RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03714

 						COUNSEL:  NONE

						HEARING DESIRED:  NOT INDICATED 

APPLICANT REQUESTS THAT:

He be granted a medical retirement.  

APPLICANT CONTENDS THAT:

His disabilities were significant enough to have warranted a Medical Evaluation Board (MEB).  He was not provided a   Physical Evaluation Board (PEB) because the Air Force did not have a sufficient medical facility.

He provides a copy of his Department of Veterans Affairs (DVA) rating decision which reflects he was awarded a compensable rating of 50 percent for service connected disabilities effective on the date he was discharged.  

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

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 15 December 1992 and was released from active duty on 14 April 1997 with a narrative reason for separation of “Completion of required active service.”  He was credited with 4 years and 4 months of active duty service.  

According to a DVA rating decision dated 17 August 2015, the applicant was awarded an initial compensable disability rating on 20 January 1999.  His combined compensable disability rating as of 6 May 2015 is 100 percent.  

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.      

AIR FORCE EVALUATION:

AFPC/DPFDD recommends the applicant’s case be reviewed by the BCMR Medical Consultant for consideration of a medical separation.

The applicant’s Service Treatment Records (STR) reveals he was injured when struck by a motor vehicle in March 1997, one month prior to his separation.  At the time of the incident, he had a voluntary separation on file.  A pre-separation evaluation reflects he suffered from residuals from the accident, specifically stiffness in knees, hip and back.  There is no indication a MEB was initiated or considered, and the service member was released from active duty on his scheduled date of separation.  Unfortunately, DPFDD cannot speak to the applicant’s contention regarding the insufficiency of the medical facility.

The applicant was evaluated by the DVA and provided a rating decision documenting multiple medical conditions determined to be service connected by the DVA.  The ratings were awarded in January 1999, almost two years after he separated from the Air Force.  While the applicant was treated for residuals of the accident prior to his separation, there was no documentation stating a firm diagnosis was made while he was on active duty.  

An award of a rating by the DVA and assignment of service connection does not entitle a service member to a medical retirement.  Under the Air Force system (10 U.S.C.), PEBs must determine whether an airman’s medical condition renders them unfit for duty.  If the board renders a finding of unfit, the law provides for compensation to those military members whose careers are shortened due to a service-incurred or service-aggravated physical disability.  However, to receive such compensation, each medical condition must, in and of itself, render the airman unfit for duty.  Under the DVA system (38 U.S.C.), the law provides for compensation for veterans based on the average impairment in earning capacity resulting from all service-connected diseases and/or injuries.  Although the two agencies use the same rating schedule, the military only rates those conditions which make an individual unfit for continued military service while the service member is on active duty.  Conversely, the DVA rates all medical conditions connected to the veteran’s military service and can provide updated ratings based on reexamination over a period of time.

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

The BCMR Medical Consultant recommends denial.  The applicant is receiving DVA compensation for a number of service connected medical conditions that may have since become chronic in nature.  However, based on the objective evidence present at the time of discharge, reasonable actions were undertaken to properly evaluate the applicant prior to allowing him to voluntarily separate.  If there was significant concern for the applicant’s recovery or evidence of possible permanent injury, a medical hold would have been an appropriate consideration.  This simply did not appear to be necessary in the view of the clinicians who evaluated the applicant in April 1997 prior to his separation.  In accordance with AFI 42-210, Tricare Operations and Patient Administration, medical hold is a method of retaining a service member beyond an established retirement or separation date for reason of disability processing when presumption of fitness does not apply.  It is not used for the purpose of evaluating or treating chronic conditions, performing diagnostic studies, elective treatment of remedial defects, non-emergency or surgery or subsequent convalescence or any other condition which does not warrant termination of active duty.  In this case, specialty care and consultations were available within the Aviano AB, Italy region. 

