RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01020

						COUNSEL:  NONE

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His medical discharge be changed to a medical retirement with 26 years of service and back pay.

APPLICANT CONTENDS THAT:

He should not have been released from active duty with an incomplete Line of Duty (LOD) determination for his sleep apnea.

According to AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, he should not have been released from active duty with an open and incomplete LOD with a recommendation of Formal LOD investigation.

While on deployment at Al Udeid Air Base, Qatar in August 2005, he suffered a Transient Ischemic Attack/Cerebrovascular Accident (TIA/CVA).  While he was undergoing a Medical Evaluation Board (MEB), he was diagnosed with Hypersomnia Sleep Apnea which is an unfitting condition with a VARD [sic] rating of 50 percent.  The evaluation for the CVA/TIA and Hypertension was forwarded to the MEB without inclusion of the Hypersomnia Sleep Apnea.  His physician requested an addendum to be added to his MEB to include the Hypersomnia Sleep Apnea.  

His decision to separate was based on the untimely and inaccurate information from the Informal Physical Evaluation (IPEB) and Formal Physical Evaluation Board (FPEB).  His final IPEB rating should have been 60 percent.  It should have included the 50 percent for the Hypersomnia Sleep Apnea, 10 percent rating for CVA/TIA and 10 percent rating for Uncontrollable Hypertension.

His squadron never conducted a formal LOD for his Hypersomnia Sleep Apnea.  Furthermore, his squadron did not following the procedures of the governing AFI or DODI for LOD determinations.

He appealed to the Physical Disability Board Review (PDBR).  The PDBR informed him on 15 January 2014, that his medical records were incomplete.  It was further noted that his master personnel records are stored in digital format and did not contain certain documents relating to his MEB and PEB proceedings.

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

STATEMENT OF FACTS:

On 25 April 1991, the applicant commenced his enlistment in the Air Force Reserve.

The applicant’s military personnel records reflect he was diagnosed with uncontrollable Hypertension in 1994 and suffered from a TIA/CVA in November 2001.

The applicant served in an active duty status in support Operation ENDURING FREEDOM from 26 November 2003 to 18 July 2006, and was released from active duty and reverted to his traditional status.

In April 2005, while deployed to Al Udeid Air Base, Qatar suffered another TIA/CVA.

An AFRC IMT 348, Informal Line of Duty Determination, was initiated for the applicant’s CVA.  On 6 February 2006, the applicant’s CVA was found to be in the Line of Duty (LOD).

On 4 January 2006, an AFRC IMT 348 was initiated for the applicant’s Hypertension.  On 14 February 2006, the applicant’s Hypertension was determined to be existed prior to service (EPTS) EPTS-Service aggravated.

On 5 May 2006, the applicant was diagnosed with Sleep Apnea.

On 11 May 2006, an AFR 348, Line of Duty Determination, was initiated for the applicant’s Sleep Apnea.  However, there were no additional remarks or signatures on page 2 of the form.

On the same date, the Informal Physical Evaluation Board (IPEB) reviewed the applicant’s case and recommended discharge with severance pay with a 20 percent compensable disability rating for the applicant’s Cerebrovascular Accident and Hypertension.

According to AFPC/DPFDD, the Electronic Case Tracking Database indicates an AFRC Form 348 was initiated on 2 June 2006 and reflects the Unit Commander recommended a formal LOD investigation, however, there were no additional remarks or signatures on the form.

According to AF IMT 100, Request and Authorization for Separation, the applicant was found unfit for continued military service and was honorably discharged with severance pay.

The applicant appealed to the Physical Disability Board of Review (PDBR) for his Sleep Apnea contending that he was not evaluated for this medical condition.   The PDBR denied the appeal.

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. 

Under Title 10, U.S.C, Physical Evaluation Boards must determine if a member’s condition(s) found in the LOD renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have other medical conditions does not mean that the condition(s) is/are necessarily unfitting for continued military service.  To be unfitting, the condition(s) must be such that it alone precludes the member from fulfilling their military duties.  In the member’s case the condition had not been found in the LOD and therefore was not submitted as a possible unfitting condition for consideration during the PEB review.

