RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04255 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His medical discharge with severance pay be changed to a medical retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: He was rated unfit for active duty and honorably discharged with a 20 percent compensable disability rating. Within that same year, the Department of Veterans Affairs (DVA) rated him 90 percent service-connected disabled for the same conditions. He was rated 100 percent Individual Unemployable which included Memory/Cognitive deterioration and Post-Traumatic Stress Disorder (PTSD) as it manifested later. His PTSD was service connected and attributed to Gulf War Illness. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Air Force on 15 November 1985. On 17 November 1998, a Medical Evaluation Board (MEB) referred him to an Informal Physical Evaluation Board (IPEB) for chronic low back pain. On 3 February 1999, the IPEB found that his chronic low back pain was unfitting and recommended that he be discharged with severance pay with a 20 percent compensable disability rating. The applicant agreed with the findings and recommendations of the IPEB and waived his right to a formal PEB hearing. On 19 February 1999, the Secretary of the Air Force directed he be separated from active service for a physical disability under the provisions of 10 USC 1203, with severance pay. The applicant was honorably discharged on 13 April 1999. His narrative reason for separation was listed as disability, severance pay. He was credited with 13 Years, 4 months and 29 days of active duty service. AIR FORCE EVALUATION: AFPC/DPFD recommends denial. The applicant was referred to an MEB for chronic back pain. The MEB convened on 19 November 1998; he was not boarded for PTSD. The Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws. Under Title 10, U.S.C, Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued service relating to their office, grade, rank or rating. The fact that a person has 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. If there is a finding of unfitness, the law provides appropriate compensation due to the premature termination of their career. DoD rates 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 the two agencies. The IPEB reviewed the documents submitted by the applicant and determined the range of motion on the DVA rating shows a flexion of 30 degrees with pain. All the other degrees of range of motion would still be a 20 percent rating for severance pay. The preponderance of the evidence reflects that no error or injustice occurred during the disability process or at the time of separation. The applicant was not boarded for PTSD. Should the Board find that PTSD should have been found unfitting at the time of the 1998 medical board, they can provide the appropriate disability rating. The complete DPFD evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial. The applicant’s records do not support that he displayed memory, depression or anxiety issues while on active duty. The Medical Consultant was also unable to find any duty limitations, deployment limitations or physical profiles to question the applicant’s fitness as related to PTSD or migraine headache history. The applicant could have had PTSD considered as an unfitting condition and awarded a rating at that time if he deemed appropriate. The Medical consultant opines these conditions were not unfitting for military service. As stated, the DVA may rate service connected disabilities 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. The IPEB reviewed the documents submitted, found the member unfit and recommended he be discharged with severance pay with a 20 percent compensable disability rating in accordance with the Veteran’s Affairs Schedule for Rating Disabilities (VASARD) guidelines for diagnosis of chronic back pain. The VA, using the same guidelines, found the applicant to have flexion of 35 degrees with pain; extension of 10 degrees in their 1999 evaluation: both agencies objective measurement falls within the criteria for 20 percent disability rating. The military Disability Evaluation System (DES) was established to maintain a fit and vital fighting force. By law, the DES can only offer compensation for those service incurred diseases or injuries which specifically render a member unfit for continued active service and were the cause for career termination; and then only to the degree of impairment present at the time of separation and not based on future occurrences. Service members are considered unfit when the evidence establishes that a member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, to include duties during a remaining period of Reserve obligation; as was the case with the applicant’s chronic back pain. Although he was treated for a number of other episodic illnesses and injuries during his service, the evidence shows that it was his chronic back pain, not his PTSD or migraine headaches, which was shown to have interfered with his military service to the extent or duration that warranted processing through the military DES. The applicant has not met the burden of proof of error or injustice that warrants the desired change in the record. The BCMR Medical Consultant’s complete evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states he agrees with the background as stated by the advisories. He also states that while he understands there is no medical documentation regarding his memory, depression or anxiety issues while he was active duty, those issues were keenly evident to his family. His cognitive memory impairment had not fully manifested itself at the time; this happens with Gulf War veterans. PTSD is something, he guesses, that happens when you are held a gun point in the Kuwait oil fields. His migraines were dealt with by taking Tylenol. He did not consider asking about these issues as he was not aware of them at the time. His contention is the disparity between the 20 percent rating from the Air Force and the 40 percent rating from the VA while looking at the same information. When being counseled by the subject matter expert at the base hospital, he was not told about the disparity or the cutoff for retirement. He was only made aware of this by a neurology nurse at the VA hospital. He is not requesting compensation for anything other than his back. The VA has compensated him for other medical conditions including PTSD; however, his only request is that the Air Force corrects his 20 percent severance to a 40 percent medical retirement. The applicant’s complete response is at Exhibit F. ________________________________________________________________ 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 with regard to the applicant’s disability rating. Evidence has not been submitted which would lead us to believe the rating he received at final disposition was improper. The evidence of record indicates that the applicant was afforded due process through the disability evaluation system and we find the evidence submitted insufficient to determine otherwise. Therefore we agree with the opinion and recommendation of the AFPC/DPFD and the BCMR Medical Consultant and adopt their 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-2012-04255 in Executive Session on 16 May 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dtd 1 Aug 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dtd 20 Nov 12. Exhibit D. Letter, BCMR Medical Consultant, dtd 27 Feb 13. Exhibit E. Letter, SAF/MRBC, dtd 15 Mar 13. Exhibit F. E-Mail, Applicant’s Response, dtd 13 Apr 13.