RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03497 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His compensable disability rating of 20 percent be changed to 40 percent and he receive a permanent disability retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: He believes that his service connected medical conditions (bladder outlet obstruction and urinary frequency) should be rated the same as the Department of Veterans Affair (DVA) at 40 percent. The DVA rating states that for urinary frequency, the condition for which he was medically discharged, a "daytime voiding interval of less than one hour…;” designates a 40 percent rating. He has a daytime voiding interval of approximately 37 minutes on average. He has numerous records from urologists, voiding diaries, statements from supervisors and coworkers, and other evidence showing his daytime voiding interval is less than one hour, as the DVA rating shows. Therefore, the Formal Physical Evaluation (FPEB) and the Secretary of the Air Force Personnel Council (SAFPC) incorrectly rated him at 20 percent instead of 40. In support of his appeal, the applicant provides a personal statement; copies of his DVA decisional documents; medical documents, and various other documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 4 Mar 11, the Informal PEB (IPEB) diagnosed the applicant with bladder outlet obstruction with urinary frequency. They recommended the applicant be discharged with severance pay with a compensable disability rating of 20 percent. On 15 Apr 11, the FPEB reviewed the case and recommended discharge with severance pay with a disability rating of 20 percent for diagnosis of bladder outlet obstruction with urinary frequency. The applicant non-concurred and requested a review of his case with his rebuttal by the SAFPC. On 30 Jan 12, the SAFPC directed the applicant be discharged with severance pay with a compensable disability rating of 20 percent. On 28 May 12, the applicant was discharged with severance pay with a compensable disability rating of 20 percent. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPFD recommends denial, stating, in part, that based the preponderance of the evidence reflects that no error or injustice occurred during the disability process or at time of separation. As background, the Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws. Under Title 10 USC, Physical Evaluation Board (PEBs) 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 a 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 complete DPFD evaluation is at Exhibit C. AFBCMR Medical Consultant recommends granting the applicant relief by amending the record to reflect that he was found unfit and retired permanently with a 40 percent disability rating, under the authority of AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, effective his established date of separation and under the established Veterans Affairs Schedule for Rating Disabilities (VASRD) rating code. First, all should acknowledge that, unless witnessed by a disinterested party, as in a military urine drug-screening program or in a hospitalized patient under strict monitoring of intake and urinary output, the level of urinary frequency for medical purposes in the outpatient setting is generally based upon statements disclosed by the patient in interview by the health care provider. Such statements, whether disclosed by the patient or a trusted witness, are presumed to be truthful in the medical profession, as it is this information upon which clinical decision-making and life-saving treatment [and indeed disability ratings] is based. Nevertheless, while the SAFPC made its decision based upon evidence presented to the FPEB, since the applicant had not yet been separated, any new evidence after the FPEB hearing, but prior to release from service [several months later] should have been taken into consideration; notwithstanding the temptation to distrust these newer findings. The new information should have been considered current and relevant in the often referred to "snapshot" time of final military disposition. However, the Medical Consultant cautions on using the effective date [the day after separation] of an individual's disability rating, as an interpretation of the severity of a given medical condition at the time of release from military service, as the DVA commonly makes its rating decisions often very remote [sometimes months or years] from the actual date of separation. Nevertheless, collective favorable consideration should be made of the probative value of the DVA rating decision [made within 12 months of the applicant's date of separation] and the medical evidence presented prior to the applicant's release from service. The applicant has presented reasonable evidence of an injustice in the application of a 20 percent disability rating for his urinary frequency. The complete Medical Consultant evaluation, with attachments, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant noted that he did not have anything to add to his application. The applicant’s complete response 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 error or injustice warranting corrective action. Notwithstanding the recommendation of the Air Force office of primary responsibility, we agree with the recommendation of the BCMR Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. As such, we conclude the applicant's records should be corrected to show that he was medically retired with a 40 percent disability rating. Therefore, we recommend the applicant’s record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to THE APPLICANT be corrected to show that: a. On 28 May 12, 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 Urinary Frequency, VASRD code 7518, rated at 40 percent; that the degree of impairment was permanent; 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. He was not disability separated, on 28 May 12, but, on 29 May 12, his name was placed on the Permanent Disability Retired List. c. His election of Survivor Benefit Plan option(s) will be corrected in accordance with the member’s expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-03497 in Executive Session on 17 Jun 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 18 Jul 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 20 Aug 13. Exhibit D. Letter, BCMR Medical Consultant, dated 19 Nov 13, w/atchs Exhibit E. Letter, SAF/MRBC, dated 26 Nov 13. Exhibit F. Electronic Mail, dated 25 Nov 13. 1 2