ADDENDUM TO 

RECORD OF PROCEEDINGS 

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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

IN THE MATTER OF: 

DOCKET NUMBER:  93-00292 

COUNSEL : 
HEARING DESIRED:  Yes 

APPLICANT REQUESTS THAT : 
Iy'is retirement disability be increased from 50% to 100%. 

RESUME OF CASE: 
- O n  7 Jul 94, the Board considered and denied applicat's  9 Nov 92 
application requesting,  among  other  things,  that  32s  disability 
rating  be  increased  tc  100%.  After  reviewing  the  evidence  of 
record, the Board was not persuaded  that he was treated ;Infairly 
by the Air Force Disability System.  The Board was fully aware of 
his  numerous  medical'  conditions  and  thoroughly  reviewed  the 
documentation, to include the medical records from :ne  DesarEment 
of Veterans  Affairs  (DVA).  The Board  noted  that  The  word1r.g of 
the  Physical  Disability  Appeal  Board  (PDAB)  fincings  did  not 
exactly  match  that  of  the  Air  Force  Personnel  3oard  (AFPB); 
however,  the difference was not significant because  it wcJlc? not 
have  resulted  ir\_ a  change  to  the  overall  rating.  Althcugh  the 
BCM2  Consultant  believed  that  the  applicant's  case  s h x l c !   be 
returned  to  the  PDAB  so  that  it  might  be  reevalczzed  by 
residuals,  the  Board  did  not  agree. 
A  r e n e w   of  h i s   case 
indicated that if the residuals were  reevaluated, :he  disability 
rating  assigned  by  the  Air  Force  would  be  the  same.  In  the 
applicant's  case, the PDAB determined that  some of his  residuals 
were  n o t   sufficiently  severe  to  warrant  a  rating,  but  in  the 
aggregate of his condition, with  its many  residuals, warranted  a 
rating more  than the minimum of 30% for multiple  sclerosis  (MS). 
Therefore, he was awarded a rating of 50% (see Exhihit G ) .  
In  an  application,  dated  32 J1.m  97,  the  applicant, r e q u e s t s   t h e  
Board  reconsider  his  request  to  increase  h i s   re:iremert, 
disability to 100% (see Exhibit H). 

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AF’BCMR 93-00292 

AIR FORCE EVALUATION: 

The  Chief  Medical  Consultant,  SAF/PC,  reviewed  applicant’s 
request  and  indicated that  once  an individual has  been  declared 
unfit,  the  Service  Secretaries  are  required by  law  to  rate  the 
condition  based  upon  the  degree  of  disability  at  the  time  of 
permanent  disposition  and  not  upon  the  possibility  of  future 
events.  No change in military disability ratings can occur after 
permanent disposition under the rules of the military  disability 
system,  even  though  the  condition  may  become  better  or  worse. 
However,  Title  38, United  States Code  (USC), authorizes  the  DVA 
to increase or decrease their compensation ratings based upon the 
individual‘s  condition  at  the  time  of  future  evaluations.  The 
fact that the applicant has been diagnosed witk  neurosarcoidosis 
as  the basis  of his  disabilities  since his permanent  disability 
retirement does not alter the fact that at the time of permanent 
disposition,  his  working  diagnosis  was  MS,  active  sarcoidosis 
having been  ruled out.  The DVA‘s VASRD  at  that  time  listed  the 
diagnostic  code  8018  for MS  as minimally  ratable  at  30%,  as the 
applicant points out, and instructions then mandated an analogous 
code  of  8105  for  Sydenham’s  Chorea  to  determine  appropriate 
ratings,  which,  in  this  case, was  found  to  be  50%, indicating 
moderately  severe disability.  There  is no evidence of  error or 
irregularity  in  che  award  of  Ehis  rating  given  the  applicant’s 
condition at that point in time. 

