RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00105
	 		COUNSEL:  DISABLED AMERICAN
                                 VETERANS (DAV)
			HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

Her medical discharge be changed to a medical retirement.

________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force assigned an incorrect diagnostic code to her 
medical condition, and did not evaluate her disability under 
current Department of Veterans Affairs (DVA) standards.  If 
proper criteria had been applied, she would have received a 
medical retirement.

She was medically discharged with a 10 percent disability rating 
for Postural Orthostatic Tachycardia Syndrome (POTS).

She filed a claim with the DVA on 13 Sep 11, and the DVA awarded 
her an initial evaluation rating of 80 percent for the same 
disability she was discharged for.

The Air Force erroneously assigned an incorrect diagnostic code 
of 7010 and 7346, concerning her heart condition and hiatal 
hernia, respectively.  The DAV assigned the more appropriate 
diagnostic codes of 8999 and 8911, which more closely resembles 
her true disability listed under Epilepsy, Petit Mal.  

In support of her request, the applicant provides copies of her 
DVA rating decision, dated 12 Sep 14 and a letter from a DAV 
National Service Officer.

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

________________________________________________________________

STATEMENT OF FACTS:

On 12 Nov 09, the applicant underwent a Medical Evaluation Board 
(MEB) for POTS.  The MEB referred the case to the Informal 
Physical Evaluation Board (IPEB).  On 30 Mar 10, the IPEB 
recommended discharge with severance pay with a disability 
rating of 10 percent for diagnosis of POTS using Veteran’s 
Affairs Schedule for Rating Disabilities (VASRD) diagnostic 
codes 8299-8210.  The applicant requested a formal hearing with 
counsel. On 16 Jun 10, the Formal Physical Evaluation Board 
(FPEB) reviewed the case file and medical records and also 
recommended discharge with severance pay with a disability 
rating of 10 percent for diagnosis of POTS using VASRD code 
8299-8210.  The FPEB noted:  “The member contends she should 
retire at a compensable disability rating of 30 percent for POTS 
at code 6024.  Per the VASRD, 6204 cannot be utilized without 
‘objective findings supporting the diagnosis of vestibular 
disequilibrium.’ The FPEB concluded her condition is best 
analogized at VASRD code 8210 as related to the vagal nerve.  
The FPEB does not find her disability is characterized as 
‘severe’ at the next highest level based on sensory or motor 
loss to the organs supplied by the vagal nerve, loss of 
consciousness or fainting, and impact to activities of daily 
living.”  

On 17 Jun 10, the applicant non-concurred and requested review 
of her case by the Secretary of the Air Force Personnel Council 
(SAFPC).  On 13 Jul 11, SAFPC directed the applicant be 
discharged with severance pay with a disability rating of 
10 percent for Incomplete, moderate paralysis of the vagus 
nerve.  SAFPC noted: “The Board considered Petit Mal Epilepsy 
(PME), at 80 percent, but after review of all the evidence and 
testimony, recommended discharge with severance pay with a 
disability rating of 10 percent for diagnosis of POTS using 
VASRD 8299-8210.  In Jan 09, the service member presented with 
complaints of lightheadedness ‘all the time’ since Dec 08.  She 
was subsequently diagnosed with POTS…The member noted that she 
had never ‘hit the floor’ in her testimony to the FPEB.  Her 
symptoms have not been severe enough or frequent enough that she 
has had to stop driving.  Although she has had to alter her 
exercise activities and activities of daily living, she has not 
had to abandon them completely.  The Board concurs with the IPEB 
and FPEB that the disability is best rated at 10 percent 
disability for Incomplete, moderate paralysis of the vagus 
nerve.”

On 31 Oct 11, the applicant was discharged by reason of 
Disability, Severance Pay.  She served on active duty for four 
years, five months, and one day.

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force which are at Exhibits C, D, and F.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFD recommends denial, stating in part, that the 
preponderance of the evidence reflects that no error or 
injustice occurred during the disability process and at the time 
of separation.  DPFD states that 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-related condition based on 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 DPFD evaluation is at Exhibit C.

