RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01659

			COUNSEL:  NONE

			HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His 10% disability rating from the Air Force be changed.  

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APPLICANT CONTENDS THAT:

The 10% disability rating he was given was not accurate and 
fair.  It was based solely on one medical issue and not his 
entire medical and mental problems.  Upon his release from the 
Air Force, the Department of Veterans Affairs (DVA) rated him as 
100% disabled.  The severity and long-term impact of these 
disabilities in his life have been drastic.  The DVA exams and 
100% disabled rating confirmed his belief that the Air Force 10% 
rating was incomplete and inaccurate.  These inconsistencies 
need to be reviewed and considered.  

The applicant did not submit any additional documents in support 
of his request, however, he states on his DD Form 149 that his 
Air Force, civilian, and DVA medical records are available upon 
request, if needed.  

The applicant’s complete submission is at Exhibit A. 

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STATEMENT OF FACTS:

According to copies of documents extracted from the Automated 
Records Management System (ARMS), the applicant is a former 
member of the Regular Air Force who enlisted on 21 August 1996.  
He served as a diagnostic imaging craftsman, and was 
progressively promoted to the rank of Technical Sergeant, 
(TSgt), E-6.  On 26 February 2007, the applicant was processed 
by a Medical Evaluation Board (MEB) to evaluate back pain, 
incurred during a fitness evaluation, which seriously interfered 
with his military duties.  On 25 April 2007, the Informal 
Physical Evaluation Board (IPEB) evaluated the applicant’s case 
and recommended discharge with severance pay with a disability 
rating of 10% for chronic low back pain, with disc extrusion and 
L5-S1 under the Veterans Administration Schedule for Rating 
Disabilities (VASRD) code 5243.  On 30 April 2007, the applicant 
agreed with the findings and recommended disposition of the IPEB 
and waived his right to a formal PEB hearing.  The applicant was 
released from active duty on 11 June 2007, with an honorable 
characterization of service, a separation code of “JFL” and a 
narrative reason for separation of “Disability, Severance Pay.”  
He was credited with 10 years, 9 months, and 21 days of active 
duty service.  

The remaining relevant facts pertaining to this application, 
extracted from the applicant’s military personnel records are 
contained in the letter prepared by the appropriate offices of 
the Air Force at Exhibits C and F.  

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AIR FORCE EVALUATION:

1.  AFPC/DPFD recommends denial.  DPFD states the preponderance 
of evidence reflects that no error or injustice occurred during 
the disability process or the rating applied at the time of the 
boards.  Regarding the applicant’s contention that added medical 
conditions should have been considered on the medical board, 
upon review of the case, the narrative summary listed the 
following conditions as past medical history: 
hypercholesterolemia, positive TB 2001, depression, chronic 
bilateral shoulder pain, bilateral knee pain, recurring left 
ankle sprain, chronic headaches, chest pain, and eye twitch 
during stress.  The Boards may rate any condition they find that 
renders the service member unfit for service.  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.  In this case, 
there was no evidence of any additional unfitting conditions and 
the applicant did not petition to add any additional conditions 
during the disability evaluation processing.  If the applicant 
had disagreed with the IPEB's recommendation, he could have 
requested a hearing with the Formal Physical Evaluation Board 
(FPEB) and even have his case forwarded to the Secretary of the 
Air Force Personnel Council (SAFPC) for their review and 
finalization.  The applicant did not exercise these options.  

2.  The Department of Defense (DoD) and DVA disability 
evaluation systems operate under separate laws.  Under Title 10, 
U.S.C., Physical Evaluation Boards 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 the premature termination of their career.  
Further, it must be noted the 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 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 changes in the severity of a condition.  
This often results in different ratings by the two agencies.  

The complete AFPC/DPFD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In an undated letter submitted in support of his appeal, the 
applicant states that at the time he had to decide whether to go 
to the medical board in person he was also vulnerable to be 
released from the Air Force because he was exempt from the 
running portion of the fitness test because of his back 
condition.  He did not know whether his release would be a 
medical discharge or an administrative discharge.  Even though 
he disagreed with the 10% rating, he chose the lesser of two 
evils.  That is why he agreed with the rating instead of 
fighting, then, for a higher rating.  The snapshot of his health 
at the time was not thorough.  There were multiple indicators of 
his depression, stress, anxiety, being tired, not sleeping well 
and other health problems.  Following his release from the Air 
Force the DVA did a full physical and found numerous things 
wrong with him, to include but not limited to, sleep apnea, 
severe depression, hypothyroidism, migraines, low testosterone, 
and his back and neck problems.  These all should have been 
accounted for but were not.  He requests a thorough, accurate, 
and fair rating based on all his conditions at that time.  

