AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  9 6 - 0 3 7 5 1  
COUNSEL:  NONE 

HEARING DESIRED:  YES 

FEB  9 

Applicant requests that he be given an increase in his disability 
rating, from 6 0   percent to a more appropriate level based upon  a 
condition  not  considered  during  his  disability  processing. 
'Applicant's submission is at Exhibit A. 

'The appropriate Air Force offices evaluated applicant's request 
.and provided  advisory  opinions  to  the  Board  recommending  the 
application be  denied  (Exhibit C).  The advisory opinions were 
forwarded to the  applicant for review and response  (Exhibit D). 
As of this date, no response has been received by this office. 

After  careful  consideration  of  applicant's  request  and  the 
available  evidence  of  record, we  fl'nd  insufficient  evidence  of 
error or injustice to warrant corrective action.  The facts and 
opinions stated in the  advisory opinions appear to be  based on 
the evidence of record and have not been rebutted by applicant. 
Absent  persuasive evidence applicant was denied  rights to which 
entitled,  appropriate  regulations  were  not  followed,  or 
appropriate  standards  were  not  applied,  we  find  no  basis  to 
disturb the existing record. 

Accordingly, applicant's request is denied. 

,e 

-I 

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 staff is directed to inform applicant of this decision. 
Applicant should also be informed that this decision is final and 
will only be  reconsidered upon the presentation of new relevant 
evidence  which  was  not  reasonably  available  at  the  time  the 
application was filed. 

Members  of  the  Board  Mr.  Charles  E.  Bennett,  Mr.  Vaughn  E. 
Schlunz, and Mr. Walter J. Hosey considered this application on 
2 8   January 1 9 9 8 ,   in accordance with the provisions of Air Force 
Instruction 3 6 - 2 6 0 3   and the governing statute, 10 U.S.C. 1 5 5 2 .  

Panel Chair 

Exhibits: 

A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C.  Advisory Opinion 
D.  AFBCMR Ltr Forwarding Advisory Opinions 

DEPARTMENT OF THE AIR FORCE 

HEADQUARTERS AIR FORCE PERSONNEL CENTER 

RANDOLPH AIR FORCE BASE, TEXAS 

FROM: 

MEMORANDUM FOR AFBCMR 
HQ AFPCDPPD 
550 C Street West Stc 06 
Randolph AFB TX 78 150-4708 

-m 

7 Apr 97 

SUBJECT: 

Application for Colrection of Military Records 

REQUESTED ACTION:  Applicant requests an increase in his disability rasing, from 60 percent to a more 

appropriate level based upon a condition not considered during his disability proccsing. 

FACTS:  On 2 Mar 78, the applicant was removed from the Temporary Disability Retired List (TDRL) and 
permanently retired from the Air Forrt by reason of physical disability, following seven years, three months, and 20 
days of active service, with a 60 percent disability rating. 

- 

DISCUSSION:  The purpose of the military disability system is to maintain a fit and vital force by 

separating members who are unable to perform the duties of their grade, ofice, rank or rating.  Those members who 
are separated or retired by reason of physical disability may be eligible, if otherwise qualified, for certain disability 
compensations. The mere presence of a physical defect or condition does not qualify a member for disability 
retirement or discharge.  As indicated above, the physical defect or conditions must m d e r  the member unfit for 
duty.  The decision to conduct a Medical Evaluation Board (MEB) is made by the medical treatment facility 
providing health care to the member.  Eligibility for disability processing is estabtisbcd by an MEB when that board 
finds that the member may not be qualified for continued military service. 