AFPC/JA recommends denial.  JA states that the applicant 
believes that an error or injustice has occurred because the Air 
Force Physical Evaluation Boards (PEBs) did not concur with the 
DVA’s findings that POTS was most analogous to Petit Mal 
Epilepsy with 80 percent disability.  The DVA is responsible for 
providing specific disability percentages for each disease or 
injury the PEB identifies as unfitting.  The IPEB and FPEB 
applied the VASRD code identified by the DVA on the AF Form 356, 
Findings and Recommended Disposition of USAF Physical Evaluation 
Board, as mandated by the 2008 National Defense Authorization 
Act (NDAA).  The 2008 NDAA, section 1652, provided that the 
Secretary of Defense (SECDEF) would be required “to utilize, to 
the extent feasible, the schedule for rating disabilities in use 
by the DVA…”  A 14 Oct 08, SECDEF policy memorandum on 
implementation of the 2008 NDAA provided, “the use of the VASRD 
is statutorily required, ‘to the extent feasible.’”  It further 
stated that a different medical opinion would not constitute 
infeasibility.  Contrary to the applicant’s assertions, the IPEB 
did not fail to properly use the DVA’s standards.  In fact, had 
the IPEB or FPEB reached a different opinion regarding the 
appropriate analogy to apply, the applicant could make the same 
argument.

Disability boards will only rate those conditions which make a 
member unfit for continued active duty.  In this case, the FPEB 
had only one VA-rated disease to consider, e.g., POTS analogized 
to Paralysis of Tenth Cranial Nerve.

The applicant bases her current appeal on a VA letter 
identifying a diagnosis subsequent to the disability boards.  
The IPEB, FPEB, and SAFPC decisions were rendered prior to Sept 
11.  At the time of the disability boards the DVA had not 
diagnosed PME; therefore, it was appropriately not considered by 
the boards.

The complete JA evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues that the purpose of the analogous rating 
system is to appropriately compensate a service member with a 
service-connected disability for which no diagnostic code 
exists.  The current rating assigned to her medical condition, 
Code 8210, is not appropriate as it does not cover the symptoms 
she experiences on a daily basis.  

The rater for her condition only applied a possible etiology for 
its findings and her symptoms are not accounted for.  However, 
the primary symptom she experiences—loss of consciousness is 
accounted for when Code 8911 is applied.  The medical definition 
of loss of consciousness accounts for varying degrees of 
unconsciousness—it does not require that one be laid out on the 
floor.  The FPEB applied an incorrect definition of “hit the 
floor” to describe a loss of consciousness.  

DPFD’s statement about the DVA may reevaluate based on changes 
in the severity of a condition implies that the state of her 
condition changed from when she was found no longer fit for 
service by the PEB and when the DVA evaluated her.  This is not 
correct.  Her condition has not changed in severity, the DVA 
made their rating by correctly applying the laws for analogous 
ratings.  

The code 8911 is more appropriate, as the percentage of 
disability is determined by the number of minor seizures per 
week.  She averages 9-15, 30 second interruptions in 
consciousness every day or 63-105 interruptions per week.  
Therefore, a rating of 80 percent is appropriately applied as it 
requires “more than 10 minor seizures weekly,” a requirement she 
meets.

The applicant's complete response is at Exhibit F.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends relief by offering the 
applicant permanent disability retirement with a 30 percent 
disability rating under VASRD code 8299-8210.

The Medical Consultant points out the applicant has supplied a 
VA rating decision document, dated 29 May 12, which indicates, 
among several other service connected medical conditions, she 
was assigned a 10 percent disability rating for her POTS, 
utilizing analogous VASRD code 8299-8210, effective 1 Nov 11.  
However, a little over three months later, another VA rating 
decision, dated 14 Sep 12, shows that her POTS “currently 
evaluated at 10 percent disabling,” but on page two of the 
document, an apparent undated/changed decision show, “We have 
assigned an 80 percent evaluation for your epilepsy, petit mal 
based on: More than ten minor seizures weekly.  Additional 
symptom(s) include:  continuous medication is shown necessary 
for the control of epilepsy.”  

The fact that the choice of VASRD code and disability rating was 
later changed by the DVA after the applicant’s release from 
service does not automatically infer that an error has been made 
by the Military Department.

