RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-01005
                                             INDEX CODE:  108.02
      XXXXXXXXX                         COUNSEL:  NONE

                                             HEARING DESIRED:  NO


________________________________________________________________

APPLICANT REQUESTS THAT:

His permanent disability percentage be increased from 40 to 100 percent.

________________________________________________________________

APPLICANT CONTENDS THAT:

The Formal Physical Evaluation Board (FPEB) was unfair,  the  guidance  from
the FPEB attorney was misleading, and the decision of the Secretary  of  the
Air Force Personnel Council (SAFPC) to permanently retire with a 40  percent
rating unjust.

Prior to the FPEB, he consulted with counsel who advised him that if he  did
not  request  an  increase  disability  rating  and  he   obtained   another
physician’s statement indicating, in essence, that corrective surgery  could
be performed to resolve the condition, he would  have  a  strong  chance  of
being returned to duty.  During  the  FPEB  he  was  asked  if  his  medical
conditions prevented his performance  of  duty.   Since  he  did  not  fully
understand the full definition of “duty”, upon the  advice  of  counsel,  he
replied, “no.”  He was also told not to bring his cane to the  FPEB  or  the
physician statements concerning the severity  of  his  conditions.   He  now
realizes that he should have followed his instinct, provided the  additional
medical evidence, and requested an increased disability rating.

He is unemployable, suffers from chronic  and  severe  pain  throughout  his
entire body, has no one to provide care for him, and can  barely  take  care
of himself.

In support of the appeal, applicant submits extracts from his Department  of
Veterans Affairs (DVA) and service medical records,  and  a  statement  from
his parents.


Applicant’s complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  24  June  1986  and  entered
active duty.  He was progressively promoted to the grade of master  sergeant
(E-7).

A Medical Evaluation Board (MEB) convened on  15  June  2006,  to  determine
whether he should be continued on active duty due to numerous  absences  due
to  medical  procedures,  convalescent   leave,   or   to   attend   medical
appointments.  Based  on  the  diagnoses  of  back  pain,  neck  pain,  left
shoulder  pain,  left  and  right  foot  pain,  enlarged  breasts/pain  post
surgery,  and  groin  pain,  they  referred  him  to  an  Informal  Physical
Evaluation Board (IPEB).

On 2 August 2006, an IPEB convened and determined he was unfit and based  on
the diagnosis of chronic bilateral plantar fasciitis  status  post  surgical
repair, moderately severe, VASRD 5399-5310, recommended  he  be  permanently
retired with a combined compensable rating  of  40  percent.   He  disagreed
with the findings and recommendations of the IPEB, and requested that he  be
returned to duty.

On 30 August 2006, a Formal PEB (FPEB) convened and sustained  the  findings
and recommendations of  the  IPEB.   He  disagreed  with  the  findings  and
recommendations of the FPEB and  requested  his  case  be  referred  to  the
Secretary of the Air Force Personnel Council (SAFPC)  for  consideration  of
his request for an increased disability rating of 100 percent.

The  SAFPC  considered  the  applicant’s  request  and  concurred  with  the
disposition recommended by the FPEB.  On 29 November 2006,  SAFPC  announced
the Secretary’s decision to  direct  the  applicant’s  permanent  retirement
with a disability rating of 40 percent.

Effective 25 January 2007, he was  permanently  disability  retired  with  a
compensable disability rating of 40  percent.   He  completed  20  years,  7
months, and 1 day of active service.

________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPD recommends the application be denied since  the  preponderance  of
evidence reflects that no error or injustice occurred during the  disability
process.

The Department of Defense and the DVA disability evaluation systems  operate
under separate laws.  Under Title 10  the  military  must  determined  if  a
member’s  condition  renders  them  unfit  for  continued  military  service
relating to their office, grade, rank, or rating.  The fact  that  a  person
may have a medical condition does not mean the condition  is  unfitting  for
continued military service.  To be unfitting, the  condition  must  be  such
that it alone precludes the members from fulfilling their  military  duties.
Further, the disability is rated based on  the  member’s  condition  at  the
time of evaluation; in essence, a snapshot of their condition at that  time.
 Whereas, it is the DVA’s charge to pick-up  where  the  military  must,  by
law, leave off.  Under Title 38, the  DVA  may  rate  any  service-connected
condition based upon future employability or reevaluate based on changes  in
the severity of the condition, which often results in different  ratings  by
the two agencies.

The AFPC/DPPD evaluation is at Exhibit C.

The BCMR Medical Consultant is of the opinion  that  the  applicant’s  total
combined permanent disability percentage should be increased from 40  to  60
percent to reflect the severe nature  of  his  bilateral  foot  pain,  which
prevented him from  reasonably  performing  his  military  duties.   The  60
percent computation was  achieved  by  combining  a  30  percent  disability
rating for each foot, adding a 10 percent bilateral  factor,  and  rounding-
off to the nearest 10 percent.

