RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05504 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: He be medically retired. APPLICANT CONTENDS THAT: In May 2012 he received a medical discharge for bilateral osteoarthritis of the knees. He was rated 20% and received severance pay. There were several errors that conflicted with the information he and his attorney presented during his Medical Evaluation Board (MEB). He has submitted documentation that supports he needed a total knee replacement which should have been completed while he was on active duty. The information clearly demonstrates the physician’s reluctance to perform the surgery based on his age. He had severe degeneration of both knees over a 10-year period that warranted knee replacements. Refusing to provide surgery based on the principal that he was too young was a violation of his patient rights. He had the right to accept the risks; however, he was not afforded that opportunity. During the MEB, the Board documented they observed him extending his legs to zero degrees. They were 15 feet across the room and he was wearing his airman battle uniform. This was an error. The Board clearly ignored documentation from his primary care manager and his physical therapist supporting the fact that he had limited extension, which would have qualified him for a medical retirement. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a former member of the Air Force who enlisted on 26 August 1998. On 1 July 2011, the Informal Physical Disability Evaluation Board (IPEB) recommended he be discharged with severance pay (DWSP) with a disability rating of 20%. On 2 September 2011, the Formal Evaluation Board (FEB) recommended he be discharged with severance pay with a disability rating of 20%. The applicant disagreed with the findings and recommendation and requested his case be referred to the Secretary of the Air Force Personnel Council for review. On 19 March 2012, the Secretary of the Air Force directed the applicant be discharged with severance pay with a disability rating of 20%. AIR FORCE EVALUATION: AFPC/DPFD recommends denial. The IPEB reviewed the applicant’s case on 11 July 2011 and recommended DWSP with a disability rating of 20% for diagnosis of severe compartmental osteoarthritis bilateral knees. On 15 July 2011, the applicant non-concurred and requested a formal hearing with counsel. The FEB reviewed his case with medical records on 2 September 2011 and also recommended DWSP with a disability rating of 20% for diagnosis of severe compartmental osteoarthritis bilateral knees. On 6 September 2011, the applicant requested his case with rebuttal, be reviewed by the Secretary of the Air Force Personnel Counsel (SAFPC). On 19 March 2012, SAFPC directed that applicant be DWSP with a rating of 20%. The Board noted: "While the Board acknowledged the multiple procedures to repair or remove meniscal (semilunar) cartilage endured by the member in the past, the Board found that the member's current symptoms and disability are related to the damage and destruction of the articular cartilage in both knees. The resultant severe tricompartmental arthritis, documented on radiographs and in medical notes, was the cause of the pain, effusions and crepitation documented. There was no medical documentation that any of his current symptoms were caused by meniscalteprs or meniscal dislocations. Thus, VASRD Code 5003, "Degenerative Arthritis" reflects the etiology and character of the member's disability better than VASRD Code 5259, "Cartilage, Semilunar, Removal of Symptomatic". VASRD Code 5258 is inappropriate as the member does not currently have "locking" episodes of the knees that can be attributed to displaced or tom semilunar cartilage (meniscus). Documents submitted by applicant indicate he underwent successful left total knee arthroplasty at on 9 January 2013. The discharge message was sent out which established his date of separation as 28 July 2012. He served 13 years, 11 months and 3 days of active service. 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 necessarily 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. The preponderance of the evidence reflects that no error or injustice occurred during the disability process. A complete copy of the DPFC evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disagrees with the findings and feels that his intentions were not transparent for the Board. It is clear his commander did not expect him to return to active duty, thus warranting a formal interview with him to discuss his options. His commander violated protocol and put little thought into the decision to separate him. He is not questioning the Medical Evaluation Board process, he is questioning the fact that it happened in the first place. Evidence has been presented to show a severe detrition of his condition. The Air Force was negligent in providing care for him. For this reason, he requests to be medially retired. The applicant’s complete response, with attachments, is at Exhibit E. ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends approval. The applicant was assigned to an overseas location during his final period of service. He had endured degenerative joint disease without surgery for approximately 10 years. Ultimately, it interfered with his ability to maintain fitness standards and became an implicit threat for administrative discharge. At the same time, due to the severity of his condition and the duration of time under profile/mobility restrictions, his condition warranted Medical Evaluation Boards; first in 2001, after which he was returned to duty, and finally in 2011, following which he was found unfit. Moreover, due to the intractability and severity of the arthritis, despite multiple arthroscopic surgeries on both knees, his clinicians opined that the next step in resolving the problem would be to perform knee joint replacement; an opinion which is expressed more than once in the applicant's service treatment record. For example, the MEB narrative summary, dated 13 March 2011, shows that his condition had "progressed to the point where his orthopedic physician has recommended that bilateral knee joint replacements are needed" and that "no other treatment options appear prudent aside from surgery." Also extracted from the commander's mission impact letter