RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-03038 

						COUNSEL:  NONE

HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

Her honorable discharge be changed to a medical retirement.  

APPLICANT CONTENDS THAT:

She had undiagnosed Multiple Sclerosis (MS) at the time of discharge on 19 Sep 11.  Early Sep 11, she was seen for tingling (Paresthesia) in her lower back, arms, and bilateral legs.  An X-Ray was performed to evaluate her condition, but an MRI was not deemed necessary at the time.   

An MRI of the brain was performed on 13 May 16.  The MRI findings in addition to consult evaluation resulted in the diagnosis of MS on 17 May 16.  A consulting physician in 2016 has opined that the applicant’s symptoms in Sep 11 were consistent with Lhermite’s sign, which he believes likely represented presence of MS at that time.  Had she undergone an MRI in Sep 11, the MS would have been diagnosed at the time of her discharge.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 18 Sep 05.

On 25 Aug 11, the applicant’s commander recommended she be discharged for Unsatisfactory Performance:  Failure to meet minimum fitness standards.  His reasons for this action were:

	a. On or about 22 Jun 11, she failed her AF fitness test with a score of 78.20.

	b. On or about 29 Mar 11, she failed her AF fitness test with a score of 79.70.  For this failure she received a Letter of Reprimand (LOR), dated 20 Apr 11.

	c. On or about 11 Jun 10, she failed her AF fitness test with a score of 73.05.  For this failure she received a LOR, dated 15 Jul 10.

	d. On or about 16 Feb 10, she failed her AF fitness test with a score of 74.25.  For this failure she received a LOR, dated 22 Feb 10.

	e. On or about 15 Jul 09, she failed her AF fitness test with a score of 70.00.  

On 31 Aug 11, the applicant responded to her commander’s Notification of Administrative Separation Action.  She apologized for inability to meet the standards required to continue in the AF, but accepted full responsibility for her physical performance.  She opined that she allowed the stress in her life interfere with her professional life, and her physical training suffered.  

On 7 Sep 11, the Staff Judge Advocate, after reviewing the applicant’s case file, finding it legally sufficient, and recommended the discharge authority separate the applicant, without suspension for probation and rehabilitation.  

On 19 Sep 11, the applicant was furnished an honorable discharge, and was credited with five years, eleven months, and two days of active service.   

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the AFBCMR Medical Consultant and AFBCMR Medical Advisor which are attached at Exhibits C, F, and I.  

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends denial, indicating there is no evidence of an error or an injustice.  The application was not filed within three years of the discovery of the alleged error or injustice, or with due diligence, should have been discovered.  Notwithstanding the above, prior to the reported Sep 11 back injury and the symptoms proposed to be consistent with MS, the applicant was already undergoing the process of being discharged due to failure to maintain fitness standards.  The applicant has no medical documentation to suggest that MS or any other condition, e.g. MCL/ACL tear or upper extremity weakness, contributed to her inability to maintain fitness standards.  The medical provider(s) at the time of military discharge did not consider the applicant’s presentation warranted Medical Hold for further evaluation, up to and including additional studies, e.g., MRI scan or specialty consultation, e.g., neurology.

The presentation of MS and its diagnosis is not straightforward.  It may vary from person to person.  Without any attempt to discredit or otherwise disrespect the medical opinion of the applicant’s medical provider, in the absence of objective data, it is not possible to determine with absolute certainty that the applicant had MS at the time of discharge.  Furthermore, there is insufficient compelling evidence to support that the applicant had symptomatology that rendered her unfit for continued military service therefore, warranting consideration by the Integrated Disability Evaluation System (IDES).  

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 2 Aug 17, the applicant responded by contending Air Force medical personnel maintained contact with her after her Sep 11 separation, and advised her to get an MRI if she was still experiencing tingling sensation (sign of Lhermitte’s Phenomena), because an X-ray would miss demyelinating lesions.  She contends her symptoms noted before her Sep 11 discharge, coincide with MS.  In further support of her request, she provided post discharge 15 Jul 16 Department of Veterans Affairs (DVA) medical evaluation (Exhibit E). 

ADDITIONAL AIR FORCE EVALUATION:

AFBCMR Medical Consultant recommends denial, indicating there is no evidence of an error or an injustice.  After review of the additional information (15 Jul 16 DVA med eval), the Medical Consultant determined it did not provide compelling justification to change the prior recommendation to deny the requested relief. According to DVA documentation dated 15 Jul 16, they acknowledged the applicant’s diagnosis of MS and awarded disability rating for conditions associated with MS.  The DVA is within the purview of its authority and scope of practice to evaluate, rate and compensate members for what it deems to be service-connected medical conditions.  When addressing the applicant’s expressed desire for a medical retirement, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences.  The DVA determinations and subsequent actions have no bearing.  It does not change that the evidence in this case supports that the applicant’s discharge was not due to any medical condition for which she should have been directed to the IDES.  Inability to meet standards and pass the fitness test not an unfitting medical condition was the precipitating factor for the member’s discharge.

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit F.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant argues that the symptoms (tingling) she was experiencing prior to and shortly after her discharge coincide with MS.  She contends the Medical Group personnel, shortly after her discharge, noted that if she was still experiencing the tingling sensation she would need an MRI of her cervical spine.  She is aware it may take some time to diagnose MS, which she contends her medical records reveal her symptoms (tingling in arms and legs) coincide with MS.  In further support of her request, she provides post discharge medical care documentation dating from Oct 11 to May 16 (Exhibit G).  

