RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03846

XXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His medical conditions acquired or aggravated during periods of active duty be evaluated as disqualifying and disabling conditions.

APPLICANT’S CONTENTIONS

He has a number of disqualifying medical conditions, including during Medical Continuation orders, for which he should have a fitness determination.  AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, and AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, outline the process for how to treat members with disqualifying conditions.  He filed an appeal of AFRC’s decision electing not to refer him to the Disability Evaluation System (DES); however, the appeal was not submitted to AFRC/CV.  He would like these conditions considered under DES as disqualifying and disabling, as he is currently rated at 80% with the Department of Veterans Affairs (DVA).

Conditions he would like considered as disqualifying and disabling are:  Ankle Injury, Sleep Apnea (DVA rated 50%), Post-Traumatic Stress Disorder (DVA rated 70%), Heart Attack, Hypertension (DVA rated 0%), Folliculitis, Traumatic Brain Injury (TBI), Tinnitus (DVA rated 10%), and Irritable Bowel Syndrome (DVA rated 30%).

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

STATEMENT OF FACTS

The applicant is an Air Force Reserve (AFR) colonel (Col/O-6).

The Automated Records Management System (ARMS) confirms the applicant’s periods of active service, via DD Forms 214, Certificate of Release or Discharge from Active Duty, as:

8 Jun 18 – 28 Dec 19
3 Jul 17 – 25 May 18
21 Feb 17 – 21 May 17
20 May 12 – 22 Dec 12
8 Aug 10 – 7 Oct 10
14 Mar 09 – 25 Nov 09
16 May 06 – 30 Jan 07
16 Aug 90 – 16 Sep 90
29 Jun 84 – 15 Jun 87 (Regular Air Force)

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

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 EVALUATION

AFRC/SGO recommends denying the application.  Based on documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  He was subjected to the proper Air Force pre-Integrated Disability Evaluation System (IDES) process, Initial Review in Lieu of (IRILO), which was adjudicated by the Air Force Instruction mandated authority.  He was then returned to duty, able to perform the duties of his office, grade, rank and rating based on sound clinical decision making; and, as such, did not require submission to the DES process.

AFI 48-123, Medical Exams and Standards, establishes the continued service (retention) standards.  In the applicant’s case, he had multiple conditions below retention standards (Obstructive Sleep Apnea, Post Traumatic Stress Disorder [PTSD] and History of Myocardial Infarction [MI]).  As such, the applicant required further review and determination of fitness for continued service.

AFI 10-203, Duty Limiting Conditions, outlines the procedures and requirements by which his case was to be referred and reviewed by the Deployment Availability Working Group (DAWG) and an IRILO prepared.  The IRILO is part of the Air Force mandated pre-IDES process and serves to present a case to the applicable Air Component medical standards office for retention waiver consideration.  This process allows the more expedient return to duty of members capable of performing the duties of their office, grade, rank and rating in spite of the medical conditions and thus only refers member to the DES process that require higher level consideration or disability separation consideration/action.

AFI 41-210 (updated to AFMAN 41-210), TRICARE Operations and Patient Administration, details the clinical requirements/standards for completion of the IRILO, and establishes the IRILO adjudication authorities.  For AFR members the retention waiver authority resides with the Air Force Reserve Command, Medical Operations Division.  Members are either found fit for continued service, granted a retention waiver and returned to duty or deemed ineligible for waiver, medically disqualified and referred to DES and the PEB.  Air Force Review members found medically disqualified will enter the DES via either a duty related pathway (Medical Evaluation Board [MEB]/IDES) or a non-duty related pathway (Non-duty DES).  During the review and adjudication of the IRILO, the line-of-duty (LOD) is of no consequence, and has no bearing on the disposition.  

AFRC/SGO received the applicant’s IRILO on 31 Oct 18.  Upon review and deliberation, it was determined he was capable of performing the duties of his office, grade, rank and rating and thus granted a waiver, returned to duty on an Assignment Limitation Code C3 on 14 Dec 18.  At the time of review/disposition by AFRC/SGO, per the documentation supplied and applicable standards in effect at the time, the applicant had three disqualifying conditions.  Separately and in combination, the conditions were reviewed as to whether they would reasonably preclude him from performing the duties of his office, rank, rating, and grade.  The determination after review of the available clinical information was that he was fit to return to duty with an Assignment Limitation Code (ALC) C3.  

