RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01659 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His 10% disability rating from the Air Force be changed. ________________________________________________________________ APPLICANT CONTENDS THAT: The 10% disability rating he was given was not accurate and fair. It was based solely on one medical issue and not his entire medical and mental problems. Upon his release from the Air Force, the Department of Veterans Affairs (DVA) rated him as 100% disabled. The severity and long-term impact of these disabilities in his life have been drastic. The DVA exams and 100% disabled rating confirmed his belief that the Air Force 10% rating was incomplete and inaccurate. These inconsistencies need to be reviewed and considered. The applicant did not submit any additional documents in support of his request, however, he states on his DD Form 149 that his Air Force, civilian, and DVA medical records are available upon request, if needed. The applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to copies of documents extracted from the Automated Records Management System (ARMS), the applicant is a former member of the Regular Air Force who enlisted on 21 August 1996. He served as a diagnostic imaging craftsman, and was progressively promoted to the rank of Technical Sergeant, (TSgt), E-6. On 26 February 2007, the applicant was processed by a Medical Evaluation Board (MEB) to evaluate back pain, incurred during a fitness evaluation, which seriously interfered with his military duties. On 25 April 2007, the Informal Physical Evaluation Board (IPEB) evaluated the applicant’s case and recommended discharge with severance pay with a disability rating of 10% for chronic low back pain, with disc extrusion and L5-S1 under the Veterans Administration Schedule for Rating Disabilities (VASRD) code 5243. On 30 April 2007, the applicant agreed with the findings and recommended disposition of the IPEB and waived his right to a formal PEB hearing. The applicant was released from active duty on 11 June 2007, with an honorable characterization of service, a separation code of “JFL” and a narrative reason for separation of “Disability, Severance Pay.” He was credited with 10 years, 9 months, and 21 days of active duty service. The remaining relevant facts pertaining to this application, extracted from the applicant’s military personnel records are contained in the letter prepared by the appropriate offices of the Air Force at Exhibits C and F. ________________________________________________________________ AIR FORCE EVALUATION: 1. AFPC/DPFD recommends denial. DPFD states the preponderance of evidence reflects that no error or injustice occurred during the disability process or the rating applied at the time of the boards. Regarding the applicant’s contention that added medical conditions should have been considered on the medical board, upon review of the case, the narrative summary listed the following conditions as past medical history: hypercholesterolemia, positive TB 2001, depression, chronic bilateral shoulder pain, bilateral knee pain, recurring left ankle sprain, chronic headaches, chest pain, and eye twitch during stress. The Boards may rate any condition they find that renders the service member unfit for service. 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. In this case, there was no evidence of any additional unfitting conditions and the applicant did not petition to add any additional conditions during the disability evaluation processing. If the applicant had disagreed with the IPEB's recommendation, he could have requested a hearing with the Formal Physical Evaluation Board (FPEB) and even have his case forwarded to the Secretary of the Air Force Personnel Council (SAFPC) for their review and finalization. The applicant did not exercise these options. 2. The Department of Defense (DoD) and 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 military service relating to their office, grade, rank or rating. 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 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 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 changes in the severity of a condition. This often results in different ratings by the two agencies. The complete AFPC/DPFD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In an undated letter submitted in support of his appeal, the applicant states that at the time he had to decide whether to go to the medical board in person he was also vulnerable to be released from the Air Force because he was exempt from the running portion of the fitness test because of his back condition. He did not know whether his release would be a medical discharge or an administrative discharge. Even though he disagreed with the 10% rating, he chose the lesser of two evils. That is why he agreed with the rating instead of fighting, then, for a higher rating. The snapshot of his health at the time was not thorough. There were multiple indicators of his depression, stress, anxiety, being tired, not sleeping well and other health problems. Following his release from the Air Force the DVA did a full physical and found numerous things wrong with him, to include but not limited to, sleep apnea, severe depression, hypothyroidism, migraines, low testosterone, and his back and neck problems. These all should have been accounted for but were not. He requests a thorough, accurate, and fair rating based on all his conditions at that time. