underwent a Medical Evaluation Board (MEB) leading to his discharge with severance pay for his knee condition.

A review of the service medical record shows diagnosis of patello-femoral pain syndrome (diagnosis also confirmed by orthopedic surgery evaluation in Aug 02) involving both knees characterized as pain with squatting and climbing ladders and stairs but minimal symptoms walking on level ground.  Physical examinations showed characteristic findings of pain about the knee cap (with manipulation) but showed normal range of motion of the knee and normal strength.  X-rays including special views ("sunrise") of the patella were reported as normal.  Despite physical therapy, the applicant continued to complain of duty limiting pain.  Beginning in Nov 02, the applicant complained of low back pain for one year aggravated by prolonged standing prolonged sitting, lifting or carrying.  Medical record entries indicated a complaint of generalized back pain involving the lumbar and thoracic areas without injury or neurologic symptoms.  On examination, the applicant was shown to have normal back range of motion and normal neurologic examination.  X-rays of the spine were also normal.

On 17 Sep 03, the Informal Physical Evaluation Board (IPEB) found the applicant unfit due to bilateral knee pain, severe, persistent and recommended discharge with severance pay rating his condition at 10 percent.  The IPEB concluded that his history of recurrent low back pain was not separately unfitting at the time.  The applicant appealed the decision of the IPEB and appeared before the Formal Physical Evaluation Board (FPEB) on 17 Nov 03.  The FPEB also found the applicant's knee condition unfitting but rated it at an overall 20 percent.  The FPEB did not find the applicant's history of back pain unfitting and recommended discharge with severance pay (20 percent).  The applicant concurred with the findings and recommendations of the FPEB on 21 Nov 03 and was discharged with severance pay on 24 Jan 04 (since he was also eligible for a Reserve retirement at age 60, the applicant had the option to select either disability severance pay at the time of separation, or wait until age 60 to receive retirement pay, but not both).

The Medical Consultant noted the applicant submitted a Department of Veterans Affairs (DVA) Rating Decision dated 23 Jun 04 granting service connection for his knee and back conditions, rating each knee at 10 percent and his back at 20 percent.  The Rating Decision cites a general medical DVA examination on 22 March 04 that showed limitation of back and knee motion not shown while in service as the basis for the DVA rating.

According to the Medical Consultant, his review of the applicant’s service medical record showed his knee condition, diagnosed as patello-femoral pain syndrome, interfered with the performance of his duties and he was assigned to administrative duties.  Subsequently, while performing administrative duties, he complained of recurrent back pain without injury or other precipitating event.  Although he indicated this problem also interfered with his duties, examination of the back including neurologic exam and X-rays was normal (except for mild tenderness on palpation).  The Physical Evaluation Boards determined his knee condition and not his back condition was unfitting and rated only his knee condition.

Noting the DVA granted the applicant service-connected disability for various conditions including his knee conditions, the Medical Consultant indicated the Department of the Defense (DoD) is required to use the VA Schedule for Rating Disabilities (VASRD) as a guideline to rate disabilities that are unfitting for continued military service.  By policy outlined in DoD Instruction 1332.39, the intent is to rate the degree of impairment in civilian occupational earning capacity using the VASRD as a guide.  It was noted that DVA ratings may vary from those previously granted by the DoD based on differing weighting and interpretation of evidence (given the same evidence) or changes in evidence over time.  In this case, differing weights were likely accorded to objective findings including X-rays and physical examinations (Air Force PEBs) versus subjective evidence of complaints of pain (DVA) as well as changing evidence, range of motion (DVA).  The military service disability systems, operating under Title 10, and the DVA disability system, operating under Title 38, are complementary systems not intended to be duplicative.  Operating under different laws with a different purpose, determinations made by the DoD under Title 10 and the DVA under Title 38 are not determinative or binding on decisions made by the other.  The mere fact that the DVA may grant service-connected compensation ratings does not establish eligibility for similar action from the Air Force.  By law, payment of DVA disability compensation and military disability pay for the same medical condition or disability is prohibited.

The Medical Consultant opined that the preponderance of the evidence of the service medical record supported the findings and recommendations of the Physical Evaluation Boards and that action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.  In his view, no change in the records is warranted.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 26 Jul 05 for review and response.  As of this date, no response has been received by this office (Exhibit D).

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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.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Medical Consultant.  The evidence of record indicates the applicant was discharged with entitlement to severance pay.  He now requests that his records be corrected to reflect that his name was placed on the TDRL.  However, after a thorough review of the facts and circumstances of this case, no evidence has been presented which shows to our satisfaction the applicant was improperly diagnosed or inappropriately rated.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we adopt the Medical Consultant’s rationale as the basis for our decision the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, 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 AFBCMR Docket Number BC-2004-02227 in Executive Session on 22 Sep 05, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 25 Jul 05.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Jul 05.