ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2018-02886-2

	COUNSEL: YES

	HEARING REQUESTED: NOT INDICATED

APPLICANT’S REQUEST

The Board reconsider his request to increase his ratings for cystic kidney disease to 40 percent, for his ankylosing spondylitis to 20 percent and to add psoriatic arthritis as an unfitting condition rated at 60 percent (amended).

RESUME OF THE CASE

The applicant is a permanently retired Air Force lieutenant colonel (O-5).

On 4 Jun 19, the Board considered and denied his request to increase his final disability rating from 40 percent to 75 percent; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  The Board concurred with the opinion and recommendation of AFPC/DPFDD and found a preponderance of the evidence did not substantiate the applicant’s contentions.  The Board noted the applicant's contention that his unfitting conditions were a result of errors made during the Physical Evaluation Board (PEB) process and not due to a new or worsening condition, the applicant had not provided sufficient evidence to support his uncorroborated contentions.  Moreover, although the Department of Veterans Affairs (DVA) rescinded the denial of rheumatoid arthritis and included it as part of the applicant’s back condition, along with psoriatic arthritis, neither of the conditions were found to be individually unfitting conditions.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the Record of Proceedings at Exhibit F. 

On 15 Feb 22, the United States Court of Federal Claims remanded the case, instructing the AFBCMR to:

1.	Reopen the record;
2.	Allow plaintiff to submit additional evidence and argument;
3.	Obtain any additional advisory opinions or information it believes would assist it;
4.	Reconsider its earlier decision, and 
5.	Issue a new decision.

The AFBCMR shall consider, among any other issues it deems relevant or that plaintiff raises, the significance of the DVA's Oct 17 decision, evidence of procedural errors during the PEB, and the nature, relationship, and significance of plaintiff’s diagnoses.

The United States Court of Federal Claims remand order is at Exhibit G.
On 12 Mar 22, the AFBCMR staff sent correspondence to the applicant’s counsel requesting any additional evidence for the Board’s consideration (Exhibit H) to be sent within 30 days.

On 13 May 22, on behalf of the applicant, counsel submitted a brief with additional matters for the Board’s consideration.  Counsel contented the applicant’s appeal of his DVA proposed Integrated Disability Evaluation System (IDES) rating was successful and the DVA increased his ratings for ankylosing spondylitis to 20 percent from 10 percent and his cystic kidney disability to 40 percent from 30 percent and assigned a 60 percent rating for his psoriatic arthritis condition, included as part of his back condition.  Therefore, the increased ratings must be applied to his unfitting conditions, and his psoriatic arthritis as part of his unfitting back condition must be rated at 60 percent by the Air Force.

Counsel further contended the applicant’s psoriatic arthritis individually failed retention and flight standards in accordance with the Air Force’s Medical Standards Directory (MSD) and should have been addressed in his Medical Evaluation Board (MEB) and PEB.

Further, should the Board not find the applicant’s psoriatic arthritis failed to meet retention or flight standards under the MSD, or to be individually unfitting, counsel requests the Board to further consider whether the condition, in combination with one or more of his other unfitting conditions, make him unfit due to psoriatic arthritis.  As argued in the Complaint, 10 U.S.C § 1216a requires the Air Force to “take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member's office, grade, rank, or rating.”

On 21 Sep 22, the Board sent correspondence to the applicant and his counsel requesting copies of any DVA rating decisions made after 17 Oct 17 (Exhibit M) and on 27 Sep 22, the applicant provided copies of multiple DVA rating and benefit decisions (Exhibit N).  A DVA Rating Decision, dated 19 Mar 21, indicates there have been no changes to the disability ratings for his ankylosing spondylitis, cystic kidney nor psoriasis.

The applicant’s complete submission is at Exhibit I.

AIR FORCE EVALUATION

The BCMR Medical Advisor recommends granting the application.  Given that psoriatic arthritis has been found to predominate as the principle diagnostic cause of the applicant’s musculoskeletal complaints, prior to culminating his case at the Formal PEB (FPEB) hearing, the psoriatic arthritis should be considered an unfitting medical condition.  Additionally, recognizing that the applicant’s psoriasis, standing alone, albeit not considered disqualifying on the AF Form 618, Medical Board Report, would also likely not be considered unfitting, the combined effect of the two, should warrant an unfit finding, noting the treatment response by both to an immunosuppressive medication.  Therefore, recommend adopting the interpretation of the diagnostic arrangement, as determined by the DVA, and the most current diagnostic assessment by the consulting rheumatologist, by assessment of an unfit finding and a 60 percent disability rating for the psoriatic arthritis as “sympathetically” assigned under criteria for psoriasis.  It is also recommended to grant the increase in rating for the applicant’s cystic kidney disease to 40 percent and the increase in rating for ankylosing spondylitis to 20 percent, in consideration of the probative value of medical evidence present early within the 12 months post-FPEB final disposition.  When recommended ratings are combined [not added], the applicant’s retirement disability rating would be changed to 80 percent, after rounding down to the nearest 10 percent.

