RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02998 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. He would like his medical discharge with severance pay changed to a “Medical Retirement”. 2. He would like his disability rating increased. _________________________________________________________________ APPLICANT CONTENDS THAT: While in training at the Air Force Academy, he jumped over a four foot wall and landed on a compacted incline ditch. The hard surface impact caused a compound fracture of his right tibia and fibula in six different places. After his injury, the obstacle course was shutdown to eliminate any other injuries. He went through surgery; however, he did not have a place to undergo physical therapy (PT). He was told he would have to perform his own PT. He did everything possible to speed up his recovery; however, he never recovered. Over the years, he sought help to fix his leg, but did not receive any. After returning from his deployment in Aug 06, he confided in his flight surgeon to find some relief for his medical issue. Thereafter, he underwent a Medical Evaluation Board (MEB). The MEB determined he needed to be released from active duty. He was given erroneous information regarding his options if he disagreed with the MEB findings. When briefed by the Physical Evaluation Board Liaison Officer (PEBLO), he was told that if he were to disagree with the board’s findings and elected to go before the Formal Physical Evaluation Board (FPEB), he would have to pay his own travel expenses and attorney fees; it was unlikely the board would change its decision and might possibly downgrade his disability rating. He was denied rights available to him as a member of the military. He has since been given prescription medications that he must take every day to help alleviate the pain and depression caused by all the nerve damage and scar tissue. Because he takes medicine, he is not allowed to renew his private pilot’s license. In support of his request, the applicant provides a personal statement, a copy of an affidavit from his spouse, a copy of photos of his injury, excerpts from his medical records, and letters of support. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Regular Air Force and was progressively promoted to the grade of major (0-4), having assumed that grade effective and with a date of rank of 1 Jan 07. The applicant met an Informal Physical Evaluation Board (IPEB) on 8 Jun 07. He was recommended for discharge with a 20 percent compensable disability rating for Low-Grade Reflex Sympathetic Dystrophy, Right Lower Extremity. On 25 Jun 07, the applicant agreed with the findings and recommended disposition of the PEB and waived his right to a Formal PEB. He was discharged with severance pay on 4 Aug 07 after serving 10 years, 2 months, and 7 days on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. An Informal Physical Evaluation Board reviewed the applicant’s case on 8 June 2007 and recommended discharge with severance pay with a disability rating of 20%. The applicant concurred with the board findings and his discharge date was established as 4 August 2007. In an examination that occurred on 11 Oct 06, the physician noted that the applicant had continued pain in the ankle and knees, and that there was reactive arthritis in both areas. On 9 Nov 06, another physician noted the applicant had no instability of the knee and no joint line tenderness, but the range of motion was 0 to 125 degrees (slightly decreased from normal). In another examination accomplished on 4 Apr 07, it was revealed the applicant had normal strength, sensation, and range of motion of the right lower extremity (RLE) – which supported the assessment of moderate incomplete paralysis by the IPEB. In accordancw with the Veterans Affairs Schedule for Rating Disabilities (VASRD), this resulted in a 20 percent disability rating. It would have been reasonable for the applicant to appeal to the FPEB for consideration of a higher disability rating. However, in this case, the preponderance of evidence reflects no error or injustice that occurred during the disability process. The DPSD complete evaluation is at Exhibit B. The BCMR Medical Consultant recommends denial, noting the applicant has not met the burden of proof of an error or injustice warranting a change to his records. The Medical Consultant states that when the involvement is wholly sensory, the rating should be “mild”, or at most the “moderate” degree. It should be noted that the moderate impairment correlates with a 20 percent disability rating. As suggested by AFPC/DPSD, the Medical Consultant considered alternatively rating the applicant’s medical condition under VASRD code 5262; however, given the probative value of the 20 percent disability rating twice assigned by the Department of Veterans Affairs (DVA) under this code, insufficient evidence is supplied to show the rating is in error or should have been greater. Although the applicant received a 30 percent disability rating for his mood disorder, there is no evidence of this being present while he was serving in the military. The Medical Consultant acknowledges that the military department, operating under Title 10, only offers compensation for the medical condition(s) that caused career termination. On the other hand, the DVA is authorized to offer compensation for any medical condition determined service incurred or aggravated, without regard to its impact upon a service member’s fitness to serve or narrative reason for release from military service. The BCMR Medical Consultant’s complete evaluation, with attachment, is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a seven-page brief, the applicant reiterates his original contentions and provides the following: a. He states the PEBLO withheld critical information from him and his spouse regarding his options during the MEB process. Additionally, he submitted with his appeal package, the incorrect information that was given to him by a malicious act of deceit, or a lack of knowledge regarding the regulations and procedures. b. The PEB neglected to add the appropriate conditions and VASRD codes on the AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, related to “Category I – Unfitting Conditions Which are Compensable and Ratable.” The only condition listed is “Low-Grade Reflex Sympathetic Dystrophy, Right Lower Extremity,” which the physician denies, but is supported in the body of the following paragraph and in documentation presented to the PEB. “There is nerve pain and degeneration in this area, but a different, more applicable VASRD code would have been appropriate.” The correct VASRD code should have been listed for “gross misalignment of the joint at the ankle.” In summary, there should have been more than one VASRD code taken into account and medical retirement with greater than 30 percent disability should have been assigned. c. He rebuts the BCMR Medical Consultant’s advisory by stating that his medical records and MEB package contain evidence that proves his impairment is not just sensory, and instead is chronic, deformed, and degenerative in nature. d. He explains his medical condition and why he believes his disability rating should be increased. He believes his degree of impairment is permanent rather than may be permanent. The applicant’s complete submission is at Exhibit E. _________________________________________________________________ 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 error or 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 his separation with severance pay because of physical disability in 2007 was improper or contrary to the provisions of the governing regulations. Other than his own assertions, the applicant has provided no evidence that would lead us to believe the assessment of his medical condition was based on factors other than accepted medical principles. The evidence of record appears to indicate that the applicant was afforded due process through the disability evaluation system and we find the evidence submitted insufficient to determine otherwise. We therefore agree with the recommendation of the Air Force office of primary responsibility and the BCMR Medical Consultant’s detailed comments and adopt their rationale expressed as the basis for our decision. Consequently, we find no basis to recommend granting the relief sought. 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 that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2010-02998 in Executive Session on 30 Aug 11, under the provisions of AFI 36-2603: cumentary evidence was considered: Exhibit A. DD Form 149, dated 10 Aug 10, w/atchs. Exhibit B. Letter, AFPC/DPSD, dated 15 Sep 10. Exhibit C. Letter, BCMR Medical Consultant, dated 26 May 11. Exhibit D. Letter, SAF/MRBR, dated 14 Jun 11. Exhibit E. Letter, Applicant, undated.