RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-00325

					COUNSEL:  NONE

		HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

His disability discharge with severance pay be changed to a 
medical retirement.


APPLICANT CONTENDS THAT:

His current Air Force disability rating was based on conditions 
that were on-going in which medical services had not been 
completed.  He had other medical conditions that were denied by 
the Department of Veterans Affairs (DVA) that were recorded in 
his records.  Had those medical conditions along with the new 
medical conditions been applied towards his Medical Evaluation 
Board (MEB) his overall disability would have been above 
20 percent.  During the few months that followed his disability 
discharge, he was diagnosed with Lymphocytic Colitis, which is a 
condition currently being vetted through the DVA.  Had he been 
on active duty at the time, the condition should have been 
included in the MEB case and would have resulted in an increased 
rating.  Finally, medical conditions for which he was being 
treated were not included in the MEB package which was requested 
by his provider.

At the time of his disability processing he had served over 18 
years of service and should have been allowed to continue to 
serve the required time to achieve a length of service 
retirement.

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


STATEMENT OF FACTS:

On 3 Aug 94, the applicant commenced his enlistment in the 
Regular Air Force.

On 23 Mar 12, the applicant underwent an examination for an MEB 
for Obstructive Sleep Apnea (OSA), Degenerative Disk Disease 
(DDD), Osteoporosis, and recurrent abdominal pain.  The medical 
provider recommended the applicant meet an MEB due to the 
requirement for strict profile limitations for fitness and duty.  
It was noted the applicant was not deployable and could not wear 
full body gear. 

On 17 Apr 12, the MEB reviewed the applicant’s case and referred 
it to the Informal Physical Evaluation Board (IPEB).

On 31 May 12, the IPEB reviewed the applicant’s case and found 
him unfit and forwarded his case to the DVA for a compensation 
rating.  

The DVA assigned a combined compensable rating of 20 percent for 
the applicant’s unfitting conditions and recommended discharge 
with severance pay.

On 25 Sep 12, the applicant concurred with findings and 
recommendation of the IPEB. 

On 28 Oct 12, the applicant was furnished an honorable 
discharge, with a narrative reason for separation of disability, 
severance pay, non-combat.  He was credited with 18 years, 
2 months, and 26 days of active service.   


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating there is no evidence of 
an error or an injustice.  The applicant did not appeal to the 
Formal Physical Evaluation Board (FPEB) or the Secretary Air 
Force Personnel Council (SAFPC).  The applicant provided 
documents from the DVA, dated 30 Jan 13, which reflects the same 
disability rating as at the time he was found unfit for his 
boarded conditions.

The Department of Defense (DoD) and the DVA disability 
evaluation systems operate under separate laws.  Under Title 10, 
USC, a PEB must determine if a condition renders a member unfit 
for continued military service.  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 individual 
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 the service disability boards must rate 
disabilities based on the individual's condition at the time of 
evaluation.  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.

A complete copy of the AFPC/DPFD evaluation is at Exhibit C.
The AFBCMR Medical Consultant recommends denial indicating there 
is no evidence of an error or injustice.  The Medical Consultant 
concurs with the case analysis by AFPC/DPFD, but notes the 
applicant’s headaches should have received consideration by the 
MEB and IPEB as either a primary condition or as associated with 
the cervical spine fusion.  However, at the time of his 
Compensation & Pension evaluation, the examiner found no 
diagnosable or quantifiable illness in relation to his medical 
conditions.  The Medical Consultant finds evidence that the 
applicant's headaches could have been included on the MEB 
coversheet as a potentially unfitting medical condition, which 
more than likely would not have increased his overall disability 
rating.

In regards to the applicant' newly diagnosed Lymphocytic 
Colitis, this microscopic finding alone does not automatically 
justify a separate unfit finding or the assignment of a higher 
disability rating under a new or hyphenated VASRD code; at the 
risk of pyramiding disability ratings for an already established 
inflammatory or infectious colon condition, diverticulitis, 
which required a partial colectomy.  The disability ratings for 
the colitis of different types and forms are based upon severity 
and frequency of clinical presentations.  There is no evidence 
indicating a display of symptoms specifically unique to 
Lymphocytic Colitis during the applicant's military service, 
even though the microscopic findings, a mere four months post-
service, likely establishes a nexus with his time in military 
service.