The Medical Consultant is also familiar with the common use of 
VASRD code 8210 for vasovagal or neurocardiogenic syncope 
[fainting].  Although the applicant’s medical condition is 
clinical manifest, in part, as fainting, it does not fully 
explain the depth, severity, and unknown duration of her medical 
condition.  A review of the cardiovascular system and neurologic 
Disability Benefits Questionnaires (DBQs) completed by the DVA 
medical examiner, and likely utilized in reaching its rating 
decision, contains findings and comments not depicted in the 
military MEB narrative summary, which the Medical Consultant has 
noted in his evaluation.  

The complete BCMR Medical Consultant’s evaluation, with 
attachment, is at Exhibit G.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 27 Sep 13, a copy of the Air Force evaluation was forwarded 
to the applicant for review and comment within 30 days (Exhibit 
H).  As of this date, this office has received no 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.  Sufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  After 
carefully reviewing the evidence of record, and taking into 
consideration the comments of the Air Force Offices of Primary 
Responsibility (OPRs) and the BCMR Medical Consultant, we 
believe that relief is warranted.  In this respect, the 
applicant is requesting that her medical discharge be changed to 
a medical retirement based on the 80 percent DVA rating she 
received at the time of her separation for the same condition 
she was discharged for.  We note that the BCMR Medical 
Consultant has thoroughly reviewed the evidence in this case, 
and recommends adjusting the disability rating for her POTS to 
30 percent, and we agree with his analysis and recommendation.  
As noted in the BCMR Medical Consultant’s evaluation, a 
memorandum from a heart specialist, dated 12 May 10 states that 
the applicant had a “rather severe form” of her medical 
condition that “dramatically affects her ability to stand and 
function in the standing position,” which resulted in “frequent 
episodes of hypotension” and “occasionally loss of 
consciousness.”  This brings into question whether the 
applicant’s medical condition was adequately represented by a 
10 percent disability rating at the time of her separation.  
That being said, we accept the opinion and recommendation of the 
BCMR Medical Consultant to re-characterize the applicant’s 
medical condition as “Incomplete, Severe,” under the analogous 
VASRD code 8299-8210, with assignment of a disability rating of 
30 percent, and permanent disability retirement effective the 
previously established date of separation.  Accordingly, the 
applicant’s record should be corrected to the extent indicated 
below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

	a.  On 13 Jul 11, the applicant was found unfit to perform 
the duties of her office, rank, grade, or rating by reason of 
physical disability, incurred while she was entitled to receive 
basic pay; that the diagnosis in her case was Postural 
Orthostatic Tachycardia Syndrome, a condition which is rated at 
a compensable percentage of 30 percent, under Veterans 
Administration Schedule for Rating Disabilities (VASRD) code 
8299-8210; 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 
in the line of duty as a direct result of armed conflict or 
caused by an instrumentality of war.

	b.  She was discharged from active duty on 31 Oct 11, and 
on 1 Nov 11, she was permanently retired by reason of physical 
disability with a 30 percent compensable disability rating.

	c.  The election of Survivor Benefit Plan option(s), will 
be corrected in accordance with the applicant’s 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-2013-00105 in Executive Session on 29 Oct 13, under 
the provisions of AFI 36-2603:

	, Jr., Panel Chair
	, Member
	, Member

All members voted to correct the records, as recommended.  The 
following documentary evidence pertaining to Docket Number     
BC-2013-00105 was considered was considered:

     Exhibit A.  DD Form 149, dated 18 Dec 12, w/atchs.
     Exhibit B.  Applicant’s Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPFD, dated 5 Mar 13.
     Exhibit D.  Letter, AFPC/JA, dated 11 Mar 13.
     Exhibit E.  Letter, SAF/MRBR, dated 22 Mar 13.
     Exhibit F.  Rebuttal, Applicant, dated 6 Apr 13.
     Exhibit G.  Letter, BCMR Medical Consultant, 
                 dated 27 Sep 13, w/atch.
     Exhibit H.  Letter, SAF/MRBC, dated 27 Sep 13.




                                   
                                   Panel Chair