RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00766 XXXXXXXXXX COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: Her discharge with severance pay be changed to a medical retirement. APPLICANT CONTENDS THAT: There is supporting evidence to prove she should have been discharged with a 50 percent disability rating for “claw feet.” The treatment for her feet was not completed prior to her medical board. Her leadership submitted a request to dismiss the first medical board findings or to allow for a second board due to the change in her condition. They felt she needed sufficient time to heal from her surgery to ascertain if the surgery corrected her condition and would enable her to return to duty. However, this request was denied and placed her in a worse state than she had been at the time of her board. Her knee was not considered by the board, which is a contributing factor as to why she is unable to stand comfortably. The Department of Veterans Affairs (DVA) granted a 50 percent disability rating for her feet. She was told the board uses the DVA rating scale and questions why she did not receive an initial rating of 50 percent by the Air Force. In support of her request, the applicant provides a personal statement and a copy of a Veteran Service Office form. The applicant's complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 17 July 2002, the applicant enlisted in the Regular Air Force. According to AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 28 January 2011, the IPEB found the applicant unfit based on a diagnosis of bilateral foot pain and recommended discharge with severance pay with a 10 percent disability rating in accordance with Department of Defense (DoD) guidance for applying the Veterans Administration Schedule for Rating Disabilities (VASRD) code 5299-5276 [pes planus]. According to AF Form 1180, Action on Informal Physical Evaluation Board Findings and Recommended Disposition, dated 31 January 2011, the applicant disagreed with the findings of the IPEB. According to AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 9 March 2011, the applicant appealed to the Formal PEB (FPEB) stating the appropriate coding for her foot pain is Claw Foot [pes cavus] with a 50 percent disability rating under VASRD code, 5278. The FPEB upheld the decision of the IPEB. According to AF Form 1180, dated 9 March 2011, the applicant agreed with the findings of the FPEB. According to a memorandum dated 3 May 2011, the medical group commander petitioned AFPC/DPAMM to recall the applicant's Medical Evaluation Board (MEB) because she was scheduled for an outpatient surgery on 6 May 2011, which could cure her chronic bilateral foot pain. However, AFPC/DPFD denied the request. According to AFPC/DPFD memorandum dated 5 May 2011, the Secretary of the Air Force directed the applicant be separated from active service for a physical disability. According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, on 28 June 2011, she was honorably discharged from the Air Force. Her narrative reason for separation is “Disability, Severance Pay, Combat Related.” She served 8 years, 11 months and 12 days of active duty. AIR FORCE EVALUATION: AFPC/DPFD recommends denial. The preponderance of evidence reflects that no error or injustice occurred during the disability process. The IPEB recommended the applicant be discharged with severance pay with a disability rating of 10 percent for diagnosis of bilateral foot pain. On 31 January 2011 the applicant non­concurred with the findings and requested a formal hearing with counsel. The FPEB reviewed her case file with medical records on 9 March 2011. The FPEB noted that while it appeared that she had hammer toes, it was not shown to be unfitting, and not sufficient to justify a 50 percent disability rating. The Board opined that her medical condition was best analogized to pes planus. The FPEB recommended discharge with severance pay with a disability rating of 10 percent for her diagnosis of bilateral foot pain. The 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 that time. The applicant did not submit any new medical documents or a rating decision from the DVA. The complete DPFD evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial. Based upon the preponderance of evidence in its current form, the Medical Consultant recommends denial of the applicant's petition to supplant her discharge with a medical retirement. As a matter of justice, any illness or injury occurring before a member is discharged should be taken into consideration in the narrative reason for discharge, and in the case of a disability, warrants an assessment of the severity of the condition and impact on retention. Although forewarned by DPFD regarding a favorable surgical outcome, the applicant proceeded with a second surgery; approved by DPAMM largely under the policy that it was requested and would be completed within 6 months of separation date. Based upon the clinical assessment by the DVA, it is evident the applicant received a higher disability rating for her foot condition and that it was under a different VASRD code than utilized by the Military Department. However, as stated in the DPFD advisory, the Military Department bases its decision on the evidence present at the “snap shot” time of final military disposition. However, considering that the evidence at the “snap shot” taken at the time of the applicant's MEB/PEB action and that which was likely present after the MEB/PEB action, but before her actual release [still on our watch] from military service is the crux of the applicant's appeal. While one could argue the applicant electively chose to pursue additional surgery at her own risk, as it was her approved right to do, the question is whether she should be penalized for the less than optimal outcome that occurred before her discharge, also affecting her fitness to serve. The Medical Consultant found no error in the applicant's discharge actions, but concedes the appearance of a possible injustice to her if her condition was worse than it was when she first met the IPEB and FPEB and prior to her discharge. The Medical Consultant has not been supplied the actual DVA rating documentation, the date of the examination utilized in making its rating decision, nor the rationale for the rating decision. This additional information would be most helpful in reconsideration of the applicant's petition. The complete BCMR Medical Consultant’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 21 December 2014, the applicant supplied copies of the DVA rating decisions issued on 20 August 2011 and 8 February 2012, assigning her a 20 percent disability rating for each foot under VASRD code 5284, Foot Injuries, Other, among other ratings for unrelated conditions, effective 29 June 2011. Her complete submission is at Exhibit F. ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends amending the applicant’s record to reflect that she was found unfit and placed on the Temporary Disability Retired List (TDRL) with a combined disability rating of 40 percent [20 percent rating for each foot] under VASRD code 5284, Foot Injuries, Other, moderately severe, effective 28 June 2011. There was no error in the processing of the applicant’s disability case and she was afforded the opportunity for appellate review, leading to her agreement with the final disposition of her case. The issue of a possible injustice warrants further exploration. Under the Integrated Disability Evaluation System (DES), only the DVA determines disability ratings, whereas the Military Department only assigns the rating(s) to the unfitting medical condition(s). Following this reasoning one could conclude that assigning the rating as determined by the DVA based on evidence during the member’s active service would be proper, since it was based upon clinical assessments conducted before her actual date of discharge. The question is determining where the clock should stop in fitness and disability decisions affecting a service member’s final service characterization or reason for discharge. The applicant had an established date of separation and was permitted to extend the date in order to receive an additional elective surgical procedure. However, experiencing complications or a less than expected result following an elective surgery, pursued well after an agreed upon final military DES disposition, raises an issue of, at least shared, culpability. Medical officials did not introduce a medical hold in order to redo the applicant’s MEB/PEB processes. A recall of the applicant’s MEB/PEB had been previously denied based upon the questionable prognosis. Noting the multiple clinical diagnoses included in the DVA examiner’s assessment, there is no practical clinical way to determine to what degree any of the aforementioned medical conditions, either individually or collectively, contributed to the actual source of the applicant’s pain. Therefore, rating the applicant’s medical condition(s) under a unifying VASRD code, 5284, for Foot Injuries, other seems appropriate. Should the Board elect to grant the applicant’s petition, considering the fact that military medical officials approved the second surgical procedure with the false belief that she would have a favorable outcome and could be returned to duty [and the uncertain stability of her medical condition expressed by the DVA examiner], then placement on the TDRL with a combined disability rating of 40 percent [under VASRD code 5284] is an option versus a permanent retirement, effective her date of separation; then conducting a TDRL reassessment as soon as practicable, but not greater than 90 days. Such a TDRL re-examination would be more determinative of the applicant’s current clinical status and any permanent residual functional impairment. Evidence may consist of an examination by a podiatrist, with the aid of a DVA Disability Benefits Questionnaire [Foot Conditions] or, alternatively, by producing the very latest disability rating assigned by the DVA for her foot condition, if available. Evidence when obtained should be promptly forwarded to the AFBCMR for an appropriate recommended final Board disposition. Awaiting a TDRL assessment in an individual with recalcitrant foot pain since 2007 with the implicit belief that her condition would improve and send her back to severance pay could be considered arbitrary and capricious by some. Thus, viable choices may also include denial of the applicant’s petition outright or retire her permanently utilizing the rating decision of the DVA, based upon evidence present prior to her date of discharge. The Board is reminded that the statutory limit in TDRL status is five years. If granted, the applicant’s clock would have started on or about 28 June 2011 with a statutory end date in June 2016. The complete BCMR Medical advisory is at Exhibit G. APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: On 23 January 2015, a copy of the Additional Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit H). 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 to warrant changing the applicant’s medical discharge to a medical retirement. 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 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 the absence of evidence to the contrary, we find no basis to favorably consider this portion of the applicant’s request. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant partial relief. Having carefully reviewed this application, we agree with the BCMR Medical Consultant’s alternative form of relief to place the applicant on the TDRL so that she can be properly assessed and a determination made as to what her final disposition should be. Accordingly, we recommend her records be corrected to the extent indicated below. 5. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. On 27 June 2011, she was found unfit to perform the duties of her office, rank, grade or rating by reason of physical disability, first incurred while she was entitled to receive basic pay; that on 28 June 2011, she was released from active service and on 29 June 2011, she was placed on the Temporary Disability Retired List (TDRL) due to bilateral Foot Injuries; rated at 40 percent (20 percent rating for each foot) under the Veterans Administration Schedule for Rating Disabilities code 5284; 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 the direct result of armed conflict or caused by an instrumentality of war. b. The applicant shall receive a TDRL clinical re- evaluation by a civilian, military, or Department of Veterans Affairs (DVA) podiatrist, with the aid of Disability Benefits Questionnaire, VA Form 21-0960M-6, Foot Conditions, Including Flatfoot (Pes Planus) Disability Benefits Questionnaire, as soon as practicable, but not greater than 90 days or, alternatively, by producing the very latest disability rating assigned by the DVA for her foot condition, if available. c. All requested medical documentation should be supplied to the Air Force Board for Correction of Military Records, as soon as available, in order to reach an appropriate final disposition of the applicant's case. The following members of the Board considered AFBCMR Docket Number BC-2014-00766 in Executive Session on 12 March 2015, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00766 was considered: Exhibit A. DD Form 149, 20 February 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD Advisory, dated 3 September 2014. Exhibit D. Letter, BCMR Medical Consultant, dated 29 September 2014. Exhibit E. Letter, SAF/MRBR, dated 4 October 2014. Exhibit F. Email, Applicant, dated 21 December 2014, w/atchs. Exhibit G. Letter, BCMR Medical Consultant, dated 15 January 2015. Exhibit H. Letter, SAF/MRBR, dated 23 January 2015.