AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

 
DOCKET NUMBER: BC-2011-05034 
COUNSEL: TERRY M. HOFFMAN 
HEARING DESIRED: YES 

IN THE MATTER OF: 
   
   
 
_________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
His  Osteoporosis  be  rated  by  the  Formal  Physical  Evaluation 
Board (FPEB) so the combined rating would increase to 40 percent 
and entitle him to a permanent disability retirement.  
 
_________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
1. On  21  January  2000,  he  suffered  an  ankle  injury  and  was 
subsequently diagnosed with osteoarthritis of the ankle.   
 
2. The Physical Evaluation Board (PEB), the primary care doctor, 
and  the  FPEB  responsible  for  identifying  all  unfitting  medical 
conditions  left  his  condition  out  of  the  report,  even  after 
being made aware of the error.  
 
In  support  of  his  request,  the  applicant  provides  a  personal 
statement, copies of his medical records, AF Form 422,  Physical 
Profile Serial Report; and AF Form 356, Findings and Recommended 
Disposition of USAF Physical Evaluation Board (PEB). 
 
The  applicant's  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
_________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On  9  May  2007,  a  Medical  Evaluation  Board  (MEB)  convened  to 
consider  the  applicant  for  continued  active  duty  service.    The 
Board  recommended  the  applicant  be  referred  to  an  Informal 
Physical  Evaluation  Board  (IPEB)  for  weekly  immunotherapy, 
lumbar back pain, and obstructed sleep apnea (OSA).  
 
On  7  June  2007,  the  IPEB  reviewed  the  case  and  found  the 
applicant unfit and recommended discharge with severance pay and 
a  disability  rating  of  20  percent  for  anaphylactic  reaction  to 
fire  ant  bites  and  low  back  pain.    The  IPEB  determined  the 
applicant’s  mild  OSA  was  a  condition  that  can  be  unfitting  but 
is not currently compensable or ratable.   
 
On  12  June  2007,  the  applicant  non-concurred  with  the  findings 
and  recommended  disposition  of  the  IPEB  and  requested  a  formal 

hearing of the case.  The applicant contended to the FPEB that 
he  should  be  permanently  retired  with  a  disability  rating  of 
40 percent,  with  an  increased  disability  rating  for  right  leg 
radiculopathy and the addition of OSA as an unfitting condition. 
 
On  15  August  2007,  the  FPEB  reviewed  the  case  and  found  the 
applicant  was  unfit  for  military  duties  and  recommended  he  be 
discharged with severance pay at a combined compensable rate of 
20 percent.    The  board  noted  the  applicant’s  Medical  Narrative 
Summary  stated  his  immune  prognosis  was  poor  and  exposure  to 
fire ant bites or other stinging insects may result in a life-
threatening allergic reaction.  With regard to his chronic back 
pain  the  board  noted  an  84  degree  range  of  motion  in  flexion 
with  minimal  impact  on  the  applicant’s  military  duties  within 
the  Military  Equal  Opportunity  (MEO)  career  field;  thus  the 
condition was best rated at 10 percent.  In addition, according 
to a doctor from the Trident Medical Center, a sleep evaluation 
revealed the applicant had mild sleep apnea syndrome that can be 
controlled with nasal CPAP therapy.   
 
On 16 August 2007, the applicant non-concurred with the findings 
and  recommended  disposition  of  the  FPEB  and  requested  a  review 
of his case by the Secretary of the Air Force Personnel Council 
(SAFPC).   
 
The  applicant  stated  there  were  contradictions  based  on  the 
findings.  The compensable percentage of 20 percent was based on 
the  assumed  Military  Equal  Opportunity  (MEO)  career  field  to 
which he is not officially associated with.  MEO and his primary 
Air  Force  Specialty  Code  (PAFSC)  of  2T271  (Air  Transportation 
Technician)  rendered  him  unfit  for  duty  according  to  his 
disabilities.  In addition, the applicant stated his (mild sleep 
apnea) category II item should have been category I (sleep apnea 
with continuous positive airway pressure/CPAP) due to additional 
medical  findings.    The  MEB  met  prior  to  his  final  CPAP  sleep 
study.    Findings  from  the  study  should  have  been  considered  as 
they  validated  his  condition  should  have  come  under  category  I 
(sleep apnea with CPAP).   
 