The applicant contends that he had never had a back X-ray during his treatments and examinations for his 

2 Nov 72 motorcycle accident and that the X-ray should have been done.  The applicant believes that his current 
back problems stem from the accident which rendered him unfit due to his leg injury, and that his compensable 
percentage should be increased based upon that assumption.  This contention is met by two issues addressed below: 
First, the applicant did not sbow any evidence of back injury resulting from the motorcycle accident which 

would have brought into question the applicant’s fitness for continued military servict-based on that condition, 
standing alone (i.e,, apart from the femoral defect).  As explained in the opening paragraph to this section, the fact 
that a condition exists does not render a military member unfit; and at the time of his treatment and disability 
processing, there was no evidence of an unfitting back condition.  The applicant was evaluated based on the only 
condition which warranted disability processing at the time of his initial TDRL placanent.  The fact that the 
Department of Veteran’s Affairs (DVA) has recently granted the applicant service connection for his back condition 
does not invalidate the Air Force deermination made in February 1975, based on his condition at that time.  Further, 
after careful review of the AFBCMR case file we differ with the DVA’s  assumption that the applicant’s back 
condition was brought on by the motorcycle accident.  This assumption appears to k inconsistent with the 
preponderance of evidence when the entire medical record is considered.  Documentation within the AFBCMR case 
file shows that the member had a back injury causing the applicant severe pain less than five months prior to his 
motorcycle accident.  Additionally, there is a medical entry in June, 1968 documeating a complaint of back pain. 

We are not questioning the DVA’s decision of granting service conneCtior! for the applicant’s ba$ 

condition.  Indeed, as previously pointed out, there is evidence that the applicant bad had back problems while he 
was on active duty.  At that time, however, they were not so serious as to be unfitting or to warrant disability 
processing.  The Air Force and DVA disability systems operate under separate laws  Under the AF system (Title 

’,  18Jun97 
*96-03751 

_L 

MEMORANDUM FOR AFBCMR 

FROM:  BCMR Medical Consultant 

1535 Command Drive, EE Wing, 3rd Floor 
Andrews AFB MD  20762-7002 

SUBJECT:  Application for Correction of Military Records 

Applicant’s entire case file has been reviewed and is forwarded with the following 

findings, conclusions and recommendations. 

REQUESTED ACTION:  The applicant was removed from the Temporary Disability 

Retired List (TDRL) and permanently retired with 60% Disability Rating (DR) on 2 Mar 78 
after serving a total of 7 years, 3 months, 20 days on active duty.  He now applies requesting 
that his DR be raised retroactive to the date of his retirement for additional disability relating 
to his accident in 1972 that led to his retirement and which was not found at time of his 
medical disposition, constituting what he considers a “gross medical error” and an 
“unjust.. . determination and award of only 60% DR”. 

FACTS:  Applicant was involved in a motorcycle accident in which he was struck by a 

Japanese National vehicle in Nov 1972 while stationed in Japan.  He suffered a severe 
fracture of his left upper leg bone (femur) which subsequently failed to heal and was the 
reason for his TDRL placement and eventual retirement.  He was found in Mav 1996 to have 
evidence of mild compression fracture of his lZth thoracic vertebral body and rather 
extensive degenerative arthritic changes and disc disease throughout the lower spine.  He 
feels these changes are secondary to the MVA of 1972 and that they should have been 
detected and rated at the time of his disability determination.  He claims that x-rays were 
never taken of his spine after the accident, and there are no medical records to show this 
was ever done.  He did, however, have x-rays of  the lower spine in August 1972 when he 
was hospitalized for a week with back pain after moving some heavy furniture, and these 
were normal.  The records indicate that the applicant met a Medical Evaluation Board on 
28 Aug 73, and his history then reflected back pain which was not further evaluated, nor 
was this done on subsequent reevaluations when he continued to note the back pain on the 
medical history form. He was referred to the Informal Physical Evaluation board on 
10 Sep 73, placed on the TDRL and maintained there until he was permanently retired with 
60% disability as noted above.  At the initial and subsequent reviews for continuation on the 
TDRL and even at permanent retirement, applicant fully concurred with the assessment and 
compensation awarded. 

Even assuming the minimal compression fracture noted some 8 years later was present 

at the time of his TDRL assignment, in order for it to have been found unfitting, it, alone, 
would have had to limit performance of his normal duties, an unlikely circumstance 
considering he has not been found to have significant back or leg problems prior to 1996. 
Such minimal compression changes are fairly commonly seen in otherwise asymptomatic 
individuals as an incidental finding with or without an antecedent history of injury.  As pointed 
out in 

review, the mere presence of a defect is not necessarily unfitting for 

A