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

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ADDITIONAL AIR FORCE EVALUATION:

1.  The AFBCMR Medical Consultant recommends denial.  The 
Medical Consultant states that when considering the totality of 
evidence, to include the applicant's impending administrative 
discharge, his 10-year history of lumbar pain, the only 
condition which rendered him non-worldwide qualified (WWQ); the 
uncontested agreement with the MEB by signing the AF Form 618, 
Medical Board Report; the uncontested agreement with the 
findings of the IPEB; and the relative escalation of clinical 
symptoms only after initiation of MEB proceedings, the Medical 
Consultant found the evidence of unfitness for the long list of 
the applicant's other conditions unproven.  

2.  On 26 February 2007, the AF Form 618 coversheet indicated 
the convening date of the applicant's MEB, with “Back Pain” as 
the only listed condition under review.  The applicant signed 
the document indicating his awareness or concurrence with the 
medical condition presented for MEB processing.  Thereafter, the 
evidence shows the applicant continued to receive medical 
assessments of various complaints after the dictation and 
convening of his MEB.  For example, on 1 March 2007, he was seen 
by a headache specialist, with a reported 5-month history of 
continuous daily headaches.  On 2 March 2007, the applicant 
provided a memo to the MEB, conceding he has “had problems with 
his back going on 10 years” but that “over this past year the 
problems have greatly increased,” limiting him in the 
performance of his primary duties and quality of life, as well 
as affecting his weight and fitness performance.  On 
30 March 2007, the applicant presented again with a “history 
mostly lumbar spine symptoms with radiculopathy” but also “does 
have mild cervical radicular symptoms as well.”  The provider 
noted, “his main complaint of symptoms today is related to his 
right shoulder with general pain; no history of trauma but about 
6 months of symptoms; wakes from sleep; and he also has 
bilateral knee symptoms anterior in nature with no effusions 
locking or instability as well as symptoms with squatting 
kneeling and climbing stairs.  

3.  On 23 April 2007, the applicant presented for cervical spine 
range of motion measurement for purposes of his MEB.  The record 
indicates that he reported experiencing multiple other somatic 
complaints as well, to include “tingling/numbness, weakness, 
headaches, dizziness, syncope, neck pain, visual disturbances, 
tinnitus, and nausea.  His neck pain was characterized as 2/10 
in severity, “dull constant ache static, localized, 
intermittent, 6/10, sharp at C7.”  “Pain is aggravated with 
movement” but eased with sitting.”  

4.  The only trigger of record for MEB processing was for the 
final “L4” profile assigned for the applicant's back pain, which 
had been recurrent for nearly 10 years; but may have only become 
an issue when concurrently confronted with an administrative 
discharge due to failures in the Fitness Assessment Program.  
Thus, while it is evident that the applicant experienced 
multiple recurrent somatic complaints over a several year period 
for which he received treatment, except for the lumbosacral 
pain, none were shown to have interfered with his military 
service to the extent or duration that warranted 
disqualification for worldwide duty or inclusion in the MEB 
proceeding for further processing through the Disability 
Evaluation System.  

5.  On 25 April 2007, the Informal Physical Evaluation Board 
(IPEB) found the applicant unfit for further military service 
due to chronic low back pain, with disc extrusion of L4-5 and 
L5-S1, and recommended discharge with severance pay with a 10% 
disability rating.  The applicant agreed with the recommended 
findings and disposition of the IPEB under his signature on the 
AF Form 1180, dated 30 April 2007.  On 8 May 2007,the applicant 
completed his Separation History and Physical Examination, at 
which time he listed his physical and mental complaints, as 
“back  (upper, middle, lower) pain, neck problems, shoulder and 
knee pain, weight gain, migraines, shortness of breath, chest 
pains, depression, cracked feet (heels).”  In response to the 
question of whether he had any illnesses or injuries that caused 
him to miss duty for longer than 3 days since his last 
examination, the applicant responded “back pain.”  

6.  On 17 August 2007, the applicant received an evaluation by a 
DVA provider for a complete listing of his chief complaints.  On 
9 October 2007, the DVA granted service connection and 
disability compensation ratings for the following medical 
conditions: 50% disability rating for adjustment disorder with 
recurrent depression, 30% rating for migraine headaches, 20% 
disability rating for recurrent cervical spine strain, 20% 
rating for recurrent thoracolumbar strain, 10% rating for each 
shoulder strain with impingement, 10% each upper extremity 
radiculopathy with residuals, 10% each bilateral lower extremity 
radiculopathy, 10% for each knee [patella femoral syndrome with 
tendonitis], 10% for left ankle sprain, 10% for pes planus, each 
foot, and 10% for recurrent tinnitus.  On 17 November 2007, the 
applicant underwent a polysomnogram after reporting a history of 
snoring, difficulty sleeping at night, and excessive daytime 
sleepiness. The sleep study revealed severe obstructive sleep 
apnea (OSA).  He was prescribed continuous positive airway 
pressure (CPAP) and advised to lose weight 