DoDI 1332.18, Disability Evaluation System,5 Aug 14, change 1, 17 May 18, Appendix 2 to Enclosure 3, Combined Effect, reads, “A Service member may be determined unfit as a result of the combined effect of two or more impairments [conditions] even though each of them, standing alone, would not cause the Service member to be referred into the DES or be found unfit because of the disability. The PEB will include in its official findings, in cases where two or more medical conditions (referred or claimed) are present in the service treatment record, that the combined effect was considered in the fitness determination as referred by the MEB.  Combined effect [also] includes the pairing of a singularly unfitting condition with a condition that standing alone would not be unfitting.”  

While neither previous PEB nor the AFBCMR appear to have taken into consideration that, although psoriasis alone did not appear to interfere with the applicant’s ability to perform his military duties, when considering the combined effect of the co-morbid psoriatic arthritis, the medical advisor opines the applicant’s retainability, inclusive of the two, could be brought into question.  This is particularly relevant in the context of the known clinical course of this incurable disease entity and the potential interference of the skin condition with donning combat gear under austere operational conditions, notwithstanding use of an immunosuppressive medication.

Finally, the medical advisor is keenly aware that the Military Department bases its decisions upon evidence present at the “snapshot” time of final military disposition and not based upon future progression of disease or injury.  Collectively given that the applicant was officially retired on 29 Mar 17, and in consideration of the probative value of one or more clinical assessments conducted within four months [some within two months] following retirement date, it is recommended to grant the applicant the petitioned relief.

The complete advisory opinion is at Exhibit J.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Jul 22 for comment (Exhibit K), and the applicant replied on 1 Aug 22.  In his response, counsel, on behalf of the applicant, acknowledged receipt of the advisory opinion and indicated a response would not be submitted.

The applicant’s complete response is at Exhibit L.

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the report provided by the Court remand order, the applicant’s new evidence and rebuttal, and the BCMR Medical Advisory, the Board concludes the applicant is the victim of an error or injustice.  In our review, the Board explicitly followed the Court remand order to; a) reopen the record; b) allow the applicant to submit additional evidence and argument; c) obtain any additional advisory opinions or information it believes would assist it; d) reconsider its earlier decision; and e) issue a new decision.  Additionally, the Board ordered a new advisory to address the remand order’s following three takeaways:

1)	The Board shall consider the significance of the DVA's Oct 17 decision, 

2)	The Board shall consider evidence of procedural errors during the PEB, 

3)	The Board shall consider the nature, relationship, and significance of the applicant’s diagnoses.

As for the author’s first take away, the Board considered the DVA’s rating decision made on 16 Oct 17 where they increased his disability ratings for ankylosing spondylitis from 10 percent to 20 percent, cystic kidney disease from 30 percent to 40 percent, and service-connected his psoriasis with 60 percent and opines these ratings are a better reflection of his medical conditions rather than the ratings assigned by the PEB.  The Board also notes the DVA Rating Decision provided by the applicant, dated 19 Mar 21, indicates the disability ratings for his unfitting medical conditions have not changed.

As for the author’s second take away, the Board agrees with the BCMR Medical Advisor and finds it appears the PEB had not taken into consideration that, although psoriasis alone did not appear to interfere with the applicant’s ability to perform his military duties, when considering the combined effect of the co-morbid psoriatic arthritis, the applicant’s retainability, inclusive of the two, could be brought into question.

As for the author’s third take away, the Board considered the nature, relationship, and significance of the applicant’s diagnoses and finds the applicant provided sufficient evidence to support his contentions and to grant his request in full.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

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

a. On 6 January 2017, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, the diagnosis in his case was Cystic Kidneys, with a disability rating of 40 percent under Veteran Affairs Schedule for Rating Disabilities (VASRD) code 7530-7533; Ankylosing Spondylitis, with a disability rating of 20 percent under VASRD code 5240-5243, and Psoriatic Arthritis, sympathetically rated Psoriasis, requiring constant or near constant systemic drugs, with a 60 percent disability rating under VASRD code 7816-5002; achieving a combined disability rating of 80 percent, which corrects the previously errant disability ratings for Cystic Kidney Disease and Ankylosing Spondylitis, and corrects the previously voided Psoriatic Arthritis and Psoriasis as previously not unfitting; the disability incurred while he was entitled to receive basic pay; was received in the line of duty; was not due to intentional misconduct or willful neglect; was not a direct result of armed conflict or caused by an instrumentality of war and was not combat-related.

b. On 28 March 2017, he was discharged from active duty by reason of physical disability with an 80 percent compensable disability rating, and permanently retired effective 29 March 2017.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2018-02886-2 in Executive Sessions on 24 Aug 22 and 17 Oct 22:

Panel Chair 
Panel Member
Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit F:	Original Record of Proceedings, w/ Exhibits A-E, dated 4 Jun 19.
Exhibit G:	United States Court of Federal Claims Order, dated 15 Feb 22.
Exhibit H:	Email, SAF/MRBC to Applicant, dated 22 Mar 22.
Exhibit I:	Applicant’s Additional Supporting Evidence, dated 13 May 22.
Exhibit J:	Advisory Opinion, BCMR Medical Advisor, dated 8 Jul 22. 
Exhibit K:	Notification of Advisory, SAF/MRBC to Applicant, dated 13 Jul 22.
Exhibit L:	Applicant’s Response, dated 1 Aug 22.
Exhibit M:	Email, SAF/MRBC, dated 21 Sep 22.
Exhibit N:	Applicant’s Response, dated 27 Sep 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9 for Docket Number BC-2018-02886-2.