RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04891

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXX
	 
  	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

1.   He be granted combat related special compensation, effective 2008.  (The applicant has not exhausted administrative remedy by applying to the CRSC Board prior to applying to the AFBCMR for relief).  

2.  He be placed in the Limited Assignment Status (LAS) after his Temporary Disability Retired List (TDRL) period.

3.  He be retained 15-months upon reinstatement of LAS to qualify for a 20-year service retirement.

4.  His informal physical evaluation board (IPEB) findings dated 5 Aug 10, reflect he did not waive his right to appeal to the findings and recommendations.  

5.  He did not concur with the IPEB findings that his disabilities were not combat-related.

6.  His records be corrected show he appealed the IPEB findings to the formal PEB (FPEB).

7.  The provided medical witness report dated 15 Aug 21 be inserted into his medical records.  

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, requests he be granted CRSC for the 2006 PEB finding he was unfit due to persistent encephalopathy of unknown origin.  He departed service with 18 years and 9 months without CRSC and the Department of Veterans Affairs (DVA) offset, resulting in him not receiving a penny of his military retired pay.  

In 2006, he was in a coma.  He then improved and was placed on the TDRL in June 2010.  However, he was not properly counseled by his physical evaluation board liaison officer (PEBLO) nor was he appointed counsel.  They failed to explore the nexus in his case to toxic encephalopathy for his unexplained neurologic cognitive disorder.  

Since 2007, when placed on the TDRL, he has been under a disability of cognitive disorders from complications of persistent encephalopathy after head surgery in 2005 and 2006 for placing shunts.  This was after increasing headaches and a seizure later attributed to hydrocephaly.  The DVA assigned a 100 percent disability rating for his cognitive and memory issues.  He improved during the TDRL period and is capable of independent living; however, he remains disabled.

He was born with congenital hydrocephalus, involving abnormal flow of cerebral spinal fluid.  For 30 years, including his time in the Air Force, he had memory issues, headaches and learning problems.  In the 2009 TDRL evaluation, his mother noted he behaved atypically as a child; his behavior was peculiar and he became increasingly more bazaar.

In 1988, he entered the Air Force as a hydraulic systems specialist.  Hydraulic fluid is a hazardous waste and is toxic.  He was repeatedly required to handle and dispose of hazardous waste.  During the Gulf War, hydraulic fluid was responsible for certain aircraft personnel reporting nonspecific symptoms such as headache, cognitive impairment and fatigue.  This led to the DVA granting service connection for undiagnosed illness of Gulf War Veterans’ Medically Unexplained Illness, which qualifies for CRSC.  He served six months overseas, including in the liberation of Kuwait campaign in Kosovo.  

In May 2006, he underwent multiple neurosurgical procedures.  He developed an infection and was in a minimally conscious state or comatose.  On 21 February 2007, orders were issued placing him on the TDRL.  The PEBLO and counsel did not attempt to explore the increasing headaches and seizures were from Gulf War illnesses.  It was incumbent for counsel to not simply accept the PEB findings as this automatically made him ineligible for CRSC, with total DVA waiver/offset of military retired pay.  

In February 2007, he was transferred to a transitional living program and remained medically stable.  His ambulatory state improved with the use of a walker and independent living using adaptive equipment.  It was determined he made excellent progress since being in a semi-conscious state, although his parents still retained guardianship until he was successful in the transitional living program.  

In March 2007, he was treated and examined at a military treatment facility (MTF).  His cognitive deficits were only mild in memory, organization and abstract reasoning.  This conceivably qualified for LAS.  

In 2009, he underwent a TDRL examination.  The neuropsychologist still found a cognitive disorder but added schizotypal personality disorder.  He concluded the severe deficits in memory, mild to moderate in attention/concentration, with periods of poor reality testing.  Later, the neuropsychologist conceded the alleged scientific statement and conclusion of poor reality testing and schizotypal personal disorder as nothing more than beliefs.  Nevertheless, the stigmatizing psychiatric label was placed in his chart.  On 24 June 2010, he underwent his final neurological TDRL evaluation.  The neurologist recommended the applicant be permanently retired due to the severity of his neurologic complications.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired technical sergeant (E-6).  He was retired for permanent disability.    

On 10 October 2006, a MEB convened and referred the applicant to the IPEB for his conditions of obstructive hydrocephalus secondary to stenosis, altered mental status (encephalopathy), minimal conscious state secondary to hydrocephalus and encephalitis, intermittent paroxysmal autonomic instability (possible epilepsy) and permanent gastrostomy feeding tube.  The MEB noted the applicant was incompetent for pay and records and his conditions were in the line of duty (LOD).   

AF Form 356, Findings and Recommended Disposition of the USAF Physical Evaluation Board, dated 6 December 2006, shows the IPEB recommended the applicant be placed on the TDRL for persistent encephalopathy state of unknown origins; status-post occipitoparietal ventricular shunt placement and revision with infection.  Associated with intermittent paroxysmal autonomic instability with dystonia, seizure-like activity, methicillin-resistant staphylococcal positive culture and percutaneous endoscopic gastrostomy tube dependence.  The IPEB noted the applicant was incompetent for pay and records and recommended he be placed on the TDRL, with 100 percent unemployable disability rating.  

