RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01358 

						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Her compensable percentage for physical disability of 30 percent be changed to reflect 51 percent, effective 24 May 2011.  

APPLICANT CONTENDS THAT:

Her evaluation of present conditions, directly measurable, and secondary to multiple sclerosis (MS) were deferred by the Department of Veterans’ Affairs (DVA) and the United States Physical Evaluation Division during the Integrated Disability Evaluation System (IDES) process.  Her category I – unfitting conditions which are compensable and ratable were incomplete and delayed by the DVA.  She requested the one-time disability rating reconsideration of her unfitting conditions under the IDES.  However, her concerns were not fully addressed.  

Her disability rating change will benefit her at the state and county level.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 1 February 1988.  

On 1 July 2009, according to a Medical Evaluation Board (MEB) narrative summary, the applicant was recommended for disposition by a MEB due to her diagnosis of relapsing, remitting multiple sclerosis, hypertension, and migraine headaches.  

On 8 September 2009, an AF Form 469, Duty Limiting Condition Report, was initiated indicating the applicant is placed on duty/mobility restriction and is undergoing an MEB to determine her medical fitness for continued worldwide duty and retention.  The VA portion of the MEB under the IDES pilot program is complete, awaiting an updated MEB narrative submission.  
On 19 October 2009, according to the applicant’s Addendum to MEB Summary, her relapsing, remitting multiple sclerosis well controlled on Rebif three times per week subcutaneous.  Hypertension well controlled on Lisinopril/hydrochlorothiazide and migraine headaches responsive to Zomig as needed.  No changes in any of her diagnoses and the plan remains the same since the last dictation of 1 July 2009.  

On 12 April 2010, according to the applicant’s Addendum to MEB Summary, there was only one episode in October 2009 with her MS diagnosis and no changes to her other diagnoses.  Her assessment plan remain the same as last noted as of 19 October 2009.  

On 14 April 2010, an AF IMT 1185, Statement of Record Data, was initiated showing the applicant elected not to request an impartial review or submit a rebuttal to the MEB findings.  

On 15 April 2010, the applicant acknowledged that she was briefed on the Disability Evaluation System (DES) process, she could request an Air Force physician or other appropriate health care professional (not involved in his MEB process) to offer an impartial review of the medical evidence, and her responsibility to file a disability claim with the Department of Veterans Affairs (DVA), if so desired.  

On 16 April 2010, a Medical Evaluation Board (MEB) convened to consider the applicant for continued active duty.  The applicant was diagnosed with multiple sclerosis, migraine headaches, and hypertension with the approximate date of origin on 14 November 2007, 8 June 2007, and 20 March 2008 respectively.  The MEB recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB) to determine her fitness to serve.  

On 14 September 2010, an IPEB was convened which found the applicant unfit due to multiple sclerosis, relapsing/remitting.  The IPEB indicated the applicant was a participant of the IDES program and would finalize their recommendation upon receipt of ratings from Veterans Affairs (VA).  

On 15 September 2010, the PEB requested the VA to provide the applicant a disability rating percentage to include its rationale.  

On 10 November 2010, the VA proposed a disability rating of 30 percent for the applicant’s unfitting service-connected diagnosis of multiple sclerosis.  In addition the VA proposed a total combined rating of 50 percent for the applicant’s unfitting and claimed service-connected disabilities.  

On 7 December 2010, an IPEB reconvened and found the applicant unfit for continued service because of physical disability and determined that her medical condition was incurred in LOD.  The IPEB determined the applicant’s degree of impairment was permanent and recommended she be permanently retired with a 30 percent compensable disability rating.  
On 21 December 2010, the applicant agreed with the findings and recommended disposition of the IPEB.  She waived her right to a formal PEB hearing, but requested a one-time reconsideration of disability ratings for her unfitting conditions under the IDES.  

On 22 December 2010, the Physical Evaluation Division requested the VA provide the applicant a one-time reconsideration of her rating and to submit any updated ratings.  Specifically, the applicant refuted the determination that she had one unfitting condition and disagreed with the 30 percent disability rating for multiple sclerosis since her underlying issues central to the diagnosis were not addressed.  

On 8 February 2011, in response to the request for reconsideration of the proposed IDES rating decision dated 10 November 2010, the IDES informed the Physical Evaluation Division that no change is warranted in the prior decision of the proposed evaluation of multiple sclerosis.  A minimum evaluation of 30 percent is confirmed and continued in the absence of evidence of additional disabilities associated with multiple sclerosis.  

