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 DVA’s 
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 applicant’s 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 member’s 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 member’s 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 applicant’s 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 individual’s 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 individual’s 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.

_________________________________________________________________

APPLICANT’S 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 applicant’s 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