RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04260 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His peripheral neuropathy be approved for Combat Related Special Compensation (CRSC) as secondary to Diabetes Mellitus. APPLICANT CONTENDS THAT: He submitted medical and Department of Veteran Affairs (DVA) records which state that his neuropathy is secondary to his diabetes; however, the DVA will not change their coding; which is based on their own internal administrative procedures. His letter of March 11, 2014 cites all necessary evidence which is a matter of record at the Air Force Personnel Center (AFPC). The law establishing CRSC gives the Services decisional authority of these medical matters and it is clear that his neuropathies (and bowel problems) are secondary to his diabetes even if the DVA procedures prevent them from being so coded. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 24 Nov 71. On 1 Sep 89, the applicant was placed on the Temporary Disability Retired List (TDRL) as he was diagnosed with possible multiple sclerosis with several symptoms. His disability rating was listed at 30 percent. Other diagnosis considered but not ratable were Sarcoidosis, asymptomatic and hypercholesterolemia, moderate. On 13 May 92, the applicant was removed from the TDRL and permanently retired with a disability rating of 50 percent effective 23 May 92. He was credited with 21 years, 2 months and 27 days. On 29 Jul 08, the applicant’s claim of CRSC for multiple sclerosis, bladder incontinence, left optic neuroticism, bowel impairment, cognitive impairment, sarcoidosis, right and left upper extremity neurological dysfunction, left and right lower peripheral neuropathies, steroid-induced diabetes, and demyelinating pathology of the left ear was disapproved. On 14 Oct 08 and 28 Jan 10, the applicant requested CRSC reconsideration of his diabetes which was disapproved. On 13 Jul 10, the applicant requested reconsideration of his diabetes was approved. On 8 Nov 13, the applicant requested reconsideration of his previously disapproved conditions along with a newly awarded gastro esophageal reflux disease (secondary to his diabetes). The new condition was approved; however, the remaining conditions were disapproved. On 31 Dec 13 and 2 Apr 14, the applicant requested reconsideration of his disapproved conditions; however, they were disapproved. The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPFDC recommends denial indicating there is no evidence of an error or an injustice. The applicant’s condition does not meet the mandatory criteria for compensation under the CRSC program as outlined under the provisions of Title 10 U.S.C., Section 1413a, and the Office of the Under Secretary of Defense Guidance. The applicant’s peripheral neuropathies were awarded by the DVA as secondary to his Multiple Sclerosis, which cannot be approved for CRSC, as it is not an Agent Orange (AO) presumptive condition. They recommend the applicant address his disagreement with the DVA evaluation to the DVA. The CRSC program was established to provide compensation to certain retirees with Combat-Related disabilities that qualify under established criteria. If the veteran fails to satisfy the preliminary CRSC criteria, no further consideration by their service department is required and the claim will be denied accordingly. If the veteran satisfies the preliminary CRSC criteria, the claim is reviewed for combat-related determination. The DVA awards service-connected disabilities based on their standards. They resolve doubt in the interest of the veteran and grant service connections for injuries or diseases incurred while in service. While service connection for disabilities is required for initial eligibility for CRSC consideration, CRSC criteria is more stringent. CRSC guidance requires objective documentary evidence in order to support a combat-related determination. The applicant is seeking his neuropathies (left and right lower extremity peripheral neuropathies) be considered secondary to his diabetes. He feels his condition should be secondary to diabetes “even if the DVA procedures prevent them from being so coded.” The applicant’s diabetes was originally disapproved because the DVA awarded it secondary to a condition which they could not approve for CRSC. Not until the DVA changed their evaluation of diabetes to make it due to herbicide exposure were they able to approve his diabetes. The applicant’s peripheral neuropathies were originally awarded as, and continue to remain awarded as, associated with his Multiple Sclerosis; as such they cannot arbitrarily determine they are associated with some other condition. As they indicated to the applicant in previous letters, disagreements with evaluations made by the DVA must be addressed to the DVA. Furthermore, the applicant was awarded Multiple Sclerosis and sarcoidosis, which the DVA does not recognize as presumptive conditions for AO herbicide