to the MEB are the following statements: "Unfortunately, the only way to improve his condition is for him to have total knee replacements per his PCM. Without having this surgery I believe eventually he will not be able to perform his primary duties due to not being able to stand for extended periods of time.” On 20 May 2011, an entry by the orthopedic surgeon at the medical group reads, "The worst degenerative joint disease I have ever seen; certainly the worst I have seen in someone of his age." However, due in part to the applicant's youthful age and the recognized likelihood for requiring future revision surgery, the surgeon expressed his reluctance to perform the procedure; while conceding the severity of the condition could warrant the procedure sooner than later." Additionally, the narrative summary indicates that the procedure was not available at the applicant's assigned base in the following: "The current recommended treatment isn't available on base and so any such treatment will need to be coordinated at this point. I cannot anticipate that his disability will improve without this surgery being performed." There is no indication that such a referral took place prior to the applicant's discharge. There are multiple statements by the applicant's military providers suggesting that he needed a joint replacement. The fact that the procedure was not conducted while the applicant was on active duty creates a sense of injustice; particularly since the procedure was planned and performed only a few months after his discharge at a military medical facility. Although the ultimate objective of relieving the applicant's pain and suffering was achieved in January 2013, had the procedure been performed while in uniform, he would have been eligible for a medical retirement with a minimum 30% disability rating for the left knee joint replacement. At the same time, one can conceive that due to the medical facility limitations, the fact that the applicant had endured a 10-year long history of degenerative arthritis, it was likely determined there was no urgent need to now retain the applicant under medical hold in order to conduct the procedure or for its convalescence. The applicant underwent an MEB for the long-standing history of degenerative arthritis. There is no documented evidence of dialogue between the applicant and his surgeon regarding any interest or insistence by the applicant to complete the surgery before discharge. Other than the post-service statements of record alleging his rights were violated, there is no evidence of disagreement with his provider's concern for premature operation due to his youthful age. Although the applicant has also presented arguments for rating his condition under alternative Veteran’s Affairs rating codes, the underlying knee pathology [degenerative arthritis] and the range of motion measurements in the service treatment record, as noted by previous boards, fell short of the threshold for the desired disability ratings and the desired disability rating codes. The applicant's post-service assessment during his Compensation and Pension examination of December 2012, while presumed legitimate, is not reflective of the physical findings demonstrated at the "snap-shot" time of the applicant's military service and do not prove an error or injustice in the actions by the Military Department. However, when collectively considering the consistent recommendations for joint replacement, the apparent unfulfilled external consultation with a joint replacement surgeon, the lack of availability of the procedure on base, and the fact that the applicant received the joint replacement upon his return to continental United States, then the Board may consider, as a matter of justice, granting the applicant a permanent retirement with a combined disability rating of 40%, achieved by combining a 30% disability rating for the left knee arthroplasty, under VASRD code 5055, and a 10% disability rating assigned for the right knee degenerative arthritis, under the existing service- designated VASRD code of 5099-5003. The BCMR Medical Consultants complete evaluation, with attachment, is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 12 December 2014, for review and comment within 30 days (Exhibit G). As of this date, no response has been received by his office. 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 injustice. We thoroughly reviewed the applicant’s complete submission and AFPC/DPFD’s recommendation to deny the applicant’s request. However, we believe a preponderance of the evidence supports corrective action. The BCMR Medical Consultant notes “multiple statements by the applicant's military providers suggesting that he needed a joint replacement.” We agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion that had the applicant undergone the suggested surgery while on active duty, he would be entitled to a medical retirement. As such, we find sufficient basis to conclude he has been the victim of an injustice and therefore, 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 27 July 2012, 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 left degenerative arthritis, status-post left knee total arthroplasty, VASRD code 5055, rated at 30%, and right knee degenerative arthritis, under VASRD code 5099-5003, rated at 10%; and that the combined disability compensable rating was 40%; 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 as a direct result of armed conflict or caused by an instrumentality of war. b. On 28 July 2012, he was not honorably discharged with entitlement to disability severance pay; rather, on that date he was released from active duty and on 29 July 2012 his name was placed on the Permanent Disability Retired List. c. His election of Survivor Benefit Plan option will be corrected in accordance with his 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-2013-05504 in Executive Session on 12 March 2015, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Nov 13, w/atchs. Exhibit B. Applicant's Master Personnel Record Excerpts. Exhibit C. Letter, AFPC/DPFD, dated 17 Jan 14. Exhibit D. Letter, SAF/MRBR, dated 29 Aug 14. Exhibit E. Letter, Applicant’s Rebuttal, dated 26 Sep 14, w/atchs. Exhibit F. BCMR Medical Consultant, dated 4 Dec 14, w/atchs. Exhibit G. Letter, SAF/MRBR, dated 12 Dec 14.