RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00325 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His disability discharge with severance pay be changed to a medical retirement. APPLICANT CONTENDS THAT: His current Air Force disability rating was based on conditions that were on-going in which medical services had not been completed. He had other medical conditions that were denied by the Department of Veterans Affairs (DVA) that were recorded in his records. Had those medical conditions along with the new medical conditions been applied towards his Medical Evaluation Board (MEB) his overall disability would have been above 20 percent. During the few months that followed his disability discharge, he was diagnosed with Lymphocytic Colitis, which is a condition currently being vetted through the DVA. Had he been on active duty at the time, the condition should have been included in the MEB case and would have resulted in an increased rating. Finally, medical conditions for which he was being treated were not included in the MEB package which was requested by his provider. At the time of his disability processing he had served over 18 years of service and should have been allowed to continue to serve the required time to achieve a length of service retirement. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 3 Aug 94, the applicant commenced his enlistment in the Regular Air Force. On 23 Mar 12, the applicant underwent an examination for an MEB for Obstructive Sleep Apnea (OSA), Degenerative Disk Disease (DDD), Osteoporosis, and recurrent abdominal pain. The medical provider recommended the applicant meet an MEB due to the requirement for strict profile limitations for fitness and duty. It was noted the applicant was not deployable and could not wear full body gear. On 17 Apr 12, the MEB reviewed the applicant’s case and referred it to the Informal Physical Evaluation Board (IPEB). On 31 May 12, the IPEB reviewed the applicant’s case and found him unfit and forwarded his case to the DVA for a compensation rating. The DVA assigned a combined compensable rating of 20 percent for the applicant’s unfitting conditions and recommended discharge with severance pay. On 25 Sep 12, the applicant concurred with findings and recommendation of the IPEB. On 28 Oct 12, the applicant was furnished an honorable discharge, with a narrative reason for separation of disability, severance pay, non-combat. He was credited with 18 years, 2 months, and 26 days of active service. AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice. The applicant did not appeal to the Formal Physical Evaluation Board (FPEB) or the Secretary Air Force Personnel Council (SAFPC). The applicant provided documents from the DVA, dated 30 Jan 13, which reflects the same disability rating as at the time he was found unfit for his boarded conditions. The Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws. Under Title 10, USC, a PEB must determine if a condition renders a member unfit for continued military 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 individual 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, it must be noted that the service disability boards must rate disabilities based on the individual's condition at the time of evaluation. 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. A complete copy of the AFPC/DPFD evaluation is at Exhibit C. The AFBCMR Medical Consultant recommends denial indicating there is no evidence of an error or injustice. The Medical Consultant concurs with the case analysis by AFPC/DPFD, but notes the applicant’s headaches should have received consideration by the MEB and IPEB as either a primary condition or as associated with the cervical spine fusion. However, at the time of his Compensation & Pension evaluation, the examiner found no diagnosable or quantifiable illness in relation to his medical conditions. The Medical Consultant finds evidence that the applicant's headaches could have been included on the MEB coversheet as a potentially unfitting medical condition, which more than likely would not have increased his overall disability rating. In regards to the applicant' newly diagnosed Lymphocytic Colitis, this microscopic finding alone does not automatically justify a separate unfit finding or the assignment of a higher disability rating under a new or hyphenated VASRD code; at the risk of pyramiding disability ratings for an already established inflammatory or infectious colon condition, diverticulitis, which required a partial colectomy. The disability ratings for the colitis of different types and forms are based upon severity and frequency of clinical presentations. There is no evidence indicating a display of symptoms specifically unique to Lymphocytic Colitis during the applicant's military service, even though the microscopic findings, a mere four months post- service, likely establishes a nexus with his time in military service. Under the provisions of Title 10, United States Code (U.S.C.), the Military Department can only assign disability ratings based upon clinical findings present at the "snap shot" time of final military disposition; and not upon future occurrences or post- service progression of disease. The DVA operates under the provisions of Title 38, U.S.C., is empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating for a given medical condition, as its severity or level of impairment may vary over the lifetime of the veteran. This includes possible future increases in ratings for conditions previously rated at zero percent. In regards to the applicant’s request for a length of service retirement, the Medical Consultant finds the applicant has not met the burden of proof of error or injustice that warrants a length of service retirement. A complete copy of the Medical Consultant’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant argues the advisory opinion is not accurate. Prior to 2009, he was a strong, healthy and active service member with a great record and potential for promotion to SMSgt. When he returned from Iraq in 2009 his health started to decline. He underwent three major surgeries but continued to experience pain throughout various parts of his body. During this stressful time, he suffered from depression and anxiety and was diagnosed with an adjustment disorder. Also, he was embarrassed because he was "MSgt who couldn't do anything" which made him feel that he was not part of the unit. With all that he was going through when the results came in for separation he just accepted it to rid himself of the situation. He did not elect an impartial review board because the MEB office told him that it was just a review and it doesn't change anything. The physician assistant did not do her duties appropriately. He had a new range of motion exam conducted by the DVA which more accurately reflects his range of motion. It shows his neck is significantly affected and his lower back moderately affected. He has submitted this information with his appeal and believes it will result in an increase is his rating. Although the physician assistant indicated he was not having migraines; his current physician disagrees and has prescribed medication for migraines, which he is currently taking. While the advisory writer indicates he would more than likely not get a rating or a zero rating for his migraines, he disagrees based on the severity of his migraines and cluster headaches which he often experiences. His migraines are being reconsidered in his appeal and it is expected to increase in rating. His rating for the hemicolectomy was increased to 40 percent which is the highest rating for this condition. Since the rating was a reflection based on severity and military service, had this been reflected during the MEB process, this would have resulted in an increase in the rating resulting in a medical retirement instead of medical separation. The applicant’s complete response, with attachments, 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. The applicant alleges he should have received a disability rating to allow him to receive a medical retirement. We took notice of the applicant’s complete submission, to include his rebuttal response, in judging the merits of the case; however, we do not find the evidence presented sufficient to override the rationale provided by the Air Force office of primary responsibility and the AFBCMR Medical Consultant. We found no evidence of an error or injustice in the applicant’s disability discharge processing. The applicant was separated for unfitting conditions that interfered with his ability to continue to serve on active duty and was rated based on the seriousness of his conditions at the time of separation in accordance with governing policy. Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their 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-2014-00325 in Executive Session on 27 Jan 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-00325 was considered: Exhibit A. DD Form 149, dated 21 Jan 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFD, dated 7 Feb 14. Exhibit D. Memorandum, AFBCMR Medical Consultant, dated 18 Sep 14. Exhibit E. Letter, SAF/MRBR, dated 7 Oct 14. Exhibit F. Letter, Applicant, dated 15 Oct 14, w/atchs.