RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03085 COUNSEL: NO HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Air Force disability rating be amended to match his Department of Veterans Affairs (DVA) disability rating. 2. His official records be corrected to show that his multiple sclerosis (MS) diagnosis was combat related. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His DoD disability ratings do not reflect the full spectrum of service related diagnoses identified by the DVA since his disability retirement. 2. His MS should have been determined to be a combat related disability. Many Veterans who deployed to the Middle East have been diagnosed with MS. His DVA doctor provides information that can link his MS to a wartime situation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant initially entered the regular Air Force on 7 Mar 01, and served as an Electrical Systems Apprentice in support of Operations SOUTHERN WATCH and ENDURING FREEDOM. On 30 Oct 03, an Informal Physical Evaluation Board (PEB) recommended the applicant be permanently retired with a 30 percent disability rating for his MS, and the applicant concurred with the IPEB findings on 3 Nov 03. On 19 Dec 03, the applicant was permanently retired for physical disability with a combined compensable disability rating of 30 percent for MS, and was credited with 2 years, 9 months, and 13 days of total active service. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are included at Exhibits C and E. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial of the applicant’s request to increase his Air Force disability rating to match the subsequent disability rating issued by the DVA, indicating there is no evidence of an error or an injustice. The Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws. Under Title 10, United States Code, Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. Further, Air Force disability boards must rate disability based on the member’s condition at the time of evaluation; in essence a snapshot of the member’s 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, 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. In this case, the member submitted his DVA overall disability rating decision of 80 percent, dated 2 Aug 10. Per the DVA Schedule for Rating Applicant Disabilities, which is used by both the DVA and Services to rate disabilities, MS has a minimum rating of 30 percent. MS can be rated on other residual conditions associated with the disease and this would result in a rating of higher than 30 percent. The DVA did rate several residual conditions related to the applicant’s MS. The DVA also rated other conditions unrelated to his MS which were not submitted as part of this original Medical Evaluation Board in 2003, as they were not considered unfitting or military service. Each residual condition must be determined to be separately unfitting for military service. Since the IPEB did not see evidence that the member’s residual conditions were separately unfitting for military service at the time of retirement, the member was permanently retired with a disability rating of 30 percent. The applicant could have appealed the IPEB rating and requested a Formal PEB, but did not exercise his right of appeal. No error or injustice occurred during the disability process or the rating applied at the time of the IPEB. A complete copy of the AFPC/DPSD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 24 Feb 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: AFPC/DPFD recommends denial of the applicant’s request to designate his MS diagnosis as combat related, indicating there is no evidence of an error or an injustice. In order to make a combat related determination, there must be evidence the condition was incurred as a direct result of combat. There is no such evidence to support his claim in this case. Even if the member’s symptoms originated while deployed to a combat zone, a combat related determination cannot be made unless a direct link has been established to show his condition is directly attributable to the combat. A complete copy of the AFPC/DPFD evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force additional evaluation was forwarded to the applicant on 24 Feb 13 for review and comment within 30 days. As of this date, no response has been received by this office (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 error or 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 offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or an injustice. While we note the letter from the applicant’s DVA physician indicating it is his opinion the applicant’s medical conditions related to MS are combat related, neither the physician nor the applicant has provided any conclusive evidence establishing that the applicant’s onset of MS was the direct result of armed combat. 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2011-03085 in Executive Session on 2 Apr 13, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Jun 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 26 Jan 12. Exhibit D. Letter, SAF/MRBR, dated 24 Feb 12. Exhibit E. Letter, AFPC/DPFD, dated 13 Feb 13. Exhibit F. Letter, SAF/MRBR, dated 24 Feb 13.