The Consultant  further states that, the purpose of the Temporary 
Disability  Retired  List  (TDRL)  is  to  deternine  if  a  newly 
diagnosed,  recently  operated,  or  possibly  unstable  medical 
condition will  have  permanent  disability  resicxals.  By  using  a 
reasonable period  of observation, which may  be  from one  year  to 
several  years, the nature of the progress  of che  disease  can be 
gauged  %r  a more accurate rating of the residu2.l inpairment.  In 
t h e   case  cf  chronic  conditions,  this  permanent  rating  may  be 
assignec  when  the  condition  has  reached  a  r e l a t i v e l y   stable 
state,  which  approximates  the  natural  course  of  the  condition, 
based  Kpon  general  medical  knowledge  of  this  condition. 
The 
intent  is that individuals wiil be removed  fror. the TDRL as soon 
as  a  reasonable  determination  can  be  made  of  the  residual 
disabilky.  The  disability  rating  is  based  upon  the  degree  of 
impairment  caused  by  the  member’s  condition  at  the  time  of 
separation,  and  not  upon  possible  future  events. 
The  59% 
disabilizy  awarded  at  the  t i r e   of  permanent  reE:rement  was  t h e  
best  eszimate  of  applicant’s  ccndition  at  that  time,  and  wasp 
therefore, in compliance with Title 710,  USC.  What has transpired 
since  that  determination  lies  within  the  realm  of  the  DVA  to 
evaluate and compensate as conditions have chariged  but  is beyond 
the legal authority of the Military  Disability Evaluation  System 
to  adjust  compensation  for.  There  is  no  evidence  to  support  a 
higher rating at the time of permanent disposition.  His case was 
properly  evaluated,  appropriately  rated  and  received  full 
consideration  under  the  provisions  of  AFR  35-4. 
Action  and 
disposition  in this case  are proper  and  reflect  compliance  with 
Air  Force  directives  which  implement  the  law. 
The  Medical 

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consultant  is  of  the  opinion  that  no  change  in  the  records  is 
warranted and the application should be denied. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit I. 

AFBCMR 93-00292 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION: 

Counsel reviewed the Air Force evaluation and provided  a copy of 
applicant’s bone density report  (see Exhibit K) . . 

THE BOARD CONCLUDES THAT: 

Insufficient relevant evidence has been presented  to demonstrate 
the  existence of probable  error or  injustice.  We  have  reviewed 
the  entire  application  ane  the  additicnzll  documentation 
submitted,  includlng  the  acplicarx’s  bone  density  report. 
Eowever,  we  are  not  persuadec  that  a  revision  of  the  earlier 
determination  in  this  case  is  warrar-ted.  We  are  not  convinced 
chat  the  applicant’s contentions  override  the  comments  provided 
by  BCMR  Medical  Consultant,  dzted  6 Nov  97, in which  he  states 
That  the  fact  that  the  ap$icant 
has  been  diagnosed  with 
neurosarcoidosis  as  the  basis  of  _“-is disabilities  since  his 
permanent  disability  retiremer,:  does not  alter  the  fact  that  at 
the time of permanent, disposltlon, his working diagnosis was MS, 
x z i v e  sarcoldosis having beer! rulea aut.  The Chief states that 
A e  5 0 ~  disability  awarded  was  the cest  estimate  of applicant‘s 
xmciitlon  at  the  time  of  pernanex  retirement. 
What  has 
tzanspired since that determiEEt1on lies within the realm of the 
ZVA  and  is beyond  the legal ac:hority  of the Military Disability 
Evaluation  System  to  adjust  compe-sat ion. 
In  view  of  the 
above,and  in  the  absence  of  rare  persuasive  evidence,  we  again 
find no compelling basis to recammenc granting the relief sought. 

e 

:3-.:E BOF-RD  DETERMINES THAT: 
c -  -ne applicant  be  notified  thaz  the  evidence  presented  did  n o t  
demonstrate  the  existence  zf  prcbable  material  error  or 
injustice;  that  the  applicati3n  was  denied  without  a  personal 
mpearance;  and  that  the  applicatior- will  only  be  reconsidered 
L?on  the  submission  of  newly  discovered  relevant  evidence  not 
cmsidered with this applicaticn. 

The following members of the Board co2sidered this application in 
Executive  Session  on  29 June  1998, m d e r  the  provisions-  of Air 
F x c e  Instruction 36-2603: 

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AFBCMR 93-00292 

Mr. Henry C. Saunders, Panel Chair 
Ms. Martha Maust, Member 
Mr. Wayne R. Gracie, Member 
Mrs. Joyce Earley, Examiner  (without vote) 

The following documentary evidence was considered: 

Exhibit G.  Letter, AFBCMR w/ROP, dated 7 Jul 94. 
Exhibit H.  DD Fm 149, dated 30 Jun 97, w/atchs. 
Exhibit I.  Letter, SAF/PC, dated 6 Nov 97. 
Exhibit J.  Letter, AFBCMR, dated 24 Nov  97.. 

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