RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-00066 

 INDEX CODE: 108.00 

 

  COUNSEL: NONE 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

THE APPLICANT REQUESTS THAT: 

 

His disability discharge with severance pay (DWSP) be changed to 
a medical retirement. 

 

________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

Because the Department of Veterans Affairs (DVA) rated him at 
60 percent disabled, he believes the 20 percent rating, with 
DWSP he received from the Air Force is unjust. Based upon the 
DVA’s rating of 60 percent and his over 16 years of service, he 
should be medically retired. 

 

In support of his appeal, the applicant provides a copy of the 
Formal Physical Evaluation Board (FPEB) findings, dated 
11 Dec 08 and his DVA Rating Decision. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant entered active duty in the Regular Air Force on 
23 Feb 93. He was progressively promoted to the rank of 
technical sergeant with an effective date and date of rank of 
1 Oct 06. 

 

In April 2008, a Medical Evaluation Board diagnosed the 
applicant with Intractable Low Back Pain and referred his case 
to the Informal PEB (IPEB). After a review of the applicant’s 
records the IPEB diagnosed the applicant with Intractable Low 
Back Pain to due Degenerative Arthritis and recommended a 
disability rating of 20 percent, with DWSP. The applicant non-
concurred with the findings of the IPEB and requested a formal 
hearing by the FPEB. On 11 Dec 08, the FPEB reviewed the 
applicant’s case and also recommended DWSP, with a disability 
rating of 20 percent. On 13 Jan 09, the applicant concurred 
with the findings of the FPEB. 


 

The applicant was disability discharged, on 26 Apr 09, under the 
provisions of AFI 36-3212, with a compensable rating of 
20 percent, DWSP. He was credited with 16 years, 2 months, and 
6 days of active duty service. 

 

________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

AFPC/DPSD recommends denial, stating, in part, the preponderance 
of evidence reflects that no error or injustice occurred during 
the disability process. 

 

They note, the Department of Defense (DoD) and the DVA 
disability evaluation systems operate under separate laws. 
Under Title 10, United States Code (USC), the PEBs must 
determine if a member’s condition renders them unfit for 
continued military service relating to their office, grade, 
rank, or rating. The fact 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 member from fulfilling their military 
duties. Further, the Air Force disability boards must rate 
disabilities based on the member’s condition at the time of 
evaluation; in essence a snapshot of their condition at the 
time. It is the charge of the DVA to pick up where the Air 
Force must, by law, leave off. Under Title 38, USC, the DVA may 
rate any service-connected condition based upon future 
employability or reevaluate based on changes in the severity of 
a condition. This often results in different ratings by the two 
agencies. 

 

The complete AFPC/DPSD evaluation is at Exhibit C. 

 

The BCMR Medical Consultant recommends the applicant’s 
disability rating be increased from 20 to 40 percent based upon 
application of the Veterans Administration Schedule for Rating 
Disabilities (VASRD) code 5242 criteria. 

 

He notes, to accurately assess the applicant's functional 
impairment, the FPEB requested additional detailed functional 
assessment to assist with an accurate disability rating. The 
request included specifics on incapacitating pain episodes from 
the applicant's primary care physician manager (PCM) documenting 
events including the frequency of events and whether or not 
quarters or work excusals were provided. On 22 September 2008, 
the President of the FPEB sent a message to the applicant's PCM 
requesting specific details relating to the "incapacitating back 
pain. In response, the PCM replied that the applicant "has 
experienced an average of 3-4 days of incapacitating back pain 
per month, for a total of 37 days (approximately 5 weeks) in the 
last year (2007-2008).” Also, in a follow on message, the PCM 
stated that the applicant had only been placed on quarters once 


by a physician. The other work excusals were from his 
supervisor. In explanatory notes attached to VASRD 5242, the 
text mentions, "For purposes of evaluation under diagnostic code 
5243, an incapacitating episode is a period of acute signs and 
symptoms due to intervertebral disc syndrome that requires bed 
rest prescribed by a physician and treatment by a physician." 
The BCMR Medical Consultant states that the requirement of 
prescribing bed rest by a physician helps ensure the integrity 
of accurately defining an "incapacitating episode" and allows a 
medical professional to make the determination and prescribe the 
appropriate medical treatment. While the supervisor likely 
excused the applicant from work due to his lower back pain, it 
does not necessarily equate to an incapacitating event as 
defined in the rating scale. However, the requirement of 
"incapacitation back pain" to be documented by a physician may 
also be impractical at the time incapacitation determination 
when the employee presents for work. The BCMR Medical 
Consultant advises that the applicant not be penalized when a 
'go home and rest' action from a medically untrained supervisor 
was given. 

 

Therefore, the number of incapacitating days, "an average of 3-4 
days of incapacitating back pain per month, for a total of 
37 days (approximately 5 weeks) in the last year (2007-2008)" 
should be used in the rating decision. The BCMR Medical 
Consultant recognizes that incapacitation was not confirmed by a 
physician in all but one case. However, a specific number of 
incapacitating events were confirmed by the applicant's PCM to 
the FPEB. Based upon the number of incapacitating events, the 
BCMR Medical Consultant recommends a 40% rating instead of the 
20% rating. This rating decision coincides with incapacitating 
intervertebral disc syndrome episodes having a total duration of 
at least 4 weeks but less than 6 weeks during the past 12 months 
contained within the explanatory notes under VASRD Code 5242. 
While the applicant's request for 60% rating is not recommended, 
the 40% rating is medically appropriate. 

 

The complete BCMR Medical Consultant evaluation, with 
attachments, is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 3 September 2010 for review and comment within 
30 days. As of this date, no response has been received by this 
office (Exhibit E). 

 

________________________________________________________________ 
 
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 warranting a 
change in the applicant’s LOD determination. Based on the 
available evidence of record and that provided by the applicant, 
we believe some relief is warranted. We note the comments from 
the Air Force office of primary responsibility (OPR); however, 
the BCMR Medical Consultant opines that based on the number of 
incapacitating events of back pain per month, recommends a 
disability rating of 40 percent rather than the 20 percent is 
appropriate. Therefore, based on the totality of the facts and 
circumstances of the applicant’s case; we agree with the opinion 
and recommendation of the BCMR Medical Consultant, and recommend 
the applicant’s record as indicated below. 

 

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 RECOMMENDS THAT: 

 

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

 

 a. On 26 April 2009, 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 Intervertebral Disc 
Syndrome VASRD code 5243, rated at 40%; the compensable 
percentage was 40%; 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; and the disability was not received in the 
line of duty as a direct result of armed conflict or caused by 
an instrumentality of war. 

 

 b. As regards the election of Survivor Benefit Plan 
option(s), the record will be corrected in accordance with the 
member’s subsequently expressed preferences and/or as otherwise 
provided for by law or the Code of Federal Regulations. 

 

 c. He was not honorably discharged by reason of physical 
disability with entitlement to disability severance pay on 
28 April 2009, but, on that date he was discharged from active 


duty and permanently retired by reason of physical disability 
with a disability rating of 40 percent, effective 29 April 2009. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2010-00066 in Executive Session on 21 October 2010, 
under the provisions of AFI 36-2603: 

 

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

 

 Exhibit A. DD Form 149, dated 30 Nov 09, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSD, dated 2 Feb 10. 

 Exhibit D. Letter, BCMR Medical Consultant, 

 dated 7 Aug 09, w/atchs. 

 Exhibit E. Letter, SAF/MRBR, dated 3 Sep 10. 

 

 Panel Chair