RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-00972

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her retired disability rating of 60 percent be increased to 100 percent.

APPLICANT CONTENDS THAT:

She is entitled to be medically rated and retired at a 100 percent disability rating, and corrected back pay to her retirement is justified.  The Department of Veterans Affairs (DVA) has evaluated the exact same, incurable condition (Hypogammaglobinemia) the Air Force medically retired her at 60 percent, and should have assigned her a disability rating of 100 percent based on the frequency of her intravenous transfusion treatment.  

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

STATEMENT OF FACTS:

On 8 Feb 11, a Medical Evaluation Board (MEB) convened for the condition referred to as Hypogammaglobulinemia.

On 15 Mar 11, the Informal Physical Evaluation Board (IPEB) found the applicant unfit and recommended permanent retirement due to Hypogammaglobulinemia, rated at 30 percent under Veterans Administration Schedule for Rating Disabilities (VASRD) analogous code 6399-6351.  

On 17 May 11, the Formal Physical Evaluation Board (FPEB) agreed with findings of the IPEB to use analogous VASRD code for HIV and for assignment of a 30 percent disability rating.  

On 18 May 11, the applicant did not agree with the FPEB findings, and further appealed to the Secretary of the Air Force Personnel Council (SAFPC) for a 100 percent disability rating and a change of the analogous VASRD code to 7702 to reflect Agranulocytosis.

On 11 Aug 11, the SAFPC agreed to change the applicant’s VASRD code to 6399-7702 and to increase her disability rating to 60 percent, but not to 100 percent, citing the specialty consultations in support of analogous code 7702.  Notwithstanding, the SAFPC found the medical record failed to reflect evidence of a bone marrow transplant, blood platelet or red cell transfusions, or infections every 6 weeks to qualify for the 100 percent desired.

On 30 Nov 11, the applicant was relieved from active duty, permanently disability retired with a compensable percentage for physical disability of 60 percent, effective 1 Dec 11, and was credited with eleven years, eleven months, and ten days of active service.  

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:

AFPC/DPFDD recommends denial indicating there is no evidence of an error or an injustice.  The applicant was referred to the Informal Physical Evaluation Board (IPEB) for physical disability processing in Feb 11.  She was found unfit by the IPEB, with a recommendation of Permanent Retirement (PR) with a combined compensable disability rating of 30 percent, for Hypogammaglobinemia, under Veterans Affairs Schedule for Rating Disabilities (VASRD) code 6351, HIV-Related Illness.  She non-concurred and appealed to the Formal Physical Evaluation Board (FPEB), and the FPEB upheld the PR with 30 percent recommendation.  The applicant further appealed to the Secretary of the Air Force (SAFPC) in May 11.  On 11 Aug 11, SAFPC recommended PR with a combined compensable disability rating of 60 percent, under VASRD code 7702, Acute Agranulocytosis.  She was medically retired effective 01 Dec 2011.  

The applicant submitted a copy of her DVA Rating Decision (VARD), dated 12 Nov 14, that proposed a rating of 100 percent under code 7702.  The VARD stated that hypogammaglobinemia (also claimed as chronic variable immune deficiency) was not specifically listed in the VASRD; therefore, it was rated analogous to VASRD code 7702, Acute Agranulocytosis.  The 100% rating was based on infections recurring at least once every six weeks; or requiring transfusion of platelets at least once every six weeks.  The SAFPC decision of a disability rating of 60 percent, was based on a review of the applicant’s military health records (AHLTA) which documented in the year prior to their decision, the applicant continued to get “intermittent” upper respiratory symptoms/Pharyngitis after starting IVIG (intravenous gamma globulin) at least every three months, but not every six weeks.  AFPC/DPFDD finds this frequency of at least every three months supports a rating of 60 percent, the SAFPC finding.  Two potential explanations why the DVA may have proposed a higher rating: 1.) they confused infusions of IVIG with platelets; or, 2.) the applicant may have had an increased frequency of inflections after the SAFPC decision and her retirement from the Air Force.  There is no indication an error or injustice occurred during processing of her MEB/disability case.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPR and argues that her their recommendation to deny her requested relief is legally unfounded and with errors.  She argues that DVA disability rating boards fall under the jurisdiction identified in U.S.C., Title 10, U.S. Court of Appeals for Veterans Affairs, therefore, the VA 100 percent disability rating has standing under the law, and the AF should take steps to correct the previous rating, and also make it retroactive to her retirement.  She contends the FPEB did not understand her rare condition, and actually laughed about it.  They egregiously assigned her condition to have been analogous to the horrid, socially stigmatized, sexually contagious, deadly disease of HIV.  SAF/PC changed the analogy, and retired her for the single condition of Hypogammaglobulinemia, using analogous VASRD Code 7702, with a 60 percent disability rating.  She argues that her IVIG treatments occurred every 28 days (well inside the analogous VASRD Code 7702 for the 100 percent rating which requires treatment at least every six weeks) beginning approximately one year prior to her retirement, the period the OPR states the frequency of infections occurred every three months, not every six weeks.  She argues that the disability rating should be dependent on the frequency of IVIGs, not frequency of infections.  In support of her response, she provides copies of a Texas Oncology report for current treatments, a DD Form 214, and a Mayo Clinic document explaining the treatments of her medical condition,  Also, the applicant argues that her application was filed in a timely manner based on the 12 Nov 14 DVA decision to assign a 100 percent disability rating.  Additionally she refutes the OPR’s note that CVID (common Variable Immune Deficiency) was also claimed, as the medical term CVID and Hypogammaglobulinemia are synonyms.

