RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01398

		COUNSEL:  NONE

		HEARING DESIRED:  YES


________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Her records be corrected to reflect that she was placed on 
medical continuation (MEDCON) orders during the period 21 Mar 04 
through 5 Jun 08 or, in the alternative, she receive 
Incapacitation (INCAP) pay for said period.

2.  Her records be corrected to reflect that her disability 
rating was not reduced to 20 percent, but maintained at 
30 percent with continued entitlement to disability retirement.

________________________________________________________________

APPLICANT CONTENDS THAT:

1.  She should have been placed on orders due to her re-injury.  
Her Line of Duty (LOD) determination was not officially signed 
until almost three years after being taken off of orders.  She 
was denied benefits due to be being taken off of orders.

2.  The Secretary of the Air Force Personnel Council (SAFPC) 
failed to review all the documentation she submitted in support 
of the final appeal of her case.  As a result, the decision to 
reduce her disability rating from 30 percent to 20 percent, 
resulting in her removal from the TDRL, was erroneous.  The 
documentation submitted clearly indicated that her condition had 
not improved.

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

________________________________________________________________

STATEMENT OF FACTS:

On 13 Apr 97, the applicant commenced her enlistment in the Air 
Force Reserve.

On 24 Jun 02, the applicant commenced a tour of active duty.  
She was released from active duty on 30 Sep 02 and reverted to 
her traditional (part-time) status as a member of the Air Force 
Reserve.

On 7 Apr 03, the applicant commenced a tour of active duty in 
support of Operation NOBLE EAGLE/ENDURING FREEDOM.  On 
21 Mar 04, she was released from active duty and reverted to her 
traditional (part-time) status as a member of the Air Force 
Reserve. 

On 10 Jan 05, the applicant commenced a tour of active duty.

On 6 May 05, a hand written LOD determination was initiated for 
the applicant’s right knee pain.  The applicant experienced pain 
while performing physical exercise when her right knee was 
placed in certain positions.  She was seen by physical therapy 
and diagnosed with patellar femoral syndrome.  She was 
subsequently evaluated by orthopedics and eventually had knee 
surgery.  On 22 Jun 05, the applicant’s medical condition was 
found to be in the LOD.  

On 1 Jul 05, the applicant was released from active duty 
reverted to her traditional (part-time) status as a member of 
the Air Force Reserve.

On 13 Dec 06, the LOD determination was reaccomplished with a 
determination that her chronic knee pain was in the LOD and 
forwarded for consideration by the AFRC LOD Board.  

On 22 Dec 06, the applicant underwent a medical evaluation board 
(MEB) for right knee pain.  

On 17 Jan 07, the AFRC LOD Board found the applicant’s medical 
condition to be in in the LOD.

On 8 Feb 08, the Informal Physical Evaluation Board (IPEB) 
reviewed the applicant’s case and recommended she be found unfit 
with a ten percent disability rating and discharged with 
entitlement to disability severance pay.  The applicant 
disagreed with the findings and recommendations and appealed to 
the Formal Physical Evaluation Board (FPEB).  

On 16 Apr 08, the FPEB reviewed and considered the applicant’s 
case and recommended she be found unfit with a compensable 
disability rating of 30 percent and placed on the TDRL noting 
the applicant’s condition was unfitting, unstable, and was 
pending surgery.  The applicant concurred with the findings and 
was placed on the TDRL, effective 6 Jun 08.

On 23 Nov 09, the applicant underwent a periodic TDRL 
reevaluation.  On 30 Apr 10, the IPEB reviewed the reevaluation 
and recommended she be assigned a combined compensable 
disability rating of 20 percent, removed from the TDRL, and 
discharged with entitlement to severance pay, noting the 
applicant’s knee condition had not changed since being placed on 
the TDRL.  The applicant disagreed with the IPEB and requested a 
hearing before the FPEB.  

On 16 Jun 10, the FPEB reviewed the applicant’s case and 
affirmed the findings of the IPEB that the applicant be assigned 
a 20 percent disability rating and discharged with entitlement 
to severance pay.  The applicant disagreed with the findings and 
appealed to the Secretary Air Force Personnel Council (SAFPC).  

On 15 Aug 11, SAFPC directed the applicant be discharged with 
severance pay with a 20 percent disability rating.  Because the 
applicant was eligible for non-regular retirement as a member of 
the Air Force Reserve, on 31 Oct 11, she was removed from the 
TDRL and transferred to the Inactive Status List Reserve Section 
(ISLRS), effective 2 Nov 11.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFD notes a preponderance of the evidence reflects no 
error or injustice during the applicant’s disability processing.  
However, AFPC/DPFD defers to the Board for a determination 
regarding the applicant’s allegation that all documents were not 
reviewed for her TDRL reevaluation.  

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

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The IPEB noted she was pending surgery and granted her a 
30 percent disability rating.  She believes the FPEB reduced her 
disability rating due to her electing not to have surgery on her 
right knee.  She opted not to have surgery based on her 
physician’s recommendation and the low success rate of the 
procedure.

