RECORD OF PRPOCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-04321 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His 10 percent disability rating for cervical spine arthritis 
with bilateral factors be increased to 40 percent as rated by 
the Department of Veterans Affairs (DVA). 

 

2. His bilateral pes planus which is mentioned on his AF Form 
356, Findings and Recommended Disposition of USAF Physical 
Evaluation Board (PEB) be rated. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. In Oct 09, he was medically retired and realized some of the 
conditions listed on his AF Form 618, Medical Board Report which 
rendered him unfit for further military service were omitted 
from his AF Form 356, or were listed as less severe than his 
actual diagnosis. 

 

2. Condition one on his AF Form 618 listed chronic Cervicalgia 
with upper extremity (UE) radiculopathy; however the AF Form 
356 listed it as Cervical Spine Arthritis but did not include 
the UE radiculopathy for either the left or right extremities. 
Also, it made no mention of the invertebral disc syndrome with 
degenerative disc disease at the C 5-6 and C 6-7 allowing for a 
bilateral factor of 20 percent not the 10 percent shown on his 
AF Form 356. The rating for the cervical spine condition should 
be 20 percent plus 10 percent each for the left and right 
radiculopathy for a total of 40 percent under VA Diagnostic 
Codes 5003, 5238, 5242, or 5243. 

 

3. Condition three on his AF Form 618 is listed as chronic ankle 
and foot pain secondary to bilateral subtalar coalition. There 
were two AF Forms 356 initiated because he did not feel his feet 
or ankle issues were clearly stated on the initial one. The 
first AF Form 356 (dated 2 Jun 09) listed bilateral acquired 
flat foot but nothing regarding the subtalar coalition. The 
second AF Form 356 (dated 2 Sep 09) correctly reflects the 
bilateral subtalar coalition but omitted the bilateral pes 
planus yet it was mentioned in the remarks section. The rating 
for condition three should be 20 percent (or higher depending on 
which diagnosis code is used) for bilateral subtalar coalition 
plus the 10 percent for bilateral pes planus for a total rating 


of 30 percent under VA Diagnostic Codes 5270, 5272, 5276 or 
5283. 

 

4. He felt like he was being rushed into making a decision to 
accept the findings and recommendations of the PEB. It also 
seemed like his legal counsel did not really care about the 
outcome of his case and would not give him any straight answers 
to his questions. 

 

In support of his request, the applicant provides copies of his 
AF Form 618, AF Forms 356, AF Form 1180, Action on Informal PEB 
Findings and Recommended Disposition; AFRC IMTs 348, Informal 
Line of Duty (ILOD) Determination; Radiologic Examinations 
Reports, and various other documents associated with his 
request. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant was mobilized from 16 Feb 91 to 28 Apr 06 in 
support of Operations DESERT SHIELD/DESERT STORM, ENDURING 
FREEDOM and IRAQI FREEDOM. He served in support of these 
Operations during the following periods: 16 Feb 91 to 31 Jul 09; 
14 Feb 03 to 13 Feb 04 and 16 Oct 05 to 28 Apr 06. 

 

On 20 Nov 05, an ILOD determination was initiated because he had 
a fracture of tibia and fibula. On 26 Apr 06, the applicant’s 
injury was determined to have existed prior to service (EPTS)-
Service Aggravated. 

 

On 18 May 07, an ILOD determination was initiated for the 
following reasons: 

 

 a. Other congenital anomalies of limbs Left Talocalcaneal 
coalition with associated degenerative changes. On 27 Jun 07, 
the applicant’s disease was determined to be in the LOD. 

 

 b. Flat foot and pes planus, aggravated. On 2 Jul 07, the 
applicant’s disease was determined to be EPTS-Service 
Aggravated. 

 

 c. Other congenital anomalies of limbs and Right Talocalcaneal 
coalition with associated degenerative changes, On 12 Oct 07, 
the applicant’s disease was determined to be in the LOD. 

 

On 30 Aug 07, an ILOD was initiated because he had other 
disorders of cervical regions; Cervical Radiculopathy aggravated 
while on Iraq tour, Sep 06. On 18 Sep 07, the applicant’s 
disease was determined to be in the LOD. 

 


On 19 Mar 09, a medical evaluation board (MEB) convened to 
consider the applicant for continued active duty. The board 
recommended the applicant be referred to an Informal Physical 
Evaluation Board (IPEB) for Chronic Cervicalgia with upper 
extremity (UE) radiculopathy; chronic left knee pain status post 
left knee replacement and chronic ankle and foot pain secondary 
to bilateral subtalar coalition. 

 

On 2 Jun 09, the IPEB reviewed the case and found the applicant 
unfit and recommended permanent retirement with a combined 
disability rating of 40 percent (30 percent for left total knee 
replacement, EPTS-Service Aggravated; 10 percent for cervical 
spine arthritis; and 10 percent for bilateral acquired flat 
foot) per the schedule for rating disabilities in use by the DVA 
in accordance with (IAW) the National Defense Authorization Act 
(NDAA) 2008. 

