RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02095 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His honorable discharge be changed to a medical retirement. APPLICANT CONTENDS THAT: He was never provided a medical evaluation board (MEB) or physical evaluation board (PEB), as requested by his medical team, prior to his separation. He has since been found 80 percent disabled by the Department of Veterans Affairs (DVA). He has had multiple major surgeries due to his service connected disabilities, which included shoulder surgery, major spine surgery on his neck, ankle reconstruction surgery, and several others. He should have been placed on medical hold until he was properly processed through a MEB. Although his attending physician listed on his exit physical that he had a pending MEB and it was appropriate for his condition, he was separated from the military without a MEB. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 22 May 2007. On 21 May 2011, the applicant was furnished an honorable discharge, with a narrative reason for separation of “Completion of Required Active Service,” with a separation program designator (SPD) code of “MBK” and Reentry Code of “1J” (Eligible to reenlist but elected to separate). He was credited with four years of active service. The remaining relevant facts pertaining to this application are described in the letter prepared by the BCMR Medical Consultant, which is attached at Exhibit C. AIR FORCE EVALUATION: BCMR Medical Consultant recommends denial. It is admittedly noted that there is no documented reason for not conducting a timely MEB, other than it appears that time ran out. The applicant’s telephone inquiry of 16 March 2011 to proceed with an MEB and the report indicating that “neurosurgery is going to take time,” suggest possible contributory unclean hands. On 7 May 2013, a DVA rating decision was issued on behalf of the applicant showing that he had been assigned a 30 percent disability rating for Obstructive Sleep Apnea (OSA), effective 22 May 2011, the day after his discharge; which was increased to 50 percent from 28 December 2013. He was also assigned a 30 percent disability rating for Depression from 22 May 2011, a 10 percent rating status-post right shoulder subacromial decompression, a 10 percent rating for left ankle condition with osteochronral lesion talus, a 10 percent rating for tinnitus, a 10 percent rating each for left and right upper extremity radiculopathy with carpal tunnel syndrome, and a 10 percent rating for cervical degenerative disc disease from 22 May 2011, which was briefly increased to a 100 percent from 9 January 2014, then back to 10 percent on 1 March 2014. Zero percent ratings were assigned for lumbar degenerative arthritis with thoracic stenosis, a right wrist condition, and hemorrhoids. The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseased or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” time of separation and not based on post-service progression of disease or injury. In accordance with Department of Defense Instruction (DoDI) 1332.32, Physical Disability Evaluation, a service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating to include duties during a remaining period of reserve obligation. In this case, the applicant’s conditions of OSA and depression, rated highest by the DVA, have shown no duty restrictions imposed by the applicant’s military healthcare providers. Had the MEB been pursued, it is likely that OSA would not have been found unfitting by a PEB. Additionally, the depression, due to its well-controlled status and without prohibition of deployability, would also likely not have been found unfitting. While the evidence indicate the applicant received treatment for his right shoulder pain s/p subacromial decompression, left upper extremity weakness [secondary to radiculopathy], left ankle condition s/p treatment of osteochondral lesion of the talus, and cervical [multi-level] degenerative disc disease, none of his providers imposed duty restrictions of a sufficient level or duration to warrant referral for MEB/PEB processing. Specifically, no AF Forms 422, Physical Profile Serial Report, or AF Forms 269, Duty Limiting Condition Reports, are supplied to depict existence of a medical condition prohibiting worldwide qualification. The only reference to a MEB being conducted in the record was first made by the applicant via a telephone consult on 16 March 2011 and by one of his providers on 4 April 2011 while conducting his separation physical examination 30 days prior to his date of separation. There are instances in which a service member with an approved discharge date may be placed on medical hold to complete appropriate medical assessments and treatment; particularly in the instance of a life, limb, or vision-threatening ailment; also noting his provider’s implicit promise that an MEB was ‘underway’. However, the applicant is advised that IAW AFI 41-210, TRICARE Operations and Patient Administration Functions, while medical hold is defined as a method of retaining a service member beyond an established retirement or separation date for reason of disability processing, it “will not be used for the purpose of evaluating or treating chronic conditions, performing diagnostic studies, elective treatment of remedial defects, non-emergency surgery or its subsequent convalescence, civilian employment issues, preservation of terminal leave, or for any other condition which does not warrant termination of active duty.” The applicant is advised that operating under a different set of laws, Title 38, U.S.C., the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to [and independent of] its demonstrated or proven impact upon a service member’s retainability, fitness to serve, or the intervening period since the date of separation. It allows awarding compensation ratings for all conditions that were found service-incurred; even those initially rated at zero percentage, depicting no demonstrable functional impairment on examination that may later progress. For this reason, the DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given service connected medical condition may vary over the lifetime of the veteran. A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He argues that by regulation there is a requirement for a snapshot of all medical conditions to be evaluated. He was advised that he was being processed for a MEB and would be placed on medical hold if not completed in a timely manner. At the time of his separation he had multiple conditions which would be deemed unfitting by even the most incompetent bystander. An accurate snapshot of his physical condition at the time of separation would be the multiple conditions and incredible pain he suffered. He not only had a lesion of the Talus but a torn ligament that took major reconstructive surgery with anchors, sutures, and the removal of part of his Talus. His surgery should have been done while he was on active duty; however, it was not performed until three years after his separation because his insurance was unwilling to cover the cost. His condition was considered pre-existing from his military service. His anxiety and depression stems from his poor health and future uncertainty. He is asking for what should have been rightfully done at the time of his separation. Both his acute and chronic injuries should have been evaluated as stated by at least three physicians. He does not see how time can “run out” when many of his injuries initially occurred several years before he separated. Applicant’s complete response, with attachment, is at Exhibit E. 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 error or injustice. The applicant contends his health issues warranted a medical retirement; however, he was allowed to separate from the military pending a medical evaluation. However, after a thorough review of the evidence of record and the applicant’s complete submission, to include his rebuttal response, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant’s is not a victim of an error or injustice. While the applicant argues that his conditions are related to his service, he has not presented sufficient evidence that his conditions would have resulted in his referral to a MEB/PEB. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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 in Executive Session on 3 March 2015 and 30 March 2015, under the provisions of AFI 36-2603: Panel Chair Member Member Due to the retirement of the Panel Chair, XXXX has agreed to sign as Acting Panel Chair. The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 10 May 2014, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Letter, BCMR Medical Consultant, dated 6 January 2015. Exhibit D.  Letter, SAF/MRBR, dated 23 January 2015. Exhibit E.  Letter, Applicant, undated, w/atchs.