The applicant’s petition is also untimely.  Although experiencing symptoms only one month post-injury might not be considered chronic, it is only in 20/20 hindsight, 16 years post-discharge that the Air Force provider’s judgment is brought into question on whether or not the applicant should have been kept beyond his established date of separation for a MEB or that he should have been reassigned to a patient squadron at a Continental United States (CONUS) Air Force medical center in lieu of separation for longer-term therapy, observation or other intervention if deemed appropriate.   The question for the Board to determine is whether an error or injustice occurred in allowing the applicant’s voluntary separation to proceed, noting in retrospect he may not have fully recovered or was not pain-free from the multiple contusions resulting from being struck by a motor vehicle on 7 March 1997.  His injuries appear to have been largely soft-tissue and musculoskeletal in nature and without evidence of fractures.  None of his injuries required surgical intervention, casting, splinting or use of appliances for assisted ambulation, although initially assigned 10 days of convalescent leave.  Noting the evaluating provider’s diagnosis of multiple contusions on 8 April 1997, the Medical Consultant opines that any reasonably minded family practitioner would not have expected the applicant’s injuries to impart a permanent impairment that would warrant a request for a medical hold to conduct a MEB.  One month post-injury, the applicant’s clinical signs and symptoms were likely not considered severe enough or his prognosis for ultimate recovery was such that it did not trigger such concerns.  Additionally, the fact that the applicant’s initial disability ratings were made effective 1999, nearly two years after his date of discharge in 1997 indicates that even the DVA was unable to, or chose not to, quantify what his level of impairment was at the time of separation in order to make his ratings effective day after discharge and instead likely based the effective dates on the date the applicant   claimed benefits.   Should the Board decide the applicant should have been found physically unfit; the Medical Consultant would be tasked with making disability ratings determinations targeting his sites of injury and pain but also based largely upon the minimal positive findings on examination by the applicant’s family practice physician on 8 April 1997 and the physical therapist on 10 April 1997.  Given the same scenario and clinical findings at the time of discharge, the Medical Consultant opines it is possible that the same actions and ultimate decision would have been undertaken by the Military Department. 

The applicant is advised that the Military Department only offers compensation for the conditions that cause career termination, and then only to the degree of impairment present at the “snapshot” time of discharge.  On the other hand, the DVA under 38 U.S.C. is authorized to offer compensation for any medical condition with a nexus with military service without regard to its demonstrated or proven impact upon a service member’s retainability, fitness to serve, narrative reason for separation, or time transpired since separation.  This is the reason why an individual can be found fit for release from military service for one reason and yet sometime thereafter receive compensation ratings from the DVA for 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 as the level of impairment may vary over the life-time of the veteran.

A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit D.   

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 17 March 2016 for review and comment within 30 days (Exhibit E).  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 not timely filed.  While the applicant claims a date of discovery of less than three years ago, in our view, the reasonable date of discovery of the alleged error or injustice was more than three years ago and the application is therefore untimely.  However, it is in the interest of justice to excuse the failure to timely file.  
 
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 and do not find that it supports a determination that he was improperly separated from active duty or that he was denied a MEB due to the limited medical facility at his duty location.  While the applicant contends he was separated from active duty without an MEB, he has not provided substantial evidence showing that he had an unfitting medical condition that required his processing through the Military Disability Evaluation System, a prerequisite to a medical discharge.  Based on the preponderance of the evidence, it appears the applicant’s voluntary separation was properly adjudicated and we found no evidence which would lead us to believe that his separation was in error or contrary to the governing Air Force instructions.  The applicant’s case has undergone an exhaustive review by the BCMR Medical Consultant and we did not find the evidence provided sufficient to overcome his assessment of the case.  Therefore, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.  

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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-2015-03714 in Executive Session on 9 August 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03714 was considered:

	Exhibit A.  DD Form 149, dated 28 May 2015, w/atch.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 11 January 2016.
	Exhibit D.  Memorandum, BCMR Medical Consultant, dated
			  26 February 2016
	Exhibit E.  Letter, AFBCMR, dated 17 March 2016.