RECORD OF PRPOCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04321 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His 10 percent disability rating for cervical spine arthritis with bilateral factors be increased to 40 percent as rated by the Department of Veterans Affairs (DVA). 2. His bilateral pes planus which is mentioned on his AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board (PEB) be rated. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. In Oct 09, he was medically retired and realized some of the conditions listed on his AF Form 618, Medical Board Report which rendered him unfit for further military service were omitted from his AF Form 356, or were listed as less severe than his actual diagnosis. 2. Condition one on his AF Form 618 listed chronic Cervicalgia with upper extremity (UE) radiculopathy; however the AF Form 356 listed it as Cervical Spine Arthritis but did not include the UE radiculopathy for either the left or right extremities. Also, it made no mention of the invertebral disc syndrome with degenerative disc disease at the C 5-6 and C 6-7 allowing for a bilateral factor of 20 percent not the 10 percent shown on his AF Form 356. The rating for the cervical spine condition should be 20 percent plus 10 percent each for the left and right radiculopathy for a total of 40 percent under VA Diagnostic Codes 5003, 5238, 5242, or 5243. 3. Condition three on his AF Form 618 is listed as chronic ankle and foot pain secondary to bilateral subtalar coalition. There were two AF Forms 356 initiated because he did not feel his feet or ankle issues were clearly stated on the initial one. The first AF Form 356 (dated 2 Jun 09) listed bilateral acquired flat foot but nothing regarding the subtalar coalition. The second AF Form 356 (dated 2 Sep 09) correctly reflects the bilateral subtalar coalition but omitted the bilateral pes planus yet it was mentioned in the remarks section. The rating for condition three should be 20 percent (or higher depending on which diagnosis code is used) for bilateral subtalar coalition plus the 10 percent for bilateral pes planus for a total rating of 30 percent under VA Diagnostic Codes 5270, 5272, 5276 or 5283. 4. He felt like he was being rushed into making a decision to accept the findings and recommendations of the PEB. It also seemed like his legal counsel did not really care about the outcome of his case and would not give him any straight answers to his questions. In support of his request, the applicant provides copies of his AF Form 618, AF Forms 356, AF Form 1180, Action on Informal PEB Findings and Recommended Disposition; AFRC IMTs 348, Informal Line of Duty (ILOD) Determination; Radiologic Examinations Reports, and various other documents associated with his request. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant was mobilized from 16 Feb 91 to 28 Apr 06 in support of Operations DESERT SHIELD/DESERT STORM, ENDURING FREEDOM and IRAQI FREEDOM. He served in support of these Operations during the following periods: 16 Feb 91 to 31 Jul 09; 14 Feb 03 to 13 Feb 04 and 16 Oct 05 to 28 Apr 06. On 20 Nov 05, an ILOD determination was initiated because he had a fracture of tibia and fibula. On 26 Apr 06, the applicant’s injury was determined to have existed prior to service (EPTS)- Service Aggravated. On 18 May 07, an ILOD determination was initiated for the following reasons: a. Other congenital anomalies of limbs Left Talocalcaneal coalition with associated degenerative changes. On 27 Jun 07, the applicant’s disease was determined to be in the LOD. b. Flat foot and pes planus, aggravated. On 2 Jul 07, the applicant’s disease was determined to be EPTS-Service Aggravated. c. Other congenital anomalies of limbs and Right Talocalcaneal coalition with associated degenerative changes, On 12 Oct 07, the applicant’s disease was determined to be in the LOD. On 30 Aug 07, an ILOD was initiated because he had other disorders of cervical regions; Cervical Radiculopathy aggravated while on Iraq tour, Sep 06. On 18 Sep 07, the applicant’s disease was determined to be in the LOD. On 19 Mar 09, a medical evaluation board (MEB) convened to consider the applicant for continued active duty. The board recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB) for Chronic Cervicalgia with upper extremity (UE) radiculopathy; chronic left knee pain status post left knee replacement and chronic ankle and foot pain secondary to bilateral subtalar coalition. On 2 Jun 09, the IPEB reviewed the case and found the applicant unfit and recommended permanent retirement with a combined disability rating of 40 percent (30 percent for left total knee replacement, EPTS-Service Aggravated; 10 percent for cervical spine arthritis; and 10 percent for bilateral acquired flat foot) per the schedule for rating disabilities in use by the DVA in accordance with (IAW) the National Defense Authorization Act (NDAA) 2008. On 23 Jun 09, the applicant non-concurred with the findings and recommended disposition of the IPEB and requested a formal hearing with counsel. The applicant requested a summary adjudication of his case for his