7.  Reflecting upon the multiple disability ratings awarded by 
the DVA, the Medical Consultant concedes to the appearance of 
“cherry-picking” disabilities by the Military Department.  For 
example, there is evidence that the applicant experienced pain 
in a separate segment of his spine [C-spine], with radiographic 
evidence of degenerative disc disease, similar to that found in 
his lumbosacral spine.  Moreover, although the DVA assigned a 
20% disability rating for the applicant's cervical spine 
degenerative disease and a higher rating for his thoracolumbar 
spine, the evidence shows the applicant's service and 
thoracolumbar spine range of motion would fall within the 10% 
rating, if both were found unfitting; excluding factors not 
documented at the time of the applicant's military service, 
e.g., other disturbances of function, such as gait or weakness 
upon repetitive usage, referred to as “Deluca factor.”  

8.  Attention is directed to an extract from Department of 
Defense Instructions 1332.38, enclosure 3, part 3, paragraph 
E3.P3.3.4, Cause and Effect Relationship, which may help explain 
this situation: “Regardless of the presence of illness or 
injury, inadequate performance of duty, by itself, shall not be 
considered as evidence of unfitness due to physical disability 
unless it is established that there is a cause and effect 
relationship between the two factors.”  The Medical Consultant 
found no cause and effect relationship between the applicant's 
migraine headaches, upper and lower extremity reported radicular 
complaints, ankle pain, bilateral patella-femoral syndrome, pes 
planus, tinnitus, bilateral shoulder ailment, or indeed his 
intervening adjustment disorder, and the cause of the 
termination of his career; none which his providers assigned 
profile restrictions of a sufficient level or duration to 
warrant inclusion as disqualifying during the time of the 
applicant's service or the preparation of his MEB.  The Medical 
Consultant is somewhat troubled by the exclusion of the 
applicant's cervical spine as a separate ratable segment, but 
found the evidence proving individual unfitness inconclusive; 
despite the additional attention made by the service provider 
who requested cervical spine range of motion measurements, 
presumably for inclusion in the MEB proceeding.  

9.  On the other hand, operating under a different set of laws 
(Title 38, U.S.C.), with a different purpose, the DVA is 
authorized to offer compensation for medical condition(s) 
determined as service incurred, without regard to and 
independent of its demonstrated or proven impact upon a service 
member's retainability or fitness to serve.  This is the reason 
why an individual can be found fit or unfit for release from 
military service for one reason and yet sometime thereafter, or 
immediately post-service, receive compensation ratings from the 
DVA for one or more service-connected, but not militarily 
unfitting conditions.  The DVA is also empowered to conduct 
periodic re-evaluations for the purpose of adjusting the 
disability rating awards (increase or decrease) as the level of 
impairment from a given service connected medical condition may 
vary (improve or worsen, affecting future employability) over 
the lifetime of the veteran.  

The complete AFBCMR Medical Consultant evaluation is at 
Exhibit F. 

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to 
the applicant on 26 June 2013 for review and comment within 
30 days (Exhibit G). To date, a response has not been received.  

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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 his rebuttal, 
in judging the merits of the case; however, we find no evidence 
of error in the discharge process and after thoroughly reviewing 
the documentation that has been submitted in support of 
applicant's appeal, we are not persuaded he has suffered from an 
injustice.  We note the applicant’s contention that there were 
multiple indicators of his depression, stress, anxiety, being 
tired, not sleeping well and other health problems.  However, we 
also note that the BCMR Medical Consultant states that he found 
the evidence of unfitness for the long list of the applicant's 
other conditions unproven.  Additionally, the applicant has not 
provided evidence to establish these conditions were present and 
deemed unfitting at the time of his separation and had a cause 
and effect relationship with the conclusion of his military 
service.  Based on the above comments, we agree with the Air 
Force office of primary responsibility and the BCMR Medical 
Consultant’s assessment that the applicant has not been the 
victim of an error or injustice.  Accordingly, the applicant’s 
request is not favorably considered.  

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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.

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The following members of the Board considered this application 
in Executive Session on 28 January 2014, under the provisions of 
AFI 36-2603:

			, Panel Chair
     		        , Member
			, Member

The following documentary evidence was considered in AFBCMR 
Docket Number BC-2013-01659:

    Exhibit A.  DD Form 149, dated 19 March 2013.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPFD, dated 30 April 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 6 May 2013.
    Exhibit E.  Letter, Applicant, not dated, w/atchs.
    Exhibit F.  Letter, AFBCMR Medical Consultant, dated 
18 February 2013.
    Exhibit G.  Letter, SAF/MRBC, dated 26 June 2013.