RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03132 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: The findings of the USAF Physical Evaluation Board (PEB) be corrected to reflect injuries he sustained while on active duty and the reasons for his medical retirement. ________________________________________________________________ THE APPLICANT CONTENDS THAT: The findings of Fibromyalgia syndrome, rated at 20 percent by the PEB, was not correct and the actual findings of Superficial Perivascular Lymphohistiocytic dermatitis as recognized by the Department of Veteran Affairs (DVA) at 60 percent is the correct diagnosis. In addition, the chronic arthralgias of the Medical Evaluation Board (MEB) were not addressed by the PEB and the DVA has rated them at 20 percent for both the cervical spine and lumbosacral strain with bulging L5-S1. All of his DVA findings and decisions were effective as of the date of retirement. In support of his appeal, the applicant provides a copy of his Narrative Summary, (his edited version), undated; the Formal PEB (FPEB), AF Form 356, Findings and Recommended Disposition of USAF PEB, dated 17 Dec 99, and extracts from his DVA Rating Decision. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant, while serving in the grade of major, was diagnosed during an MEB with intractable debilitating facial pain and his case was referred to an Informal PEB (IPEB). The IPEB diagnosed the applicant with facial pain left sided etiology undetermined, with a compensable disability rating of 10 percent. The applicant nonconcurred with this rating and his case was referred to the FPEB. The applicant’s case was forwarded to the FPEB and they concurred with the IPEB’s findings, with an additional finding of Fibromyalgia syndrome, episodic, unfitting, and recommended a compensable disability rating of 40 percent, with permanent disability retirement. The applicant concurred with the findings of the FPEB. The applicant’s case was forwarded to the Secretary of the Air Force Personnel Council (SAFPC) and they directed the applicant be permanently disability retired from active service, with a compensable disability rating of 40 percent. The applicant was disability retired under the provisions of AFI 36-3212, with a compensable disability rating of 40 percent. He was credited with 26 years and 28 days of active service for retirement. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPPD recommends denial stating, in part, that the preponderance of evidence reflects that no error or injustice occurred during the disability process. At the time of the applicant's DES processing, the etiology of recurrent painful nodules was unknown. Medical documentation stated he also had chronic muscle pain, felt to be related to his dermatological condition but with no definitive diagnosis. Therefore, the FPEB chose to analogize his condition to Fibromyalgia, the Veterans Administration Schedule for Rating Disabilities (VASRD) code, which best fit his symptoms, at 20 percent due to the episodic nature of his symptoms. The DVA paperwork submitted by the applicant shows that shortly after his retirement in 2000, he was initially given a 10 percent rating by the VA for superficial Perivascular Lymphohistiocytic dermatitis utilizing the code for lupus erythematosus. This rating was revised in 2003, increasing the DVA rating to 60 percent effective the date of his initial rating in 2000, using a coding for vasculitis available due to changes in the VASRD effective 3 August 2002, which allowed for this increase. As stated above, the DES must rate disabilities based on the condition at the time of evaluation. The FPEB rated the member's condition utilizing the available VASRD code, which best fit his symptoms at the time. With respect to the applicant's concern for his cervical spine and lumbar spine conditions, the narrative summary notes his other medical conditions included herniated disk at the C5-6 level, which was currently not problematic. Therefore, the condition did not appear to be unfitting for duty at the time of the medical board. Further, his lumbar pain is not separately mentioned and would have been included in the rating under Fibromyalgia Syndrome. The complete AFPC/DPPD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant disagrees with the findings noted in the advisory opinion from AFPC/DPPD. He states, “The FPEB choose to analogize the condition as Fibromyalgia. The VA determined that Fibromyalgia was not correct and did not recognize this finding, effective the date of retirement.” The DVA determined the condition was analogous to Superficial Perivascular Lymphohistiocytic dermatitis – VASRD code for lupus erythematosus – effective the date of retirement and asks that the correct analogous condition be applied to his retirement as determined by the DVA. The FPEB’s determination of fibromyalgia at 20 percent was not correct and lupus erythematosus is the more analogous condition, with the rating of 60 percent effective the date of retirement. The severity of the condition did not increase with time from 10 percent (as initially rated by the VA) to 60 percent after retirement; the 60 percent rating truly reflects the severity of the malady at retirement. The 60 percent rating for Superficial Perivascular Lymphohistiocytic dermatitis is the snapshot that correctly reflects the condition and its severity at retirement. The Department of Defense Instruction (DoDI) 1332.39 permits analogous ratings and the recognition of a higher rating to be assigned. In support of his appeal, the applicant provides a personal statement; extracts of the DoDI 1332.39; findings from the PEBs, and other supporting documents. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ 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, the applicant’s case has undergone an exhaustive review by the Air Force office of primary responsibility and we did not find the evidence provided, sufficient to overcome their assessment of the case. The applicant points to the service-connection determination and the disability assessment and rating he received from the DVA to support his claim. However, the applicant is reminded, the Military Disability Evaluation System (MDES) only offers compensation for the medical condition that is the cause for career termination; and then only to the degree of impairment present at the time of final disposition or military separation. Conversely, the Department of Veterans Affairs (DVA) operates under a separate set of laws which takes into account the fact that a person can acquire physical conditions during military service that, although not unfitting at the time of separation, may later progress in severity and alter the individual's lifestyle and future employability. Thus, the two systems represent a continuum of medical care and disability compensation that starts with entry on to active duty and extends for the life of the veteran. Therefore, we agree with the recommendation and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice. In view of the above and 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 the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2010-03132 in Executive Session on 16 June 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Aug 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPPD, dated 26 Jan 11. Exhibit D. Letter, SAF/MRBR, dated 26 Mar 11. Exhibit E. Letter, Applicant, dated 21 Apr 11, w/atchs. Panel Chair