RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2017-04516 

						COUNSEL:  YES

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

Through counsel, her disability separation be changed to a disability retirement.  

APPLICANT CONTENDS THAT:

Based upon her complete medical file, including the medical records of her civilian cardiologist, she should be eligible to receive disability retirement pay.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 9 Jul 88.

On 8 Sep 10, the informal Physical Evaluation Board (PEB) found the applicant unfit because of physical disability with a compensable rating of 10 percent for the unfitting condition of ventricular tachycardia and recommended discharge with severance pay.  

On 20 Sep 10, the applicant disagreed with the findings and recommendation of the informal PEB and requested a formal hearing.  In her rebuttal, she contended she suffered from supraventricular arrhythmias (diagnostic code 7010) and the more appropriate rating for her condition was 30 percent based on at last 7 supraventricular (SVT) events.  In support of her contention, she provided the formal PEB with a letter from her cardiologist, dated 22 Nov 10, stating the applicant had been diagnosed with SVT.  

On 23 Nov 10, the formal PEB found the applicant unfit because of physical disability with a compensable rating of 10 percent for the unfitting condition of ventricular tachycardia and recommended discharge with severance pay.  

On 29 Nov 10, the applicant agreed with the findings and recommended disposition of the formal PEB.  

On 28 Jan 11, the applicant was furnished an honorable discharge, and was credited with 12 years, 6 months, and 20 days of active service.  

On 12 Sep 17, the U.S. Court of Federal Claims, granted the applicant’s motion for remand and on 5 Oct 17, the Office of the Clerk, U.S. Court of Federal Claims, notified the AFBCMR of the decision that order the AFBCMR to evaluate her claim for disability retirement pay and reach a decision no later than 15 Feb 18 (see Exhibit C).  

On 17 Oct 17, through counsel, the applicant provided a DD Form 149, Application for Correction of Military Record, with attachments (see Exhibit A).

On 17 Nov 17, pursuant to the Court Order, the AFBCMR staff requested from the applicant’s counsel any additional documentation within 30 days in support of her request.  That same day, counsel responded they would not provide any additional documentation.

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

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial indicating there is no evidence of an error or an injustice.  By law, Physical Evaluation Boards (PEBs) must determine if a member’s condition(s) 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 these conditions are necessarily unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  Upon review of the case file the informal and formal physical evaluation boards found no evidence that her intermittent SVT, which is sometimes seen in conjunction with her VT, is unfitting in and of itself. The boards further found no evidence to indicate the applicant had any other unfitting conditions at the time her medical board was processed.  

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

The AFBMCR Medical Advisor recommends granting the applicant’s request for a disability retirement instead of a discharge with severance pay indicating there is evidence of an error or an injustice.  After an extensive review of the applicant’s medical records, the applicant underwent an MEB specifically for ventricular tachycardia and was found unfit only for the ventricular tachycardia; which was rated at 10 percent and not contested by the applicant until the current BCMR application.  Taken alone, the applicant’s supraventricular tachycardia (SVT) may not have been perceived as individually unfitting by previous PEBs, the fact that the condition was intractable or recurrent and posed an indeterminate health risk (.e.g., sudden deterioration into a more serious arrhythmia), was sufficient to consider the condition incompatible with the rigors attendant with military service.  Moreover, documented events suggest a significant clinical relationship between the onset of the applicant’s narrow complex tachycardia, its transition into a wide-complex tachycardia, and back to narrow-complex tachycardia during the same clinical assessment.

The combined effect of both arrhythmias warrants adopting the hyphenated VASRD code arrangement of the Department of Veterans Affairs, 7010-7011, but with assignment of a 30 percent disability rating, as previously requested at the FPEB, under hyphenated VASRD code 7010-7011.  The applicant’s METs of “3 to 5,” [that resulted in the initial 60 percent Veterans Affairs’ (VA) disability rating], as estimated by the VA rating official, was probably a clinical over-estimation of the applicant’s actual myocardial function; and likely did not take into account other factors contributing to fatigue and shortness of breath, e.g., the applicant’s co-morbid asthma and likely sub-optimal physical conditioning.  

While the MEB concentrated only on the applicant’s ventricular tachycardia, her recurrent symptoms, multiple ablations procedures, and absences from duty, were predominantly the result of SVT or other unexplained source, e.g., a concealed atrio-ventricular accessory pathway; ultimately requiring node ablation and implantation of a Cardioverter-Defibrillator.  The Medical Advisor also took into consideration the uncertainly of the stability of the applicant SVT at the time of discharge, in the statements by the military provider at her 26 Jan 11 separation examination, noting that “because she has not responded to electrophysiology x 3, will need pacemaker,” for a condition which was not found unfitting (the Medical Advisor added the final phrase). 

The AFBMCR Medical Advisor acknowledges the “wind-fall” benefits offered to the applicant since CY 2011, if granting this recommendation, but found it difficult to ignore the totality of facts of record, in acknowledging the likely co-morbid influence of the applicant’s SVT [perhaps the more benign of the two arrhythmias, but from the same heart] on the applicant’s fitness to serve; with the rating based upon the number of documented episodes in the year preceding her separation.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel refutes virtually every point made by the OPR and argues that since AFPC/DPFD made no mention of reviewing the evidence submitted by the applicant, he does not find their advisory opinion particularly helpful or persuasive.  However, counsel notes the AFBCMR Medical Advisor provided an objective advisory opinion after a thorough review of the applicant’s medical records and request the Board correct the injustice by following the AFBCMR Medical Advisor’s recommendation.  

A complete copy of the counsel’s response is at Exhibit G.  

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice.  While we note the comments of AFPC/DPFDD indicating that relief should be denied because the applicant’s records contain no documentation substantiating the applicant’s contention that her intermittent SVT, which is sometimes seen in conjunction with her VT, was unfitting at the time her medical board was processed, we believe a preponderance of the evidence substantiates that corrective action is warranted.  In this respect, we agree with the opinion and recommendation of the AFBMCR Medical Advisor and adopt his rationale as the basis for our conclusion the applicant has been the victim of an error or injustice and that her SVT condition was also unfitting.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

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 pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

a.  On 23 November 2010, she was found unfit to perform the duties of her office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; the unfitting diagnosis in her case was for Ventricular Tachycardia and Supraventricular Tachycardia, hyphenated VASRD code 7010-7011, with a disability rating of 30 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not received as a direct result of armed conflict or caused by an instrumentality of war.

	b.  On 28 January 2011, she was released from active duty by reason of physical disability with a 30 percent compensable disability rating, and permanently retired on 29 January 2011. 

	c.  Her election of the Survivor Benefit Plan option will be corrected in accordance with her expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.

The following members of the Board considered AFBCMR Docket Number BC-2017-04516 in Executive Session on 6 Feb 18 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2017-04516 was considered:

	Exhibit A.  DD Form 149, dated 17 Oct 17, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, Office of the Clerk of the Court,
  U.S. Court of Federal Claims, dated 5 Oct 17,
  w/atchs.  
	Exhibit D.  Memorandum, AFPC/DPFDD, dated 21 Nov 17.
Exhibit E.  Memorandum, AFBCMR Medical Consultant, dated 
			  16 Jan 18.
	Exhibit F.  Letter, SAF/MRBR, dated 18 Jan 18.
	Exhibit G.  Email, Counsel, dated 31 Jan 18, 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.