RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03656

XXXXXXXXXXXX	COUNSEL: YES
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  His medical separation be changed to a medical retirement.

2.  His medical conditions considered by the Physical Evaluation Board (PEB) as Category II, Conditions that can be Unfitting but are not Currently Unfitting, of neuritis, plantar fasciitis, neck injury and ankle injury be considered Category I, Unfitting Conditions.

3.  His obstructive sleep apnea (OSA), not considered by the PEB, be considered Category I and rated at 50 percent disability.

4.  His overall disability percentage be increased to 90 percent versus 20 percent.

5.  He receive back pay for the differences in disability conditions and percentages to the date of his separation, 25 Feb 17.

6.  In the alternative, he be placed on the temporary disability retirement list (TDRL). 
	
APPLICANT’S CONTENTIONS

The Medical Evaluation Board (MEB)/PEB failed to consider his OSA that was service-connected by the Department of Veterans Affairs (DVA) and rated at 50 percent disability.  Additionally, his intervertebral disc syndrome (neck), bi-lateral ulnar neuritis and bi-lateral plantar fasciitis were unstable at the time of Integrated Disability Evaluation System (IDES) processing but not considered nor rated.  His combined DVA disability rating was 90 percent effective the day after he separated, 26 Feb 17.  With regards to his OSA, his case is similar to Air Force Physical Disability Board of Review (PDBR) PD 2013-02123, where the Air Force recognized sleep apnea as a Category II condition. The PDBR used the VA rating of 50 percent and the criteria in the Veterans Affairs Schedule of Rating Disabilities (VASRD) to come to the conclusion that the service member should be given a permanent Category I rating for sleep apnea.  In Army PDBR PD 2015-00179, the PDBR recommended that the service member’s rating be increased from 0 percent, when he was initially rated, to 50 percent rating such as the applicant has been rated by the DVA because that service member had similar symptoms as his own.  Berkowitz v U.S., Court of Federal Claims, 07-038C 2014, the service member was medically separated due to OSA and other related conditions with a 0 percent rating.  The Court of Federal Claims held that the service member should have been considered at the higher rating of 50 percent because he used a CPAP machine, much like the applicant uses. 

Additionally, although he initially accepted the decision of the Informal Physical Disability Board (IPEB), it does not bar him from seeking an increase in benefits, such as seen in Mchenry v U.S., 367 F.3d 1370 (Fed Cir 2004), the United States Court of Appeals for the Federal Circuit held that an appellant could seek judicial review of their disability rating, even though the person originally accepted a lower rating.

If he is not given the primary relief request, he should be placed on the TDRL until his neuritis, plantar fasciitis, neck injury, ankle and knee conditions have all stabilized and can be considered for permanent rating.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically discharged technical sergeant (E-6).

On 5 May 16, the applicant was issued AF Form 469, Duty Limiting Condition Report, which indicated MEB processing was required, stating “member is undergoing an MEB to determine medical fitness for continued worldwide duty and retention.”

On 17 May 16, a Narrative Summary (NARSUM) was completed for the applicant’s MEB by a military physician that indicated the applicant had been (DNIF) for 307 days and it was unlikely that he would return to duty because of his history of re-injury of the knee and depression/anxiety affected his performance and quality of life with anticipation that he would remain DNIF for mental health reasons.

On 31 May 16, the applicant’s commander recommended the applicant not be retained.

On 23 Aug 16, the MEB referred the applicant to the Informal Physical Evaluation Board (IPEB) for chronic bilateral knee pain.

On 19 Oct 16, the IPEB determined the applicant’s chronic bilateral knee pain was unfitting and requested IDES DVA ratings.

On 1 Nov 16, according to the documentation provided by the applicant, he was seen by his doctor and the medical notes included, “Member with confirmed OSA with AHI greater than 15, which requires a MEB.  Added referral to DAWG & notified MSME to add to MEB package.  Member already been on CPAP for approximately 1 month, and Dr. at UNMC will forward compliance report for IRILO package.”

