RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00064 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. He receive a permanent disability retirement with a 40 percent disability rating. 2. He receive back retirement pay from the date he would have been retired had the Formal Physical Evaluation Board (FPEB) decision of 28 Mar 08 been sustained to the present. _________________________________________________________________ APPLICANT CONTENDS THAT: The applicant’s counsel submits his appeal in a four-page brief with 10 attachments. Counsel argues the basis for the Medical Evaluation Board (MEB) was a wrist injury which occurred in Jun 01, and was in the line of duty (LOD). The MEB Narrative Summary dated 16 Sep 07, and reaffirmed on 13 Nov 07, was materially wrong. The applicant did not have “arthroscopic repair and debridement of the injury in Jan 02,” as stated in the Narrative Summary. The treating physician, in Jan 02, confirmed on 11 Feb 02, that what actually occurred was an arthroscopic examination to confirm damage. Ligament reconstructive was offered, but the medical advice was not to do surgical intervention. The unrepaired injury was treated conservatively, but was not repaired or completely healed. In 5 Mar 05, the injury reappeared while applicant was on his civilian job in Mar 05. He underwent a full right wrist fusion in Apr 07. On 8 Feb 08, the Informal Physical Evaluation Board (IPEB) concluded the injury occurred while the applicant was a civilian, and therefore declared the injury to be existed prior to service (EPTS). On 28 Mar 08, the FPEB reversed the decision of the IPEB and awarded the applicant a 40 percent permanent disability retirement for the right wrist fusion. The FPEB stated the fusion was the result of worsening symptoms. This reflected the reality there was no repair of the underlying injury. On 7 May 08, the Air Force Reserve Command (AFRC) overruled the FPEB decision, stating “We have reviewed the MEB on subject member and have determined that he (applicant) is not entitled to disability processing. The diagnosis listed on AF Form 618, Medical Board Report, did not occur in a military status and is unrelated to a previous injury suffered in the line of duty in 2001, for which member fully recovered and was returned to duty following occupational therapy.” Reliance by the AFRC on the MEB Narrative Summary is wholly misplaced, because the Narrative Summary was in error. The FPEB recognized the error in the Narrative Summary and concluded the underlying injury was never repaired or completely healed. The fact the wrist never healed, nor was it repaired, shows the FPEB got it right, and so did the Department of Veterans Affairs (DVA). The applicant is rated at 40 percent (service connected) disability for the fused wrist by the DVA. The counsel’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant underwent MEB processing on 29 Nov 07. According to the MEB Narrative Summary, on 16 Sep 07, he suffered a LOD injury to his right wrist in Jun 01, while deployed to Germany, and underwent an arthroscopic repair and debridement of the injury in Jan 02. He was released to full duty after occupational therapy in Jul 02. He reinjured the wrist at his civilian job in Mar 05. He underwent a right lunotriquetal fusion on 6 Feb 06. He underwent a full right wrist fusion on 25 Apr 07. Post-operation follow-up on 2 Aug 07, reported the right wrist fusion was doing well objectively, and that he was ready to progress his work status. The MEB concluded the overall long term prognosis for near normal function remained good; however, suggested to expect further complaints of injury and disability should the member be returned to duty status. The MEB concluded the member was not qualified for worldwide duty. If retained in the Reserve, restrict to home station, and administrative duties only, pending release to full duty from the surgeon. On 8 Feb 08, the applicant’s case was considered by the IPEB. The IPEB concluded his medical condition (right wrist fusion status post lunotriquetal fusion) to be EPTS and not permanently aggravated by military service. The Board further noted that after the applicant’s injury in Germany, he was returned to full duty after receiving occupational therapy, and that his recent injury happened during civilian employment, and therefore was EPTS. The IPEB found the applicant unfit and recommended discharge under provisions other than Chapter 61, Title 10, United States Code (USC). On 28 Mar 08, the applicant met an FPEB. The FPEB reversed the decision of the IPEB and found his condition (right wrist fusion status post lunotriquetal fusion) an unfitting condition, and that the disability was incurred in the line of duty, and awarded the applicant a 40 percent disability rating, with a recommendation for permanent retirement. The FPEB stated the fusion was the result of worsening symptoms. On 7 May 08, AFRC/SGPA overruled the FPEB decision stating the diagnosis listed on AF Form 618, Medical Board Report did not occur in a military status, and is unrelated to a previous injury suffered in the line of duty in 2001, for which member fully recovered and was returned to duty following occupational therapy. The second injury to the member’s wrist occurred in civilian status in 2005, and is therefore not service connected. On 1 Sep 08, the applicant was transferred to the Retired Reserve Section awaiting pay at age 60. The remaining relevant facts pertaining to this application are included in the advisories prepared by the appropriate offices of the Air Force. _________________________________________________________________ AIR FORCE EVALUATIONS: AFRC/SGP deferred making a recommendation on the applicant’s request to the appropriate authority. AFRC states that they do not have PEB authority, and did not overrule the findings of the FPEB. The Secretary of the Air Force Personnel Council (SAFPC) directed the fitness only consideration and returned the package without action to HQ AFPC/SGP. The complete SGP evaluation is at Exhibit B. AFRC/A1K concurs with SGP and defers to the AFBCMR on the member’s request for relief of back retirement pay associated with his claim. The complete A1K evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: Counsel indicates there was nothing new offered in the advisory opinions and that he and his client reassert their prior position. The counsel’s submission is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. The applicant sustained an LOD wrist injury while deployed to Germany in 2001. Arthroscopic evaluation demonstrated the presence