RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-02827

		COUNSEL:  NOT INDICATED

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

She be permanently retired by reason of physical disability, rather than discharged.

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THE APPLICANT CONTENDS THAT:

She should have been permanently retired by reason of physical disability, rather than discharged.  Although the Formal Physical Evaluation Board determined her scoliosis was not service-aggravated, the Department of Veterans Affairs (DVA) has determined otherwise, and awarded her a combined compensable disability rating of 40 percent for the condition.

In support of the appeal, the applicant submits a copy of her DVA rating.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 2 Jan 02, for a term of four 4 years.

A Medical Evaluation Board (MEB) convened on 6 May 02, to determine whether she should be continued on active duty due to the diagnosis of scoliosis, symptomatic, existed prior to service without service aggravation.  The MEB referred her to an Informal Physical Evaluation Board (IPEB).

On 16 May 02, an IPEB convened and determined she was unfit for continued active duty and recommended she be separated with severance pay and a compensable rating of 10 percent.  On 1 Jul 02, she agreed with the findings and recommendations of the IPEB and did not submit a rebuttal.  On 3 Jul 02, she was honorably discharged under the provisions of Chapter 61, Title 10, U.S. Code, for disability, existed prior to service.  She completed a total of 7 months, and 22 days of active service.  On 20 Apr 04, the DVA awarded her a combined compensable disability rating of 40 percent, based on scoliosis, existed prior to service, permanently worsened as a result of service, effective 24 Aug 02.

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AIR FORCE EVALUATIONS:

AFPC/DPPD recommends denial.  DPPD states in part, that the preponderance of evidence reflects that no error or injustice occurred during the disability process.  The Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws.  Under Title 10, USC, Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation, in essence, a snapshot of their condition at that time.  It is the charge of the DVA to pickup where the AF must, by law leave-off.  Under Title 38, the DVA may rate any service-connected condition, based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

The complete AFPC/DPPD evaluation is at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 19 Dec 07, for review and comment within 30 days.  However, as of this date, no response has been received by this office. 

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  The BCMR Medical Consultant is of the opinion that no change in the records is warranted.  He opines that the DVA was overly generous in awarding a disability rating of 40 percent, correlating to a range of motion of not greater than 30 degrees.  While her range of motion was 30 degrees pain-free, the VASRD measurement of thoracolumbar range of motion does not take into account when the individual starts having pain, but rather the range of motion capability of the individual.

It should be noted, that the applicant had a severe level of scoliosis prior to service and this curvature was not worsened by military service.  She has a condition that should cause back pain with exertion.  While the exertion associated with military service may have caused back pain, the pain was relievable with medication and not, in itself, disabling.  However, these medications were prohibited from use during Personal Reliability Program duties due to the potential to cause drowsiness.  Since the applicant was training as a nuclear weapons specialist, her medication requirement would be incompatible and unsuitable for an Air Force career.  However, her condition was not considered disabling for a civilian work environment.

The Medical Consultant noted, that the applicant’s attorney stated, that the MEB narrative summary was written by a Physician’s Assistant and countersigned by a physician.  Contrary to the attorney’s statement that the physician was not board certified, the physician’s AFSC was 44F3, which implies a board certified/eligible family physician.  Regardless of the level of the specialist who saw the applicant, she had a preexisting condition that predisposed her to back pain with exercise.  Her pain was predictable and could recur at any time with exertion, and thus, she was not suitable for military service.

In the medical Consultant’s view, the preponderance of evidence of the record shows that the applicant’s scoliosis condition existed prior to service, and that her back pain was the natural progression of the condition.  Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.

The BCMR Medical Consultant evaluation is at Exhibit E.

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant on 16 Dec 07, for review and comment within 30 days.  As of this date, no response has been received by this office.

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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 not persuaded that the requested relief should be granted.  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 office of primary responsibility and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  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 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 BC-2007-02827 in Executive Session on 30 Jan 08, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Aug 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 26 Sep 07.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Oct 07.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 15 Nov 07.
    Exhibit F.  Letter, AFBCMR, dated 19 Dec 07.