RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05024 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His 20 percent disability rating be increased so he qualifies for a medical retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: He should have received a disability retirement instead of a disability discharge based upon the subsequent disability award of over 30 percent by the Department of Veterans Affairs (DVA). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 23 Sep 81, the applicant entered the Regular Air Force. On 14 Mar 91, a Medical Evaluation Board (MEB) established the following diagnosis: Bilateral Patellafemoral Syndrome, status post Medial Meniscal Tear and Medial Femoral Chondral Tear requiring right knee Arthroscopy, partial Medial Meniscectomy and Medio Femoral Chondroplasty, and recommended the case be referred to a Physical Evaluation Board (PEB). On 18 Mar 91, the applicant signed the AF Form 1185, Statement of Record Data, indicating he had additional comments/ information for the board to consider, he wished to continue his career in the Air Force, and he felt he was fit for duty and would like to be cross-trained into a career field that required less kneeling and bending. On 27 Mar 91, the Informal Physical Evaluation Board (IPEB) found the applicant was unfit for continued military duty due to his diagnosed bilateral patella-femoral syndrome, status post-surgery, physical therapy, and anti-inflammatory medications with little or no relief of member’s symptoms. The Board noted that the applicant’s condition presented the member continued pain and discomfort and limited his ability to adequately perform his duties. In the opinion of the IPEB, member’s condition rendered him unfit for further service and recommended discharge with a disability rating of 20 percent and entitlement to severance pay. On 5 Apr 91, the applicant signed the AF Form 1180, Action On Physical Evaluation Board Findings and Recommended Disposition, agreeing with the findings and recommended disposition of the IPEB. On 29 Apr 91, the applicant was Honorably discharged with a combined compensable disability rating of 20 percent and entitlement to severance pay, having served 9 years, 7 months, and 7 days of active service. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of separation. The applicant was evaluated by the PEB on 27 Mar 91, and recommended the applicant be discharged with severance pay with a disability rating of 20 percent for his unfitting conditions. The applicant concurred with the findings and recommendations of the PEB. As background, the Department of Defense (DOD) and the DVA disability evaluations systems operate under separate laws. Under Title 10, USC, 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. 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. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. Further, the Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of the condition at the time. It is the charge of the DVA to pick up where the military service, 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. Documents submitted by the applicant regarding his DVA rating show his initial rating for his knees was ten percent and increased based on new documents submitted in 2006. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant provided letters from his Section Commander and Orthopedic Surgeon recommending he be allowed to cross-train out of his present career field due to his knees. Also, he stated that his comments, as indicated on the AF Form 1185, were overlooked or ignored by the board, as was his SF 93, Report of Medical History, showing conditions that he had been and was being treated for (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 in judging the merits of the case; however, other than argument and conjecture the applicant has provided no evidence that would lead us to believe that the physical evaluation board (PEB) did not consider all the pertinent facts and evidence available when it determined that a 20 percent disability rating was appropriate for the applicant’s unfitting conditions. While the applicant has provided documentation indicating the Department of Veterans Affairs (DVA) has, years after the applicant’s disability separation, determined that he should be given a higher rating for his unfitting and other conditions, for the reasons cited by the Air Force OPR, we do not find the DVA’s 2006 finding constitutes a determination that the 20 percent disability rating assigned by the PEB in 1991 was somehow inaccurate. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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-2013-05024 in Executive Session on 21 Aug 14, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 16 Oct 13, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Letter, AFPC/DPFD, dated 13 Dec 13. Exhibit D.  Letter, SAF/MRBR, dated 13 Jan 14. Exhibit E.  Letter, Applicant, dated 3 Feb 14, w/atchs. 4 5