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AF | BCMR | CY2010 | BC-2009-01580
Original file (BC-2009-01580.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-01580
            INDEX CODE:  108.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His original Physical Evaluation Board (PEB) findings be reevaluated and  he
be considered for a medical retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The medical evaluation data pertaining to his chronic Post Traumatic  Stress
Disorder (PTSD), headaches, lumbago, sleep apnea, and other conditions  were
not included during  his  original  PEB.   He  should  be  fully  rated  and
considered for permanent medical retirement from military service.

During  this  time  frame,  he  was  not  able  to  fully   comprehend   the
ramifications of his concurrence with the  Informal  PEB  recommendation  of
his discharge.  If the added conditions had been included in  his  IPEB  and
fully  rated  using  the  Veterans  Administration   Schedule   for   Rating
Disabilities (VASRD) he would  have  been  medically  retired  from  service
instead of discharged with severance pay.  He was  not  fully  counseled  on
the Medical Evaluation Board (MEB) and PEB processes.  If he had known  that
several of his medical conditions were not being considered and included  in
his medical evaluation he would  never  have  agreed  to  a  discharge  with
severance pay.

In support of the application,  the  applicant  submits  his  DD  Form  214,
Certificate of Release or Discharge from Active Duty.

The applicant's complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6 Feb 01.

In a letter dated 12 Oct 06, his commander recommended he be separated  from
service  based  upon  the  applicant’s  communication   difficulties.    His
commander stated the difficulties occurred when the  applicant  was  exposed
to secondary explosions of a munitions  storage  site  in  the  wake  of  an
airbase attack while deployed to the Middle East.   After  the  attack,  the
applicant suffered from substantial hearing loss  and  constant  ringing  in
his ears which continued to negatively affect his  ability  to  communicate.
The constant ringing impacted his ability to sleep.   He  was  removed  from
his primary duties on the flight line in order to minimize his  exposure  to
noise.  Although the move helped, it did not totally eliminate  the  ringing
in his ears.  The use of hearing assist  devices  improved  his  ability  to
verbally communicate;  however  he  continued  to  have  difficulty  hearing
verbal instructions, especially in environments with background noise.

On 13 Oct 06, an MEB diagnosed the applicant with Sensory Hearing  Loss  and
Tinnitus, occurring in the Line of Duty (LOD) and referred him to a PEB.

In a letter dated 16 Oct 06, the applicant agreed  with  the  MEB  findings;
however, he indicated some information had been left out,  i.e.,  headaches.
He also stated he is able to hear the alarms but cannot tolerate the sound.

On 30 Nov 06, an IPEB found the applicant had an unfitting  condition  which
was  compensable  and  ratable.   The  IPEB  recommended   the   applicant’s
discharge with severance pay with a disability rating of 10 percent.   On  1
Dec 06, the applicant agreed with the findings and  recommendations  of  the
PEB.  On 4 Dec 06, the Secretary of  the  Air  Force  (SECAF)  directed  the
applicant be separated from active service  for  physical  disability  under
the provisions of 10 USC 1203, with severance  pay  computed  under  Section
1212 of this title.

The applicant was discharged on 12 Jan 07.  He  served  5 years,  11  months
and 7 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD  recommends  denial.   DPPD  states  service-connected  medical
conditions incurred, but not found unfitting while still on active duty  are
not compensated under Title 10, USC;  however,  under  Title  38,  USC,  the
Department of Veterans Affairs  (DVA)  may  compensate  veterans  for  these
conditions.  The DVA is chartered to  provide  continual  medical  care  for
veterans once they leave active duty.  The DVA may increase  or  decrease  a
member’s  disability  rating  based  on  the  seriousness  of  the   medical
condition throughout his or her life span.

The IPEB reviewed the request and determined that the conditions the  member
wanted rated were, in  and  of  themselves,  not  unfitting  conditions  and
therefore would not have increased the disability  rating  any  higher  than
the 10 percent he was already awarded for his neurosensory hearing loss  and
tinnitus.  DPPD concludes the preponderance of  evidence  reflects  that  no
error or injustice occurred during the disability process.

The complete DPPD 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 21  Aug
09, for review and comment within 30 days.  As of  this  date,  this  office
has received no response (Exhibit D).

_________________________________________________________________

BCMR MEDICAL CONSULTANT’S EVALUATION:

The BCMR Medical Consultant recommends denial.

The Medical Consultant states there is no documentation on any of the  other
conditions the applicant lists which were of such severity that  would  have
led to an evaluation of continued fitness for duty as required by law.   The
MEB and  IPEB  processes  were  initiated  solely  due  to  the  applicant’s
inability to satisfactorily perform his duties based  on  the  hearing  loss
and persistent tinnitus.  While the DVA may  separately  rate  any  and  all
medical conditions the applicant has, the military  can  only  evaluate  and
rate those conditions which render a service member unfit  to  perform  duty
at the time of the determination.

The military  service  disability  systems  are  complementary  systems  not
intended  to  be  duplicative.   Operating  under  different  laws  with   a
different purpose, independent decisions  and  determinations  made  by  the
Department of Defense (DoD) under Title 10 USC and the DVA  under  Title  38
are not binding on the other.  The mere  presence  of  a  medical  condition
does not qualify a member for disability evaluation.

Title 38 takes into account the fact that  a  person  can  acquire  physical
conditions that, although not unfitting  at  the  time  of  separation,  may
later progress in severity and alter the individual’s lifestyle  and  future
employability.  With this in mind, Title 38,  USC,  which  governs  the  DVA
compensation system, was written to allow awarding compensation ratings  for
conditions that were not unfitting for  military  service  at  the  time  of
separation.

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

_________________________________________________________________

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

A copy of the BCMR Medical Consultant’s  evaluation  was  forwarded  to  the
applicant on 18 Dec 09, for review and comment within 30 days.  As  of  this
date, this office has received no response (Exhibit D).

_________________________________________________________________

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 opinion and recommendation  of  the  BCMR  Medical  Consultant  and
adopt his rationale as the basis for our conclusion that the  applicant  has
not been the victim of an error or injustice.  Therefore, in the absence  of
evidence to the contrary, we find no basis to recommend granting the  relief
sought in this application.


_________________________________________________________________

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 this application in  Executive
Session on 25 Feb 10, under the provisions of AFI 36-2603:

      Panel Chair
      Member
      Member

The following documentary evidence was considered in AFBCMR BC-2009-01580:

    Exhibit A.  DD Form 149, dated 17 Apr 09, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPD, dated 24 Jun 09.
    Exhibit D.  Letter, SAF/MRBR, dated 21 Aug 09.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 11 Dec 09.
    Exhibit F.  Letter, SAF/MRBR, dated 18 Dec 09.




                                   Panel Chair

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