The applicant’s complete response, with attachments, is at 
Exhibit E.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends partial relief be 
granted with respect to the applicant’s request for MEDCON 
orders.  While the applicant is requesting her records to be 
corrected to reflect she was not released from active duty on 
21 Mar 04, the evidence presented is not sufficient to conclude 
she was unfit for her military duties at the time of her release 
from active duty.  However, the evidence provided does indicate 
that her condition could have rendered her unfit when she 
entered the disability evaluation system (DES).  Therefore, it 
would be reasonable to conclude that she could have been placed 
on MEDCON orders as early as 22 Dec 06, the date of the MEB 
narrative summary, and retained on MEDCON orders until the final 
determination of her DES case when she was transferred to the 
TDRL on 6 Jun 08.

As for the applicant’s request regarding her disability 
percentage, the AFBCMR Medical Consultant recommends denial 
noting there is no error or injustice to warrant changing the 
applicant’s disability rating to receive permanent disability 
retirement.  Consideration for a medical retirement should not 
be based upon long and faithful service, but upon objective 
clinical evidence present at the time of final military 
disposition utilizing the objective clinical findings at the 
TDRL reevaluation and the rating criteria outlined in the 
Veterans Affairs Schedule for Rating Disabilities (VASRD) for 
her medical condition.  The applicant was originally awarded a 
30 percent disability rating and placed on the TDRL for her knee 
pain due to the impending surgery and her not having received 
the benefit of optimal care.  However, at the time of the TDRL 
reevaluation, the applicant had not had the surgery and her 
physicians at the time were no longer recommending surgery.

While the lowering of the applicant’s disability rating from 
30 percent to 20 percent may seem disingenuous, a discussion of 
the likely reason the higher rating of 30 percent was 
established in the first place is in order.  Based upon the 
rationale of the FPEB, when the applicant was first placed on 
the TDRL, it becomes clear that the reason for the 30 percent 
rating (minimum required to qualify for retirement, TDRL or 
permanent) was the expectation that she had not yet received the 
benefit of definitive or optimal care, in anticipation of her 
undergoing a surgical procedure, and, thus, found a way of 
retiring the applicant temporarily under a more expansive VASRD 
code while awaiting the outcome, which would have become evident 
at the next TDRL re-evaluation.  Therefore, since the surgery 
did not take place and was no longer recommended, then it 
follows that the previous Boards based the rating on the 
applicant’s demonstrated level of functionality and the 
underlying objective clinical findings, e.g., range of motion 
and radiographic findings (MRIs, and X-Rays, etc.).  While the 
applicant’s knee pain has apparently prevented her from 
participating in activities which she formerly enjoyed with her 
family, rating an organic medical condition such as the 
applicant’s solely on the subjective level of “pain” at a given 
time becomes an inaccurate and impractical metric for assigning 
disability ratings, particularly when considering the 
variability of pain perception across the normal population and 
variability of pain, as perceived by the same individual at a 
given time.  The applicant’s actual DVA Compensation and Pension 
examination is not available; nevertheless, it appears that both 
the Military Department and the DVA have assigned a 20 percent 
disability rating based upon their individual clinical 
assessments.  

The DVA, operating under a different set of laws, has the 
benefit of conducting future periodic reevaluations for the 
purpose of adjusting the applicant's disability rating as the 
level of impairment from given medical condition may vary over 
the lifetime of the veteran.  The Medical Consultant is troubled 
by the expression used by the IPEB, "essentially unchanged since 
placement on the TDRL," which is contravened by the reduction in 
the previous disability rating.  The Medical Consultant finds if 
this characterization was truly "unchanged" then it would have 
been appropriate to retain the disability rating at 30 percent.  
Although the applicant has achieved a higher combined disability 
rating through the DVA, this rating includes other unrelated 
service connected medical conditions.  The disability ratings 
assigned to the applicant's knee condition have not been greater 
than 20 percent; which indicates consideration was given to her 
reduced range of motion and underlying degenerative joint 
disease.  In addition, none of the applicant's clinical 
assessments showed instability of the supporting major ligaments 
of the knee.  The AFBCMR medical consultant notes the 
applicant's patellar tilt, as described in her rebuttal, but 
finds this anatomic finding does not justify the higher 
disability rating she requests.  

A complete copy of the AFBCMR Medical Consultant’s evaluation, 
with attachments, is at Exhibit F.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The dates on her LOD are not accurate.  They should reflect the 
period she was on active duty orders from 7 Apr 03 through 
21 Mar 04.  She submitted a request to extend her orders and it 
was denied.  Due to her reinjuring her knee she should have 
remained on orders for medical purposes.  Although it has been 
recommended to grant MEDCON orders beginning 22 Dec 06, she 
requests consideration for MEDCON orders beginning 21 Mar 04, 
her last day on active duty, or in the alternative 17 May 05 
based on her medical profiles periodically indicating she was 
not world-wide qualified for duty.  She agrees if her knee 
condition had not truly changed as noted by the IPEB, her 
disability rating should have remained at 30 percent.  

The applicant’s complete response, with attachments, is at 
Exhibit H.

