RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03735 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His disability discharge be changed to a medical retirement. _______________________________________________________________ APPLICANT CONTENDS THAT: The initial Physical Evaluation Board (PEB) findings rated him at 10 percent due to his L5/S1 Spinal Fusion. The PEB used outdated and incorrect medical information at the time of the PEB decision. In Mar 2009 the physical therapy clinic conducted range of motion testing and his flexion measured 76.5 degrees. Since the measurement was not taken by Dr. R., it was not used in his PEB. Between Mar and Jul 2009 his commander ordered him to run. Despite his documented medical history and risk of re-injury from high impact exercise, his requests for ergometry tests were blatantly ignored. His back conditions rapidly declined after a brief period of success. As the PEB convened, his status was rapidly deteriorating and he would not have been able to accomplish the flexion motion noted in the PEB findings. He explained this in great detail in his Letter of Exception to the PEB, dated 22 Jul 2009. The initial PEB did not account for his severe sciatica which attributed to his back condition. The sciatica alone was disabling and debilitating preventing him from carrying out most if not all physical duties required by the Air Force. The neuropathy caused major damage to the sensory and motor functions of his left leg. The sciatica also impacted his sexual function and bladder incontinence. The Department of Veterans Affairs (DVA) recognized this in their rating decision. The DVA rated his neuropathy secondary to degenerative disc disease at 40 percent disabling. The neuropathy was a primary cause for his pain and should have been considered in the PEB findings. The DVA ultimately rated his degenerative disc disease post L5/S1 discectomy and spinal fusion at 20 percent with secondary residuals at a combined 60 percent rating. In support of his request, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; VA Form 3288, Request for and Consent to Release of Information from Individual's Records; AF IMT FORM 100, Request and Authorization for Separation; DD Form 294, Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States; AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board; Form W-2, Wage and Tax Statement, SAF/MRBR (PDBR Intake Unit) memorandum, Letter of Exception, and DVA Rating Decision. The applicant's complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: On 29 Dec 2009, the applicant was determined unfit for continued military service and was discharged with severance pay effective 26 Feb 2010. He served 10 years and 18 days of active service. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C and D. _______________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSD recommends denial. DPSD states the Department of Defense and the DVA disability evaluation systems operate under separate laws. Under Title 10, USC, the PEB must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank or rating. The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling his military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of the member’s career. Further, it must be noted the USAF disability board must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of their condition at that time. It is the charge of the DVA to pick up where the Air Force must, by law, leave off. Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition. This often results in different ratings by the two agencies. The applicant claims that the Informal PEB (IPEB) made a recommendation based on medical evidence that was over one year old by the time they reviewed the case. The IPEB reviewed the applicant's case on 27 Oct 2009. The case included Surgery/Neurosurgery outpatient notes dated 27 Apr 2009 from the surgeon who operated on the applicant in October 2008 and a narrative summary dated 15 Jul 2009. The IPEB found the applicant unfit and recommended discharge with severance pay with a disability rating of 10 percent. On 5 Nov 2009, the applicant non-concurred with the findings and requested a formal hearing with counsel. On 27 Jan 2010, the applicant waived his rights to a formal hearing at which time he could have submitted more current medical documentation. His third appeal option would have been to appeal to the Secretary of the Air Force Personnel Council. However, he waived those options and concurred with the IPEB. A separation date was established for 26 Feb 2010. The complete DPSD evaluation is at Exhibit C. The BCMR Medical Consultant recommends granting the applicant's request for changing his medical discharge to a medical disability retirement with a combined disability rating of 30 percent, effective on his previously established date of separation. The Medical Consultant opines the applicant likely reported a different set of clinical complaints and demonstrated a greater degree of impairment, e.g., thoraco-lumbar range of motion, resulting in different rating assessments by the DVA, when matched against his documented service complaints and medical evaluations. Although there is a reference to the applicant's sciatica symptoms in the service evaluation, this symptom was reported to occur only in the context of running greater than 1.5 miles or lifting greater the 25 pounds; which the applicant was advised to discontinue. The Medical Consultant acknowledges the applicant's reported associated sciatica symptoms and opines this condition should have been listed, at a minimum, as associated with the applicant's degenerative disc disease, status-post discectomy and fusion at L5-S1; or if the PEB determined it was not unfitting, it should have been listed under Category II, on the AF Form 356. The Medical Consultant opines if the applicant's lumbar condition can be characterized as unfitting, reasonable doubt has been raised for including his left lower extremity as possibly unfitting for the same reason; although improved while at rest. For disability rating purposes and based upon the service medical evidence, the applicant's sciatica symptoms appear