RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01148 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: She be given a medical retirement in lieu of her disability discharge with severance pay. ________________________________________________________________ APPLICANT CONTENDS THAT: Her medical history indicates she suffered from Nissen fundoplication w/hiatal hernia repair, hearing loss in left ear, benign paroxysmal vertigo, ovarian cyst removal, left arm loss of function, chest pain, and lumbar pain with chronic tingling which reportedly radiates to her left leg. Presently, she is unable to sustain life as she has done prior to her. She is unable to eat more than three tablespoons of food without getting sick. She has missed a lot of work due to medical appointments in an attempt to figure out the cause of her sickness. She was admitted twice to the Department of Veterans Affairs (DVA) hospital for chest pains since her discharge and once while on active duty. She was unaware she could present her records before a medical evaluation board (MEB). She asked her medical provider if she needed to appear before a MEB; however, she was told that DVA would handle her medical case. In support of her request, the applicant provides extract copies from her medical records and record of proceedings from the Physical Disability Board of Review (PDBR). The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 8 January 1997 and was progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 1 September 2003. On 29 August 2007, an AF Form 422, Physical Profile Serial Report, was issued and placed the applicant on a medical profile for seven months due to neck and arm pain. However, a hand- written entry by her evaluating physician showed the applicant had been on a “4T” profile (4 representing severely compromised function or restrictions imposed. Sustained duty restrictions of level "4" in any category for 12 or more months should trigger an MEB profile) since 9 June 2006. On 19 October 2007, the applicant’s commander prepared a letter to the MEB explaining the mission impact her medical condition had on her ability to perform duty; as well as the impact upon worldwide qualifications. The commander recommended the applicant be returned to duty or otherwise medically retired. On 20 December 2007, the applicant underwent a MEB and was referred to the Informal Physical Evaluation Board (IPEB). On 11 March 2008, the IPEB recommended a disability discharge with severance pay and a disability rating of 20 percent for neck pain, status post C-5,6 anterior cervical diskectomy and fusion. The applicant disagreed with the findings and requested a Formal Physical Evaluation Board (FPEB) hearing of her case. On 15 May 2008, the applicant signed a waiver of her right to a formal hearing in front of the FPEB. The FPEB president approved her waiver request. On 28 May 2008, the Secretary of the Air Force directed her disability discharge with severance pay. On 25 July 2008, she was honorably discharged for physical disability and assigned an RE code of 2Q (medically retired or discharged). She was credited with 11 years, 6 months, and 18 days of total active service. On 2 February 2010, the PDBR recommended denial and concurred with the recommendations of the PEB of 20 percent for neck pain, status post C-5,6 anterior cervical diskectomy and fusion. However, the PDBR concluded none of the other conditions was unfitting. The remaining relevant facts pertaining to this application are contained in the letter prepared by the BCMR Medical Consultant, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. The Medical Consultant states the applicant has not met the burden of proof of an error or injustice that justifies the desired change of the record. The Department of Defense Instruction 1332.38, paragraphs E3.P3.3.3 and E3.P3.3.4, state if the evidence establishes that the service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty. The “Cause and Effect Relationship” states regardless of the presence of illness or injury, inadequate performance of duty, by itself, shall not be considered as evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors. The Medical Consultant acknowledges that the applicant has received disability compensation issued by the DVA for a significant number of additional service-incurred medical conditions. However, not only did the applicant's commander attest to her ability to perform all of her duties, no cause and effect relationship is established between the presence of these conditions and inadequate duty performance. The Military Disability Evaluation System (DES), by law, only offers compensation for an illness or injury when it is the cause for career termination. A preponderance of evidence shows the applicant's cervical disc disease and associated left upper extremity symptoms were the cause for terminating her career. While operating under a different set of laws, Title 38 United States Code (U.S.C.), the DVA is authorized to offer compensation for any medical condition deemed service-incurred or aggravated, without regard to its impact upon a service member's retainability or fitness to serve. Thus, the mere fact that the DVA rendered disability compensation is not a proof that the Military Department has failed by not issuing like disability determinations. Title 38, takes into account the fact that a person may acquire a condition that, although not unfitting at the time of separation, may later progress in severity and alter the individual's lifestyle and future employability. In addition, Title 38 authorizes the DVA to conduct periodic re-evaluations for adjusting the disability rating awards (increase, decrease, or with no change) should the level of impairment vary over time. The two systems represent a continuum of medical care and disability compensation that starts with entry onto active duty and extends for the life of the veteran. The complete BCMR Medical Consultant evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the evaluation was forwarded to the applicant on 26 October 2010 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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 a thorough review of the evidence of record and applicant's submission, we are not persuaded that the reason for her disability discharge should be changed. The applicant’s contentions are duly noted; however, we do not find her arguments sufficiently persuasive to override the rationale provided by the BCMR Medical Consultant. Therefore, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt the rationale expressed, as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no 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(s) 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 AFBCMR Docket Number BC-2010-01148 in Executive Session on 5 January 2011, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-01148 was considered: Exhibit A. DD Form 149, dated 16 Mar 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Medical Consultant, dated 15 Oct 10. Exhibit D. Letter, SAF/MRBR, dated 26 Oct 10. Panel Chair