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AF | BCMR | CY1999 | 9503647A
Original file (9503647A.doc) Auto-classification: Denied

                            ADDENDUM TO
                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  95-03647
            INDEX CODE:  108.00

            COUNSEL:

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that he was  permanently  retired  by
reason of physical disability, rather  than  separated  by  reason  of
physical disability.

_________________________________________________________________

RESUME OF THE CASE:

On 16 Sep 97, the Board considered and denied a similar appeal by  the
applicant (see AFBCMR 95-03647, with Exhibits A through F).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel indicates that this matter should be reviewed.  If the  matter
is not reevaluated, then provisions should be made for the removal  of
a rod that is causing the applicant significant pain.

In  support  the  applicant’s  appeal,   counsel   provided   personal
statements, and a statement from a physician.

Counsel’s complete submission is at Exhibit G.

_________________________________________________________________

AIR FORCE EVALUATION:

Pursuant to the Board’s request, the BCMR Medical Consultant, reviewed
the applicant’s most recent submission and  recommended  denial.   The
Medical Consultant indicated that, while it is  unfortunate  that  the
applicant has continued to have problems  requiring  on-going  medical
attention  since  his  final  disability  disposition,  there  was  no
evidence to support a higher rating at the time of  separation.   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  on  future
events.  No change in disability ratings  can  occur  after  permanent
disposition, even though the condition may  become  better  or  worse.
However, Title 38, USC authorizes  the  VA  to  increase  or  decrease
compensation ratings based upon the individual’s condition at the time
of future evaluations.   According  to  the  Medical  Consultant,  the
applicant’s case  was  properly  evaluated,  appropriately  rated  and
received full consideration under the provisions of AFR 35-4.   Action
and disposition in this case was proper and reflected compliance  with
Air Force directives which implement law.  The Medical Consultant  was
of the opinion that no change in the records was warranted.

A complete copy of the Medical Consultant’s evaluation is  at  Exhibit
H.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

While perhaps correctly noting that no change  in  disability  ratings
can occur after permanent disposition, even though the  condition  may
become better or worse, the advisory opinion ignored  the  fundamental
issue of whether the initial rating was correct or not.  The Air Force
seems to be faced with conflicting opinions where Dr. A---  predicted,
and time has proven, accurately, that his analysis  of  the  deformity
was more accurate than that of the Air Force.   To  contend  that  the
applicant was  accurately  rated,  and  it  is  unfortunate  that  the
applicant has continued to have ongoing medical problems, is to ignore
the report of Dr. A--- and his prediction  of  continued  problems  in
light of the significant kyphosis, all of which  supports  the  higher
rating at the time of  separation.   As  Dr.  A---  concluded  in  his
letter, dated 21 Jan 98, it is clear that it is  more  convenient  for
the government to remain blinded to the patient’s condition and future
prognosis.   According  to  counsel,  his  comments  seem   completely
accurate.

Counsel’s complete response is at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

In  earlier  findings,  we  determined  that  there  was  insufficient
evidence to warrant any corrective action  regarding  the  applicant’s
original  appeal.   We  have  reviewed  the  applicant’s  most  recent
submission provided by counsel and find it insufficient to  warrant  a
reversal of our previous determination in this case.  In our view, the
issues raised in the submission have been adequately addressed by  the
BCMR Medical Consultant.  Therefore, we agree  with  the  opinion  and
recommendation of the Medical Consultant and adopt  his  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of an error  or  injustice.   Accordingly,  we  again  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

_________________________________________________________________

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 13 May 99, under the provisions of AFI 36-2603:

      Ms. Martha Maust, Panel Chair
      Mr. Lawrence R. Leehy, Member
      Ms. Rita J. Maldonado, Member

The following additional documentary evidence was considered:

    Exhibit G.  Letters, counsel, dated 31 Mar 98 and 26 May 98,
                w/atchs.
    Exhibit H.  Letter, BCMR Medical Consultant, dated 4 Mar 99.
    Exhibit I.  Letter, AFBCMR, dated 19 Mar 99.
    Exhibit J.  Letter, counsel, dated 6 Apr 99.




                                   MARTHA MAUST
                                   Panel Chair

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