AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-00154  OCT 
COUNSEL: 

9  I998 

HEARING DESIRED:  Yes 

APPLICANT REOUESTS THAT: 

He be rerated separately f o r   the disease Multiple Sclerosis, 

1. 
all disabling conditions, and  Meniere's Disease. 
2.  His disability retirement be increased. 

APPLICANT CONTENDS THAT: 
The 24 July 1996 medical board did not have all the facts present 
at the time of the board.  Additional medical addendum and tests 
scheduled prior to the board  were not  received and reviewed by 
the board prior to rendering a determination. 
In  support  of  the  appeal,  applicant  submits  his  request  f o r  
Disabled American Veterans  (DAV) assistance; unemployment filing; 
DD  Form  214,  Certificate  of  Release  or  Discharge  from  Active 
Duty;  Defense  Finance  and  Accounting  Service  (DFAS) Military 
Leave  and  Earnings  Statement;  invoice  from  private  attorney; 
Department  of  Veterans  Affairs  (VA)  letter;  application  for 
compensation or pension, with  attachments; medical  records  and 
test results; Findings and Recommendations of  Physical Evaluation 
Boards; Letters of  Exception with documentation; VA  Title  3 8   - 
Pensions,  Bonuses,  and  Veterans'  Relief;  Meniere's  Disease 
document  from  the  Internet;  Part  4  -  Schedule  for  Rating 
Disabilities document  from  the  Internet; Air  Force  Instruction 
36-3212,  Physical  Evaluation  for  Retention,  Retirement,  and 
Separation; Medical Board Report; and DD Form 214  (from previous 
enlistment) . 
Applicant's complete submission is attached at Exhibit A. 

.. 

STATEMENT OF FACTS: 
On  28  May  1996,  a  Medical  Evaluation  Board  (MEB) convened  at 
AFB  and  referred  the  applicant's  case  to  a  Physical 
Evaluation Board  (PEB) for a diagnosis of Multiple Sclerosis. 

97-00154 

On 7 June 1996, the Informal PEB  (IPEB) found the applicant unfit 
for continued military duty  for  'Multiple  Sclerosis with  Fecal 
and Urinary Incontinence and Disequilibrium Associated with Major 
Depressive  Disorder"  and  'recommended that  he  be  temporarily 
retired with a 50 percent disability rating.  (Tab 1) 
On  3  July  1996,  the  applicant  did  not  concur  with  the  IPEB 
findings.  On 2 2   July 1996, with the assistance of an appointed 
military council, applicant presented his case before the Formal 
PEB (FPEB) . 
On 24 July 1996, the FPEB recommended permanent retirement with a 
60 percent disability rating.  (Tab 1)  Applicant did not agree 
with the findings and recommended disposition of the FPEB. 
On  14 August  1996,  the  Secretary  of  the  Air  Force  Personnel 
Council (SAFPC) confirmed the findings and recommendations of the 
FPEB  and  directed  his  permanent  retirement with  a  60 percent 
disability rating. 

Applicant was permanently retired effective 17 September 1996, in 
the  grade  of  major,  under  the  provisions  of  AFI  36-3203 
(Mandatory  Retirement  Resulting  from  Permanent  Physical 
Disability).  He had completed 20 years, 6 months and 23  days of 
total active military service. 
On  23  July  1997,  the  Veterans  Administration  (VA) evaluated 
applicant's  disabilities, effective 1 8   September 1996, as fecal 
incontinence at  30 percent; multiple  sclerosis  at  30  percent; 
urinary  incontinence at  40  percent;  degenerative  disc  disease 
lumbar spine at 2 0   percent; tinnitus at 10 percent; depression at 
10  percent;  patella  femoral  pain  syndrome, right  knee  at  10 
percent,  and  patella  femoral  pain  syndrome,  left  knee  at  10 
percent. 
On  3  October  1997,  the  VA  reevaluated  applicant's 
disabilities  of  Multiple  Sclerosis  now  rated  with  left  lower 
extremity weakness at 20 percent; right lower extremity weakness 
at  20  percent; and adjustment disorder with depressed mood  and 
major depressive disorder increased to 70 percent. 

