RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03982

   						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His final physical disability rating of 40 percent be increased to 60 percent.  

APPLICANT CONTENDS THAT:

His final rating of 40 percent is incorrect based upon his medical history.  He can’t walk correctly, has had two knee replacements, and now they want to do another one.  He would like another evaluation.  

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

STATEMENT OF FACTS:

The applicant served in the Air Force Reserve in the grade of Master Sergeant during the matter under review. 

On 24 Jun 10, a Medical Evaluation Board (MEB) convened to consider the applicant’s medical conditions, consisting of osteoarthrosis of the right knee and lumbar radiculopathy.  The MEB directed the applicant’s case be referred to an Informal Physical Evaluation Board (IPEB). 

Under Special Order No ACD-02857, dated 14 Sep 10, the applicant was relieved from active duty and place on the temporary disability retired list (TDRL), with a compensable percentage for physical disability of 60 percent.  

Under Special Order No. ACD-02279, dated 5 Jun 15, the applicant was removed from the TDRL, retired with a compensable percentage for physical disability of 40 percent, and credited with 8 years, 3 month, and 24 days of active duty service for retirement. 

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

AIR FORCE EVALUATIONS:

AFPC Disability recommends denial indicating there is no evidence of an error or an injustice.  A Physical Evaluation Board (PEB) must determine whether a member’s condition renders them unfit for duty and apply the disability rating as outlined in the Veterans Administration Schedule for Rating Disabilities (VASRD) that correlates with the service member’s medical condition at the “snapshot in time” the case is being processed through the Disability Evaluation System (DES).  A rating applied at the time of placement on the TDRL may significantly change upon reevaluation due to changes in the service member’s condition.  That rating determines the final disposition (discharge with severance pay, placement on the temporary disability retired list, permanent retirement) and is not subject to change after the service member has separated. 

There is no indication an error or injustice occurred during his processing through the DES.

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

The AFBCMR Medical Consultant recommends denial, indicating there is no evidence of an error or an injustice.  The supplied record indicates:

a.  On 13 Aug 10, an Informal Physical Evaluation Board (IPEB) found the applicant unfit for military duty due to right knee replacement, rated at 60 percent, and lower back pain, rated at 10 percent, with a combined disability rating of 60 percent.  He was placed on the TDRL, effective 28 Oct 10.

b.  On 23 Oct 12, an IPEB again found the applicant unfit for service, but reduced the rating for the knee condition to 30 percent, with no change in the 10 percent rating for low back pain; culminating in a recommendation to remove applicant from the TDRL and to permanently retire him with a combined disability rating of 40 percent. The applicant disagreed with the decision of the IPEB, skipped an FPEB review, and appealed to the Secretary of the Air Force Personnel Council (SAFPC).

c.  On 5 Apr 13, SAFPC agreed with the combined disability rating of 40 percent [30 percent for the knee condition and 10 percent for low back pain] recommended by the IPEB, but, recommended retention in TDRL status due to the limited assessment and uncertain stability of the applicant’s back condition.

d.  On 6 Aug 14, an IPEB recommended removing the applicant from the TDRL and permanently retiring him with a combined disability rating of 40 percent; which included 30 percent for the right knee and 10 percent for chronic low back pain.

Scrutiny of the applicant’s appeal did not convince the IPEB nor a five-member SAFPC review to assign the disability rating desired by the applicant.  Moreover, although the applicant’s knee ailment may have deteriorated since removal from TDRL, the Military Department cannot base its ratings on future progression of disease or injury post-service or post-release from the TDRL.  It should also be noted, although the Department of Veterans Affairs (DVA) rated the applicant’s knee condition at 60 percent, effective 1 Nov 11, this is a period of time when he was also on the TDRL rated at 60 percent for his knee.  The applicant has not supplied a competing clinical assessment from other sources, e.g., DVA, conducted at or about the time the final TDRL disposition was made by the IPEB in August 2014, for reconsideration in his case.  

The Medical Consultant opines the applicant has not sufficiently met the burden of proof of error or injustice that warrants the desire change of the record.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In further support of his initial request the applicant submitted a rebuttal response to the Air Force evaluations in which he takes exception to the recommendation to deny his request.  In his rebuttal, he states that his knee is getting worse every day, and the last time he was evaluated he felt the examination was rushed.  His knee has not improved since he was placed on the TDRL.  He is now scheduled for another full knee replacement.  In addition, he submitted records from his doctor, and asks the 60 percent rating he had for five years be reinstated.  (Exhibit F)

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 opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt their 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.

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-2015-03982 in Executive Session on 24 Jan 17 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 11 Sep 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC Disability, dated 13 May 16.
Exhibit D.  Memorandum, AFBCMR Medical Consultant, dated 8 Jul 16.
	Exhibit E.  Letter, SAF/MRBR, dated 3 Aug 16.
	Exhibit F.  Letter, Applicant, dated 15 Aug 16, w/atchs. 

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.