On 14 Nov 16, the DVA provided IDES proposed combined rating for the applicant’s unfitting claimed bilateral chronic knee pain as right knee patella femoral pain syndrome with meniscal tear, and degenerative arthritis at 10 percent and left knee tendonitis, and degenerative arthritis at 10 percent disability.  In addition, IDES proposed the following service connected disabilities and the IPEB considered the additional medical conditions and found the conditions were not currently unfitting for duty either separately or collectively: 

Condition	Rating	Condition	Rating	
left shoulder	20 percent	tinnitus	10 percent	
adjustment disorder w/mixed anxiety and depressed mood	10 percent	bilateral plantar fasciitis	0 percent	
cervical strain	10 percent	left shin splints	0 percent	
left ankle tendonitis	10 percent	right shin splints	0 percent	
left ulnar neuritis	10 percent	pseudo folliculitis	0 percent	
right ulnar neuritis	10 percent	residual scarring of right knee	0 percent	
thoracic and lumbar strain	10 percent	post benign maxillary/ mandibular exostoses removed	0 percent	

On 18 Nov 16, the IPEB determined the applicant’s right knee patellofemoral pain syndrome with meniscal tear, degenerative arthritis and left knee tendonitis, degenerative arthritis were unfitting with 10 percent disability rating respectively and recommended discharge with severance pay (DWSP) with 20 percent combined compensable percentage and indicated they considered all other medical conditions (Category II and III) rated by the DVA but found the conditions were, not currently unfitting for duty either separately or collectively.

On 6 Dec 16, the applicant concurred with the IPEB findings and recommended disposition of the IPEB and waived his right to a Formal PEB (FPEB).

On 25 Feb 17, the applicant was honorably discharged for disability with severance pay, noncombat and credited with 14 years, 6 months and 13 days of active service.

On 29 Mar 17, according to the documentation provided by the applicant, the DVA added OSA to the applicant’s list of disabilities with 50 percent rating and indicated, “This decision represents a change to a rating originally assigned as part of the IDES,” effective 26 Feb 17.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D and G.

APPLICABLE AUTHORITY

The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (USC), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued 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.  DoDI 1332.32, Physical Disability Evaluation, reads “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank or rating.”

The Department of Defense (DoD) and the Department of Veterans Affairs (DVA) disability evaluation systems operate under two separate laws.  Under Title 10, United States Code, Physical Evaluation Boards must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the AF disability boards must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of their condition at that time.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

AIR FORCE EVALUATIONS

AFPC/DPFDD recommends denying the application and indicated there is no indication an error or injustice occurred at the time the PEB processed his disability case.  Upon review of the documentation in the applicant’s claim, the board found no evidence his additional service-connected conditions were unfitting nor did he have a confirmed diagnosed of OSA at the time his board was processed; therefore a change to his rating would not be warranted.

The complete advisory opinion is at Exhibit C.

BCMR Medical Advisor recommends denying the application based on a lack of evidence that the contended additional conditions caused the applicant to be unfit.  An individual’s fitness for duty is assessed based on several factors.  The most prominent is that of being able to satisfactorily perform duty commensurate with position, title, rank, and Air Force Specialty Code (AFSC).  Having multiple conditions at the time of IDES consideration does not necessarily mean that all of the conditions are considered Category I or unfitting conditions.  The term “service-connected” is not synonymous with unfitting.  It is within the purview of the DVA to consider all or none of the applicant’s condition service-connected.  The DVA determination that a condition is service-connected does not automatically require the respective branch of the service to consider the condition unfitting without sufficiently compelling evidence.  The applicant accepted the determination of the IPEB, therefore; in the absence of incomplete or incorrect information or an error the determination is final.  Any subsequent increase/decrease in disability rating is between the applicant and the DVA.  This also applies to the other service-connected conditions as well.  The IDES determined disposition at this juncture is final.  The action requested is not in keeping with the current policy and guidance and the applicant has not provided adequate substantiation of an error or misapplication of the applicable guidance/policy.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent copies of the advisory opinions to the applicant on 30 Oct 19 for comment (Exhibit E), and the applicant replied on 27 Nov 19.  Through counsel, in his response, the applicant insists his OSA should have been considered by the MEB due to statement made on his medical records, dated 1 Nov 16, “Member with confirmed OSA with AHI greater than 15, which requires a MEB.”  The Advisory Opinion erroneously states that there was no evidence that there was a diagnosis before the Board was processed.  For whatever reason, the IPEB did not get this information and consider it when it made its decision.  His medical records reflect additional entries for OSA on 17 Oct 16 and 13 Nov 16.  At the time of separation, the ratings for his neck, ulnar neuritis on both elbows, and plantar fasciitis were unstable.  The IPEB should have listed all of the conditions considered under Category II and III and made a determination as to whether or not those conditions were stable.  This is why he is requesting the alternative relief of having those conditions deemed unstable and being moved to TDRL.  Additionally, although he accepted the IPEB findings and determinations at the time, he was in no condition to do so as he was in an extremely poor state of mind when the IPEB results were presented to him, to and include contemplating suicide.  The applicant provided additional medical records as supporting evidence.

