RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03998 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His official records be corrected to show his obstructive sleep apnea (OSA) was determined to be an unfitting condition with a 50 percent disability rating, increasing his total permanent disability rating from 60 percent to 80 percent. ________________________________________________________________ APPLICANT CONTENDS THAT: The Physical Evaluation Board (PEB) incorrectly determined his OSA to be “not currently compensable.” Some of his medical information may not have been available at the time of his Nov 02 PEB. His OSA was diagnosed as severe with evidence of hypoxemia during two eight hour sleep studies conducted on 16 and 17 Aug 01. The Department of Veteran Affairs (DVA) assessed his OSA to be an unfitting condition warranting a 50 percent disability rating. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Air National Guard during the period of time in question. On 18 Aug 01, the applicant’s name was placed on the Temporary Disability Retired List (TDRL) with a combined compensable disability rating of 60 percent. On 5 Nov 02, during a TDRL Examination, the applicant’s post aortic dissection repair associated with retinal detachment was determined to be permanently unfitting and the applicant was assigned a 60 percent disability rating for said condition. However, his OSA was found to not be compensable or ratable. On 8 Dec 02, the applicant was retired for permanent disability with a combined compensable disability rating of 60 percent. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility which is included at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD recommends denial, indicating there is no evidence of an error or injustice. As background, the Department of Defense and DVA disability evaluation systems operate under separate laws. Under Title 10, USC, the PEB must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank, or rating. The fact a person may have a medical condition does not mean the condition is necessarily 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 the career. Further, it must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence, a snapshot of their condition at that time. It is the charge of the DVA to pick up where the AF must, by law, leave off. Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on charges in the severity of a condition. In this case, the applicant’s medical evaluation was conducted on 14 Jun 01 for diagnosis of aortic dissection—surgically repaired, carpal tunnel syndrome bilaterally, transient neurological deficits and retinal detachment. On 21 Jun 01, the Informal PEB (IPEB) recommended the applicant be placed on the TDRL with a disability rating of 60 percent for diagnosis of aortic dissection, post-surgical repair with new evidence of recurrence associated with transient neurologic deficits and a history of retinal detachment. The applicant concurred and was scheduled for retirement on 18 Aug 01. On 5 Nov 02, the applicant was scheduled for his first TDRL re-evaluation exam, but only submitted documentation from his civilian provider for his TDRL re-exam. The IPEB reviewed the information submitted and recommended removal from the TDRL and permanent retirement with a 60 percent disability rating for diagnosis of post aortic dissection repair associated with retinal detachment. Again, the applicant concurred with this action. The IPEB did see the applicant had been diagnosed with OSA, which was well controlled with continuous positive airway pressure (CPAP) machine, since the time of his placement on the TDRL. They listed the condition under Category II as a condition that could be unfitting, but was not currently compensable or ratable. The applicant was removed from the TDRL effective 8 Dec 02 and retired with a 60 percent disability rating. At no time during the applicant’s disability processing was he boarded for or given a disability rating for OSA. The documents submitted by the applicant to the AFBCMR are the same documents he submitted to the IPEB for their review at his Nov 02 re-examination. A complete copy of the AFPC/DPFD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: His diagnosis for severe OSA with hypoxemia for excessive daytime sleepiness, confusion and nighttime arousals was prior to his placement on the TDRL on 18 Aug 01. The OSA should have been rated during his time on the TDRL between 18 Aug 01 to 8 Dec 02. Both his aortic dissection and the OSA were noted on his AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board; either condition alone would prevent him from performing his military duties. He believes the significance and gravity of his condition justifies the additional disability rating (Exhibit E). ________________________________________________________________ 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, to include the applicant’s rebuttal response, in judging the merits of the case; however, 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 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 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-2012-03998 in Executive Session on 2 May 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Aug 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 24 Oct 12. Exhibit D. Letter, SAF/MRBR, dated 6 Nov 12. Exhibit E. Letter, Applicant, dated 27 Nov 12.