RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04487

  						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her military records reflect she was medically retired with an 80 percent disability rating on 28 Mar 13.  

APPLICANT CONTENDS THAT:

The Physical Evaluation Board (PEB) only considered one medical injury (degenerative disc disease) and disregarded the fact the Department of Veterans Affairs (DVA) had rated her other category II conditions: cervical degenerative disc disease (10 percent); obstructive sleep apnea (50 percent); and celiac disease (10 percent).  Therefore, she should have been granted at least an 80 percent disability rating.  The applicant contends that two other cases should be considered by the Board as they granted a higher disability rating for her same ailments:  AFBCMR case BC-2003-01614 and the Physical Disability Board of Review (PDBR) case PD-[20]1100625.  In the AFBCMR case, the Board determined the applicant’s unfitting condition of celiac disease was appropriately rated by the Physical Evaluation Board and that the separation for physical disability with a 10 percent rating was proper.  In the PDBR case, the Board granted the applicant’s request to raise his unfitting condition of sleep apnea from 0 percent to 50 percent.  The Records of Proceedings for these cases are at Exhibit C.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 26 Mar 97. 

On 30 Nov 99, the applicant was furnished an honorable discharge, and was credited with two years, eight months, and five days of active service; however, she continued to affiliate with the Air Force Reserve.

From 18 Oct 04 to 25 Feb 05, the applicant was called to active duty in support of Operation NOBLE EAGLE/ENDURING FREEDOM.  During this period of active service, on 31 Oct 04, she was involved in a seven vehicle collision.  Her vehicle was number four of seven which struck the vehicle in front and was struck from behind.  

On 22 Jun 11, the DVA granted the applicant’s claim for benefits effective 13 Aug 10 and provided service-connected ratings for 17 medical conditions to include:
	Obstructive sleep apnea – 50 percent
	Esophageal reflux with celiac sprue – 10 percent
	Cervicalgia with degenerative disease – 10 percent 

On 24 Jan 11, the Air Force Reserve Command (AFRC) initiated the applicant’s informal Line of Duty (LOD) determination based on her diagnosis of degenerative disc disease. The applicant’s medical condition characterization was initially recommended as In Line of Duty; however, on 1 Jul 11, the approving authority (AFRC/CV) decided her medical condition was characterized as Existed Prior to Service - LOD Not Applicable (EPTS-LOD NA). 

On 7 Jul 11, the applicant was placed on mobility and duty restrictions for her non-duty related medical condition that required Medical Evaluation Board or Physical Evaluation Board processing.  

On 11 Jan 12, the applicant requested the Readiness Management Group Surgeon General (RMG/SG) reevaluate her EPTS-LOD NA stating she was injured while on active duty and is able to perform her duties as assigned. 

On 30 Jan 12, in correspondence from the Readiness Management Group Judge Advocate (RMG/JA) to the RMG/CC, the RMG/JA acknowledged the applicant’s medical history and recommended against retention due to her worldwide duty restrictions coupled with her inability to sustain a passing Fitness Assessment.  

On 2 Mar 12, AFRC/SGP determined the applicant was medically disqualified for continued service based on her diagnoses of degenerative disc disease, chronic low back pain, obstructive sleep apnea, and celiac disease.  

On 27 Apr 12, the Informal Physical Evaluation Board’s (IPEB) fitness determination found the applicant unfit for continued service based on her diagnoses of degenerative disc disease with associated chronic low back pain and celiac disease.  Obstructive sleep apnea was not considered unfitting.  The applicant disagreed with the IPEB decision and requested her case be referred to the Formal Physical Evaluation Board (FPEB) for a fitness determination.  _

On 10 Jul 12, the FPEB’s fitness determination found the applicant unfit for continued service based on her diagnosis of degenerative disc disease with associated chronic low back pain.  This condition was determined to by EPTS-LOD NA.  Her other conditions were not considered unfitting.  The applicant disagreed with the FPEB findings and appealed to the Secretary of the Air Force Personnel Council (SAFPC) requesting here EPTS-LOD NA changed to In the Line of Duty (ILOD).  

On 22 Jan 13, the SAFPC concurred with the decisions of the prior PEBs and found the applicant unfit for continued military service; however, deemed the applicant’s diagnosis of degenerative disc disease with associated chronic low back pain to be classified as ILOD.  Furthermore, SAFPC concurred with the FPEB that there was insufficient documentation to find the applicant’s diagnosis of cervicalgia with degenerative disc disease to be unfitting; noted the applicant did not disagree with the PEB findings that her celiac disease and obstructive sleep apnea were not unfitting; and recommended the applicant received a 10 percent disability rating resulting in a discharge with severance pay.  

