RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03306

  						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The applicant has filed two DD Form 149 requests for corrections:

1. His AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, Section 9F for Category I (1) be changed to H and Section 10E be changed to “Yes.”  The Veterans Affairs Schedule for Rating Disabilities, (VASRD) codes for each Category II impairment be listed in Category I of Section 9A&E to include:  TBI 8045, Post Traumatic Headaches 9304, Obstructive Sleep Apnea 6847, Pes Planus (Flat Feet) 5276, Shoulder Strain 5201, Knee 5256 per DODI 1332.39 para 6.1.7 

2. His disability rating be changed from 70 percent to 100 percent Permanent.  

3. His Special Order ACD No. 01784 for disability received be amended to reflect “in line of duty” as a “direct  result of armed conflict or incurred in line of duty during period of war,” and “No” be corrected to read “Yes.”

	4.  By Amendment at Exhibit E, correction of AF Form 356, Section 9F, Category I, be changed to read “A,” and Section 10E be changed to read “Yes,” and the 9 impairments listed below be moved to Category I and be rated specifically:

a.	 Traumatic Brain Injury	
b.	 Migraines 
c.	 Headaches 
d.	 Lumbar Strain (back) 
e.	 Shoulder Strain both 
f.	 Bilateral Wrists 
g.	 Bilateral Knees 
h.	 Sleep Apnea 
i.	 Bilateral Feet 

	5. By Amendment at Exhibit E, all 9 impairments listed above be listed on the AF IMT 618, Medical Board Report, Block 23a and AF Form 356, Section 9A, under Category I. 

APPLICANT CONTENDS THAT:

The Informal Physical Evaluation Board (IPEB) failed to rate each impairment because they [IPEB] considered it as not being unfitting; however, the error is that each impairment contributed to him being unfit; that is why he is requesting his impairments to be moved to Category I (1) and be rated.  Therefore, the Air Force should accept the VA ratings for such impairments and rate them accordingly per the governing instructions and apply DODM 1332.18-V1 Enclosure 4 page 2 para 3 and 38 CFR 4.15, 4.16, and 4.18.  

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

STATEMENT OF FACTS:

The applicant entered active duty in the Regular Air Force on 29 December 2003.

According to the AF IMT 618, dated 2 February 2015, the applicant was referred to the IPEB for Major Depression, single episode, moderate, and Unspecified Anxiety Disorder.

The applicant’s AF Form 356, dated 3 March 2015, reflects he was diagnosed with CATEGORY I – UNFITTING CONDITIONS for Major Depression and Unspecified Anxiety Disorder for which he was recommended to be permanently retired with a combined compensable percentage disability rating of 50 percent.  The Remarks section, item 15, of the AF Form 356 states “The service member’s (SM) medical condition prevents him from reasonably performing the duties of his office, grade, rank, or rating.  The Informal Physical Evaluation Board finds the SM unfit and recommends permanent retirement with a disability rating of 50% IAW the Veterans Administration Schedule for Rating Disabilities guidelines” and “The PCM reviewed the VA’s Compensation and Pension Exam and has addressed any discrepancies and reviewed the claimed conditions.  The Board reviewed the applicant’s rebuttal letter and supporting documents and is in agreement with the PCM/MTF review.  The additionally [sic] conditions claimed at the VA are not supported in the SM’s medical documentation as creating permanent impairments and restrictions; therefore are not unfitting for duty.”

AF Form 356, dated 31 March 2015, reflects the IFEB recommended the applicant be permanently retired with a 70 percent disability rating for Major Depression and Unspecified Anxiety Disorder.

Special Order No. ACD-01784, dated 8 April 2015, reflects the applicant was permanently disability retired in the grade of Staff Sergeant (SSgt) with a compensable percentage for physical disability of 70 percent.  With regard to “Disability received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war” the Special Order reflects “NO.”  The applicant was credited with 11 years and 7 months 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:

AFPC/DPFDD recommends no changes be made to the PEB findings for both of the applicant’s DD Form 149 requests based on the information provided.  In this regard, there is insufficient medical evidence or additional documentation provided to warrant a correction of AF Form 356 for Section 9F for Category I (1) to be changed to H and for Section 10 E to be changed to “Yes” and the listed impairments be moved to Category I and be rated, specifically, VASRD codes for each Category II impairment to be listed in Category (1) of Section 9A&E on AF Form 356 for correction to include the nine impairments listed above in the “Applicant Requests” section of this Record of Proceedings, and that his disability rating be changed from 70 percent to 100 percent.  Pursuant to the governing instructions, a Service member will be considered unfit when the evidence establishes that the member, due to disability, is unable to reasonably perform duties of his or her office, grade, rank, or rating, including those during a remaining period of Reserve obligation and a Service member may also be considered unfit when the evidence establishes that 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 the Service member’s disability imposes unreasonable requirements on the military to maintain or protect the Service member, which none the claimed conditions met the requirements for being an “unfitting” condition based on the medical evidence received in the applicant’s MEB case file and the documentation provided by the applicant for reconsideration and correction of his findings.