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: 1. The AFBCMR Medical Consultant recommends denial. The Medical Consultant states that when considering the totality of evidence, to include the applicant's impending administrative discharge, his 10-year history of lumbar pain, the only condition which rendered him non-worldwide qualified (WWQ); the uncontested agreement with the MEB by signing the AF Form 618, Medical Board Report; the uncontested agreement with the findings of the IPEB; and the relative escalation of clinical symptoms only after initiation of MEB proceedings, the Medical Consultant found the evidence of unfitness for the long list of the applicant's other conditions unproven. 2. On 26 February 2007, the AF Form 618 coversheet indicated the convening date of the applicant's MEB, with “Back Pain” as the only listed condition under review. The applicant signed the document indicating his awareness or concurrence with the medical condition presented for MEB processing. Thereafter, the evidence shows the applicant continued to receive medical assessments of various complaints after the dictation and convening of his MEB. For example, on 1 March 2007, he was seen by a headache specialist, with a reported 5-month history of continuous daily headaches. On 2 March 2007, the applicant provided a memo to the MEB, conceding he has “had problems with his back going on 10 years” but that “over this past year the problems have greatly increased,” limiting him in the performance of his primary duties and quality of life, as well as affecting his weight and fitness performance. On 30 March 2007, the applicant presented again with a “history mostly lumbar spine symptoms with radiculopathy” but also “does have mild cervical radicular symptoms as well.” The provider noted, “his main complaint of symptoms today is related to his right shoulder with general pain; no history of trauma but about 6 months of symptoms; wakes from sleep; and he also has bilateral knee symptoms anterior in nature with no effusions locking or instability as well as symptoms with squatting kneeling and climbing stairs. 3. On 23 April 2007, the applicant presented for cervical spine range of motion measurement for purposes of his MEB. The record indicates that he reported experiencing multiple other somatic complaints as well, to include “tingling/numbness, weakness, headaches, dizziness, syncope, neck pain, visual disturbances, tinnitus, and nausea. His neck pain was characterized as 2/10 in severity, “dull constant ache static, localized, intermittent, 6/10, sharp at C7.” “Pain is aggravated with movement” but eased with sitting.” 4. The only trigger of record for MEB processing was for the final “L4” profile assigned for the applicant's back pain, which had been recurrent for nearly 10 years; but may have only become an issue when concurrently confronted with an administrative discharge due to failures in the Fitness Assessment Program. Thus, while it is evident that the applicant experienced multiple recurrent somatic complaints over a several year period for which he received treatment, except for the lumbosacral pain, none were shown to have interfered with his military service to the extent or duration that warranted disqualification for worldwide duty or inclusion in the MEB proceeding for further processing through the Disability Evaluation System. 5. On 25 April 2007, the Informal Physical Evaluation Board (IPEB) found the applicant unfit for further military service due to chronic low back pain, with disc extrusion of L4-5 and L5-S1, and recommended discharge with severance pay with a 10% disability rating. The applicant agreed with the recommended findings and disposition of the IPEB under his signature on the AF Form 1180, dated 30 April 2007. On 8 May 2007,the applicant completed his Separation History and Physical Examination, at which time he listed his physical and mental complaints, as “back (upper, middle, lower) pain, neck problems, shoulder and knee pain, weight gain, migraines, shortness of breath, chest pains, depression, cracked feet (heels).” In response to the question of whether he had any illnesses or injuries that caused him to miss duty for longer than 3 days since his last examination, the applicant responded “back pain.” 6. On 17 August 2007, the applicant received an evaluation by a DVA provider for a complete listing of his chief complaints. On 9 October 2007, the DVA granted service connection and disability compensation ratings for the following medical conditions: 50% disability rating for adjustment disorder with recurrent depression, 30% rating for migraine headaches, 20% disability rating for recurrent cervical spine strain, 20% rating for recurrent thoracolumbar strain, 10% rating for each shoulder strain with impingement, 10% each upper extremity radiculopathy with residuals, 10% each bilateral lower extremity radiculopathy, 10% for each knee [patella femoral syndrome with tendonitis], 