RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-03453
INDEX CODE: 108.00, 128.04
XXXXXXXXXXXXX COUNSEL: JAMES PHILLIPS
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 6 May 2008
________________________________________________________________
APPLICANT REQUESTS THAT:
He be placed on Title 10 active duty orders and be medically retired from
active duty.
He be found medically unfit for further duty, and that he receive all
appropriate compensation for his medical “in the line of duty”
disqualification.
He be paid compensation, and discharged from repayment of overpayment of
his flight pay.
________________________________________________________________
APPLICANT CONTENDS THAT:
He should have been medically disqualified by the 22 November 2004 Medical
Evaluation Board (MEB) as he is unfit for continued service due to
hypertension and heart complications.
His flight pay was discontinued after he was injured. He was unaware of,
and disagrees with, the overpayment. He should not be required to pay back
the flight pay from 23 December 2003 to 23 December 2004.
In support of his appeal, he has furnished copies of numerous documents
corresponding with the office of Senator Bill Frist, a Medical Board
Report, dated 6 December 2004, numerous medical documents from St. Thomas
Hospital, The Heart Group, and his military medical records, a synopsis of
his Guard Career, a Timeline, a letter of indebtedness from the 118
AW/FMFPM, dated 26 October 2005, his DD Form 214, dated 28 February 2005,
SO RX-626, dated, 2 March 2003, and SO RX-368, dated 4 January 2005, and
documentation from the Department of Veterans Affairs, dated 17 April
2006..
Applicant’s complete submission, with attachments, is at Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
Applicant entered military service in the Tennessee Air National Guard
(TNANG) on 21 December 1988 as a navigator, and is currently a TNANG member
serving in the grade of major.
In December 2001, he was noted by his personal physician to have a
diastolic murmur. Subsequent evaluations through April 2002 documented a
bicuspid aortic valve, with abnormal calcification of the valve leaflets,
and moderate to severe aortic valve insufficiency. He was also shown to
have an enlarged ascending aorta that is commonly associated with the
bicuspid valve anomaly, and also frequently requires surgical repair due to
a risk of rupture. Stress testing showed no evidence of blocked coronary
arteries with normal aerobic capacity, and Holter monitoring showed no
abnormal heart rhythms. A follow-up examination with his cardiologist in
September 2002 indicated his bicuspid valve, aortic insufficiency, and
ascending aortic aneurysm were largely stable. He was noted to have
hypertension, considered a risk factor for aortic aneurysm development, and
was advised to return in six months. On 21 October 2002, he completed a DD
Form 2697, Report of Medical Assessment, in which he attested he had not
seen or been treated by a health care provider since his last physical
examination by the military in April 2002.
His unit did not learn of the condition until January 2003, and he was
placed in Duty Not Involving Flight (DNIF) status on 6 January 2003. An
aeromedical summary was completed in February 2003, requesting a waiver for
flying duties, and noting he was a civilian commercial pilot and
asymptomatic. The flight surgeon further stated his condition was unlikely
to progress for many years as there was no evidence of heart failure at
that point, the condition would not affect his ability to deploy to austere
environments, he would not require frequent, exotic, or invasive testing,
and it was anticipated he would continue to do well for many years to come,
during which, he could continue to be an active navigator in the unit.
On 2 March 2003, he was mobilized for Operation Iraqi Freedom (OIF), and
deployed (non-flying) to Southwest Asia for four months. He returned to
home station in early July 2003, and remained on active duty orders. A
Line Of Duty (LOD) determination was initiated on 23 March 2004, with an
interim approval requested for imminent surgery. He was admitted for
aortic valve replacement and aortic aneurysm repair on 20 April 2004, and
his post-operative recovery was uncomplicated. He met an MEB in November
2004, and the summary indicated “since his valve and aortic replacement, he
has done well and denies symptoms. He specifically denied any onset of
chest discomfort, shortness of breath on exertion, lower extremity edema,
shortness of breath with recumbency cough, wheezing, syncope, etc.” The
MEB was completed on 6 December 2004, and was referred to an Informal
Physical Evaluation Board (IPEB). The IPEB recommended return to duty on
11 February 2005 under Category II – Conditions that can be unfitting but
are not currently compensable or ratable: Bicuspid Aortic Valve, Existed
Prior to Service, associated with Aortic Root Aneurysm Status Post surgical
repair. He was deactivated on 28 February 2005, and, on 13 May 2005, the
ANG/SG determined he was medically qualified for World Wide duty, with
waiver valid until 31 May 2008.
