RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-05015

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His disability rating be changed from 20 percent to the 50 percent rating given to him by the Veterans Administration (VA).

APPLICANT CONTENDS THAT:

He worked very hard to get into shape to reenlist after a seven year break in service.  He intended to retire from the military, but after four years, he was injured in the line of duty (LOD) and found unfit to continue his service.  The LOD board rated his injuries at 20 percent, but the VA rated the same injuries at 50 percent.  

Since he did not have 20 years service or enough Reserve or Guard points, and his rating was below 30 percent, he could not receive a military retirement.

He cannot be buried at Arlington or receive other retired benefits because he could not finish his time before his LOD.

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

STATEMENT OF FACTS:

On 21 Apr 07, the applicant initially entered the Ohio Air National Guard (OHANG).

On 18 Jan 12, the Physical Evaluation Board (PEB) diagnosed the applicant with Cervical Spine Syrinx with Right Upper Extremity Neuritis, and determined the condition to be permanent and unfitting for continued service.  The PEB recommended discharge with severance pay and a disability rating of 10 percent.

On 28 Mar 12, the applicant was furnished an Honorable discharge, and credited with 4 years, 11 months, and 8 days service with the OHANG; 14 years, 2 months, and 16 days total service for retired pay, and 19 years, 8 months, and 5 days total service for pay.  Narrative reason was Disability with Severance Pay.

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

AIR FORCE EVALUATION:

AFPD/DPFDD recommends denial, indicating there is no evidence of error or injustice.

In Nov 11, the applicant was referred to the Disability Evaluation System (DES).  The Informal Physical Evaluation Board (IPEB) determined the applicant was unfit for continued military service due to Cervical Spine Syrinx with Right Upper Extremity Neuritis.  The IPEB recommended discharge with severance pay and a combined compensable disability rating of 10 percent.

Under Title 10, United States Code (USC), the Air Force IPEB determines if an Airman’s medical condition renders them unfit for duty and applies the rating best associated with the level of disability at the time of processing (snapshot in time).  The Department of Veterans Affairs (DVA), under Title 38, USC, may evaluate the member over a period of years and their rating may change based upon the member’s medical condition.  However, a change in the DVA rating does not change the rating awarded at the member’s separation.

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

AFPC/JA recommends denial, indicating there is no evidence of error or injustice.

On 18 Nov 11, the applicant was referred into the DES.  The IPEB found the applicant suffered from Cervical Spine Syrinx with Right Upper Extremity Neuritis.  This condition was adjudged to be unfitting for continued military service and carried a combined compensable disability rating of 10 percent.  On 13 Feb 12, the applicant agreed with the IPEB findings and declined to appeal his case further.

On 20 Jan 14, the DVA adjudged the applicant would receive a combined compensable rating of 50 percent based upon thoracic spine muscle strain, radiculopathy of the right upper extremity, and degenerative joint disease of the cervical spine with syrinx at C6-7 level.

In accordance with Department of Defense Manual (DoDM) 1332.18-V1, Disability Evaluation System Manual: General Information and Legacy Disability Evaluation System, encl. 4, para. d., the IPEB will apply a compensable disability rating generated by the Veterans Administration Schedule for Rating Disabilities (VASRD) and provided by the DVA.  As contemplated in DoDM 1332.18-V2, Disability Evaluation System Manual: Integrated Disability Evaluation System, encl. 4, app. 10, paras. 2 & 3, this rating, often referred to as the DVA’s “proposed rating,” will constitute the IPEB’s final rating and basis for its final recommendation as to unfitting conditions.  In this case, the “proposed rating” of 10 percent was applied and processed for the applicant’s case, resulting in discharge with severance pay.  That the applicant later received a revised disability rating through the DVA is irrelevant to his Air Force disability rating.  The Air Force disability rating is permanent at the time of separation or retirement.

A complete copy of the AFPC/JA evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims the disability rating of 10 percent for Cervical Spine Syrinx with Upper Right Extremity Neuritis adjudged by the IPEB was in error.  He also cites Section 1642 of the Wounded Warrior provisions of the 2008 National Defense Authorization Act (NDAA) requiring the service departments to make full use of, and not deviate from, the VASRD.

In the Narrative Summary, dated 13 Aug 11, the 179th Medical Group Flight Surgeon gave a diagnosis of right upper extremity cervical neuropathy with disturbance in sensation and pain.  Specifically, cervical syrinx C6-C7 and degenerative disc disease C4-C5 and C5-C6.  There are three individual ratable conditions that were not considered by the IPEB.

Based upon the totality of his medical record, and utilizing the VASRD, the applicant proposes his cervical syrinx C6-C7 diagnosed as Syringomyelia should have been rated at a minimum of 30 percent; degenerative disc disease C4-C5 and C5-C6 rated at 20 percent; and right upper extremity neuropathy rated at 40 percent.

According to the Combined Ratings table, these ratings equal 66 percent, which then rounds up to 70 percent.  If nothing beyond the diagnosed syrinx is rated, at 30 percent, this condition is sufficient to meet the requirement of a disability retirement.  By deviating from the VASRD to combine separate disabilities, the IPEB acted in an arbitrary and capricious manner, the net effect of which was to deprive the applicant of his vested property interest in disability retirement.

A complete copy of the Applicant Rebuttal is at Exhibit F.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however it is in the interest of justice to excuse the failure to timely file.

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, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationales as the basis for our conclusion the applicant has not been the victim of an error or injustice.  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-2016-05015 in Executive Session on 20 Mar 18 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-05015 was considered:

	Exhibit A.  DD Form 149, dated 13 Dec 16, w/atch.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 19 Oct 17.
	Exhibit D.  Memorandum, AFPC/JA, dated 3 Nov 17.
	Exhibit E.  Letter, SAF/MRBC, dated 28 Dec 17, w/atchs.
	Exhibit F.  Letter, Applicant Rebuttal, dated 18 Jan 18.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations regarding AFBCMR Docket Number BC-2016-05015, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.