RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01001

XXXXXXXXXX	COUNSEL: NONE
	
		HEARING REQUESTED: NO	

1.  His Disability Evaluation System (DES) unfitting condition of Stage II Pulmonary Carcinoid Tumor; Department of Veteran Affairs (DVA) rated as Stage II Pulmonary Carcinoid in Left Lower Lobe Lung, Status Tumor Removal be changed to Asthma with Stage II Pulmonary Carcinoid in Left Lower Lobe Lung, Status Tumor Removal due to a re-diagnosis by the DVA.

2.  The percentage for the condition be changed from 0 percent to 30 percent to match the updated DVA rating.

3.  His disability discharge with severance pay (DWSP) be changed to a permanent disability retirement based on the 30 percent rating.

APPLICANT’S CONTENTIONS

In 2011, he developed a persistent cough.  In 2013, he was prescribed Claritin-D for a simple diagnosis of allergies. The allergy medication provided little relief or improvement.  He continued to go to the doctor over the next few years and was always diagnosed with allergies or a common cold.  His coughing worsened and in 2017, biopsy results showed a malignant neuroendocrine tumor in his left lung that required surgery.  Because of the surgery, he became asthmatic.  During the Medical Evaluation Board (MEB) process, his medical provider determined that he suffered from persistent asthma requiring daily use of an oral bronchodilator and anti-inflammatory as well as Fluticasone Propionate and Albuterol Sulfate inhalational therapy.  His primary care provider also made it clear that he would be on inhaled steroids daily for the near future.  He has found similar cases submitted to the Physical Disability Board of Review (PDBR) that resulted in permanent disability retirement.  He believes his separation should have been characterized as a medical retirement.    

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force technical sergeant (E-6).

DD Form 4, Enlistment Document, shows the applicant enlisted in the Air Force Reserve on 21 Dec 07 for eight years under the Delayed Entry/Enlistment Program (DEP).  He was discharged from the DEP and enlisted in the Regular Air Force 3 Jun 08 for a period of six years.

AF IMT 618, Medical Board Report, shows that on 27 Mar 18 the applicant was referred to the Informal Physical Evaluation Board (IPEB) with a diagnosis of Stage II Pulmonary Carcinoid Tumor.

AF Form 356, Informal PEB Findings, dated 24 Apr 18, shows the IPEB found the applicant’s medical condition, Stage II Pulmonary Carcinoid Tumor, prevents him from reasonably performing the duties of his office, grade, rank, or rating.  The IPEB recommended DWSP with a disability rating of 0 percent IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The IPEB opined the medical condition is subject to sudden and unpredictable recurrences; requires frequent follow-up with a medical specialist; and limits the service member from performing the duties of his Air Force Specialty Code (AFSC), deploying, and meeting physical fitness requirements. Thus, the IPEB found the condition is incompatible with the rigors of military service and unfitting.

AF Form 1180, Action on PEB Board Findings and Recommended Disposition, shows that on 7 May 18 the applicant disagreed with the IPEB findings and requested a formal hearing of his case.

AF Form 356 shows on 24 May 18 the Formal PEB (FPEB) agreed with the IPEB and determined that the applicant’s medical condition, Stage II Pulmonary Carcinoid Tumor, is subject to sudden and unpredictable recurrences; requires frequent follow-up with a medical specialist; and limits him from performing the duties of his AFSC, deploying and meeting physical fitness requirements. The FPEB found the condition is incompatible with the rigors of military service and unfitting. Accordingly, the FPEB recommended DWSP with a disability rating of 0 percent IAW the VASRD guidelines.  The FPEB considered all other medical conditions rated by the DVA related to his military service as required under the Integrated Disability Evaluation System (IDES). The FPEB finds these conditions are currently not unfitting for duty separately or collectively.

DVA Memorandum dated 5 Jul 18 shows a DVA Decision Review Officer denied the applicant’s request for reconsideration of the IDES Rating Decision.  The officer contends the documentation provided by the applicant shows a new diagnosis of asthma on 6 Jun 18, and as such was not on the AF Form 356, dated 24 May 18. The PEB has not provided a link between the Stage II Pulmonary Carcinoid Tumor nor does the 6 Jun 18 medical note provide a link/medical correlation between the diagnoses. 

DD Form 214, Certificate of Release or Discharge from Active Duty shows that on 28 Oct 18, the applicant was discharged from the Air Force under the provisions of AFI 36-3212, Disability, Severance Pay, Non-Combat (Enhanced) with the corresponding separation code of JEB and reentry code 2Q.

DVA Decision Memo dated 18 Dec 18, provided by the applicant, shows service connection for asthma with Stage II Pulmonary Carcinoid in left lower lobe lung, status tumor removal is granted with an evaluation of 30 percent effective 29 Oct 18.

