RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00105 COUNSEL: DISABLED AMERICAN VETERANS (DAV) HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her medical discharge be changed to a medical retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: The Air Force assigned an incorrect diagnostic code to her medical condition, and did not evaluate her disability under current Department of Veterans Affairs (DVA) standards. If proper criteria had been applied, she would have received a medical retirement. She was medically discharged with a 10 percent disability rating for Postural Orthostatic Tachycardia Syndrome (POTS). She filed a claim with the DVA on 13 Sep 11, and the DVA awarded her an initial evaluation rating of 80 percent for the same disability she was discharged for. The Air Force erroneously assigned an incorrect diagnostic code of 7010 and 7346, concerning her heart condition and hiatal hernia, respectively. The DAV assigned the more appropriate diagnostic codes of 8999 and 8911, which more closely resembles her true disability listed under Epilepsy, Petit Mal. In support of her request, the applicant provides copies of her DVA rating decision, dated 12 Sep 14 and a letter from a DAV National Service Officer. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 12 Nov 09, the applicant underwent a Medical Evaluation Board (MEB) for POTS. The MEB referred the case to the Informal Physical Evaluation Board (IPEB). On 30 Mar 10, the IPEB recommended discharge with severance pay with a disability rating of 10 percent for diagnosis of POTS using Veteran’s Affairs Schedule for Rating Disabilities (VASRD) diagnostic codes 8299-8210. The applicant requested a formal hearing with counsel. On 16 Jun 10, the Formal Physical Evaluation Board (FPEB) reviewed the case file and medical records and also recommended discharge with severance pay with a disability rating of 10 percent for diagnosis of POTS using VASRD code 8299-8210. The FPEB noted: “The member contends she should retire at a compensable disability rating of 30 percent for POTS at code 6024. Per the VASRD, 6204 cannot be utilized without ‘objective findings supporting the diagnosis of vestibular disequilibrium.’ The FPEB concluded her condition is best analogized at VASRD code 8210 as related to the vagal nerve. The FPEB does not find her disability is characterized as ‘severe’ at the next highest level based on sensory or motor loss to the organs supplied by the vagal nerve, loss of consciousness or fainting, and impact to activities of daily living.” On 17 Jun 10, the applicant non-concurred and requested review of her case by the Secretary of the Air Force Personnel Council (SAFPC). On 13 Jul 11, SAFPC directed the applicant be discharged with severance pay with a disability rating of 10 percent for Incomplete, moderate paralysis of the vagus nerve. SAFPC noted: “The Board considered Petit Mal Epilepsy (PME), at 80 percent, but after review of all the evidence and testimony, recommended discharge with severance pay with a disability rating of 10 percent for diagnosis of POTS using VASRD 8299-8210. In Jan 09, the service member presented with complaints of lightheadedness ‘all the time’ since Dec 08. She was subsequently diagnosed with POTS…The member noted that she had never ‘hit the floor’ in her testimony to the FPEB. Her symptoms have not been severe enough or frequent enough that she has had to stop driving. Although she has had to alter her exercise activities and activities of daily living, she has not had to abandon them completely. The Board concurs with the IPEB and FPEB that the disability is best rated at 10 percent disability for Incomplete, moderate paralysis of the vagus nerve.” On 31 Oct 11, the applicant was discharged by reason of Disability, Severance Pay. She served on active duty for four years, five months, and one day. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force which are at Exhibits C, D, and F. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD recommends denial, stating in part, that the preponderance of the evidence reflects that no error or injustice occurred during the disability process and at the time of separation. DPFD states that the USAF 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 AF must, by law, leave off. Under Title 38, the DVA may rate any service-related condition based on 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 DPFD evaluation is at Exhibit C. AFPC/JA recommends denial. JA states that the applicant believes that an error or injustice has occurred because the Air Force Physical Evaluation Boards (PEBs) did not concur with the DVA’s findings that POTS was most analogous to Petit Mal Epilepsy with 80 percent disability. The DVA is responsible for providing specific disability percentages for each disease or injury the PEB identifies as unfitting. The IPEB and FPEB applied the VASRD code identified by the DVA on the AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, as mandated by the 2008 National Defense Authorization Act (NDAA). The 2008 NDAA, section 1652, provided that the Secretary of Defense (SECDEF) would be required “to utilize, to the extent feasible, the schedule for rating disabilities in use by the DVA…” A 14 Oct 08, SECDEF policy memorandum on implementation of the 2008 NDAA provided, “the use of the VASRD is statutorily required, ‘to the extent feasible.’” It further stated that a different medical opinion would not constitute infeasibility. Contrary to the applicant’s assertions, the IPEB did not fail to properly use the DVA’s standards. In fact, had the IPEB or FPEB reached a different opinion regarding the appropriate analogy to apply, the applicant could make the same argument. Disability boards will only rate those conditions which make a member unfit for continued active duty. In this case, the FPEB had only one VA-rated disease to consider, e.g., POTS analogized to Paralysis of Tenth Cranial Nerve. The applicant bases her current appeal on a VA letter identifying a diagnosis subsequent to the disability boards. The IPEB, FPEB, and SAFPC decisions were rendered prior to Sept 11. At the time of the disability boards the DVA had not diagnosed PME; therefore, it was appropriately not considered by the boards. The complete JA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant argues that the purpose of the analogous rating system is to appropriately compensate a service member with a service-connected disability