RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01398 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her records be corrected to reflect that she was placed on medical continuation (MEDCON) orders during the period 21 Mar 04 through 5 Jun 08 or, in the alternative, she receive Incapacitation (INCAP) pay for said period. 2. Her records be corrected to reflect that her disability rating was not reduced to 20 percent, but maintained at 30 percent with continued entitlement to disability retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. She should have been placed on orders due to her re-injury. Her Line of Duty (LOD) determination was not officially signed until almost three years after being taken off of orders. She was denied benefits due to be being taken off of orders. 2. The Secretary of the Air Force Personnel Council (SAFPC) failed to review all the documentation she submitted in support of the final appeal of her case. As a result, the decision to reduce her disability rating from 30 percent to 20 percent, resulting in her removal from the TDRL, was erroneous. The documentation submitted clearly indicated that her condition had not improved. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 13 Apr 97, the applicant commenced her enlistment in the Air Force Reserve. On 24 Jun 02, the applicant commenced a tour of active duty. She was released from active duty on 30 Sep 02 and reverted to her traditional (part-time) status as a member of the Air Force Reserve. On 7 Apr 03, the applicant commenced a tour of active duty in support of Operation NOBLE EAGLE/ENDURING FREEDOM. On 21 Mar 04, she was released from active duty and reverted to her traditional (part-time) status as a member of the Air Force Reserve. On 10 Jan 05, the applicant commenced a tour of active duty. On 6 May 05, a hand written LOD determination was initiated for the applicant’s right knee pain. The applicant experienced pain while performing physical exercise when her right knee was placed in certain positions. She was seen by physical therapy and diagnosed with patellar femoral syndrome. She was subsequently evaluated by orthopedics and eventually had knee surgery. On 22 Jun 05, the applicant’s medical condition was found to be in the LOD. On 1 Jul 05, the applicant was released from active duty reverted to her traditional (part-time) status as a member of the Air Force Reserve. On 13 Dec 06, the LOD determination was reaccomplished with a determination that her chronic knee pain was in the LOD and forwarded for consideration by the AFRC LOD Board. On 22 Dec 06, the applicant underwent a medical evaluation board (MEB) for right knee pain. On 17 Jan 07, the AFRC LOD Board found the applicant’s medical condition to be in in the LOD. On 8 Feb 08, the Informal Physical Evaluation Board (IPEB) reviewed the applicant’s case and recommended she be found unfit with a ten percent disability rating and discharged with entitlement to disability severance pay. The applicant disagreed with the findings and recommendations and appealed to the Formal Physical Evaluation Board (FPEB). On 16 Apr 08, the FPEB reviewed and considered the applicant’s case and recommended she be found unfit with a compensable disability rating of 30 percent and placed on the TDRL noting the applicant’s condition was unfitting, unstable, and was pending surgery. The applicant concurred with the findings and was placed on the TDRL, effective 6 Jun 08. On 23 Nov 09, the applicant underwent a periodic TDRL reevaluation. On 30 Apr 10, the IPEB reviewed the reevaluation and recommended she be assigned a combined compensable disability rating of 20 percent, removed from the TDRL, and discharged with entitlement to severance pay, noting the applicant’s knee condition had not changed since being placed on the TDRL. The applicant disagreed with the IPEB and requested a hearing before the FPEB. On 16 Jun 10, the FPEB reviewed the applicant’s case and affirmed the findings of the IPEB that the applicant be assigned a 20 percent disability rating and discharged with entitlement to severance pay. The applicant disagreed with the findings and appealed to the Secretary Air Force Personnel Council (SAFPC). On 15 Aug 11, SAFPC directed the applicant be discharged with severance pay with a 20 percent disability rating. Because the applicant was eligible for non-regular retirement as a member of the Air Force Reserve, on 31 Oct 11, she was removed from the TDRL and transferred to the Inactive Status List Reserve Section (ISLRS), effective 2 Nov 11. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD notes a preponderance of the evidence reflects no error or injustice during the applicant’s disability processing. However, AFPC/DPFD defers to the Board for a determination regarding the applicant’s allegation that all documents were not reviewed for her TDRL reevaluation. A complete copy of the AFPC/DPFD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The IPEB noted she was pending surgery and granted her a 30 percent disability rating. She believes the FPEB reduced her disability rating due to her electing not to have surgery on her right knee. She opted not to have surgery based on her physician’s recommendation and the low success rate of the procedure. The applicant’s complete response, with attachments, is at Exhibit E. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends partial relief be granted with respect to the applicant’s request for MEDCON orders. While the applicant is requesting her records to be corrected to reflect she was not released from active duty on 21 Mar 04, the evidence presented is not sufficient to conclude she was unfit for her military duties at the time of her release from active duty. However, the evidence provided does indicate that her condition could have rendered her unfit when she entered the disability evaluation system (DES). Therefore, it would be reasonable to conclude that she could have been placed on MEDCON orders as early as 22 Dec 06, the date of the MEB narrative summary, and retained on MEDCON orders until the final determination of her DES case when she was transferred to the TDRL on 6 Jun 08. As for the applicant’s request regarding her disability percentage, the AFBCMR Medical Consultant recommends denial noting there is no error or injustice to warrant changing the applicant’s disability rating to receive permanent disability retirement. Consideration for a medical retirement should not be based upon long and faithful service, but upon objective clinical evidence present at the time of final military disposition utilizing the objective clinical findings at the TDRL reevaluation and the rating criteria outlined in the Veterans Affairs Schedule for Rating Disabilities (VASRD) for her medical condition. The applicant was originally awarded a 30 percent disability rating and placed on the TDRL for her knee pain due to the impending surgery and her not having received the benefit of optimal care. However, at the time of the TDRL reevaluation, the applicant had not had the surgery and her physicians at the time were no longer recommending surgery. While the lowering of the applicant’s disability rating from 30 percent to 20 percent may seem disingenuous, a discussion of the likely reason the higher rating of 30 percent was established in the first place is in order. Based upon the rationale of the FPEB, when the applicant was first placed on the TDRL, it becomes clear that the reason for the 30 percent rating (minimum required to qualify for retirement, TDRL or permanent) was the expectation that she had not yet received the benefit of definitive or optimal care, in anticipation of her undergoing a surgical procedure, and, thus, found a way of retiring the applicant temporarily under a more expansive VASRD code while awaiting the outcome, which would have become evident at the next TDRL re-evaluation. Therefore, since the surgery did not take place and was no longer recommended, then it follows that the previous Boards based the rating on the applicant’s demonstrated level of functionality and the underlying objective clinical findings, e.g., range of motion and radiographic findings (MRIs, and X-Rays, etc.). While the applicant’s knee pain has apparently prevented her from participating in activities which she formerly enjoyed with her family, rating an organic medical condition such as the applicant’s solely on the subjective level of “pain” at a given time becomes an inaccurate and impractical metric for assigning disability ratings, particularly when considering the variability of pain perception across the normal population and variability of pain, as perceived by the same individual at a given time. The applicant’s actual DVA Compensation and Pension examination is not available; nevertheless, it appears that both the Military Department and the DVA have assigned a 20 percent disability rating based upon their individual clinical assessments. The DVA, operating under a different set of laws, has the benefit of conducting future periodic reevaluations for the purpose of adjusting the applicant's disability rating as the level of impairment from given medical condition may vary over the lifetime of the veteran. The Medical Consultant is troubled by the expression used by the IPEB, "essentially unchanged since placement on the TDRL," which is contravened by the reduction in the previous disability rating. The Medical Consultant finds if this characterization was truly "unchanged" then it would have been appropriate to retain the disability rating at 30 percent. Although the applicant has achieved a higher combined disability rating through the DVA, this rating includes other unrelated service connected medical conditions. The disability ratings assigned to the applicant's knee condition have not been greater than 20 percent; which indicates consideration was given to her reduced range of motion and underlying degenerative joint disease. In addition, none of the applicant's clinical assessments showed instability of the supporting major ligaments of the knee. The AFBCMR medical consultant notes the applicant's patellar tilt, as described in her rebuttal, but finds this anatomic finding does not justify the higher disability rating she requests. A complete copy of the AFBCMR Medical Consultant’s evaluation, with attachments, is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The dates on her LOD are not accurate. They should reflect the period she was on active duty orders from 7 Apr 03 through 21 Mar 04. She submitted a request to extend her orders and it was denied. Due to her reinjuring her knee she should have remained on orders for medical purposes. Although it has been recommended to grant MEDCON orders beginning 22 Dec 06, she requests consideration for MEDCON orders beginning 21 Mar 04, her last day on active duty, or in the alternative 17 May 05 based on her medical profiles periodically indicating she was not world-wide qualified for duty. She agrees if her knee condition had not truly changed as noted by the IPEB, her disability rating should have remained at 30 percent. The applicant’s complete response, with attachments, 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 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 an error or injustice with respect to the applicant’s request that her