RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03944 

						COUNSEL:  

HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His medical separation be changed to a medical retirement with a 40 percent disability rating. 

APPLICANT CONTENDS:

The Secretary of the Air Force’s final determination of his medical status was not based on current and accurate medical documentation.  There is medical evidence which does not appear to have been forwarded to the Secretary of the Air Force Personnel Council (SAFPC).  The rheumatologist who treated him would verify he suffered from four to five incapacitating episodes per year despite his medication, significant enough for him to be decertified from the Personnel Reliability Program (PRP).  He also suffered from bilateral sciatic radiculopathy, which provides an independent basis for a 10 percent disability rating; bilateral foot pain; neck pain, and back pain.  He should be medically retired with a 40 percent disability rating.  Should there be any doubt regarding this issue, government statute would militate in giving the applicant the benefit of the doubt. 

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 31 May 06.

Effective 28 Aug 12, the applicant was furnished an honorable discharge, with a narrative reason for separation of “Disability, Severance Pay, Non Combat,” and was credited with 6 years, 2 months and 28 days of active service.   

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C, D, G, and J.    

AIR FORCE EVALUATIONS:

The AFPC Disability Office recommends denial indicating there is no evidence of an error or an injustice concerning the applicant’s contention the bilateral lower extremity for sciatic radiculopathy conditions were not considered during his medical processing.  

The applicant was referred to the Disability Evaluation System (DES) in May 11 for chronic low back pain and ankylosing spondylitis (AS).  The Informal Physical Evaluation Board (IPEB) found him unfit for continued military service, and recommended Discharge With Severance Pay (DWSP) with a combined compensable disability rating of 10 percent for his chronic low back pain with AS.  The applicant non-concurred, and requested an appearance before the Formal Physical Evaluation Board (FPEB).  On 15 Aug 11, the FPEB met and the applicant conceded he was unfit due to his AS, and contended he should be rated at least 40 percent disability under the Veteran Administration Schedule for Rating Disabilities (VASRD) disability code (DC) 5002.  The FPEB disagreed with the applicant’s contention and recommended the applicant would be more appropriately rated under DC 5240-5002 at 20 percent based on one or two exacerbations a year in a well-established diagnosis.  The FPEB did not find documentation of any incapacitating episodes to justify a higher rating.   On 31 May 11, it was written “He denies his pain is distracting or impairing to his Personnel Reliability Program (PRP) duties” and he has remained on PRP duties consistently through his disease course.  Following the FPEB hearing, the applicant appealed to the Secretary of the Air Force Personnel Counsel (SAFPC). On May 12, the SAFPC agreed with the FPEB findings and recommended DWSP with a combined compensable disability rating of 20 percent for AS.  

The applicant contends his bilateral lower extremity for sciatic radiculopathy conditions were not considered during the processing of his medical board.  Under Title 10, United States Code (USC), Physical Evaluation Boards must determine if a member’s conditions renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact a person may have other medical conditions does not mean the conditions are necessarily unfitting for continued military service at the time of the medical board processing.  To be unfitting, the conditions must be such that it alone precludes the member from fulfilling their military duties.  There was no mention in the applicant’s contentions to both the FPEB and SAFPC that he had further potentially unfitting condition(s), hence nothing further was considered during the processing of the applicants medical board.

Recommend denial of the applicant’s request.  There is no indication an error or injustice occurred at the time the medical board processed.

A complete copy of the AFPC Disability Office evaluation is at Exhibit C.

BCMR IMA Medical Consultant recommends denying the applicant’s request, indicating there is no evidence of an error or injustice concerning his request for a higher rating due to AS.  The medical reviewer notes the rating determination of 20 percent disability rating for AS, assigned by the DVA under its pre-discharge program, is consistent with the SAF final determination of 20 percent disability rating for AS.  Based upon objective medical evidence detailed in specific spinous range of motion measurements, signs and symptoms, and limitations of this unfitting condition, the medical reviewer concurs a higher evaluation of 40 percent is not justified for the thoracolumbar spine or the intervertebral disc syndrome.  More importantly, records document a statement from the applicant indicating, “You informed us you had no additional evidence to submit.”

