RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-00160 (Case 2)
            INDEX CODE:  108.02

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The disability rating at the  time  of  his  permanent  retirement  be
increased from 10 to 30 percent.
_________________________________________________________________

APPLICANT CONTENDS THAT:

At the time of his discharge on 10 Jan 98, both he and  the  attorneys
at the Physical Evaluation  Board  (PEB)  believed  that  the  correct
disability percentage should have  been  30%.   According  to  the  VA
Schedule  of  Ratings   (VASRD)   standard   for   paroxysmal   atrial
fibrillation (PAF) attacks, 10% is for “infrequent”  and  30%  is  for
“severe and frequent”.  The evidence submitted clearly showed that the
attacks were anything but “infrequent”; but,  with  no  definition  of
what constituted “severe and frequent,” he was denied the 30%.

In May of 1999, the Department of Veterans’ Affairs  (DVA)  rated  his
disability of paroxysmal atrial fibrillation (PAF) at 30%.

In support of his request, the applicant submits a personal statement,
the DVA rating  decision  of  12  May  99,  and  additional  documents
associated with the issues cited in his contentions.  These  documents
are appended at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
7 Feb 73.  He was relieved from  active  duty  on  9 Jan  98  and  was
permanently disability retired in the  grade  of  lieutenant  colonel,
with a  10%  compensable  rating  for  physical  disability.   He  was
credited with 24 years, 11 months and 3 days  of  active  service  for
retirement.

The 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 AFBCMR Medical Consultant, stated that the  applicant  served  the
last  18  years  of  his  career  with  a  known  problem  of   atrial
fibrillation (PAF), a condition of the  heart  that  causes  irregular
heart action and various levels of  resulting  effects  and  symptoms.
For the most part, the  applicant  was  able  to  function  well  with
treatment until the last year or so  when  the  symptoms  became  more
frequent and problematic.  Because they now interfered to some  degree
with performance of his usual duties, the applicant was presented to a
Medical  Evaluation  Board  (MEB)  and  then  through  the  disability
evaluation system and determined to be no more than  10%  disabled  by
his disorder.  The  applicant  had  sufficient  years  for  retirement
therefore it was recommended he be retired with  the  10%  disability.
The applicant’s scheduled retirement date of 10 Dec 87 was changed  to
10 Jan 98 when work in-progress was felt of such  significance  as  to
warrant  extension  into  the  new  year   and   completion   of   the
investigation  he  was  conducting.   Following  his  retirement,  the
applicant applied to the  DVA  and  was  awarded  a  higher  level  of
compensation  based  on  their  interpretation  of  the  severity  and
frequency of his heart-related symptoms.  The VASRD  criteria  changed
on 12 Jan 98, two days after applicant’s retirement.

The AFBCMR Medical Consultant stated that  the  applicant’s  testimony
heard during the Formal Physical Evaluation Board  (FPEB)  proceedings
indicated he missed only 8 days of work in the previous  year  because
of his condition and that he worked long hours and some  weekend  days
in accomplishing his duties.  While  aware  of  applicant’s  claim  to
increased  frequency  of  his  symptoms,  the  SECAF  Personnel  Board
commented correctly that  the  severity  of  these  symptoms  was  not
sufficient to warrant a higher  rating  of  30%,  and  that  his  duty
performance was not severely impacted by his problem.  The DVA, on the
other hand, interpreted the VASRD literally, as is often the case,  to
allow a higher percentage disability level.

The AFBCMR Medical Consultant indicated  that  the  relative  lack  of
significant events and the few days lost due to illness were  felt  to
justify no more than the award  granted.   There  is  no  evidence  to
support a higher rating at the  time  of  permanent  disposition,  and
changes in governing documents (i.e., the VASRD) that occur after such
disposition should  not  affect  conclusions  reached  prior  to  such
changes.  The AFBCMR Medical Consultant stated that the real  test  of
level  of  disability,  in  this  case,  was  the  relative  lack   of
incapacitation  experienced  by  the  applicant.   This   is   clearly
exemplified  in  the  extension  of  his  retirement  date   for   the
convenience of the government, an  extension  which,  parenthetically,
allowed applicant the benefit of a new year’s increase  in  retirement
salary compensation.  The AFBCMR Medical Consultant is of the  opinion
that no change in the records is warranted and the application  should
be denied (Exhibit C).


