RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01045 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His medical documentation from the Department of Veterans Affairs (DVA) be added to his records. 2. He receive a combined disability rating of 60 percent and be medically retired effective 29 January 2008. ________________________________________________________________ APPLICANT CONTENDS THAT: He disputes the findings of his 18 month re-evaluation that occurred on 15 June 2009. During the evaluation, he was asked to perform a flex forward movement; which he did at 20 degrees until he felt a sharp pain. When he received the results, it stated he performed the flex forward movement at 85 degrees. He has not been able to bend that far since 2001. He has had several flex exams and has never bent more than 60 degrees. He is still being treated for low back pain and numbness in his left foot. Prior to his re-evaluation for his left knee, he had already experienced several incapacitating episodes that prevented him from working. He also had episodes that led him to receive Synvisc injections to relieve the pain. He is still being treated for his left knee pain. In support of the appeal, the applicant submits a personal statement, copies of his medical records and a copy of his VA appeal decision. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Air National Guard on 30 April 1986. He was progressively promoted to the grade of technical sergeant (E6). On 30 November 2007, pursuant to a Physical Evaluation Board (PEB), the Secretary of the Air Force directed the applicant be placed on the TDRL. He received a rating of 40 percent for low back pain due to degenerative disc disease and 10 percent for left knee pain due to medical meniscal tears and arthritis status post arthroscopic surgery. He was placed on the TDRL effective 29 January 2008, in the grade of technical sergeant, with a disability rating of 50 percent. On 11 December 2009, during the applicant’s TDRL re-evaluation, the Formal PEB found the applicant’s conditions had improved and stabilized, yet, he continued to be precluded from adequately performing the duties required of his office, grade, rank or rating and remained unfit for service. His back condition was rated 10 percent under VASRD section 5242 and his knee was rated 10 percent under VASRD section 5099-5003. The Formal Physical Evaluation Board (FPEB) recommended he be medically discharged with severance pay and assigned a combined compensable disability rating of 20 percent. The applicant disagreed with the findings of the FPEB and requested his case be forwarded to SAFPC for review and a final decision. On 28 October 2010, having reviewed the facts and evidence of the case, to include testimony presented before the Formal PEB, remarks by the FPEB, remarks by the IPEB, the applicant’s service medical record, the narrative summary of the Medical Evaluation Board (MEB), the Board concurred with the disposition recommended by the FPEB to discharge the applicant with a disability rating of 20 percent. The applicant had at least 20 years of satisfactory service, and therefore, had the option to elect retirement in lieu of disability severance pay. On 8 December 2010, the applicant elected to transfer to the Inactive Reserve Section for the purpose of applying for retirement and receiving retirement pay upon the age of 60. Effective 9 December 2010, the applicant was removed from the TDRL and transferred to the Inactive Reserve List in the grade of technical sergeant. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force which is located at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. The Department of Defense and the Department of Veterans Affairs disability evaluation systems operate under separate laws. The DVA rates service connected disabilities in an on-going fashion. However, the PEB rates only the unfitting disability as it exists at the time of the board. The fact that the DVA rates differently than the Air Force is not uncommon, nor does it show the Air Force’s rating was incorrect or unjust. The applicant’s case was reviewed by three separate boards that rendered essentially the same findings despite the fact the applicant had the opportunity to provide additional documentation supporting his claims at both the FPEB and SAFPC levels. There were also several inconsistencies between the applicant’s later exams and his stated history. The preponderance of the evidence reflects there was no error or injustice during the disability process or the rating applied at the time of the boards. The complete DPSD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: A copy of the Air Force evaluation was forwarded to the applicant on 19 August 2011, for review and comment within 30 days (Exhibit D). As of this date, this office has received no response. ________________________________________________________________ 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 an error or an injustice. The applicant's complete submission was thoroughly reviewed and his contentions were duly noted. However, evidence has not been presented which would lead us to believe that his disability processing and the final disposition of his case were in error or contrary to the governing Air Force regulations, which implement the law. Other than his own assertions, the applicant has provided no evidence that would lead us to believe the assessment of his medical condition and the recommended compensable rating of 20 percent was in error. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its 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 basis to recommend granting the relief sought in this application. ________________________________________________________________ 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-2011-01045 in Executive Session on 2 February 2012, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Forms 149, dated 8 Feb 11 and 24 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 18 Jul 11. Exhibit D. Letter, SAF/MRBR, dated 19 Aug 11. Panel Chair