RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER: BC-2014-00766

	 XXXXXXXXXX	COUNSEL: NONE

			HEARING DESIRED: YES


APPLICANT REQUESTS THAT:

Her discharge with severance pay be changed to a medical 
retirement.


APPLICANT CONTENDS THAT:

There is supporting evidence to prove she should have been 
discharged with a 50 percent disability rating for “claw feet.”  
The treatment for her feet was not completed prior to her 
medical board.

Her leadership submitted a request to dismiss the first medical 
board findings or to allow for a second board due to the change 
in her condition.  They felt she needed sufficient time to heal 
from her surgery to ascertain if the surgery corrected her 
condition and would enable her to return to duty.  However, this 
request was denied and placed her in a worse state than she had 
been at the time of her board.

Her knee was not considered by the board, which is a 
contributing factor as to why she is unable to stand 
comfortably.  The Department of Veterans Affairs (DVA) granted a 
50 percent disability rating for her feet.  She was told the 
board uses the DVA rating scale and questions why she did not 
receive an initial rating of 50 percent by the Air Force.

In support of her request, the applicant provides a personal 
statement and a copy of a Veteran Service Office form.

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


STATEMENT OF FACTS:

On 17 July 2002, the applicant enlisted in the Regular Air 
Force.

According to AF Form 356, Findings and Recommended Disposition 
of USAF Physical Evaluation Board, dated 28 January 2011, the 
IPEB found the applicant unfit based on a diagnosis of bilateral 
foot pain and recommended discharge with severance pay with a 
10 percent disability rating in accordance with Department of 
Defense (DoD) guidance for applying the Veterans Administration 
Schedule for Rating Disabilities (VASRD) code 5299-5276 [pes 
planus].

According to AF Form 1180, Action on Informal Physical 
Evaluation Board Findings and Recommended Disposition, dated 
31 January 2011, the applicant disagreed with the findings of 
the IPEB.

According to AF Form 356, Findings and Recommended Disposition 
of USAF Physical Evaluation Board, dated 9 March 2011, the 
applicant appealed to the Formal PEB (FPEB) stating the 
appropriate coding for her foot pain is Claw Foot [pes cavus] 
with a 50 percent disability rating under VASRD code, 5278.  The 
FPEB upheld the decision of the IPEB.

According to AF Form 1180, dated 9 March 2011, the applicant 
agreed with the findings of the FPEB.

According to a memorandum dated 3 May 2011, the medical group 
commander petitioned AFPC/DPAMM to recall the applicant's 
Medical Evaluation Board (MEB) because she was scheduled for an 
outpatient surgery on 6 May 2011, which could cure her chronic 
bilateral foot pain.  However, AFPC/DPFD denied the request.

According to AFPC/DPFD memorandum dated 5 May 2011, the 
Secretary of the Air Force directed the applicant be separated 
from active service for a physical disability.

According to the applicant’s DD Form 214, Certificate of Release 
or Discharge from Active Duty, on 28 June 2011, she was 
honorably discharged from the Air Force.  Her narrative reason 
for separation is “Disability, Severance Pay, Combat Related.”  
She served 8 years, 11 months and 12 days of active duty.


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial.  The preponderance of evidence 
reflects that no error or injustice occurred during the 
disability process. The IPEB recommended the applicant be 
discharged with severance pay with a disability rating of 
10 percent for diagnosis of bilateral foot pain.  On 31 January 
2011 the applicant non­concurred with the findings and requested 
a formal hearing with counsel.  The FPEB reviewed her case file 
with medical records on 9 March 2011.  

The FPEB noted that while it appeared that she had hammer toes, 
it was not shown to be unfitting, and not sufficient to justify 
a 50 percent disability rating.  The Board opined that her 
medical condition was best analogized to pes planus.  The FPEB 
recommended discharge with severance pay with a disability 
rating of 10 percent for her diagnosis of bilateral foot pain.

The 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 that time.

The applicant did not submit any new medical documents or a 
rating decision from the DVA.

The complete DPFD evaluation is at Exhibit C.

The BCMR Medical Consultant recommends denial.  Based upon the 
preponderance of evidence in its current form, the Medical 
Consultant recommends denial of the applicant's petition to 
supplant her discharge with a medical retirement.