In October 2005, applicant was notified of a payable debt to the DoD, in
the amount of $3,340.78, for overpayment of Aviation Career Incentive Pay
(ACIP). Further review by HQ USAF/A3OT and the NGB determined the amount
payable was actually $13,224.
Applicant filed a claim for service connected disability compensation with
the Department of Veterans Affairs (DVA). A DVA Rating Decision, dated 10
April 2006, denied service connection for heart valve replacement since the
condition had not been aggravated by his military service, and had neither
occurred in nor was caused by his service, but was rather a congenital
condition.
________________________________________________________________
AIR FORCE EVALUATION:
HQ USAF/A3OT recommends denial of applicant’s request to be relieved of his
obligation to repay the ACIP he received from 23 December 2003 to
23 December 2004. He was not medically qualified for aviation service, and
therefore not entitled to ACIP for the period in question.
Applicant was initially placed in DNIF status on 6 January 2003, and was
later medically disqualified by HQ AFMSA, effective 22 December 2003.
Medical disqualification documentation was not immediately provided to his
Host Aviation Resource Management (HARM) office for publication of a
disqualification Aeronautical Order (AO) and termination of ACIP. The HARM
office initially published a disqualification AO in September 2005, with an
incorrect effective date of 23 December 2004. In September 2006, the
effective date of the disqualification was corrected to 22 December 2003,
and flying incentive pay was terminated effective 22 December 2003.
The DoD Financial Management Regulation Volume 7A, Chapter 22, paragraph
220207 states “Disqualification for medical incapacity will be effected on
the first day following a period of 365 days that commences on the date of
incapacitation, or on the date a competent medical authority determines the
medical incapacitation to be permanent, whichever is earlier.” The AF Form
1042, Medical Recommendation for Flying or Special Operational Duty, is
used to convey medical qualification for aviation service, and must be
provided to the HARM office within 10 days. His HARM office did not
receive the AF Form 1042 until September 2005; however, this does not
change the fact that he was not medically qualified for aviation service.
According to the HQ TNANG response to a congressional inquiry, he was
notified of the medical disqualification in December 2003, and therefore
should have been aware he was not entitled to ACIP. Additionally, AFI 11-
402, Aviation and Parachutist Service, Ratings and Badges, paragraph 1.5.3,
requires aircrew members to notify the HARM office immediately when flight
or jump incentive pay has not been terminated if they have been
disqualified from aviation service.
The HQ USAF/A3OT evaluation is at Exhibit C.
NGB/A1POF recommends denial of all relief sought. They referenced a
previous reply provided to Senator William Frist (attached in applicant’s
DD Form 149), and elaborated as follows:
Applicant is basing his belief that he should be medically disqualified on
one civilian doctor’s statement that “Maj W-----should avoid deployment due
to its inherent risk of excessive exertional responsibilities and stressful
situations which would certainly be prone to accelerate his hypertension
and cause potential progressive aortic root/valve complications given the
afore mentioned factors.” Air Force and ANG physicians reviewed this case
several times, and his file was received by the MEB, the Surgeon General’s
Office of the Secretary of the Air Force, and the Office of the Air
Surgeon, ANG. Each review concluded that after his surgery, he was
medically qualified for worldwide duty. According to AFI 44-157, paragraph
1.5, HQ AFPC will review all MEBs recommending a return to duty, and
provide a disposition. This disposition is final and may not be rebutted
by the member unless new and compelling evidence or information is
presented that would render consideration of a differing decision. Without
any new or compelling evidence, applicant does not have a right to appeal
the decision he is medically qualified to remain in the military.
Applicant was not injured in the line of duty. He had a pre-existing
illness (existing since 2002, not reported until 2003) which was aggravated
by his service in the Middle East. He was found “in the line of duty”
(LOD) solely because there was not time to do the Air Staff level review of
an “existing prior to service determination” (EPTS) before his departure.