of instability of the lunotriquestrial ligament. Surgical treatment was deferred and occupational therapy pursued instead. The applicant reportedly re-injured himself in Mar 05 while in performance of his civilian occupation (US Postal Service). There are no details available as to the nature or extent of the applicant’s re-injury. Whatever its significance, it resulted in a decision to proceed with surgical fusion of the applicant’s right wrist; a recommendation which was previously avoided by the applicant and his surgeon, but one which resulted in an MEB and referral to a PEB. While it may be obvious that something happened on the applicant’s civilian job that either worsened or exacerbated the applicant’s wrist ailment, the Medical Consultant cannot ignore the fact there was evidence of underlying ligamentous instability prior to the so-called re-injury. However, it was the acute worsening of his condition, and not the previous level of ligament instability that was the cause for career termination. For the military Reservist (serving in a period of 30 days or less), a disqualifying medical condition must be found service incurred or aggravated in order to qualify for disability processing. Consequently, the applicant was relieved from his assignment and was assigned to the Retired Reserve Section, with placement on the Reserve Retired List, and entitlement to an Armed Forces identification card. Regarding the disability ratings awarded to the applicant, the DVA acted within its authority, under Title 38, USC, to rate any aspect of the applicant’s medical condition that was determined to be service connected, e.g., 2001 injury; but also retained the authority to assign a higher disability rating, based upon any changes (worsening or improvement) in the condition that may occur over time. Thus, while the BCMR Medical Consultant empathizes with the applicant’s situation, the applicant has not met his burden of proof that an error or injustice has occurred in his case. The complete BCMR Medical Consultant’s evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: Before his release from active duty in Jun 08, a hand surgeon specialist had told him that his right wrist was about 80 percent and it was possible the lunotriquestral instabililty injury would tear fully since he only had three months of physical therapy. During the three years in the Reserves, he was promoted to supervisor, and assured he would not participate in any lifting. While working at his civilian employment and lifting from his cart to his vehicle, the injury popped fully. The MEB report indicates he had arthroscopic repair in Jan 02, this statement is wrong, he only had a procedure to find out what type of injury occurred, no surgery was done. The BCMR Medical Consultant concluded his condition existed prior to military service (nonservice-incurred or aggravated) and recommended discharge without compensation under provisions other than Chapter 61, Title 10 United States Code. The FPEB found his medical condition was service connected and recommended permanent retirement with a 40 percent disability rating. Under the direction of the Special Assistant to the Director, Secretary of the Air Force Personnel Council, he was removed from the MDES and processed as a fitness determination only case. Had the Air Force taken care of this back in 2002, he would (sic) have been in this mess to begin with. Now, after two operations on his right wrist, he is not getting any better. His physician had told him that his injury could tear again, and it did, three years later. His condition did not exist prior to military service. His injury occurred on active duty in 2001, and again in 2005, how can this injury be prior to military service? There was no injury to his wrist in Mar 05. The second injury occurred in Jul 05 at his civilian employment. Once again, his physician told him the ligament would tear at anytime, and it did. The Consultant states it is obvious something happened to his wrist by the worsened or exacerbated wrist aliment. Yes, his wrist was injured due to lifting a heavy tray of mail, and it is obvious the ligament was not fully healed, which caused the ligament to tear fully. Since he only had three months of physical therapy to strengthen the muscle around the ligament. He and his physician knew the injury would tear in the future. This is why military Reservists get screwed in the end when they get off orders. This is a prior military injury and should be treated as a permanent military injury. The Consultant indicates this injury was the acute worsening of his condition, and not the previous level of ligament instability. He knew from delivering mail everyday that in the summer the volume of mail would get heavier and this is what caused the ligament to tear. He had no choice but to follow his physician’s orders. He feels the military disability board is not taking care of veterans who get injured in the line of duty, such as himself. The applicant’s complete response is at Exhibit H. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After careful review of this application, we agree with the recommendation of the BCMR Medical Consultant and adopt the rationale expressed as the basis for our decision the applicant has not been the victim of either an error or injustice. Evidence has not been provided which would lead us to believe the applicant was treated unfairly, or that his release from his Reserve assignment due to unfitness and transfer to the Retired Reserve Section was inappropriate. Although the applicant is correct in that his MEB Narrative Summary incorrectly stated that he underwent arthroscopic repair, rather than arthroscopic examination, this had no bearing on the outcome of the disposition of his case, as his injury during a period of civilian employment was the basis for terminating his career. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. 4. 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 issue involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered Docket Number BC-2009-00064 in Executive Session on 27 Aug 09, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to Docket Number BC-2009-00064 was considered: Exhibit A. DD Form 149, dated 31 Dec 08, w/atchs. Exhibit B. Letter, AFRC/SGP, dated 10 Mar 09. Exhibit C. Letter, AFRC/A1K, dated 16 Mar 09. Exhibit D. Letter, SAF/MRBR, dated 20 Mar 09. Exhibit E. Letter, Counsel, dated 10 Apr 09. Exhibit F. Letter, BCMR Medical Consultant, dated 22 Jun 09. Exhibit G. Letter, SAF/MRBR, dated 10 Jul 09. Exhibit H. Letter, Applicant, dated 28 Aug 09. Panel Chair