As a matter of justice, any illness or injury occurring before 
a member is discharged should be taken into consideration in 
the narrative reason for discharge, and in the case of a 
disability, warrants an assessment of the severity of the 
condition and impact on retention.  Although forewarned by 
DPFD regarding a favorable surgical outcome, the applicant 
proceeded with a second surgery; approved by DPAMM largely 
under the policy that it was requested and would be completed 
within 6 months of separation date.  Based upon the clinical 
assessment by the DVA, it is evident the applicant received a 
higher disability rating for her foot condition and that it 
was under a different VASRD code than utilized by the 
Military Department.  However, as stated in the DPFD advisory, 
the Military Department bases its decision on the evidence 
present at the “snap shot” time of final military disposition.  
However, considering that the evidence at the “snap shot” taken 
at the time of the applicant's MEB/PEB action and that which 
was likely present after the MEB/PEB action, but before her 
actual release [still on our watch] from military service is 
the crux of the applicant's appeal.  While one could argue the 
applicant electively chose to pursue additional surgery at her 
own risk, as it was her approved right to do, the question is 
whether she should be penalized for the less than optimal 
outcome that occurred before her discharge, also affecting her 
fitness to serve.   The Medical Consultant found no error in 
the applicant's discharge actions, but concedes the appearance 
of a possible injustice to her if her condition was worse than 
it was when she first met the IPEB and FPEB and prior to her 
discharge.

The Medical Consultant has not been supplied the actual DVA 
rating documentation, the date of the examination utilized in 
making its rating decision, nor the rationale for the rating 
decision. This additional information would be most helpful 
in reconsideration of the applicant's petition.

The complete BCMR Medical Consultant’s evaluation is at Exhibit 
D.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 21 December 2014, the applicant supplied copies of the DVA 
rating decisions issued on 20 August 2011 and 8 February 2012, 
assigning her a 20 percent disability rating for each foot under 
VASRD code 5284, Foot Injuries, Other, among other ratings for 
unrelated conditions, effective 29 June 2011.

Her complete submission is at Exhibit F.


ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends amending the applicant’s 
record to reflect that she was found unfit and placed on the 
Temporary Disability Retired List (TDRL) with a combined 
disability rating of 40 percent [20 percent rating for each foot] 
under VASRD code 5284, Foot Injuries, Other, moderately severe, 
effective 28 June 2011.

There was no error in the processing of the applicant’s 
disability case and she was afforded the opportunity for 
appellate review, leading to her agreement with the final 
disposition of her case.  The issue of a possible injustice 
warrants further exploration.

Under the Integrated Disability Evaluation System (DES), only 
the DVA determines disability ratings, whereas the Military 
Department only assigns the rating(s) to the unfitting medical 
condition(s).  Following this reasoning one could conclude that 
assigning the rating as determined by the DVA based on evidence 
during the member’s active service would be proper, since it was 
based upon clinical assessments conducted before her actual date 
of discharge.  The question is determining where the clock 
should stop in fitness and disability decisions affecting a 
service member’s final service characterization or reason for 
discharge.

The applicant had an established date of separation and was 
permitted to extend the date in order to receive an additional 
elective surgical procedure.  However, experiencing complications 
or a less than expected result following an elective surgery, 
pursued well after an agreed upon final military DES 
disposition, raises an issue of, at least shared, culpability.  
Medical officials did not introduce a medical hold in order to 
redo the applicant’s MEB/PEB processes.  A recall of the 
applicant’s MEB/PEB had been previously denied based upon the 
questionable prognosis.  Noting the multiple clinical diagnoses 
included in the DVA examiner’s assessment, there is no practical 
clinical way to determine to what degree any of the 
aforementioned medical conditions, either individually or 
collectively, contributed to the actual source of the 
applicant’s pain.  Therefore, rating the applicant’s medical 
condition(s) under a unifying VASRD code, 5284, for Foot 
Injuries, other seems appropriate. 