A competency board was convened on 4 January 2007 and determined the applicant was competent for pay and records at the time.  

The Corrected Copy, AF Form 356, Findings and Recommended Disposition of the USAF Physical Evaluation Board, dated 8 January 2007, no longer reflects the applicant was incompetent for pay and records.   

Special Order Number dated 9 January 2007, shows the applicant was placed on the TDRL effective 21 February 2007 in the grade of technical sergeant with a compensable percentage for physical disability of 100 percent.  

On 30 March 2009, the applicant underwent a TDRL neuropsychological evaluation. The evaluator noted the applicant’s neuropsychological evaluation indicated severe deficits in memory, mild to moderate deficits in attention/concentration and impairment on certain tasks requiring problem solving, concept formation and mental effort.  The evaluator stated his cognitive disorder-moderate was severe enough to disqualify him from continuing military service and recommended he be permanently separated.  It was also recommended he follow-up for neuropsychological testing in 18 to 24 months.  

AF Form 356, TDRL Re-evaluation, dated 5 August 2010, reflects the IPEB recommended he be permanently retired with a compensable rating of 80 percent for his unfitting conditions of cognitive disorder with deficits in both short and long term memory; diplopia with wall-eyed binocular inter-nuclear opthamoplegia; persistent numbness if ulnar distribution of left arm; and mildly decreased range of motion of right hip flexion and knee flexion, with a slight antalgic gait.  The IPEB noted the applicant’s conditions were not the direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war and the disability was not a combat-related injury.  

On 18 August 2010, the applicant concurred with the findings and recommendations of the IPEB.  

On 30 August 2010, the Secretary of the Air Force Personnel Council (SAFPC) directed the applicant be removed from the TDRL and be permanently retired for physical disability.   

Per Special Order Number dated 30 August 2010, the applicant was removed from the TDRL and retired effective 19 September 2010 in the grade of TSgt for permanent disability with a compensable percentage of 80 percent.  He was credited with 18 years, 11 months and 27 days of active duty service.  

On 23 July 2020, the AFBCMR administratively closed the applicant’s request per counsel’s letter dated 20 July 2020 requesting additional time to respond to the advisory opinions.  On 24 August 2021, counsel requested the case be-reopened.  

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

APPLICABLE AUTHORITY/GUIDANCE

Public Law 107-314 established the CRSC program, which provides compensation to certain retirees with combat-related disabilities that qualify under established criteria. 

Per 10 U.S.C. § 1413a and the DoD Financial Management Regulation, Vol 7B, Chapter 6, when making combat-related determination, with regard to Armed Conflict, Hazardous Service, Simulation of War or an Instrument of War.  The DVA awards service-connected disabilities based on their status.  While service connection for disabilities is required for initial eligibility for CRSC consideration, the CRSC program is designed to provide compensation for combat-related injuries and its standards are much more rigorous when determining if claimed disabilities qualify as combat related.  Eligible Air Force retirees should submit a DD Form 2860, Claim for Combat Related Special Compensation, to their Military Department, to the Air Force Personnel Center.  

AIR FORCE EVALUATION

AFPC/DPFDC recommends denial for CRSC.  To date, AFPC/DPFDC has not received a claim or any supporting documents for CRSC.  The applicant should submit a completed DD Form 2860, Claim for CRSC, and supporting documentation to the address provided.  

The complete advisory opinion is at Exhibit C.

AFPC/DPFDC recommends denial for LAS.  On 8 January 2007, the IPEB determined the applicant was unfit for continued service and recommended he be placed on the TDRL.  On 8 January 2007, the applicant concurred with the findings and recommendations and was placed on the TDRL.  After a full TDRL re-evaluation, the IPEB recommended on 5 August 2010 he be removed from the TDRL and permanently retired with a compensable percentage for physical disability.  On 18 August 2010, the applicant concurred with the findings and recommendation.

The applicant was also never eligible for LAS consideration as his condition was not stable and he was placed on the TDRL by default.  The AF Form 356 that took him from TDRL to permanent disability retired list (PDRL) states he continued to have substantial neurological deficits.  There was no chance the applicant would have been granted LAS for his condition.  The applicant did not and still does not meet the criteria for LAS.  Per AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, LAS retention criteria requires the physical defect or condition be stabilized or gradual improvement or slow progression.  Members must be able to function in a normal military environment without adverse effect on their own health or the health of others and without need for an excessive amount of medical.  

The complete advisory is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to counsel on 8 June 2020 for comment (Exhibit E).   In a response dated 24 August 2021, counsel contends an appeal before the CRSC board is inappropriate because the applicant’s claim requires a predicate correction of his erroneous IPEB findings.  The Air Force unlawfully or unjustly obtained his concurrence and waiver of right to submit a rebuttal to the FPEB after on 18 August 2010, he was deemed 100 percent disabled and unemployable by the DVA for complicated neurological disabilities finding him unfit for severe cognitive short and long-term memory problems, pain and chronic headaches, and other related impairments.  The 2010 IPEB ignored the June 2010 neurology TDRL he needed a final neuropsychological testing to determine his limitation.  