Per the Medical Standards Directory (MSD) in effect at the time, the applicant had sleep apnea, which was more than mild, thus was disqualifying.  He was initially diagnosed in 1995 and served the majority of his career with this condition which has subsequently determined not to be a retention issue per the latest edition of the MSD in the absence of symptoms.  He was noted to be non-compliant versus intolerant with recommended Continuous Positive Airway Pressure (CPAP) therapy when case was reviewed.  However, this is not sufficient reason to refer the case.  Split night study showed good control of his condition on CPAP when worn.  His intolerance and failure to use CPAP device is an administrative issue as split night study provide therapy to be highly effective.  Given the absence of daytime somnolence and low Epworth Sleepiness Score, he was found fit to return to duty based on multiple year history without untoward effect on performance.  

The next condition which required adjudication was his coronary disease with myocardial infarction with drug eluting stent and cardiomyopathy.  The applicant’s AF Form 469, Duty Limiting Condition Report, only contained mobility restrictions for his myocardial infarction.  Fitness restrictions were for no run or walk due to right ankle pain.  Therefore, given his rank and administrative nature of his job, he was returned to duty as there were not significant restrictions due to his pathology.  The Narrative Summary (NARSUM) from the provider read “made an almost full recovery” and “improved significantly since MI event.”  Furthermore, the applicant was disqualified for the condition of PTSD.  The applicant was determined capable for duties of office, rank, rating and grade, and returned to duty, due to two different mental health professionals, and review of multiple clinical notes and accounting for a ten year successful career without untoward effects.  He had no indication at the pre-IDES review to refer case to full processing.

Finally, there are three completed LODs associated with applicant’s case; PTSD found ILOD on 19 Nov 18, Essential Hypertension found NILOD on 19 Nov 18, and OSA found NILOD on 4 Jan 19.  There are no LOD appeals noted in the AFR system of record for the two NILOD outcomes.  If the applicant could not have been granted a retention waiver and thus referred to DES and PEB via the IRILO process, he would have been entered into the duty related pathway (MEB/IDES), because of the ILOD findings for PTSD.  However, as previously noted the LOD process yields a unique service connection determination only, that does not affect the independent clinical IRILO disposition.  An AFR member referral to MEB/IDES requires both an ILOD disqualifying condition and a denied waiver for that condition.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 20 Jun 20 for comment (Exhibit D), and the applicant replied on 8 Jul 20.  In his response, the applicant provided information of clarification and/or correction regarding his unclear request.  He requests to correct the fitness for duty determination based on the totality of his case and the case history, and process through the DES for disability separation consideration.  His IRILO disposition was return to duty (RTD) with an ALC, on 3 Dec 18.  He received notification in Oct 19 that his annual review was due 12 Dec 19.  He met with his Physical Evaluation Board Liaison Officer (PEBLO) who scheduled his annual RILO appointments and the PEBLO submitted documents.  He never received a disposition on the annual RILO.  On 9 Dec 19, he turned 60, and on 2 Jan 20, he was retired for high year of tenure.  He believe his annual RILO package was not completed because he retired.  He requests his case be reviewed and processed in accordance with established medical standards and applicable AFIs, to include any medical conditions that meet the 8 year rule.

