RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-03700 COUNSEL:	NONE
HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect his medical condition (asthma) be considered “combat related,” and he be given consideration for the additional medical conditions that have been rated by the Department of Veterans Affairs (DVA). Specifically, he had a head injury on active duty, for which he receives 30% from the DVA and bilateral foot pain, for which he receives 10% from DVA. Both conditions were part of his Medical Evaluation Board (MEB) but not included as a reason for his discharge.

APPLICANT CONTENDS THAT:
He has many documented health problems associated with being deployed in Kuwait. Specifically, his respiratory problems were identified on his physical health assessment (indicated by marking “yes” that he I had health concerns after my deployment). He never received any a real follow up to any of it [post-deployment] by a doctor. He has never had respiratory problems until the deployment to Kuwait; with all the sand storms and particles he breathed in. His Department of Veterans Affairs (DVA) doctor said it is very possible that he could have started his respiratory problems in Kuwait, especially if he never had a history of it prior to deployment and no one in his family his Asthma.

There is evidence to show soldiers have had respiratory problems being deployed In Kuwait and the Medical Evaluation Board (MEB) neglected to include that and find it Combat Related at the time and discharged him 10% and later the Physical Disability Board of Review (PDBR) retired him. Additionally, the Air Force didn’t properly do a medical evaluation for his other problems and just pushed him out.  He has Post Traumatic Stress Disorder (PTSD) and a head injury on active duty was never realty evaluated, it was just called migraines.

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

STATEMENT OF FACTS:
On 24 Mar 99, the applicant entered the Regular Air Force.
On 9 Sep 03, a Medical Evaluation Board (MEB) recommended the diagnoses of “severe, persistent asthma, gastroesophageal reflux disease, history of migraine headaches, and tobacco use” be referred to the Informal Physical Evaluation Board (IPEB).

On 7 Nov 03, the applicant was furnished an honorable discharge, and separated for disability, with severance pay, and was credited with 4 years, 7 months, and 14 days of active service. The Physical Disability Board of Review (PDBR) subsequently awarded the applicant retirement with permanent disability in 2010.

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

AIR FORCE EVALUATION:
AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice. The applicant claims his condition was caused by an instrumentality of war. Air Force Regulation 35-4, Military Personnel, PHYSICAL EVALUATION FOR RETENTION, RETIREMENT,
AND SEPARATION, dated 28 Jun 89, states: “the PEB may make a favorable determination if the disability was incurred during a period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.” However, the applicant’s condition was not determined by either the IPEB or the PDBR to be combat related. The fact a member’s disability was incurred during a period of war is not sufficient by itself to support a combat-related determination. There was no evidence in the MEB to support the claim his condition is combat related.

Regarding the applicant’s request to have his conditions of migraines and bilateral foot pain included as reasons for discharge, the IPEB did not find them to be unfitting at the time of discharge. The Department of Defense (DoD) and the Department 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 a person may have a medical condition does not mean the condition is necessarily unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. The IPEB determined  the diagnosis of asthma was the singular unfitting condition, and determined all other referred conditions to be not compensable or ratable at the time of review.

It is recommended to deny the applicant’s request; the preponderance of evidence reflects no error or injustice occurred during the disability process or at time of retirement.

A complete copy of the AFPC/DPFD evaluation is at Exhibit C.
SAF/MRBR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice with regards to the applicant’s request for the designation of his asthma to be “combat-related” [or an “Instrumentality of War”]. DoDI 1332.38, Physical Disability Evaluation, defines the qualifying definition of Armed Conflict [as] “the physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. The fact that a member may have incurred a disability during a period of war or in an area of armed conflict or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.” Within the medical documentation provided, there is no evidence of armed conflict as the definitive cause of the applicant’s unfitting asthma condition.

With respect to the applicant’s request to include other disqualifying diagnoses, including migraine headache and bilateral foot/pain, entries in the MEB summary and progress notes indicating the sole unfitting condition as poorly controlled asthma. While other medical diagnoses may be present at the time of separation, the mere presence does not qualify the disorder or diagnosis as unfitting for continued service.  The  medical reviewer acknowledges medical information which indicates the applicant received episodic care for migraine headaches and other health conditions while on active duty. However, there are no administrative performance records or other administrative or clinical documentation which indicates the applicant was unable to perform his assigned duties apart from the disqualifying asthma condition. The applicant successfully transitioned to an alternate Air Force specialty during the term of active duty service, which further supports the conclusion he maintained a satisfactory level of duty-related performance.

The military service disability systems, operating under Title 10, and the DVA disability system, operating under Title 38, are complementary systems not intended to be duplicative. The DVA operates under a separate set of laws and specifically addresses long term medical care, social support and educational assistance. Thus, the two systems represent a continuum of medical care and disability compensation that starts with entry on to active duty and extends for the life of the veteran. Operating under different laws, with a different purpose, independent decisions/determinations made by the DoD and the DVA are not determinative or binding on decisions made by the other. The mere fact the DVA may grant certain service connected compensation ratings does not establish eligibility for similar action from the Air Force. The DVA is authorized to offer compensation for any medical  condition  without  regard  to  the  member  fitness  or

suitability to serve. By law, payment of DVA disability compensation and military disability pay, for the same medical condition or disability, is prohibited.

It is recommended to deny the applicant’s request for a combat- related assigned to the asthma diagnosis. Further, It is recommended to deny migraine headaches and bilateral foot pain as unfitting conditions.

A complete copy of the SAF/MRBR Medical Consultant evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies	of	the	Air	Force	evaluations	were	forwarded	to	the applicant on 24 Nov 14 and 7 Jul 15 for review and comment within
30 days (Exhibits D and F).	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 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 an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR), and BCMR Medical Consultant, 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-2014-03700 in Executive Session on 26 Aug 15 under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A.	DD Form 149, dated 9 Sep 14, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DPFD, dated 11 Nov 14. Exhibit D.	Letter, SAF/MRBR, dated 24 Nov 14.
Exhibit E.	Memorandum, SAF/MRBR, dated 22 Jun 15. Exhibit F.	Letter, SAF/MRBR, dated 7 Jul 15.