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. X 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. X 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. X 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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