RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2014-01872 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
The applicant requests a change in his disability rating from 30% to 60%.

APPLICANT CONTENDS THAT:
The medical board made the final ruling of permanent retirement without reviewing his dramatically changing medical condition. He had a second heart surgery (January 2012) that should have been considered, but since his case had already been assigned to the Personnel Council for review, the Air Force Personnel Center (AFPC) would not introduce new information into the decision process. He believes this is evidenced by AFPC acknowledging they received a large fax pertaining to his case but they did not review it. In 2013, the Department of Veterans Affairs (DVA) awarded him a disability rating of 60% for the same conditions that he was medically retired for at 30%.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:
On 27 Dec 95, the applicant entered the Regular Air Force
On 2 Dec 10, the Medical Evaluation Board (MEB) recommended the applicant continued on active duty. The case was referred to the Informal Physical Evaluation Board (PEB)

On 22 Mar 11, the Informal PEB found the applicant had unfitting conditions and recommended permanent retirement with  a compensation rating of 30%. The applicant nonconcurred with this recommendation and appealed to the Formal PEB.

On 10 May 11, the Formal PEB found the applicant did not have unfitting conditions and recommended he be returned to duty. The applicant concurred with this recommendation.

On 17 Feb 12, the Secretary of the Air Force Personnel Council (SAFPC) directed the applicant be permanently retired with a disability rating of 30%.

On 30 Mar 12, the MEB found the applicant unfit for further military service and the Secretary of the Air Force recommended permanent retirement.

On 28 Aug 12, the applicant was relieved and permanently disability retired, effective 29 Aug 12, with a 30% disability rating, and was credited with 16 years, 8 months, and 2 days of active service.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits C and D.

AIR FORCE EVALUATION:
AFPC/DPFD recommends denial, indicating there is no evidence of an error or injustice. The Informal PEB reviewed the applicant’s case and determined his condition was unfitting for continued military service and recommended permanent medical retirement with a disability rating of 30% for diagnosis of status-post aortic heart valve replacement with aortic root replacement, requiring anticoagulation with Coumadin. The applicant non-concurred with the Informal PEB and requested a formal hearing with counsel. The Formal PEB reviewed the case file to include medical records. The Board noted the applicant contended he was not unfit for further military service and wanted to be returned to duty. With the new medical evidence submitted by the member, a formal hearing was not required and the Formal PEB held a summary adjudication of his case. The Formal PEB found him fit and recommended return to duty. Because applicant was on life-long Coumadin, his case was referred to SAF/PC for review. SAF/PC directed the applicant be permanently retired with a disability rating of 30%, noting the risk factors particularly relevant in the context of the austere operational conditions and unrelenting physical stressors confronting all members of today's Air Expeditionary Force.

The Department of Defense and the DVA disability evaluation systems operate under separate laws. Under Title 10, USC, PEBs 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, 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 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. Documents submitted by the applicant regarding his DVA rating for delusional disorder was increased to 50% this year. No other DVA documents were submitted.

A complete copy of the AFPC/DPFD evaluation is at Exhibit C.
The AFBCMR Medical Consultant recommends granting relief, indicating there is evidence of an error or injustice. In March 2011, the applicant was found unfit by the Informal PEB and rated 30%, based upon the need for lifelong anticoagulation and an [preoperative] ejection fraction of “about 45%.” In January 2012, prior to the final disposition by SAFPC, and prior to the applicant’s date of retirement, he underwent additional cardiac surgery and was found to have a change in ejection fraction to a new low of “30 to 45%.” We’re now aware that the data of 27 Jan 12, was not considered by the SAFPC in its review. The Medical Consultant believes that had the most current medical evidence been made available to the SAFPC prior to its decision, a different final disposition would have been reached.

Regarding rating criteria for Diseases of the Heart, the ejection fraction data prior to the applicant’s retirement fell within the criteria for a 60% disability rating. The Medical Consultant concedes the variability in the applicant’s ejection fractions of record over time suggests some uncertainty in the stability of his medical condition versus variability in interpretation of the ejection fraction by different individuals. Therefore, as a matter of practicality and consistency, noting the DVA also conducted an echocardiogram one year later in July 2013, and retained the 60% rating [suggesting some level of stability], the Medical Consultant recommends amending the record to reflect the applicant was retired permanently with a 60% disability rating, under VASRD code 7016.

A complete copy of the SAF/MRB evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluation(s) was/were forwarded to the applicant on 23 Jan 15 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.
3.	Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting changing the applicant’s permanent retirement compensation rating of 30% to 60%. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice. While we note the comments of AFPC/DPFD indicating that relief should be denied because the applicant’s records contain no documentation substantiating the applicant’s contention that _the compensation percentage should be increased, we believe a preponderance of the evidence substantiates that corrective action is warranted. In this respect, we took particular note of the advisory prepared by the AFBCMR Medical Consultant, who recommends changing the applicant’s records based upon the applicant’s additional heart surgery and the resulting data documenting his worsening condition, which was not available to SAFPC prior to final disposition of the applicant’s case. The Board concluded it is reasonable to believe the final disposition of the applicant’s case would have been different if the additional information had been considered. Therefore, we recommend the applicant’s records be corrected as indicated below.

THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that

a.	On February 17, 2012, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was VASRD code 7016, rated at 60%; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received as a direct result of armed conflict or caused by an instrumentality of war.

b.	On August 28, 2012, he was released from active duty by reason of physical disability with a 60 percent compensable disability rating, and permanently retired effective August 29, 2012.

The following members of the Board considered AFBCMR Docket Number BC-2014-01872 in Executive Session on 21 May 15 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member
All members voted to correct the records as recommended. The following documentary evidence was considered:

Exhibit A.	DD Form 149, dated 6 Feb 14, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DPFD, dated 12 Aug 14. Exhibit D.	Memorandum, SAF/MRBC, dated 22 Dec 14. Exhibit E.	Letter, SAF/MRBR, dated 23 Jan 15.