RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-00500

XXXXXXXXXXXXX	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

Her disability discharge be changed to a medical retirement.

APPLICANT CONTENDS THAT:

The medical board did not properly consider all her medical conditions for medical military retirement and TRICARE benefits.  She further notes her supervisor’s harassment prevented her from addressing her concerns with the Medical Evaluation Board (MEB).

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 23 Jul 92.

According to documents submitted by the applicant, while on active duty, she was seen and underwent medical treatment for a variety of medical conditions to include, shin splints, stress fractures, patellofemoral syndrome bursitis, carpal tunnel syndrome, sinusitis, and depression. 

On 14 Nov 94, the applicant was denied the Air Force Good Conduct Medal (AFGCM).  

On 3 Apr 95, the applicant was rendered a “referral” Enlisted Performance Report (EPR), overall PROMOTION RECOMMENDATION of “2”_ NOT RECOMMENDED AT THIS TIME.  The report contained one or more ratings or comments that made it a referral report in accordance with AFI 36-2403, Enlisted Evaluation System (EES).  

On 8 May 95, the applicant underwent a MEB for right carpal tunnel syndrome, possible borderline left carpal tunnel syndrome and patella femoral syndrome.  The MEB referred the applicant’s case to the Informal Physical Evaluation Board (IPEB).

On 12 May 95, the applicant wrote a memorandum to the IPEB members requesting a medical retirement.  

On 25 May 95, the IPEB reviewed the applicant’s case and recommended discharge with severance pay with a 20 percent disability rating for her right carpal tunnel syndrome and patella femoral syndrome.  The applicant’s history of lower extremity stress fractures was considered, but was  not ratable for disability compensation.

On 7 Jun 95, the applicant concurred with the findings and recommendation of the IPEB.

On 25 Jun 95, the applicant was furnished an honorable discharge for disability w/severance pay, and was credited with 2 years, 11 months and 4 days of active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, F, and H.

AIR FORCE EVALUATION:

AFPC/DPFD recommends partially granting the applicant’s request.  The PEB must determine if a condition renders a member unfit for continued military service.  The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the individual from fulfilling their military duties. In addition, disability processing is based on a “snap shot in time” and does not take into account any exacerbations or progressions of a disability that may have occurred following the service member’s release from active duty and is not subject to rating change after the member is separated.  AFPC/DPFD (Medical Board) reviewed the applicant’s application and opines the evidence supports that both her knees were unfitting at the time of her separation from the service.  The board would rate the knees, bilaterally at 10 percent for each knee.  There is no evidence to support her other conditions were found to be unfitting.  Therefore, they recommend denial on all her other conditions she claims as unfitting.  If approved, the applicant would be entitled to a permanent retirement with a combined compensable disability rating of 30 percent.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 15 Nov 16 for comment (Exhibit D), and the applicant replied on 7 Dec 16.  The applicant states she could not fully address all her concerns in the response to the MEB because her supervisor had to review and approve the response.  She provided comments addressing each of her medical conditions AFPC/DPFD opined were not unfitting conditions.  She stated the evidence supporting her depression are the reports for tachycardia, high resting pulse that she had been experiencing for years due to the depression and frustration over the situation she was going through with her supervisor.  She alleges her supervisor interfered with the MEB original findings (she alleges recommended medical retirement) by going to the MEB and requesting she not be given a medical retirement.  The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATIONS:

The AFBCMR Medical Consultant recommends denial for the requested relief noting there is no evidence to warrant awarding additional disability ratings or retirement.  He further noted the requested relief may also be denied based on timeliness.  Acknowledging the differentiation between ratings assigned by the Air Force PEB and the DVA, the Medical Advisor reminds the Board and the applicant that the Military Department, operating under Title 10, United States Code (U.S.C.), only assigns its rating determinations to the condition(s) that is (are) determined unfitting; that is, for the principal condition that causes of career termination.  More importantly, the determinations are based upon the findings of record present at the “snapshot” time of final military disposition; and not based upon future progression of disease or injury.  On the other hand, the DVA, operating under a different set of laws [Title 38, U.S.C.], assigns compensation ratings to any medical condition determined service-incurred, without regard to its proven or demonstrated impact upon a former service member’s retainability or fitness to serve; nor the time transpired since date of discharge.  