Should the Board elect to grant the applicant’s petition, 
considering the fact that military medical officials approved the 
second surgical procedure with the false belief that she would 
have a favorable outcome and could be returned to duty [and the 
uncertain stability of her medical condition expressed by the DVA 
examiner], then placement on the TDRL with a combined disability 
rating of 40 percent [under VASRD code 5284] is an option versus 
a permanent retirement, effective her date of separation; then 
conducting a TDRL reassessment as soon as practicable, but not 
greater than 90 days.  Such a TDRL re-examination would be more 
determinative of the applicant’s current clinical status and any 
permanent residual functional impairment.  Evidence may consist 
of an examination by a podiatrist, with the aid of a DVA 
Disability Benefits Questionnaire [Foot Conditions] or, 
alternatively, by producing the very latest disability rating 
assigned by the DVA for her foot condition, if available. 
Evidence when obtained should be promptly forwarded to the 
AFBCMR for an appropriate recommended final Board disposition.

Awaiting a TDRL assessment in an individual with recalcitrant 
foot pain since 2007 with the implicit belief that her condition 
would improve and send her back to severance pay could be 
considered arbitrary and capricious by some.  Thus, viable 
choices may also include denial of the applicant’s petition 
outright or retire her permanently utilizing the rating decision 
of the DVA, based upon evidence present prior to her date of 
discharge.    The Board is reminded that the statutory limit in 
TDRL status is five years.  If granted, the applicant’s clock 
would have started on or about 28 June 2011 with a statutory end 
date in June 2016.

The complete BCMR Medical advisory is at Exhibit G.


APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

On 23 January 2015, a copy of the Additional Air Force 
evaluation was forwarded to the applicant for review and comment 
within 30 days.  As of this date, no response has been received 
by this office (Exhibit H).


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 to warrant 
changing the applicant’s medical discharge to a medical 
retirement.  We took notice of the applicant's complete 
submission in judging the merits of the case; however, we agree 
with the opinion and recommendation of 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 the absence of evidence to the 
contrary, we find no basis to favorably consider this portion of 
the applicant’s request.

4.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of error or 
injustice to warrant partial relief.  Having carefully reviewed 
this application, we agree with the BCMR Medical Consultant’s 
alternative form of relief to place the applicant on the TDRL so 
that she can be properly assessed and a determination made as to 
what her final disposition should be.  Accordingly, we recommend 
her records be corrected to the extent indicated below.

5.  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 issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered.


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 27 June 2011, she was found unfit to perform the 
duties of her office, rank, grade or rating by reason of 
physical disability, first incurred while she was entitled to 
receive basic pay; that on 28 June 2011, she was released from 
active service and on 29 June 2011, she was placed on the 
Temporary Disability Retired List (TDRL) due to bilateral Foot 
Injuries; rated at 40 percent (20 percent rating for each foot) 
under the Veterans Administration Schedule for Rating 
Disabilities code 5284; 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 the direct result of armed conflict 
or caused by an instrumentality of war.
        
      b. The applicant shall receive a TDRL clinical re-
evaluation by a civilian, military, or Department of Veterans 
Affairs (DVA) podiatrist, with the aid of  Disability Benefits 
Questionnaire, VA Form 21-0960M-6, Foot Conditions, Including 
Flatfoot (Pes Planus) Disability Benefits Questionnaire, as soon 
as practicable, but not greater than 90 days or, alternatively, 
by producing the very latest disability rating assigned by the 
DVA for her foot condition, if available.
        
      c. All requested medical documentation should be supplied 
to the Air Force Board for Correction of Military Records, as 
soon as available, in order to reach an appropriate final 
disposition of the applicant's case.


The following members of the Board considered AFBCMR Docket 
Number BC-2014-00766 in Executive Session on 12 March 2015, 
under the provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

All members voted to correct the record as recommended.  The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-00766 was considered:

      Exhibit A.  DD Form 149, 20 February 2014, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPFD Advisory, dated 3 September 
                  2014. 
      Exhibit D.  Letter, BCMR Medical Consultant, dated  
                  29 September 2014.
      Exhibit E.  Letter, SAF/MRBR, dated 4 October 2014.
      Exhibit F.  Email, Applicant, dated 21 December 2014, 
             w/atchs.
      Exhibit G.  Letter, BCMR Medical Consultant, dated  
                  15 January 2015.
      Exhibit H.  Letter, SAF/MRBR, dated 23 January 2015.