 

On 23 Jun 09, the applicant non-concurred with the findings and 
recommended disposition of the IPEB and requested a formal 
hearing with counsel. The applicant requested a summary 
adjudication of his case for his left total knee replacement to 
be found unfitting and rated under Veterans Administration 
Schedule for Rating Disabilities (VASRD) section 5055 at 
30 percent; that his unfitting foot and ankle pain be found 
unfitting and rated as bilateral subtalar coalition under VASRD 
section 5272 at 21 percent; and that his cervical spine 
arthritis be found unfitting and rated under VASRD section 
5242 at 10 percent for a combined compensable disability rating 
of 50 percent and a permanent retirement. 

 

On 2 Sep 09, based on a review of the medical evidence the FPEB 
determined a formal hearing was not required and found the 
applicant unfit for continued military service and recommended 
permanent retirement with a combined compensable disability 
rating of 50 percent (30 percent for left total knee 
replacement, EPTS-Service Aggravated; 20 percent for bilateral 
subtalar coalition with degenerative changes, EPTS-Service 
Aggravation; and 10 percent for cervical spine arthritis) per 
the schedule for rating disabilities in use by the DVA. 

 

On 3 Sep 09, the applicant concurred with the findings and 
recommended disposition of the FPEB. 

 

On 15 Sep 09, officials within the Office of the Secretary of 
the Air Force (SAF) directed the applicant be permanently 
retired effective 28 Dec 09, under the provisions of 10 USC 
1201. 

 

On 30 Sep 09, the applicant requested his date of separation be 
adjusted to reflect 27 Oct 09. 

 

On 27 Oct 09, the applicant was relieved from active duty. On 
28 Oct 09, he was permanently disability retired in the grade of 


lieutenant colonel, with a compensable percentage for physical 
disability of 50 percent. 

 

He completed 12 years, 5 months and 2 days of active service for 
retirement. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

HQ AFPC/DPSD recommends denial. The Department of Defense (DoD) 
and the DVA disability evaluation systems (DES) operate under 
separate laws. Under Title 10 USC, 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 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 their military duties. If the board 
renders a finding of unfit, the law provides appropriate 
compensation due to the premature termination of their career. 
Further, it must be noted the United States 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, 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 two 
agencies. 

 

The applicant provided his DVA rating sheet which indicated the 
DVA rated his cervical spine condition at 20 percent and rated 
his bilateral upper extremity radiculopathies at 10 percent 
each. The FPEB noted his cervical range of motion was measured 
at 47, which equates to a 10 percent rating per the VASRD. 
Electromyogram (EMG) testing does not show any upper extremity 
abnormalities and the FPEB deemed no separate rating for 
radiculopathy was warranted. The fact that the DVA chose to 
rate the radiculopathy separate does not indicate that the FPEB 
incorrectly omitted this condition. 

 

The applicant believes his bilateral pes planus should have been 
rated separately by the FPEB. Although mentioned in the FPEBs 
narrative remarks, a determination was made that his bilateral 
pes planus was “associated” with his talocalcaneal condition, 
which was rated at 21 percent. By law, a separate rating for 
the applicant’s pes planus could not be granted as this would 
have constituted “pyramiding”, which does not allow the same 
condition to be rated twice. 

 

Additionally, the preponderance of the evidence reflects that no 
error or injustice occurred during the disability process or the 
rating applied at the time of the Board. 


The complete DPSD evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: 

 

By letter dated 5 Mar 12, the applicant refutes the comments 
made in the advisory opinion. The applicant states the advisory 
opinion mentioned the PEB made their determination based on his 
condition at the time of the board on 2 Jun 09 and he non-
concurred on 23 Jun 09 so the board made another recommendation 
on 2 Sep 09. The advisory opinion noted the disability board 
must rate disabilities based on his condition at the time of his 
evaluation. It went on to say the VA picks up where the AF must 
by law, leave off. However, this is not true in his case. As a 
reservist, he has been rated by the DVA for these conditions 
since 29 Mar 09. The DVA did reevaluate his degenerative disc 
disease in Feb 10 and continued the 20 percent rating. 
Therefore, the DVA had evaluated him two and half years earlier 
than the PEB so this contradicts the statement in the advisory 
opinion. 

 

The PEB did not mention he had degenerative disc disease with 
intervertebral disc syndrome in his C 5-6 and C 6-7 area. The 
PEB rated him as having cervical spine arthritis under VA 
Diagnostic code 5242 at 10 percent but the VA used 5243 for 
degenerative disc disease with intervertebral disc syndrome 
since it was based on multi-level lower cervical spondylosis 
with secondary foraminal stenosis and radiculopathy and rated 
him at 20 percent. VA Code 5003 could also be used to determine 
the percentage since there is x-ray evidence of involvement of 
two or more major or minor joints. The radiculopathy was 
addressed but was combined with the degenerative disc disease 
for a 40 percent combined rating. 

