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The PEB used outdated and incorrect medical information at the 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 member’s 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 Consultant’s 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 applicant’s 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