RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04590 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: The 20 percent disability rating he received for his diabetes be increased to 40 percent and he be medically retired with a 40 percent disability rating. _________________________________________________________________ APPLICANT CONTENDS THAT: Due to him having to use insulin, following a restricted diet and regulating his activities; he meets the criteria for receiving a higher disability rating. The Formal Physical Evaluation Board (FPEB) failed to recognize the true nature of his disease process and limitations, and did not treat him the same as others similarly situated. In support of his request, the applicant provides documents extracted from his military personnel and medical records, a copy of XXXXXX v. XXXXXX, and affidavits of support. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former C-17 pilot who underwent a Medical Evaluation Board (MEB) on 27 Dec 05 for the diagnosis of Type I Diabetes Mellitus. On 27 Oct 05, the Informal Physical Evaluation Board (IPEB) found the applicant unfit for further military service and recommended his discharge with severance pay with a 20 percent disability rating. The applicant disagreed with the findings of the IPEB on 3 Nov 05 and appealed to the Formal Physical Evaluation Board (FPEB) for permanent retirement with a combined disability rating of 60 percent. The FPEB found the applicant’s diabetes was unstable and recommended placement on the Temporary Disability Retired List (TDRL) with a 40 percent disability rating. The applicant disagreed with the findings of the FPEB and appealed to the Secretary of the Air Force Personnel Council (SAFPC). On 20 Jun 06, SAFPC concurred with the findings of the FPEB and directed the applicant’s name be placed the TDRL with a 40 percent disability rating. On 26 Jul 06, he was relieved from active duty and his name was placed on the TDRL on 27 Jul 06. He was credited with 4 years, 2 months, and 21 days of total active service. On 12 Aug 08, the applicant underwent a TDRL reevaluation; the IPEB again found him unfit, but determined his diabetes had stabilized and recommended the applicant be removed from the TDRL and discharged with severance pay with a 20 percent disability rating. The applicant appealed to the FPEB for retention or extension on the TDRL; and on 11 Dec 08, the FPEB concurred with the findings of the IPEB. The applicant then appealed to SAFPC. On 15 Apr 09, SAFPC concurred with the findings and recommendation of the IPEB and FPEB and removed the applicant from the TDRL and discharged him with severance pay with a 20 percent disability rating. On 24 May 09, the applicant was removed from the TDRL and discharged with entitlement to severance pay. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states the preponderance of evidence reflects no error or injustice occurred during the disability process. The applicant is basing his request for retirement at 40 percent on the instability of his diabetes and a requirement for restriction of duties. The USAF disability boards must rate disabilities based on the service member’s condition at the time of evaluation. Per the Department of Defense Instruction (DODI) 1332, Physical Disability Evaluation states “A disability shall be considered unstable when the preponderance of medical evidence establishes that accepted medical principles indicates the severity of the condition will change within the next five years so as to result in an increase or decrease of the disability rating percentage or a finding of fit.” Although, the applicant’s diabetes was not in control at the time of his 2008 reevaluation; his condition was sufficiently stable to say that the severity of the condition would not change to increase or decrease his rating during his remaining time on the TDRL. DPSD further states there was no evidence to show the applicant was required to restrict activities for the medical management of his diabetes at the time SAFPC recommended the 20 percent disability rating. Furthermore, SAFPC noted in their 15 Apr 09, memorandum that they found no evidence the applicant was advised to avoid all strenuous occupational and recreational activities. In addition the applicant noted the DES results of two other service members with similar circumstances. However, due to the myriad of factors that must be considered, each and every case is adjudicated based on its own merit. The comparison between the outcomes of other cases, even when the diagnoses are alike, cannot be the basis for determining whether a member received fair and equitable consideration. The complete AFPC/DPSD evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel disagrees with the Air Force evaluation. Counsel states the applicant is entitled to a 40 percent disability rating for his diabetes because his medical condition meets the three criteria listed by the Veterans Administration Schedule for Rating Disabilities (VASRD) and as set forth in Comacho v. Nicholson. The advisory opinion recommends denial based on the claim that at the time the applicant appeared for the post TDRL FPEB, the “snapshot” of his medical condition did not clearly describe regulation of activities. The advisory opinion discounted the affidavit from the applicant’s endocrinologist that clearly stated the applicant required insulin, restricted diet, and regulation of activities. At the time the applicant met his post TDRL FPEB, he was represented by counsel who believed the applicant’s condition was unstable and should be continued on the TDRL. The applicant’s endocrinologist was not asked to provide a letter to the FPEB specifically addressing the three factors supporting a 40 percent disability rating. The FEPB members did not ask any questions of the applicant. The FPEB quickly and silently wrapped up the hearing by denying the requested relief. The applicant should not be penalized for the approach of his attorney or the lack of questions by the FPEB. The applicant provided several affidavits from his fiancé, endocrinologist, and his nurse practitioner, which clearly support the applicant met the three criterion for a 40 percent disability rating. Additional affidavits from his endocrinologist, nurse practitioner, and finance are provided which should leave no doubt about the correct disability percentage the applicant should have received. Counsel’s complete response, with attachments, is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends changing the record to reflect the applicant was retained on the TDRL, effective 24 May 09, and removed from the TDRL and retired permanently with a 40 percent disability rating effective 27 Jul 11. The Medical Consultant states the applicant has provided sufficient evidence reflecting his diabetes was not stabilized or controlled at the time he was placed on the TDRL or removal from the TDRL. The evidence supports the applicant required regulation of physical activities; therefore, meeting the spirit of the qualifying criterion for the 40 percent disability rating. The complete AFBCMR Medical Consultant's evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 16 Aug 11 for review and comment within 30 days. As of this date, no response has been received by this office (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 injustice warranting corrective action. Noting the differing opinions between the Air Force office of primary responsibility and the AFBCMR Medical Consultant regarding a higher disability rating and permanent disability retirement, we are inclined to agree with the AFBCMR Medical Consultant's recommendation in this particular instance. In this regard, the applicant’s endocrinologist provided a notarized affidavit stating the applicant’s diabetes is unstable and requires insulin, a restricted diet, and regulation of activities. Therefore his medical condition meets the three criteria listed by the Veterans Administration Schedule for Rating Disabilities (VASRD) for a 40 percent disability rating and permanent disability retirement. The AFBCMR Medical Consultant has thoroughly reviewed the evidence of record and provides an extensive evaluation in which he ultimately recommends retaining the applicant on the TDRL for the remainder of the statutory period, followed by permanent disability retirement with a 40 percent disability rating. In view of the foregoing, and in an effort to offset any possibility of an injustice, we believe his records should be corrected to the extent indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show the applicant’s name was not removed from the Temporary Disability Retired List (TDRL) on 24 May 09, but remained on the TDRL until 27 Jul 11 when he was permanently disability retired with a 40 percent disability rating. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04590 in Executive Session on 27 Sep 11, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Nov 10, w/atchs. Exhibit B. Applicant's Military Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 5 Jan 10 [sic]. Exhibit D. Letter, SAF/MRBR, dated 25 Mar 11. Exhibit E. Letter, Applicant’s Counsel, dated 9 Apr 11. Exhibit F. Letter, AFBCMR Medical Consultant, dated 15 Aug 11. Exhibit G. Letter, SAF/MRBR, dated 16 Aug 11.