Further, the IPEB reviewed applicant’s AF IMT 618, which revealed that the applicant was being boarded specifically for Major Depression, Single episode, Moderate, and unspecified Anxiety Disorder and that these diagnoses were potentially unfitting conditions and no other medical diagnoses were listed.  The medical evidence provided within the applicant’s MEB case file revealed no other VA “claimed” conditions contributed to the applicant being unfit to continue military service and the applicant’s disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense based on the medical evidence provided.

In addition, no additional documents were received that would deem a correction on the Special Order ACD No. 01784 for disability received “in line of duty” as a “direct result of armed conflict or incurred in line of duty during period of war”, which currently reads “No,” which the applicant would like to be corrected to read “Yes.”

A complete copy of the AFPC/DPFDD evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a 16-page brief, the applicant provides the following key comments in rebuttal noting that he committed a clerical error when he requested for correction of AF Form 356, Section 9F, Category I, to be H, when in fact he is requesting correction of AF Form 356, Section 9F, Category 1, to be changed to read “A,” and for Section 10E be changed to read “Yes,” and the nine impairments listed above be moved to Category I and be specifically rated.  Additionally, he reiterates many of his original contentions, some of which are noted below.

The IPEB failed to rate each impairment because they [IPEB] considered them as not being unfitting; however, the error is that each impairment contributed to him being unfit.  Therefore the Air Force MUST accept the VA ratings for such impairments and rate them accordingly per DODI 1332.39 paragraph 6.1.7.

The nine impairments not only contributed to him being unfit, the impairments are unfitting pursuant to an AF Form 469 dated 07/24/2014 at DX 1, DX 2, and DX 3, and an AF  Form 469 dated 12/03/2014 at Primary DX, Tertiary DX, and THIRD FITNESS PRESCRIPTION.  The nine impairments prevented him from reasonably performing the duties of his office, grade, rank, or rating as stated by his Commanding Officer in the Commanders Memo to the MEDICAL EVALUATION BOARD (MEB)/PHYSICAL EVALUATION BOARD (PEB).

The Air Force failed to apply the governing instructions because he has one rating which is rated at 70 percent and the judgment of the rating agency determined that he was unable follow a substantial gainful occupation in his Air Force Specialty Code (AFSC) as a result of his service connected disabilities as listed above. The Air Force must apply the Total Disability Rating for Compensation based on employability as by the governing instruction and should find him totally disabled.  In addition, the Air Force must assign a Total Disability rating for compensation because he is unable to obtain gainful employment as a result of his service connected disabilities.

He would like the Board take Administrative Judicial Notice of the single rating of 70 percent on the AF Form 356, dated 31 March 2015, Block 9D and also take Administrative Judicial Notice the governing instructions and correct his records to reflect a rating of 70 percent, and UE of 30 percent, which makes the combine disability rating of 100 percent.

He is claiming disability received in the line of duty as a direct result of armed conflict as identified in his medical records, which proves a definite causal relationship between the armed conflict and the resulting disability of Major Depression Disorder.

The Statement “not incurred in a combat zone,” this is contradictory to the AF Form 356, Exhibit 5, block 10D; awards records Air Force Achievement Medal (AFAM) for the period of 21 April 2004 to 28 April 2006, awards records AFAM for the period of 17 February 2012 to 23 August 2012; and a list of other contradictory objections that are noted in his rebuttal.

The statement, “… ‘no other VA claimed’ conditions contributed to the member being unfit to continue military service,” is an unjust act on the part of the OPR, by not preforming his duties of collecting the records in this case.

The statement “The applicant's disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense based on the medical evidence provided,” is contrary to the evidence provided.  Therefore, he requests his records attached to this rebuttal be considered. 

The applicant’s complete submission, with attachments, 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, to include his rebuttal that notes he made a clerical error in his request along with a plethora of rebuttal comments, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Although the applicant believes his disability rating should be increased from 70 percent to 100 percent, the Board disagrees.  In addition, the Board would like to inform the applicant that the Department of Veterans Affairs is authorized, under Title 38 United States Code, to offer compensation for any medical condition with a nexus with military service, without regard to its proven impact upon a former service member’s fitness to serve, the narrative reason for release from service, or the duration of time passed since separation.  This is the reason why an individual may be released from service for one reason and later receive a compensation rating for one or more medical conditions that were not considered militarily unfitting or eligible for military disability processing at the time of military service.  The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating determinations (increase or decrease) as the level of impairment from a given medical condition may vary (worsen or improve) over the lifetime of the veteran.  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-2015-03306 in Executive Session on 16 August 2016 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 1 Aug 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 24 Dec 15.
	Exhibit D.  Letter, SAF/MRBR, dated 23 Mar 16.
	Exhibit E.  Letter, Applicant, dated 8 Apr 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.