RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-01970

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His permanent disability retirement pay be upgraded from 70 percent to 75 percent based upon Department of Veterans Affairs (DVA) reconsideration, dated 1 Apr 16 regarding Unfitting Condition:  Inappropriate Tachycardia from 0 percent to 30 percent.
2.  AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 20 Jun 14, be corrected to reflect:  item 4.  Unfitting Condition:  Inappropriate Tachycardia to 30 percent, and item 11.  Combined Compensable Percentage of 75 percent.
3.  Correction to Special Order Number ACD-02684, dated 10 Jul 14, to reflect a compensable percentage for physical disability of 75 percent.
4.  He receive retroactive permanent disability retirement pay based upon upgraded disability percentage of 75 percent, effective 28 Nov 14.

APPLICANT CONTENDS THAT:

The evidence supporting the requirements for 30 percent disability for inappropriate tachycardia, with documentation of more than four episodes documenting tachycardia by electrocardiogram (ECG), existed in the military medical treatment record at the time of the Physical Evaluation Board.

During the Integrated Disability Evaluation System (IDES) evaluation and rating determination, DVA had in possession as evidence the service treatment records which included evidence of more than four episodes of tachycardia documented by ECG.

Despite having this evidence supporting a higher rating, DVA awarded zero percent rating, and a reconsideration had to be requested upon discovery of this error.  On 1 Apr 16, DVA assigned a 30 percent rating for inappropriate tachycardia.

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

STATEMENT OF FACTS:

On 16 Jul 07, the applicant initially entered the Regular Air Force.

On 20 Jun 14, an Informal Physical Evaluation Board convened and recommended permanent retirement with a combined compensable percentage for physical disability of 70 percent.

On 1 Jul 14, the applicant agreed with the IPEB findings.

On 28 Nov 14, the applicant retired, was furnished an Honorable Discharge, and credited with 7 years, 4 months, and 12 days active service.  Narrative reason for separation was Disability, Permanent (Enhanced), and the applicant was awarded a compensable percentage for physical disability of 70 percent.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility, which is attached at Exhibit C.

AIR FORCE EVALUATION:

AFPC/Disability recommends denial, indicating there is no evidence of error or injustice.

The applicant contends DVA erred in providing a zero percent rating determination for his condition of inappropriate tachycardia, and in Nov 15, requested reconsideration.  DVA subsequently increased his disability percentage from 0 to 30 percent based on new medical documentation, with an effective date of 4 Dec 15.

The applicant was referred to the Informal Physical Evaluation Board (IPEB) and found unfit with a recommendation of permanent retirement with a combined compensable disability rating of 70 percent.  The applicant concurred with the findings, did not exercise his right to appeal to the Formal PEB, or request a reconsideration of his DVA-assigned disability percentages.

The Air Force and DVA disability systems operate under separate laws.  Under the Air Force system (Title 10, United States Code), the PEB determines whether an Airman’s medical condition renders them unfit for duty and applies the rating provided by DVA at the time of disability processing (a snapshot in time).  That rating determines final disposition and is not subject to change after the service member has separated.

Under the DVA system (Title 38, United States Code), the member may be reevaluated over the years and their rating changed based upon the member’s medical condition.  However, a change in DVA rating, after separation from service, does not warrant a change in total compensable rating awarded at the time of the member’s separation.

The applicant is seeking an increase in his overall rating, and subsequent back pay for the period between his retirement and present, for a recent increase in his disability percentage by DVA.  However, the effective date for the DVA increase is over a year following release from active duty; therefore, the changes requested by the applicant are not warranted.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The advisory opinion lacks impartiality as it was provided by the same organization that committed the error or injustice.  Ignored is the fact that at the time of the PEB, both the Air Force and the DVA had in their possession evidence that warranted a 30 percent disability rating for inappropriate tachycardia.  Documentation by ECG was in the military medical record at the time of the PEB.

The AF Form 356, dated 20 Jun 14, reflects, “The PCM (Primary Care Manager) reviewed the VA’s Compensation and Pension Exam and has addressed any discrepancies and reviewed the claimed conditions.”  The PCM disagreed with the DVA examination with regard to recommending zero percent, referred to evaluation by a cardiologist and latest medical note.  The advisory does not address why, despite evidence of more than four episodes and notes from the PCM, the board adjudicated zero percent to the unfitting condition inappropriate tachycardia.

There is no statute of limitations regarding the increase over a year following retirement date.  The request for reconsideration was made to DVA within a year from retirement.  The episodes of tachycardia occurred during military service and ECG documentation derived from military service treatment records.

Consistent with Air Force Instruction 36-3212, Physical Evaluation for Retention, Retirement, and Separation, reconsideration from DVA was required prior to requesting correction with the Air Force Board for Correction of Military Records.

A complete copy of the applicant’s rebuttal is at Exhibit E.

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 comments in rebuttal, in judging the merits of the case.  However, we agree with the opinion and recommendation of the Air Force office of primary responsibility, particularly regarding the operation of law upon the two separate disability programs and that the effective date for the DVA increase is over a year following release from active duty, and adopt its rationale 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 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-2016-01970 in Executive Session on 8 Aug 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01970 was considered:

	Exhibit A.  DD Form 149, dated 5 Apr 16, w/atchs.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Memorandum, AFPC/Disability, dated 26 Jul 16.
	Exhibit D.  Letter, AFBCMR, dated 8 Mar 17, w/atch.
	Exhibit E.  Letter, Applicant’s Rebuttal, dated 3 Apr 17,
            w/atchs.

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 regarding AFBCMR Docket Number BC-2016-01970, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.