RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05273 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His 20 percent disability rating for seizure disorder be changed to 100 percent. ________________________________________________________________ _ APPLICANT CONTENDS THAT: The Department of Veteran’s Affairs rated him at 100 percent permanently disabled. In support of the applicant’s appeal, he provides a copy of his NGB Form 22, Report of Separation and Record of Service, DD Form 214, Certificate of Release or Discharge from Active Duty, VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, and a Social Security Administration Notice of Decision. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant with 27 years and 5 days of total service for pay was honorably discharged on 21 May 2011 from the Air National Guard of Texas in the grade of technical sergeant. In December 2009, a Medical Evaluation Board (MEB) convened and referred the applicant's case to an Informal Physical Evaluation Board (IPEB) with a diagnosis of lumbago due to degenerative disc disease. The IPEB found him unfit for further military service and recommended discharge with severance pay with a disability rating of 20 percent for a diagnosis of lumbago due to degenerative disc disease. The applicant did not agree with the findings and recommended disposition of the IPEB and requested a formal hearing. The Formal Physical Evaluation Board (FPEB) reviewed the case and recommend discharge with severance pay with a disability rating of 20 percent for lumbago due to degenerative disc disease associated with radiculopathy. The FPEB listed the applicant’s obstructive sleep apnea with prescribed continuous positive airway pressure (CPAP) machine under Category II as a condition that can be unfitting but was not currently compensable or ratable at the time of the board review. On 26 March 2010, the applicant requested his case be reviewed by the Secretary of the Air Force Personnel Council (SAFPC). On 14 January 2011, SAFPC directed that the applicant be discharged and receive severance pay with a disability rating of 20 percent. SAFPC noted “The member’s low back condition is unfitting for continued military service. The member’s sleep apnea, however, is not unfitting for military service, as there is no evidence in the record where any duty or mobility restrictions were based on sleep apnea. The member’s low back condition is characterized by pain with radiation to the left lower extremity and forward flexion limited to 40 degrees. As there is no evidence in the record to discrete neurological injury affecting the left lower extremity, the radicular pain must be rated together with the low back condition, as separate rating would constitute pyramiding, which is prohibited by the Veterans Administration Schedule for Rating Disabilities (VASRD). The member’s condition characterization correlates to 20 percent disability rating.” The applicant had over 20 years of satisfactory service and was eligible to elect transfer to the Inactive Status List Reserve Section (ISLRS) for the purpose of applying for a Reserve retirement under Title 10 USC, Section 12731, in lieu of discharge with severance pay (DWSP). On 21 January 2011, the applicant elected to transfer to ISLRS and Reserve Order EK- 2838 issued 28 February 2011 placed the applicant in ISLRS effective 22 May 2011. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPFD recommends denial. DPFD states as background, the Department of Defense and the Department of Veterans Affairs (DVA) disability evaluation systems operate under separate laws. Under Title 10, USC, Physical Evaluation Boards 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 that the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. Further, it must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence of snapshot of their condition at that time. It is the charge of the DVA to pick up where the AF 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 preponderance of evidence reflects that no error or injustice occurred during the disability process. The DPFD complete evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 25 January 2013, a copy of the evaluation was forwarded to the applicant for review and response within 30 days (Exhibit D). As of this date, no response has been received by this office. ________________________________________________________________ _ 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 an error or injustice. The applicant’s contentions are duly noted; 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 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. 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 the evidence presented did not demonstrate the existence of an 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-2012-05273 in Executive Session on 13 August 2013, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 November 2012, w/atchs. Exhibit B. Applicant’s Available Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 18 January 2013. Exhibit D. Letter, SAF/MRBR, dated 25 January 2013.