AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER : 
COUNSEL:  NONE 
HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT: 

His disability rating be increased from 40% to 100%. 

APPLICANT CONTENDS THAT: 
The degenerative polyneuropathy  of unknown etiology was not rated. 
It is now known to be from Agent Orange exposure. 

Applicant's 
request  and  documentation  associated  with  his 
retirement for disability, and subsequent ratings by the Department 
of Veterans Affairs  (DVA), are at Exhibit A. 

STATEMENT OF FACTS: 

Applicant served on active duty in the Regular Air Force during the 
period  10  January  1964  to  9  January  1968. 
He  was  honorably 
released from active duty on 9 January 1968 and transferred to the 
Air Force Reserve.  He was discharged from the Air Force Reserve on 
9 January  1970.  At  the  time of  his  release  from active  duty,  he 
was credited with four years of active duty service. 

He was in civilian status during the period 10 January 1970 through 
30 April 1976. 

On  1 May  1976, he enlisted in the Air National Guard  (ANG), State 
e  a A N G ) .   He had  continuous participation in the 
ctober 1986, when  he was  honorably  discharged  from 
a Reserve of th 
On  8 October  1986, he 
He  was  honorably 
N G ) .  
1988  and  transferred  to 
he  was  transferred  from 
ctive 18 January 1989, he 
NG  and transferred 'to the Air 

enlisted  in  the  ANG 
discharged  from  the 
the Air  Force  Reser 
the Air  Force Reserve to the 
was honorably discharge 
Force Reserve. 

A  chronology of  the  events  surrounding  the  applicant' s disability 
separation follows: 

* 

On  28 June  1992, a Medical  Evaluation Board  (MEB) established the 
diagnoses of:  (1) Cervical spondylosis with  radicular symptoms in 
right  arm;  (2)  Degenerative  polyneuropathy  of  unknown  etiology; 
Non-insulin diabetes mellitus; and  ( 4 )   History of mild neck trauma. 
The MEB referred the case to the Physical Evaluation Board  (PEB). 

' 

The  Informal  PEB  (IPEB) convened  on  13 August  1992 and  found  the 
diagnosis  of  cervical  spondylosis with  radicular  symptoms  in  the 
right  (major) arm,  associated with  degenerative  polyneuropathy  of 
unknown etiology, with history of mild neck pain.  Other diagnoses 
considered  but  not  ratable : 
Non-insulin  dependent  diabetes 
mellitus.  The  IPEB noted  that  the applicant's  .condition rendered 
him unfit to fulfill the demands of military service; however, his 
condition was not sufficiently stable to warrant recommending final 
disposition at that time, and that surgery might be required if the 
conservative  therapy  did  not  improve  his  condition. 
The  IPEB 
recommended  a  period  of  further  treatment  and  evaluation  and 
recommended applicant' s name be placed on the Temporary Disability 
Retired List  (TDRL), with a 40% compensable disability rating. 

On  3  September  1992,  applicant  agreed  with  the  findings  and 
recommended  disposition  of  the  PEB. 
He  was  relieved  from  his 
organization and base of  assignment on  11 September  1992, and his 
name  was  placed  on  the  TDRL  in  the  retired  grade  of  technical 
sergeant,  with  a  compensable disability  rating  of  40%.  At  that 
time, he was credited with 6 years, 10 months, and 1 day of active 
service  for  retirement,  and  22  years,  5  months,  and  1  day  of 
service for basic pay. 

On 2 June  1994, following applicant's  TDRL reexamination, the IPEB 
found  the  diagnosis  of  cervical  spondylosis  with  diminished  deep 
tendon  reflexes  in  right  (major) upper  extremity  with  variable 
weakness.  Other  diagnosis  considered  but  not  ratable:  Type  I1 
Diabetes  Mellitus  with  peripheral  sensory/motor  neuropathy.  The 
IPEB  found  that  the  applicant  was  unfit  because  of  physical 
disability  and  that  the  degree  of  impairment  was  permanent,  and 
recommended permanent retirement, with a 40% compensable rating. 