There were no documented patient accounts of, “incapacitating or distracting symptoms” identified in the service treatment records.  Medical progress notes entries in 2010, while under care of Rheumatology, reveal the applicant’s personal statements denying any impairment, incapacitating or distraction in regard to the PRP participation.  Furthermore, as documented by the FPEB, the applicant testified, “current medications working,” and flare-ups “once every two to three months.”  A longitudinal progress note review of Rheumatology documentation, during the actual period of evaluation and treatment and patient statements, are consistent with a favorable response to the prescribed treatment regime and there is insufficient supporting documentation either by patient accounts or clinical documentation of “incapacitating events” throughout the treatment course which would justify consideration of a higher disability rating for AS. The medical reviewer concurs with a determination the applicant is appropriately rated with a 20 percent rating determination based upon one or two exacerbations a year with a well-established diagnosis.

Although there is other associated medical complaints/conditions, some potentially related to the AS, the medical reviewer opines none of these associated medical complaints/conditions, either singularly or in aggregate, would represent a condition(s) of such severity as to represent the cause of service termination (unfitting), and therefore, are not ratable.  

Addressing the applicant’s implicit request for a medical separation/retirement, the military Integrated Disability Evaluation System (IDES), established to maintain a fit and vital fighting force, can by law, under Title 10 USC only offer compensation for those service incurred diseases or injuries which specifically rendered the member unfit for continued military service and were the cause of career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences.  However, operating under a different set of laws, Title 38 USC, the DVA is authorized to offer compensation for any medical condition with an established nexus with military service, without regard to its proven or demonstrated impact upon a member’s retention potential, fitness to serve, or the narrative reason for release from military service. The DVA is also empowered to conduct periodic reevaluations for the purpose of adjusting the disability rating award [decrease or increase] as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.

Recommend denial of the applicant’s request for a change in the assigned disability rating for AS.

A complete copy of the BCMR IMA Medical Consultant evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In further support of his requests, the applicant submitted, through council, a rebuttal in which he takes exception to both Air Force Evaluations.  Concerning the AFPC Disability Office advisory, the applicant argues the SAFPC decision did not reflect any acknowledgment of the fact the applicant had been decertified from the PRP on 21 Nov 11, several months prior to the final AF decision on his case.  This was a critical link in SAFPC’s rationale to dispute whether the applicant had suffered from any incapacitating episodes from the time of the FPEB that would merit the use of the alternative rating criteria in this case.  He now contends he is providing a well-grounded basis for applying this alternative criteria under VASRD Code 5009, due to the uncontroverted medical evidence that the applicant suffered from 4 or more incapacitating episodes of this inflammatory arthritic disease during the time after his FPEB hearing and prior to his separation from the AF approximately one year later.  The applicant’s rheumatologist also noted the residuals of this disease affected his neck, back, SI joint, feet and ankles.  The DVA rating decision for the applicant assigned him a 10 percent disability rating to each lower extremity for sciatic radiculopathy, based upon DVA medical exams conducted on 12 Jul 12--more than a month prior to his separation.  Further, a mild incomplete paralysis of the sciatic nerve bilaterally was most logically related to the back injury at issue and should be viewed as separately unfitting due to pain under DVA Code 8520.  This bilateral sciatic radiculopathy provides an independent basis for assigning the applicant a 10 percent disability rating for each lower extremity under DVA Code 8520, and thereby placing him on the permanent disability retirement list with a combined 40 percent disability rating.

Concerning the IMA Medical Consultant advisory, the applicant reiterates it does not appear the advisory writers were aware this rheumatologist continued to treat the applicant after the FPEB and through the final AF decision.  It is intellectually disingenuous to opine that this board-certified rheumatologist would provide a false official statement to a Federal agency.  The rheumatologist’s report should be accepted at face value and merit the assignment of not less than 40 percent disability rating for AS.  In the alternative, the applicant’s bilateral sciatic radiculopathy also provides a solid basis for rating the applicant with a 40 percent disability.  If we accept the active disease process analysis of this condition as an inflammatory arthritic process, then the chronic residuals affecting the applicant’s neck, SI joints and ankle groups would also merit the assignment of a 10 percent rating for each affected area.  

The applicant’s complete rebuttal, with attachments, is at Exhibit F. 

THIRD AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends granting the applicant’s request, indicating there is evidence of an error or injustice concerning his request for a higher rating due to AS.  The applicant’s rebuttal to previous advisory recommendations were allegedly based upon evidence that was not considered by the FPEB nor SAFPC in their respective final recommended action because it occurred during the 10-month intervening period between the Agency actions and/or prior to the applicant’s date of discharge.  