On 22 Mar 13, the applicant elected to transfer to the Inactive Status List Reserve Section for the purpose of applying for early retirement.  

On 27 May 13, the applicant was assigned to the retired reserve.  

The Department of Defense (DOD) and the Department of Veterans Affairs (DVA) disability evaluation systems operate under two separate laws.  Under Title 10, United States Code, Physical Evaluation Boards (PEB) must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the AF disability boards must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of their condition at that time.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

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

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial indicating there is no evidence of an error or an injustice.  The applicant’s case was initially a Fitness Determination that was reviewed by the Informal Physical Evaluation Board (IPEB), the Formal PEB (FPEB), and then the SAFPC.  The SAFPC reviewed her case file and determined her diagnosis of degenerative disc disease with associated low back pain should be classified as in line of duty and it should be given the disability rating of 10 percent awarded by the DVA.  Conversely, they concurred with the FPEB that there was insufficient documentation to find her diagnosis of cervicalgia with degenerative disc disease to be unfitting for military service.  Regarding her diagnosis of celiac disease and obstructive sleep apnea, the FPEB did not find those conditions unfitting and the applicant did not disagree with that finding when appealing to the SAFPC.  In closing, the applicant was provided the appropriate rating for the single condition determined to the unfitting at the time of her release from active duty.

A complete copy of the AFPC/DPFDD evaluation, with attachment, is at Exhibit D.

AFBCMR Medical Consultant recommends denial of the applicant’s petition to supplant her discharge with a medical retirement with an 80 percent disability rating indicating there is no evidence of an error or an injustice.  The Medical Consultant did not have records to corroborate the applicant’s duty status when she was medically disqualified, but under the presumption of regularity, she was likely not eligible for processing as a compensable disability, but only for a fitness determination for each of the three medical conditions of cervical spine, celiac disease and obstructive sleep apnea.  The Medical Consultant further opines the requirements to sustain the applicant in a deployed environment with specific dietary regimen, and the risk for unexpected acute gastrointestinal disturbance, means that an individual with celiac disease could pose an unreasonable requirement for the Military Department to sustain/retain the member; notwithstanding the risk for unexpected acute gastrointestinal disturbance.  However, even if finding the applicant unfit for celiac disease and finding it In Line of Duty, she would only earn an additional 10 percent disability rating for her celiac disease; which when combined with the 10 percent disability rating for degenerative disease with low back pain, would earn a 20 percent disability rating; with no change in the separation with severance pay offered to her by the SAFPC.  Moreover, the Medical Consultant agrees with previous Boards finding the Service evidence is insufficient for an unfit finding for the applicant’s cervical spine [nor headaches] noting the lack of an AF Form 469, Duty Limiting Condition Report, addressing either of these conditions.

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPR and argues that her medical conditions incurred while on active duty orders were the cause of her failing the fitness assessment.  She remains in constant pain and leaving the military would keep her from further hurting herself and place her health at risk.  She also points out that her last active duty tour ended on 28 Jan 11 instead of the statement made in the OPR’s evaluation.  She feels she should have remained on active duty during her medical evaluation board processing in order to have access to military medical facilities.  Furthermore, she states reservists should have equal and fair medical treatment as the regular Air Force counterparts and reiterates several of her arguments made in her original submission.  

A complete copy of the applicant’s rebuttal, with attachment, is at Exhibit G.

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 Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  We further reviewed the two cases the applicant referenced and determined that although the medical diagnoses referenced in the two cases were the same as the applicant’s, the severity of the conditions for the other two airmen rendered them unfit for continued service.  However, the Board determined that in the applicant’s case, there is no evidence that her obstructive sleep apnea and celiac disease were unfitting conditions at the time of her separation.  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-2015-04487 in Executive Session on 9 Feb 17 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 20 Oct 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Record of Proceedings, BC-2003-01614 and
  PD-201100625.
Exhibit D.  Memorandum, AFPC/DPFDD, dated 11 Apr 16, w/atch.
Exhibit E.  Medical Consultant Advisory, dated 18 Apr 16.  Exhibit F.  AFBCMR Letter to Applicant, dated 9 Jun 16.
Exhibit G.  Applicant’s Rebuttal, dated 11 Jul 16, w/atch.

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.