On 30 June  1994, applicant concurred with  the recommended findings 
of  the  W E B .  
On  6  July  1994,  the  Secretary  of  the  Air  Force 
directed that his name be removed from the TDRL.  Effective 16 July 
1994,  the  applicant's  name  was  removed  from  the  TDRL  and  he  was 
retired  in  the  grade  of  technical  sergeant,  with  a  compensable 
disability rating of 40%. 
The  DVA  rating  of  13  September  1994,  diagnosed  applicant's 
conditions  as  service-connected  for  cervical  spondylosis  with 
radicular symptoms, right arm, 20% from 25 January 1992; S / P   medial 
meniscectomy,  left  knee  for  lateral  meniscus  tear,  10%  from 
25 January  1992; and diabetes mellitus,  10% from 25  January  1992. 
He was denied service-connection for trauma, left big  toe; rotator 
cuff strain, right shoulder; bilateral sensorineural hearing  loss; 
tinnitus; mild  obstructive disease  of  the  small airways; and  rash 
on neck. 

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AFBCMR  9 6 - 0 1 7 3 1  

They 

diagnosed 

his 

1992. 

The  DVA  rating  of  25 April  1997,  continued  the  service-connected 
ratings  for  cervical  spondylosis  with  radicular  symptoms,  right 
arm,  at  20%  from  25  January  1992,  and  status  post  medial 
meniscectomy  left  knee  for  lateral  meniscus  tear,  at  10%  from 
25 January 
as 
service-connected  for  diabetes  mellitus  with  anal  pruritis,  20% 
from  8  February  1996;  sensory  neuropathy,  right  (major)  upper 
extremity, 10% from 11 June 1993; sensory neuropathy, left  (minor) 
upper  extremity,  10%  from  11 June  1993;  sensory neuropathy, right 
lower  extremity,  10%  from  11  June  1993;  sensory  neuropathy,  left 
lower  extremity,  10%  from  11 June  1993; for a  combined  rating  of 
He was  denied  service-connection for the diagnoses of left 
60%. 
great  toe  trauma;  right  shoulder  rotator  cuff  strain,  bilateral 
hearing loss, tinnitus, mild obstructive small airway disease, and 
post traumatic stress disorder. 

conditions 

AIR FORCE EVALUATION: 

The  Physical  Disability  Division,  AFPC/DPPD,  reviewed  this 
application  and  recommended  denial, stating  the  applicant has  not 
submitted any material or  documentation to  show he  was  improperly 
rated  at  the  time  of  his  removal  from  the  TDRL  and  permanent 
retirement by reason of physical disability. 

DPPD noted applicant's  claims that since the DVA has recently added 
Degenerative  Polyneuropathy  (a condition noted  in  the  applicant's 
TDRL  reevaluation medical  summary  as  well  as  earlier  entries)  to 
its  list  of  conditions  that  it  will  consider  "presumed  to  be" 
caused by exposure to Agent Orange, that his compensable percentage 
for disability for which he was  retired from the Air  Force should 
be increased. 

The  Air  Force  and  DVA  disability  systems  operate  under  separate 
Under  the  Air  Force  system  (Title  10,  USC),  PEBs  must 
laws. 
determine if a member's  medical condition renders the member 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.  If the board renders a finding of unfit, the law provides 
compensation for those members whose  career is cut  short due to a 
service incurred or  service-aggravated physical disability.  Under 
the  DVA  system  (Title 38,' USC),  the law provides  for compensation 
for  members  based  on  the  average  impairment  in  earning  capacity 
resulting  from  service  connected  diseases  and/or  injuries. 
As 
such,  the  VA  over  a  period  of  years,  may  require  reratings  in 
accordance  with  a  member's  current  physical  condition.  Although 
the  two  agencies  use  the  same  rating  schedule, the  military  only 
rates  those  conditions  which  make  a  person  unfit  for  continued 
military  service while  the  DVA  rates medical  conditions connected 
to the member's  military service. 

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AFBCMR  96-01731 

At  the time of his disability processing, applicant's  degenerative 
polyneuropathy  was  associated  with  his  cervical  spondylosis, but 
not separately rated.  His condition is a degenerative one, and as 
such  has  worsened,  as  noted  in  his  DVA  examination  of  26  April 
1996.  As  previously stated, the Air  Force rates disabilities only 
at  the  time  of  disability processing  and  final disposition.  The 
medical  documentation  in  the  case  file  suggests  he  was  properly 
rated  40%  disabled  at  the  time  of  his  TDRL  reevaluation  and 
permanent retirement from the service. 

