RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01976 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: Her medical discharge be changed to a medical retirement. _________________________________________________________________ APPLICANT CONTENDS THAT: She believes her disability was grossly underrated at the time of her discharge. She believes she was at least 30 percent disabled at the time of her discharge and; therefore, should have received a medical retirement. She has suffered for many years and has been unable to be gainfully employed since her discharge in 1993. In support of her appeal, the applicant submits a personal statement; a copy of her DD Form 214, Certificate of Release or Discharge from Active Duty; a copy of her Informal Physical Evaluation Board (IPEB) Findings and Recommendation Determination; and Department of Veterans Affairs (DVA) documentation. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states the IPEB reviewed the applicant’s case on 4 January 1993 and recommended she be discharged with severance pay with a disability rating of 20 percent for diagnosis of hallus abductovalgus with bunion deformity metatarsophalangeal joint both feet, tailor bunion deformities fifth matatarspphalangeal joints both feet, contracted hammertoe deformities with heloma durum proximal interphalangeal joint fourth toe, left foot, and fifth toes, both feet with chronic foot pain, status both, three corrective surgical procedures in 1988, 1989 and 1990. Applicant concurred with the IPEB findings on 13 January 1993 and her separation date was established as 1 March 1993. She served 6 years, 1 month, and 19 days on active duty. DPSD indicates that the preponderance of evidence reflects that no error or injustice occurred during the disability process. The complete DPSD evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial. The BCMR Medical Consultant states that due to the rigors of training the applicant reportedly began to experience bilateral foot pain during her fourth week of basic military training. Although the foot condition was determined to have existed prior to service, the Medical Evaluation Board (MEB) determined the condition was permanently aggravated by military service. She had three surgeries; however, they did not achieve a durable relief of pain without restrictions. Consequently, due to the anticipated requirement for continued profile restrictions rendering her non- worldwide qualified, she underwent evaluation through the Disability Evaluation System (DES). On 4 January 1993, the IPEB found the applicant unfit and assigned a disability rating of ten percent for each foot under the Veterans Administrative Schedule for Rating Disabilities (VASRD) analogous code 5299-5280; with an added 1.9 percent bilateral factor (ten percent of the combined rating), which, after rounding-off to the nearest ten, resulted in a combined disability rating of 20 percent. The applicant accepted the decision of the IPEB under her signature on the Air Force Form 1180, Physical Disability Evaluation Board Findings and Recommendation Disposition, dated 13 January 1993. After leaving military service, the applicant applied for and received a disability determination by the DVA for her bilateral foot condition; as well as other medical conditions that were service connected, but were not considered unfitting for military service. The applicant’s initial DVA rating determination, made on 1 December 1995, mirrored that of the Air Force. Subsequently, additional signs and symptoms reported by the applicant lead the DVA to increase her disability rating from 20 percent to 50 percent under a different analogus code (5299- 5276), effective the date of her claim, 3 August 1998. Her disability rating was further increased to 100 percent based on individual unemployability, effective 22 December 2003, the date her additional claim was submitted. The BCMR Medical Consultant indicates the DVA operates under a different set of laws (Title 38, United States Code), with a different purpose, the DVA is authorized to offer compensation for any medical condition determined service incurred or aggravated by military service. Moreover, the DVA is empowered to conduct periodic re-evaluations for adjusting the disability rating determination, as the impairment from a given medical condition that may vary over the lifetime of the veteran. It is clear the applicant’s condition, which required additional surgeries after she left military service, left her with additional symptoms, e.g., a “dysfunctional gait” and inability to hold substantially gainful employment; whereas previously, her gait was described as normal and she was able to “toe-and-heel walk” without difficulty. The disability rating determination made by both the Air Force and initially mirrored by the DVA, more likely than not, was reflective of the applicant’s level of impairment present at the time of separation. It is the BCMR Medical Consultant’s opinion that the applicant has not met the burden of proof of an error or injustice that warrants the desired change of the record. The complete copy of the BCMR Medical Consultant’s evaluation, with attachment, is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: The applicant states the only surgery she had after her discharge was in the Veterans Hospital to attempt to correct residual damage from a surgery completed while she was on active duty. The vast majority of her scarring was present at the time of her discharge. She understands the difference in ratings based on Title 10 and Title 38; however, she feels her condition was not properly rated before her discharge. The applicant’s complete rebuttal, with attachments, is at Exhibit F. _________________________________________________________________ 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 an error or an injustice. 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 the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no 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. _________________________________________________________________ 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. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01976 in Executive Session on 15 March 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-01976: Exhibit A. DD Form 149, dtd 24 May 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dtd 17 Aug 10. Exhibit D. Letter, BCMR Medical Consultant, dtd 28 Jan 11. Exhibit E. Letter, SAF/MRBR, dtd 2 Feb 11. Exhibit F. Letter, Applicant, dtd 22 Feb 11. Panel Chair