RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-02860
COUNSEL: NO
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His combined disability rating assigned during the Medical
Evaluation Board (MEB) process be reassessed for accuracy and
fairness.
_________________________________________________________________
APPLICANT CONTENDS THAT:
His disability rating of 20 percent does not accurately reflect
or align with the findings of the Department of Veterans Affairs
(DVA) garnered percentage nor does it accurately include chronic
conditions and associated residuals which led to the MEB. The
DVA reevaluated his condition and residuals and granted a
70 percent disability rating. He believes the MEB rating is
unjust given the condition and should align more with the DVAs
rating.
In support of his request, the applicant provides copies of DD
Form 294, Application for a Review by the Physical Disability
Board of Review (PDBR) of the Rating Awarded accompanying a
Medical Separation from the Armed Forces of the United States;
DVA Decision Review Officer Decision, and other various
documentation in support of his appeal.
The applicant's complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 23 Nov 10, a 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 chronic neck pain and decreased range of motion. On
7 Dec 10, the applicant was informed of the findings and
recommendation of the MEB.
On 13 Jan 11, the IPEB reviewed the case and found the
applicant unfit and recommended discharge with severance pay and
a disability rating of 20 percent for chronic neck pain due to
degenerative disc disease status post C3-6 fusion. The IPEB
noted the applicants medical condition prevented him from
reasonably performing the duties of his office, grade, rank or
rating.
On 18 Jan 11, the applicant concurred with the findings and
recommended disposition of the IPEB and waived his right to a
formal PEB hearing.
On 25 Jan 11, officials within the Office of the Secretary of
the Air Force (OSAF) determined the applicant to be physically
unfit for continued military service and directed an honorable
discharge with severance pay and a disability rating of
20 percent under the provisions of Title 10, United States Code
(USC), Section 1203.
On 23 Apr 11, the applicant was discharged with a narrative
reason for separation of Disability, Severance Pay, Non-Combat.
He was credited with 13 years, 10 months and 20 days of active
service.
According to the DVA Rating Decision, dated 16 Jan 13, the
applicant was granted with an evaluation of 30 percent for
migraine headaches; zero percent for hemorrhoids; cervical spine
degenerative disc disease was increased from 10 percent to
20 percent; right cubital tunnel syndrome was increased from
zero percent to 20 percent; right shoulder bursitis was
increased from zero percent to 10 percent; neck scar status post
cervical spine fusion was increased from zero percent to
10 percent; and irritable bowel syndrome and gastroesophageal
reflux disease was increased from zero percent to 10 percent.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPSD recommends denial. The preponderance of evidence
reflects that no error or injustice occurred during the
disability process or at the time of separation.
The applicant was not boarded for migraine headaches and there
was no mention of migraine headaches in the past medical history
on the narrative summary.
It should be noted that the documents the applicant submitted
from the DVA shows that they also awarded him 20 percent for his
cervical spine. The applicant had the right to appeal for a
formal hearing at the Formal PEB and could have appealed their
findings to the Secretary of the Air Force Personnel Council
(SAFPC). The applicant did not exercise either one of these
appeal rights.
The Department of Defense (DoD) and the DVA Disability
Evaluation System (DES) operate under separate laws. Under
Title 10 USC, PEBs must determine if a members condition
renders then 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 premature termination of their career. Further, it must be
noted the United States Air Force disability boards must rate
disabilities based on the members 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 revaluate based on changes in the severity of a condition.
The complete DPFD evaluation is at Exhibit C.
The BCMR Medical Consultant recommends denial. The Medical
Consultant concurs with the recommendation of the IPEB for a
discharge with severance pay with a 20 percent disability rating
for chronic neck pain as the only condition found to be
unfitting for continued military service at the time of
separation.
A review of the documentation provided for the review indicates
a well-established history of chronic neck pain beginning in 09,
although no clearly identified precipitating event was
indicated. Records indicated cervical disc degenerative joint
disease was a probable cause. Due to the applicants inability
to adequately perform his Air Force Specialty Code (AFSC) duty
requirements including significant profile limitations, he was
referred for an MEB. The Medical Consultant opines that the
assignment of a 20 percent disability rating for cervical spine
flexibility was accurate. The Medical Consultant notes other
conditions identified by the DVA which resulted in an aggregate
assignment of a 70 percent disability rating over an extended
rating period. However, the Medical Consultant concludes that
the mere existence of these other chronic diagnoses does not
provide adequate evidence of an unfitting condition.
The Military DES, established to maintain a fit and vital
fighting force, can by law under Title 10, only offer
compensation for those service-incurred diseases or injuries
which specifically rendered a member unfit for continued active
service, were the cause for termination of their career, and
then only for the degree of impairment present at the time of
separation and not based on future possibilities. For an
individual to be considered unfit for continued military service
there must be a medical condition that prevents performance of
any work commensurate with rank and experience or precludes
assignment to military duties.
The military service disability systems, operating under Title
10, and the DVA disability system, operating under Title 38, are
complementary systems not intended to be duplicative. The mere
presence of a medical condition does not qualify a member for a
disability evaluation. Title 38, takes into account the fact
that a person can acquire physical conditions that, although not
unfitting at the time of separation, may later progress in
severity and alter the individuals lifestyle and future
employability. This is the reason why an individual can be
found fit for service and yet sometime thereafter receives a
compensation rating from the DVA for service-connected, but
militarily non-unfitting conditions. In addition, Title 38,
authorizes the VA to increase or decrease the VA compensation
ratings based upon the individuals condition at the time of
future evaluations. Thus the two systems represent a continuum
of medical care and disability compensation that starts with
entry on active duty and extends for the life of the veteran.
The complete BCMR Medical Consultant evaluation is at Exhibit D.
_________________________________________________________________
APPLICANTS REVIEW OF THE AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the
applicant on 31 Oct 13, for review and comment within 30 days
(Exhibit E). As of this date, this office has not received a
response.
_________________________________________________________________
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 injustice. We took
careful notice of the applicants complete submission in judging
the merits of the case; however, we agree with the opinions and
recommendations of the Air Force office of primary
responsibility AFPC/DPFD and the BCMR Medical Consultant and
adopt the rationale expressed as the basis for our conclusion
the applicant has not been the victim of an error or injustice.
Therefore, in view of the above and 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 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-2013-02860 in Executive Session on 24 Apr 14, under
the provisions of AFI 36-2603:
Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 29 May 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPFD, dated 26 Jun 13.
Exhibit D. Letter, BCMR Medical Consultant, dated 30 Oct 13.
Exhibit E. Letter, SAF/MRBR, dated 31 Oct 13.
Chair
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