RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00872 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His medical discharge with severance pay be upgraded to a medical retirement with 30% or more disability rating. APPLICANT CONTENDS THAT: Four of his service connected conditions were not included in his Air Force Medical Discharge with Severance pay that are known to be unfitting for military duty. The condition of myofascial pain syndrome (fibromyalgia), cervical strain (left), right hip strain and left knee patellofemoral syndrome were not included as chief complaints in his Medical Evaluation Board (MEB); however, there were later rated by the Department of Veterans Affairs (DVA). As of the date of this application, his right hip strain has developed into degenerative joint disease in both hips with limitations of extensions. He strongly believes that the excluded these four previously mentioned conditions resulted in an unjust MEB decision and had they been included his 10% rating would have been increased to 30% and instead of being medically separated, he would have been medically retired. With regards to the timeliness of this application, he submits that on 20 May 14 Congress enacted legislation to ensure the DoD ensure the accuracy and fairness of combined disability ratings of 20% or less for service members who were discharged between 11 Sep 01 and 31 Dec 09. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 29 Apr 02, the applicant entered the Regular Air Force. On 16 Oct 06, the Informal Physical Evaluation Board (IPEB) reviewed the applicant’s case and recommended Discharge with Severance Pay (DWSP) with a rating of 10% for diagnosis of Chronic Low Back Pain due to Myofascial Pain Syndrome. On 19 Oct 06, the applicant non-concurred with the IPEB’s findings and requested a formal hearing. On 15 Nov 06, the Formal Physical Evaluation Board (FPEB) reviewed his case file with medical records and recommended DWSP with a disability rating of 10% for Chronic Low Back Pain due to Myofascial Pain Syndrome. On 15 Nov 06, the applicant requested his case, with rebuttal, be sent to the Secretary of the Air Force Personnel Council (SAFPC) for review. On 19 Dec 06, the SAFPC directed the applicant be discharged and receive severance pay with a disability rating of 10%. On 29 Jan 07, the applicant was furnished an Honorable discharge, and was credited with four years, nine months, and one day of active service. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force office of primary responsibility (OPR) and BCMR Medical Consultant which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPFDD recommends denial indicating there is no evidence of an error or an injustice. Throughout the PEB process, the applicant’s only contention was he should have been permanently retired with a combined 40% disability rating for Myocardial Bridging of Left Anterior Descending Coronary Artery. SAFPC lists this condition on the AF Form 356 under Category II conditions and determined the abnormality “Existed prior to service and not permanently aggravated by military service.” On 11 Aug 06 the applicant signed the AF Form 618, Medical Board Report, stating he has been informed of the findings and recommendations of the Medical Board. Additionally, the applicant did not mention or contest additional medical conditions in the 3 letters he provided to the MEB, FPEB, and SAFPC. At no point during the applicant’s MEB/PEB process were the conditions: cervical strain (left), right hip strain, and left knee patellofemoral syndrome discussed. Under the Integrated Disability Evaluation System (IDES), the DVA is tasked with assigning a disability percentage for each service connected medical condition claimed by the service member. The services then utilize the percentage(s) assigned to the condition(s) that renders the service member unfit for continued military service to arrive at a recommended disposition. If the service member has less than 20 years of active service and the rating is less than 30%, the recommended disposition is DWSP. 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 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. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. It must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation--in essence a snapshot in time. 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/DPFDD evaluation is at Exhibit C. The AFBCMR Medical Consultant opines the applicant has not met the burden of proof necessary to warrant the desired change of the record. The Medical Consultant noted an absence of evidence showing either of the requested additional medical conditions resulted in duty restrictions of a sufficient level, e.g., “4T” level profile, or duration, e.g., 365 days or greater, that prohibited worldwide qualification. The Medical Consultant also notes that previous advisory opinions from HQ AFPC/DPFD, USAF Physical Disability Division, have also addressed the applicant’s request for inclusion of additional medical conditions in the disability rating computation; in the context that the Department of Veterans Affairs (DVA) awards compensation for any service-incurred medical condition and that the ratings are based upon the clinical presentation at the time of DVA evaluation; as opposed to the final examinations conducted at or about time of release from military service or conducted in conjunction with the MEB process. Addressing the applicant’s expressed desire for a medical retirement, 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 diseases 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 time of separation and not based on future occurrences. Although Military Departments