AIR FORCE EVALUATION: 
The Chief, Physical Disability Division, AFPC/DPPD, reviewed this 
application  and  states  that  a  full  review  of  all  medical 
documentation was accomplished.  It  is clear that based  on all 
available medical evidence, both the FPEB and the SAFPC found the 
member unfit and based his disability rating of 60 percent on his 

2 

97-00154 

(i.e. , 

residual 

condition 

unfitting 
voiding 
dysfunction/incontinence,  requiring  use  of  absorbent  materials 
which must be changed more than four times a day).  Neither board 
found his long standing disequilibrium nor his mild psychological 
residual  symptoms  sufficiently  serious  to  be  unfitting  or 
compensable.  In accordance with current rating guidelines, since 
the  rating  from  the  unfitting  residuals exceeded  that  for  his 
primary condition of  Multiple  Sclerosis  (60 versus 50 percent) , 
the board appropriately awarded the higher of the two ratings, in 
the best interest of the member.  The Air Force and Department of 
Veterans Affairs  (DVA) disability systems operate under separate 
laws.  Under  the  Air  Force  system  (Title  10, USC) ,  Physical 
Evaluation Boards must determine if a member's  medical condition 
renders them unfit for duty.  The fact that a person may have a 
medical  condition does not mean  that  the condition is unfitting 
for continued military  service.  To be  unfitting, the condition 
must  be  such that  it alone precludes the member  from fulfilling 
the purpose  for which  he  is employed.  If  the board  renders a 
finding of unfit, the law provides appropriate compensation due 
to the premature  termination of their career.  Further, it must 
be noted that USAF disability boards must rate disabilities based 
upon the member's  condition at the time of evaluation; in essence 
a snapshot of their condition at that time.  Under Title 38, the 
DVA may  rate any  service-connected condition based  upon  future 
employability or reevaluate based on changes in the severity of a 
condition.  This often results in different ratings by  the  two 
agencies. 
The  applicant  has  not  submitted  any  material  or 
documentation  to  reflect  he  was  inappropriately  rated  or 
processed under  the military  disability evaluation  system.  He 
was granted all rights to which he was entitled under disability 
law and  departmental policy  and  the  disability boards  utilized 
all available documentation to arrive at a just decision.  They 
recommend denial of applicant's request. 

A complete copy of the evaluation is attached at Exhibit C. 

APPLICANT ' S   REVIEW OF AIR FO RCE EVALUATIO N: 
The applicant reviewed the advisory opinion and states during the 
FPEB, counsel's position was that U . S . C .   and Exhibit 1,  provides 
the member be rated for each disability and disabling condition. 
Counsel  requested  that  the  member  also  be  rated  for Meniere's 
Disease based  on individual's  documented history.  Filed within 
the minutes of the Board was the fact that he was scheduled for 
an electrocochleography  (ECOG)  test  that  would  confirm or deny 
the  existence  of  Meniere's. 
He  disagreed  with  the  FPEB's 
opinion.  He  felt  that  the  FPEB  failed to  separately rate  the 
disease Multiple Sclerosis, all disabling conditions, and failed 
to request an immediate ECOG  test prior to rendering the FPEB's 
opinion.  Months  after Walter  Reed Army Medical  Center  (WRAMC) 
completed the ECOG test, he was diagnosed with Meniere's Disease. 
He was placed on strict medical treatment and restrictions.  He 

3 

disagrees with the findings of the FPEB and the SAFPC and their 
combined rating of  60 percent.  He  and counsel believe that he 
was inappropriately rated and processed based on possible errors 
in the record.  His submission of facts indicate that there may 
exist  errors  in  the  listing of  the  disabilities  and  disabling 
conditions, and in the rating of those disabilities and disabling 
conditions. 
Applicant's complete response, with  attachments, is attached at 
Exhibit D . 