left total knee replacement to be found unfitting and rated under Veterans Administration Schedule for Rating Disabilities (VASRD) section 5055 at 30 percent; that his unfitting foot and ankle pain be found unfitting and rated as bilateral subtalar coalition under VASRD section 5272 at 21 percent; and that his cervical spine arthritis be found unfitting and rated under VASRD section 5242 at 10 percent for a combined compensable disability rating of 50 percent and a permanent retirement. On 2 Sep 09, based on a review of the medical evidence the FPEB determined a formal hearing was not required and found the applicant unfit for continued military service and recommended permanent retirement with a combined compensable disability rating of 50 percent (30 percent for left total knee replacement, EPTS-Service Aggravated; 20 percent for bilateral subtalar coalition with degenerative changes, EPTS-Service Aggravation; and 10 percent for cervical spine arthritis) per the schedule for rating disabilities in use by the DVA. On 3 Sep 09, the applicant concurred with the findings and recommended disposition of the FPEB. On 15 Sep 09, officials within the Office of the Secretary of the Air Force (SAF) directed the applicant be permanently retired effective 28 Dec 09, under the provisions of 10 USC 1201. On 30 Sep 09, the applicant requested his date of separation be adjusted to reflect 27 Oct 09. On 27 Oct 09, the applicant was relieved from active duty. On 28 Oct 09, he was permanently disability retired in the grade of lieutenant colonel, with a compensable percentage for physical disability of 50 percent. He completed 12 years, 5 months and 2 days of active service for retirement. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSD recommends denial. The Department of Defense (DoD) and the DVA disability evaluation systems (DES) operate under separate laws. Under Title 10 USC, PEBs 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 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. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. Further, it must be noted the United States Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their 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 two agencies. The applicant provided his DVA rating sheet which indicated the DVA rated his cervical spine condition at 20 percent and rated his bilateral upper extremity radiculopathies at 10 percent each. The FPEB noted his cervical range of motion was measured at 47, which equates to a 10 percent rating per the VASRD. Electromyogram (EMG) testing does not show any upper extremity abnormalities and the FPEB deemed no separate rating for radiculopathy was warranted. The fact that the DVA chose to rate the radiculopathy separate does not indicate that the FPEB incorrectly omitted this condition. The applicant believes his bilateral pes planus should have been rated separately by the FPEB. Although mentioned in the FPEBs narrative remarks, a determination was made that his bilateral pes planus was “associated” with his talocalcaneal condition, which was rated at 21 percent. By law, a separate rating for the applicant’s pes planus could not be granted as this would have constituted “pyramiding”, which does not allow the same condition to be rated twice. Additionally, the preponderance of the evidence reflects that no error or injustice occurred during the disability process or the rating applied at the time of the Board. The complete DPSD evaluation is at Exhibit C. _________________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: By letter dated 5 Mar 12, the applicant refutes the comments made in the advisory opinion. The applicant states the advisory opinion mentioned the PEB made their determination based on his condition at the time of the board on 2 Jun 09 and he non- concurred on 23 Jun 09 so the board made another recommendation on 2 Sep 09. The advisory opinion noted the disability board must rate disabilities based on his condition at the time of his evaluation. It went on to say the VA picks up where the AF must by law, leave off. However, this is not true in his case. As a reservist, he has been rated by the DVA for these conditions since 29 Mar 09. The DVA did reevaluate his degenerative disc disease in Feb 10 and continued the 20 percent rating. Therefore, the DVA had evaluated him two and half years earlier than the PEB so this contradicts the statement in the advisory opinion. The PEB did not mention he had degenerative disc disease with intervertebral disc syndrome in his C 5-6 and C 6-7 area. The PEB rated him as having cervical spine arthritis under VA Diagnostic code 5242 at 10 percent but the VA used 5243 for degenerative disc disease with intervertebral disc syndrome since it was based on multi-level lower cervical spondylosis with secondary foraminal stenosis and radiculopathy and rated him at 20 percent. VA Code 5003 could also be used to determine the percentage since there is x-ray evidence of involvement of two or more major or minor joints. The radiculopathy was addressed but was combined with the degenerative disc disease for a 40 percent