RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-03399 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His medical separation be changed to a medical retirement. APPLICANT CONTENDS THAT: He was medically separated for a disability in his left elbow and none of his other conditions were taken into consideration. Medical staff informed him that he could only be evaluated for one issue. He was rated 100 percent disabled by the Veterans Affairs (VA) before his terminal leave was over. He was unaware that all his injuries could have been considered and he could have asked for a review. He was reevaluated after five years and still found to be 70 percent disabled. Therefore, a temporary retirement would have been converted to a full retirement at that time. He does not expect to receive back pay for the years that he did not request a change; however, his retirement should be effective from the date of his application. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 29 March 1990. On 2 August 2000, a Medical Evaluation Board (MEB) convened to consider the applicant for continued active duty. The applicant was diagnosed with systemic reaction to Anthrax vaccine with the approximate date of origin on 4 May 2000. The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB). On 1 September 2000, an Informal Physical Evaluation Board (IPEB) was convened which found the applicant’s condition was not an unfitting condition under the provisions of disability law and policy. The IPEB recommended he be returned to duty. On 30 October 2000, the applicant’s physician diagnosed him with chronic tendonitis and recommended a MEB. On 1 December 2000, the applicant indicated he was no longer able to do his job well enough to remain on active duty. Specifically, he was not able to go on temporary assignments (TDY) to high threat areas due to a systemic reaction to the Anthrax vaccine. On 2 December 2000, according to the applicant’s MEB summary, his chief complaint was chronic left elbow pain with chronic left elbow tendonitis. He was referred to a PEB because his condition interfered with his job performance. On 5 December 2000, a MEB convened to consider the applicant for continued active duty. The applicant was diagnosed with chronic, persistent, refractory, left elbow tendonitis with the approximate date of origin on June 1998. The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB). On 18 December 2000, the applicant’s commander recommended to the MEB/PEB that the applicant not be retained in the Air Force on active duty due to his inability to be sent TDY and perform most tasks. On 3 January 2001, the IPEB convened and determined the applicant was unfit for tendonitis, left elbow, chronic, persistent, and refractory. His gastroesophageal reflux disease was determined as not unfitting. The IPEB recommended discharge with severance pay and a compensable disability rating of 10 percent. On 12 January 2001, the applicant disagreed with the findings and recommended disposition of the PEB. On 16 January 2001, officials with the Office of the Secretary of the Air Force (SAF) determined the applicant was physically unfit for continued military service and directed he be discharged for physical disability with entitlement to severance pay. On 2 March 2001, the applicant was honorably discharged, with a narrative reason for separation of “Disability Severance Pay”, and was issued a Separation Code of “JFL” (Physical Disability – Severance Pay). He was credited with 10 years, 11 months, and 4 days of total active service. On 6 March 2001, the applicant was assigned his DVA disability ratings, which was effective 3 March 2001. 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. He is aware of prior allegations of “cherry-picking” disabilities by Military Departments and the disparities in rating decisions between the Military Department and the Department of Veterans Affairs (DVA) for the same medical condition(s) and in the same individual. Since establishment of the Integrated Disability Evaluation System (IDES) and following the National Defense Authorization Act of 2008, controversies with these regards have virtually vanished; since the Military Department identifies the unfitting condition, while the DVA assigns the disability ratings. Moreover, under today’s standards service members are given an opportunity for an Impartial Review of their MEB by a disinterested medical professional; for the principal purpose of assuring the member receives a fair consideration of all of his or her medical conditions. The Impartial Review was not available to service members as a distinct process at the time of the applicant’s MEB proceeding. The applicant’s recommendation for a MEB was made due the applicant’s “chronic left elbow tendonitis”. Nevertheless, the provider disclosed the applicant’s past medical history, which included chronic intermittent low back pain, chronic left shoulder pain, and fracture of the left middle finger, chronic numbness left hand and forearm, chronic hearing loss, a nasal deformity, chronic sinusitis, gastroesophageal reflux disease, reaction to Anthrax vaccination, hyperlipidemia, and vitreous hemorrhage. The applicant’s knee impairment was not mentioned, although both knees were assigned disability ratings later. The narrative of the physical examination focused only on the applicant’s left elbow and no disclosure of examination of other body parts. Since the only subject of the applicant’s MEB was his left elbow impairment, it was the only condition considered and found unfitting by the PEB. While it appears counterintuitive to not consider finding other medical conditions unfitting and granting the applicant a possible medical retirement, the ratings assigned by the DVA do not automatically validate that an error was committed by the Military Department. Notwithstanding the observed variance in disability rating assigned for the applicant’s left elbow [10% by the MilDep vs 20% by the DVA], both the MilDep and DVA rating would have resulted in discharge with severance pay (not medical retirement) because the left elbow was the only condition found unfitting. The DVA provided an extensive list of medical conditions for which the applicant was assigned disability ratings. Some were determined to require a future reevaluation, as the severity of the condition was not deemed permanent and it could improve. Both VA examinations took place after the decision of the IPEB, but before the applicant’s actual date of discharge. Unfortunately, since the applicant’s separation occurred before “9/11,” he would not have been eligible for an alternative review by the Physical Disability Board of Review (PDBR) which was established through Congressional mandate to review cases of individuals who received a disability rating of less than 30% and were not entitled to a medical retirement, between 11 September 2001 and 31 December 2009. Under the current IDES, where there is emphasis on assuring all of a service member’s medical conditions are considered in the MEB/PEB process and where the DVA assigns ratings to all medical conditions found service-incurred, it is possible that one or more additional medical conditions may have been included in the Military Department’s disability rating computation. Similarly, under the mandate of the PDBR, it is also possible, had the applicant been in the “window of eligibility” for a review by this board, that one or more additional medical conditions may have been included as unfitting. However, other than the graphic display of ratings assigned by the DVA, the case file does not contain sufficient objective service medical evidence of any additional medical condition(s), other than his left elbow, which significantly interfered with the performance of his military duties; as would be disclosed in medical narratives, physical therapy assessments, clinical progress notes, and legacy AF Forms 422, Physical Profile Serial Reports, for a back, lower extremity [bilateral knee], or other ailment. The DVA operates under a different set of laws with a different purpose. It 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 ability to perform his or her military duties or worldwide qualification. This is the reason why an individual can be released from military service for one reason and, yet, sometime thereafter receive a compensation rating from the DVA for one or more additional medical conditions that were service-connected, but not proven militarily unfitting at the time of release from military service. 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 vary (improve or worsen, affecting future employability) over the lifetime of the veteran. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit C. AFPC/DPFDD recommends denial. There is no indication an error or injustice occurred during the processing of the applicant’s disability case. A complete copy of the AFPC/DPFDD evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluations were forwarded to the applicant on 14 March 2016 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.  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 BCMR Medical Consultant’s assessment and adopt his 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. 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-2015-03399 in Executive Session on 3 May 2016 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03399 was considered: Exhibit A.  DD Form 149, dated 27 July 2015, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, BCMR Medical Consultant, dated 25 February 2016. Exhibit D.  Memorandum, AFPC/DPFDD, dated 1 March 2016. Exhibit E.  Letter, AFBCMR, dated 14 March 2016. 1