RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-01659 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His general (under honorable conditions) discharge be changed to a medical retirement. APPLICANT CONTENDS THAT: He was on active duty with the Louisiana Air National Guard (ANG) when he was diagnosed with multiple sclerosis (MS) and optic neuritis. In July 2009, he met a Medical Evaluation Board (MEB) and his case was referred to a Physical Evaluation Board (PEB). He was taken off orders on 30 January 2010 without his knowledge and denied TRICARE benefits for medical treatment. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 30 July 2009, the applicant was seen by an MEB and his case was referred to an Informal Physical Evaluation Board (IPEB) with a diagnosis of “Optic Neurites and Muscular Dystrophy.” The PEB requested additional documentation from the applicant on numerous occasions via email and telephone in order to evaluate the applicant’s case. However, they were unable to contact him. Therefore, the MEB was returned without action. The applicant with 14 years, 9 months and 5 days of total service for pay was furnished a general (under honorable conditions) discharge on 10 September 2010, under the provisions of AFI 36-3209, paragraph 3.13.13 (Failure to Comply with Requirement for a Medical Examination). The Department of Veterans Affairs (DVA), Rating Decision, dated February 24, 2015, awarded the applicant a combined evaluation for compensation for optic neuritis both eyes with secondary optic atrophy, residuals of MS to include mild ataxic gait with weakness and constant tingling of legs, and migraines, to include migraine variants. The remaining relevant facts pertaining to this application are contained in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends approval. He recommends changing the record to reflect the applicant was found physically unfit by a Physical Evaluation Board and that he was retired permanently with a combined disability rating of 50 percent, which includes a 40 percent disability rating for unilateral optic neuritis and left visual field defect, as initially determined by the DVA, and a 10 percent disability rating for migraine headaches. Any increase in disability ratings by the DVA thereafter would not represent the applicant’s level of impairment at the “snap shot” time of his military service; whereas the DVA, operating under Title 38 U.S.C., is authorized to adjust disability ratings as the level of impairment due to a given medical condition may vary over the lifetime of the veteran. The applicant was eligible for MEB/PEB processing for his Line of Duty (LOD) Optic Neuritis and neuromuscular deficits, later attributed to MS. Notwithstanding the fact that there is no clear and unmistakable evidence regarding whether these conditions existed prior to service, the fact that the applicant was issued orders from 13 February 2008 through 28 May 2008 and again from 19 June 2008 through 18 May 2009 [essentially a clinical continuum], makes an EPTS determination unlikely. With respect to the applicant’s compliance or non-compliance with timely submission of requested medical information, there is evidence of his active involvement and interest in the process through earlier email traffic; although concentrating at the time mostly on maintaining his TRICARE and DEERS eligibility. The applicant clearly offered to send reports to proper authorities when obtained. However, the applicant also appears to have required a change in civilian neurologists, as the initial neurologist appears to have elected to remove himself from his case. It is not known if this factor contributed to delays in getting the required medical information to his servicing Physical Evaluation Board Liaison Officer and, subsequently to the IPEB. Additionally, the telephone number the applicant offered as his “new phone number” was apparently disconnected at the time attempts were made to contact him. There is no evidence that either the applicant or medical officials sought use of an alternative method of communicating, e.g., registered letter to last known address. Absent such evidence, the AFBMCR Medical Consultant opines the Air Force acted within its authority to discharge the applicant. While there appears to be no error in the applicant’s discharge action, the uncertainty of where the fault lies and possible shared culpability, compounded by differing diagnostic opinions between civilian providers and the change in providers, leads this reviewer to consider depriving the applicant of the medical separation or retirement, that was clearly underway, represents a probable injustice. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 1 May 2015 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. 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. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case and agree with the opinion and recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has been the victim of an injustice. As noted by the AFBCMR Medical Consultant, there was no error in the applicant’s discharge action; however, the differing diagnostic opinions between civilian providers and the change in providers could have deprived the applicant of the medical separation or retirement that was underway prior to the applicant’s discharge process. Additionally, the applicant’s active role during the medical process provides credibility to his efforts to obtain proper resolution of his medical condition. Thus, we believe this to be an injustice. Therefore, we recommend the applicant’s records be corrected as indicated below. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. On 9 September 2010, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was optic neuritis with a visual field defect, and migraine headaches, under Department of Veteran Affairs (DVA) diagnostic code 6026- 6080 and 8100; that the combined compensable percentage was 50 percent; 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 instrumentality of war. b. On 10 September 2010, he was not discharged from active duty, but effective that date he was medically retired with a 50 percent disability rating. c. His election of Survivor Benefit Plan option will be corrected in accordance with his 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-2015-01659 in Executive Session on 1 June 2015, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary was considered: Exhibit A. DD Form 149, dated 9 January 2014, w/atchs. Exhibit B. Applicant’s Available Master Personnel Records. Exhibit C. Letter, AFBCMR Medical Consultant, dated 30 April 2015. Exhibit D. Letter, SAF/MRBR, dated 1 May 2015.