have been accused of “cherry-picking” disabilities in the past, all are reminded that the mere existence of a given medical diagnosis does not automatically warrant an unfit determination; even if listed as potentially disqualifying under versions of AFI 48-123, Medical Examinations and Standards. Department of Defense Instruction 1332.32, Physical Disability Evaluation, Enclosure 3, Part 3, Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification, in effect at the time of the applicant’s service, reads: ”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 (hereafter called duties) to include duties during a remaining period of Reserve obligation.” This latter policy statement is retained under most current policy, DoDI 1332.18, Disability Evaluation System, 5 Aug 14, and includes two additional criteria, which read: “b. A Service member may also be considered unfit when the evidence establishes that: (1) The Service member’s disability represents a decided medical risk to the health of the member or to the welfare or safety of other members; or (2) The Service member’s disability imposes unreasonable requirements on the military to maintain or protect the Service member. With respect to evidentiary standard for determining unfitness because of disability, under DoDI 1332.18, “The Secretary of the Military Department concerned must cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability.” Additionally, “With the exception of presumption of fitness cases, the Secretary of the Military Department concerned will determine fitness or unfitness for military service on the basis of the preponderance of the objective evidence in the record.” Although the applicant may have been evaluated or treated for additional medical conditions during his military service, the preponderance of supplied evidence of record indicate, but not for his recalcitrant low back pain, his other ailments were not so severe as to disqualify him from worldwide duty to the extent or duration that warranted referred for MEB/PEB processing; as would be noted in the service treatment record, MEB narrative summary, or medical administrative documents, such as the AF Form 422, Physical Profile Serial Report, depicting a functional impairment of a sufficient level of restriction e.g., “4T” level, or duration, to warrant an MEB or under current practices, issuance of an AF Form 469, Duty Limiting Condition Report, and referral for review by a Deployment Availability Working. Addressing the applicant’s newest request for a separate compensation ratings for chronic back pain and myofascial pain syndrome [fibromyalgia], although listed as separate diagnoses with its own unique ICD code on the AF Form 618, Medical Board Report coversheet, the Medical Consultant opines the symptoms experienced by the applicant, absent an identifiable anatomic defect, were appropriately characterized, for disability rating purposes, under a single unifying diagnosis, as doing otherwise would constitute pyramiding disability ratings. Chronic pain is a symptom, while myofascial pain syndrome is a likely an appropriate unifying diagnostic explanation of the pain. In fact, a medical entry from June 13, 2015 indicates the applicant was “9 months out” from his initial injury (MVA) that he had a negative MRI scan, and that physical therapy, nonsteroidal anti- inflammatories, pain medications, and muscle relaxants were “not doing anything for him.” The provider entered the diagnosis as “Chronic LBP (myofascial pain syndrome).” The Consultant also acknowledged the applicant’s reference to a diagnosis of fibromyalgia. In order for the applicant’s medical condition to be separately or individually characterized as fibromyalgia, as noted in his memo of June 15, 2015, the diagnosis must be made by a rheumatologist. No evidence is supplied to indicate that such diagnostic evaluation or conclusion was reached during the applicant’s period of service by a rheumatologist. Moreover, although both myofascial pain syndrome and fibromyalgia may present as pain and soft-tissue tender points, the fact that the applicant’s symptoms were limited to a specific anatomic location makes a diagnosis of fibromyalgia unlikely. On the other hand, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the Department of Veterans Affairs (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 narrative reason for separation. This is the reason why an individual can be found unfit for release from military service for one reason and yet sometime thereafter receive compensation ratings from the DVA for one or more additional service- connected, but not militarily unfitting conditions. The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may change (improve or worsen, affecting future employability) over the lifetime of the veteran. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation and BCMR Medical Consultant were forwarded to the applicant on 27 Oct 15 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. FINDINGS AND CONCLUSIONS OF THE BOARD: Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice. We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application. Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application. Accordingly, we find the application untimely. THE BOARD DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. The following members of the Board considered AFBCMR Docket Number BC-2015-00872 in Executive Session on 2 Feb 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00872 was considered: Exhibit A. DD Form 149, dated 27 Feb 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFDD, dated 14 Apr 15. Exhibit D. Memorandum, SAF/MRBC, dated 15 Oct 15. Exhibit E. Letter, SAF/MRBR, dated 27 Oct 15.