ADDITIONAL AIR FORCE EVALUATION

AFBCMR Medical Advisor recommends denial.  The applicant requests that her “type of discharge,” which is currently Honorable, be changed to a Medical retirement.  She contends the record to be in error or unjust, describing an episode of care she received in early Sep 11, for a complaint of “tingling (paresthesia) in lower back, arms, and bilateral legs.”  She further disclosed that an X-ray was performed “to evaluate the issue further, but nothing more,” e.g., “a referral was not given to provide an MRI,” but that “on 13 May 16, she had an MRI conducted due to similar symptoms felt in Sep 11, and that a diagnosis of MS was provided to her on 17 May 16 by her Primary Care Manager (PCM); a condition for which she is “currently being treated.”  A civilian neurologist supplied a memorandum, dated 13 July 16, on which the applicant was characterized as an individual “with significant disease indicative of several years of active demyelinating disease likely well preceding the date of her recent diagnosis.”  The provider continued, “While she was not diagnosed in 2011, she has a copy of her evaluation at the time of her initial flare wherein she was describing a positive L’Hermitte’s phenomenon (this is tingling/electrical sensation down the spine with neck flexion).  This is likely representative of her initial cervical lesion.  At the time, she underwent only cervical X-ray; this would miss a demyelinating lesion in the spine, as this requires MRI imaging with contrast to visualize.”  The provider concluded, “She then went on to have further events such as diplopia; however, only recently has she undergone MRI imaging with ultimate diagnosis.”

The Medical Advisor opines that the additional evidence submitted by the applicant remains insufficient to direct a de facto Medical Hold, conduct a Medical Evaluation Board, and issue an unfit finding and a medical retirement by a Physical Evaluation Board for MS; solely due to the Air Force provider’s inability to order an MRI scan of the cervical spine, because the applicant had departed service.  There is no documented evidence that the applicant sought or received the implicitly agreed upon follow-up evaluation with the VA, or any other medical institution (23 Oct 11 radiologist’s recommendation), until experiencing an apparent recurrence of similar symptoms, on or about 17 Apr 16.  It should be noted that in the interim, between the applicant’s telephone encounters of Oct 11 and her diagnostic MRI findings in May 16, she presented for care several times during CY 2014, CY 2015, and a portion of CY 2016 with no symptoms suggestive of MS or a neurological impairment, e.g., radiculopathy, until Apr 16 and her ultimate neurological referral and MRI scans in May 16.  Finding fault at this juncture is of no use, the Medical Advisor opined the standard of care was met by the military provider prior to the applicant’s discharge and since she had departed service when the results of the studies were available, there was an apparent telephonic doctor-patient implicit agreement to obtain further evaluation with the VA.  This is not the same as an emergency medical transfer from one medical facility to another, wherein there must be defined doctor-to-doctor, or facility-to-facility communication to accept a patient in transfer.  

Evidence may be sufficient to support a claim for service-connection for MS through the DVA, based upon the medical opinion supplied by the neurologist who believes there is a nexus between the applicant’s paresthesias experienced [referred to a L’Hermitte’s sign] in Sep 11 and her recurrence of similar symptoms in Apr 16.  Unlike the Military Department, which offers compensation only for the condition(s) that caused career termination, the DVA operating under Title 38, United States Code, is authorized to offer compensation for any medical condition with a nexus with military service; without regard to its proven or demonstrated impact upon a service member’s retainability, fitness to serve, the narrative reason for discharge, or length of time since the date of separation.  

A complete copy of the AFBCMR Medical Advisor evaluation is at Exhibit I.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 22 Jan 18 for review and comment within 30 days (Exhibit J).  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 an injustice.  We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that the applicant was improperly separated from active duty in 2011.  Based on the preponderance of the evidence, it appears the applicant’s discharge was properly adjudicated and we found no evidence which would lead us to believe that her separation was in error or contrary to the governing Air Force instructions.  The applicant’s case has undergone an exhaustive review by the BCMR Medical Consultant and we did not find the evidence provided, sufficient to overcome his assessment of the case.  Therefore, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain her burden of proof that she has suffered from an error or injustice.  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-2016-03038 in Executive Session on 21 Mar 18 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-03038 was considered:

	Exhibit A.  DD Form 149, dated 21 Jul 16, w/atch(s).
	Exhibit B.  Master Personnel Records [Excerpts].
Exhibit C.  Advisory, AFBCMR Med Consultant, dated 
  30 Nov 16. 
	Exhibit D.  Letter, SAF/MRBC, dated, 6 Mar 17.  
	Exhibit E.  Rebuttal, Applicant, dated 2 Aug 17, w/atch.
	Exhibit F.  Advisory, AFBCMR Med consultant, dated
			  28 Sep 17.  
	Exhibit G.  Letter, SAF/MRBC, dated 10 Oct 17, w/atch.
	Exhibit H.  Rebuttal, Applicant, received 20 Oct 17, w/atchs.
	Exhibit I.  Advisory, AFBCMR Med Advisor, 17 Jan 18.
	Exhibit J.  Letter, SAF/MRBC, dated 22 Jan 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 AFBCMR Docket Number BC-2016-03038.