RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04516 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show he was permanently retired due to physical disability which was the direct result of a combat related injury as defined in 26 United States Code (U.S.C.) 104 and, that his disability was incurred in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war during a period of war. _________________________________________________________________ APPLICANT CONTENDS THAT: His records confirm that his Episodic Vertigo was a result of a deployment to Ai Sahra, Tikrit, Iraq, from January through July 2008. Although he did not seek immediate medical attention for dizziness symptoms in theater, his condition was exposed upon re- deployment and all corresponding documents and tests from Jul 08 through his placement on the temporary disability retired list (TDRL) in Sep 09 refer to this. In support of his appeal, the applicant provides a personal statement and excerpts from his military personnel records related to his placement on the TDRL and eventual permanent retirement for physical disability, which include copies of his medical evaluation board (MEB) and two informal physical evaluation board (IPEB) proceedings, as well as a plethora of medical records and other documents related to his disability processing. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant began his military career on 1 Oct 90 and was progressively promoted to the grade of master sergeant (MSgt/E-7) effective and with a date of rank of 1 May 04. On 18 Jun 09, he met a medical evaluation board (MEB) which diagnosed the applicant with Episodic Vertigo and recommended he meet an IPEB. On 14 Sep 09, the IPEB found that his medical condition prevented him from reasonably performing the duties of his office, grade, rank, or rating and recommended he be placed on the TDRL with a combined compensable disability rating of 30 percent for Episodic Vertigo. The applicant agreed with the findings and recommendation of the IPEB and waived his rights to a Formal PEB (FPEB) hearing. On 28 Dec 09, he was relieved from active duty and placed on the TDRL, effective 29 Dec 09. He was credited with 19 years, 2 months, and 28 days of total active service. On 24 Feb 11, the applicant was notified of an impending periodic physical examination as a result of his being on the TDRL. The appointment was scheduled for 17 Mar 11. On 8 Aug 11, after a review of the findings of his periodic physical exam, the IPEB recommended he be retained on the TDRL with a reevaluation in six months; however, on 18 Aug 11 it was recommended he be removed from the TDRL and permanently retired for Episodic Vertigo with a combined compensable disability rating of 30 percent. On 29 Aug 11, the applicant agreed with the findings and recommendations of the IPEB with regard to his permanent retirement for physical disability and waived his rights to an appearance before the FPEB. On 27 Sep 11, the Secretary of the Air Force directed the applicant’s name be removed from the TDRL and that he be permanently retired under the provisions of Title 10 USC 1201. Thus, effective 17 Oct 11, he was permanently retired for physical disability in the grade of MSgt with a compensable disability rating of 30 percent for physical disability. The disability was not found to be the direct result of armed conflict or caused by an instrumentality of war, or as the direct result of a combat related injury as defined in Title 26 USC 104, or incurred in the line of duty during a period of war. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSDD recommends denial, indicating there is no evidence of an error or injustice. The applicant’s contends that his episodic vertigo is combat related due to the time he spent deployed to Iraq during Jan through Jul 08; however, the applicant admits to not seeking immediate medical attention for his dizziness at the time he began experiencing it and there is no LOD determination as to the initial onset of his first vertigo attack. There is no evidence in the record to show particular combat stressors as the cause of the applicant’s episodic vertigo, and, as such, his condition does not meet the criteria for combat relation due to new medical evidence for the time in question. Additionally, in view of the fact the applicant did not dispute the findings and recommendation of the IPEB and he has not submitted any new medical evidence for the time in question for review by the Board, there is no justification for considering the vertigo as combat related. A preponderance of the evidence reflects that no error or injustice occurred during the disability process including his retirement. DPSDD’s complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates his argument that he began experiencing dizziness for the first time in Apr 08 while deployed to a hostile area/combat zone in support of Operation Iraqi Freedom (OIF). He made the decision not to seek medical care as he believed it could have an adverse effect on his deployment and possibly his future. Even though he was quite dizzy, his commitment to the Air Force was such that he felt he could still perform at an acceptable level in spite of the dizziness. The bottom line is that his condition came about during the performance of his duties in a combat zone while working with Army aviation assets, including helicopters and their associated arsenals, as well as other weapons systems; all related to instrumentalities of war. His ultimate goal was to continue his service in a different Air Force specialty (AFS) but this was not made available to him. He further notes he suffers from small fiber neuropathy diagnosed in Oct 11 which he believes is directly attributed to his three tours of duty in southwest Asia. Applicant’s complete response is at Exhibit C. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 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 adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. While the applicant contends that his condition came about in the performance of his duties while in a combat zone working on an airfield on a daily basis around U.S. Army assets, including helicopters and their weapons systems, his assertion that he experienced symptoms while deployed in support of a contingency operation is not sufficient, in and of itself, to support a combat-related determination. For his disability to be considered incurred in the LOD as a result of an instrumentality of war, his injury or disability would have had to been caused by a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury. In our view, the applicant has not shown by a preponderance of evidence that his vertigo meets any of the criteria listed. While he indicates he worked in and around military weapons during a time of conflict, the evidence presented is insufficient to convince us there is a causal relationship between his vertigo and armed conflict, hazardous service, or an instrumentality of war. Therefore, in the absence of evidence to the contrary, we are not inclined to substitute our judgment for that of responsible officials who determined the applicant’s vertigo was not the result of armed conflict, hazardous service, or an instrumentality of war. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2011-04516 in Executive Session on 3 May 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Nov 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSDD, dated 11 Jan 12. Exhibit D. Letter, SAF/MRBR, dated 10 Feb 12. Exhibit E. Letter, Applicant, dated 25 Feb 12.