RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-05504
		
			COUNSEL:  NONE

			HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

He be medically retired.


APPLICANT CONTENDS THAT:

In May 2012 he received a medical discharge for bilateral 
osteoarthritis of the knees.  He was rated 20% and received 
severance pay.  There were several errors that conflicted with the 
information he and his attorney presented during his Medical 
Evaluation Board (MEB).  

He has submitted documentation that supports he needed a total 
knee replacement which should have been completed while he was on 
active duty.  The information clearly demonstrates the physician’s 
reluctance to perform the surgery based on his age.  He had severe 
degeneration of both knees over a 10-year period that warranted 
knee replacements.  Refusing to provide surgery based on the 
principal that he was too young was a violation of his patient 
rights.  He had the right to accept the risks; however, he was not 
afforded that opportunity.  

During the MEB, the Board documented they observed him extending 
his legs to zero degrees.  They were 15 feet across the room and 
he was wearing his airman battle uniform.  This was an error.  The 
Board clearly ignored documentation from his primary care manager 
and his physical therapist supporting the fact that he had limited 
extension, which would have qualified him for a medical 
retirement. 

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


STATEMENT OF FACTS:

The applicant is a former member of the Air Force who enlisted on 
26 August 1998.  

On 1 July 2011, the Informal Physical Disability Evaluation Board 
(IPEB) recommended he be discharged with severance pay (DWSP) with 
a disability rating of 20%. 

On 2 September 2011, the Formal Evaluation Board (FEB) recommended 
he be discharged with severance pay with a disability rating of 
20%.  The applicant disagreed with the findings and recommendation 
and requested his case be referred to the Secretary of the Air 
Force Personnel Council for review.

On 19 March 2012, the Secretary of the Air Force directed the 
applicant be discharged with severance pay with a disability 
rating of 20%.


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial. The IPEB reviewed the applicant’s 
case on 11 July 2011 and recommended DWSP with a disability 
rating of 20% for diagnosis of severe compartmental 
osteoarthritis bilateral knees.  

On 15 July 2011, the applicant non-concurred and requested a 
formal hearing with counsel.  The FEB reviewed his case with 
medical records on 2 September 2011 and also recommended DWSP 
with a disability rating of 20% for diagnosis of severe 
compartmental osteoarthritis bilateral knees.

On 6 September 2011, the applicant requested his case with 
rebuttal, be reviewed by the Secretary of the Air Force Personnel 
Counsel (SAFPC).  On 19 March 2012, SAFPC directed that 
applicant be DWSP with a rating of 20%.  The Board noted:   
"While the Board acknowledged the multiple procedures to repair 
or remove meniscal (semilunar) cartilage endured by the member in 
the past, the Board found that the member's current symptoms and 
disability are related to the damage and destruction of the 
articular cartilage in both knees.  The resultant severe 
tricompartmental arthritis, documented on radiographs and in 
medical notes, was the cause of the pain, effusions and 
crepitation documented.  There was no medical documentation that 
any of his current symptoms were caused by meniscalteprs or 
meniscal dislocations.  Thus, VASRD Code 5003, "Degenerative 
Arthritis" reflects the etiology and character of the member's 
disability better than VASRD Code 5259, "Cartilage, Semilunar, 
Removal of Symptomatic".  VASRD Code 5258 is inappropriate as 
the member does not currently have "locking" episodes of the 
knees that can be attributed to displaced or tom semilunar 
cartilage (meniscus).

Documents submitted by applicant indicate he underwent successful 
left total knee arthroplasty at on 9 January 2013.  The 
discharge message was sent out which established his date of 
separation as 28 July 2012.  He served 13 years, 11 months and 
3 days of active service.

As background, the Department of Defense and the Department of 
Veterans Affairs (DVA) disability evaluation systems operate 
under separate laws.  Under Title 10, USC, 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. The fact that a person may have a medical 
condition does not mean that 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 
their 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 changes in the severity of a condition.

