RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2016-04165

   	COUNSEL: 

	HEARING:  YES

APPLICANT’S REQUEST.  His 1999 Informal Physical Evaluation Board (IPEB) findings, which recommended he be discharged with separation pay (DWSP) be set aside, and his medical records be reevaluated for medical retirement, or in the alternative, the evidence presented to the 1999 IPEB be reevaluated to increase his disability rating to 30 percent.   

APPLICANT’S CONTENTION.  He was unaware of the considerable consequences of electing DWSP instead of appealing the assigned medical disability rating by the PEB.  In 1999, the Medical Evaluation Board (MEB)/PEB erred in applying the Veterans Administration Schedule for Rating Disabilities (VASRD).  The reasons for the incorrect disability rating are:

	1.  His physical examination was not thorough and not did fully evaluate him.
	2.  He did not completely describe his discomfort and difficulty he was having.  The PEB evaluation did not accurately reflect his level of disability. 
	3.  The compensable rating dropped dramatically from 30 percent to 10 percent during his TDRL reevaluation, even though his health did not substantially improve.
	4.  He was not properly warned of the significant consequences of accepting the PEB results instead of a permanent retirement. 
	5.  After his discharge, the DVA rated him at 30 percent disability, increased his disability rating to 70 percent in 2006, then to 100 percent in 2011.  The DVA conducted a more thorough and comprehensive evaluation, using the same standards of evaluation.  
	6.  His positive attitude impacted his PEB assessment because when asked how he was doing he always said “fine and happy to be alive,” while the truth was that he was not fine.  
	7.  He did not have legal advice and did not understand the consequences of his decisions.  He failed to exercise his right to a formal hearing or appeal the PEB finding to the Secretary of the Air Force. 

As a 16-year veteran he should have been medically retired.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS.  

On 3 Jun 97, an Informal PEB (IPEB) found the applicant unfit for further military duty due to his having undergone heart valve replacement, and recommended he be place on the Temporary Disability Retired List (TDRL) with a 30 percent disability rating.  

On 19 Aug 97, the applicant was placed on the TDRL with a total disability rating of 30 percent for heart problems.

On 27 Jan 99, the IPEB conducted a TDRL review of his case, lowered his disability rating to 10 percent, and recommended his discharge with severance pay. The applicant concurred with the IPEB recommendation.  

Under Special Order No ACD-00439, dated 18 Feb 99, effective 10 Mar 99, the applicant was removed from the TRDL and discharged due to physical disability, with entitlement to disability severance pay.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION.  

The AFPC Disability Office recommends denying the application.  Under Title 10, United States Code [U.S.C.], Physical Evaluation Boards must determine whether an airman’s medical condition renders them unfit for duty.  The PEB must apply the disability rating as outlined in the VASRD which correlates with the service member’s medical condition at the time the case is being processed through the Disability Evaluation System (DES) (a snapshot in time).  A rating applied at the time of placement on the TDRL may significantly change upon reevaluation due to changes in the service member’s condition.  That rating determines the final disposition (discharge with severance pay, placement on the temporary disability retired list, permanent retirement) and is not subject to change after the service member has separated.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION.  The Board sent a copy of the Air Force evaluation to the applicant on 15 Sep 17 for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION.  The AFBCMR Medical Advisor recommends denial. Convalescent ratings and ratings for specified periods of time following surgery do not apply” and that “ratings are based on the degree of functional impairment.”  Hence, although the DVA assigned a 100% disability rating for 13 months, this convalescent rating benefit did not apply to the Military Department.  The Medical Advisor concedes the TDRL examination was comparatively brief, when compared to the applicant’s initial MEB Narrative Summary and other post-service examinations.  However, given the fact that, on 6 Jan 99, the applicant was reported to have been doing well on chronic warfarin” and that he [denied] any chest discomfort, significant dyspnea on exertion, thromboembolic phenomena, near-syncope, orthopnea, paroxysmal nocturnal dyspnea, or edema,” a determination was made that he had improved since placed on the TDRL.

The Medical Advisor acknowledges the applicant had at least one exacerbation of his SVT since leaving [2002] and his condition may have since worsened.  However, the rules governing TDRL management prohibits adding a new condition as unfitting, that was not found unfitting at the time of TDRL placement; unless “the condition was caused by [the] condition for which the Service member was previously placed on the TDRL or directly related to its treatment.”  The disability evaluation system (DES) only compensates for the medical condition(s) that caused career termination; and then based only on the degree of impairment present at the “snapshot” time of final military disposition; in this case, based on evidence of 6 Jan 99.  Unlike the Military Departments, 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 retainability or fitness to serve.  This is the reason why an individual can be found unfit for one condition, yet receive compensation ratings for additional medical conditions that were service-connected, but not proven militarily unfitting.  Moreover, the DVA is empowered to adjust disability ratings as the level of impairment from a given service-connected condition may vary [improve or worsen] over the lifetime of the veterans.

It is difficult to substantiate any error or injustice was committed on the part of the Military Department in reducing the applicant’s disability rating, or to now speculate on activities that may or may not have caused dyspnea at the time; which would have otherwise warranted permanent retirement with a 30% disability rating.  The Medical Advisor acknowledges the applicant’s overall clinical status has changed over the time since his discharge, with the newly diagnosed Diabetes, congestive heart failure, and emergence of pulmonary hypertension.  However, none of these conditions were clinically evident at the time of the applicant’s service and, thus, were not included as potentially disqualifying conditions during his military service.

The Medical Advisor opines the applicant has not met the burden of proof of error or injustice that warrants the desired changes presented in this very untimely petition.

APPLICANT’S REVIEW OF THE AIR FORCE SECOND EVALUATION.  The Board sent a copy of the Air Force evaluation to the applicant on 12 Mar 18 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES:

1.  The application was not timely filed.

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

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is not the victim of an error or injustice.  The Board concurs with the AFPC Disability Office and the AFBCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  Therefore, the Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.

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.

THE BOARD RECOMMENDS: The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will 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 AFBCMR Docket Number BC-2016-04165 in Executive Session on 8 May 18:

, Panel Chair
, Panel Member
, Panel Member

The panel considered the following:

Exhibit A: Applicant’s application, DD Form 149, dated 25 Jul 16, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, AFPC Disability Office, dated 13 Jan 17.
Exhibit D: Notification of Advisory, SAF/MRBR to applicant, dated 15 Sep 17.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings concerning AFBCMR Docket Number BC-2016-04165 as required by AFI 36-2603, paragraph 4.11.9.