RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02860 COUNSEL: NO HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His combined disability rating assigned during the Medical Evaluation Board (MEB) process be reassessed for accuracy and fairness. _________________________________________________________________ APPLICANT CONTENDS THAT: His disability rating of 20 percent does not accurately reflect or align with the findings of the Department of Veterans Affairs (DVA) garnered percentage nor does it accurately include chronic conditions and associated residuals which led to the MEB. The DVA reevaluated his condition and residuals and granted a 70 percent disability rating. He believes the MEB rating is unjust given the condition and should align more with the DVA’s rating. In support of his request, the applicant provides copies of 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; DVA Decision Review Officer Decision, and other various documentation in support of his appeal. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 23 Nov 10, a MEB convened to consider the applicant for continued active duty service. The Board recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB) for chronic neck pain and decreased range of motion. On 7 Dec 10, the applicant was informed of the findings and recommendation of the MEB. On 13 Jan 11, the IPEB reviewed the case and found the applicant unfit and recommended discharge with severance pay and a disability rating of 20 percent for chronic neck pain due to degenerative disc disease status post C3-6 fusion. The IPEB noted the applicant’s medical condition prevented him from reasonably performing the duties of his office, grade, rank or rating. On 18 Jan 11, the applicant concurred with the findings and recommended disposition of the IPEB and waived his right to a formal PEB hearing. On 25 Jan 11, officials within the Office of the Secretary of the Air Force (OSAF) determined the applicant to be physically unfit for continued military service and directed an honorable discharge with severance pay and a disability rating of 20 percent under the provisions of Title 10, United States Code (USC), Section 1203. On 23 Apr 11, the applicant was discharged with a narrative reason for separation of Disability, Severance Pay, Non-Combat. He was credited with 13 years, 10 months and 20 days of active service. According to the DVA Rating Decision, dated 16 Jan 13, the applicant was granted with an evaluation of 30 percent for migraine headaches; zero percent for hemorrhoids; cervical spine degenerative disc disease was increased from 10 percent to 20 percent; right cubital tunnel syndrome was increased from zero percent to 20 percent; right shoulder bursitis was increased from zero percent to 10 percent; neck scar status post cervical spine fusion was increased from zero percent to 10 percent; and irritable bowel syndrome and gastroesophageal reflux disease was increased from zero percent to 10 percent. _________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSD recommends denial. The preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of separation. The applicant was not boarded for migraine headaches and there was no mention of migraine headaches in the past medical history on the narrative summary. It should be noted that the documents the applicant submitted from the DVA shows that they also awarded him 20 percent for his cervical spine. The applicant had the right to appeal for a formal hearing at the Formal PEB and could have appealed their findings to the Secretary of the Air Force Personnel Council (SAFPC). The applicant did not exercise either one of these appeal rights. The Department of Defense (DoD) and the DVA Disability Evaluation System (DES) operate under separate laws. Under Title 10 USC, PEBs must determine if a member’s condition renders then 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 their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to premature termination of their career. Further, it must be noted the United States Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at the 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 revaluate based on changes in the severity of a condition. The complete DPFD evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial. The Medical Consultant concurs with the recommendation of the IPEB for a discharge with severance pay with a 20 percent disability rating for chronic neck pain as the only condition found to be unfitting for continued military service at the time of separation. A review of the documentation provided for the review indicates a well-established history of chronic neck pain beginning in 09, although no clearly identified precipitating event was indicated. Records indicated cervical disc degenerative joint disease was a probable cause. Due to the applicant’s inability to adequately perform his Air Force Specialty Code (AFSC) duty requirements including significant profile limitations, he was referred for an MEB. The Medical Consultant opines that the assignment of a 20 percent disability rating for cervical spine flexibility was accurate. The Medical Consultant notes other conditions identified by the DVA which resulted in an aggregate assignment of a 70 percent disability rating over an extended rating period. However, the Medical Consultant concludes that the mere existence of these other chronic diagnoses does not provide adequate evidence of an unfitting condition. The Military DES, established to maintain a fit and vital fighting force, can by law under Title 10, only offer compensation for those service-incurred diseases or injuries which specifically rendered a member unfit for continued active service, were the cause for termination of their career, and then only for the degree of impairment present at the time of separation and not based on future possibilities. For an individual to be considered unfit for continued military service there must be a medical condition that prevents performance of any work commensurate with rank and experience or precludes assignment to military duties. The military service disability systems, operating under Title 10, and the DVA disability system, operating under Title 38, are complementary systems not intended to be duplicative. The mere presence of a medical condition does not qualify a member for a disability evaluation. Title 38, takes into account the fact that a person can acquire physical conditions that, although not unfitting at the time of separation, may later progress in severity and alter the individual’s lifestyle and future employability. This is the reason why an individual can be found fit for service and yet sometime thereafter receives a compensation rating from the DVA for service-connected, but militarily non-unfitting conditions. In addition, Title 38, authorizes the VA to increase or decrease the VA compensation ratings based upon the individual’s condition at the time of future evaluations. Thus the two systems represent a continuum of medical care and disability compensation that starts with entry on active duty and extends for the life of the veteran. The complete BCMR Medical Consultant evaluation is at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 31 Oct 13, for review and comment within 30 days (Exhibit E). As of this date, this office has not received a response. _________________________________________________________________ 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 an error or injustice. We took careful notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility AFPC/DPFD and the BCMR Medical Consultant and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in view of the above and 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-2013-02860 in Executive Session on 24 Apr 14, under the provisions of AFI 36-2603: Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 May 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 26 Jun 13. Exhibit D. Letter, BCMR Medical Consultant, dated 30 Oct 13. Exhibit E. Letter, SAF/MRBR, dated 31 Oct 13. 1 2