When his commander made the LOD determination, he was kept on Title 10
orders which allowed him to continue receiving full-time active duty pay,
as well as having the military pay for his surgical procedure. Due to his
heart condition, he was placed in DNIF status on 6 January 2003. A board
reviewed his file and found him medically disqualified for flying on 19
November 2003, and, at this point, he did not meet the requirements for
ACIP. This was long before his LOD determination. Upon notification of
DNIF status, his ACIP should have been discontinued. AFI 11-402, paragraph
3.7.2.1 states that if an officer is placed in DNIF status, his incentive
pay stops 365 days from the date of DNIF, or on the date the Flight Surgeon
finds the problem permanently grounding, whichever is earlier. The 365-day
DNIF period ended on 7 January 2004. The 118th Medical Group received
notice of the medical disqualification on 22 December 2003, which is the
earlier date, and, per the AFI, is the date his flight pay should have
stopped. However, the AF Form 1042 was not received in the Flight
Management Office (FMO) until September 2005 and was misread. Applicant
was notified he owed the government $3,340.78 based on an incorrect stop
date of 23 December 2004. The actual amount he was overpaid was $13,224,
or an additional $9,884. The difference resulted from the fact that while
he was drawing his ACIP of $28.00/day, he was in Title 32 (part-time, 4-6
days/month) status from 23 December 2004 to September 2005, and on Title 10
(full-time) active duty orders during the period 23 December 2003 to
23 December 2004.
It is not possible to medically retire the applicant as soon as possible.
A military member will be medically retired from active duty (Title 10) if
an MEB determines he is not qualified to serve in the military. He has
been found medically qualified to serve in the military, and medically
qualified for world wide duty, with a waiver, until 31 May 2008.
The NGB/A1POF evaluation is at Exhibit D.
The AFBCMR Medical Consultant is of the opinion no change in his records is
warranted. He had a congenital, EPTS condition of bicuspid aortic aneurysm
which was present at birth, and the associated complications have developed
over the years since birth. These were diagnosed by a personal physician
and cardiologist more than eight months before military authorities became
aware of the conditions. These conditions are disqualifying for flying
duties, and aneurysm is also disqualifying for continued military service.
The applicant had additional, longstanding disqualifying (for flying)
medical conditions that were similarly unreported, including hypertension
on chronic medication, and use of unapproved medications. He failed to
properly report these conditions or treatments, and specifically denied any
civilian medical care and medications on an October 2002 DD Form 2697. AFI
48-123 requires that a member “report all medical/dental treatment obtained
through civilian sources, or any medical condition that hinders duty
performance, to the appropriate military medical authority”, and that “each
Air Reserve Component (ARC) member is responsible for promptly reporting a
disease, injury, operative procedure, or hospitalization not previously
reported to his or her commander, supervisor, or supporting medical
facility personnel. Any concealment or claim of disability made with the
intent to defraud the government results in legal action and possible
discharge from the ARC.” Applicant was allowed to mobilize with his
squadron in March 2003 based on the medical opinion of his flight surgeon
that his conditions merited consideration for a waiver of continued flying.
There is no evidence in the available medical records from which to draw
the conclusion that his condition was aggravated by military service.
Results of serial imaging do not show a pattern of accelerating disease
beyond the expected natural progression. The preponderance of evidence of
the records reflects little or no change in his condition without symptoms
for the two years prior to his surgery. The applicant’s cardiologist’s
letter reporting a progression of 5mm of both the aortic root dimension and
ascending aorta dimension is not evidenced in the primary documentation.
In April 2004, the aneurismal size was reported to be “right at 5cm” by the
thoracic surgeon at the time of surgery, and a 5 mm increase over a one or
two year period of time is consistent with the rate of natural progression
reported in medical literature.
There is nothing in his deployed duties (in fixed facilities in Saudi
Arabia, UAE, and Kuwait) to suggest what his personal physician dramatized
as “in a years time, the damage done was equal to more than 10 years of day
to day activities.” Records indicate the applicant was deployed for four
months performing non-flying duties, and there is no documentation of
uncontrolled high blood pressure while deployed. The speculation that
undocumented hypertension during deployment caused his condition to rapidly
progress is not supported by either the medical literature or evidence of
the record.