The Physical Disability Division, HQ AFPC/DPPD, stated that a  Medical
Evaluation Board (MEB) convened on 17 Jun 97  and  the  applicant  was
referred to the  Informal  Physical  Evaluation  Board  (IPEB).   Upon
reviewing the MEB, the IPEB examined the preponderance of evidence and
found the applicant unfit for “paroxysmal atrial  fibrillation.”   His
medical conditions for gout and hypertension were also considered  but
not found unfitting at the time of his MEB.  Shortly  thereafter,  the
IPEB recommended the applicant  be  permanently  retired  with  a  10%
disability rating.  The applicant  disagreed  with  the  findings  and
recommendation and requested a formal hearing of his case.   On  4 Sep
97, the applicant, with the  assistance  of  legal  counsel,  met  the
Formal Physical Evaluation Board (FPEB).  Following  testimony  and  a
thorough review of the  medical  evidence,  which  included  a  board-
directed consult by the  Department  of  Cardiology  at  Wilford  Hall
Medical Center at Lackland AFB, the FPEB confirmed  the  findings  and
recommendation of  the  IPEB  and  once  again  recommended  that  the
applicant be permanently retired, with a 10%  disability  rating.   In
the FPEB’s comments, they noted that the  applicant  had  consistently
ignored his physicians’ recommendations as far  back  as  Mar  95,  in
regard to his weight loss, dietary  changes  and  medication  changes.
The FPEB also recommended that any review by a higher authority,  with
the intention of raising his level of  disability  above  10%,  should
carefully consider an appropriate deduction for  non-compliance.   The
applicant disagreed with the FPEB’s findings  and  recommendation  and
elected to submit a written rebuttal to the Secretary of the Air Force
Personnel Council (SAFPC) requesting permanent retirement, with a  30%
disability rating.

DPPD  stated  that  following  an  extensive  review  of  the  medical
evidence,  SAFPC  decided  to  concur   with   the   IPEB   and   FPEB
recommendations for a final disposition of permanent retirement,  with
a 10%  disability  rating.   Subsequently,  SAFPC  also  extended  the
applicant’s retirement from 10 Dec 97 to 10 Jan 98 as an exception  to
policy due to operational commitments considered in the best  interest
of the Air Force.

DPPD indicated that a DVA decision rating, dated 5  Dec  99,  reflects
that the applicant is currently being rated for PAF  and  hypertension
at 30% and 10% disabling for a combined compensable disability  rating
of 40%.

DPPD stated that records show that the regulations that govern the DVA
schedule for rating disabilities for the  cardiovascular  system  were
revised 12 Jan 98.  Prior to that  date,  an  evaluation  of  30%  was
assigned for severe,  frequent  attacks.   Effective  12 Jan  98,  and
evaluation of 30% is assigned if there is PAF or other supraventriculr
tachycardia, with more than four episodes per year documented  by  ECG
or Holter monitor.  DVA records indicate applicant’s disability rating
was resolved giving reasonable doubt in the favor of  the  patient  in
which  they  interpreted  the  severity  of  his   medical   condition
differently than Air Force reviewing authorities at the  time  of  his
MEB.  In the case of the applicant’s MEB being adjudicated by the PEB,
the new DVA rating referred to was effective 12 Jan 98 and was neither
in  existence  nor  effective  at   the   time   of   his   disability
processing/MEB.

Following a  thorough  review  of  the  applicant’s  case  file,  DPPD
determined the applicant was treated fairly  throughout  the  military
disability evaluation process, that he was properly  rated  under  the
Federal disability guidelines, in effect at the time of his  MEB,  and
that he was afforded  a  full  and  fair  hearing  as  required  under
disability laws and policy.  DPPD recommended the applicant’s  request
be  denied.   The  applicant  has  not  submitted  any   material   or
documentation to show he was improperly rated or processed  under  the
provisions of military disability laws and policy at the time  of  his
permanent disability retirement.

