RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00821 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: She be medically retired. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. She was never advised that she was eligible for a medical retirement. If she had known this, she would have remained on active duty rather than accepting severance pay. She was never able to get her questions answered or obtain any assistance no matter where she turned. 2. Based on the evidence in her medical records, the fact that she was separated due to exacerbation of her rheumatoid arthritis by anthrax immunization, and also in the line of duty, she thought she would have no problem getting her disability rating with the Department of Veterans Affairs (DVA). However, that has not been the case and it has been over five years and her case is still under review. Prior to taking the anthrax vaccine, her medical records reflect her as being 100% healthy. 3. The applicant recounts the challenges she has faced with her medical issues, efforts to get her disability rating, and her assessment of the physician assigned to do her disability examination, and her views of the anthrax vaccine. In support of her application, the applicant provides a seven- page statement, a DoD News Release regarding vaccines and how they may relate to illnesses or death and copies of her medical records and other associated documents. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant’s NGB Form 22, National Guard Bureau Report of Separation and Record of Service, reflects the applicant enlisted in the Air Force - Air National Guard on 3 March 2000 and was honorably discharged with severance pay on 18 October 2004 due to a physical disability. The pertinent facts pertaining to this application are contained in the BCMR Medical Consultant’s evaluation found at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Consultant recommends granting the applicant a permanent medical retirement with a combined disability rating of 60%, consisting of 40% for complete peroneal nerve neuropathy and 30% for left hip arthroplasty. It has been established that the applicant underwent a medical evaluation board (MEB) due to Rheumatoid Arthritis (RA) and that her RA, more likely than not, was aggravated by the Anthrax vaccine she received. Although post-service determinations are generally not considered a basis for the seriousness of in- service occurrence, the Medical Consultant believes that the “bone on bone” findings resulting in the total hip arthroplasty in November 2004 (a few weeks following the applicant’s separation) is strong evidence the condition existed in its severe state at the time of the applicant’s MEB and separation action. The Medical Consultant believes that had the seriousness of the applicant’s left hip disease been known prior to her separation, this condition, more likely than not, would have played a significant role in her fitness determination and, indeed, her disability rating computation. Since the government has accepted the likelihood the applicant’s RA was aggravated by the Anthrax vaccine, then it should follow that the degenerative hip may have likewise been worsened due to the inflammatory response to the Anthrax vaccine. If the applicant’s medical condition existed prior to service (EPTS), the Medical Consultant finds any EPTS factor indeterminate for disability rating purposes. Therefore the Medical Consultant recommends changing the record to show the applicant was found unfit due to severe degenerative joint disease, left hip, and was assigned a disability rating of 30%. The 30% rating represents the minimum rating for hip joint arthroplasty. The Medical Consultant notes that he considers the applicant’s severely degenerative left hip to be a residual of her RA and, thus, cannot combine the rating with the rating for her RA active disease, unless it results in a higher rating. Finally, although the applicant experienced an unexpected complication of her surgery, albeit post-service, he finds it inappropriate to ignore this real-world additional consequence of her surgical treatment, which has contributed to her inability to function. Therefore the Medical Consultant opines that combining (not adding) a disability rating of 40%, under VASRD code 8521 (complete common peroneal nerve weakness) with the 30% disability rating for the applicant’s total hip arthroplasty, under VASRD code 5054, represents an appropriate remedy. The complete BCMR Medical Consultant Evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the BCMR Medical Consultant’s complete evaluation was forwarded to the applicant on 29 November 2010 for review and comment within 30 days. To date, a response has not been received. ________________________________________________________________ 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 an error or injustice. After a review of the facts and circumstances of this case, we are sufficiently persuaded the applicant has provided the necessary and appropriate documentation to sustain her burden that she has been the victim of an error or injustice and should be medically retired. We agree with the BCMR Medical Consultant’s recommendation that the applicant’s hip arthroplasty should be factored in her disability rating; however, we do not agree that the peroneal nerve condition should be a factor. The BCMR Medical Consultant states that her post-service surgery for her left hip which resulted in an unexpected complication, peroneal nerve weakness, should not be ignored and should be factored in the disability rating. Based on our review of the evidence, we do not believe that this unexpected complication of post-service surgery represents an error by the Air Force and should be included in the disability rating computation. It has been established that the applicant underwent an MEB due to RA and that her RA was aggravated by the Anthrax vaccine. The BCMR Medical Consultant determined that due to the RA the “bone on bone” findings resulted in the total hip arthroplasty in November 2004, a few weeks following her separation and that had the applicant’s left hip disease been known prior to her separation, this condition would have played a significant role in her fitness determination and, her disability rating computation. Therefore, in view of the above, and in an effort to remove any possibility of an injustice, we believe the totality of the evidence presented warrants that the applicant receive the minimum 30% disability rating for her left hip arthroplasty, which when combined with the 20% disability rating for her RA, results in a disability rating of 40% and a permanent medical retirement. Accordingly, we recommend her records be corrected as indicated below. ________________________________________________________________ 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 17 October 2004, she was found unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; that the diagnosis in her case was rheumatoid arthritis, VASRD code 5002, rated at 20% and hip arthroplasty, VASRD code 5054, rated 30%; that the compensable percentage was 40%; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that 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. On 18 October 2004, she was retired by reason of physical disability under the provisions of AFI 36-3212. c. The election of Survivor Benefit Plan option(s), will be corrected in accordance with the member’s expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00821 in Executive Session on 6 January 2011, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-00821 was considered: Exhibit A. DD Form 149, dated 25 February 2010, w/atchs. Exhibit B. Applicant's Master Personnel Record. Exhibit C. Letter, AFBCMR Medical Consultant, dated 23 November 2010, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 29 November 2010.