A complete copy of the applicant’s rebuttal with attachments is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice.  The applicant has not supplied evidence from a Decision Review Officer, in appeal, to indicate whether the 100 percent rating represented a de novo change in rating based upon worsening of her condition, versus an indicator that the initial rating decisions of 24 Apr 12, and 8 Nov 12 [not disclosed for this review] were clearly and unmistakably erroneous.  The Medical Consultant provided the disability rating criteria and VASRD analogous code available to SAFPC in considering the increased disability rating of 60 percent; which was also likely utilized by the VA in its rating decision of 100 percent, made effective 17 Jan 14, under VASRD analogous code 7702.  

The Medical Consultant notes in the disability rating criteria, the term OR appears as an alternative criterion to support a given disability rating.  While it is clear the Military Department [SAFPC] utilized infections recurring at least every 3 months in reaching its 60 percent rating decision on 11 Aug 11, no documentary evidence is supplied to indicate which criteria were utilized in the disability rating decisions by the DVA issued on 24 Apr 12 and  8 Nov 12.   However, the rating decision and printed decisional rationale for the 100 percent rating, issued on 12 Nov 14, are supplied and listed as:

--Infections recurring at least once every six weeks 
--Requiring transfusion of platelets at least once every six weeks.

He opines there is no clear distinction of which one of the above or whether both criteria were used by the DVA in reaching its rating decision.  What is very clear to him is that intravenous immunoglobulin (IVIG), although arguably derived from pooled human serum and was administered at least monthly, neither constitutes platelets nor red cells; to mean, the requirement for transfusion of platelets [which has a primary clotting function] at least once every six weeks, is beyond a reasonable anatomic or physiologic analogy in IVIG.   On the other hand, the record does indicate that the Military Department determined, at the time of evaluation in 2011, the applicant experienced infections receiving treatment at least once every three months upon which the 60 percent rating was based.  He opined it is at least as likely as not, the applicant may have experienced a greater or more frequent occurrence of infections, at the time of her 2014 DVA application and examinations to justify the 100 percent disability rating. The Medical Consultant reminds the applicant and the Board that the Military Department bases its rating determination upon the level of impairment and evidence present at the “snapshot” time of final military disposition.  Whereas, operating under Title 38, United States Code, the DVA is authorized to offer compensation for any medical condition determined service-incurred, without regard to its proven or demonstrate impact upon a former service member’s retainability, or fitness to serve, or the length of time since date of release from military service.  Moreover, the DVA is empowered to conduct periodic evaluations for the purpose of adjusting disability ratings [increase or decrease] as the level of impairment from a given medical condition may vary over the lifetime of the veterans; as likely occurred in the applicant’s case.  He acknowledges the potential for divergent interpretations of VA rating policies, as applies to a given case.  However, based upon the preponderance of supplied evidence, he opines the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 1 Mar 17 for review and comment within 30 days (Exhibit G).  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, to include her rebuttal, in judging the merits of the case; however, we agree with the opinions and recommendations of AFPC/DPFDD, and the BCMR Medical Consultant, and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Based upon the preponderance of evidence, the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record.  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-2016-00972 in Executive Session on 20 Apr 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00972 was considered:

	Exhibit A.  DD Form 149, dated 6 Mar 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 6 May 16.
	Exhibit D.  Letter, SAF/MRBR, dated 6 Dec 16.
	Exhibit E.  Applicant’s Rebuttal, dated 3 Jan 17, w/atchs.
	Exhibit F.  Memorandum, AFBCMR Medical Consultant, dated
			  17 Feb 17.
	Exhibit G.  Letter, SAF/MRBR, dated 1 Mar 17.

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.