The preponderance of the evidence reflects that no error or 
injustice occurred during the disability process.

A complete copy of the DPFC evaluation is at Exhibit C.  


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the findings and feels that his 
intentions were not transparent for the Board.  It is clear his 
commander did not expect him to return to active duty, thus 
warranting a formal interview with him to discuss his options.  
His commander violated protocol and put little thought into the 
decision to separate him.  He is not questioning the Medical 
Evaluation Board process, he is questioning the fact that it 
happened in the first place.  Evidence has been presented to show 
a severe detrition of his condition.  The Air Force was negligent 
in providing care for him.  For this reason, he requests to be 
medially retired.

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


ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends approval.  The applicant 
was assigned to an overseas location during his final period of 
service.  He had endured degenerative joint disease without 
surgery for approximately 10 years.  Ultimately, it interfered 
with his ability to maintain fitness standards and became an 
implicit threat for administrative discharge.  
At the same time, due to the severity of his condition and the 
duration of time under profile/mobility restrictions, his 
condition warranted Medical Evaluation Boards; first in 2001, 
after which he was returned to duty, and finally in 2011, 
following which he was found unfit. 

Moreover, due to the intractability and severity of the 
arthritis, despite multiple arthroscopic surgeries on both 
knees, his clinicians opined that the next step in resolving the 
problem would be to perform knee joint replacement; an opinion 
which is expressed more than once in the applicant's service 
treatment record.  For example, the MEB narrative summary, dated 
13 March 2011, shows that his condition had "progressed to the 
point where his orthopedic physician has recommended that 
bilateral knee joint replacements are needed" and that "no other 
treatment options appear prudent aside from surgery."  Also 
extracted from the commander's mission impact letter to the MEB 
are the following statements:  "Unfortunately, the only way to 
improve his condition is for him to have total knee 
replacements per his PCM. Without having this surgery I 
believe eventually he will not be able to perform his primary 
duties due to not being able to stand for extended periods of 
time.”  On 20 May 2011, an entry by the orthopedic surgeon at 
the medical group reads, "The worst degenerative joint disease 
I have ever seen; certainly the worst I have seen in someone of 
his age." However, due in part to the applicant's youthful age 
and the recognized likelihood for requiring future revision 
surgery, the surgeon expressed his reluctance to perform the 
procedure; while conceding the severity of the condition could 
warrant the procedure sooner than later."  Additionally, the 
narrative summary indicates that the procedure was not 
available at the applicant's assigned base in the following: 
"The current recommended treatment isn't available on base and 
so any such treatment will need to be coordinated at this 
point. I cannot anticipate that his disability will improve 
without this surgery being performed."  There is no indication 
that such a referral took place prior to the applicant's 
discharge.

There are multiple statements by the applicant's military 
providers suggesting that he needed a joint replacement.  The 
fact that the procedure was not conducted while the applicant 
was on active duty creates a sense of injustice; particularly 
since the procedure was planned and performed only a few months 
after his discharge at a military medical facility.  

Although the ultimate objective of relieving the applicant's pain 
and suffering was achieved in January 2013, had the procedure 
been performed while in uniform, he would have been eligible for 
a medical retirement with a minimum 30% disability rating for 
the left knee joint replacement.  At the same time, one can 
conceive that due to the medical facility limitations, the fact 
that the applicant had endured a 10-year long history of 
degenerative arthritis, it was likely determined there was no 
urgent need to now retain the applicant under medical hold in 
order to conduct the procedure or for its convalescence.  

The applicant underwent an MEB for the long-standing history of 
degenerative arthritis.  There is no documented evidence of 
dialogue between the applicant and his surgeon regarding any 
interest or insistence by the applicant to complete the surgery 
before discharge.  Other than the post-service statements of 
record alleging his rights were violated, there is no evidence of 
disagreement with his provider's concern for premature operation 
due to his youthful age.

