RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00150 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His discharge be changed from a disability discharge with severance pay to a disability retirement. _________________________________________________________________ APPLICANT CONTENDS THAT: Based on his disability rating from the Department of Veteran Affairs (DVA), he should have been medically retired in 1997. His medical issue is permanent and was incurred in the line of duty while serving his country. He planned to spend at least 20 years in the military and was under the impression he should have been retired because he was a career airman with a permanent injury that prohibited him from accomplishing his assigned duties. He decided to take the separation and not appeal it due to personal issues. He experienced verbal harassment from other noncommissioned officers (NCOs) and not being able to run again or walk long distances, he was isolated from his fellow airmen. He was forced to ride in the back of a truck during monthly squadron runs and hand out water even though he was an NCO. In support of his request, the applicant provides personal statements, a copy of his Informal Physical Evaluation Board (IPEB) findings, a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, his DVA rating with additional DVA correspondence, a statement from his surgeon, and a message from AFPC/DPPD, dated 2 Jul 97. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Regular Air Force on 9 Jun 86. On 28 Jan 97, he was placed on a physical profile restricting him to desk duties. On 15 May 97, he underwent a Medical Evaluation Board. On 12 Jun 97, the IPEB rated him at a 10 percent disability rating and recommended discharge with severance pay. The applicant concurred with the findings on 1 Jul 97 and he was discharged on 15 Sep 97. He was reevaluated by the DVA and given a combined 40 percent disability rating on 18 Mar 98. Other relevant facts are outlined in the BCMR Medical Consultant’s evaluation at Exhibit F. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPD recommends denial. DPPD states the preponderance of evidence reflects no error or injustice occurred during the disability process. DPPD further states the Department of Defense and the DVA operate under separate laws. Under Title 10, U.S.C., Physical Evaluation Boards (PEB) must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating. The fact that a person may have a medical condition does not mean that the condition is unfitting for continued for military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. Further, it must be noted that Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at that time. It is the charge of the DVA to pick up where the Air Force must, by law, leave off. Under Title 38, the DVA may rate any service- connected condition based upon future employability or reevaluate based on changes in the severity of a condition. This often results in different ratings by the two agencies. The complete AFPC/DPPD evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He was awarded a 10 percent disability rating from the IPEB for knee pain only. It was an injustice for his Osteochrondritis Dissecans condition, post operative, to not be considered by the IPEB. He understands and concurs that his back injury was not part of the IPEB and is not warranted for consideration. His 20 percent DVA rating combined with his 10 percent Air Force rating would provide him with a 30 percent rating needed for a medical retirement. He has lost the ability to run, jump, climb, walk for an extended period, and perform everyday as a normal person because of his injury and subsequent surgeries. He walks with an extreme limp due to failed operations and his future prognosis is an artificial joint. The only reason he did not have it when he was in the military was due to his age. He has been told he has to suffer the pain and wait until age 50 because of the service life of artificial joints. His quality of life has suffered and he did not fully understand the disservice and injustice brought on him by the decision of the IPEB. The applicant's complete response, with attachments, is at Exhibit E. _________________________________________________________________ ADDITIONAL EVALUATION - BCMR MEDICAL CONSULTANT EVALUATION: The BCMR Medical Consultant recommends denial. The BCMR Medical Consultant states the preponderance of evidence reflects no error or injustice occurred during the USAF disability review and rating process. The BCMR Medical Consultant noted the DVA chose to award separate disability ratings for Degenerative Arthritis and Osteochrondritis Dissecans. The Consultant opines, from a functional standpoint, use of a singular unifying code to depict the applicant’s functional impairment is more appropriate; to do otherwise risks pyramiding disability rating awards. The Medical Consultant believes that this would have been made clear had the entry on the applicant’s AF Form 356, Findings and Recommendations of USAF Physical Evaluation Board, been written as it appeared on the applicant’s AF Form 618, Medical Board Report, which reads: “Chronic left knee pain due to Osteochrondritis Dissecans.” The complete BCMR Medical Consultant’s evaluation is at Exhibit F. _________________________________________________________________ APPLICANT’S REVIEW OF BCMR MEDICAL CONSULTANT’S EVALUATION: A copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit G). As of this date, this office has not received a response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility and BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. 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 issues 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- 2009-00150 in Executive Session on 30 September 2009, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered for Docket Number BC-2009-00150: Exhibit A. DD Form 149, dated 9 Jan 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPPD, dated 23 Feb 09. Exhibit D. Letter, SAF/MRBR, dated 3 Apr 09. Exhibit E. Applicant’s Rebuttal, 14 Apr 09. Exhibit F. Memorandum, BCMR Medical Consultant, Dated 19 Jun 09. Exhibit G. Letter, SAF/MRBR, dated 31 Jul 09. Panel Chair