RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-03201
		INDEX CODE:  110.02
	 	COUNSEL:  NONE
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His discharge be changed to reflect a medical retirement with 50 percent disability due to sleep apnea.
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APPLICANT CONTENDS THAT:

When he met the Medical Evaluation Board (MEB) they agreed that his condition existed but claimed it did not affect his civilian life.

Since he has been discharged, he has had three jobs.  He was fired from two of the jobs for not being able to make it to work on time.

When he travels, he must “lug” around his continuous positive airway pressure (CPAP) machine or suffer the next day.  He is unable to go camping or wakeup without headaches, and is tired all day.

The MEB was completely wrong in stating that his condition would not affect his civilian life.  

When he was rated by the Department of Veteran’s Affairs (DVA), his total combined rating was 80 percent and this includes other injuries he suffered but were not considered by the MEB.

His Air Force appointed attorney told him there was no other option as the medical board was the final authority.  Recently, he discovered the AFBCMR has the ability to change the result.  Had he known about this avenue earlier he would have submitted his request.

The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 14 Oct 88.  He served for a period of 12 years, 1 month, and 7 days.

On 12 Dec 00, the applicant underwent a MEB due to Obstructive Sleep Apnea (OSA).  The applicant’s case was subsequently referred through the Military Disability Evaluation System for determination of his fitness to serve.  

Both the Informal Physical Evaluation Board (IPEB) and Formal Physical Evaluation Board (FPEB) found the applicant unfit and recommended discharge with severance pay with a zero (0) percent disability rating.

The applicant’s case was subsequently referred to the Secretary of the Air Force Personnel Council (SAFPC) for an additional review, but resulted in the same “zero percent” ruling by the previous boards.

The applicant was discharged on 20 Nov 00 with an honorable discharge.

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BCMR MEDICAL CONSULTANT’S EVALUATION:

The BCMR Medical Consultant recommends denial.  The applicant’s commander expressed the opinion that the applicant’s OSA had impaired his ability to perform normal day-to-day duties.  However, this assessment was incongruent with the applicant’s consistently superior performance reports dating from the early 90’s until his date of discharge in 00.  Additionally, the applicant’s inability to deploy and the requirement to utilize a CPAP machine were not measures for the severity of his medical condition under the Department of Defense (DoD) disability rating guidance for OSA at the time of the applicant’s discharge. 

In explaining the zero percent disability rating awarded to the applicant, the BCMR Medical Consultant directs the Board’s attention to the disability rating criteria for OSA, as outlined in DoD Instruction 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities.  Specifically, the distinct variance from rating criteria outlined by the DVA, ratings for OSA were based upon the impact of the applicant’s medical condition had upon his level of “industrial impairment” relative to civilian earning capacity at the time; and utilizing the following disability rating scheme of mild (zero percent), definite (30 percent), considerable (50 percent), and total (100 percent).  Thus, when collectively considering the aforementioned disability rating criteria and the objective evidence of the applicant’s long-standing demonstrated duty performance, all Boards agreed that his level of impairment was consistent with a mild determination of severity.

The BCMR Medical Consultant acknowledges the applicant’s original letter to SAFPC, citing the three jobs that he reportedly lost allegedly due to his medical disorder.  However, using the “snap-shot in time” assessment of the applicant’s medical condition, the BCMR Medical Consultant also opines his industrial impairment was appropriately considered mild in severity.

The Military Disability Evaluation System is chartered to maintain a fit and vital force and, although all service connected medical conditions are considered in the fitness determination by a Physical Evaluation Board, compensation is awarded only to those conditions which resulted in a shortened military career; and only to the degree of severity present at the time of final disposition. In the case under review, only the applicant’s OSA presented an impediment to the performance of his military duties.  On the other hand, operating under a different set of laws (Title 38, U.S.C.), the DVA is authorized to offer compensation for all service-connected medical conditions, such as the applicant’s back condition, without regard to the demonstrated impact upon the service member’s retainability.  Additionally, the DVA is empowered to periodically reevaluate veterans for the purpose of adjusting the disability rating award, should the applicant’s level of impairment vary over time.

Although the National Defense Authorization Act of 2008 now limits the utilization of disability rating guidelines other than those provided under the Veterans Administration Schedule for Rating Disabilities, e.g., DoD Instruction 1332.39, there is no retroactive application of this law.

The preponderance of evidence of the record shows that the actions and disposition of this case were proper and equitable reflecting compliance with existing Air Force directives that implement the law.  Therefore, no change in the applicant’s disability rating is recommended.

The complete BCMR Medical Consultant’s evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT’S EVALUATION:

A copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant on 27 Feb 08 for review and comment within 30 days (Exhibit D).  As of this date, this office has not received a response.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his 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.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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-2007-03201 in Executive Session on 7 May 08, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Sep 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant, 
                dated 27 Feb 08.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Feb 08.