records be corrected to reflect that she was retired for physical disability for her chronic knee pain with a combined compensable disability rating of 30 percent. The applicant argues that the Secretary of the Air Force Personnel Council (SAFPC) failed to review the totality of evidence she provided in support of her case. However, while she has provided a tome of medical and other documentation in support of her request, we do not find the applicant’s arguments or said documentation sufficient to conclude that SAFPC failed to properly consider pertinent evidence when they affirmed the determinations of both the Informal Physical Evaluation Board (IPEB) and Formal Physical Evaluation Board (FPEB), which indicated the applicant’s condition warranted a 20 percent disability rating with entitlement to severance pay. Furthermore, irrespective of the applicant’s arguments on this point, the AFBCMR Medical Consultant has reviewed the totality of the evidence presented by the applicant and concluded that a 20 percent disability rating for her chronic knee pain was appropriate to the applicant’s condition, which is consistent with the independent finding of the Department of Veterans Affairs (DVA) where they also issued the applicant a 20 percent disability rating for said condition. While the applicant also argues the reduction of her disability rating from 30 percent to 20 percent is inconsistent with the IPEB’s finding that her condition was essentially “unchanged” since she was placed on the TDRL, we do not find this argument sufficient to conclude the reduction of her disability rating was erroneous. In this respect, we note that a key consideration when a member is placed on the TDRL, versus being permanently retired for physical disability, is whether or not the member’s condition is stable. In the applicant’s case, the IPEB determined that her condition was not stable because she required further treatment (surgery) before a final disability rating could be determined. As such, the IPEB appropriately determined that she should be temporarily disability retired until such time as the remaining treatment was complete and a final determination could be made as to whether or not she remained unfit and to what degree. In our view, once it became apparent that the applicant was not going to have surgery, her condition was no longer “unstable” and a final determination could be made as to the degree of disability she suffered. Therefore, in view of the above, we are not convinced the reduction of the applicant’s disability rating and subsequent removal from the TDRL constitutes an error or injustice. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request for medical continuation (MEDCON) orders. In this respect, we note the comments of the AFBCMR Medical Consultant and agree with his determination that the evidence presented indicates that it would have been appropriate to place the applicant on MEDCON orders when it became apparent that her condition precluded her from the performance of her military duties. Therefore, we believe it appropriate to recommend the applicant’s records be corrected to reflect that she was placed on MEDCON orders on the date of the medical evaluation board (MEB) narrative summary, which is the first conclusive indication that her condition was unfitting. While the applicant argues that she should have been placed on MEDCON orders much earlier, we do not find the evidence provided sufficient to conclude that her condition rendered her unfit to perform her duties prior to the date of the MEB summary. While the applicant provides several AF Forms 422, Physical Profile Serial Report, some indicating that her knee condition rendered her no longer qualified for world-wide duty, in our view, even though her ability to deploy was limited, such a determination, in and of itself, does not constitute a finding that the applicant was unfit for her military duties. In our view, based on the totality of the evidence presented, we find it reasonable to conclude that it was not apparent that the applicant’s condition rendered her unfit to perform her duties until she was referred to a medical evaluation board (MEB) for such a determination. Therefore, we believe it appropriate to recommend the applicant’s records be corrected as indicated below. 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 issue(s) 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 the APPLICANT be corrected to show that on 22 December 2006 she was placed on active duty for the purposes of medical continuation (MEDCON) until 6 June 2008, when she was transferred to the Temporary Disability Retired List (TDRL). ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-01398 in Executive Session on 1 Jul 14, 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: Exhibit A. DD Form 149, dated 15 Jan 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFPC/DPFD, dated 18 Apr 13. Exhibit D. Letter, SAF/MRBR, dated 3 May 13. Exhibit E. Letter, Applicant, dated 28 May 13, w/atchs. Exhibit F. Letter, AFBCMR Medical Consultant, dated 18 Dec 13, w/atch. Exhibit G. Letter, Applicant, dated 7 Jan 14, w/atchs. Panel Chair DEPARTMENT OF THE AIR FORCE WASHINGTON DC Office of the Assistant Secretary AFBCMR BC-2013-01398 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code, it is directed that: The pertinent military records of the Department of the Air Force relating to , be corrected to show that on 22 December 2006, she was placed on active duty for the purposes of medical continuation (MEDCON) until 6 June 2008, when she was transferred to the Temporary Disability Retired List (TDRL). Director Air Force Review Boards Agency