RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02872

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His Medical Evaluation Board (MEB) be recalled to allow him to remain on active duty and receive medical care.

APPLICANT’S CONTENTIONS

He was injured while on terminal leave after a MEB determined he be permanently disability retired.  An MEB Recall appeal should have been initiated and he should have been allowed to remain on active duty to receive medical care while on basic pay status. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a permanently disability retired Air Force senior airman (E-4).

On 21 Apr 20, an Informal Physical Evaluation Board (IPEB) found the applicant unfit for low back pain; rated by the Department of Veteran Affairs (DVA) as L5-S1 Facet Arthropathy with Synovial Facet Cyst, with 40 percent compensable disability rating and recommended permanent disability retirement.

The applicant provided an MEB Narrative Summary, dated 19 Aug 20, indicating he sustained a spinal cord injury and suffered incomplete quadriplegia in Jul 20.

On 15 Aug 20, per Special Order ACD-001826, dated 2 May 20, the applicant was relieved from active duty and on 16 Aug 20, he was permanently disability retired with 40 percent compensable disability rating.

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

AIR FORCE EVALUATION

AFPC/DPFDD recommends granting the application.  Based on the documentation provided by the applicant and analysis of the facts, there is indication an error or injustice occurred when the Medical Group failed to submit a recall request as this catastrophic injury could have resulted in a major change to the applicant’s final disability evaluation system rating.  

In accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 2.8. Recall of a Case from the PEB.  The referring military treatment facility (MTF) commander may request to recall a case if a major change in the member’s condition occurred or a new condition is discovered.  AFPC/DPFD determines whether recall is appropriate.  If the service member‘s hospitalization or treatment progress appears to have not medically stabilized and the course of further recovery is not relatively predictable, or the condition is not considered to be potentially unfitting, case processing continues and the condition may be addressed by the DVA upon the service member’s discharge from military service.  2.8.1. The MTF commander or designee prepares and sends a memorandum explaining the conditions(s) and attaches pertinent clinical information for AFPC/DPFD consideration.  2.8.2. If the recall request is approved, a new MEB may be initiated according to instructions from AFPC/DPFD or per AFI 41-210, Tricare Operations and Patient Administration.  If the service member’s condition significantly improved after the recall and the MTF recommends the service member be returned to duty, an initial review-in-lieu-of MEB may be sent to the AFPC/DP2NP or AFRC/SGO for Air Force Reserve members or NGB/SGPS for Air National Guard members, for disposition instead of another MEB sent to AFPC/DPFDD.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the Air Force evaluation to the applicant on 10 Jun 21 for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

The AFBCMR Medical Advisor concurs with the analysis of AFPC/DPFDD and recommends granting the application.  However, a viable mechanism or “road map” for carrying out any corrective measures has not been provided.  The Medical Advisor offers a proposed mechanism for an appropriate remedy in the discussion portion of this review.

Since one year has passed since the applicant’s cervical spine fracture and emergent treatment, the Medical Advisor opines, rather than disrupting the applicant’s current life situation by bringing him back onto active duty and directing a new MEB be conducted by his former MTF, the Medical Advisor recommends the Board change the record to reflect that the applicant was not permanently retired on 15 Aug 20, but that he was extended on active duty status for continuation of post-operative occupational and physical rehabilitation following his cervical spine fracture for a period of six months; or until such a time that maximum expected medical benefit had been achieved.  This was followed by reconvening of a MEB, with inclusion of any potentially unfitting residual functional impairments, e.g., upper and lower extremity weakness or bladder or bowel dysfunction, for consideration by the IPEB.  Utilizing contemporaneous existing medical evidence, e.g., Compensation & Pension Examinations and DVA Rating Decisions,  the IPEB then combined [not added] the disability ratings for the newly unfitting condition(s), with the established 40 percent disability rating for the unfitting lumbar spine condition; thereby establishing permanent retirement with a new [higher] disability rating than previously assigned.

If, on the other hand, the applicant’s medical condition has not been stabilized, as evidenced by the aforementioned contemporaneous DVA medical documentation, or the DVA has assigned and maintained a pre-stabilization rating of 100 percent for the applicant’s quadriplegia, the Medical Advisor recommends the applicant’s placement on the TDRL with a 100 percent disability rating, at the end of his six month point of his extended active service, with further follow-up of his TDRL status, under established procedures by HQ AFPC/Disability Division.  The 40 percent rating for the lumbar spine condition would be included as unfitting on the adjusted AF Form 356, Recommended Findings and Disposition of USAF Physical Evaluation Board.  A TDRL re-evaluation should then be conducted within 16 months, but not greater than 18 months, by a neurologist or neurosurgeon.  Any other identified residual functional impairments involving other body functions, an evaluation by the appropriate specialist may be warranted, e.g., an urologist for any residual bladder dysfunction.  Any changes to the applicant’s record, however, should not result in a detriment to the applicant.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the Air Force evaluation to the applicant on 24 Sep 21 for comment (Exhibit F), 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 the victim of an error or injustice.  The Board concurs with the rationale and recommendations of AFPC/DPFDD and the AFBCMR Medical Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions.  Specifically, a request for recall of the applicant’s MEB was not initiated at the time of his catastrophic injury and consequently not considered in his final disability evaluation system rating.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show:

	On 15 August 2020, he was honorably discharged from active duty and was placed on the Temporary Disability Retired List (TDRL) with a 100 percent disability rating effective 16 August 2020, due to C5-C6 fracture, under VASRD code 5235, status-post C4-C7 fusion and C6 hip graft, with Incomplete Quadriplegia, and resultant Loss of Fine Motor Function, Right Hand, Loss of Fine Motor Function, Left Hand, Bowel Incontinence, Urinary Incontinence, Right Lower Extremity Foot Drop, Limited Left Lower Extremity Function, Painful Scar, Right Hip Donor Graft Site, and Lower Back Pain.  This information shall then be utilized by the Physical Evaluation Board (PEB) in determining the appropriate final disposition.

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-2020-02872 in Executive Session on 30 Jun 21 and 14 Jan 22:

Panel Chair
Panel Member
Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 19 Aug 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, w/atchs, dated 3 Jun 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 10 Jun 21.
Exhibit E:	Advisory opinion, AFBCMR Medical Advisor, dated 5 Jul 21.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 24 Sep 21.

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.