The applicant was not appointed a PEBLO nor a judge advocate to advise him. Further he was misled and was not informed he was not entitled to military retired pay upon accepting DVA disability.  The CRSC agency in reviewing appeals is limited to Air Force medical and duty records; only the BCMR has the authority to correct or amend his medical or PEB records, such as in this case to include expert testimony or witness statements.  Therefore, exhausting the CRSC as the advisory opinion suggests would be a futile gesture and a waste of time for the applicant.  

As a part of his specialty, he worked around and serviced aircraft and was exposed to engine exhaust and toxic spills.  He was exposed to ammonia type smells, aircraft grease lubricant and was assigned to dispose of equipment and rubble.  During his repeated deployments during the Persian Gulf War in the early 1990s and 2000s, he was exposed to burn pits of waste.  By 2004, he had migraines then a seizure in 2005.

The Air Force failed during PEB proceedings to properly advise and retain adequate representation to protect the applicant’s retirement pay.  Instead, through negligence, complacency or indifference, it flushed his 19-year investment down the toilet.  The Air Force failed to explore the evidence beyond narrow margins and into the wider impacts of hazardous environmental toxins with his duty.  

Counsel provides a medical report evaluation dated 19 August 2021.  The applicant carries the sickle cell trait but it is unknown whether he is homozygous (sickle cell disease) or heterozygous (skill cell anemia).  His long history of childhood-adult headache, sudden onset seizure in adulthood and evidence of acquaductal stenosis of probable congenital origin is consistent with sickle cell trait/sickle cell disease.  The sickle cell trait was noted in neurosurgery consultation on 26 June 2006; however, the physical profile serial report dated 10 May 2006 failed to check the box for the presence or absence of sickle cell trait.  For adults with sickle cell disease, complications continue to be a major cause of morbidity and mortality.  There is no evidence that sickle cell trait or sickle cell disease was a factor considered in the applicant’s deployment, job history, preventive medical surveillance or post-seizure/shunt care.  This is a serious issue because sickle cell anemia is a multi-organ disease with acute and chronic complications.  Involvement of the central nervous system is associated with increased mortality and morbidity.

Counsel’s complete response, with attachments, is at Exhibit H.  

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant did not exhaust all available non-judicial relief for CRSC 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 recommendations of AFPC/DPFDC and finds a preponderance of the evidence does not substantiate counsel’s contentions.  Counsel contends the applicant was unjustly denied CRSC and submitting a DD Form 2860 to AFPC is not applicable.  However, the Board finds the applicant’s request for CRSC is not ripe for adjudication as he has not exhausted the available administrative relief prior to requesting the AFBCMR grant his request for CRSC.  Counsel also requests correction of his IPEB findings to show he nonconcurred with the findings and recommendations of the IPEB; however, the Board finds the applicant was afforded his due process rights and there is no evidence the Air Force unlawfully obtained his concurrence and waiver to submit a rebuttal to the FPEB.  The Board finds no evidence of any impropriety in the convening of his IPEB/FPEB.  Further, the Board finds the applicant’s medical conditions do not meet criteria in 10 U.S.C. § 1413a and the DoDFMR to warrant amending his IPEB/FPEB findings to show his medical conditions were combat related.  Moreover, a DVA service connected disability rating determined in accordance with 38 U.S.C. is insufficient to warrant the requested relief.   With respect to counsel’s request, the applicant’s TDRL status be changed to permit placement on the LAS with 15 additional months of service to qualify for a 20-year service retirement, the Board finds the applicant was not eligible for LAS based on his unfitting and unstable condition.  Moreover, the Board does not find it in the interest of justice to credit the applicant for a period of service he did not serve.  Counsel further states the TDRL evaluator recommended further neurological testing be convened before making a final determination.  However, the applicant underwent a TDRL evaluation on 30 March 2009 and while the evaluator recommended he receive follow-up neuropsychological testing in 18 to 24 months, he stated the applicant’s cognitive disorder was severe enough to disqualify him from military service and recommended permanent separation.  With respect to counsel’s request, the medical witness report dated 15 August 2021 be added to his military medical record, the Board finds insufficient reason to include a medical evaluation completed by a civilian provider 10 years post retirement by a civilian provider.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2019-04891 in Executive Session on 6 October 2021:

 , 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 3 June 2018.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDC, dated 2 March 2020.
Exhibit D: Advisory opinion, AFPC/DPFDC, dated 25 March 2020.  
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 8 June 2020.
Exhibit F:  Counsel’s response for more time, dated 20 July 2020.
Exhibit G:  Letter, SAF/MRBC, dated 23 July 2020.
Exhibit H: Counsel response to advisory opinions, w/atchs, dated 24 August 2021.  

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.