Under the provisions of Title 10, United States Code (U.S.C.), 
the Military Department can only assign disability ratings based 
upon clinical findings present at the "snap shot" time of final 
military disposition; and not upon future occurrences or post-
service progression of disease.  The DVA operates under the 
provisions of Title 38, U.S.C., is empowered to conduct periodic 
re-evaluations for the purpose of adjusting the disability 
rating for a given medical condition, as its severity or level 
of impairment may vary over the lifetime of the veteran.  This 
includes possible future increases in ratings for conditions 
previously rated at zero percent. 

In regards to the applicant’s request for a length of service 
retirement, the Medical Consultant finds the applicant has not 
met the burden of proof of error or injustice that warrants a 
length of service retirement.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues the advisory opinion is not accurate.
Prior to 2009, he was a strong, healthy and active service 
member with a great record and potential for promotion to SMSgt. 
When he returned from Iraq in 2009 his health started to 
decline.  He underwent three major surgeries but continued to 
experience pain throughout various parts of his body.  During 
this stressful time, he suffered from depression and anxiety and 
was diagnosed with an adjustment disorder.  Also, he was 
embarrassed because he was "MSgt who couldn't do anything" which 
made him feel that he was not part of the unit.  With all that 
he was going through when the results came in for separation he 
just accepted it to rid himself of the situation.  He did not 
elect an impartial review board because the MEB office told him 
that it was just a review and it doesn't change anything.

The physician assistant did not do her duties appropriately.  He 
had a new range of motion exam conducted by the DVA which more 
accurately reflects his range of motion.  It shows his neck is 
significantly affected and his lower back moderately affected.  
He has submitted this information with his appeal and believes 
it will result in an increase is his rating.  Although the 
physician assistant indicated he was not having migraines; his 
current physician disagrees and has prescribed medication for 
migraines, which he is currently taking.  While the advisory 
writer indicates he would more than likely not get a rating or a 
zero rating for his migraines, he disagrees based on the 
severity of his migraines and cluster headaches which he often 
experiences.  His migraines are being reconsidered in his appeal 
and it is expected to increase in rating.

His rating for the hemicolectomy was increased to 40 percent 
which is the highest rating for this condition.  Since the 
rating was a reflection based on severity and military service, 
had this been reflected during the MEB process, this would have 
resulted in an increase in the rating resulting in a medical 
retirement instead of medical separation.

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


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.  The 
applicant alleges he should have received a disability rating to 
allow him to receive a medical retirement.  We took notice of 
the applicant’s complete submission, to include his rebuttal 
response, in judging the merits of the case; however, we do not 
find the evidence presented sufficient to override the rationale 
provided by the Air Force office of primary responsibility and 
the AFBCMR Medical Consultant.  We found no evidence of an error 
or injustice in the applicant’s disability discharge processing.  
The applicant was separated for unfitting conditions that 
interfered with his ability to continue to serve on active duty 
and was rated based on the seriousness of his conditions at the 
time of separation in accordance with governing policy.  
Therefore, we agree with the opinions and recommendations of the 
Air Force offices of primary responsibility (OPR) and adopt 
their rationale as the basis for our conclusion the applicant 
has not been the victim of an error of injustice.  Therefore, in 
the absence of evidence to the contrary, we find no basis to 
recommend granting the requested relief.

4.  The applicant’s case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.


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-2014-00325 in Executive Session on 27 Jan 15 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining AFBCMR Docket 
Number BC-2014-00325 was considered:

	Exhibit A.  DD Form 149, dated 21 Jan 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD, dated 7 Feb 14.
	Exhibit D.  Memorandum, AFBCMR Medical Consultant, dated
	            18 Sep 14.
        Exhibit E.  Letter, SAF/MRBR, dated 7 Oct 14.
        Exhibit F.  Letter, Applicant, dated 15 Oct 14, w/atchs.