RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-01649
		
 						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His service disability ratings be corrected to reflect the increased percentages awarded by the Department of Veterans Affairs (DVA).

APPLICANT CONTENDS THAT:

His service disability rating percentages should be corrected to reflect the final rating percentages awarded by the DVA given the Physical Evaluation Board (PEB) was unwilling to apply DVA ratings for some conditions.  The overall combined rating should be 75 percent instead of 40 percent.

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

STATEMENT OF FACTS:

The applicant was discharged from the Air National Guard on 25 Feb 14 and permanently retired for reason of physical disability in the grade of Master Sergeant (MSgt, E-7) with a compensable rating for physical disability of 40 percent.  

On 30 Sep 13, the applicant disagreed with the findings and recommended disposition of the Informal Physical Evaluation Board (IPEB) and requested a formal hearing of his case.  

On 10 Dec 13, the Formal Physical Evaluation Board (FPEB) recommended the applicant be permanently retired for physical disability with a compensable rating of 40 percent for unfitting conditions of right hand parasthesias (10 percent), left hand paresthesias (10 percent), right foot parasthesias (10 percent), left foot parasthesias (10 Percent), benign recurrent vertigo with chronic subjective dizziness (0 percent) and diplopia (0 percent).  The remarks section of the AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, states “The Board is unwilling to apply the DVA disability ratings for some conditions but not for others.  The Board is unwilling to wait indefinitely for the pending disability ratings for his diplopia and vertigo.  In accordance with current Disability Evaluation Systems (DES) procedures, the FPEB shall apply a zero percent rating for these conditions.  Upon resolution of his claim with the DVA.  The applicant may apply to the BCMR for correction of his service disability rating percentages.”  

On 19 Dec 13, the applicant agreed with the findings and recommended disposition of the Formal PEB (FPEB).  

Effective 25 Feb 14, he was discharged from the Air National Guard and retired in the grade of MSgt on 26 Feb 14 for permanent disability with compensable percentage for physical disability of 40 percent.  He was credited with 22 years and 12 days service for basic pay.

According to a DVA rating decision memorandum dated 1 May 14, submitted by the applicant, the applicant’s conditions of diplopia and benign recurrent vertigo/subjective dizziness were found to be service connected and assigned compensable disability ratings of 30 percent and 0 percent, respectively.   He received a combined compensable rating of 80 percent for physical disability.  

According to a DVA memorandum dated 14 Jan 15, submitted by the applicant, his appeal resulted in an increase in the disability rating to 10 percent for benign recurrent vertigo/subjective dizziness, effective 24 Jan 12 and service connection for migraines was denied. 

According to a DVA rating decision memorandum dated 16 Mar 15, submitted by the applicant, effective 20 Oct 14, the applicant received the following increases to his disability ratings:  left foot paresthesias from 10 to 20 percent; right foot paresthesias from 10 to 20 percent; left hand paresthesias from 10 to 30 percent; and right hand paresthesias from 10 to 20 percent.  His combined compensable disability rating of 40 percent effective 24 Jul 10 at the time of his retirement, was increased to 90 percent effective 20 Oct 14.  

The remaining relevant facts pertaining to this application are described in the memorandum prepared by the Air Force office of primary responsibility (OPR) included at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial of the applicant’s request to increase his disability rating for conditions of right hand paresthesias, left hand paresthesias, right foot paresthesias, and left foot paresthesias noting the effective dates for the increase in the compensable ratings for these unfitting conditions were a result of an appeal to the DVA and after the FPEB convened.  

AFPC/DPFDD recommends approval of the applicant’s request to increase his disability rating for diplopia and benign recurrent vertigo with chronic subjective dizziness since the effective dates for the rated conditions are prior to the convening of the FPEB.  

On 2 Apr 13, a Medical Evaluation Board referred the applicant to the IPEB.  The IPEB recommended permanent retirement for the applicant’s diagnoses.  The applicant non-concurred with the IPEB findings and requested an FPEB.  The FPEB identified the same unfitting conditions as the IPEB and addressed the applicant’s pending DVA claims on the AF Form 356 and noted in the interest of administrative finality, the board was unwilling to wait indefinitely for the pending disability ratings for his diplopia and vertigo and upon resolution of his claim with the DVA, the applicant could apply to the BCMR for a correction of his disability rating percentages.  On 19 Dec 13, the applicant concurred with the FPEB findings.  

On 28 Apr 14, the DVA made a decision for the applicant’s pending claims and awarded a rating of 30 percent for diplopia and zero percent for his condition of vertigo.  He appealed the DVA ratings on 20 Oct 14 and received the following rating increases:

  Left Hand Paresthesias – 30 percent effective 20 Oct 14
  Right Hand Paresthesias – 20 percent effective 20 Oct 14
  Left Foot Paresthesias – 20 percent effective 20 Oct 14
  Right Foot Paresthesias – 20 percent effective 20 Oct 14
  Benign Recurrent Vertigo with Chronic Subjective Dizziness – 10% percent effective 24 Jan 12.

The Department of Defense and the DVA disability evaluation systems operate under separate laws.  Under Title 10, USC, Physical Evaluation Boards 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.  Further, 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 of their condition at that 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 the condition.       
 
A complete copy of the AFPC/DPFDD evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 15 Sep 15 for review and comment within 30 days (Exhibit D).  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 to warrant correcting the applicant’s record to reflect a disability rating increase for diplopia and benign recurrent vertigo with chronic subjective dizziness.  AFPC/DPFDD recommends approval and notes the FPEB identified the same unfitting conditions as the IPEB and addressed the applicant’s pending DVA claims on the AF Form 356 and noted that in the interest of administrative finality, the board was unwilling to wait indefinitely for the pending disability ratings for his diplopia and vertigo and upon resolution of his claim with the DVA, the applicant could apply to the BCMR for a correction of his disability rating percentages.  We agree with their assessment which is supported by the evidence of record.  However, we are not convinced that the remaining conditions justify a higher rating and  agree with the opinion and recommendation of AFPC/DPFDD and adopt it’s rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice with regard to this portion of his request.  Therefore, we recommend the applicant's records be corrected to the extent 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 the AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 10 December 2013 and signed on 19 December 2013 be corrected to reflect the disability rating for the unfitting conditions of Diplopia is 30 percent and Benign Recurrent Vertigo with Chronic Subjective Dizziness is 10 percent.  

The following members of the Board considered AFBCMR Docket Number BC-2015-01649 in Executive Session on 4 Feb 16 under the provisions of AFI 36-2603:

       , Panel Chair
       , Member
       , Member

All members voted to correct the records as recommended.  The following documentary was considered:

	Exhibit A.  DD Form 149, dated 16 Apr 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 28 May 15, 
                 w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 15 Sep 15.