ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-00458 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His record be corrected to reflect he was medically retired for his condition of Obstructive Sleep Apnea (OSA) with a 50 percent disability rating. 2. He be entitled to a hearing by the National Guard and the Disability Evaluation System (DES) for his condition of OSA. 3. He be entitled to medical and dental care until a determination has been made on his case. 4. He be promoted to the grade of captain (O-3). ________________________________________________________________ APPLICANT CONTENDS THAT: He was first diagnosed with OSA after approximately 17 months of continuous active duty while training to be a C-130 Navigator for the Michigan Air National Guard (ANG). In spite of competent medical evidence to the contrary, including a Medical Evaluation Board (MEB), a subsequent line of duty (LOD) determination concluded his condition of OSA had existed prior to service (EPTS), and as such, was considered not in the line of duty (NILOD). Ultimately his condition was found by the ANG Surgeon General’s (ANG/SG) office to be disqualifying from aircrew duties and retention. Despite the clear medical evidence of disability onset while on active duty, he was separated from the ANG without the DES processing he had sought to obtain. After his discharge, he was not afforded entitlement to Incapacitation (Incap) Pay and was required to bear the expenses of on-going medical care for his disabling condition. In support of his appeal, the applicant’s counsel provided an Applicant’s Brief with 28 attachments. The applicant’s complete submission, with attachments, is at Exhibit A ________________________________________________________________ ? STATEMENT OF FACTS: On 15 April 2009, the Board considered and partially granted the applicant’s requests to reverse his LOD finding that his condition of OSA was EPTS, to expunge previous findings as to any LOD determinations, to grant a medical retirement for his condition of OSA, to grant Incapacitation (Incap) Pay for the period following his release from active duty, that he be reimbursed for any out-of-pocket expenses related to his condition of OSA, he be returned to active duty to undergo DES evaluation, and he be considered for promotion to the grade of captain (O-3) with all associated pay and allowances that would normally be due him. The Board approved the applicant’s LOD finding to reflect his condition of OSA was in the line of duty (ILOD); and, that he be continued on active duty with the Michigan ANG from the date he was released from active duty until his discharge on 22 November 2006. The Board denied the applicant’s requests for further processing with the DES, medical retirement for his condition of OSA, award of Incap Pay, reimbursement of out-of-pocket health care expenses related to his condition of OSA; and, a direct promotion to the grade of captain (O-3). For an accounting of the Board’s earlier decision, see the Directive and Record of Proceedings at Exhibit B. On 11 January 2012, the applicant filed suit in the United States Court of Federal Claims. On 26 August 2013, the Court remanded the case to the Board for further inquiry, reconsideration and findings. The Court directs the Board to consider whether the DES procedures for Air Reserve Component (ARC) members were properly followed in the plaintiff’s case. A complete copy of the Court’s Opinion and Order is attached at Exhibit C. ________________________________________________________________ BCMR MEDICAL CONSULTANT EVALUATION: BCMR Medical Consultant recommends partial approval. The BCMR Medical Consultant states that even though MEB officials recommended the applicant be returned to duty, the ANG/SG officials acted within their authority to disqualify and separate the applicant, without a Physical Evaluation Board (PEB) review, for what was determined to be a non-duty related condition without eligibility for compensation from the Military Department. However, since the applicant’s NILOD finding has since been reversed by the Board to ILOD, there remains a false assumption he would have been found unfit by a PEB and gained eligibility for disability compensation, under Air Force Instruction (AFI) 36-3212 and applicable Department of Defense (DoD) policies. Based upon clinical experience and knowledge of the applicant’s medical condition, noting his favorable response to treatment, a PEB could have found him fit (in 2006 and, more so, today) and recommended returning him to duty with an Assignment Limitation Code (ALC), if appropriate. However, the applicant’s medical condition was specifically disqualifying for Class II flying physical requirements in his chosen aviation career field, making an ALC and retention an unlikely viable option at the time. Since the applicant’s medical condition has been found ILOD by a previous Board action, then if follows that the applicant has gained eligibility for review of his case via PEB, in accordance with AFI 36-3212, not just for a fitness determination. Acknowledging that disqualification does not automatically equal unfitness, since the applicant’s career was cut short due to his now service-incurred medical condition, to correct an injustice should require assignment of an appropriate disability rating. Therefore, it is recommended the applicant be found unfit for further military service and to process his release from service under AFI 36-3212 and DoD Instruction 1332.38, Physical Disability Evaluation, and apply the appropriate