A thorough review of the applicant’s military medical health record (AHLTA) and the Electronic Case Tracking, database revealed the applicant expressed concern that his sleep problems were influencing his high blood pressure.  He underwent a polysomnogram and was diagnosed with consistent, mild to moderate obstructive sleep apnea.  The applicant underwent a Continuous Positive Airway Pressure (CPAP) titration and was discharged with appropriate instructions and prescriptions for a CPAP machine.

At the time of his separation, the applicant had been diagnosed with sleep apnea, had undergone a trial of CPAP, responded well and tolerated the CPAP trial well, but had not yet received his CPAP for home use.   

DPFDD concludes since most people respond well to CPAP with good clinical results, and the applicant responded well to his trial of CPAP, in cases like this they conclude that the sleep apnea will not affect the applicant’s duty status and that it is not unfitting for duty.  Since available medical records indicated that the sleep apnea did not affect his duty status, DPFDD would not have found it to be unfitting.  They believe that the IPEB in May 2006 would have had the same conclusion, since the sleep apnea was not unfitting there was (is) no reason to do an LOD determination, from a disability standpoint. In addition, the applicant was discovered to have had uncontrolled hypertension dating back to 2000, thus, his hypertension should have been classified as EPTS, and they did not find significant evidence of permanent service aggravation.

DPFDD recommends denial of the applicant’s request noting there was no evidence of an error or injustice occurring during the PEB process.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was being processed for an MEB/PEB when he was diagnosed with sleep apnea.  His primary care physician told him that the documentation for the sleep apnea would be forwarded to MEB/PEB with an addendum for a LOD determination.

According to AFI 36-2910, paragraph 1.6.8. For ARC, in addition to situations listed above, an LOD determination must be made when:  1.6.8.1. The member incurs or aggravates an illness, injury or disease, or received any medical treatment while serving in any duty status, regardless of the member’s ability to perform military duties.  The AFI further states in paragraph 1.7.5 Members should not be separated or retired while pending a final LOD determination.  The MEB/PEB for the sleep apnea was never completed and forwarded to the Informal or Formal PEB.

If the MEB had been completed and his sleep apnea rated, he would have received a medical retirement in 2006.  The Veterans Administration Schedule for Rating Disabilities (VASRD) code for Hypersomina is 8108 (Narcolepsy) and is considered unfitting for duty.

Research has shown that a stroke can cause sleep abnormalities.  Strokes alters the white matter in sleep apnea patients and affects the internal capsule and ventral lateral thalamus with axonal connections to the nearby hippocampus and amygdala, and the cerebral peduncle.

While it was noted that his medical records were incomplete, he has provided more than 700 pages of medical documentation, to include his informal LOD determination form with a completion date of 14 February 2006. 

According to AFI 36-2910, a new LOD determination must be accomplished when there is subsequent service aggravation of an illness, injury or disease.

He disagrees with the statement regarding most people responding well to CPAP with good clinical results and his responding well to his trial of CPAP and that in cases such as his it is concluded that the sleep apnea did not affect duty status and would not have been found unfitting.  He was not afforded the opportunity to return for a follow-up for the sleep study due to the LOD not being processed.  

The applicant’s complete response, with attachments, is at Exhibit E.

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 his rebuttal response, in judging the merits of the case.  While the applicant contends that a new LOD must be accomplished, the Board agreed with the opinion and recommendation of the office of primary responsibility that the IPEB would have come to the same conclusion since the Obstructive Sleep Apnea was not unfitting.  We also note the applicant appealed to the Physical Disability Review Board for his Obstructive Sleep Apnea and his appeal was denied.  The applicant is now appealing to the AFBCMR regarding the ratings for his Obstructive Sleep Apnea.  Under the provisions of 10 USC 1554a(4), once consideration has been provided by the PDBR the individual forgoes his right to appeal to the matter before the AFBCMR.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief as the applicant has exhausted his administrative appeals.

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 RECOMMENDS 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-2016-01020 in Executive Session on 27 June 2017, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 10 Mar 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD, dated 3 Jun 16.
	Exhibit D.  Letter, AFBCMR, dated 27 Dec 16.
	Exhibit E.  Letter, Applicant, dated 20 Jan 17, 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.