RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-03607

						COUNSEL:  NONE

						HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

His length of service Reserve retirement be changed to an active duty medical retirement.


APPLICANT CONTENDS THAT:

He suffered an injustice because a line of duty (LOD) determination investigation was not performed prior to his discharge.  Had the investigation been conducted, it would have revealed that his rheumatoid arthritis (RA) that resulted in his medical disqualification was caused by/aggravated by the Anthrax vaccinations he was required to take while in an inactive duty for training (IDT) status in 2000.  This finding would have resulted in a LOD determination and an active duty medical retirement instead of the length of service Reserve retirement.  A 3 Jun 14 Department of Veterans Affairs (DVA) decision awarded him 80 percent disability for service connected injury (RA) aggravated by the Anthrax vaccines received in the military.  

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


STATEMENT OF FACTS:

The applicant initially entered the Air Force Reserve on 21 Feb 81.

On 4 Jun 96, a medical evaluation by the Marietta Rheumatology Associates revealed the applicant complained of “body aches for no apparent reason.”  It was noted the applicant reported these episodes had been going on for the last six months on and off.  The medical provider and applicant discussed specific details of RA, and the applicant was prescribed an anti-inflammatory medication.  

On 9 Jan 00, the applicant received the first of three Anthrax vaccine shots.  Subsequently, on 23 Jan 00 and 6 Feb 00 he received the second and third Anthrax vaccine shots.  

On 12 Oct 01, the applicant was diagnosed with arthritis (degenerative joint disease) of the left wrist.

On 9 Feb 02, a fitness for duty evaluation was conducted on the applicant resulting in the following findings/recommendation:  the applicant functions well in his supervisory position.  However, he is clearly unfit for the demands of a wartime deployment.  During a recent deployment while performing manual aircraft maintenance tasks his left wrist became inflamed and severe pain prevented task fulfillment.  His rotator cuff injury precludes any heavy labor or overhead work, and running causes unacceptable discomfort of a foot condition.  The doctor recommended immediate release from the ANG unit. 

On 15 Mar 02, the applicant was issued an AF Form 422, Physical Profile Serial Report, with a designation of “P4” (not worldwide qualified) with restrictions.  The restriction applied was a “4T” profile temporarily disqualifying the member from military duty, precluding participation in unit training assemblies (UTA), annual tours, or any other type of military duty.  

On 4 Apr 02, the applicant’s commander reviewed all the facts surrounding his medical profile and determined his medical condition would not allow him to fully perform his military duties.  Since there were no non-mobility positions in his unit, he requested the applicant’s immediate release from duty.  

On 23 Apr 02, the State Air Surgeon, Georgia ANG certified the applicant to be medically disqualified for worldwide duty, and that the applicant may not perform any military duty.  

On 2 Jul 02, the applicant was furnished an honorable discharge, and was credited with 20 years, 1 month, and 17 days of Reserve service.  He was placed on the retired reserve list, effective 4 Jul 02.  

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:

The AFBCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice warranting support of the applicant’s petition to supplant his current length of service Reserve retirement with a medical retirement.  A review of the applicant’s limited supplied medical evidence shows that on 4 Jun 96, and prior to administration of the alleged offending Anthrax vaccines, he presented to Marietta Rheumatology Associates with a complaint of ”body aches for no apparent reason.”  The provider noted the applicant reported these episodes have been going on for the last six months on and off.  Provider entered a diagnosis of Arthralgia with a plan to “watch for rheumatoid arthritis”…“although it [was] not apparent presently.”  Five years later, on 2 May 01, the applicant received a medical evaluation from his family physician.  The physician assessed that he had negative rheumatoid arthritis factor, a negative antinuclear antibody (ANA) and a normal “WESR” (presumably to mean, erythrocyte sedimentation rate); all which would otherwise have been an indicator of an active inflammatory process.  The provider noted that the applicant felt he was no longer worldwide capable and would almost surely impair mission effectiveness if tasked to perform manual tasks.  

A worldwide fitness (or duty) evaluation conducted on the applicant on 22 Sep 01 revealed that he had a ten-year history of right foot pain (self-treated), and a right rotator cuff injury resulting from years of overhead work on aircraft.  The provider assessed the applicant’s previous medical report of redness and swelling in both wrists in 1996 and noted that at that time he was seen by a rheumatologist and prescribed non-steroidal anti-inflammatories.  As of the 22 Sep 01 evaluation the applicant had not been back to this PMD or any other rheumatologist since.  A 14 Mar 02 medical narrative summary utilized in disqualifying the applicant discussed three medical conditions, (1) a rotator cuff injury, (2) bilateral wrist pain due to arthritis, and (3) Morton’s neuroma (foot condition).  The Medical Consultant opined that it was only the applicant’s arthritis condition that was disqualifying and which cut short his military career.  The Medical Consultant reached this conclusion based upon the provider’s remarks that follow the applicant’s shoulder and foot ailments which read; “symptoms controlled as long as completely avoids aggravating activities,” additionally, the “P4” profile document used to initiate the disqualification, specifically listed only “history of arthritis” as the individual defect.  Medical disqualifications, by nature, are considered non-duty related and could result in an administrative discharge under authority of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members.  After reviewing the applicant’s Point Credit Summary, his total cumulative active duty service credit fell short of eight years which would have otherwise made him eligible for medical separation under 10 U.S.C., 1207A.