The sentinel medical issue in the current appeal relates to the Military Department’s unilateral rating assigned for the applicant’s knee condition and for carpal tunnel syndrome, as compared to the DVA; which assigned bilateral ratings [separate ratings each upper and each lower extremity]; which if adopted by the Military Department would have reached the threshold for retirement eligibility.  Referring to the action by the PEB, the applicant noted that the board “only rated 2 conditions and did not rate them bilaterally, which they are.”  She also notes “4 other conditions were not rated or considered at all” and, to her knowledge, “should have been.”  Although in each instance it was considered a bilateral condition, the preponderance of evidence supports the unfit finding only for the right carpal tunnel syndrome.  Additionally, although chondromalacia patellae and patellofemoral syndrome commonly involves both knees, the applicant’s initial chief complaint of left knee pain, following an injury, with confirmatory cartilage findings on MRI of the left knee, supports the unfit decision for the left knee.  The Medical Advisor noted that the DVA also initially rated the applicant’s left carpal tunnel syndrome at 0 percent, based upon the military service record; which in military terms would be an indicator of minimal or undetectable impairment.  However, the increased rating to 10 percent appears in the record to have been based upon newly acquired evidence.  Although the applicant may have been diagnosed with a mental disorder, in addition to other conditions during her service, there is no evidence that a mental disorder, or other condition, absent imposition of applicable profile restrictions, should have been included in the MEB proceeding as a contributory cause for career termination.  The complete advisory is at Exhibit F.

The AFBCMR Psychiatric Advisor recommends denying the requested relief.  There is insufficient evidence to warrant the desired change of the record.  Unfortunately, as stated by the applicant herself and echoed by the DVA, there is limited evidence of the applicant’s psychological distress during her military service.  The only brief Mental Health (MH) note in the case file states that the applicant underwent a Command Directed Evaluation (CDE) and was diagnosed with Occupational Stressors and Adjustment Disorder.  Although a recent revision of Department of Defense policy (Apr 13) now acknowledges that an individual with a Chronic Adjustment Disorder renders the individual eligible for processing via a MEB; in 1995, an Adjustment Disorder was held as non-compensable and non-ratable by the Military Departments.  Furthermore, when the condition was determined to be so severe as to significantly interfere with an individual’s ability to perform military service, the member was vulnerable for an involuntary discharge.  The applicant’s own description of her condition to the MEB members was very important in emphasizing the impact of her condition on her wellbeing, however, cannot be diagnostic on its own and therefore cannot be used for determination of unfitness and a disability rating.  The same applies to the applicant’s assertion that her resting tachycardia was a result of “stress” due to the harassment she endured from her supervisor.  Likewise, this presumption is very speculative, as an increase in a baseline heart rate can be a result of numerous factors or it can be idiopathic (no medically known cause) in nature.  Of note, the applicant’s pulse remained elevated her entire life.  The harassment described by the applicant is appalling and certainly not acceptable within the Air Force or any other military branch, nevertheless, finding the medical condition unfitting without presence of a sufficient evidence cannot be used as a remediation.

The applicant upon discharge from the military was a functional individual.   The DVA psychiatrist noted in 1998-1999, the applicant attended college and held a part-time job.  In fact, the initial DVA rating decision in 1995 did not include disability rating for a mental health condition.  It was not until 1998, when the applicant was awarded service-connected disability for dysthymia, effective Nov 96.  As the time progressed the applicant’s psychological health continued to deteriorate and by 2002 applicant was deemed by DVA to be 100 percent disabled for depression.  The fact that the DVA granted the applicant a 100 percent disability rating for depression, effective 2002, suggests, while there may have been a nexus with an event during military service, no evidence is presented to demonstrate that her mental illness was clinically present and unfitting at the time of the applicant’s discharge.  Therefore, unless additional clinical information from 1995 is presented for the review, the Psychiatric Advisor would not be able to prove that error or injustice took place in the decision rendered.  The complete advisory is at Exhibit H.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

The Board sent copies of the Air Force evaluations to the applicant on 13 Oct 17 and 17 Apr 18 for comment (Exhibit G and I), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error and injustice.  While the Board notes the comments of AFPC/DPFDD recommending partial relief should be granted, the Board believes a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, we agree with the AFBCMR Medical Consultant that although the DVA diagnosed the applicant with a mental disorder, in addition to her other conditions during her service, there is no evidence that a mental disorder, or other conditions, absent imposition of applicable profile restrictions, should have been included in the MEB proceeding as a contributory cause for career termination.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-00500 in Executive Session on 18 Sep 18:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 2 Feb 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 13 Jul 16.
Exhibit D:	Notification of Advisory, SAF/MRBR, dated 15 Nov 16.
Exhibit E:	Applicant’s response, w/atchs, dated 7 Dec 16.
Exhibit F:	Advisory, AFBCMR Medical Consultant, dated 4 Oct 17.
Exhibit G:	Notification of Advisory, SAF/MRBC to applicant, dated 13 Oct 17.
Exhibit H:	Advisory, AFBCMR Psychiatric Consultant, dated 1 Nov 17.
Exhibit I:	Notification of Advisory, SAF/MRBC, dated 17 Apr 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.