RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01911 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. She be placed on the Temporary Disability Retired List (TDRL) and receive retroactive compensation; or as an alternative if she is found fit for duty, return her to duty with all pay and benefits associated. 2. Per the governing regulations, she receive the Certificate of Retirement, United States Flag, Air Force Lapel Button, the Certificate of Appreciation for Service in the Armed Forces of the United States, and if appropriate, the Presidential Letter of Appreciation. _________________________________________________________________ APPLICANT CONTENDS THAT: She should have been placed on the TDRL because she was found unfit, met the criteria for retirement and her condition may be permanent, but was not stable. Her AF IMT 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, clearly reflects the “degree of impairment” marked as “may be permanent” as opposed to “is permanent”. Her condition was rated as not being stable and the decision of the Formal Physical Evaluation Board (FPEB) was based on her condition the day the board convened; she was experiencing muscle spasms. After reviewing her documents, she discovered the AF Form 356 did not match the rule and column of the governing regulation. The regulation notes, “When the rule and column are blank, the item on the AF Form 356 may be “Yes,” or “No,” or “NA.” However, where the rule and column are filled in the rule must match with the items on the AF Form 356.” However, her AF Form 356 clearly shows that the rules do not match. Therefore, she should have been put on the TDRL and been able to prove that she was fit to return to duty. The Physical Evaluation Board Liaison Officer (PEBLO) discouraged her to submit any support letters stating, “that if I did the Board would most likely discharge me without any compensation, and this discouraged me from doing so and I did what the PEBLO asked of me so that this would not happen.” Had she been placed on the TDRL, she could have been taking off the TDRL and returned to active duty a couple of years ago or later placed on the PDRL if still deemed as “unfit”. She was never asked if she wanted a retirement ceremony and would like to be receive all appropriate documents as listed above. In support of her request, the applicant provides excerpts from her medical and personnel records. Her complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant met an Information Physical Evaluation Board (IPEB) for spondylosis and degenerative disc disease, cervical spine with herniated discs. The IPEB recommended discharge with severance pay with a 20 percent disability rating. The applicant did not agree with the IPEB findings and appealed to the FPEB. On 31 Jan 05, the FPEB reviewed her case and agreed with the IPEB, and recommended permanent retirement with a 30 percent disability rating. The applicant concurred with the FPEB findings on 1 Feb 05. She served 5 years, 2 months, and 20 days on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. Through the applicant’s own testimony, her condition had progressively gotten worse since the 5 years that elapsed and since her original injury in June 2000 occurred. Although her AF Form 356, Block 10E, was checked as “may be” permanent versus “is” permanent, the error made was an administrative error in the checking of the wrong box rather than in the recommendation of permanent retirement. While the severity of the symptoms related to such conditions may be intermittent and vary over time, the underlying condition is not reversible and usually becomes progressively worse. DPSD states that given this diagnosis and history, even if she had not been having neck spasms the day of her formal hearing, the board would have been hard pressed to recommend anything short of permanent retirement. The complete DPSD evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant responded by stating, “her record does not clearly reflect that she has significant and progressively worsening degenerative disc disease at the time of the original boards.” The records states that she had progressively worsening muscle spasms and neck pain; there is clearly a difference between the two statements. According to the medical documentation, it was the spasms that she was being seen for and not the actual discs. She finds the statement, “And while the severity of the symptoms related to such conditions may be intermittent and vary over time, the underlying condition is not reversible and almost always becomes progressively worse,” contradicting. She asks, “Does not intermittent mean ‘occurring in irregular intervals; not steady,’ meaning that my condition is ‘not stable?’ Also, is it medically proven that degenerative disc disease is permanent and not reversible?” She believes this is merely an opinion because the medical personnel informed her that degenerative disc disease is not permanent and can be reversed. Disc degeneration is not a disease and is a natural part of aging; over time, all people will exhibit changes in their discs consistent with a greater or lesser degree of degeneration. Unfortunately, her developed after sustaining an injury from a motor vehicle accident. Her MRI report does not show any significant changes in her condition from 2000 to present. Regardless of the administrative error that was pointed out by AFPC/DPSD, she has proven her point and believes if she had argued this matter sooner she may have had a better chance of returning to active duty. As for the statement, “Applicant’s inability to train in chemical gear along with on-going narcotics use makes her undeployable,” it is interesting since there are so many active duty members that are undeployable and yet are still on active duty; some of their conditions are worse than her medical condition. Her records clearly reflect that she was worldwide qualified until she arrived in Turkey. However, her primary care manager (PCM) did not want to deal with her situation and recommended she be evaluated by the Disability Evaluation System (DES). The applicant’s complete submission, with attachments, is at Exhibit D. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. The Medical Consultant states that the applicant is correct in her assertion that when a PEB believes a medical condition “may be permanent,” then temporary retirement (TDRL) under 10 U.S.C., Section 1202, applies, keeping in mind that there must be a minimum rating of 30 percent. The applicant also correctly illustrated the requirements for TDRL placement; however, the Medical Consultant concedes that the documentary “rule” for TDRL placement is inconsistent with the final decision of Permanent Retirement, but opines the FPEB likely acknowledged that in clinical practice there is no way to predict with any degree of certainty the lifelong natural progression of the applicant’s cervical degenerative disc over time or her myofascial pain (particularly in the context of the date of the injury and its persistence over a 4-year period without a durable resolution). Therefore, her current implicit argument that her medical condition was unstable and she should have been placed on the TDRL does not invalidate the clinical judgment and rationale exercised by the FPEB at the “snap shot” time of her release from active duty. Although the law allows for a maximum period of 5 years in TDRL status, with 18-month interval re-evaluations, there is no statutory requirement for a PEB to place or retain an individual on the TDRL unless, in the judgment of the rating board, the condition rates at least a 30 percent and the condition is unstable. The Medical Consultant notes the applicant’s condition was first rated at 20 percent that would not have rendered her retirement eligible, neither temporarily or permanently; however, she was successful in convincing the FPEB to increase her rating to 30 percent at a time when the stability of her condition was not brought into question. The applicant now argues that the errant mark on her AF Form 356 is the reason she should have been placed on the TDRL; with the assumption that her condition would have resolved while on the TDRL resulting in her ultimate removal from the TDRL and the opportunity to resume her military career. However, the Medical Consultant opines that the greater administrative error was failing to put the check mark in the “is permanent” block to match the decision to retire her permanently, and not failing to enter her on the TDRL. The Medical Consultant opines that to return the applicant to duty poses an unreasonable uncertainty for a return on investment for the Air Force; notwithstanding the multi-level cervical disc bulges, which have been disassociated with her pervious bouts of neck pain. Furthermore, taking away her retirement benefit poses an unreasonable risk for a greater long-term detriment to her if returned to duty and later separated with severance pay if for some reason she is again medically disqualified and unable to achieve a 20-year retirement; or if placed on the TDRL, then discharged with severance pay for a condition that improved, but was still found unfitting. The BCMR Medical Consultant’s evaluation 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; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion that 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 relief sought in this application. _________________________________________________________________ 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-2011-01911 in Executive Session on 29 Nov 11, under the provisions of AFI 36-2603: The following documentary evidence for Docket Number BC-2011- 01911 was considered: Exhibit A. DD Form 149, dated 18 May 11, w/atchs. Exhibit B. Letter, APFC/DPSD, dated 20 Jun 11. Exhibit C. Letter, SAF/MRBR, dated 1 Jul 11. Exhibit D. Letter, Applicant, dated 27 Jul 11. Exhibit E. Letter, BCMR Medical Consultant, dated 26 Oct 11. Exhibit F. Letter, SAF/MRBR, dated 28 Oct 11.