exposure. Therefore, the additional secondary conditions cannot be approved for CRSC as well. A complete copy of the AFPC/DPFDC evaluation is at Exhibit C. AFPC/JA recommends denial indicating there is no evidence of an error or an injustice. The applicant desires to expand his CRSC to include peripheral neuropathy and bowel issues. Although the Military Department determines which applicants are entitled to CRSC, the DVA has jurisdiction over the rating of a member’s service connected disabilities to include which diseases are presumptive for AO, an Instrumentality of War. In this case, the DVA found that the applicant’s peripheral neuropathy and bowel issues are secondary to this multiple sclerosis and, as such, neither can qualify as presumptive conditions for AO herbicide exposure. Consequently, the DVA’s rating decision prevents the Air Force from determining that the applicant suffers from a qualifying combat-related disability. Unlike his diabetes mellitus, which qualifies for CRSC on account of the DVA linking it to exposure to an Instrumentality of War, the applicant’s diagnoses of peripheral neuropathy and bowels issues are not found by the DVA to be presumptive diseases for AO. A complete copy of the AFPC/JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s rationale for requesting this correction is simple. Compensation and Pension (C&P) exams, his DVA Primary Care Manager, and civilian doctors all say that the increased disability he has in his lower extremities and bowel problems are aggravated by and secondary to his diabetes caused by AO. However, despite this preponderance of evidence, his DVA Regional Office (RO) rates them with his multiple sclerosis, even though there is no medical evidence to point to this connection. The DVA’s decision to not code his secondary disabilities accurately was because 1) it is moot to them because it does not increase his DVA compensation, and 2) their computer program is not able to handle this simple software coding program. In other words, despite the evidence, they are not capable of dealing with his issue. Thus, a DVA technical problem is preventing them from accurately rating his disabilities as being caused by an instrument of war (AO). The AF does not have the DVA technical problem and is not governed by DVA procedures and regulations. Thus, the AF can, and is directed by law and DoD guidance, to make their own decision as to what the preponderance of quality information dictates in his case. Regarding the advisory opinion of the AF CRSC Branch; the DVA ruling does not constitute the preponderance of quality information in this case. They ignored the preponderance of recent quality medical evidence of record. The AF does have the legal authority to make this decision. The only issue for the AF is whether or not the DVA decision represents the preponderance of quality evidence. Regarding the advisory opinion of the AFPC/JA; they are using circular logic. The AF cannot say “We cannot decide for the appellant because the DVA has already decided against him.” That would, de facto, leave the decision up to the DVA, whereas the law and guidance states the decision is to be made by the service. The service must decide on the merits of the case and, the JA opinion is correct in stating that the “Military Departments determine which applicants are entitled to CRSC.” This statement cannot be conformed to if the service allows the DVA to determine the rating. For example, the AF determined his retirement disability to be 50% disabled. He has appealed numerous times to the Air Force Board of Correction of Military Records to change that to match the DVA rating of 100% which existed at the time of his permanent retirement. In every case the response has been that the AF makes its decision independent of the DVA decision. The Air Force cannot have it both ways. They cannot say we make our own decision and then say we cannot decide because the DVA has already decided. 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 notice of the applicant’s complete submission, to include his rebuttal comments, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR) and AFPC/JA and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. The Board recognizes the applicant’s peripheral neuropathies were originally awarded as, and continue to remain awarded as, associated with his Multiple Sclerosis; as such they cannot arbitrarily determine they are associated with some other condition. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material 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-2014-04260 in Executive Session on 15 Sep 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-04260 was considered: Exhibit A. DD Form 149, dated 13 Oct 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFDC, dated 6 Jan 15. Exhibit D. Memorandum, AFPC/JA, dated 27 Jan 15 Exhibit E. Letter, SAF/MRBR, dated 26 Jun 15. Exhibit F. Letter, Applicant, dated 17 Jul 15.