 

Although the UE radiculopathy was listed on the AF Form 618 it 
was not mentioned on either one of the AF Forms 356. The 
advisory opinion states his range of motion was measured one 
time at 47 degrees. However, his range of motion has been 
measured during most of his medical appointments and has varied 
depending on his recent activities or injection in his spine. 
The DVA rated this condition under VA Code 8515 for both the 
right and left side at 10 percent. Also, the DVA granted 
radiculopathy of C-8 nerve distribution for his right upper 
extremity and radiculopathy of C-4, C-5 nerve distribution for 
his left upper extremity and left upper chest. 

 

The advisory opinion also mentioned the EMG testing did not show 
any UE abnormalities but this was not completely correct. The 
study had limited results of his upper cervical paraspinal 
region due to poor relaxation. However, the needle EMG of the 
right arm showed minor chronic denervation with reinnervation 
change involving the right biceps muscles. This supports a mild 
upper cervical radiculopathy on the right and could correlate 


with exam findings of relatively reduced deep tendon reflexes 
(DTRs) on that side. 

 

The applicant states his legal counsel was not supportive in 
helping him rectify this issue and made it seem like he should 
be content with accepting this or risk the chance of losing it 
all, if he went in front of the board. He believes he was short 
changed on this issue and should have a combined rating of 
40 percent for degenerative disc disease intervertebral disc 
syndrome with UE radiculopathy as clearly stated on his AF Form 
618 and granted by the DVA. 

 

The advisory opinion mentioned he believed his bilateral pes 
planus should be rated separately by the FPEB. However, this is 
not the case because the results from the first PEB only had his 
pes planus (VA Code 5276) listed on the AF Form 356. Because of 
this, he non-concurred but the second AF Form 356 only had 
bilateral subtalar coalition listed with degenerative changes 
(VA Code 5272). Once again, his legal counsel was not very 
supportive. He seemed to want his case resolved and to move on 
to the next one. 

 

The advisory opinion mentioned that he was trying to do what was 
considered “pyramiding” and by law does not allow for the same 
condition to be rated twice. This is not the case since tarsal 
coalition and pes planus are two completely different conditions 
of the feet. He believes since he has both they should be 
combined for a rating. He has two approved LODs from HQ USAF 
Reserve to support this claim stating these EPTS-Service 
Aggravation. The tarsal coalition was also incorrectly rated at 
10 percent for each foot. He was diagnosed with moderately 
severe tarsal coalition which has a 20 percent rating per foot. 
He believes his tarsal coalition should be increased to 
correctly reflect this for both feet for a 40% rating or combine 
the pes planus with his current rating to increase the rating to 
30 percent. 

 

The applicant’s complete submission, with attachments is at 
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. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or an injustice. While we 
note the applicant disagrees with the ratings he was assigned it 
appears that based on the preponderance of the evidence the 
applicant’s disability rating(s) were properly adjudicated and 


we found no evidence which would lead us to believe that the 
FPEB findings were in error or contrary to the governing Air 
Force instructions. Although the applicant argues that his 
legal counsel was not supportive in helping him rectify the 
issues, we are not persuaded by the evidence that he was denied 
any rights to which entitled during the DES process. To the 
contrary, he was represented by counsel, submitted evidence in 
his own behalf, was afforded all rights to which entitled, 
agreed with the findings and there has been no showing 
otherwise. Although the Air Force is required to rate 
disabilities in accordance with the DVA Schedule for Rating 
Disabilities, the DVA, operating under a totally separate system 
with a different statutory basis, compensates for any and all 
service-connected medical conditions to the degree they 
interfere with a member’s future employability, without 
consideration of fitness. However, the Air Force, rates a 
member's disability based on the degree of severity of the 
unfitting condition at the time of separation. While the 
applicant’s contentions are duly noted, his case has undergone 
an exhaustive review by the Air Force office of primary 
responsibility (OPR) and we did not find the evidence provided 
sufficient to overcome their assessment of the case. Therefore, 
we agree with the opinion and recommendation of the Air Force 
OPR and adopt its rationale as the basis for our decision that 
the applicant has failed to sustain his burden that he has 
suffered either an error or an injustice. In the absence of 
persuasive 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 AFBCMR Docket 
Number BC-2011-04321 in Executive Session on 18 Jul 12, under 
the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

 

 

 

 


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-04321 was considered: 

 

 Exhibit A. DD Form 149, dated 9 Oct 11, w/atchs. 

 Exhibit B. Applicant's Military Personnel Records. 

 Exhibit C. HQ AFPC/DPSD, Letter, dated 19 Dec 11. 

 Exhibit D. SAF/MRBR, Letter, dated 29 Dec 11. 

 

 

 

 

 

 Panel Chair