On  5  September  2007,  AFPC/DPSDD  requested  SAFPC  review  the 
applicant’s  PEB  proceeding  and  his  request  for  a  40  percent 
permanent retirement.   
 
On  12  October  2007,  officials  within  the  SAF  directed  the 
applicant  be  discharged  and  receive  severance  pay  with  a 
disability  rating  of  20  percent  under  the  provisions  of  Title 
10,  United  States  Code  (USC),  Section  1203.    The  board 
considered  the  applicant’s  contention  that  he  should  be 
permanently  retired  with  at  least  a  40  percent  disability 
rating,  to  be  achieved  by  an  increase  of  his  rating  for  back 
pain to 20 percent and the inclusion of a rating of 50 percent 
for  OSA  in  the  disability  rating  computation.    Following  a 
review  of  all  available  facts  and  evidence  in  the  case,  to 
include the testimony presented before the FPEB, the remarks by 

 

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the  FPEB,  IPEB,  the  service  medical  record,  and  the  narrative 
summary  of  the  MEB,  the  board  concurred  with  the  disposition 
recommended by the two previous boards and recommended discharge 
with  severance  pay  with  a  combined  disability  rating  of 
20 percent.   
 
On  23  October  2007,  the  applicant’s  unit  was  notified  that  he 
was  found  unfit  for  continued  military  service  and  was  to  be 
discharged  with  severance  pay  under  10  U.S.C  1203,  with  an 
effective date of 3 December 2007. 
 
On  16  August  2011,  the  Physical  Disability  Board  of  Review 
(PDBR) reviewed the disability rating received by the applicant.  
After carefully reviewing the application and medical separation 
case  file  the  PDBR  recommended  no  recharacterization  of 
separation  or  modification  of  the  disability  rating  previously 
assigned.   
 
On  1  September  2011,  the  applicant  was  notified  the  PDBR 
determined  that  the  rating  assigned  at  the  time  of  final 
disposition of the disability evaluation system (DES) processing 
was  appropriate.    Accordingly,  the  board  recommended  no 
recharacterization  or  modification  of  his  separation  with 
severance pay.  
 
The remaining relevant facts pertaining to this application are 
contained  in  the  letter  prepared  by  the  appropriate  office  of 
the Air Force, which is attached at Exhibit C.  
 
_________________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
HQ AFPC/DPSD recommends denial.  DPSD states PEBs must determine 
if  a  member’s  condition  renders  them  unfit  for  continued 
military  service  relating  to  their  office,  grade,  rank  or 
rating.    If  the  board  renders  a  finding  of  unfit,  the  law 
provides  appropriate  compensation  due  to  permanent  termination 
of  their  career.    Further,  it  must  be  noted  the  AF  Disability 
boards must rate disabilities based on the member’s condition at 
the  time  of  evaluation;  in  essence  a  snapshot  of  the  condition 
at  that  time.    The  fact  that  a  person  may  have  a  medical 
condition  does  not  mean  that  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.  It is the charge of the Department of Veterans 
Affairs (DVA) to pick up where the AF 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.   
 
DPSD states no documentation was provided at any time during the 
DES processing of the applicant’s case to indicate his arthritic 

 

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ankle condition was unfitting for duty.  Therefore, there is no 
basis  for  which  to  conclude  that  his  condition  was 
inappropriately  excluded  from  consideration  during  the  DES 
processing  of  his  case.    Any  rating  changes  to  the  applicant’s 
condition are now under the purview of the DVA.   
 
Additionally, the preponderance of the evidence reflects that no 
error or injustice occurred during the disability process or the 
rating applied during DES processing of the applicant’s case.   
 
The complete DPSD evaluation is at Exhibit C.  
 
_________________________________________________________________ 
 
APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: 
 
Counsel  states  the  applicant’s  diagnosis  of  osteoarthritis  of 
the  ankle  should  have  been  included  in  his  original  MEB 
submitted  on  9  May  2007  and  considered  for  adjudication  by  the 
DES in addition to his other medical conditions.   
 
Counsel states they agree no information was provided in regards 
to  the  applicant’s  right  ankle/foot.    However,  AFI  48-123, 
Medical  Examinations  and  Standards,  states  the  medical 
assessment  must  include  clear  documentation  of  any  significant 
medical history and/or new signs or symptoms of medical problems 
since  the  member’s  last  medical  assessment/medical  condition; 
therefore,  based  on  this  guidance,  the  medical  board  was  in 
violation of this policy in that they failed to indicate, cover 
or  give  any  reference  to  the  41  medical  reports  regarding  the 
applicant’s ankle injury.   
 
