RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03940 COUNSEL: NO HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His official records be corrected to show that: 1. He was found unfit for duty by the Informal Physical Evaluation Board (IPEB) on 20 Oct 09. 2. His military disability rating be changed to 80 percent to match his Department of Veteran Affairs (DVA) Compensable Disability Rating in order to qualify him for medical retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: The IPEB determined he was fit for duty utilizing the “presumption of fitness” rule incorrectly (AFI 36-3212, paragraph 3.17). However, he was not fit for duty; he was not performing his duty satisfactorily during the 12 months prior to his separation. Had he remained on active duty, he would not have been able to continue to perform the duties of his flying position. His commander had him performing administrative duties until the completion of this Disability Evaluation System (DES) process. The Department of Veteran Affairs (DVA) awarded him a compensatory disability rating of 80 percent. This should be enough to overcome the IPEB’s presumption of the fit for duty determination. In support of his appeal, the applicant provides an expanded statement and copies of documents from his Medical Evaluation Board (MEB), his medical records, his DVA Disability Rating Decision, multiple orders, and his DD Forms 214, Certificate of Release or Discharge from Active Duty. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served as a command pilot with the Florida Air National Guard. On 19 Apr 09, he reported to the medical clinic with symptoms of a sleep disorder, and a sleep study was recommended. On 24 Apr 09, in response to his previous request for a length of service retirement, he was provided retirement orders reassigning him to the retired reserve, effective 31 Oct 09. On 11 May 09, his sleep study was completed, confirming that he had Obstructive Sleep Apnea (OSA) and use of a Continuous Positive Airway Pressure (CPAP) was recommended. On 17 Jun 09, he was placed in Duty Not to Include Flying (DNIF) status. On 7 Jul 09, he was evaluated by the Physical Exams section of the Medical Clinic because of his planned retirement. The evaluation determined he was physically qualified to retire, and stated “which means that no medical condition has been noted that disqualifies you from the performance of your duties or warrants disability evaluation system processing.” On 10 Jul 09, an Informal Line of Duty (LOD) determination was initiated to evaluate the applicant’s OSA for service connection and his OSA was ultimately determined to be in the LOD. On 26 Aug 09, his Group Commander submitted a Memorandum for Medical Evaluation Board (MEB), in which he wrote, “His medical condition was brought to my attention after he told the unit that he was planning to retire and after he had submitted his application for retirement.” On 18 Sep 09, the MEB referred his case to the IPEB with a recommendation that the applicant be “returned to duty.” On 9 Oct 09, the IPEB determined the applicant’s medical condition did not prevent him from reasonably performing the duties of his office, grade, rank, or rating. The IPEB summary noted he was within one year of his approved retirement date and indicated his medical condition did not overcome the presumption of fitness, and recommended he be returned to duty. On 26 Oct 09, the applicant acknowledged that he agreed with the IPEB findings by signing the Form 1180, Action of Informal Physical Evaluation Board Findings and Recommended Disposition, on 29 Oct 09. On 20 Oct 09, the applicant’s original retirement orders were revoked, pending the completion of his medical evaluation. On 10 Nov 09, a new retirement order was issued directing the applicant’s transfer to the retired reserve, effective 30 Apr 10. 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 D. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPD recommends denial, indicating there is no evidence of an error or injustice. The applicant requests the IPEB’s recommended finding that his OSA was not unfitting and the recommendation that he be returned to duty be changed so he can qualify for medical retirement. His commander noted in this letter: “His medical condition was brought to my attention after he told the unit that he was planning to retire and after he had submitted his application for retirement.” The IPEB noted: “Your medical condition does not prevent you from reasonably performing the duties of your office, grade, rank, or rating. Your sleep apnea is controlled on CPAP with resolution of oxygen desaturation. Your commander states you are accomplishing administrative duties due to your being DNIF and have not missed any work due to your condition. The Board notes you are within one year of your approved retirement date of 30 Oct 09. In accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 3.17, the Board applied the Presumption of Fitness, and has determined your medical condition does not overcome the presumption, and recommends you be returned to duty.” On 26 Oct 09, the applicant signed that he concurred with these findings. The Department of Defense (DoD) and DVA Disability Evaluation Systems operate under separate laws. Under Title 10 USC, 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. The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. Disability boards must rate disabilities based on the member’s condition at the time of evaluation. In contrast, the DVA may rate any service-connected condition based upon further employability or reevaluate based on changes in the severity of a condition. This often results in different rating by the two agencies. A complete copy of the AFPC/DPPD evaluation is at Exhibit C. The AFBCMR Medical Consultant recommends denial, indicating there is no evidence of an error or injustice. The applicant contends that the IPEB incorrectly determined that he was fit for duty, “Utilizing the presumption of fitness