Although the applicant has also presented arguments for rating 
his condition under alternative Veteran’s Affairs rating 
codes, the underlying knee pathology [degenerative arthritis] 
and the range of motion measurements in the service treatment 
record, as noted by previous boards, fell short of the threshold 
for the desired disability ratings and the desired disability 
rating codes.  The applicant's post-service assessment during his 
Compensation and Pension examination of December 2012, while 
presumed legitimate, is not reflective of the physical findings 
demonstrated at the "snap-shot" time of the applicant's military 
service and do not prove an error or injustice in the actions by 
the Military Department.

However, when collectively considering the consistent 
recommendations for joint replacement, the apparent unfulfilled 
external consultation with a joint replacement surgeon, the lack 
of availability of the procedure on base, and the fact that the 
applicant received the joint replacement upon his return to 
continental United States, then the Board may consider, as a 
matter of justice, granting the applicant a permanent retirement 
with a combined disability rating of 40%, achieved by combining 
a 30% disability rating for the left knee arthroplasty, under 
VASRD code 5055, and a 10% disability rating assigned for the 
right knee degenerative arthritis, under the existing service-
designated VASRD code of 5099-5003.

The BCMR Medical Consultants complete evaluation, with attachment, 
is at Exhibit F. 


APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant 
on 12 December 2014, for review and comment within 30 days 
(Exhibit G).  As of this date, no response has been received by 
this office.





THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing 
law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate 
the existence of an injustice.  We thoroughly reviewed the 
applicant’s complete submission and AFPC/DPFD’s recommendation to 
deny the applicant’s request.  However, we believe a preponderance 
of the evidence supports corrective action.  The BCMR Medical 
Consultant notes “multiple statements by the applicant's military 
providers suggesting that he needed a joint replacement.”  We 
agree with the opinion and recommendation of the BCMR Medical 
Consultant and adopt his rationale as the basis for our conclusion 
that had the applicant undergone the suggested surgery while on 
active duty, he would be entitled to a medical retirement.  As 
such, we find sufficient basis to conclude he has been the victim 
of an injustice and therefore, recommend the applicant’s record be 
corrected as indicated below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force 
relating to the APPLICANT be corrected to show that 

	a.	On 27 July 2012, he was found unfit to perform the duties 
of his office, rank, grade, or rating by reason of physical 
disability, incurred while he was entitled to receive basic pay; 
that the diagnosis in his case was left degenerative arthritis, 
status-post left knee total arthroplasty, VASRD code 5055, rated 
at 30%, and right knee degenerative arthritis, under VASRD code 
5099-5003, rated at 10%; and that the combined disability 
compensable rating was 40%; that the degree of impairment was 
permanent; that the disability was not due to intentional 
misconduct or willful neglect; that the disability was not 
incurred during a period of unauthorized absence; and that the 
disability was not received as a direct result of armed conflict 
or caused by an instrumentality of war.

	b.	On 28 July 2012, he was not honorably discharged with 
entitlement to disability severance pay; rather, on that date he 
was released from active duty and on 29 July 2012 his name was 
placed on the Permanent Disability Retired List. 

	c.	His election of Survivor Benefit Plan option will be 
corrected in accordance with his expressed preferences and/or as 
otherwise provided for by law or the Code of Federal Regulations.


The following members of the Board considered AFBCMR Docket Number 
BC-2013-05504 in Executive Session on 12 March 2015, under the 
provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The 
following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 22 Nov 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Record Excerpts.
	Exhibit C.  Letter, AFPC/DPFD, dated 17 Jan 14.
	Exhibit D.  Letter, SAF/MRBR, dated 29 Aug 14.
	Exhibit E.  Letter, Applicant’s Rebuttal, dated 26 Sep 14,
                 w/atchs.
	Exhibit F.  BCMR Medical Consultant, dated 4 Dec 14, 
                 w/atchs.
	Exhibit G.  Letter, SAF/MRBR, dated 12 Dec 14.