________________________________________________________________




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 with respect 
to the applicant’s request that her records be corrected to 
reflect that she was retired for physical disability for her 
chronic knee pain with a combined compensable disability rating 
of 30 percent.  The applicant argues that the Secretary of the 
Air Force Personnel Council (SAFPC) failed to review the 
totality of evidence she provided in support of her case.  
However, while she has provided a tome of medical and other 
documentation in support of her request, we do not find the 
applicant’s arguments or said documentation sufficient to 
conclude that SAFPC failed to properly consider pertinent 
evidence when they affirmed the determinations of both the 
Informal Physical Evaluation Board (IPEB) and Formal Physical 
Evaluation Board (FPEB), which indicated the applicant’s 
condition warranted a 20 percent disability rating with 
entitlement to severance pay.  Furthermore, irrespective of the 
applicant’s arguments on this point, the AFBCMR Medical 
Consultant has reviewed the totality of the evidence presented 
by the applicant and concluded that a 20 percent disability 
rating for her chronic knee pain was appropriate to the 
applicant’s condition, which is consistent with the independent 
finding of the Department of Veterans Affairs (DVA) where they 
also issued the applicant a 20 percent disability rating for 
said condition.  While the applicant also argues the reduction 
of her disability rating from 30 percent to 20 percent is 
inconsistent with the IPEB’s finding that her condition was 
essentially “unchanged” since she was placed on the TDRL, we do 
not find this argument sufficient to conclude the reduction of 
her disability rating was erroneous.  In this respect, we note 
that a key consideration when a member is placed on the TDRL, 
versus being permanently retired for physical disability, is 
whether or not the member’s condition is stable.  In the 
applicant’s case, the IPEB determined that her condition was not 
stable because she required further treatment (surgery) before a 
final disability rating could be determined.  As such, the IPEB 
appropriately determined that she should be temporarily 
disability retired until such time as the remaining treatment 
was complete and a final determination could be made as to 
whether or not she remained unfit and to what degree.  In our 
view, once it became apparent that the applicant was not going 
to have surgery, her condition was no longer “unstable” and a 
final determination could be made as to the degree of disability 
she suffered.  Therefore, in view of the above, we are not 
convinced the reduction of the applicant’s disability rating and 
subsequent removal from the TDRL constitutes an error or 
injustice.  

4.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or 
injustice with respect to the applicant’s request for medical 
continuation (MEDCON) orders.  In this respect, we note the 
comments of the AFBCMR Medical Consultant and agree with his 
determination that the evidence presented indicates that it 
would have been appropriate to place the applicant on MEDCON 
orders when it became apparent that her condition precluded her 
from the performance of her military duties.  Therefore, we 
believe it appropriate to recommend the applicant’s records be 
corrected to reflect that she was placed on MEDCON orders on the 
date of the medical evaluation board (MEB) narrative summary, 
which is the first conclusive indication that her condition was 
unfitting.  While the applicant argues that she should have been 
placed on MEDCON orders much earlier, we do not find the 
evidence provided sufficient to conclude that her condition 
rendered her unfit to perform her duties prior to the date of 
the MEB summary.  While the applicant provides several AF Forms 
422, Physical Profile Serial Report, some indicating that her 
knee condition rendered her no longer qualified for world-wide 
duty, in our view, even though her ability to deploy was 
limited, such a determination, in and of itself, does not 
constitute a finding that the applicant was unfit for her 
military duties.  In our view, based on the totality of the 
evidence presented, we find it reasonable to conclude that it 
was not apparent that the applicant’s condition rendered her 
unfit to perform her duties until she was referred to a medical 
evaluation board (MEB) for such a determination.  Therefore, we 
believe it appropriate to recommend the applicant’s records be 
corrected as indicated below.

5.  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 the APPLICANT be corrected to show that on 
22 December 2006 she was placed on active duty for the purposes 
of medical continuation (MEDCON) until 6 June 2008, when she was 
transferred to the Temporary Disability Retired List (TDRL).

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-01398 in Executive Session on 1 Jul 14, 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:

	Exhibit A.  DD Form 149, dated 15 Jan 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFPC/DPFD, dated 18 Apr 13.
	Exhibit D.  Letter, SAF/MRBR, dated 3 May 13.
	Exhibit E.  Letter, Applicant, dated 28 May 13, w/atchs.
	Exhibit F.  Letter, AFBCMR Medical Consultant, 
	            dated 18 Dec 13, w/atch.
	Exhibit G.  Letter, Applicant, dated 7 Jan 14, w/atchs.




                                   
                                   Panel Chair



DEPARTMENT OF THE AIR FORCE 
WASHINGTON DC 


Office of the Assistant Secretary


AFBCMR BC-2013-01398



MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for 
Correction of Military Records and under the authority of Section 1552, Title 10, United 
States Code, it is directed that:

	The pertinent military records of the Department of the Air Force relating to   , be 
corrected to show that on 22 December 2006, she was placed on active duty for the purposes of 
medical continuation (MEDCON) until 6 June 2008, when she was transferred to the Temporary 
Disability Retired List (TDRL).




                                                                           Director
                                                                           Air Force Review Boards Agency