The applicant’s complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATIONS

BCMR Medical Advisor considered the applicant’s rebuttal, but found it insufficient to warrant the desired change of the record.  The Medical Advisor opines that the preponderance of evidence indicates, but not for the applicant’s chronic recurrent knee pain, an MEB would not have been convened and he would have continued the previously documented remarkable performance on the AWACS and related ground duties [Germany and CONUS].  Thus, while OSA has appeared as potentially disqualifying/requiring MEB, in various versions of AFI 48-123, Medical Examinations and Standards, under today’s technology and Assignment Limitation opportunities, it is rarely a cause for career termination.  Although the applicant’s occupation, like many others in the Air Force, may be prohibitive of any lapses in attentiveness and alertness, as may occur due to non-restorative sleep in the case of untreated OSA, the reviewer found insufficient evidence, other that the diagnosis alone, that the applicant’s duties were ever impaired due to a sleep disturbance.  For this reason, the Medical Advisor opines, had OSA been considered by the IPEB, it would have been placed under Category II.

Addressing the applicant’s mental status, the Medical Advisor, likewise, believes an individual with an emotional disturbance should not be performing flying duties; as noted in the final statement in his NARSUM.  However, the diagnosis issued to the applicant, and its precipitating circumstances, were characterized as an Adjustment Disorder; a diagnosis that would have been considered non-compensable or unsuitable, even if it contributed to career termination; despite the 10 percent rating assigned by the DVA.

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 2 Apr 20 for comment (Exhibit H), and the applicant replied on 30 Apr 20.  Through counsel, in his response, the applicant points out that the BCMR Medical Advisor recognizes that, “the applicant has raised a legitimate concern that all of his medical conditions were not considered by the IDES process,” and this is absolute proof of error.  Although the Medical Advisor states “there are some cases where service members can be disqualified due to sleep apnea but is rarely the cause,” there is no way to know if his own sleep apnea was disqualifying because it was not considered in the IDES process.  There is also no way of knowing how it contributed to his mental health condition or how his quality of life was affected.  The statement taken from a provider note, “alleged use of a light saber cane,” was made by a provider who only saw the applicant on one occasion and led the applicant to seek another provider due to poor treatment.  The fact that the IDES process left out his sleep apnea, that turned into a 50 percent disability rating by the DVA and may have contributed to his mental health condition is a grave injustice.

The applicant’s complete response is at Exhibit I.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.   After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and the BCMR Medical Advisor and finds a preponderance of the evidence, to include the additional documentation received by the applicant, does not substantiate the applicant’s contentions.  The Board also notes the applicant’s references to Air Force Physical Disability Board of Review (PDBR) PD 2013-02123, Army PDBR PD 2015-00179 and Berkowitz v U.S., Court of Federal Claims, 07-038C 2014, and does not find them to persuade our decision.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-03656 in Executive Session on 20 May 20:

Panel Chair
Panel Member
Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 23 Apr 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 21 Aug 19.
Exhibit D:	Advisory opinion, BCMR Medical Advisor, dated 15 Oct 19.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 30 Oct 19.
Exhibit F:	Applicant’s response, dated 27 Nov 19.
Exhibit G:	Advisory opinion, BCMR Medical Advisor, dated 1 Apr 20.
Exhibit H:	Notification of advisory, SAF/MRBC to applicant, dated 2 Apr 20.
Exhibit I:	Applicant’s response, dated 30 Apr 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.