RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-03998 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His official records be corrected to show his obstructive sleep 
apnea (OSA) was determined to be an unfitting condition with a 
50 percent disability rating, increasing his total permanent 
disability rating from 60 percent to 80 percent. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The Physical Evaluation Board (PEB) incorrectly determined his 
OSA to be “not currently compensable.” Some of his medical 
information may not have been available at the time of his 
Nov 02 PEB. His OSA was diagnosed as severe with evidence of 
hypoxemia during two eight hour sleep studies conducted on 
16 and 17 Aug 01. The Department of Veteran Affairs (DVA) 
assessed his OSA to be an unfitting condition warranting a 
50 percent disability rating. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant served in the Air National Guard during the period 
of time in question. 

 

On 18 Aug 01, the applicant’s name was placed on the Temporary 
Disability Retired List (TDRL) with a combined compensable 
disability rating of 60 percent. 

 

On 5 Nov 02, during a TDRL Examination, the applicant’s post 
aortic dissection repair associated with retinal detachment was 
determined to be permanently unfitting and the applicant was 
assigned a 60 percent disability rating for said condition. 
However, his OSA was found to not be compensable or ratable. 

 

On 8 Dec 02, the applicant was retired for permanent disability 
with a combined compensable disability rating of 60 percent. 


 

The remaining relevant facts pertaining to this application are 
described in the letter prepared by the Air Force office of 
primary responsibility which is included at Exhibit C. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPFD recommends denial, indicating there is no evidence of 
an error or injustice. As background, the Department of Defense 
and 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 a 
person may have a medical condition does not mean the condition 
is necessarily 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 the career. 
Further, it must be noted the USAF disability boards 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 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 charges in the severity of a condition. In 
this case, the applicant’s medical evaluation was conducted on 
14 Jun 01 for diagnosis of aortic dissection—surgically 
repaired, carpal tunnel syndrome bilaterally, transient 
neurological deficits and retinal detachment. On 21 Jun 01, the 
Informal PEB (IPEB) recommended the applicant be placed on the 
TDRL with a disability rating of 60 percent for diagnosis of 
aortic dissection, post-surgical repair with new evidence of 
recurrence associated with transient neurologic deficits and a 
history of retinal detachment. The applicant concurred and was 
scheduled for retirement on 18 Aug 01. On 5 Nov 02, the 
applicant was scheduled for his first TDRL re-evaluation exam, 
but only submitted documentation from his civilian provider for 
his TDRL re-exam. The IPEB reviewed the information submitted 
and recommended removal from the TDRL and permanent retirement 
with a 60 percent disability rating for diagnosis of post aortic 
dissection repair associated with retinal detachment. Again, 
the applicant concurred with this action. The IPEB did see the 
applicant had been diagnosed with OSA, which was well controlled 
with continuous positive airway pressure (CPAP) machine, since 
the time of his placement on the TDRL. They listed the 
condition under Category II as a condition that could be 
unfitting, but was not currently compensable or ratable. The 
applicant was removed from the TDRL effective 8 Dec 02 and 
retired with a 60 percent disability rating. At no time during 
the applicant’s disability processing was he boarded for or 
given a disability rating for OSA. The documents submitted by 


the applicant to the AFBCMR are the same documents he submitted 
to the IPEB for their review at his Nov 02 re-examination. 

 

A complete copy of the AFPC/DPFD evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

His diagnosis for severe OSA with hypoxemia for excessive 
daytime sleepiness, confusion and nighttime arousals was prior 
to his placement on the TDRL on 18 Aug 01. The OSA should have 
been rated during his time on the TDRL between 18 Aug 01 to 
8 Dec 02. Both his aortic dissection and the OSA were noted on 
his AF Form 356, Findings and Recommended Disposition of USAF 
Physical Evaluation Board; either condition alone would prevent 
him from performing his military duties. He believes the 
significance and gravity of his condition justifies the 
additional disability rating (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 error or injustice. We took notice 
of the applicant's complete submission, to include the 
applicant’s rebuttal response, in judging the merits of the 
case; however, we agree with the opinion and recommendation of 
the Air Force office of primary responsibility and adopt its 
rationale as the basis for our conclusion the applicant has not 
been the victim of an error or injustice. Therefore, in the 
absence of 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 the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2012-03998 in Executive Session on 2 May 13, under the 
provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 22 Aug 12, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPFD, dated 24 Oct 12. 

 Exhibit D. Letter, SAF/MRBR, dated 6 Nov 12. 

 Exhibit E. Letter, Applicant, dated 27 Nov 12. 

 

 

 

 

 

 Panel Chair