ADDITION AL AIR FORCE ADVISORY: 
The Chief, BCMR Medical Consultant reviewed this application and 
states that this case has previously been extensively reviewed up 
through, and including, the Secretary of the Air Force Personnel 
Council with approval of the recommended disability found at the 
time of his Physical Evaluation Board.  The initial award of  50 
percent was increased upon further review that then included the 
need  for  wear  of  protective  devices  for  his  incontinence 
problems, adding the additional 10 percent  that was  felt to be 
fair and equitable for the degree of his problems.  The current 
request  for  additional  disability  rating  for  (a)  Meniere's 
Syndrome  -  90 percent;  (b) Rectum,  Impairment of  Control  -  60 
percent; Neurogenic Bladder -  60 percent; Multiple Sclerosis -  30 
percent; and Major Depression -  20 percent, all of which clearly 
can  be  attributed  to  a  single  disease  process,  Multiple 
Sclerosis.  While  it  is  most  unfortunate  that  the  applicant 
developed his underlying disease in the  first' place, it  is not 
permissible to pyramid disabilities that are related to the basic 
disease process in determining the degree of resulting disability 
as  his  counsel  would  suggest. 
The  Veterans  Administration 
Schedule  f o r   Rating  Disabilities  (VASRD) is  specific  in  this 
regard  stating:  "The  evaluation  of  the  same  disability  under 
various diagnoses is to be avoided ...." and "...the evaluation of 
the  same  manifestation  under  different  diagnoses  (is)  to  be 
Once  a  determination  is  made,  namely  that  the 
avoided. 
individual is unfit, the degree of disability is based upon the 
member's  condition at  the time of  permanent disposition and not 
upon  possible  future  events.  The  VA  compensation  system  is 
governed  under  Title  38, USC  which  recognizes  that  a  medical 
condition  may  alter  an  individual's  lifestyle  and  future 
employability.  Under Title 38 the ratings awarded by the VA are 
often at variance with those awarded by the Air Force under Title 
10.  Evidence of  record establishes beyond  all reasonable doubt 
that  the  applicant  was  properly  diagnosed,  found  unfit,  and 
appropriately  rated.  The  BCMR  Medical  Consultant  is  of  the 
opinion  that  no  change  in  the  records  is  warranted  and  the 
application should be denied. 
A complete copy of the evaluation is attached at Exhibit E. 

It 

4 

97-00154 

APPLICANT ' S  REVIEW OF AIR FORCE EVALUATION: 
The  applicant  reviewed  the  advisory  opinion  and  states  he 
disagrees with the medical consultant.  He is of the opinion that 
a change in the records and increase in the application rating is 
justified.  He contends the disorders existed prior to both  the 
IPEB and  FPEB.  His medical  record  shows history symptoms and 
incidence  of  Meniere's  Disease  back  to  the  spring  of  1992. 
Extensive  workups  by  both  W W C  Neurology  and  Ear,  Nose  and 
Throat  (ENT)  considered  it  disequilibrium. 
The  IPEB,  dated 
21 July  1995,  diagnosed  Chronic  disequilibrium,  possibly 
secondary to Demyelinating disease.  His condition continued to 
worsen and he was placed on a diet and medicines similar to that 
for the treatment of Meniere's.  Despite the diet and medicines, 
his condition continued to worsen similar to those symptoms for 
Meniere's.  On 12 July 1996, WRAMC ENT requested an ECOG test be 
performed  (within 1 week) and prior to the member's  departure for 
the  FPEB.  On  17  July  1996,  WRAMC  ENT  submitted an  emergency 
request  for an ECOG  test  to  rule out  Meniere's.  The ECOG  was 
never performed prior to his departure to the FPEB.  At  the FPEB 
on  24  July  1996,  his  legal  representative  presented  in  the 
minutes of the FPEB, the request for ECOG to confirm or rule out 
the  existence  of  Meniere's  Disease  versus  Multiple  Sclerosis. 
The  FPEB  noted  the  request  but  never  scheduled  the  ECOG  be 
performed while the member was present  for the FPEB at Randolph 
AFB.  Upon  return  to  assignment  WRAMC  ENT  again requested the 
ECOG.  On 23 September 1996, ECOG test results were abnormal.  On 
25  September  1996,  WRAMC  evaluated  the  ECOG  results  diagnoses 
"Prob. Meniere's  AB  given ECOG"  patient  was  put  on restrictive 
diet and started on Maxide.  On 29 January 1997, he continued to 
have severe attacks with hearing loss and falls.  Diagnosis "C/W 
Meneire's"  continued Maxide, take Meclizine, and yearly audios. 
He  forwarded his medical  brief  medical  history  to the National 
Multiple  Sclerosis  Society  (NMMS)  along  with  the  following 
question: "Is Meniere's  a primary/secondary condition of Multiple 
Sclerosis? Or, A disease separate of Multiple Sclerosis?"  NMMS 
response  was  that  "Meniere's  Disease  and  MS  are  two  separate 
diseases.,,  The VASRD does not state that  \\it is not permissible 
to pyramid  disabilities that  are  related  to  the  basic  disease 
process.  The VASRD verbatim quote should be  'The  evaluation of 
the  same disability under various diagnoses is to be  avoided." 
The VASRD  subpart also quotes  "Disability from  injuries to  the 
muscles,  nerves, and  joints  of  an  extremity  may  overlap  to  a 
great  extent,  so  that  special  rules  are  included  in  the 
appropriate bodily system for their evaluation."  VASRD, Part 4 , 
subpart 4.1, provides  for the  rating of  diseases and  injuries, 
and residual conditions at the time of  separation from service. 

