SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05273-3

XXXX XXXXXXXX	COUNSEL: XXX XXXXXX
			          XXX XXXXXX

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider his request for a medical retirement.

By amendment, the applicant requests his record be corrected to reflect the following were unfitting:

Radiculopathy affecting his lower left leg, and/either;
Degenerative Arthritis of the Lower Cervical Spine 
Lumbar Spine Degenerative Arthritis 
Lumber Spine IDS
Bilateral Shoulder and Cervical Spine Arthritis
Cervical Spine IDS
Bilateral Elbow Epicondylitis 
Patellofemoral Syndrome in both knees

In the alternative, that these conditions be processed through a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).

RESUME OF THE CASE

On 4 Aug 09, a Medical Evaluation Board referred the applicant to an Informal Physical Evaluation Board (IPEB) due to low back pain.

On 9 Nov 09, the IPEB found his Lumbago due to Degenerative Disc Disease unfitting and recommended he be discharged with severance pay with a compensable disability rating of 20%.  The applicant disagreed with the findings and recommendation on 24 Nov 09.

On 26 Mar 10, a Formal Physical Evaluation Board (FPEB) found the applicant’s Lumbago due to Degenerative Disc Disease associated with Radiculopathy unfitting.  The FPEB noted the applicant’s Obstructive Sleep Apnea with prescribed CPAP machine could be unfitting, but was not compensable or ratable at that time.  The FPEB recommended the applicant be discharged with severance pay with a compensable rating of 20%.  On 26 Mar 10, the applicant disagreed and appealed to the Secretary of the Air Force. 

On 14 Jan 11, the designee for Secretary of the Air Force directed the applicant be discharged with severance pay with a disability rating of 20% for low back pain.

On 21 Jan 11, the applicant elected to be transferred to the Inactive Status List Reserve Section to await retirement pay upon attaining the age of 60.

On 28 May 11, the applicant was transferred to the Retired Reserves List.

On 13 Aug 13, the Air Force Board for Correction of Military Records (AFBCMR) considered and denied the applicant’s request to change his seizure disorder rating from 20% to 100 % finding no error or injustice during the disability process.  

On 29 Jun 15, the applicant requested reconsideration contending the Department of Veteran’s Affairs rated him at 100% and therefore he should and be medically retired.  On 26 July 16, the AFBCMR denied the request for reconsideration finding the evidence submitted insufficient to warrant recommending relief. 

For an accounting of the applicant’s previous requests and the rationale of the earlier decisions, see the AFBCMR Letters and Records of Proceeding at Exhibits G and H.

On 28 Jul 19, through counsel, the applicant again requested reconsideration of his request.  He now contends the PEB should have considered and found his Lumbar Spine Degenerative Arthritis and Lumbar Spine IDS, Radiculopathy affecting his left leg, Bilateral Shoulder and Cervical Spine Degenerative Arthritis, Cervical Spine IDS, Bilateral Elbow and Patellofemoral Syndrome in both knees also unfitting as these conditions significantly impacted his duties as a material management specialist.  Furthermore, not rating these conditions is failure to adhere to the DoD 1332.38 by not referring all of his medical conditions to the Disability Evaluation System as these conditions also affected his ability to do his job.  The applicant contends the PEB erred when the failed to rate the above mentioned conditions separately and requests the Board rate each of these conditions separately and find the rating warrants a medical retirement.

The applicant’s complete submission is at Exhibit I.

AIR FORCE EVALUATION

The BCMR Medical Advisor recommends denying the application.  There is no evidence of an inequity or impropriety with the applicant’s processing through the Integrated Disability Evaluation System (IDES).  The applicant had an opportunity to appeal the PEB’s determination that he had one unfitting condition.  The condition was rated less than the 30% threshold for a medical retirement.  Therefore, the PEB disposed of the applicant’s unfitting condition with a disability rating of 20% and offered him discharge with severance pay.  The applicant appealed the decision.  The Secretary of the Air Force’s Personnel Council (SAFPC) concurred with the PEB’s findings.  The applicant has not submitted any new or compelling information that was not considered by the PEB or SAFPC.  While the applicant argues the semantics of listings and ratings of his Lumbago due to Degenerative Disc Disease associated with Radiculopathy, it will not affect the disposition.  Any changes in disability ratings or any additional conditions are between the applicant and the Department of Veterans Affairs.  The applicant has not provided evidence of in inequity of impropriety in the IDES processing. 

The complete advisory opinion is at Exhibit K.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 4 Dec 19 for comment (Exhibit L), and the applicant replied on 23 Dec 19.  In his response, through counsel, the applicant contends the advisory fails to address his medical conditions at the time of his separation and dismisses his back pain as semantics.  The applicant contends the PEB should have followed the Veteran’s Affairs Schedule or Rating Disabilities ratings and found his other conditions unfitting, which would have resulted in a medical retirement. 

The applicant’s complete response is at Exhibit M.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendation of the BCMR Medical Consultant and finds a preponderance of the evidence does not substantiate the applicant’s contentions. Additionally, the Board notes counsel contends the PEB should have followed the VASRD and found other conditions unfitting, however, the applicant exercised his right to appeal the decision and the Secretary of the Air Force agreed with the decision of the PEB.  In this respect, under the presumption of regularity, it is assumed that responsible officials carried out these tasks in accordance with the provisions of the prescribing directives and the applicant was afforded all of his due process rights.  Therefore, the Board recommends against correcting the applicant’s records.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2012-05273-3 in Executive Session on 20 May 20:

Panel Chair 
Panel Member
Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit G:	Record of Proceedings, w/ Exhibits A-D, dated 13 Aug 13.
Exhibit H:	Addendum to Record of Proceedings, w/ Exhibits E-F, dated 26 Jul 16.
Exhibit I:	Application, DD Form 149, w/atchs, dated 28 Jul 19.
Exhibit J:	Documentary evidence, including relevant excerpts from official records.
Exhibit K:	Advisory opinion, AFPC/DP3SP, dated 19 Nov 19. 
Exhibit L:	Notification of advisory, SAF/MRBC to applicant, dated 4 Dec 19.
Exhibit M:	Applicant’s response, dated 23 Dec 19.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings related to Docket Number BC-2012-05273-3, as required by AFI 36-2603, paragraph 4.11.9.