The complete evaluation is at Exhibit C .  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

At  the time of his  removal from the TDRL and permanent retirement 
for  disability,  he  was  not  knowledgeable  about  his  medical 
condition enough to make a proper or informed judgment in what was 
being  offered  to  him. 
He  was  not  in  a  position  physically  or 
mentally to comprehend all that was going on. 

Under  separate  cover,  applicant provided  additional  DVA  documents 
and  documentation  pertaining  to  a  hearing  for  Social  Security 
disability insurance benefits. 
Applicant's  responses, with attachments, are at Exhibit E. 

ADDITIONAL A I R   FORCE EVALUATION: 
The  BCMR  Medical  Consultant  addressed  the  final  disposition  of 
applicant's  case by  action of the PEB on 2 June 1994, following a 
20-month period of observation on the TDRL. 

At  the  time  of  final military  disposition  in  1994,  there  was  no 
evidence  available  indicating  an  association between  Agent  Orange 
and  development  of  nervous  system  disorders.  The  applicant  had 
known  diabetes  mellitus  (DM),  a  condition  that  is  frequently 
associated  with  development  of  peripheral  neuropathies  (although 
the  time  sequence  from discovery  of  his  DM  made  this  association 
unlikely)  and  he  also  had  known  degenerative  disk  disease  of  his 
cervical  spine  which,  too,  could  give  peripheral  nerve  symptoms 
such  as  he  was  experiencing.  With  no  evidence  of  a  connection 
between his problem and his prior  exposure to Agent  Orange at  the 
time of his final disposition, inference of such a connection would 
not  have  been  appropriate or  legitimate.  The applicant, himself, 
provides  information  dating  to  1996,  two  years  after  his  PEB 
decision,  that Agent  Orange was  then  considered  a  possible  source 
of  such  neuropathies  and  that  nerve  problems,  if  they  developed, 
then might be considered a result of exposure to this defoliant. 

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AFBCMR 96-01731 

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  t h e   of permanent  d i s p o s i t i o n   and not on  future 
events.  However, Title 3 8 ,   USC, authorizes the DVA to increase or 
decrease compensation ratings based upon the individual's  condition 
at the time of future evaluations.  The DVA is the agency that is 
tasked  to  reevaluate  an  individual's  status  with  the 'passage of 
time, and appropriate adjustments can be made depending on changing 
circumstances.  There  is no  evidence  the applicant was  improperly 
rated or that all available information was not utilized in making 
the final disability decision in 1994. 
The complete evaluation is at Exhibit F. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

A  copy of the additional Air  Force evaluation was forwarded to the 
applicant  on  16 April  1998  for  review  and  comment.  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 timely filed. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  We  took 
notice of the applicant's complete submission in judging the merits 
of  the  case,  including  the  subsequent  medical  evaluations  and 
opinions  provided  in  his  behalf.  However,  we  do  not  find  these 
documents  sufficiently  persuasive  to  override  the  rationale 
expressed by  the Air  Force offices of primary  responsibility.  We 
therefore  agree  with  the  findings  of  the  offices  of  primary 
responsibility  and  adopt  their  rationale  as  the  basis  for  our 
conclusion that the applicant has failed to show that his rights to 
due process were violated during the disability processing, that he 
was improperly evaluated, or that the ratings assigned at the time 
of  his  removal  from  the  TDRL  were  erroneous. 
In  view  of  the 
foregoing,  and  absent  evidence  to  the  contrary, we  find  no  basis 
upon which to favorably consider applicant's  request 

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. 

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AFBCMR 96-01731 

THE BOARD DETERMINES THAT: 

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  21  July  1998,  under  the  provisions  of  AFI 
36-2603: 

Mr.  David W. Mulgrew, Panel Chair 
Mr. Joseph G. Diamond, Member 
Mr. Terry A. Yonkers, Member 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 21 Jun 96, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFPC/DPPD, dated 13 Dec 96. 
Exhibit D.  Letter, SAF/MIBR, dated 30 Dec 96. 
Exhibit E .   Letters, Applicant, dated 5 Jan 97, w/atchs, 
Exhibit F.  Letter, BCMR Medical Consultant, dated 15 Apr 98. 
Exhibit G.  Letter, AFBCMR, dated 16 A p r   98. 

and 1 0   Mar 97, w/atchs. 

DAVID W. MULGREW 
Panel Chair 

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AFBCMR 96-01731