The Military Disability Evaluation System (DES), established to maintain a
fit and vital fighting force, can, by law under Title 10, only offer
compensation for those service incurred in-line-of-duty diseases or
injuries which specifically rendered a member unfit for continued active
service or were the cause for termination of their career, and then only
for the degree of impairment present at the time of separation and not
based on future possibilities. Once an individual has been declared unfit,
the Service Secretaries are required by law to rate the condition based
upon the degree of disability at the time of permanent disposition, and not
on future events. The mere presence of a medical condition does not
qualify a member for disability evaluation. For an individual to be
considered unfit for military service, there must be a medical condition
that prevents performance of any work commensurate with rank and
experience, or precludes assignment to military duties. Medical conditions
that existed prior to entry onto active duty that are not permanently
aggravated by military service beyond the natural course of the disease are
not ratable or compensable under the rules of the military DES.
The reviewer does not agree with his unit’s interim finding of LOD “yes”,
an error perpetuated by the MEB but corrected by the PEB. The applicant
was born with his bicuspid aortic valve and developed the associated
complications of aortic valvular insufficiency and ascending aortic
aneurysm over many years. There is no relationship to military service, or
a four month deployment, to the development of these conditions or the
progression over time. It should be pointed out that this LOD error was
favorable to him, providing him coverage for the corrective surgery and
extended employment for a condition disqualifying for his civilian flying
occupation.
Following successful surgical repair, the applicant was found fit for
continued military service. The available medical records at the time of
his MEB document controlled hypertension, as well as clinical and
echocardiogram evidence of normal cardiac function. There are no more
contemporaneous records to suggest subsequent deterioration. His only
disqualifying conditions for continued military service, “aneurysm or
history of repair” and “congenital anomalies…unless satisfactorily treated
by surgical correction”, have been waived by ANG/SGPA through 31 May 2008.
At the time of his MEB, there was no basis on which to find him unfit for
continued military service, and no more recent evidence has been submitted
that such exists presently. Disqualification from special duties such as
flying is not the same as unfit for continued military service.
The administrative error of continued ACIP was occasioned by a failure of
the involved organizations to communicate in a timely fashion. There is,
however, every reason to believe that he was aware of his disqualification,
and therefore the loss of his entitlement to incentive pay. He failed to
notify his HARM office of the continued receipt of ACIP as required by AFI
11-402.
The preponderance of evidence of the records does not support the
applicant’s request. Action and disposition in this case are proper and
equitable, reflecting compliance with Air Force directives that implement
the law.
The AFBCMR Medical Consultant evaluation is at Exhibit F.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Complete copies of the HQ USAF/A3OT and NGB/A1POF evaluations were
forwarded to the applicant on 5 January 2007, for review and comment,
within 30 days. However, as of this date, no response has been received by
this office. A complete copy of the AFBCMR Medical Consultant’s evaluation
was forwarded to the applicant on 11 May 2007, for review and comment
within 30 days.
Applicant responded to the AFBCMR Medical Consultant evaluation on 29 May
2007, stating that the evaluation contains some serious accusations and
misrepresentations, and that he would welcome an examination of his current
medical condition and history by an independent third party.
The evaluation disregards statements by his doctors, the same ones who
saved his life, and uses opinions of Air Force doctors that for over 14
years never found a problem in any of his physicals. It does not mention a
CT scan done in October 2003, at the request of the Air Force, that his
doctors later convinced him was erroneous. The evaluation also implies
that his surgery was unnecessary, which could not be further from the
truth. The surgeon told his family that the procedure “gave him a lot of
trouble” and, on follow-up visits, the surgeon told him and his wife that
he would not have lasted more than a few weeks without the surgery.
The statement that he was performing non-flying duties while deployed is
irrelevant and degrading to all who have served in “staff” positions. As a
staff officer, he worked 12 to 18 hour days for four months with little
time off, and his life would have been much easier if he had been a
crewmember.
The evaluation also implies that he intentionally hid his medical
conditions from the Air Force. Upon learning of his heart valve issue, he
immediately told his squadron commander and, after numerous tests, was told
it was a relatively minor condition that required no current treatment,
just periodic checks. Based on this, he did not notify the base hospital.
