RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-03735
COUNSEL: NONE
HEARING DESIRED: YES
________________________________________________________________
APPLICANT REQUESTS THAT:
His disability discharge be changed to a medical retirement.
_______________________________________________________________
APPLICANT CONTENDS THAT:
The initial Physical Evaluation Board (PEB) findings rated him
at 10 percent due to his L5/S1 Spinal Fusion.
The PEB used outdated and incorrect medical information at the
time of the PEB decision.
In Mar 2009 the physical therapy clinic conducted range of
motion testing and his flexion measured 76.5 degrees. Since
the measurement was not taken by Dr. R., it was not used in his
PEB.
Between Mar and Jul 2009 his commander ordered him to run.
Despite his documented medical history and risk of re-injury
from high impact exercise, his requests for ergometry tests
were blatantly ignored. His back conditions rapidly declined
after a brief period of success.
As the PEB convened, his status was rapidly deteriorating and
he would not have been able to accomplish the flexion motion
noted in the PEB findings. He explained this in great detail
in his Letter of Exception to the PEB, dated 22 Jul 2009.
The initial PEB did not account for his severe sciatica which
attributed to his back condition. The sciatica alone was
disabling and debilitating preventing him from carrying out
most if not all physical duties required by the Air Force. The
neuropathy caused major damage to the sensory and motor
functions of his left leg. The sciatica also impacted his
sexual function and bladder incontinence. The Department of
Veterans Affairs (DVA) recognized this in their rating
decision. The DVA rated his neuropathy secondary to
degenerative disc disease at 40 percent disabling. The
neuropathy was a primary cause for his pain and should have
been considered in the PEB findings. The DVA ultimately rated
his degenerative disc disease post L5/S1 discectomy and spinal
fusion at 20 percent with secondary residuals at a combined 60
percent rating.
In support of his request, the applicant provides copies of his
DD Form 214, Certificate of Release or Discharge from Active
Duty; VA Form 3288, Request for and Consent to Release of
Information from Individual's Records; AF IMT FORM 100, Request
and Authorization for Separation; DD Form 294, Application for
a Review by the Physical Disability Board of Review (PDBR) of
the Rating Awarded Accompanying a Medical Separation from the
Armed Forces of the United States; AF Form 356, Findings and
Recommended Disposition of USAF Physical Evaluation Board; Form
W-2, Wage and Tax Statement, SAF/MRBR (PDBR Intake Unit)
memorandum, Letter of Exception, and DVA Rating Decision.
The applicant's complete submission, with attachments, is at
Exhibit A.
_______________________________________________________________
STATEMENT OF FACTS:
On 29 Dec 2009, the applicant was determined unfit for
continued military service and was discharged with severance
pay effective 26 Feb 2010. He served 10 years and 18 days of
active service.
The remaining relevant facts pertaining to this application are
contained in the letters prepared by the appropriate offices of
the Air Force at Exhibits C and D.
_______________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPSD recommends denial. DPSD states the Department of
Defense and the DVA disability evaluation systems operate under
separate laws. Under Title 10, USC, the PEB must determine 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 member from fulfilling his military duties. If
the board renders a finding of unfit, the law provides
appropriate compensation due to the premature termination of
the members career. Further, it must be noted the USAF
disability board must rate disabilities based on the member's
condition at the time of evaluation; in essence a snapshot of
their condition at that time. It is the charge of the DVA to
pick up where the Air Force 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 a condition. This often results in
different ratings by the two agencies. The applicant claims
that the Informal PEB (IPEB) made a recommendation based on
medical evidence that was over one year old by the time they
reviewed the case. The IPEB reviewed the applicant's case on
27 Oct 2009. The case included Surgery/Neurosurgery outpatient
notes dated 27 Apr 2009 from the surgeon who operated on the
applicant in October 2008 and a narrative summary dated 15 Jul
2009.
The IPEB found the applicant unfit and recommended discharge
with severance pay with a disability rating of 10 percent.
On 5 Nov 2009, the applicant non-concurred with the findings
and requested a formal hearing with counsel.
On 27 Jan 2010, the applicant waived his rights to a formal
hearing at which time he could have submitted more current
medical documentation. His third appeal option would have been
to appeal to the Secretary of the Air Force Personnel Council.
However, he waived those options and concurred with the IPEB.
A separation date was established for 26 Feb 2010.
The complete DPSD evaluation is at Exhibit C.
The BCMR Medical Consultant recommends granting the applicant's
request for changing his medical discharge to a medical
disability retirement with a combined disability rating of
30 percent, effective on his previously established date of
separation.
The Medical Consultant opines the applicant likely reported a
different set of clinical complaints and demonstrated a greater
degree of impairment, e.g., thoraco-lumbar range of motion,
resulting in different rating assessments by the DVA, when
matched against his documented service complaints and medical
evaluations. Although there is a reference to the applicant's
sciatica symptoms in the service evaluation, this symptom was
reported to occur only in the context of running greater than
1.5 miles or lifting greater the 25 pounds; which the applicant
was advised to discontinue.
The Medical Consultant acknowledges the applicant's reported
associated sciatica symptoms and opines this condition should
have been listed, at a minimum, as associated with the
applicant's degenerative disc disease, status-post discectomy
and fusion at L5-S1; or if the PEB determined it was not
unfitting, it should have been listed under Category II, on the
AF Form 356.
