RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-02003 

						COUNSEL:  NONE
	
						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

Her medical separation be changed to a medical retirement.

APPLICANT CONTENDS THAT:

Her medical separation after more than 17 years of service is an injustice, and she should have been medically retired.  During the medical evaluation board process she was told she could not be medically retired since she did not have 18 years of service.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 10 Jul 96.  On 27 Apr 14, the applicant was furnished an honorable discharge, and was credited with 17 years, 9 months, and 27 days of active service.

AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 15 May 13, indicates applicant was being evaluated for the recommended unfitting condition of Right Knee Pain secondary to degeneration, pending receipt of ratings from the Department of Veterans Affairs (VA).

VA proposed Rating Decision, dated 14 Jun 13, provided the following proposed conditions:

Condition	Proposed Rating	
PEB Referred Proposed DES Service Connected Disabilities:	
RECURRENT RIGHT MEDIAL MENISCUS TEAR WITH CHONDROMALACIA STATUS POST MENISCECTOMY (RIGHT KNEE PAIN SECONDARY TO DEGENERATION)	10%	
Proposed DES Service Connected Disabilities:	
DEGENERATIVE CERVICAL SPONDYLOSIS (CLAIMED AS NECK CONDITION, FACET)	10%	
LUMBAR SCOLIOSIS (CLAIMED AS SPINE CONDITION, LOWER BACK, CURVATURE)	10%	
RIGHT WRIST, DEQUERVAIN'S TENOSYNOVITIS	10%	
LEFT WRIST, DEQUERVAIN'S TENOSYNOVITIS	10%	
OSTEOARTHRITIS, RIGHT SHOULDER, STATUS POST SUBPECTORAL BICEPS TENODESIS (RIGHT SHOULDER CONDITION, ROTATOR CUFF, OSTEOARTHROSIS)	10%	
TINNITUS	10%	
SURGICAL SCARS, BACK AND RIGHT BREAST, STATUS POST MOLE REMOVAL	0%	
ALLERGIC RHINITIS	0%	
HIATAL HERNIA WITH ESOPHAGEAL REFLUX	0%	

AF Form 356, dated 19 Sep 13, found the service member’s (SM) medical condition (Right Knee Pain secondary to degeneration) prevents her from reasonably performing the duties of her office, grade, rank, or rating.  

The Informal Physical Evaluation Board (IPEB) found the applicant unfit and recommended discharge with severance pay with a disability rating of 10% IAW Veterans Administration Schedule for Rating Disabilities guidelines.  

AF Form 356, dated 16 Oct 13, reflects the applicant concedes that her right knee condition, rated at 10% IAW DC 5259 is unfitting for military service.  However, she contends that her degenerative cervical spondylosis, rated at 10% by the VA, is an additionally unfitting Category I condition and that, therefore, she should be discharged with severance pay with a combined disability rating of 20%.  

The Formal Physical Evaluation Board (FPEB) found the conditions in Category I (Right Knee Pain secondary to degeneration; and Degenerative Cervical Spondylosis) unfitting and recommends discharge with severance pay with a disability rating of 20% IAW Department of Defense guidance for applying the Veterans Administration Schedule for Rating Disabilities guidelines.  The conditions in Category II (Lumbar Scoliosis; Right Wrist, Dequervain’s Tenosynovitis; Left Wrist, Dequervain’s Tenosynovitis; Osteoarthritis, Right Shoulder; and Tinnitus) do not appear to affect her ability to perform her duties and are not unfitting for duty.

A subsequent proposed VA Rating Decision, dated 24 Jan 14, proposed the following unfitting disabilities related to military service:  Degenerative Cervical Spondylosis at 10%, and Right Knee Meniscus Tear with Chondromalacia Status Post Meniscectomy at 10%.  Their proposed combined rating for unfitting and claimed service-connected disabilities is 50%.

AF Form 356, dated 28 Jan 14 (Exhibit B, page 4), reflects revised FPEB findings IAW VA proposed rating decision dated 24 Jan 14.  The FPEB found the conditions in Category I (Degenerative Cervical Spondylosis at 10%, and Right Knee Meniscus Tear with Chondromalacia Status Post Meniscectomy at 10%) unfitting and recommended discharge with severance pay with a disability rating of 20%.  The conditions in Category II (Lumbar Scoliosis; Right Wrist, Dequervain’s Tenosynovitis; Left Wrist, Dequervain’s Tenosynovitis; Osteoarthritis, Right Shoulder, Status Post Subpectoral Biceps Tenodesis; and Tinnitus, were determined not to affect her ability to perform her duties and not unfitting for duty.

