RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00800

XXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His disability rating be increased from 10 percent to 40 percent.

His Arthritis of the Left Knee be added as a Category I, unfitting condition with a 10 percent disability rating.

APPLICANT’S CONTENTIONS

The Physical Evaluation Board (PEB) will not recognize his pre-discharge medical examination, which rated him more than 40 percent.  They used incorrect exam dates and category diagnosis.  A single disability rating completed by the Department of Veterans Affairs (DVA) is binding upon both departments.  He is in need of aid and assistance from the VA.

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

STATEMENT OF FACTS

The applicant is a medically separated Air National Guard technical sergeant (E-6).

Per AF Form 356, Findings and Recommendation of the USAF Physical Evaluation Board (PEB), dated 22 Feb 06, Block 9A, Category I, Unfitting Conditions which are Compensable and Ratable reflects:   Right Knee Pain, Status Post Medial Meniscus Repair, Full Range Motion and Strength rated at zero percent. 

Effective 30 Mar 06, per Special Order AQ-68, dated 22 Mar 05, the applicant was honorably discharged from the Oklahoma Air National Guard and as a Reserve of the Air Force for Physical/Medical Disqualification, with severance pay.

Per the applicant’s DVA Rating Decision dated 2 May 05, the applicant’s Arthritis Left Knee and his Arthritis and Torn Medial Meniscus Surgery, Right Knee, both increased from zero to 10 percent, effective 5 Feb 04.

On 5 Nov 10, the applicant’s records were corrected to show that his Right Knee Pain, Status Post Medial Meniscus Repair, Full Range Motion and Strength was rated at 10 percent instead of zero percent.  The Physical Disability Board of Review (PDBR) also considered the Degenerative Disc Disease of the Lumbar Spine, Normal Range of Motion Condition and determined this condition was not unfitting at the time of separation from service and therefore no disability rating was applied.

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

APPLICABLE AUTHORITY

DoDI 6040.44 states in part that (1) As a result of requests for PDBR review, the covered individual or a surviving spouse, next of kin, or legal representative may not seek relief from the Board for Correction of Military Records operated by the Secretary of the Military Department concerned.  (2) The recommendation of the PDBR, once accepted by the respective Military Department, is final.

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 of an error or injustice occurring at the time the PEB processed his disability case.  Although the applicant may have received a disability rating from the VA for these conditions prior to his separation, AFPC/DPFDD does not see evidence that these conditions were severe enough to significantly affect the applicant’s ability to perform his duties and classification as unfitting for military service.  At the time of his 2006 PEB, the board found no evidence that his condition of Left Knee Arthritis was considered as unfitting and therefore, it was not listed on the AF Form 356, Findings and Recommendation of the USAF Physical Evaluation Board (PEB).  Additionally, the AF Form 356 listed the Degenerative Disc Disease (DDD) in Category II, Conditions That Can Be Unfitting but Are Not Currently Compensable or Ratable.  The applicant contends that this condition should be assigned a compensable 20 percent rating, the rating that was issued by the VA prior to his separation.  It was noted in the 23 Feb 04 VA Rating Decision (provided by the applicant) that the VA initially awarded a 10 percent rating, which was later upgraded to 20 percent effective 5 Dec 05.  It was also noted in the 3 Nov 10, PDBR Record of Proceedings (ROP) (also provided by the applicant), that the PDBR had previously considered the DDD and concluded that it was not unfitting at the time of separation from service, and therefore, did not apply a disability rating.  The ROP also states, “Although the back condition clearly appears to have worsened after separation, there is not a preponderance of evidence that the condition was unfitting at the time of separation from the service.  Although the applicant’s duty restrictions could have resulted from either a knee or back condition, the service treatment record (STR) only contains evidence that the limitations were attributed to his knee condition.”

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.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 19 Aug 20 for comment (Exhibit D), and the applicant replied on 10 Sep 20.  In his response, the applicant contends that he was not allowed to deploy because he was on medical from Jul 03 to Mar 06.  The Air National Guard (ANG) said he needed to be medically retired because his condition had become more serious with the lymphatic condition lymphoma.  After several weeks, and not hearing anything from the ANG or the active duty side, his unit contacted him to come in.  He thought it was for an exam to determine his disability or to meet the PEB, but instead he had to sign papers or the board would find him unfit for duty and he would get nothing.  In 2009, he received a letter that stated Guardsmen were not given due process in determining disability.  He thought they were going to “right the wrong,” but instead, he received a letter stating that maybe his knees were not so normal and he was given a 10 percent disability.  His back and all of the other conditions did not receive consideration because that would have given him a retirement; therefore, they were sticking with the 2003 snapshot on all of his other conditions.

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 concurs with the rationale and recommendation of AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board found no evidence or documentation that would lead them to believe that the applicant’s discharge was not carried out in accordance with the prescribed authority.  The Board notes the applicant contends that he received a letter indicating due process was not given to Guardsmen in regards to determining their disability, essentially asserting the circumstances apply to his case.  Although, the applicant cited this information, the circumstances giving rise to those cases are unknown.  Nevertheless, we are not bound to recommend relief in one circumstance simply because the situation under review appears similar to another case and precedent is not a controlling issue in the Board’s decision on the instant case.  Each case presented before this Board is considered on its own merits and precedent does not bind them.  In the Boards view, the applicant was afforded full due 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-2020-00800 in Executive Session on 11 Sep 20 and 30 Sep 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 31 Oct 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 31 Mar 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 10 Aug 20, mailed on  	19 Aug 20.
Exhibit E:	Applicant’s response, postmarked 10 Sep 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.