The Medical Consultant opines if the applicant's lumbar
condition can be characterized as unfitting, reasonable doubt
has been raised for including his left lower extremity as
possibly unfitting for the same reason; although improved while
at rest. For disability rating purposes and based upon the
service medical evidence, the applicant's sciatica symptoms
appear to have been no greater than mild, if not pain free, at
the time of his MEB.
In conclusion, the Medical Consultant opines that it is likely
that the applicant indeed reported more severe symptoms and
demonstrated a much greater reduction in his spine range of
motion at his DVA Compensation and Pension examination than
found during his service evaluations. The Medical Consultant
therefore concedes some ambivalence regarding inclusion of the
applicant's sciatica symptoms as individually unfitting. After
a closer look at the concluding remarks in the applicant's MEB
narrative summary, and the "significant physical restrictions
[that] remain," the Medical Consultant gives favorable
consideration for an independent unfit finding for the
applicant's associated left lower extremity sciatica, with the
assignment of a 20 percent disability rating. When combined
with the 10 percent disability rating for lumbar degenerative
disc disease a 30 percent disability rating is achieved,
rendering the applicant retirement eligible.
The complete BCMR Medical Consultants evaluation, with
attachments, is at Exhibit D.
_______________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
He disputes the HQ AFPC/DPSD advisory opinion, dated 25 Oct
2011. On 9 Mar 2009, he notified his physical therapy team and
primary care manager (PCM), via e-mail that he had been running
and physically active to meet the demands and recommendations
of leadership and physical therapy. He communicated his recent
achievements, but at a cost of additional pain. He did not
receive a reply from his PCM, nor objections or recommendations
from physical therapy. His condition continued to deteriorate
and he continually expressed this as noted in his Letter of
Exception to the MEB and his conversation with Dr. M. on 27 Apr
2009.
Dr. M. proposed duty limitations of "no running over 1.5 miles
and must be completed on soft surface and the patient is to
lift no greater than 25 pounds. It was not until 26 May
2009 that his duty limitations reflected no running greater
than 100 meters and no lifting, pushing or pulling greater than
20 pounds. He followed the duty limitations; however his
condition already declined.
It is conceivable he progressed shortly after his surgery and
physical therapy, however, he mentioned to his doctors and
physical therapist he was experiencing aggravation and
limitations similar to those he experienced before surgery.
His passing physical fitness score is testimony to the fact he
went through rigorous activity to achieve strict Air Force
fitness standards.
The Air Force failed to provide adequate rest during and after
his recovery. This, coupled with a restricted yet demanding
physical fitness regime hampered and reversed his post
operative progress, causing the decline in his health and
rendering him increasingly disabled reflective of his medically
documented and diagnosed skeletal and neurological issues
He does not dispute that he waived his right to appeal the IPEB
findings; however, the reasons behind the withdrawal of his
appeal and acceptance of their findings were that page four of
the "USAF Disability Evaluation System (DES) Fact Sheet, dated
Mar 2009, states "If you feel an error or injustice occurred
during the processing of your case through the DES, you may
apply to the Air Force Board for Correction of Military Records
(AFBCMR)."
His initial estimated time of separation from the Air Force was
scheduled for 29 Apr 2010 and he was never advised that if he
appealed the findings he would have been extended on active
duty until the PEB decision was completed. Without counseling
he assumed if the PEB was not complete he may be forced from
active duty before the PEB decision.
He provides the current rating decision from the DVA, dated
17 Sep 2010, diagnosing the severity of his disabling and
worsening conditions from military service. The medical
evidence used and referenced by the DVA is dated 10 Aug 2010,
less than 180 days after he was discharged. The preponderance
of medical evidence coupled with expert medical opinion weigh
heavily in his favor and he requests his discharge be
overturned favoring disability retirement of 30 percent as
recommended by the BCMR Medical Consultant.
His complete response, with attachments, is at Exhibit F.
_______________________________________________________________
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 an error or injustice warranting
corrective action. The thorough analysis performed by the BCMR
Medical Consultant has raised sufficient doubt as to whether
the applicant's left lower extremity was an unfitting condition
at the time of his discharge. As such, we believe the
applicant's medical condition may not have been rated properly
at the time of his separation. Therefore, we accept the BCMR
Medical Consultant's recommendation and, in the interest of
equity and justice, recommend the applicants records be
corrected to reflect that he was medically retired from the Air
Force by reason of a physical disability rather than
Disability, Severance Pay, 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 25 February 2010, 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; that the diagnosis in his case was Paralysis of the
Sciatic Nerve, VASRD Code 8520, rated at 20 percent; that the
compensable percentage was 30; that the degree of impairment
was moderate; that the disability was not due to intentional
misconduct or willful neglect; that the disability was not
incurred during a period of unauthorized absence; and that 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. On 26 Feb 2010, he was not separated by reason of
physical disability, with entitlement to severance pay, but on
that date, he was permanently retired by reason of physical
disability.
_______________________________________________________________
The following members of the Board considered this application
in Executive Session on 10 Jul 2012, under the provisions of
AFI 36-2603:
, Panel Chair
, Member
, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered in AFBCMR BC-
2011-03735:
Exhibit A. DD Form 149, dated 19 Sep 2011, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, HQ AFPC/DPSD, dated 25 Oct 2011.
Exhibit D. Letter, BCMR Medical Consultant, dated 2 May
2012, w/atchs
Exhibit E. Letter, SAF/MRBC, dated 3 May 2012.
Exhibit F. Letter, Applicant, undated, w/atchs.
Panel Chair
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