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

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial indicating there is no evidence of an error or an injustice.  

To qualify for a medical retirement, the percentage of disability for unfitting conditions must reach 30% or more, or the service member must have achieved 20 years or more of active service.  

The applicant’s combined VA rating of 70% disabled does not have any bearing on her separation status from the Air Force (AF).  The AF and VA are separate agencies, operating under different laws and directives.  The AF rates the disabilities of its members in accordance with the VA Schedule for Rating Disabilities.  However, all the general policies of the VA do not apply to the AF; thus, the findings of the VA and the AF may differ.  The AF Physical Evaluation Boards must determine whether an airman’s medical condition renders them unfit for duty.  If the board renders a finding of unfit, the law provides for compensation to those members whose careers are shortened due to a service-incurred/aggravated physical disability.  However, to receive such compensation, each medical condition must, in and of itself, render the airman unfit for duty.  Under the VA system (Title 38, U.S.C), the law provides for compensation for veterans based on the average impairment in earning capacity resulting from all service-connected diseases and/or injuries.  Furthermore, the disability provisions of Title 10. U.S.C. require the military services to rate disabilities based on the military member’s current condition at the time of disability processing.  The VA may rate based upon future employability.  This, plus the fact that the VA may perform evaluations at a later time, often results in different ratings by the two agencies.

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

BCMR Medical Advisor recommends denial indicating there is no evidence of an error or an injustice.

According to Instruction 1332.38, Physical Disability Evaluation, Enclosure 3, Part 3, Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification, paragraph E3.P3.2.1, reads “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.”  Although the previous Instruction has since been set aside, the essence of the policy is retained under a more recent publication, DoDI 1332.18, Disability Evaluation System, 5 Aug 14, and includes two additional criteria for determining unfitness, “A Service member may also be considered unfit when the evidence establishes that: (1) The Service member’s disability represents a decided medical risk to the health of the member or to the welfare or safety of other members; or (2) The Service member’s disability imposes unreasonable requirements on the military to maintain or protect the Service member.  With respect to evidentiary standard for determining unfitness because of disability, under the new DoDI 1332.18, “The Secretary of the Military Department concerned must cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine a Service member is unfit because of disability.”  Additionally, “With the exception of presumption of fitness cases, the Secretary of the Military Department concerned will determine fitness or unfitness for military service on the basis of the preponderance of the objective evidence in the record.”  In the case under review, although the applicant has been assigned disability compensation for several conditions, for there is insufficient evidence to indicate that the applicant’s other medical conditions were so severe of as to disqualify her from worldwide duty to the extent or duration that warranted an independent basis for referral for Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) processing.

A complete copy of the MRB Medical Advisor evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In support of her response, the applicant provided additional medical documentation. 

The applicant’s complete response is at Exhibit G.

ADDITIONAL AIR FORCE EVALUATION:

BCMR Medical Advisor recommended denying the application, and reiterated the VA is authorized to offer compensation for any service-incurred medical condition, without regard to its proven or demonstrated impact upon a former service member’s retainability or fitness to serve.  Moreover, the VA is empowered to conduct periodic evaluations for the purpose of adjusting the disability ratings, as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.  

The complete advisory is at Exhibit H.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In support of her response, the applicant provided a letter reiterating her medical conditions were not all adequately taken into account at her separation, and she is unable to find gainful employment which pays well. 

The applicant’s complete response is at Exhibit J.

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 office of primary responsibility (OPR) and the BCMR Medical Advisor and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 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-2016-02003 in Executive Session on 19 Jun 18 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02003 was considered:

	Exhibit A.  Application, DD Form 149, w/atchs, dated 16 May 14.
	Exhibit B.  Documentary evidence, including relevant excerpts from official records.
	Exhibit C.  Advisory Opinion, AFPC/DPFDD, dated 26 Jul 16.
	Exhibit D.  Notification of Advisory, SAF/MRBC to applicant, dated 10 Mar 17.
	Exhibit E.  Advisory Opinion, BCMR Medical Advisor, dated 24 Oct 17.
	Exhibit F.  Notification of Advisory, SAF/MRBC to applicant, dated 12 Dec 17.
Exhibit G:  Applicant’s Response, w/atchs, dated 11 Jan 18.
Exhibit H:  Additional Advisory opinion, BCMR Medical Advisor, dated 14 May 18.
Exhibit I:  Notification of Advisory, SAF/MRBC to applicant, dated 16 May 18.
Exhibit J:  Additional Applicant’s Response, dated 22 May 18.
	
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.