Counsel  states  there  was  an  error  due  to  the  failure  of  the 
board  to  properly  include  the  injury  to  the  ankle/foot  and  the 
numerous  medical  records  over  the  period  of  2001  to  2007.    On 
3 January  2003,  the  applicant  received  medical  treatment 
complaining  of  continuing  pain  in  the  ankle  from  the  severe 
ankle  sprain.    Also,  the  applicant  complained  of  a  new  issue 
relating to his right hip pain.  His record clearly shows that 
the  injuries  were  separate  and  not  related;  however,  this  was 
not included in the review. 
 
Counsel  states  the  failure  to  provide  adequate  testing  (i.e. 
magnetic  resonance  imaging/MRI)  to  determine  significant  damage 
and  disability  to  the  right  ankle  of  the  applicant  prevented 
proper  disability  determination.    In  2007,  the  AF  x-rayed  the 
ankle which indicated a bone spur.  In 2011, a MRI was performed 
which  identified  abnormal  enhancing  soft  tissue  extending 
laterally from the calcaneocuboid and talonavicular joints with 
osteoarthritic changes at the joints.   
 
Counsel states the findings are not related to his back and the 
condition 
2000.  

January 

injury 

in 

existed 

since 

the 

 

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Additionally,  numerous  records  pertaining  to  the  treatment  of 
the  ankle  during  the  applicant’s  service  was  not  identified  as 
an individual injury, but overlooked by the back injury.   
 
Counsel’s complete evaluation 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 not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.  
 
3. Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  an  error  or  injustice.    After  a 
thorough review of the evidence of record and the documentation 
submitted  in  support  of  his  appeal,  we  find  no  evidence  which 
would  lead  us  to  believe  his  Osteoarthritis  of  the  ankle 
rendered him unable to perform military duties commensurate with 
his  grade  and  position.    While  counsel  argues  that  the 
applicant’s Osteoarthritis should have been included in the MEB, 
we disagree.  As pointed out by DPSD, the Air Force is required 
to  rate  an  individual's  disability  at  the  time  of  evaluation.  
The  fact  that  a  person  may  have  a  medical  condition  does  not 
mean  that  the  condition  is  unfitting.    To  be  unfitting  the 
condition  must  be  such  that  it  alone  precludes  the  member  from 
fulfilling his military duties.  It is the charge of the DVA to 
pick up where the Air Force must by law, leave off.  It appears 
that  the  Air  Force  appropriately  considered  the  applicant's 
condition and whether or not the condition rendered him unfit to 
perform  the  duties  of  his  office  and  grade  at  that  time.    
Therefore,  we  agree  with  the  opinion  and  recommendation  of  the 
Air  Force  OPR  and  adopt  its  rationale  as  the  basis  for  our 
conclusion the applicant has not been the victim of an error or 
injustice.  In view of the above and in the absence of evidence 
to the contrary, we find no basis to grant the requested relief.   
 
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 issues involved.  
Therefore, the request for a hearing is not favorably considered 
 
_________________________________________________________________ 
 
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 

 

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Panel Chair 
Member 
Member 

submission of newly discovered relevant evidence not considered 
with this application. 
 
________________________________________________________________ 
 
The  following  members  of  the  Board  considered  AFBCMR  Docket 
Number  BC-2011-05034  in  Executive  Session  on  25  Sep  12,  under 
the provisions of AFI 36-2603: 
 
 
 
 
 
The following documentary evidence was considered: 
 
       Exhibit A.  DD Form 149, dated 20 Oct 11, w/atchs. 
       Exhibit B.  Applicant's Military Personnel Records. 
       Exhibit C.  Letter, AFPC/DPSD, dated 8 Feb 12. 
       Exhibit D.  Letter, SAF/MRBR, dated 23 Mar 12.  
       Exhibit E.  Letter, Applicant’s Counsel, dated 19 Apr 12,  
                   w/atchs.  
 
 
 
 
 
 

 
Panel Chair 

 
 

 
 

 
 

 
 

 
 

 
 

 

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