RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2009-00790
		COUNSEL:  
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His disability rating for his permanent disability retirement be changed from 30 percent to 60 percent.  

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APPLICANT CONTENDS THAT:

His condition has had an acute worsening since his retirement, which was possible to predict at the time of the Formal Physical Evaluation Board (FPEB) decision.  

In support of his appeal, his counsel provides a Petition for Relief, a petitioner statement, medical records, and a Department of Veterans Affairs (DVA) decision.  

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

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STATEMENT OF FACTS:

The applicant entered military service on 31 May 2000, and was permanently retired on 28 October 2005 with a 30 percent disability rating, after undergoing a Medical Evaluation Board (MEB) and PEB determination of his fitness to serve due to recalcitrant uncreative colitis.  He served 5 years, 4 months, and 28 days of active duty.

On 8 March 2007, the DVA awarded the applicant a 60 percent disability rating for his condition of total colectomy and impairment of sphincter tone and bowel incontinence with chronic diarrhea.  

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C and F. 

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AIR FORCE EVALUATION:

AFPC/DPSD recommends denial of the applicant’s request.  DPSD states the Informal Physical Evaluation Board (IPEB) reviewed his case on 29 June 2005 and recommended discharge with severance pay with a disability rating of 20 percent.  The applicant non-concurred with the findings on 5 July 2005, and requested a review by the FPEB with representation by counsel.  The FPEB reviewed the case on 11 August 2005 and recommended permanent retirement with a 30 percent disability rating.  The applicant concurred with the findings.  

DPSD indicates that Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a “snap-shot” of their condition at the time.  The DVA operates under a different law and may rate any service-connected condition based upon future employability or to reevaluate based on changes in the severity of the condition.  This often results in different ratings by the two agencies.  

The complete DPSD evaluation is at Exhibit C.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel responded that DPSD essentially relied upon the fact the applicant accepted the findings of the FPEB and ignored the actual argument raised that both the applicant and the FPEB were unaware of the true extent of his impairment and thus, corrective action is merited in this case.  The applicant has provided ample medical evidence showing he suffers from malnutrition and significant impairment of sphincter control and bowel incontinence with chronic diarrhea secondary to his total colostomy.  Despite his treatment, he experiences impairment of sphincter control and chronic diarrhea with leakage more than two-thirds of each day.  This evidence shows the true extent of the applicant’s impairment which was not known by the applicant or the FPEB when the 30 percent disability rating was recommended on 11 August 2005.  Had this information been known, the panel would have assigned a 60 percent disability rating to the applicant.  

The Counsel requests that given the insidious nature of the applicant’s disease, they specifically request the Board obtain a medical review of their petition in order to ensure the best possible medical opinion regarding the evidence under review.  

The counsel’s rebuttal is at Exhibit E.  

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BCMR MEDICAL CONSULTANT EVALUATION:

The BCMR Medical Consultant recommends granting the applicant relief by changing his permanent retirement disability rating to 60 percent.  The BCMR Medical Consultant indicates the applicant has provided evidence of a post-service medical assessment, dated 10 April 2006, that reflects the presence of “pouchitis,” or inflammatory changes, within the surgically created reservoir, or ileal pouch, at the ileoanal anastamosis, or point of reconnection of small bowel to the anal canal.  The question is whether the aforementioned evidence, and that which has been subsequently acquired after the applicant’s retirement, e.g., pouchitis discovered on 10 April 2006, “frequent bleeding of the rectum” as of 22 May 2008, “recurrent pouchitis with nocturnal incontinence,” established on 29 September 2008, and “malnutrition,” secondary to total colectomy and impairment of sphincter control warrants a change in the rating disposition of the applicant’s case.  

The BCMR Medical Consultant states that military disability rating boards, when finding a service member unfit for a particular medical condition, must then determine the severity of the condition for the purpose a applying the appropriate disability rating award.  Should a medical condition rate at least 30 percent, the individual becomes eligible for retirement.  However, a determination must then be made whether the retirement action should be permanent versus temporary (placement on the Temporary Disability Retired List - TDRL).  A TDRL determination is made for conditions rated at least 30 percent, but are not yet stabilized.  Members with conditions found not yet stabilized are placed in TDRL status for a statutory established period of no greater than five years, with periodic intervening re-evaluations (usually every 18 months) at which time an interim assessment of the severity and level of stability of the condition is made.  Medical conditions that are determined to have been stabilized and not expected to change over the next several years (five years listed as policy) generally result in permanent retirement.  Unfortunately, the expected clinical course of some medical conditions is difficult to predict, utilizing this five-year yard stick to the extent that it cannot be determined with a reasonable degree of certainty, whether the condition will recur, worsen, or manifest with an entirely new set of symptoms over time.  

In the applicant’s case, he developed ulcerative colitis.  By removing his entire colon, the anatomic structure causing his primary illness, one would expect the source of illness to have been eliminated and the course of his illness to be stabilized.  Thus it would be reasonable for a decision to permanently retire the applicant at the time of his final disposition.  Rating determinations made within the Military Disability Evaluation System (excluding any recent Congressionally-mandated review boards) are based upon the “snap-shot” in time assessment of the medical condition; unlike the DVA, operating under Title 38 United States Code; with the authorization to conduct periodic evaluations for the distinct purpose of adjusting the disability rating award, should the severity of the given medical condition vary or worsen over time.  In the applicant’s case, he has developed a residual complication of his surgical treatment, “pouchitis,” or inflammation of the surgically created bowel reservoir, or pouch, at the ileo-rectal anastamosis; that has consequently resulted in reported continual difficulty managing bowel movement due to leakage.  While a 60 percent disability rating would be more appropriate for the applicant’s condition in its current state, there is insufficient evidence to reflect this should have been the disability rating applied at the time of his retirement.  If the applicant had been placed on TDRL, this would have allowed for a change in the disability rating award (if the condition had worsened at any interim assessment point).  However, it is the BCMR Medical Consultant’s opinion that more likely than not, the applicant would not have been placed on the TDRL, to await any unexpected complications of his disease over time.  However, the BCMR Medical Consultant does not wish to deprive the applicant of the disability rating that he deserves, acknowledging the proximal terminology utilized that separates a 30 percent rating (occasional involuntary bowel movements - necessitating wearing a pad) from a 60 percent rating (extensive leakage and fairly frequent involuntary bowel movements); particularly noting his physician recorded the applicant’s “accidents at night 50 percent of the time” on his 3 April 2006 preliminary evaluation.  However, this evaluation was conducted six months following the applicant’s retirement; well outside of the “snap-shot” in the assessment period.  Yet, the Board must ponder whether the applicant represents the unexpected unstable applicant with a greater degree of debilitation relatively soon following his retirement.  While the BCMR Medical Consultant has presented a sound legal argument for not altering the applicant’s disability rating award, he is troubled by the reality the applicant’s medical condition was not sufficiently stabilized.  Therefore, the BCMR Medical Consultant firmly believes the benefit of doubt should go in favor of the applicant in this unique set of circumstances.  

The complete BCMR Medical Consultant’s evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF THE BCMR MEDICAL CONSULTANT’S EVALUATION:

The applicant’s counsel responds that they concur with the analysis and recommendation of the BCMR Medical Consultant to change the applicant’s permanent retirement rating to 60 percent disabling.  

The counsel’s response is at Exhibit H.

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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 probable injustice.  Even though the evidence does not establish that the actions taken by Air Force officials were improper at the time of the applicant’s retirement for permanent disability, we tend to agree with the opinion by the BCMR Medical consultant that given the relatively short period of time following his retirement, his condition worsened to the extent that questions whether the applicant should have been retained on the TDRL versus permanently retiring him.  After considering the totality of the evidence before us, the Board believes that an injustice may exist; and accordingly, it would be in the best interest of the Air Force and the applicant to favorably consider his request.  Therefore, it is the Board’s opinion that in order to provide him fair and equitable relief, his records should be corrected as indicated below.

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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 11 August 2005, 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; the diagnosis in his case was total colectomy with impairment of sphincter tone and bowel incontinence with chronic diarrhea, rated at 60 percent; the compensable percentage was 60 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; the disability was received in the line of duty in time of war or national emergency; and was not a direct result of armed conflict or caused by an instrumentality of war.  
      
      b. On 28 October 2005, he was permanently retired under the provisions of 10 United States Code 1201, with a permanent disability rating of 60 percent, rather than 30 percent.

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The following members of the Board considered this application in Executive Session on 9 June 2008, under the provisions of AFI 362603:

	, Panel Chair
	, Member
	, Member


All members voted to correct the records, as recommended.  The following documentary evidence for AFBCMR Docket Number BC-2009-00790 was considered:

      Exhibit A.  DD Form 149, dtd 19 Jan 09, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSD, dtd 10 Feb 09.
	Exhibit D.  Letter, SAF/MRBR, dtd 20 Mar 09.
	Exhibit E.  Counsel’s Rebuttal, dtd 6 Apr 09.
      Exhibit F.  Letter, BCMR Medical Consultant, dtd 6 May 09, 
        w/atchs.
	Exhibit G.  Letter, SAF/MRBR, dtd 8 May 09.
	Exhibit H.  Counsel’s Response, dtd 20 May 09.




								
								Panel Chair




AFBCMR BC-2009-00790




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 APPLICANT be corrected to show that: 

            a. On 11 August 2005, 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; the diagnosis in his case was total colectomy with impairment of sphincter tone and bowel incontinence with chronic diarrhea, rated at 60 percent; the compensable percentage was 60 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; the disability was received in the line of duty in time of war or national emergency; and was not a direct result of armed conflict or caused by an instrumentality of war.  
            
            b. On 28 October 2005, he was permanently retired under the provisions of 10 United States Code 1201, with a permanent disability rating of 60 percent, rather than 30 percent.





                                                                            
                                                                            Director
                                                                            Air Force Review Boards Agency
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