He would also like to note his doctor has a very low threshold for
hypertension, his chronic hypertension is normal by most standards, and
there had never been any concerns about hypertension reported in over 14
years of flight physicals with no medication involved. The DD Form 2697 he
signed in October 2002 was done in a mass unit deactivation briefing, and
he signed numerous forms that he should have looked at more closely. He
refused to sign the same form in March 2004.
The flight surgeons at his unit still disagree with the Air Force opinion
that he is fit for worldwide duty. He has been trying to resubmit for a
flying waiver since August 2005, and, as a part of his package, the Air
Force wants a letter from his doctors stating that he is worldwide
deployable. This is something they refuse to do, and he has learned to
trust their opinions. In May 2007, he reviewed his waiver status with his
flight surgeon, and he is reluctant to submit the package because he thinks
he should be disqualified from military service.
The ACIP overpayment amount was incorrectly stated in the evaluation, and
is one of many factual errors contained in the evaluation. He takes issue
with the statement he should have been aware of the mistake, and finds it
incredible that numerous government agencies and employees can consistently
get things wrong and yet want to hold a part-time ANG member, who was going
through a rather traumatic experience, responsible for not knowing
regulations.
The numerous factual errors in the AFBCMR Medical Consultant Advisory
should render the review null and void. It states the wrong figures
regarding ACIP overpayment. It excludes the most important CT scan from
the report, and this exclusion renders the discussion about deterioration
of his condition while deployed and the timing of the surgery invalid. It
also fails to mention the VA denial is under appeal. Based on the
evaluation, he expects to lose this case which is unfortunate, given the
tone and misrepresentations in the evaluation. A copy of the evaluation
has been forwarded to his attorney and his physicians, and he personally
feels the evaluation warrants an investigation.
Applicant’s complete response, with attachment, 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 timely filed.
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, we agree
with the opinions and recommendations of the Air Force offices of primary
responsibility and adopt their rationale as the basis for our conclusion
that the applicant has not been the victim of an error or injustice.
Evidence has been presented that in December 2001, applicant, was noted by
his personal physician to have a diastolic murmur. In October 2002, he
completed a DD Form 2697, Report of Medical Assessment, in which he
attested he had not seen or been treated by a health care provider since
his last physical examination by the military in April 2002. His unit did
not learn of the condition until January 2003, at which time he was placed
in DNIF status. In December 2003, he was subsequently found to be
medically disqualified for flying and, at this point, was no longer
entitled to ACIP for the period in question. Since aircrew members who
have been disqualified from aviation service are required to immediately
notify their HARM office when flight pay has not been terminated, applicant
should have been aware he was not entitled to ACIP for the period in
question, and there is no evidence he attempted to notify his HARM office
to terminate his ACIP. Air Force and ANG physicians reviewed this case
several times, and his file was received by the MEB, the Surgeon General’s
Office of the Secretary of the Air Force, and the Office of the Air
Surgeon, ANG. Each review concluded that after his surgery, he was
medically qualified for worldwide duty. Applicant has been found medically
qualified to serve in the military, and medically qualified for world wide
duty, with a waiver, until 31 May 2008. Disqualification from special
duties such as flying is not the same as unfit for continued military
service. Therefore, it is not possible to medically retire the applicant
as soon as possible as a military member will be medically retired from
active duty (Title 10) if an MEB determines they are not qualified to serve
in the military. Additionally, evidence has been presented that the
condition resulting in his heart valve replacement had not been aggravated
by his military service, and had neither occurred in nor was caused by his
service, but was rather a congenital condition. Therefore, in the absence
of evidence to the contrary, we find no compelling 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 Docket Number BC-2006-03453
in Executive Session on 11 July 2007, under the provisions of AFI 36-2603:
Mr. Michael J. Novel, Panel Chair
Ms. Karen A. Holloman, Member
Mr. Wallace F. Beard, Jr., Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 31 Jul 06, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ USAF/A3OT, dated 12 Dec 06.
Exhibit D. Letter, NGB/A1POF, dated 26 Dec 06.
Exhibit E. Letter, SAF/MRBR, dated 5 Jan 07.
Exhibit F. Letter, BCMR Medical Advisor, dated 2 May 07.
Exhibit G. Letter, AFBCMR, dated 11 May 07.
Exhibit H. Letter, Applicant, dated 29 May 07, w/atch.
MICHAEL J. NOVEL
Panel Chair
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