On or about 15 Aug 11, the FPEB found the applicant unfit only for AS, but assigned a 20 percent disability rating.  The FPEB also stated, “The Board did not find documentation of any incapacitating episodes to justify a higher rating.”  In addition, SAFPC also noted, in testimony at the FPEB, the applicant stated his “flare-ups had gone from once a month to every two to three months.”  In support of the applicant’s petition the legal counsel also refers the reader to a letter from the applicant’s treating civilian rheumatologist, dated 22 Jun 12, which discloses the applicant presented with symptoms “including incapacitating episodes of      11-12 a year before treatment,” that “with treatment, the condition has stabilized,” and the applicant now “only presents with            4-5 incapacitating episodes a year.”  The legal counsel also implicitly contends the Special Actions/BCMR Advisory Opinion, dated 29 Sep 16, was based upon the SAFPC rationale, which did not take into consideration that the applicant had been decertified from the PRP on 21 Nov 11, several months prior to the final Agency action; nor whether he experienced additional incapacitating episodes “since [or AFTER] the time of the FPEB [hearing] that would merit use of the alternative rating criteria in this case.”

The advisory recommendation from AFPC/Disability Division, dated 29 Sep 16, recommends denial of the applicant’s petition, but concedes the inability to confirm or deny whether SAFPC had possession of or the ability to procure additional evidence to support the applicant’s petition.  More contemporaneous evidence, dated 14 Jul 17 on DVA letterhead, shows a response to the applicant’s Notice of Disagreement received on 4 Jun 14.  In response to the applicant’s disagreement, a Decision Review Officer Decision, dated 25 May 17, increased the applicant’s disability rating for AS from 20 percent to 60 percent, made effective 29 Aug 12.  In explaining the effective date of the rating of 29 Aug 12 the VA examiner noted this was the “day following your release from active duty, as you have continuously prosecuted your claim since that time.”

With respect to legal counsel’s argument to find the applicant’s bilateral lower extremity radiculopathy unfitting, there is no objective evidence of record, to include a lack of a demonstrated impediment to performing the duties of his office, grade, rank, and rating.  To find the conditions unfitting would be a violation of DoDI 1332.18, Disability Evaluation System, which prohibits reliance upon opinion, speculation, and conjecture in making unfit determinations.  However, the Medical Advisor does acknowledge the possibility some evidence, available prior to the applicant’s date of separation, may not have been utilized by previous boards in their respective decision-making.  Thus, while having strong agreement with the recommendation of the previous IMA Medical Advisor’s assessment, this reviewer concedes, in consideration of the voracity of legal counsel’s arguments, which included the alleged exclusion of information not considered by previous boards in their respective decisions, the implicit insistence on the truthfulness of the rheumatologist’s letter, and the upgrade of disability rating awarded by the DVA’s DRO, made effective the day after date of discharge, this Medical Advisor recommends retiring the applicant with a 40 percent disability rating as a fair compromise; albeit short of the 60 percent assigned by the DVA.

A complete copy of the BCMR Medical Consultant’s additional evaluation is at Exhibit G.

APPLICANT'S REVIEW OF THE THIRD AIR FORCE EVALUATION:

In further support of his original application the applicant states, through counsel, that he concurs with the AFBCMR Medical Consultant that a fair resolution would be to correct his records to reflect he was permanently retired with at least a 40 percent disability rating for AS.  While the advisory opinion stated the DVA increase may be due to additional evidence collected after separation, all evidence submitted for VA appeal was evidence collected prior to the applicant’s separation.  In addition, he reiterates his points concerning the benefit of the doubt doctrine, and the importance of not rejecting the expert medical evidence of the applicant’s rheumatologist.  Based upon the evidence submitted, he requests strong consideration of the Board adopting the 60 percent disability rating assigned by the DVA.  (Exhibit I) 

FOURTH AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends permanent retirement with a 40 percent disability rating.  The Board should be aware this applicant earlier argued he was fit for retention, and appears to have vehemently defended the lack of interference with his condition with the performance of his duties.  Now that he has been found unfit, the emphasis was shifted to depict a more formidable level of functional impairment, warranting retirement with “at least” at 40 percent disability rating. The Board will also recall the applicant’s treating rheumatologist consistently referred to his condition as “mild” in hand-written progress notes; although a worse clinical picture was painted in his 22 Jun 12 letter.

The DVA also issued an initial 20 percent disability rating for the applicant’s AS, on 14 Jun 13; likely with access to the same evidence that was available to the Military Department, plus the letter from his rheumatologist attesting that the applicant experienced 3 to 4 incapacitating episodes per year after receiving treatment.  However, through an apparent continuum of time, a Decision Review Officer (DRO), in May 2017, has now determined the applicant’s disability rating should be increased to 60 percent, with an effective the day after his date of discharge.

The decision of the DRO was, in large measure, prompted by evidence clearly obtained and considered well beyond the “snap shot” time of the applicant’s discharge date and the accompanying evidence 12 months following his discharge.  This is demonstrated in the following additional evidence depicted as utilized by the DRO in rendering the decision, which included a VA examination conducted at VA Medical Center (VAMC), San Antonio conducted on 22 Jun 16 [copy not supplied], the Compensation & Pension Examination completed on 25 May 17, and VA outpatient records from VAMC, San Antonio, from Mar 14 to May 17.  The Medical Advisor cannot dismiss the circuitous route and time taken within the Department of Veterans (DVA) in reaching its decision; which included acquisition of new post-service medical evidence which was utilized by the DRO in reaching its determination; but clearly not available to or considered by the Military Department
.
Accordingly, the Board has the options to either make no change in the current 20 percent disability rating [previously assigned by the Military Department and the DVA at a time when the applicant voiced his improvement and desire for retention], to grant the initial petition for permanent retirement with a 40 percent disability rating [which this reviewer placed greater weight on the 22 Jun 12 letter from the applicant’s rheumatologist], or to grant the more recent petition for a 60 percent disability rating, which was based on new evidence gathered by the DRO well beyond the applicant’s date of discharge; albeit administratively made effective the day after the applicant’s date of discharge.

The Medical Advisor recommends adopting the previous recommendation for permanent retirement with a 40 percent disability rating.  Doing so already applies the “benefit of doubt” in favor of the applicant.

A complete copy of the BCMR Medical Consultant’s final evaluation is at Exhibit J.

APPLICANT'S REVIEW OF THE FOURTH AIR FORCE EVALUATION:

Through counsel, the applicant states he concurs with the fourth Air Force evaluation that a fair resolution of this case would be to correct his records to reflect he was permanently retired at least at a 40 percent disability rating for AS.  However, he also asks that the Board give serious consideration to the arguments advanced in our previous submissions in this matter regarding the viability of a 60 percent rating for this condition and view the Medical Advisor’s 40 percent PDRL recommendation as the minimum rating to be awarded in this case. (Exhibit L)

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant has exhausted all remedies provided by existing law or regulations.

3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice.  We note the BCMR Medical Consultant recommends a permanent retirement with a 40 percent disability rating.  Contrarily, the Medical Consultant states the applicant earlier argued he was fit for retention and now that he has been found unfit, the emphasis has shifted to a medical retirement.  He also notes the applicant’s treating rheumatologist consistently referred to his condition as “mild” in hand-written progress notes; although a worse clinical picture was painted in his 22 Jun 12 letter.  Finally, the BCMR Medical Consultant states the decision of the DRO was, in large measure, prompted by evidence clearly obtained and considered well beyond the “snap shot” time of the applicant’s discharge date.  After carefully considering all the evidence in this case, to include the rheumatologist’s report and the BCMR Medical Consultant’s recommendation, it is our opinion the applicant's disability rating(s) were properly adjudicated and he has not provided sufficient evidence to persuade us that a change in the current 20 percent disability rating [previously assigned by the Military Department and the DVA at a time when the applicant voiced his improvement and desire for retention], is warranted.  Therefore, we agree with the opinions and recommendations of the AFPC Disability Office and the BCMR IMA Medical Consultant and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.   In view of the foregoing and in the absence of substantial evidence he was denied rights to which entitled, we find no basis to recommend any of the relief sought in this application.

4.  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 issues involved.  

Therefore, the request for a hearing is not favorably considered.

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 new evidence not considered with this application. 

The following members of the Board considered AFBCMR Docket Number BC-2015-03944 in Executive Session on 28 Mar 18 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 24 Aug 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records [Excerpt].
Exhibit C.  Memorandum, AFPC Disability Office, dated 29 Sep 16.
Exhibit D.  Memorandum, BCMR IMA Medical Consultant, dated 16 Nov 16. 
Exhibit E.  Letter, SAF/MRBR, dated 20 Dec 16.
Exhibit F.  Letters, Applicant, dated 18 Jan 17 and 23 Jul 17, w/atchs. 
	Exhibit G.  BCMR Medical Consultant, dated 20 Sep 17. 	Exhibit H.  Letter, SAF/MRBR, dated 21 Sep 17.
Exhibit I.  Letter, Applicant, dated 9 Jan 18.
Exhibit J.  Memorandum, AFBCMR Medical Consultant, dated 15 Feb 18.
Exhibit K.  Letter, SAF/MRBR, dated 23 Feb 18.
Exhibit L.  E-mail, Applicant, dated 11 Mar 18.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter concerning Docket Number BC-2015-03944.