RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2013-05686

					COUNSEL:  NONE

		HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

His voluntary Reserve retirement be changed to a medical retirement with a 100 percent disability rating.



APPLICANT CONTENDS THAT:

He should have been medically retired with a 100 percent disability rating.  The Air Force formal physical evaluation board (FPEB) found him “unfit for duty” due to coronary artery disease, but only rated him as having a 10 percent disability, while the Department of Veteran Affairs (DVA) rated him as having a 100 percent disability because he had other ratable medical conditions for which the FPEB assigned no rating.  Because he had over 24 years of service at the time, he voluntarily retired.

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



STATEMENT OF FACTS:

The applicant served in the Air Force Reserve in the grade of Master Sergeant (MSgt/E-7) during the matter under review.

On 20 Feb 08, the applicant suffered a heart attack, which resulted in coronary artery bypass surgery on 22 Feb 08.

Effective 28 Mar 10, under Reserve Order EK-3675, dated 27 Apr 10, the applicant was transferred to the Retired Reserve, and will be eligible for retired pay at the age of 60.  

According to the documentation submitted by the applicant, on 3 May 11, the DVA issued him the following service connected disability ratings: 

		a.  Unchanged: coronary artery disease—10 percent; right wrist strain—10 percent; keloid scars—10 percent; eczema—10 percent.

		b.  Increased: general anxiety disorder, increased from 50 percent to 100 percent.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.    



AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice.  Facts of the case include:

		a.  On 18 Jun 09, an informal physical evaluation board (IPEB) determined the applicant’s coronary heart disease was unfitting for continued military service and recommended he be discharged with severance pay with a disability rating of 10 percent.  The applicant non-concurred with the IPEB and requested a formal hearing with counsel. 

		b.  On 30 Jun 09, the FPEB reviewed the case and recommended discharge with severance pay with a disability rating of 10 percent for coronary heart disease, stating “The Board acknowledges the member’s concerns and complaints of pain, however, notes that examination findings show normal functional capacity via echo stress cardiogram and normal left ventricular ejection fraction.”  The applicant did not accept the findings of the FPEB and requested his case be reviewed by the Secretary of the Air Force Personnel Council (SAFPC).

		c.  On 18 Dec 09, SAFPC reviewed the applicant’s case and directed he be discharged with severance pay with a disability rating of 10 percent for coronary heart disease.

The Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws.  Under Title 10, United States Code (USC), PEBs must determine if a member’s condition renders him unfit for continued military service relating to their office, rank, or rating.  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.  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 that 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 the time.  It is the charge of the DVA to pick up where the DoD must, by law, leave off.  Under Title 38, USC, the DVA may rate any service connected condition based upon future employability or reevaluation based on changes in the severity of a condition.  This often results in different ratings by the two agencies.  The documents the applicant submitted from the VA are dated 23 Apr 13, three years after his medical board.  On 23 Apr 13, the document from the VA continued the rating of 10 percent for coronary heart disease. 

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

The BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice.  The records show that in Feb 08 the applicant experienced a heart attack and underwent coronary artery bypass grafting.  An MEB was initially projected to convene on 22 Aug 08, but was halted by the IPEB to allow additional rehabilitation, after noting that his physicians expected him to be able to return to duty.  On 17 Sep 08, the applicant was seen at the Mental Health Clinic where he reported being depressed over his heart attack and related thoughts of death, feeling his life may be over.  He was not placed on any Mental Health profile restrictions.  The provider opined that the applicant was clearly experiencing post–operative depression, and was concerned his episodes of pain could be manifestations of another heart attack.  He was given a diagnosis of Major Depression, single episode.  The applicant continued to present for evaluation of chest pain well into calendar years 2009 and 2010 prior to his release from service, where he underwent additional repeated evaluations, to include echocardiography, treadmill stress tests, and nuclear medicine scans, which demonstrated normal cardiac function.  Disability ratings for coronary artery disease and myocardial infarction are based upon demonstrated cardiac function; sometimes referred to as New York Heart Association Functional Classification.  The DVA Schedule for Rating disabilities indicates the applicant’s coronary artery disease rating fell at or below the criteria for a 10 percent disability rating; as he was also rated by the DVA.  

Addressing the applicant expressed desire for disability ratings for other medical conditions and a medical retirement, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10 USC, only offer compensation for those service incurred diseases or injuries which specifically rendered the member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences.  In the case under review, although the applicant was evaluated and treated for a number of episodic illnesses or injuries during his military service, for which he was awarded disability compensation [right wrist strain, keloid scar, and eczema] by the DVA, none were considered to have interfered with his military service to the extent or duration that warranted inclusion as separately disqualifying medical conditions for inclusion in Medical Evaluation or referral as possibly unfitting conditions via a PEB.  The applicant has not met the burden of proof with regards to inclusion of the somatic complaints for which he received disability ratings.  The Medical Consultant does believe the applicant’s mental status at discharge warrants further consideration. 

A complete copy of the BCMR Medical Consultant evaluation is at Exhibit D.



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 28 Jul 14 for review and comment within 30 days (Exhibit E).  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 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.  We took 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 (OPR) and BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the Board acknowledges the comment by the BCMR Medical Consultant that the applicant’s mental status at the time of his discharge may warrant further consideration, the Board notes that applicant’s mental state was not found unfitting for continued service at the time of his separation, and the applicant has presented any argument or evidence that would convince us that his mental state was somehow unfitting at the time of his separation and therefore compensable under the military disability system.  While the applicant is certainly free to request reconsideration on this point, reconsideration is only authorized upon the presentation of new and relevant evidence.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-05686 in Executive Session on 13 Nov 14 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 18 Nov 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD, dated 6 Mar 14.
Exhibit D.  Memorandum, BCMR Medical Consultant, dated
            27 Jun 14.
Exhibit E.  Letter, SAF/MRBR, dated 28 Jul 14.

						










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