RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03021

  						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her military status be changed from separated to medically retired.  

APPLICANT CONTENDS THAT:

When going through the Medical Evaluation Board (MEB) process, she was never given the option of speaking with a Veteran Service Organization (VSO) prior to meeting the disability evaluation team at the Department of Veterans Affairs (VA) and had she spoken with a VSO, she would have claimed more disabilities (carpal tunnel, Post-Traumatic Stress Disorder, severe allergies, and thalassemia minor).  

In support of her request, she provides her initial VA service-connected rating decision, dated 5 Nov 13, and her current rating decision, dated 9 Sep 14.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 12 Jan 10.

In May 10, the applicant had foot surgery (Bunionette shaved off).  

On 3 Jan 13, the applicant’s commander recommended she continue with her military service; however, would fully support a medical retirement if she could not remain in the Air Force.  

On 23 Jan 13, the Medical Evaluation Board (MEB) referred the applicant to the Physical Evaluation Board (PEB).  

On 11 Mar 13, the PEB found the applicant unfit.  

On 26 Mar 13, the VA Providence Regional Office proposed a combined 20 percent rating for the applicant’s unfitting disabilities (chronic right foot pain) and a combined rating of 40 percent  service-connection when combined with her conditions that were not considered unfitting - her Sacroiliitis and Osteoarthritis (back condition), her Bunionectomy painful scar, and right foot scar.  

On 16 Apr 13, the Informal Physical Evaluation Board (IPEB) found the applicant unfit and recommended discharged with severance pay with a disability rating of 20 percent as determined by the VA Regional Office.  The IPEB also agreed that her remaining conditions were considered service-connected but not unfitting and did not appear to affect her ability to perform her duties.

On 15 May 13, the applicant disagreed with the IPEB decision and on 30 May 13 appealed to the Formal PEB (FPEB).  Through counsel, the applicant agreed with the right foot conditions as unfitting; however, she asserted her back pain was also unfitting.  

On 18 Jun 13, the FPEB concurred with the IPEB recommended disposition.  

On 28 Jun 13, the applicant disagreed with the FPEB decision and submitted an appeal to the Personnel Board of the Secretary of the Air Force Personnel Council (SAFPC) asking for her back pain to be considered unfitting.

On 12 Aug 13, SAFPC concurred with the FPEB recommended disposition.

On 27 Sep 13, the applicant was furnished an honorable discharge with a narrative reason for separation of Disability, Severance Pay, Non-Combat (Enhanced) and was credited with 3 years, 8 months, and 16 days of active service.   

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. 

AIR FORCE EVALUATION:

BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice.  The applicant experienced a long-standing history of right foot pain since undergoing a surgical procedure in 2010.  Beginning in Apr 12, the applicant received episodes of care by a chiropractor for assessment and treatment of low and mid-back pain.  She clearly received frequent chiropractic treatments before leaving military service; however, there were no prohibitions to worldwide qualification due to the back condition and it was the applicant’s foot ailments that interfered with her ability to reasonably perform her military duties; to include overall worldwide qualification.  Had it not been for the applicant’s chronic foot pain and the long-standing profile restrictions imposed, she would likely have been continued on active military service without an MEB/PEB action.  When her commander issued a mission impact letter in Jan 13, he noted the applicant was a true asset to the Air Force and is only hindered by her foot issue and subsequently an MEB was convened due to her chronic foot pain.  Throughout her appeals of the IPEB and FPEB decisions, she requested her back pain to be included in her unfitting conditions.  The rationale for denying the applicant’s petition included statements by the applicant’s commander who identified the applicant’s foot problem as the only impediment to her retainability and the fact that the author of the MEB narrative summary noted “no back pain” present during the assessment of body systems.  Before leaving service, the applicant presented complaints of headaches and bilateral carpal tunnel syndrome.  She received an Armed Forces Termination Exam on 26 Aug 13, at which time the applicant identified neck and back pain as ongoing medical problems.  The provider did not comment on a back condition, but did note the applicant was to receive an evaluation for an enlarged spleen and liver by hematology-oncology and gastroenterology and there were no new boardable diagnosis at the time.

Since establishment of the Integrated Disability Evaluation System (IDES), the Department of [Veterans] Affairs (DVA) assigns disability ratings, whereas the military department applies the applicable disability rating only to the unfitting medical conditions.  Hence, the new argument confronting boards is the contention that other medical conditions should have been included in the disability rating computation; invariably with the goal of achieving the minimum 30 percent disability rating qualifying for a medical retirement.  Unlike the military department, the VA, operating under Title 38, United States Code, awards disability compensation for any medical condition based on military service; without regard to its demonstrated or proven impact upon a former service member’s retainability, fitness to serve, or reason for discharge.  This is the reason why an individual may be found unfit due to one reason, but soon thereafter receive compensation ratings from the DVA for other medical conditions that were service-incurred, but not militarily unfitting at the time of discharge.  The DVA is also empowered to periodically adjust the disability rating(s) as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veterans.

A complete copy of the BCMR Medical Consultant evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes many of the points made by the OPR pointing out that even though the OPR highlighted her back condition, this condition is not specifically in her request.  She does argue that she should have been rated for her carpal tunnel syndrome, her painful right foot scar, and her Post-traumatic Stress Disorder, and found the medical consultant’s review to be one-sided.  

A complete copy of the applicant’s rebuttal 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 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 opinion and recommendation of the BCMR Medical Consultant and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  We noticed the applicant requested medical conditions beyond her back pain, subsequently rated service-connected by the Department of Veterans Affairs (VA), to be considered unfitting at the time of her separation; however, the Board further agreed with the rationale of the BCMR Medical Consultant that the DVA may award conditions as service-connected without regard to its demonstrated or proven impact upon a former service member’s retainability, fitness to serve, or reason for discharge.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2015-03021 in Executive Session on 20 Sep 16 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03021 was considered:

	Exhibit A.  DD Form 149, dated 10 Jul 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, BCMR Med Consultant, dated 8 Dec 15.
	Exhibit D.  Letter, AFBCMR, dated 11 Jan 16.
	Exhibit E.  Applicant Rebuttal, dated 17 Jan 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.