RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00066 INDEX CODE: 108.00 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: His disability discharge with severance pay (DWSP) be changed to a medical retirement. ________________________________________________________________ THE APPLICANT CONTENDS THAT: Because the Department of Veterans Affairs (DVA) rated him at 60 percent disabled, he believes the 20 percent rating, with DWSP he received from the Air Force is unjust. Based upon the DVA’s rating of 60 percent and his over 16 years of service, he should be medically retired. In support of his appeal, the applicant provides a copy of the Formal Physical Evaluation Board (FPEB) findings, dated 11 Dec 08 and his DVA Rating Decision. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered active duty in the Regular Air Force on 23 Feb 93. He was progressively promoted to the rank of technical sergeant with an effective date and date of rank of 1 Oct 06. In April 2008, a Medical Evaluation Board diagnosed the applicant with Intractable Low Back Pain and referred his case to the Informal PEB (IPEB). After a review of the applicant’s records the IPEB diagnosed the applicant with Intractable Low Back Pain to due Degenerative Arthritis and recommended a disability rating of 20 percent, with DWSP. The applicant non- concurred with the findings of the IPEB and requested a formal hearing by the FPEB. On 11 Dec 08, the FPEB reviewed the applicant’s case and also recommended DWSP, with a disability rating of 20 percent. On 13 Jan 09, the applicant concurred with the findings of the FPEB. The applicant was disability discharged, on 26 Apr 09, under the provisions of AFI 36-3212, with a compensable rating of 20 percent, DWSP. He was credited with 16 years, 2 months, and 6 days of active duty service. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSD recommends denial, stating, in part, the preponderance of evidence reflects that no error or injustice occurred during the disability process. They note, the Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws. Under Title 10, United States Code (USC), the PEBs must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank, or rating. The fact a person may have a medical condition does not mean 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. Further, the Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at the time. It is the charge of the DVA to pick up where the Air Force must, by law, leave off. Under Title 38, USC, 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/DPSD evaluation is at Exhibit C. The BCMR Medical Consultant recommends the applicant’s disability rating be increased from 20 to 40 percent based upon application of the Veterans Administration Schedule for Rating Disabilities (VASRD) code 5242 criteria. He notes, to accurately assess the applicant's functional impairment, the FPEB requested additional detailed functional assessment to assist with an accurate disability rating. The request included specifics on incapacitating pain episodes from the applicant's primary care physician manager (PCM) documenting events including the frequency of events and whether or not quarters or work excusals were provided. On 22 September 2008, the President of the FPEB sent a message to the applicant's PCM requesting specific details relating to the "incapacitating back pain. In response, the PCM replied that the applicant "has experienced an average of 3-4 days of incapacitating back pain per month, for a total of 37 days (approximately 5 weeks) in the last year (2007-2008).” Also, in a follow on message, the PCM stated that the applicant had only been placed on quarters once by a physician. The other work excusals were from his supervisor. In explanatory notes attached to VASRD 5242, the text mentions, "For purposes of evaluation under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." The BCMR Medical Consultant states that the requirement of prescribing bed rest by a physician helps ensure the integrity of accurately defining an "incapacitating episode" and allows a medical professional to make the determination and prescribe the appropriate medical treatment. While the supervisor likely excused the applicant from work due to his lower back pain, it does not necessarily equate to an incapacitating event as defined in the rating scale. However, the requirement of "incapacitation back pain" to be documented by a physician may also be impractical at the time incapacitation determination when the employee presents for work. The BCMR Medical Consultant advises that the applicant not be penalized when a 'go home and rest' action from a medically untrained supervisor was given. Therefore, the number of incapacitating days, "an average of 3-4 days of incapacitating back pain per month, for a total of 37 days (approximately 5 weeks) in the last year (2007-2008)" should be used in the rating decision. The BCMR Medical Consultant recognizes that incapacitation was not confirmed by a physician in all but one case. However, a specific number of incapacitating events were confirmed by the applicant's PCM to the FPEB. Based upon the number of incapacitating events, the BCMR Medical Consultant recommends a 40% rating instead of the 20% rating. This rating decision coincides with incapacitating intervertebral disc syndrome episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months contained within the explanatory notes under VASRD Code 5242. While the applicant's request for 60% rating is not recommended, the 40% rating is medically appropriate. The complete BCMR Medical Consultant evaluation, with attachments, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 3 September 2010 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting a change in the applicant’s LOD determination. Based on the available evidence of record and that provided by the applicant, we believe some relief is warranted. We note the comments from the Air Force office of primary responsibility (OPR); however, the BCMR Medical Consultant opines that based on the number of incapacitating events of back pain per month, recommends a disability rating of 40 percent rather than the 20 percent is appropriate. Therefore, based on the totality of the facts and circumstances of the applicant’s case; we agree with the opinion and recommendation of the BCMR Medical Consultant, and recommend the applicant’s record as indicated below. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. On 26 April 2009, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; the diagnosis in his case was Intervertebral Disc Syndrome VASRD code 5243, rated at 40%; the compensable percentage was 40%; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. As regards the election of Survivor Benefit Plan option(s), the record will be corrected in accordance with the member’s subsequently expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. c. He was not honorably discharged by reason of physical disability with entitlement to disability severance pay on 28 April 2009, but, on that date he was discharged from active duty and permanently retired by reason of physical disability with a disability rating of 40 percent, effective 29 April 2009. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00066 in Executive Session on 21 October 2010, 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 30 Nov 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 2 Feb 10. Exhibit D. Letter, BCMR Medical Consultant, dated 7 Aug 09, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 3 Sep 10. Panel Chair