disability rating. In determining the proper disability rating for OSA, it should be noted that prior to the National Defense Authorization Act (NDAA) of 2008, OSA, if found unfitting, would have been rated under criteria outlined in the now defunct DoD Instruction 1332.39, Enclosure 2, paragraph E2.A1.2.2.1, in effect at the time of the applicant’s service. The applicant would have likely to have been assigned a 0 percent rating, or at best a 30 percent rating under these criteria, noting he continued to report excessive somnolence, e.g., unable to drive for an hour without excess sleepiness. Since the NDAA 2008 also included establishment of a Board to review the disability rating of individuals discharged with less than 30 percent disability rating and not eligible for retirement, who were separated from 11 September 2001 through 31 December 2009, the applicant would have been eligible for this review, if he was issued a disability rating of less than 30 percent. Following the NDAA 2008, the Military Department would have been compelled to strictly adhere to the Veterans Affairs Schedule for Rating Disabilities (VASARD), which, for sleep apnea, reads: 6847. Sleep Apnea Syndromes (Obstructive, Central, Mixed): Chronic respiratory failure with carbon dioxide retention of cor pulmonale, or; requires tracheostomy – 100 percent Requires use of breathing assistance device as continuous airway pressure (CPAP) machine – 50 percent Persistent day-time hypersomnolence - 30 percent Asymptomatic but with documented sleep disorder breathing – 0 percent The BCMR Medical Consultant indicates that after considering all the facts and evidence in the applicant’s case, while exercising caution on setting precedent, the fact the applicant’s medical condition was the cause for cutting short his military career, coupled with the fact that it was found to be ILOD, should entitle him to the disability compensation attendant with his diagnosis. Therefore, the BCMR Medical Consultant recommends the Board consider granting relief by retiring the applicant permanently with a 50 percent disability rating due to OSA, under VASRD Code 6847, effective 22 November 2006. With respect to the applicant’s request for a direct promotion to the grade of captain, the BCMR Medical Consultant notes that the applicant would have been retired at the rank held at the time of entering the DES and his subsequent release from military service. Therefore, the BCMR Medical Consultant recommends denial for this portion of his requests. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 16 December 2013, a copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit E). As of this date, this office has received no response. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case and believe that partial relief is warranted. In this case, even though the medical MEB officials recommended the applicant be returned to duty, ANG/SG officials acted within their authority to disqualify and separate the applicant, without a PEB review, for what was determined at the time to be a nonduty-related condition without eligibility for compensation from the military department. However, since the previous Board found the applicant’s medical condition of OSA to be ILOD, then he would have gained eligibility for review of his case by a PEB to determine his fitness to remain on active duty. Although the PEB could have found the applicant fit and recommended returning him to duty with an ALC, his condition was specifically disqualifying for Class II flying physical requirements, making an ALC and retention an unlikely viable option at the time. Therefore, we find the applicant career was cut short due to his service-incurred condition; and, as a result, should require assignment of an appropriate disability rating. After considering the totality of the evidence before us, we agree with the opinion and recommendation of the BCMR Medical Consultant that the applicant’s condition of OSA, at the time of his separation, warranted a 50 percent disability rating. Therefore, in view of the foregoing, we recommend his records be corrected as indicated below. 4. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice in regard to the applicant’s request for promotion to the grade of captain. We note that had he been retired as a result of a PEB, he would have been retired at the last rank held at the time he entered into the DES and his subsequent release from military duty. Therefore, we are unable to favorable considered this portion of his request. 5. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. On 18 May 2006, the diagnosis in his case was Obstructive Sleep Apnea, requiring use of a breathing assistance device such as continuous airway pressure machine, under the Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 6847, rated at 50 percent. b. His name was placed on the Permanent Disability Retired List, effective 22 November 2006. c. His election of Survivor Benefit Plan option(s) will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. ________________________________________________________________ ? The following members of the Board considered AFBCMR Docket Number BC-2008-00458 in Executive Session on 28 January 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered in conjunction with AFBCMR Docket Number Bc-2008-00458: Exhibit B. Record of Proceedings, dated 26 May 09, with Exhibit A plus attachments. Exhibit C. Court Remand documents. Exhibit D. Letter, BCMR Medical Consultant, dated 16 Dec 13. Exhibit E. Letter, SAF/MRBC, dated 16 Dec 13. Panel Chair