The Medical Consultant acknowledged that, after several years of being denied service connection by the DVA, the applicant was finally granted service connection for his arthritis in 2014, based on medical opinions previously discussed and research extracts showing arthralgia (joint pain) is included among a number of symptoms reported by individuals following Anthrax vaccinations, establishing reasonable doubt in the applicant’s favor.  The Medical Consultant noted that the DVA ratings assigned to each knee, each ankle, each wrist, the right hip, and each elbow were made effective in Dec 10, and were not based upon the disqualifying clinical findings at the “snap shot” in time he was released from service; which at the time was preponderantly limited to both wrists (10 percent rating for each wrist).  It should be noted that under Title 10, U.S.C., the military department decisions are based on findings present at or about the time of final military disposition, not based on future progressions of disease, whereas the DVA, operating under a different set of laws and purpose (Title 38, U.S.C.) is authorized to offer compensation for any medical condition, upon establishment of service connection, without regard to its clinical expression or impact upon a former member’s fitness at the time of service; nor time transpired since release from service.  Additionally, the DVA is empowered to adjust disability ratings as the level of impairment from a given medical condition may improve or worsen over the lifetime of the veteran.  

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes the advisory opinion of the AFBCMR Medical Consultant and contends he was served an injustice because a LOD determination investigation was not performed as required by AFI 36-2910, Line of Duty (Misconduct) Determination.  He contends that in accordance with AFI 36-2910, the GAANG physician that characterized his medical diagnosis of arthritis, with symptoms strongly suggestive of RA, should have taken an active role to ensure a determination was initiated and completed in a timely manner.  He argues that LOD findings would have indicated that the arthritis in his wrists was caused/aggravated by the anthrax vaccine, and he would have received a military disability retirement.  He cites civil case 09-662 ruling that an agency must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so.  He contends that AFBCMR case BC-2010-00821 is similar to his.  The BC-2010-00821 applicant received anthrax vaccines that caused/aggravated her RA causing her hip to degenerate.  After reviewing the evidence provided, the Board awarded her a physical disability retirement.  He deserves the same consideration.  He acknowledges the Medical Consultant’s evaluation noted that the DVA’s rating for his wrists still falls short of qualifying for a medical retirement, he argues that he has pending notice of disagreement filed with the DVA at this time to correct the rating on his left wrist, and once this obvious error is corrected, his rating will then exceed the 30 percent required for a military disability retirement.  In support of his response, the applicant provides the following documents:

1. Excerpts of AFI 36-2910.

2. A doctor’s memo indicating the Anthrax vaccines likely aggravated his RA.

3. Civil case 09-662.

4. A portion of AFBCMR case BC-2010-00821.

5. A 29 Jan 14 wrist surgery recap.

6. A 7 Mar 14 clinical assessment of his left wrist.

7. The 3 Jun 14, DVA Decision Review Officer Decision.

8. A copy of his 3 Jul 14 notice of disagreement to the DVA regarding their ratings of his left wrist.

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


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 error or injustice.  After reviewing all of the evidence provided, we are not persuaded the applicant’s length of service Reserve retirement should be changed to an active duty medical retirement.  We took careful notice of the applicant’s complete submission, to include his rebuttal, 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.  The Board notes the applicant’s rebuttal contention that had he received a line of duty (LOD) investigation for his injuries incurred while on active duty, the findings would have indicated the arthritis in his wrists was caused/aggravated by the anthrax vaccine, and he would have received a military disability retirement.  However, while the applicant may believe this is the case, there is nothing in the evidence provided which would lead us to believe the anthrax vaccines caused or aggravated the arthritis in his wrists.  Other than his own assertions, we have seen no evidence presented by the applicant that based on the clinical findings, at the “snap shot” in time he was released from service; he would have received a military disability retirement.  Therefore, under the presumption of regularity in the conduct of government affairs and absent evidence to the contrary, it is presumed the applicant’s discharge proceedings were carried out in accordance with governing regulations.  Additionally, the applicant referred to a previous AFBCMR case he contends is similar to his, as the member received anthrax vaccines that caused/aggravated her rheumatoid arthritis (RA) which, in turn, caused her hip to degenerate.  After reviewing both cases, we determined the applicant is not similarly situated to the member in the previous AFBCMR case.  In the previous case, the Board considered a post-military service hip surgery in the assignment of the disability rating resulting in the member being medically retired.  The previous Board’s recommendation to medically retire the member was based on strong evidence the medical condition (bone on bone) existed in its severe state prior to separation from the service.  The timelines of this action fall under Title 10, U.S.C., where the military department decisions are based on findings present at or about the time of final military disposition, not based on future progressions of disease.  In the applicant’s case, after several years of being denied service connection by the Department of Veterans Affairs (DVA), he was finally granted service connection for his arthritis in 2014.  The timelines of his case fall under Title 38, U.S.C., where the DVA operating under a different set of laws and purpose is authorized to offer compensation for any medical condition, upon establishment of service connection, without regard to its clinical expression or impact upon a former member’s fitness at the time of service; nor time transpired since release from service.  Therefore, in the absence of persuasive 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-2014-03607 in Executive Session on 19 May 15 under the provisions of AFI 36-2603:

	


All members voted to deny the applicant’s requested relief.    The following documentary evidence pertaining AFBCMR Docket Number BC-2014-03607 was considered:

	Exhibit A.  DD Form 149, dated 29 Aug 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, BCMR Medical Consultant, dated 
  26 Feb 15.
	Exhibit D.  Letter, SAF/MRBR, dated 5 Mar 15.
	Exhibit E.  Applicants Rebuttal, received 20 Mar 15
			  w/atchs.