10% for left ankle sprain, 10% for pes planus, each foot, and 10% for recurrent tinnitus. On 17 November 2007, the applicant underwent a polysomnogram after reporting a history of snoring, difficulty sleeping at night, and excessive daytime sleepiness. The sleep study revealed severe obstructive sleep apnea (OSA). He was prescribed continuous positive airway pressure (CPAP) and advised to lose weight 7. Reflecting upon the multiple disability ratings awarded by the DVA, the Medical Consultant concedes to the appearance of “cherry-picking” disabilities by the Military Department. For example, there is evidence that the applicant experienced pain in a separate segment of his spine [C-spine], with radiographic evidence of degenerative disc disease, similar to that found in his lumbosacral spine. Moreover, although the DVA assigned a 20% disability rating for the applicant's cervical spine degenerative disease and a higher rating for his thoracolumbar spine, the evidence shows the applicant's service and thoracolumbar spine range of motion would fall within the 10% rating, if both were found unfitting; excluding factors not documented at the time of the applicant's military service, e.g., other disturbances of function, such as gait or weakness upon repetitive usage, referred to as “Deluca factor.” 8. Attention is directed to an extract from Department of Defense Instructions 1332.38, enclosure 3, part 3, paragraph E3.P3.3.4, Cause and Effect Relationship, which may help explain this situation: “Regardless of the presence of illness or injury, inadequate performance of duty, by itself, shall not be considered as evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors.” The Medical Consultant found no cause and effect relationship between the applicant's migraine headaches, upper and lower extremity reported radicular complaints, ankle pain, bilateral patella-femoral syndrome, pes planus, tinnitus, bilateral shoulder ailment, or indeed his intervening adjustment disorder, and the cause of the termination of his career; none which his providers assigned profile restrictions of a sufficient level or duration to warrant inclusion as disqualifying during the time of the applicant's service or the preparation of his MEB. The Medical Consultant is somewhat troubled by the exclusion of the applicant's cervical spine as a separate ratable segment, but found the evidence proving individual unfitness inconclusive; despite the additional attention made by the service provider who requested cervical spine range of motion measurements, presumably for inclusion in the MEB proceeding. 9. On the other hand, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the DVA is authorized to offer compensation for medical condition(s) determined as service incurred, without regard to and independent of its demonstrated or proven impact upon a service member's retainability or fitness to serve. This is the reason why an individual can be found fit or unfit for release from military service for one reason and yet sometime thereafter, or immediately post-service, receive compensation ratings from the DVA for one or more service-connected, but not militarily unfitting conditions. The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran. The complete AFBCMR Medical Consultant evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 26 June 2013 for review and comment within 30 days (Exhibit G). To date, a response has not been received. ________________________________________________________________ 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 his rebuttal, in judging the merits of the case; however, we find no evidence of error in the discharge process and after thoroughly reviewing the documentation that has been submitted in support of applicant's appeal, we are not persuaded he has suffered from an injustice. We note the applicant’s contention that there were multiple indicators of his depression, stress, anxiety, being tired, not sleeping well and other health problems. However, we also note that the BCMR Medical Consultant states that he found the evidence of unfitness for the long list of the applicant's other conditions unproven. Additionally, the applicant has not provided evidence to establish these conditions were present and deemed unfitting at the time of his separation and had a cause and effect relationship with the conclusion of his military service. Based on the above comments, we agree with the Air Force office of primary responsibility and the BCMR Medical Consultant’s assessment that the applicant has not been the victim of an error or injustice. Accordingly, the applicant’s request is not favorably considered. ________________________________________________________________ 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 this application in Executive Session on 28 January 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2013-01659: Exhibit A. DD Form 149, dated 19 March 2013. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 30 April 2013. Exhibit D. Letter, SAF/MRBR, dated 6 May 2013. Exhibit E. Letter, Applicant, not dated, w/atchs. Exhibit F. Letter, AFBCMR Medical Consultant, dated 18 February 2013. Exhibit G. Letter, SAF/MRBC, dated 26 June 2013. 1 2