incorrectly,” and states that he was not performing duties befitting of his experience in the office, grade, rank, or rating. On 7 Jul 09, a memorandum from the Physical Exams Section of his Medical Clinic states: “You have been evaluated because of your planned separation or retirement from active duty status. You have been found physically qualified to separate or retire, which means that no medical condition has been noted that disqualifies you from the performance of your duties or warrants disability evaluation systems processing.” In a memo from the applicant’s commander to the MEB, he wrote: “Member was planning on retiring and had submitted his retirement request prior to his diagnosis being brought to our attention.” The contemporary approach to OSA has been to retain individuals whose OSA has been otherwise brought under good control and does not preclude retention under certain assignment restrictions or in the performance of military duties. The Medical Consultant opines that the imposed flying restrictions need not have been permanent and did not automatically equate with an unfit finding and a medical separation action. The applicant expressed his desired outcome of an unfit finding and an implicit medical retirement with [at least] a 30 percent rating well in advance of any fitness determination by the Physical Evaluation Board. The Medical Consultant agrees the presumption of fitness rule is applied only to an individual with an approved retirement date, who then undergoes an MEB within the 12 months of said date of retirement, and is thus presumed fit. However, DoD Instruction 1332.38, Physical Disability Evaluation, paragraph E3.P3.5.1., states: “Service members who are pending retirement at the time they are referred for physical disability evaluation enter the DES under a rebuttable presumption that they are physically fit. The DES compensates disabilities when they cause or contribute to career termination. Continued performance of duty until a Service member is approved for length of service retirement creates a rebuttable presumption that a Service member’s medical conditions have not caused career termination.” Operating under a different set of laws than the DoD, the DVA is authorized to offer compensation for any medical condition determined service connected, independent of its proven or demonstrated impact upon a service member’s retainability, fitness to serve, or narrative reason for release from military service. This is the reason why a member may be released from service for one reason, but later receive a compensation rating from the DVA for a condition that was not militarily unfitting at the time of release from service. The Medical Consultant opines the IPEB would still have likely found the applicant fit, even if his case was processed under the Integrated Disability Evaluation System (IDES), wherein the DVA Compensation & Pension evaluation and recommendation rating are conducted early and the results were available to the PEB prior to the termination of the DES process. Finally, DoDI 1332.38, paragraph E3.P3.3.3. states: “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.” The preponderance of the evidence in his case shows the applicant was indeed able to perform his military duties until he was diagnosed with OSA and referred to the DES, whereupon he was found fit for continued military service. A complete copy of the complete Medical Consultant’s evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response to the AFPC/DPPD advisory, the applicant submits a statement repeating the basic contention from this original application. In addition, he adds that on Jun 09, based upon his diagnosis of OSA, he was assigned administrative duties normally assigned to a junior enlisted airman, not those of a command pilot and instructor pilot on flying status. At no time following the 10 Jul 09 completion of the LOD determination for OSA was he examined by a military physician. The IPEB decided that a presumption of fitness was to apply to his case and he was to return to duty. Yet, he was not returned to the duties of his office, grade, rank, or rating. At the time of his separation from active duty, he was still Duty Not to Include Flying (DNIF) and not worldwide deployable. When he signed the IPEB findings, he had no knowledge and had received no briefings on his future DVA disability rating to aide him in making an informed decision. He received his VA disability rating of 80 percent on 30 Mar 10, while he was still an assigned member of the ANG. The new Integrated Disability Evaluation System (IDES) that was started as a pilot program before the time of his case and grew into the IDES would have used his DVA medical evaluation and rating of 80 percent disabled as a starting point in determining his fitness for duty. He asks that this be applied to his case. ________________________________________________________________ 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 injustice. We took notice of the applicant’s complete submission, including his response to the Air Force advisory opinions, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR) and the AFBCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. In particular, we concur with the position of the AFBCMR Medical Consultant that the imposed flying restrictions due to OSA need not have been permanent and did not automatically equate with an unfit finding and a medical separation, and that the IPEB would still have likely found the applicant fit, even if his case was processed under the Integrated Disability Evaluation System (IDES). 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-2011-03940 in Executive Session on 12 Jul 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPPD, dated 18 Oct 11. Exhibit D. Letter, SAF/MRBR, dated 28 Oct 11. Exhibit E. Medical Consultant Memo, dated 4 Jun 12. Exhibit F. Letter, SAF/MRBC, dated 4 Jun 12. Exhibit G. Letter, Applicant, dated 30 Jun 12. Exhibit H. Letter, Applicant, dated 21 Nov 11.