for which no diagnostic code exists. The current rating assigned to her medical condition, Code 8210, is not appropriate as it does not cover the symptoms she experiences on a daily basis. The rater for her condition only applied a possible etiology for its findings and her symptoms are not accounted for. However, the primary symptom she experiences—loss of consciousness is accounted for when Code 8911 is applied. The medical definition of loss of consciousness accounts for varying degrees of unconsciousness—it does not require that one be laid out on the floor. The FPEB applied an incorrect definition of “hit the floor” to describe a loss of consciousness. DPFD’s statement about the DVA may reevaluate based on changes in the severity of a condition implies that the state of her condition changed from when she was found no longer fit for service by the PEB and when the DVA evaluated her. This is not correct. Her condition has not changed in severity, the DVA made their rating by correctly applying the laws for analogous ratings. The code 8911 is more appropriate, as the percentage of disability is determined by the number of minor seizures per week. She averages 9-15, 30 second interruptions in consciousness every day or 63-105 interruptions per week. Therefore, a rating of 80 percent is appropriately applied as it requires “more than 10 minor seizures weekly,” a requirement she meets. The applicant's complete response is at Exhibit F. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends relief by offering the applicant permanent disability retirement with a 30 percent disability rating under VASRD code 8299-8210. The Medical Consultant points out the applicant has supplied a VA rating decision document, dated 29 May 12, which indicates, among several other service connected medical conditions, she was assigned a 10 percent disability rating for her POTS, utilizing analogous VASRD code 8299-8210, effective 1 Nov 11. However, a little over three months later, another VA rating decision, dated 14 Sep 12, shows that her POTS “currently evaluated at 10 percent disabling,” but on page two of the document, an apparent undated/changed decision show, “We have assigned an 80 percent evaluation for your epilepsy, petit mal based on: More than ten minor seizures weekly. Additional symptom(s) include: continuous medication is shown necessary for the control of epilepsy.” The fact that the choice of VASRD code and disability rating was later changed by the DVA after the applicant’s release from service does not automatically infer that an error has been made by the Military Department. The Medical Consultant is also familiar with the common use of VASRD code 8210 for vasovagal or neurocardiogenic syncope [fainting]. Although the applicant’s medical condition is clinical manifest, in part, as fainting, it does not fully explain the depth, severity, and unknown duration of her medical condition. A review of the cardiovascular system and neurologic Disability Benefits Questionnaires (DBQs) completed by the DVA medical examiner, and likely utilized in reaching its rating decision, contains findings and comments not depicted in the military MEB narrative summary, which the Medical Consultant has noted in his evaluation. The complete BCMR Medical Consultant’s evaluation, with attachment, is at Exhibit G. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: On 27 Sep 13, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit H). As of this date, this office has received no response. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After carefully reviewing the evidence of record, and taking into consideration the comments of the Air Force Offices of Primary Responsibility (OPRs) and the BCMR Medical Consultant, we believe that relief is warranted. In this respect, the applicant is requesting that her medical discharge be changed to a medical retirement based on the 80 percent DVA rating she received at the time of her separation for the same condition she was discharged for. We note that the BCMR Medical Consultant has thoroughly reviewed the evidence in this case, and recommends adjusting the disability rating for her POTS to 30 percent, and we agree with his analysis and recommendation. As noted in the BCMR Medical Consultant’s evaluation, a memorandum from a heart specialist, dated 12 May 10 states that the applicant had a “rather severe form” of her medical condition that “dramatically affects her ability to stand and function in the standing position,” which resulted in “frequent episodes of hypotension” and “occasionally loss of consciousness.” This brings into question whether the applicant’s medical condition was adequately represented by a 10 percent disability rating at the time of her separation. That being said, we accept the opinion and recommendation of the BCMR Medical Consultant to re-characterize the applicant’s medical condition as “Incomplete, Severe,” under the analogous VASRD code 8299-8210, with assignment of a disability rating of 30 percent, and permanent disability retirement effective the previously established date of separation. Accordingly, the applicant’s record should be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. On 13 Jul 11, the applicant was found unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; that the diagnosis in her case was Postural Orthostatic Tachycardia Syndrome, a condition which is rated at a compensable percentage of 30 percent, under Veterans Administration Schedule for Rating Disabilities (VASRD) code 8299-8210; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. She was discharged from active duty on 31 Oct 11, and on 1 Nov 11, she was permanently retired by reason of physical disability with a 30 percent compensable disability rating. c. The election of Survivor Benefit Plan option(s), will be corrected in accordance with the applicant’s expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-00105 in Executive Session on 29 Oct 13, under the provisions of AFI 36-2603: , Jr., Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2013-00105 was considered was considered: Exhibit A. DD Form 149, dated 18 Dec 12, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 5 Mar 13. Exhibit D. Letter, AFPC/JA, dated 11 Mar 13. Exhibit E. Letter, SAF/MRBR, dated 22 Mar 13. Exhibit F. Rebuttal, Applicant, dated 6 Apr 13. Exhibit G. Letter, BCMR Medical Consultant, dated 27 Sep 13, w/atch. Exhibit H. Letter, SAF/MRBC, dated 27 Sep 13. Panel Chair