combined rating. Although the UE radiculopathy was listed on the AF Form 618 it was not mentioned on either one of the AF Forms 356. The advisory opinion states his range of motion was measured one time at 47 degrees. However, his range of motion has been measured during most of his medical appointments and has varied depending on his recent activities or injection in his spine. The DVA rated this condition under VA Code 8515 for both the right and left side at 10 percent. Also, the DVA granted radiculopathy of C-8 nerve distribution for his right upper extremity and radiculopathy of C-4, C-5 nerve distribution for his left upper extremity and left upper chest. The advisory opinion also mentioned the EMG testing did not show any UE abnormalities but this was not completely correct. The study had limited results of his upper cervical paraspinal region due to poor relaxation. However, the needle EMG of the right arm showed minor chronic denervation with reinnervation change involving the right biceps muscles. This supports a mild upper cervical radiculopathy on the right and could correlate with exam findings of relatively reduced deep tendon reflexes (DTRs) on that side. The applicant states his legal counsel was not supportive in helping him rectify this issue and made it seem like he should be content with accepting this or risk the chance of losing it all, if he went in front of the board. He believes he was short changed on this issue and should have a combined rating of 40 percent for degenerative disc disease intervertebral disc syndrome with UE radiculopathy as clearly stated on his AF Form 618 and granted by the DVA. The advisory opinion mentioned he believed his bilateral pes planus should be rated separately by the FPEB. However, this is not the case because the results from the first PEB only had his pes planus (VA Code 5276) listed on the AF Form 356. Because of this, he non-concurred but the second AF Form 356 only had bilateral subtalar coalition listed with degenerative changes (VA Code 5272). Once again, his legal counsel was not very supportive. He seemed to want his case resolved and to move on to the next one. The advisory opinion mentioned that he was trying to do what was considered “pyramiding” and by law does not allow for the same condition to be rated twice. This is not the case since tarsal coalition and pes planus are two completely different conditions of the feet. He believes since he has both they should be combined for a rating. He has two approved LODs from HQ USAF Reserve to support this claim stating these EPTS-Service Aggravation. The tarsal coalition was also incorrectly rated at 10 percent for each foot. He was diagnosed with moderately severe tarsal coalition which has a 20 percent rating per foot. He believes his tarsal coalition should be increased to correctly reflect this for both feet for a 40% rating or combine the pes planus with his current rating to increase the rating to 30 percent. The applicant’s complete submission, with attachments is at Exhibit E. _________________________________________________________________ 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. While we note the applicant disagrees with the ratings he was assigned it appears that based on the preponderance of the evidence the applicant’s disability rating(s) were properly adjudicated and we found no evidence which would lead us to believe that the FPEB findings were in error or contrary to the governing Air Force instructions. Although the applicant argues that his legal counsel was not supportive in helping him rectify the issues, we are not persuaded by the evidence that he was denied any rights to which entitled during the DES process. To the contrary, he was represented by counsel, submitted evidence in his own behalf, was afforded all rights to which entitled, agreed with the findings and there has been no showing otherwise. Although the Air Force is required to rate disabilities in accordance with the DVA Schedule for Rating Disabilities, the DVA, operating under a totally separate system with a different statutory basis, compensates for any and all service-connected medical conditions to the degree they interfere with a member’s future employability, without consideration of fitness. However, the Air Force, rates a member's disability based on the degree of severity of the unfitting condition at the time of separation. While the applicant’s contentions are duly noted, his case has undergone an exhaustive review by the Air Force office of primary responsibility (OPR) and we did not find the evidence provided sufficient to overcome their assessment of the case. Therefore, we agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice. In the absence of persuasive 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-2011-04321 in Executive Session on 18 Jul 12, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-04321 was considered: Exhibit A. DD Form 149, dated 9 Oct 11, w/atchs. Exhibit B. Applicant's Military Personnel Records. Exhibit C. HQ AFPC/DPSD, Letter, dated 19 Dec 11. Exhibit D. SAF/MRBR, Letter, dated 29 Dec 11.