The BCMR Medical Consultant states that evaluation boards  depend  upon  the
honesty and integrity of the participants in order to arrive at a  fair  and
equitable decision when assessing the level mental and physical  functioning
of Servicemembers.   Although  the  applicant  reportedly  put  his  medical
problems “on  the  back  burner”  his  performance  reports  attest  to  his
superior duty performance; a  key  determinant  of  his  fitness  to  serve.
Further, his demonstrated and  sustained  duty  performance  is  incongruent
with a determination of his  “unemployability.”   While  the  applicant  may
have sought treatment for a number of chronic medical conditions during  his
military career,  there  is  no  substantial  evidence  that  any  of  these
conditions, either individually or  collectively,  would  have  resulted  in
terminating his career, but not for  his  persistent  bilateral  foot  pain.
Although the military limited  its  unfit  finding  to  his  bilateral  foot
condition, the  DVA,  operating  under  Title  38,  is  empowered  to  offer
compensation for any service-connected medical condition, without regard  to
its demonstrated or  proven  impact  on  the  service  member’s  ability  to
perform military duties.

The BCMR Medical Consultant evaluation is at Exhibit D.

________________________________________________________________



APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the evaluations were forwarded to  the  applicant  on  25
January 2008, for review and comment, within 30 days.  However, 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 timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice to warrant increasing the applicant’s  total
combined permanent disability percentage from 40 to 60  percent.   The  BCMR
Medical Consultant has thoroughly reviewed the evidence  of  record  and  in
view of the  statement  from  the  evaluating  podiatrist  highlighting  the
“severe” nature of the  applicant’s  bilateral  foot  pain,  recommends  his
total combined permanent disability percentage be increased to  60  percent,
noting that while he may have sought  treatment  for  a  number  of  chronic
medical conditions during his  military  career,  there  is  no  substantial
evidence that any of these conditions, either individually or  collectively,
would have resulted in terminating his career, but not  for  his  persistent
bilateral foot pain.  We agree.  Therefore,  we  recommend  his  records  be
corrected to the extent  indicated  below.   The  total  combined  permanent
disability rating of 60 percent was  achieved  by  combining  a  30  percent
disability rating for each foot, adding a 10 percent bilateral  factor,  and
rounding-off to the  nearest  10  percent  in  accordance  with  established
procedures.

4. Notwithstanding  the  above,  insufficient  relevant  evidence  has  been
presented to warrant increasing the applicant’s permanent disability  rating
to 100 percent.  Although the applicant contends his other medical  problems
should  have  resulted  in  a  rating  of  100  percent   because   he   was
unemployable, as noted above, but for his persistent  bilateral  foot  pain,
he had no other medical conditions which rendered him unfit.  Moreover,  his
demonstrated  and  sustained  duty  performance,  as   documented   in   his
performance reports rendered prior to his retirement, is  inconsistent  with
an “unemployable” determination.  While he may have sought treatment  for  a
number of chronic medical problems during his  Air  Force  career,  we  find
insufficient evidence to establish that  any  of  these  conditions,  either
individually or collectively, rendered him unfit, except for his  persistent
bilateral foot pain.  We are also not  persuaded  that  he  was  denied  any
rights to which entitled during the DES process.  To the  contrary,  he  was
represented by counsel, submitted  evidence  in  his  own  behalf,  and  was
afforded  all  rights  to  which  entitled.   There  has  been  no   showing
otherwise.  Although the Air Force  is  required  to  rate  disabilities  in
accordance  with  the  DVA  Schedule  for  Rating  Disabilities,  the   DVA,
operating under a totally separate system with a different statutory  basis,
compensates for any and all  service-connected  medical  conditions  to  the
degree  they  interfere  with  a  member’s  future  employability,   without
consideration  of  fitness.   Whereas,  the  Air  Force,  rates  a  member's
disability based on the degree of severity of  the  unfitting  condition  at
the time of separation.  In the applicant’s case, the Air Force limited  its
unfit finding to his bilateral  foot  condition  since  that  was  the  only
condition limiting the performance of his military duties.  In view  of  the
foregoing, and in the absence of  evidence  to  the  contrary,  we  find  no
compelling  basis  to  recommend  increasing   the   applicant’s   permanent
disability percentage to 100 percent.

________________________________________________________________

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 24 January 2007,  the  diagnosis  in  his  case  was  chronic
bilateral  plantar  fasciitis  status  post  surgical  repair,  severe,   VA
Diagnostic Code 5399-5310, rated at 60%.

      b.    He was permanently retired by  reason  of  physical  disability,
effective 25 January 2007, with  a  total  combined  compensable  disability
rating of 60%.

________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2007-
01005 in Executive Session on 18 March 2008, under the provisions of AFI 36-
2603:

            Ms. Charlene M. Bradley, Panel Chair
            Mr. Mark J. Novitski, Member
            Mr. Kurt R. LaFrance, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 19 Mar 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPD, dated 24 May 07.
     Exhibit D.  Memorandum, BCMR Medical Consultant,
                 dated 24 Jan 08.
     Exhibit E.  Letter, SAF/MRBR, dated 25 Jan 08.




                                   CHARLENE M. BRADLEY
                                   Panel Chair



AFBCMR BC-2007-01005




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 (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to XXXXXXX, be corrected to show that:

      a.    On 24 January 2007, the diagnosis in his case was chronic
bilateral plantar fasciitis status post surgical repair, severe, VA
Diagnostic Code 5399-5310, rated at 60%.

      b.    He was permanently retired by reason of physical disability on
25 January 2007, with a total combined compensable disability rating of
60%.







            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency