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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