RECORD OF PROCEEDINGS


             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  00-01373
                 INDEX CODE:  108.04

                 COUNSEL:  NONE

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability discharge with  severance  pay  and  a  20%  disability
rating be set aside,  and  he  be  granted  retirement  by  reason  of
physical disability.
_________________________________________________________________

APPLICANT CONTENDS THAT:

In 1999, the Air Force discharged him with a disability rating of 20%.
 The DVA has since given him a 70%  disability  rating.   He  believes
that because he will have the disability for the rest of his life,  he
should have access to base facilities; i.e., commissary, BX, and  MWR.
There is a considerable difference in the disability ratings.

In support of his appeal, the applicant  submits  copies  of  the  DVA
rating decisions.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant  received  a  medical  evaluation  on  25  March  1998.   On
29 October 1998, the medical  summary  was  reviewed  by  the  Medical
Evaluation Board (MEB) for the purpose of continued active duty.   The
MEB  rendered  diagnoses   of   Condylar   Hypoplasia   with   Basilar
Invagination,  S/P  Decompression  and  Occiput  to  C3  Fusion,  with
Resolution of Most  Brain  Stem  Findings  and  Return  of  Positional
Vertigo; Positional Vertigo; S/P Tracheostomy and  Posterior  Cervical
Fusion; and Chronic Neck Pain  and  Headache  Related  to  Skull-based
Abnormalities  and  Post-Op  Change.   The  MEB  determined  that  the
applicant’s case should be referred to an Informal Physical Evaluation
Board (IPEB).  On  17  November  1998,  the  IPEB  found  his  medical
condition impacted his ability to perform duties commensurate with his
office, grade, rank or rating.  The IPEB further noted that  in  spite
of treatment, it had persisted.  They found him unfit for  the  rigors
of military service and recommended discharge with severance pay  with
a  20%  compensable  disability  rating.   Conditions  that  could  be
unfitting but were not  currently  compensable  or  ratable:   Palatal
insufficiency with secondary speech dysphasia, VASRD 8299-8212.  On 30
November  1998,  the  applicant  concurred  with  the   findings   and
recommended disposition of the IPEB.

On 13 January 1999, the applicant was honorably discharged from active
duty, for physical disability under  the  provisions  of  AFI 36-3212,
with a combined compensable rating of 20% for Condylar Hypoplasia with
Basilar   Invagination,   Status    Post    Transoral,    Transpalalal
Decompression and Occiput-To-C3 Fusion with Following Residual Medical
Conditions, since 1997:  Chronic Neck Pain with Associated  Headaches,
VASRD 5290; and Positional Vertigo,  VASRD  6299-6204.   He  completed
8 years, 1 month and 14 days of active service.

In a Rating Decision dated 8 February 2000, the Department of Veterans
Affairs (DVA) awarded the applicant a combined compensable  disability
rating of 70% for Post-traumatic stress disorder, major depression and
panic disorder (50%), effective 14 January 1999; Residuals status post
cervical spine laminectomy and fusion with tension  headaches  due  to
compression of the pontine  medullary  junction  (20%),  effective  14
January 1999; Positional vertigo due to  compression  of  the  pontine
medullary  junction  (10%),  effective  14   January   1999;   Palatal
insufficiency with nasal sounding speech due to  tracheostomy  with  a
transoral transpalatal  resection  of  the  inferior  portion  of  the
odontoid and the retro-odontoid  pannus  (0%),  effective  14  January
1999; Scars on head from halo pins and on neck from tracheostomy (0%),
effective 14 January 1999; Scars, hip area, posterior neck,  shoulder,
mid-chest and from left inguinal  hernia  repair  (0%),  effective  14
January 1999; and Residuals, left ankle  strain  (10%),  effective  14
January 1999.  Service  connection  for  malocclusion  correction  was
denied.

The remaining relevant facts pertaining to this application, extracted
from the applicant's military records, are contained  in  the  letters
prepared by the appropriate offices of the  Air  Force.   Accordingly,
there is no need to recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The BCMR  Medical  Consultant  states  that  the  applicant  developed
neurological signs and symptoms that led to a diagnosis of brain  stem
compression from a skeletal defect  that  caused  his  upper  cervical
spine to impinge on the brain stem.  These  problems  began  in  early
1996 and in May 1997, he underwent extensive neurosurgical  procedures
to relieve the compression and stabilize his neck  by  spinal  fusion.
The surgery was very successful in relieving the symptoms, but he  was
left with residual headaches, a  stiff  neck  from  the  fusion,  some
dysfunction of his palate that created some difficulty with speech and
swallowing, and some dizziness associated with position.  Because  the
residual effects interfered with the performance of his duties  as  an
avionics technician, he was presented to an MEB on  29  October  1998,
and referred to the IPEB on 17 November 1998.  Recommendation was  for
separation with severance pay and  20%  disability  for  residuals  of
chronic neck pain with associated headaches, and  positional  vertigo.
He accepted the recommendation and was discharged with  $22,245.35  in
severance pay.  Records show a single mental health  clinic  visit  in
November 1997, some 6 months after the surgery, for what was  felt  to
be an adjustment disorder with depressed mood relating to the  surgery
and its after effects.  Removal of his stabilizing  hardware  on  that
same day relieved much of his pain, and he did not feel the  need  for
further counseling.  There was nothing found  to  suggest  the  later-
diagnosed PTSD that the DVA now compensates him for.

Since discharge, the applicant has  been  followed  by  the  DVA,  who
currently rates him at a combined  rating  of  70%,  which  generously
includes 50% for PTSD related to his surgical interventions,  20%  for
the spine fusion with headaches, 10% for residuals  of  a  left  ankle
strain suffered in 1995, and 10% for the  vertigo.   Because  of  this
rating, the applicant believes  he  should  have  received  a  medical
disability retirement.  For an individual to be considered  unfit  for
military service, there must be a medical condition so severe that  it
prevents the performance  of  any  work  commensurate  with  rank  and
experience.   Once  this  determination  is  made,  namely  that   the
individual is unfit, disability rating  percentage  is  based  on  the
member’s condition at the time  of  permanent  disposition.   Congress
recognized  that  a  person  can  acquire  physical  conditions  that,
although not unfitting at the time of separation, may  later  progress
in  severity  and  alter  the  individual’s   lifestyle   and   future
employability.  With this in mind, the  DVA  compensation  system  was
written to allow awarding compensation ratings for conditions that are
not unfitting for military service.  This is the reason an  individual
can be found disabled at a certain level,  and  yet  soon  thereafter,
receive a  higher  compensation  rating  from  the  DVA  for  service-
connected, but militarily not unfitting condition.  Evidence of record
establishes  beyond  all  reasonable  doubt  that  the  applicant  was
properly evaluated and rated, that the level of  compensation  awarded
prior to his separation was proper, and that  no  error  or  injustice
occurred in this case.

The Medical Consultant is of the opinion that no change in the records
is warranted and the application should be denied.

A copy of the evaluation is attached at Exhibit C.

The Chief, Special Actions/BCMR Advisories, USAF  Physical  Disability
Division, HQ AFPC/DPPD, states that a thorough review of the case file
revealed no errors or irregularities in the processing of  applicant’s
case  within  the  military  disability  evaluation  system.   Records
clearly reflect that he was properly rated  under  federal  disability
guidelines, and that he was afforded a full and fair hearing  required
under military disability laws and policy.  The medical aspects of the
case are fully explained by the  BCMR  Medical  Consultant,  and  DPPD
agrees with his evaluation.

A copy of the evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded  to  the  applicant
and counsel on 25 August 2000, for review and response within 30  days
(Exhibit E).  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.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice warranting partial relief  of
the applicant’s request.  We noted the disparity  in  the  percent  of
disability from the Department of Veterans Affairs (70%)  as  compared
with the Air Force (20%).  While we are reluctant  to  substitute  our
judgment for that of medical personnel who are qualified to review and
make  recommendations  concerning  medical  issues,  after  thoroughly
reviewing the evidence of record, we believe there is sufficient doubt
as to whether or not the applicant should  have  been  placed  on  the
Temporary Disability Retired List (TDRL).  In this  respect,  we  note
that while on active duty, the applicant experienced chronic headaches
and neurological problems due to  brain  stem  compression.   Although
extensive neurosurgical procedures helped to relieve his symptoms,  it
appears he was left with residual headaches, dizziness and  difficulty
with speech and swallowing.  The comments of the Air Force  evaluators
are noted; however, based on the totality of the evidence before  this
Board and in an effort to remove any possibility of an  injustice,  we
recommend that he be found unfit and placed on the TDRL, effective  13
January 1999.  While on the TDRL, the applicant  will  be  reevaluated
and, at the appropriate  time,  a  final  disposition  will  be  made.
Accordingly, we recommend that the records be corrected  as  indicated
below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  On 12 January 1999, he was found unfit to perform the duties
of his office, rank, grade or rating by reason of physical  disability
incurred while entitled to receive basic pay; that  the  diagnosis  in
his case was condylar hypoplasia  with  basilar  invagination,  status
post transoral, transpalalal decompression  and  occiput-to-C3  fusion
with the following residual medical conditions:  (1) chronic neck pain
with associated headaches, VASRD code 5290,  rated  at  20%;  and  (2)
positional vertigo, VASRD code  6299-6204,  rated  at  10%;  that  the
combined compensable  rating  is  30%;  that  the  disability  may  be
permanent; that the disability was not due to  intentional  misconduct
or willful neglect; that the disability  was  not  incurred  during  a
period of national emergency; and that the disability was not received
in the line of duty as a direct result of armed conflict.

      b.  He was not discharged on 13 January 1999, but on that  date,
his name was placed on the Temporary Disability Retired List (TDRL).

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 12 October 2000, under the provisions of  AFI 36-
2603:

                 Mr. Patrick R. Wheeler, Panel Chair
                 Mrs. Margaret A. Zook, Member
                 Mr. Jackson A. Hauslein, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 May 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 13 Jul 00.
    Exhibit D.  Letter, AFPC/DPPD, dated 8 Aug 00.
    Exhibit E.  Letter, SAF/MIBR, dated 25 Aug 00.




                                   PATRICK R. WHEELER
                                   Panel Chair


AFBCMR 00-01373





MEMORANDUM FOR THE CHIEF OF STAFF


      Having received and considered the  recommendation  of  the  Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat  116),  it  is
directed that:

      The pertinent military records of the Department of the Air
Force relating to, be corrected to show that:

            a.  On 12 January 1999, he was found unfit to perform
the duties of his office, rank, grade or rating by reason of
physical disability incurred while entitled to receive basic
pay; that the diagnosis in his case was condylar hypoplasia
with basilar invagination, status post transoral, transpalalal
decompression and occiput-to-C3 fusion with the following residual
medical conditions:  (1) chronic neck pain with associated
headaches, VASRD code 5290, rated at 20%; and (2) positional
vertigo, VASRD code 6299-6204, rated at 10%; that the combined
compensable rating is 30%; that the disability may be permanent;
that the disability was not due to intentional misconduct or willful
neglect; that the disability was not incurred during a period of
national emergency; and that the disability was not received in the
line of duty as a direct result of armed conflict.

            b.  He was not discharged on 13 January 1999, but on that
date, his name was placed on the Temporary Disability Retired List
(TDRL).




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency