RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-02229

XXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

His overall disability retirement rating be increased.

APPLICANT CONTENDS THAT:

Not all of his medical conditions were included on the AF IMT 618, Medical Board Report, for his Medical Evaluation Board (MEB).  All of his medical conditions (right/left knee, rhinitis, anxiety, sleep attacks, sleep paralysis, sleep hallucinations, hyper somnolence and neck) should be added to his AF IMT 618 and found unfitting.  His current unfitting conditions, (Depression, Narcolepsy) should be increased; and his Obstructive Sleep Apnea (OSA) currently found fitting, be found unfitting.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

During the matter in question, the applicant was serving in the Air Force Air National Guard in the grade of staff sergeant (E-5). 

On 3 Jan 14, an Informal Physical Evaluation Board (IPEB) found the applicant “UNFIT” because of physical disability (Narcolepsy) and recommended he be discharged with Severance Pay (DWSP).   

On 17 Jan 14, the applicant disagreed with the IPEB findings, requested a formal hearing of his case, and a one-time reconsideration of disability ratings for the conditions found unfitting by the IPEB. 
  
On 31 Jan 14, a Formal Physical Evaluation Board (FPEB) found the applicant “UNFIT” because of “Depression” and recommended he be permanently retired with a 30 percent compensable disability rating.   

On 4 Feb 14, the applicant agreed with the findings and disposition of the FPEB, but requested a one-time reconsideration of the conditions found unfitting by the FPEB (Depression at 30
percent).
 
On 13 Feb 14, the applicant’s Disability Evaluation System (DES) counsel, requested the DVA increase the applicant’s 30 percent compensable disability rating for Depression, to 40 percent. 
 
On 5 May 14, the DVA provided their response to the applicant’s request for reconsideration of his disability rating. 

On 9 May 14, the FPEB provided their findings and recommendation disposition after taking into consideration the 5 May 14 DVA proposed rating decision.  Their recommendation was permanent retirement with a disability rating of 40 percent (Depression-30 percent, Narcolepsy-10 percent).  
 
Effective 30 Aug 14, the applicant was permanently disability retired in the grade of staff sergeant, with a compensable percentage for physical disability of 40 percent.  
 
For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and G.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denying the application.  A review of the applicant’s disability case file reveals no error or injustice occurred during the processing of his case.  Under Title 10, USC, Physical Evaluation Boards must determine if a member’s condition(s) renders them unfit for continued military service relating to their office, grade, rank or rating. The fact that a person may have other medical conditions does not mean that these conditions are necessarily unfitting for continued military service.  As such, not all conditions are required to be listed on the AF IMT 618.  To be unfitting, the condition(s) must be such that it alone precludes the member from fulfilling their military duties.  Upon review of the case file at the time of the boards, there was no evidence found to indicate there were any other unfitting conditions.  The complete advisory is at Exhibit C.

AFBCMR Psychiatric Consultant recommends denying the application.  The applicant was initially found unfit for the Narcolepsy, however, on his appeal to the formal Physical Evaluation Board (FPEB), depression was also found unfit and added to the Narcolepsy.  OSA was listed as Category II condition (not unfitting).  The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences.  The Department of Veterans Affairs (DVA) is empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service-connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran.  As in the case under review, the applicant’s Depression was later awarded 70 percent disability; this adjustment does not alter the final military discharge disposition, which was based upon the diagnostic distinction present at the “snap shot” time of the applicant’s release from military service.  The Psychiatric Consultant found the decisions of the Military Department did not represent an error or injustice, concurring with the opinion provided by AFPC/DPFDD.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 8 Jun 18 for comment (Exhibit E), and the applicant replied on 15 Jun 18.  In his response, the applicant respectfully disagreed with the advisory opinions.  He contended neither the DVA nor the PEB collectively took into account all of the evidence that made his four conditions (Narcolepsy, OSA, Depression, and Anxiety Disorder).  He cites 10 USC, Section 1216 a/b, and 38 CFR, Section 3, in his argument that the Secretary concerned must take into account all medical conditions, whether individually or collectively, that render the member unfit to perform duties.  He requests the Board to rate all of his applicable primary and secondary conditions in the “Unfitting Category I,” assign the fair and just increase ratings using the Veteran Affairs Schedule for Rating Disabilities (VASRD).  The applicant’s complete response is at Exhibit F. 

ADDITIONAL AIR FORCE EVALUATION: 

The AFBCMR Medical Advisor recommends partially granting the application.  He noted the applicant has claimed both mental health and non-mental health related issues.  The Medical Advisor is in concurrence with the contents and recommendations provided by AFPC/DPFDD and the AFBCMR Psychiatric Consultant.  However, following a review of the case file, he recommends finding the applicant’s knee condition as unfitting [item 7 DD Form 149], with assignment of the disability rating, as determined by the Department of Veterans Affairs, at or about the time of discharge [but no greater than one year after discharge].  The final disability retirement rating should then be recomputed to achieve a new combined disability rating and permanent retirement.  The complete advisory is at Exhibit G. 

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

The Board sent a copy of the Additional Air Force evaluation to the applicant on 24 Jul 18 for comment (Exhibit H), but has received no response.  

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant has presented evidence sufficient to demonstrate an error and injustice regarding part, but not all, of his request.  The Board notes the comments of AFPC/DPFDD, and the AFBCMR Psychiatric Consultant indicating relief should be denied, as evidence presented did not indicate there were other unfitting conditions, and subsequent DVA findings should not alter the diagnostic distinction present at the “snap shot” in time of the applicant’s release from military service.  However, we agree with the AFBCMR Medical Advisor’s assessment.  , In this respect, based upon the evidence of record, the Medical Consultant is in concurrence with the contents and recommendations provided by AFPC/DPFDD and the Mental Health Advisor, however, he finds the applicant’s  final disability retirement rating should be recomputed with the left knee ailment disability found unfitting, and the rating as determined by the Department of Veterans Affairs on or about the applicant’s 2014 retirement, to achieve a new combined disability rating and permanent retirement.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records to the extent 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. His left knee arthritis, tendonitis, patellofemoral syndrome, and shin splints [Disability Evaluation System (DES)/DES Claimed] Proposed DES Service Connected, Gulf War, Incurred, assigned a 10 percent disability rating by the Department of Veterans Affairs in May 2014 is unfitting.

	b. Effective 30 Aug 14, he is permanently disability retired with a compensable percentage for physical disability of 50 percent.  

However, regarding the remainder of the applicant’s request, the Board recommends the applicant be informed the evidence did not demonstrate material error or injustice and the application could only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-02229 in Executive Session on 2 Oct 18:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 30 May 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 13 Dec 16.
Exhibit D:	Advisory opinion, AFBCMR Psychiatric Consultant, dated 16 Mar 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 8 Jun 18.
Exhibit F:	Letter, Applicant, dated 15 Jun 18.
Exhibit G:	Advisory opinion, AFBCMR Medical Advisor, dated 19 Jul 18.
Exhibit H:	Notification of Advisory, SAF/MRBC to applicant, dated 24 Jul 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9, pertaining to Docket Number BC-2016-02229.