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

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application.  The Air Force and the 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 DVA 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 DVA “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.  On 24 May 18 the Formal PEB found the applicant unfit for Stage II Pulmonary Carcinoid Tumor; DVA Rated as Stage II Pulmonary Carcinoid in Left Lower Lobe Lung, Status Tumor Removal with a 0 percent compensable disability rating in accordance with the VASRD.  It is noted that the applicant’s original FPEB contention did not request that asthma be associated with his unfitting lung condition.  However, his 8 Jun 18 DVA rating reconsideration request asked for the DVA to assign a 30 percent disability rating for asthma.  All clinical notes provided as part of this reconsideration request show that the member had been diagnosed with mild persistent asthma, which would not meet the definition of an unfitting condition per DoD standards.  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 DVA ultimately provided service connection for asthma there is no evidence the condition was severe enough to be considered unfitting for military service for DES purposes. 

The complete advisory opinion is at Exhibit C.

ADDITIONAL AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends granting the application.  The applicant was diagnosed with another disqualifying medical condition, asthma, on 8 May 18, after his Mar 18 MEB and IPEB proceedings, but prior to his May 18 FPEB hearing and his date of discharge, on 8 Oct 18, due to Stage II Pulmonary Carcinoid.  Although there are ambivalent references to whether the asthma was controlled versus not well controlled, the evidence provided indicates that the applicant was prescribed both an inhaled bronchodilator, for daily use, and an inhaled corticosteroid, Flovent; which one professional indicated will require for lifelong usage. The applicant was unsuccessful in inclusion of his asthma diagnosis as an “addendum” to his FPEB proceeding.  While no gross error is observed in the case, the Medical Advisor opines the applicant’s and medical treatment facility’s missed opportunity to request a possible recall of the MEB/PEB proceeding for inclusion of asthma, given it was diagnosed in advance of the FPEB hearing, creates an injustice to the applicant. The DVA recognized this shared, or co-morbid, impediment to pulmonary function in its decision, on 6 Nov 18, to assign the applicant a rating of 30 percent due to the applicant’s asthma with Stage II Pulmonary Carcinoid.  The Medical Advisor recommends including asthma as an unfitting medical condition; rated at 30 percent, for its combined or contributory effect upon the applicant’s fitness to serve; due to the shared residual functional impairment, dyspnea with exertion, because of his left lower lobe lobectomy due to Stage II Pulmonary Carcinoid, status post tumor removal.     

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent a copy of the advisory opinions to the applicant on 27 Jul 21 for comment (Exhibit E), and the applicant replied on 13 Aug 21.  In his response, the applicant agrees with the recommendation of the AFBCMR Medical advisor to grant his application.  He contends he was medically separated on 28 Oct 18 and the DVA final rating for asthma with Stage II Pulmonary Carcinoid was granted with an evaluation of 30 percent disability effective 29 Oct 18 (1 day) post-separation.  He has continued care for cancer and asthma with the DVA and uses a daily inhaler, emergency inhaler, as well as singular to minimize/prevent asthma attacks.  His condition and rating have not changed.  

The applicant’s complete response is at Exhibit F.

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.  While the Board notes the recommendation of AFPC/DPFDD against correcting the applicant’s record, the Board agrees with the recommendation of the AFBCMR Medical Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions.  While no gross error is observed in the case, the applicant’s medical treatment facility missed an opportunity to request a possible recall of the Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) proceeding for inclusion of asthma, given it was diagnosed in advance of the Formal Physical Evaluation Board (FPEB) hearing, and therefore it created an injustice to the applicant.  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 APPLICANT be corrected to show:

a.	On 28 October 2018, he was found unfit to perform the duties of his office, rank, grade, 
or rating by reason of physical disability, incurred while he was entitled to receive basic pay; the diagnosis in his case was Asthma associated with Stage II Pulmonary Carcinoid in left lower lobe lung, status-post tumor removal, that his condition was under Veterans Affairs Schedule for Rating Disabilities (VASRD) code 6819-6602, rated at 30 percent that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received as a direct result of armed conflict or caused by an instrumentality of war.  

b.	On 28 October 2018, he was not discharged with severance pay, but was permanently 
retired with a disability rating of 30 percent, effective 29 October 2018.  

	c.  His election of the Survivor Benefit Plan (SBP) option will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.  

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-2021-01001 in Executive Session on 15 Sep 21 and 21 Sep 21:

, Panel Chair
, Panel Member
, Panel Member

All members to correct the record.  The panel considered the following:
Exhibit A:	Application, DD Form 149, w/atchs, dated 30 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, w/atchs, dated 1 Jul 21.
Exhibit D:	Advisory opinion, AFRBA Medical Advisor, dated 27 Jul 21.
Exhibit E:  Notification of advisories, SAF/MRBC to applicant, dated 27 Jul 21.
Exhibit F:	Applicant’s Response, dated 13 Aug 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.