On 10 February 2011, officials with the Office of the Secretary of the Air Force (SAF) determined the applicant was physically unfit for continued military service and the Secretary of the Air Force directed she be permanently retired under the provisions of Title 10, United States Code, Section 1201.  

On 24 May 2011, the applicant was honorably discharged with a permanent disability retirement in the grade of lieutenant colonel with a compensable percentage for physical disability of 30 percent.  She was credited with 23 years, 3 months, and 23 days of active service for retirement.  

According to the applicant’s DVA Rating Decision, dated 6 July 2011, she was awarded an overall or combined 50 percent disability rating, increasing to 70 percent disability rating on 14 December 2011, and subsequently increasing to 100 percent disability rating on 10 June 2013.  

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.  There is no indication an error or injustice on the part of the PEB during processing of the member’s disability case.  In accordance with Department of Defense Instruction (DODI) 1332.38, the responsibility of the Physical Evaluation Boards is to determine whether a service member’s injury or illness renders them unfit to perform the duties of their office, grade, rank or rating.  The Department of Veterans Affairs is charged with determining the level of disability and assigning a rating percentage in accordance with the Veterans Administration Schedule for Rating Disabilities.  In the applicant’s case, she is contending the DVA did not review all pertinent data during her requested reconsideration of the initial proposed rating percentage.  It appears from the documentation provided she later addressed her concerns to the DVA during an appeal and she was rated 30 percent for the Insomnia (claimed as persistent fatigue) associated with Multiple Sclerosis.  An increase in rating by the VA after separation from the service does not warrant a change in the total compensable rating awarded at the time of the member’s separation, unless the effective date was prior to the member’s date of separation.  Unfortunately, we are unable to address how the DVA determine the effective day of this additional condition and would defer this to the DVA for their review and comments.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant appreciates the attention given by the OPR to her lengthy ordeal with the Integrated Disability Evaluation Pilot Program (IDES Pilot).  However, in her case, the IDES process did not work as a one stop full evaluation for her, the service, or the DVA and had some key challenges.  Moreover, neither the Air Force nor the DVA afforded her the opportunity for Veteran’s Service Organization (VSO) representation during this process, as required by policy and procedures.  She expressed her desire for VSO representation to both the PEBLO and VA and was told they were not involved in the IDES process.  The unfitting conditions rating was incomplete and the Air Force and DVA denied her due process during the IDES Pilot processing.  Specifically, the VA did not rate all aspects of her unfitting condition and the PEB did not ensure all medical evidence was considered.  

Her application was timely filed and the pilot program was for a single exam process and unfortunately, the disability evaluation was perfunctory and incomplete.  Her multiple sclerosis, with persistent fatigue was not evaluated or reviewed prior to issuing her medical retirement orders and she refutes the DVA effective date for her unfitting conditions was well after her separation.  

The VA did not medically examine or rate her MS related conditions until the VSO intervened, which was after her medical retirement.  Her research disclosed that neither the USAF PEBLO, IPEB nor the VA followed established guidelines nor considered all medical evidence prior to establishing and determining her fitness for duty and subsequent disability rating.  

The applicant’s complete submission, 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 her rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  We note, service members are given an opportunity for an Impartial Review of their MEB by a disinterested medical professional; for the principal purpose of assuring the member receives a fair consideration of all of his or her medical conditions.  While we note the applicant’s contentions that neither the USAF PEBLO, IPEB nor the VA followed established guidelines nor considered all medical evidence prior to establishing and determining her fitness for duty and subsequent disability rating, we find the applicant declined an Impartial Review of her case by a disinterested medical professional.  This would have been the time and opportunity to state her case regarding inclusion of additional medical conditions she, or her impartial provided, believed should be included in the MEB process.  We further note the applicant waived her right to a formal PEB hearing.  

The DVA operates under a different set of laws with a different purpose.  It is authorized to offer compensation for any medical condition determined service-incurred, without regard to [and independent of] its demonstrated or proven impact upon a service member’s ability to perform his or her military duties or worldwide qualification.  This is the reason why an individual can be released from military service for one reason and, yet, sometime thereafter receive a compensation rating from the DVA for one or more additional medical conditions that were service-connected, but not proven militarily unfitting at the time of release from military service.  The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran.  Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.  

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-2016-01358 in Executive Session on 6 July 2017 under the provisions of AFI 36-2603:

					Panel Chair
					Member
					Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 1 April 2016, w/atchs.
	Exhibit B.  Master Personnel Records Excerpts.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 23 June 2016.
	Exhibit D.  Letter, AFBCMR, dated 22 February 2017.
	Exhibit E.  Letter, Applicant, dated 18 March 2017, 
                 w/atchs.