A complete copy of this evaluation is appended at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on  25
May 01 for review and response.  As of this date, no response has been
received by this office (Exhibit E).
_________________________________________________________________

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.  After a thorough review
of the evidence  of  record  and  applicant’s  submission,  the  Board
majority is unpersuaded that an increase in the applicant’s disability
rating is warranted.  It is the  Board  majority’s  opinion  that  the
applicant’s disability  case  was  properly  evaluated,  appropriately
rated and received full and fair consideration under  the  appropriate
Air Force instruction.  All levels of review  considered  the  medical
record in assessing the severity  and  frequency  of  the  applicant’s
medical condition.   The  Board  majority  is  not  convinced  by  the
evidence presented that, at the time  of  permanent  disposition,  the
applicant’s medical condition was misdiagnosed by  Air  Force  medical
personnel, which included a board-directed consult by  the  Department
of Cardiology at Wilford Hall Medical Center, or that his case was not
processed properly.  The Board  majority  therefore  agrees  with  the
opinions and recommendations of the respective Air Force  offices  and
adopts their rationale as the basis for concluding that the  applicant
has not been the victim of an error or injustice.  In addition, it was
noted that “reasonable doubt was resolved in  the  applicant’s  favor”
when the Department of Veterans Affairs (DVA) assigned the 30  percent
evaluation.  In view of the foregoing and absent  sufficient  evidence
to the contrary, the Board  majority  finds  no  compelling  basis  to
recommend favorable action on his request.
_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the panel finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 19 July 2001, under the  provisions  of  AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Vice Chair
                  Ms. Barbara J. White-Olson, Member
                  Mr. Steven A. Shaw, Member

Mr. Markiewicz and Ms.  White-Olson  voted  to  deny  the  applicant's
request.   Mr.  Shaw  voted  to  grant  the  applicant's  request  and
submitted a minority report.  The following documentary  evidence  was
considered:

   Exhibit A.  DD Form 149, dated 9 Jan 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant, dated 1 May 01.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 16 May 01.
   Exhibit E.  Letter, SAF/MIBR, dated 25 May 01.
   Exhibit F.  Minority Report.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair

                                  July 26, 2001


MEMORANDUM FOR THE     EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                 CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  APPLICANT

      After reviewing the evidence presented, I disagree with the
conclusions drawn by the majority of the Board and recommend the
applicant’s disability rating be increased to 30 percent.

      The advisories from the AFBCMR Medical Consultant and HQ
AFPC/DPPD all stress that the applicant was properly rated through the
Air Force disability evaluation process; however, I believe there are
additional issues that need to be taken into consideration and which
leads me to the conclusion that a grant of his request is in order.
Specifically, the evidence shows the applicant had frequent attacks
requiring additional time off.  In addition to the eight days of work
the Formal Physical Evaluation Board (FPEB) stated he missed, no
mention was made of the 40 or so times during his last year that he
had to leave work early or rest in his office because of his medical
condition.  The applicant’s absenteeism is substantiated by the
statement from his commander and the rater’s comments on his Officer
Performance Reports (OPRs) closing 26 Jan 97 and 13 Jun 97.  Further,
just two days after the applicant’s retirement, the Department of
Veterans Affairs (DVA) determined the applicant should be awarded a 30
percent disability rating based on the evidence showing the applicant
having frequent attacks; i.e., more than four episodes per year
documented by ECG or Holter monitor.  As indicated in the DVA’s Rating
Decision, their 30 percent was assigned (under either the old or new
law) in accordance with the criteria specified in the Veterans
Administration Schedule for Rating Disabilities (VASRD). While we are
not of course bound by the DVA’s Rating Decision, it has probative
value in this case because it relates to the period in which the
applicant was on active duty - not, which is often the case, to a
period several years later after conditions have been aggravated.

      Accordingly, in view of the foregoing, I believe the applicant’s
medical condition at the time of his retirement warrants a higher
disability rating.




            STEVEN A. SHAW
            Panel Member




AFBCMR 01-00160




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
            CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                                         JOE G.
LINEBERGER
                                                         Director
                                                           Air   Force
Review Boards Agency