SECOND ADDENDUM
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 93-00292
INDEX CODE: 108
COUNSEL:
HEARING DESIRED: Yes
_________________________________________________________________
APPLICANT REQUESTS THAT:
His retirement disability be increased to 100%.
_________________________________________________________________
RESUME OF CASE:
On 7 Jul 94, the Board considered and denied applicant’s 9 Nov 92
application requesting, among other things, that his disability rating
be increased to 100%. After reviewing the evidence of record, the
Board was not persuaded that he was treated unfairly 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 the Department of Veterans Affairs (DVA). The
Board noted that the wording of the Physical Disability Appeal Board
(PDAB) findings did not exactly match that of the Air Force Personnel
Board (AFPB); however, the difference was not significant because it
would not have resulted in a change to the overall rating. Although
the BCMR Consultant believed that the applicant’s case should be
returned to the PDAB so that it might be reevaluated by residuals, the
Board did not agree. A review of his case indicated that if the
residuals were reevaluated, the 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 not 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 Exhibit L).
On 30 Jun 97, the applicant requested the Board reconsider his request
to increase his retirement disability to 100%. On 29 Jun 98, the
Board denied applicant’s request (Exhibit M).
On 30 Oct 98, counsel for the applicant provided documentation from
the applicant and requested the Board reconsidered his request
(Exhibit N).
_________________________________________________________________
AIR FORCE EVALUATION:
The Chief Medical Consultant reviewed the documentation provided by
counsel and indicated that applicant’s letter continues to address
concerns for changes of his medical condition that have occurred since
his permanent disability retirement decision and action of 23 May 92.
It has been thoroughly stated in previous reviews that such changes
are outside the purview of the Military Disability Evaluation System
(MDES) and that they fall in the bailiwick of the DVA to compensate
according to conditions prevailing at such times as the former member
receives on-going evaluations. The applicant seems to not understand
the difference between the DVA and MDES programs in his persistence in
pursuing his request for a 100% disability retirement. Having pointed
out that a decision to retire someone at a particular level of
disability is dependent on conditions at the time of that retirement
and not on future changes in that condition, and that such decisions
rest on the relative stability of the unfitting condition that has
brought on the disability processing, this reviewer cannot expand on
the previous advisory in favor of the applicant’s request. The
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 Air Force evaluation is attached at Exhibit O.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Counsel reviewed the Air Force evaluation and provided a four-page
response (see Exhibit Q).
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. We have reviewed the
entire application and the additional documentation submitted.
However, we are not persuaded that a revision of the earlier
determinations in this case is warranted. In this respect, we are not
convinced that the applicant’s contentions override the additional
comments provided by the Chief Medical Consultant, dated 11 Dec 98, in
which he states that it has been thoroughly stated in previous reviews
that such changes are outside the purview of the MDES and that they
fall in the bailiwick of the DVA to compensate according to conditions
prevailing at such times as the former member receives on-going
evaluations. The Chief states that the applicant seems to not
understand the difference between the DVA and MDES programs in his
persistence in pursuing his request for a 100% disability retirement.
He also states that having pointed out that a decision to retire
someone at a particular level of disability is dependent on conditions
at the time of that retirement and not on future changes in that
condition. In view of the above and in the absence of more persuasive
evidence, we again find no compelling basis to recommend granting the
relief sought.
2. The documentation provided with this case was sufficient to give
the Board a clear understanding of the issues involved and a personal
appearance, with or without counsel, would not have materially added
to that understanding. Therefore, the request for a hearing is not
favorably considered.
_________________________________________________________________
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 6 April and 5 May 1999, under the provisions of
Air Force Instruction 36-2603:
Ms. Martha Maust, Panel Chair
Mr. Wayne R. Gracie, Member
Ms. Sophie Clark, Member
The following documentary evidence was considered:
Exhibit L. ROP, dated 7 Jul 94, w/atchs.
Exhibit M. Addendum to ROP, dated 14 Aug 98.
Exhibit N. Letter fr counsel, dated 30 Oct 98, w/atchs.
Exhibit O. Letter, BCMR Medical Consultant, dated 11 Dec
98.
Exhibit P. Letter, AFBCMR, 11 Dec 98.
Exhibit Q. Letter fr counsel, dated 26 Apr 99
MARTHA MAUST
Panel Chair
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