RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00711

XXXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His records be corrected to include Migraine Headaches as an unfitting condition in his 14 Sep 16 Physical Evaluation Board (PEB) findings.

APPLICANT’S CONTENTIONS

He went through a Medical Board and as a result of the findings, he was medically retired.  However, his condition of Migraine Headaches was not included in the list of unfitting conditions.  This condition was present while he served in the Air Force and it affected his performance.  Shortly after being discharged, he filed a claim with the Department of Veterans Affairs (DVA) for his Migraine Headaches and received a disability rating from the VA.

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

STATEMENT OF FACTS

The applicant is a permanently disability retired Air Force technical sergeant (E-6).

On 12 Apr 16, the applicant was diagnosed with a medical defect/condition requiring Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) processing.

On 26 Jan 16, the applicant’s commander notified the MEB that the applicant’s medical condition did not preclude him from performing any of his assigned duties.  The commander recommended the applicant be retained and his AF Form 469, Duty Limiting Condition Report, profile be renewed on an annual basis pending any changes to his condition.

On 15 Jun 16 [sic], the MEB recommended the applicant be referred to the Informal Physical Evaluation Board (IPEB).

AF Form 356, Findings and Recommendation of the USAF Physical Evaluation Board (PEB), dated 14 Sep 16, Block 9A, Category I, Unfitting Conditions which are Compensable and Ratable reflects:  Moderate Asthma at 30 percent and the IPEB recommended permanent retirement.  Category II, Conditions that can be Unfitting but are not Currently Unfitting reflects:  Obstructive Sleep Apnea; and Category III, Conditions that are not Unfitting and not Compensable or Ratable reflects:  Anaphylaxis to Insect Sting.

On 23 Sep 16, the applicant disagreed with the findings and recommended disposition of the IPEB and requested a formal hearing of his case.

On 1 Dec 16, after consulting with counsel, the applicant requested to waive his earlier decision for a formal PEB and did not want to request a one-time reconsideration of the disability ratings for the conditions found unfitting by the IPEB.  On 5 Dec 16, the President of the Formal Physical Evaluation Board approved his request.

According to Special Order ACD-00553, dated 6 Dec 16, effective 27 Mar 17, the applicant was relieved from active duty and effective 28 Mar 17, he was permanently disability retired in the grade of technical sergeant, with a compensable percentage of 30 percent for physical disability.

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

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no indication an error or injustice occurred at the time the PEB processed his disability case.  Although the applicant may have received a disability rating from the VA for this condition after his separation, AFPC/DPFDD does not see evidence that this condition was severe enough to significantly affect his ability to perform his duties and be classified as unfitting for military service.  The Air Force and the Department of Veteran’s Affairs (DVA) disability systems operate under separate laws.  Under the Air Force system (Title 10, United States Code [U.S.C.]), the PEB must determine whether an Airman’s medical condition renders them unfit for continued military service relating to their office, grade, rank or rating.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  The PEB then applies the rating best associated with the level of disability at the time of disability processing (a snapshot in time).  That rating determines the final disposition (discharge with severance pay, placement on the temporary disability retired list, or permanent retirement) and is not subject to change after the service member has separated.  Under the VA system (Title 38, U.S.C), the member may be evaluated over the years and their rating may be increased or decreased based on changes in the member’s medical condition at the current time.  However, a higher rating by the VA “based on new and/or current exams conducted after discharge from service” does not warrant a change in the total compensable rating awarded at the time of the member’s separation.

The complete advisory opinion is at Exhibit C.

The AFBCMR Medical Advisor concurs with the case analysis and recommendation by AFPC/DPFDD.  While the applicant’s Migraine Headaches emerged as a reason for several episodes of care during calendar year 2016; for instance, requiring frequent adjustments in medications, the documented path of the applicant’s MEB process indicates this condition was neither considered an independent basis nor intended cause for termination.  The Medical Advisor notes that the Department of Veterans Affairs (DVA) initially issued a 0% disability rating for the applicant’s Migraine Headaches.  This finding was based upon disclosures at or about the time of initial Compensation and Pension (C&P) Examination.  Therefore, had the applicant’s headaches been included as unfitting at the “snapshot” time of final military disposition, its inclusion in the rating computation would not have affected the final retirement disability rating.  However, through submission of new evidence, to include a competing C&P Examination, noting prostrating attacks, and a six-week log of headaches, the DVA ultimately granted a 50% disability rating for the applicant’s Migraine Headaches.  The Medical Advisor also notes that the “M21” guide for VA rating determinations for Migraine Headaches, shows that an appellant’s statements were likely considered credible evidence to support a claim, if corroborated through other evidence; particularly when referring to prostrating headaches, as defined in the policy.  While the policy justified the 50% rating decision of the DVA, it had no bearing upon the Military Department’s fitness determination.

Under AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, “The mere
presence of a physical defect or condition does not qualify a member for disability retirement or discharge.  The physical defect or conditions must render the member unfit for duty.”  Specifically, operating under DoD Instruction 1332.18, Disability Evaluation System, in order for a condition to be considered unfitting, there must be evidence the medical condition prevented a member from reasonably performing the duties of his or her office, grade, rank, or rating.  Moreover, there must be objective evidence utilized in determining unfitness; without speculation, opinion, and conjecture.  Collectively, given the commander’s mission impact statement to the MEB, the applicant’s consistently stellar performance reports, the results of the Impartial Review, and the comments in the Addendum to the MEB NARSUM [addressing several additional conditions, to include Migraine Headaches], the Medical Advisor found this to be significant documentary evidence that the applicant’s headaches did not individually render him unfit for continued service.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 27 May 20 for comment (Exhibit E), but has received no response.

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 AFBCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  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-2020-00711 in Executive Session on 14 Oct 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 5 Jan 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 8 Apr 20.
Exhibit D:	Advisory opinion, AFBCMR Medical Advisor, dated 7 May 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 27 May 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.