RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-01259

					COUNSEL:  NONE

		HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

Her honorable discharge be changed to a medical retirement.


APPLICANT CONTENDS THAT:

She was eligible for but denied a medical retirement. 

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 28 Sep 92.

On 6 Apr 04, one of the applicant’s principle treating providers dictated a medical evaluation board (MEB) narrative summary, noting that the applicant was first diagnosed with Obstructive Sleep Apnea (OSA) in Mar 00 and that it had been controlled with nightly continuous positive airway pressure (CPAP) therapy.  He also noted the applicant’s history of back pain, which recently worsened to a point that she was unable to do patient transfer activities in her job as an intensive care unit (ICU) nurse.  He concluded that the applicant was limited to a non-worldwide qualified status due to CPAP therapy requirements and limited clinical nurse activities in an environment where she does not have to do patient transfers or lifting (i.e., outpatient nursing or administrative duties). 

On 28 May 04, a waiver request to conduct a MEB locally at the applicant’s duty location, was approved by AFPC/DPAMM (currently DPANM).

On 30 Sep 04, a “In Line of Duty” determination was rendered on behalf of the applicant due to an injury of her lower back that occurred in 2002 while attempting to lift a patient.  Subsequently, she received a neurosurgical evaluation and no surgery was recommended.

On 20 Oct 04, the applicant’s unit commander, acknowledged her mobility restrictions, but recommended retention, citing the quality of care she provided to patients, and that she was motivated to continue as an active duty member of the Air Force. 

On 2 Nov 04, the applicant’s MEB convened for the conditions OSA, treated successfully with CPAP nightly, and for Lumbago with recurrent episodes of pain and lifting restrictions.  The action recommended by the board was to return to duty.  

On 10 Apr 06, the applicant was furnished an honorable discharge, credited with 13 years, 6 months, and 13 days of active service, and transferred to the Air Force Reserve Inactive Status List Reserve Section (ISLRS).  

On 11 May 11, the applicant was relieved from assignment to the ISLRS, and honorably discharged from all appointments in the Air Force.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    


AIR FORCE EVALUATION:

AFPC/DPFD does not provide a recommendation; however, they provided the following information regarding the applicant stating she was denied eligibility for medical retirement.  The applicant was separated from the Air Force Reserve, HQ ARPC, Inactive Status List Reserve Section (ISLRS) on 11 May 11, under the provisions of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air force Reserve Members. The preponderance of evidence reflects that the Physical Disability Division never received a referral to the physical evaluation board (PEB), therefore, could not have processed the case or given the applicant a medical retirement/separation.  

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

BCMR Medical Consultant recommends denial, indicating there is no evidence of an error or an injustice regarding the applicant’s request to supplant her discharge with a medical retirement.  Medical evidence during the final two years of the applicant’s service showed she was evaluated and/or treated for a number of medical conditions, to include microhematuria, a refractive error treated by photo refractive keratectomy (PRK), retroorbital headaches, and upper extremity paresthesias, among several others.  However, the two conditions that rendered her non-worldwide qualified and resulted in long-standing or recurring profile restrictions was OSA and chronic low back pain, associated with the “P4” and “L4” profile designations assigned, due to the requirement to use a CPAP device and prohibition of lifting greater than 10 lbs. and performance of push-ups or sit-ups.  A 2 Nov 04 MEB finding recommended the applicant be returned to duty, and that previous profile restrictions be renewed with a new expiration date of 23 Nov 06.  She was not mobility qualified pending further review and would not be assigned outside of CONUS, except for Alaska (Elmendorf AFB), Hawaii, or Puerto Rico.  Member would require a Review-In-Lieu-Of (RILO)-MEB Nov 06.  The MEB recommended removing the applicant from Medical Hold status, if she was on it.  

On 18 Mar 05, the applicant received a consultation from a specialist at a Pain Management Center who opined the applicant met criteria for lumbar epidural steroid injections; which she subsequently received in April, May, and September 05.  On 12 Dec 05, the applicant completed a separation history and physical examination document, listing medical conditions for which she received treatment since her last medical assessment.  Under conditions that limited her ability to work in her primary specialty, the applicant listed only herniation of L4-L5 with compression of S1 and chronic back pain.  She continued to receive updated evaluations and care for her lumbar pain, that were characterized as stable, no significant degenerative disc disease, canal stenosis, or nerve root compression. 

The applicant supplied documentation from the Department of Veterans Affairs (DVA) indicating she was awarded service connection and 50 percent disability rating for OSA, 30 percent disability rating for major depression, 20 percent rating for lumbar degenerative disc disease, 20 percent rating for cervical spine degenerative disc disease wit disc herniation, and 0 percent rating for several other medical conditions.  While it may appear counterintuitive to consider the applicant fit for duty, noting the multiple disability ratings she received from the DVA, the BCMR Medical Consultant opines the Air Force found greater value in retaining the applicant as fit for duty.  Operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to and independent of its demonstrated or proven impact upon a service member's retainability, fitness to serve, or the narrative reason for release from military service.  With this in mind, Title 38, U.S.C., which governs the DVA compensation system, was written to allow awarding compensation ratings for any medical condition with a nexus with military service; albeit in some instances rated a 0 percent.  This is the reason why an individual can be found fit for release from active military service for one reason and yet sometime thereafter receive compensation ratings from the DVA for one or more conditions found service-connected, but which was not proven militarily unfitting during the period of active service.  The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the life time of the veteran.  While it remains a mystery why the applicant elected to leave military service upon completion of required active service, or why she wasn't continued, e.g., promotion or fitness issues not privy to, the BCMR Medical Consultant opines that the burden of proof has not been sufficiently met to warrant the desired change of the record.

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 17 Nov 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 opinion and recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  We also note the comments of AFPC/DPFD indicating that the Physical Disability Division never received a referral to the PEB and therefore could not have processed the case or given the applicant a medical retirement/separation as she contends.  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-2014-01259 in Executive Session on 24 Feb 15 under the provisions of AFI 36-2603:

	
 

The following documentary evidence pertaining AFBCMR Docket Number BC-2014-01259 was considered:

	Exhibit A.  DD Form 149, dated 20 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD, dated 18 Sep 14.
	Exhibit D.  Memorandum, BCMR Medical Consultant, dated
	            27 Oct 14.  
	Exhibit E.  Letter, SAF/MRBR, dated 17 Nov 14.