5 

97 - 00154 

He  is  not  asking  that  any  disease  or  condition  that  occurred 
after separation be  rated.  He  is asking that  those diseases, 
injuries and conditions in existence at the time of separation be 
appropriately rated. 
Applicant's complete response, with attachments, is attached at 
Exhibit G . 

THE BOARD CONCLUD ES THAT: 
1.  The  applicant  has  exhausted  all  remedies  provided  by 
existing law or regulations. 
2.  The application was timely filed. 

Insufficient  relevant  evidence  has  been  presented  to 
3 .  
demonstrate the existence of probable error or injustice.  After 
thoroughly  reviewing  the  documentation  submitted  with  this 
application, the Board  is of the opinion that the applicant was 
properly diagnosed, found unfit and rated accordingly.  In regard 
to the applicant's contention that the Formal Physical Evaluation 
Board  (FPEB) did  not  consider additional  medical  addendum  and 
tests scheduled prior to the 24 July 1996 Board, it appears that 
even though the electrocochleography (ECOG) was not considered by 
the FPEB, they did consider the applicant's  symptoms of chronic 
disequilibrium and  found  it  not  unfitting  and,  therefore, not 
ratable  or  compensable. 
The  ECOG  test  indicates  that  his 
symptoms of  long  standing disequilibrium were  compatible with, 
but not diagnosed as, Meniere's Disease, which can be treated and 
is not  considered an unfitting condition.  The Board  is of  the 
opinion  that  the  applicant  was  afforded  all  rights  he  was 
entitled under  the disability law and departmental policy.  We 
note that the applicant was rated based on his condition at the 
time of his disability evaluation.  The Air Force is required to 
rate disabilities in accordance with the VA Schedule for Rating 
Disabilities  while  the  VA  operates  under  a  totally  separate 
system with  a  different statutory basis.  In this  respect, we 
note  that  the  VA  rates  for  any  and  a l l   service  connected 
conditions,  to  the  degree  they  interfere  with  future 
employability, without consideration of fitness.  Whereas the Air 
Force  rates  a  member's  disability  at  the  time  of  separation. 
Therefore, in the absence of evidence to the contrary, we find no 
basis  to  recommend  granting  the  relief  sought  in  this 
application. 
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  issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered. 

6 

97-00154 

Y 

THE BOARD DET ERMINES T HAT: 
The  applicant be  notified  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice;  that  the  application  was  denied  without  a  personal 
appearance; and  that  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 this application in 
Executive Session on 28  July 1998, under the provisions of AFI 
36-2603 : 

Mr. Michael P. Higgins, 
Mr. Gerald B. Kauvar, Member 
Mr. Allen Beckett, Member 
Ms. Gloria J. Williams, Examiner (without vote) 

Panel Chair 

The following documentary evidence was 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 
D. 

E. 
F. 

Exhibit 

G. 

considered : 
30 December 1996 
Personnel Record 
dated 10 July 19 
' s   Responses, 
1997, w/atchs. 
1 Consultant, 27 
ted 28 July 1997 

DD Form 149, dated 
Applicantis Master 
Letter, AFPC/DPPD, 
Counsel's/Applicant 
dated 19 September 
Letter, BCMR Medica 
Letters, AFBCMR, da 
18 February 1998. 
Applicant's/Counsel's  Responses, dated 
6 April 1998, w/atchs, and 16 April 1998, 
w/atchs. 

, w/atch 
S. 
97. 

January 
and 

S. 

1998. 