Regarding the applicant’s LOD appeal:  It was noted in the AFRC/SGO memo that no appeal was submitted; however, that is not the case.  His LOD was dispositioned 6 Jan 20 and he was notified by his commander via email on 22 Feb 19.  On 5 Mar 19, he filed the LOD appeal, well within 30 days of being notified.  The memorandum also refers to DoDI 1332.38, Physical Disability Evaluation, (dated 14 Nov 96) which is obsolete and was replaced by DoDI 1332.18, Disability Evaluation System (DES), (incorporating Change 1, 17 May 18),  published 5 Aug 14.  LODs for Obstructive Sleep Apnea (OSA) and Hypertension were erroneously denied as being not in the line of duty there; however, there is evidence that he had severe OSA well before it was officially diagnosed, in the early to mid 1980s.  Hypertension was diagnosed in 2017 while he was on extended orders, and was exclusively treated by the Air Force until his retirement in Jan 2020.  The LOD for Sleep Apnea as well as hypertension should have been determined to be ILOD under the provision of the 8 year rule in accordance with AFI 36-2910, Line of Duty (LOD), Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay.

Regarding the applicant’s Traumatic Brain Injury (TBI):  In 2009, his convoy from Abu Graib to Taji, came upon a roadside improvised explosive device (IED) which detonated causing minor damage to the vehicle.  The driver reported the event and an incident report was filed.  The applicant does not have a copy of the incident report, only a letter from his commander.  He hit his head from the concussion of the blast.  As there were no other apparent injuries, they returned to Abu Graib, where the Iraqi medic evaluated him.  The medic felt the applicant had a concussion, but no further evaluation was done.  When he returned from his deployment he was not given the computerized post deployment screening.  It was not until the DVA asked if he had experienced any head trauma while deployed, that the incident was documented.  

Regarding the applicant’s sleep apnea, the AFRC/SGO memo stated he was non-compliant with his CPAP.  He was intolerant to the split protocol.  However, the DVA discovered the issue was the mask; the applicant was intolerant to the mask not CPAP therapy.  Once the proper mask was found he has not had a problem using CPAP.  

Regarding the applicant’s PTSD:  The AFRC/SGO memorandum states the Reserves did not know about his PTSD until he had his Myocardial Infarction (MI), that he did not start treatment until 2013.  Assessment for PTSD began in 2014; however, it was not officially pursued.  He was not willing to disclose symptoms as he feared possible career affects.  When the Air Force decided he had disqualifying conditions, and informed him an MEB would be required, it seemed prudent to assure the Air Force had everything to develop a full spectrum comprehensive view of his conditions for the MEB to include PTSD.

He did not deny treatment from the DVA in 2015 he asked what the treatment would involve and whether or not it would help.  He returned to the DVA in 2016 who reassessed him and offered treatment, but again he was concerned how the stigma of treatment.  Eventually, he was referred to the Alcohol and Drug Abuse Prevention and Treatment (ADAPT) Program.  He was placed on medical hold in Jan 2018 as a result of his 2017 Periodic Health Assessment (PHA), and was assessed for his heart condition, PTSD, OSA, IBS, Hypertension, and other conditions.  When it was apparent he was going to an MEB based on the DAWG assessment and recommendation, he wanted to ensure all of his conditions were part of the MEB.  He was informed his disqualifying conditions were why he was going through an MEB, but he was instead returned to duty.  After initial Mental Health Assessment by Captain (Capt) T, it was determined he would continue treatment and care with the DVA versus Air Force Mental Health.  Capt T informed the applicant’s PEBLO that the NARSUM would be amended to include the DVA assessment of PTSD.  However, since the applicant was not referred for DES processing Capt T was not afforded the opportunity to amend the NARSUM.  Capt D accomplished a Mental Health Assessment in Nov 2019, and her assessment was significantly different from that of Capt T, and more consistent with the DVA.  

The applicant’s complete response is at Exhibit E.

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 took notice of the applicant’s complete submission and Air Force guidance in judging the merits of the case and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  He was subjected to the appropriate Air Force pre-Integrated Disability Evaluation System (IDES) process, and returned to duty based on sound clinical decision making; and, as such, did not required submission to the DES process.  Therefore, the Board recommends against correcting the applicant’s records.

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-2019-03846 in Executive Session on 3 Jun 20 and 9 Feb 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 17 Jul 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFRC/SGO, dated 8 Jun 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 20 Jun 20.
Exhibit E:	Applicant’s response, dated 8 Jul 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings regarding AFBCMR Docket Number BC-2019-03846, as required by AFI 36-2603, paragraph 4.11.9.