RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00971 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His medical discharge be changed to a medical retirement with a 40 percent disability rating. 2. He receive back retirement pay from his date of separation to the present less any severance pay received. _________________________________________________________________ APPLICANT CONTENDS THAT: On 17 April 1997, the Formal Physical Evaluation Board (FPEB) found him unfit for duty with a compensable rating of 20 percent for his condition of Seronegative Spondlyoartropathy, Non-erosive with Psoriatic Arthritis, on Steroids and Immunosuppressive Drug under VASARD Code 5009-5002. Subsequent to his separation the Department of Veteran Affairs (DVA) rated his condition of the same Psoriatic Arthritis at 40 percent with service connection with an effective date of 9 June 1997 (his date of separation). The FPEB rating of 20 percent was grounded in, “One or two exacerbations a year in a well-established diagnosis.” The DVA rating of 40 percent was grounded in, “Symptom combinations productive of definite impairment of health objectively supported by examination findings; or, incapacitating exacerbations occurring three or more times a year. What distinguishes the 40 percent from 20 percent involves two different standards: 1) three or more exacerbations must occur per year and those exacerbations must be incapacitating; or, 2) definite health impairment supported by objective findings. If either standard is met, the proper disability rating is 40 percent, not 20 percent. In support of his appeal, the applicant submits a statement from his counsel; the FPEB findings and recommendations; his concurrence with the FPEB findings and recommendations; the Informal Physical Evaluation Board (IPEB) findings and recommendations; Medical Evaluation Board (MEB) Report; four Medical Board Evaluations; memorandum to the FPEB; his DD Form 214, Certificate of Release or Discharge from Active Duty; DVA findings and rating decision; VASARD excerpt; and two letters of support. 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 4 December 1991 and was honorably discharged on 9 June 1997. The narrative reason for discharge is annotated as disability, severance pay. The discharge was authorized under Air Force Instruction 36-3212, with a 20 percent disability rating for Seronegative Spondyloarthropathy, Non-erosive with Psoriatic Arthritis, on Steroids and Immunosuppressive Drug. He served five years, six months, and six days on active duty. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate office of the Air Force and the BCMR Medical Consultant at Exhibits C and D. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states that on 18 March 1997, the IPEB recommended the applicant be discharged with severance pay with a disability rating of 20 percent for his condition of Seronegative Spondyloarthropathy, Non-erosive with Psoriatic Arthritis, on Steroids and Immunosuppressive Drug. On 26 March 1997, the applicant non-concurred with the IPEB findings and requested a formal hearing with counsel. On 17 April 1997, the FPEB reviewed the case and concurred with the IPEB findings and recommendations. DPSD states the Department of Defense (DoD) and DVA disability evaluation systems operate under separate laws. Moreover, the DVA rates service connected disabilities in an on-going fashion. By contrast, the service Physical Evaluation Boards rate only the unfitting condition as it exists at the time of the board. As such the fact the DVA subsequently rated the applicant’s condition differently than the Air Force is not remarkable, uncommon, nor in any way provides evidence that the Air Force rating was incorrect or unjust. In fact, the preponderance of evidence reflects that no error or injustice occurred during the disability process or with the rating applied at the time of the board’s evaluations. The complete DPSD evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial. The BCMR Medical Consultant states that in order to evaluate the applicant’s contention that a 40 percent disability rating should have been assigned at the time of separation, it is imperative to consider both a time factor and functional capability at the time of separation. Throughout his period of service, medical records document numerous outpatient visits to civilian and military primary care and specialty physicians for treatment of his condition. Indeed, the record reflects periods of increased symptoms relating to the Psoriatic Arthritis from January 1995 through August 1996. During this period, records document alternating periods of symptom flare-ups and acute exacerbations which required regular visits to both civilian and military rheumatologists. A review of progress notes and profile documentation revealed the applicant experienced some duty limitations and physical restrictions resulting from the effects of the Psoriatic Arthritis, most significantly during the period prior to August 1996. The quest to identify the most efficacious medical therapy was evident throughout this period in an effort to control symptomatic flare-ups and manage pain. By April 1997, a FPEB was convened and the president’s summary remarks regarding the applicant’s functional status, at or around the time of separation, indicated testimony and medical evidence confirmed the findings and recommendations of the IPEB. The FPEB indicated that since moving the applicant to a competitive/authorized TRICARE (sedentary) job in August 1996, he only missed one day of work and performed his duties in an excellent fashion as evidence by his February 1997 Officer Evaluation Report. At that time, the applicant reported non-incapacitating exacerbations approximately once per month requiring only supplemental over- the-counter medication (Tylenol) for resolution. As a result, the FPEB found the applicant was unfit for duty based on testimony, and that his functional impairment was best described as mild, and that he is fully compensated at the minimum rating of 20 percent under the VASRD code 5009-5002. The BCMR Consultant indicates that at the time of the applicant’s separation from active duty, his symptoms and functional capacity had significantly improved since his diagnosis in 1995 due to job reassignment and his medication regime. In addition, he had been completely taken off of any immunosuppressive therapy. It is the BCMR Medical Consultant’s opinion that the applicant’s request to change his disability rating to 40 percent at the time of his separation is not warranted. A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE AND BCMR MEDCIAL EVALUATIONS: Applicant’s counsel responds that the medical advisor failed totally to address the question of the applicant’s health impairment supported by the objective findings. This is also a standard which can yield 40 percent disability under VASRD 5002. They have demonstrated the applicant suffered from ongoing exacerbations up to the date of his separation, as well as definite health impairment. The applicant appreciates the opportunity to respond to the advisory opinions and hopes the Board will find to reverse the decision of the FPEB and recommend he be disability retired. The counsel’s complete rebuttal, with attachment is at Exhibit G. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 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 and do not find that it supports a determination that his disability was improperly rated at the time of his discharge with severance pay. We note the contentions of the applicant and his counsel that he should have received a medical retirement with a 40 percent disability rating; however, as indicated by the BCMR Medical Consultant, the medical record support that the applicant was appropriately rated at the time of his discharge. By the applicant’s admission, on or about the time of his separation from service, his exacerbations were not incapacitating and he responded adequately to over-the-counter drugs. This is further evidenced by the applicant’s own concurrence with the FPEB’s findings. In view of the above and absent persuasive evidence the applicant was denied rights to which entitled, appropriate regulations were not followed, or appropriate standards were not applied, 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-2011-00971 in Executive Sessions on 4 January 2012 and 17 January 2012, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2011-00971: Exhibit A. DD Form 149, dtd 10 Mar 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dtd 22 Sep 11. Exhibit D. Letter, SAF/MRBR, dtd 30 Sep 11. Exhibit E. Letter, BCMR Medical Consultant, dtd 3 Nov 11. Exhibit F. Letter, AFBCMR, dtd 29 Nov 11. Exhibit G. Letter, Counsel, dtd 2 Jan 12, w/atchs. Panel Chair