7 

DEPARTMENT OF THE AIR FORCE 

HEADQUARTERS AIR FORCE PERSONNEL CENTER 

RANDOLPH AIR FORCE BASE, TEXAS 

10 Jul97 

MEMORANDUM FOR AFBCMR 

FROM: 

HQ AFPCDPPD 
550 C Street West Ste 06 
Randolph AFB TX 78 150-4708 

REOUESTED ACTION:  Applicant requests that the 60 percent disability rating received 

during his disability retirement be increased. 

FACTS:  Member received a disability retirement from the Air Force on 17 Sep 96 under 

the provisions of 10 USC 1201 and AFI 36-3212, after serving twenty years, six months, and 
twenty-four days on active duty. 

On 28 May 96, a Medical Evaluation Board (MEB) convened 

and 

referred the applicant's case to the Informal Physical Evaluation Board (IPEB) for a diagnosis of 
Multiple Sclerosis.  On 7 Jun 96 the IPEB found member d i t  for continued military service for 
"Multiple Sclerosis with Fecal and Urinary Incontinence and Disequilibrium Associated with 
Major Depressive Disorder" and recommended that he be temporarily retired with a 50 percent 
disability rating. 

The applicant disagreed with the IPEB's recommendation and with the assistance of an 
appointed military council presented his case before the Formal PEB (FPEB) on 22 Jul96.  The 
FPEB recommended permanent retirement with a 60 percent disability rating and remarked, 
"Medical evidence documents the diagnosis of Multiple Sclerosis and an unfitting increase in 
residual incontinence.  Member therefore overcomes the presumption of fitness.  Member's 
episodes of incontinence, both fecal and urinary, represent a disability in excess of the minimum 
rating for Multiple Sclerosis.  In the opinion of the FPEB, this residual need for frequent 
changing of absorbent pads should not be rated separately, and is fully compensated by a rating 
of 60 percent for incontinence. Member's long standing disequilibrium and recent mild 
psychological symptoms do not in themselves constitute unfitting conditions or residuals and in 
the opinion of the FPEB, are neither ratable or compensable ...I' 

The applicant again disagreed with the finding and appealed his case to the Secretary of 

the Air Force Personnel Council (SAFPC).  Although he was offered a chance to submit a 
written rebuttal andor additional documentation supporting his contention, he declined the 
opportunity.  On 14 Aug 96, the SAFPC confirmed the findings and recommendations of the 

FPEB and officials within the Ofice of the Secretary of the Air Force directed his permanent 
retirement with a 60 percent disability rating.  Member's permanent retirement was effective 
17 Sep 96. 

~

C

U

A hll review of all medical documentation was accomplished.  It is clear 

~

:

 

that based on all available medical evidence, both the FPEB and the SAFPC found the member 
unfit and based his disability rating of 60 percent on his unfitting residual condition (i.e., voiding 
dyshctiodincontinence, requiring use of absorbent materials which must be changed more than 
four times a day).  Neither board found his long standing disequilibrium nor his mild 
psychological residual symptoms sufficiently serious to be unfitting or compensable.  In 
accordance with current rating guidelines, since the rating fiom the unfitting residuals exceeded 
that for his primary condition of Multiple Sclerosis (60 versus 50 percent), the board 
appropriately awarded the higher of the two ratings, in the best interests of the member. 

The Air Force and DVA disability systems operate under separate laws.  Under the Air 

Force system (Title 10, USC), Physical Evaluation Boards must determine if a member's medical 
condition renders them unfit for duty.  The fact that a person may have a medical condition does 
not mean that the condition is unfitting for continued military service.  To be unfitting, the 
condition must be such that it alone precludes the member from Mfilling the purpose for which 
he is employed.  If the board renders a finding of unfit, the law provides appropriate 
compensation due to the premature termination of their career.  Further it must be noted that 
USAF disability boards must rate disabilities based upon the member's condition at the time of 
evaluation; in essence a snapshot of their condition at that time.  Under Title 38, the Department 
of Veterans Affairs may rak any service-connected condition based upon fbture employability or 
reevaluate based on changes in the severity of a condition.  This often results in different ratings 
by the two agencies. 

We recommend denial of the applicant's request.  The applicant has 

BECO-ON: 
not submitted any material or documentation to reflect he was inappropriately rated or processed 
under the military disability evaluation system.  He was granted all rights to which he was 
entitled under disability law and departmental policy and the disability boards utilized all 
available documentation to arrive at a just decision. 

'Chief,  Physical Lfisability Division 
Directorate of Pers Prog Management