to have been no greater than mild, if not pain free, at the time of his MEB. In conclusion, the Medical Consultant opines that it is likely that the applicant indeed reported more severe symptoms and demonstrated a much greater reduction in his spine range of motion at his DVA Compensation and Pension examination than found during his service evaluations. The Medical Consultant therefore concedes some ambivalence regarding inclusion of the applicant's sciatica symptoms as individually unfitting. After a closer look at the concluding remarks in the applicant's MEB narrative summary, and the "significant physical restrictions [that] remain," the Medical Consultant gives favorable consideration for an independent unfit finding for the applicant's associated left lower extremity sciatica, with the assignment of a 20 percent disability rating. When combined with the 10 percent disability rating for lumbar degenerative disc disease a 30 percent disability rating is achieved, rendering the applicant retirement eligible. The complete BCMR Medical Consultant’s evaluation, with attachments, is at Exhibit D. _______________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He disputes the HQ AFPC/DPSD advisory opinion, dated 25 Oct 2011. On 9 Mar 2009, he notified his physical therapy team and primary care manager (PCM), via e-mail that he had been running and physically active to meet the demands and recommendations of leadership and physical therapy. He communicated his recent achievements, but at a cost of additional pain. He did not receive a reply from his PCM, nor objections or recommendations from physical therapy. His condition continued to deteriorate and he continually expressed this as noted in his Letter of Exception to the MEB and his conversation with Dr. M. on 27 Apr 2009. Dr. M. proposed duty limitations of "no running over 1.5 miles and must be completed on soft surface and the patient is to lift no greater than 25 pounds.” It was not until 26 May 2009 that his duty limitations reflected “no running greater than 100 meters and no lifting, pushing or pulling greater than 20 pounds.” He followed the duty limitations; however his condition already declined. It is conceivable he progressed shortly after his surgery and physical therapy, however, he mentioned to his doctors and physical therapist he was experiencing aggravation and limitations similar to those he experienced before surgery. His passing physical fitness score is testimony to the fact he went through rigorous activity to achieve strict Air Force fitness standards. The Air Force failed to provide adequate rest during and after his recovery. This, coupled with a restricted yet demanding physical fitness regime hampered and reversed his post operative progress, causing the decline in his health and rendering him increasingly disabled reflective of his medically documented and diagnosed skeletal and neurological issues He does not dispute that he waived his right to appeal the IPEB findings; however, the reasons behind the withdrawal of his appeal and acceptance of their findings were that page four of the "USAF Disability Evaluation System (DES) Fact Sheet,” dated Mar 2009, states "If you feel an error or injustice occurred during the processing of your case through the DES, you may apply to the Air Force Board for Correction of Military Records (AFBCMR)." His initial estimated time of separation from the Air Force was scheduled for 29 Apr 2010 and he was never advised that if he appealed the findings he would have been extended on active duty until the PEB decision was completed. Without counseling he assumed if the PEB was not complete he may be forced from active duty before the PEB decision. He provides the current rating decision from the DVA, dated 17 Sep 2010, diagnosing the severity of his disabling and worsening conditions from military service. The medical evidence used and referenced by the DVA is dated 10 Aug 2010, less than 180 days after he was discharged. The preponderance of medical evidence coupled with expert medical opinion weigh heavily in his favor and he requests his discharge be overturned favoring disability retirement of 30 percent as recommended by the BCMR Medical Consultant. His complete response, with attachments, is at Exhibit F. _______________________________________________________________ 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 warranting corrective action. The thorough analysis performed by the BCMR Medical Consultant has raised sufficient doubt as to whether the applicant's left lower extremity was an unfitting condition at the time of his discharge. As such, we believe the applicant's medical condition may not have been rated properly at the time of his separation. Therefore, we accept the BCMR Medical Consultant's recommendation and, in the interest of equity and justice, recommend the applicant’s records be corrected to reflect that he was medically retired from the Air Force by reason of a physical disability rather than “Disability, Severance Pay,” 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 issue(s) 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 APPLICANT be corrected to show that: a. On 25 February 2010, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was Paralysis of the Sciatic Nerve, VASRD Code 8520, rated at 20 percent; that the compensable percentage was 30; that the degree of impairment was moderate; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. On 26 Feb 2010, he was not separated by reason of physical disability, with entitlement to severance pay, but on that date, he was permanently retired by reason of physical disability. _______________________________________________________________ The following members of the Board considered this application in Executive Session on 10 Jul 2012, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered in AFBCMR BC- 2011-03735: Exhibit A. DD Form 149, dated 19 Sep 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFPC/DPSD, dated 25 Oct 2011. Exhibit D. Letter, BCMR Medical Consultant, dated 2 May 2012, w/atchs Exhibit E. Letter, SAF/MRBC, dated 3 May 2012. Exhibit F. Letter, Applicant, undated, w/atchs.