RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-02602

            COUNSEL:  ANTHONY W. WALLUK

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His physical disability rating be increased from 40% to 70%.

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APPLICANT CONTENDS THAT:

The combination of medical conditions, which forced his  retirement,  should
have been rated at 70%.

The  applicant  states  that,  while  on  active  duty,  he  underwent  oral
maxillofacial  surgery.   As  a  result  of  the  unsuccessful  surgery,  he
suffered extensive and severe permanent injury.  In addition,  he  has  been
under treatment for depression resulting from his medical  problems.   Since
he was on active duty  at  the  time  of  the  surgery,  he  is  limited  to
disability  retirement  as  compensation  for  the  damages  done  to   him.
However, if he were a civilian and had these damages done to him,  he  could
have pursued a malpractice claim that would likely have compensated  him  in
the hundreds of thousands of  dollars.   Since  he  had  over  19  years  of
service at the time of the ill-fated surgery and over 20 years at  the  time
of his retirement, he was entitled to 51% retirement without  any  financial
medical malpractice proceeds for the unsuccessful surgery he  endured.   The
40% disability rating awarded by the Air Force gave him essentially  nothing
for the injuries he suffered, because he still receives the 51% to which  he
was already entitled.  The  VA  has  determined  that  his  sleep  apnea  is
ratable at 50%.  The VA also  determined  that  his  Status  Post  Maxillary
Mandibular  Advancement  Surgery,  with  Injury  Right  Facial   Nerve   and
Paralysis Side of Face,  is  ratable  at  50%.   Since  he  has  been  under
treatment for depression resulting from his medical problems, the  VA  rated
his depression at 10% and the Air Force should have given the  same  rating.
While the Board cannot restore his career or provide him the lost income  he
would have earned had he remained on active duty, the Board  can  allow  him
to receive the retirement that he would have  earned  but  for  the  surgery
gone bad.

The applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On  25  October  1994,  a  Medical  Evaluation  Board  (MEB)  convened   and
recommended the applicant be referred to  an  Informal  Physical  Evaluation
Board (IPEB) based on the diagnosis of  obstructive  sleep  apnea  initially
severe now  of  mild  to  moderate  degree;  refractory  to  three  surgical
procedures, manifested by mild daytime somnolence, sleep  fragmentation  and
insufficient  sleep,  still  requiring  nasal  Continuous  Positive   Airway
Pressure  (CPAP);  status   post   3   January   1989   nasal   septoplasty,
uvulopalatopharyngoplasty and 18 October 1993 bimaxillary advancement,  with
current  post  operative  significant  residual  of  perioral  paresthesias,
severe  difficulty  with  eating  and  exhaustion  with  prolonged   speech;
periodic  limb  movements  of  sleep  of  mild  degree;  esophageal   reflux
syndrome; insufficient sleep syndrome due to personal  habit;  TB  convertor
S/P 1 year  INH  therapy;  and  abnormal  blood  pressure  readings,  labile
hypertension.

On 2 November  1994,  an  IPEB  convened  and  recommended  the  applicant’s
temporary  retirement  with  a  compensable  rating  of  20%  based  on  the
diagnosis of perioral paresthesias with incomplete  lip  seal,  status  post
1989  nasal  septoplasty  and  uvulopalatopharyngoplasty  and  October  1993
bimaxillary advancement for obstructive sleep apnea, still  requiring  nasal
CPAP.

The applicant was involuntarily released from  active  duty  on  24 February
1995 for physical disability and  his  name  was  placed  on  the  Temporary
Disability Retired List (TDRL).

On 27 March 1996, the Department  of  Veterans  Affairs  (DVA)  awarded  the
applicant an overall combined compensable disability rating  of  50%  (i.e.,
obstructive   sleep   apnea    status    post    nasal    septoplasty    and
uvulopalatopharyngoplasty  and  maxillary  mandibular  advancement  -   20%,
hypertension - 10%,  acne  vulgaris  -  10%,  perioral  paresthesia  -  10%,
depressive disorder - 10%, and degenerative joint disease - 10%).

An FPEB  convened  on  8  October  1996,  and  recommended  the  applicant’s
permanent retirement with a compensable rating  of  10%  since  his  overall
impairment was moderate.  The applicant did not concur with the findings  of
the FPEB.

On 14 November  1996,  the  Secretary  of  the  Air  Force  Personnel  Board
determined that based on the bilateral involvement of  the  impairment,  the
applicant should be permanently retired with a compensable rating of 40%.

On  29  December  1996,  the  applicant  was  removed  from  the  TDRL   and
permanently retired by  reason  of  physical  disability  in  the  grade  of
lieutenant colonel, with a 40% disability rating.  He completed 20 years,  8
months, and 14 days of active service.

On 14 August 1997,  the  DVA  increased  the  applicant’s  overall  combined
compensable  disability  rating  to  90%  (i.e.,   status   post   maxillary
mandibular advancement surgery with injury right facial nerve and  paralysis
side of face - 50%, degenerative joint disease - 20%, and obstructive  sleep
apnea status post uvulopalatopharyngoplasty requiring CPAP - 50%).

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AIR FORCE EVALUATIONS:

BCMR Medical  Consultant  reviewed  the  application  and  states  that  the
appropriate level of  disability  was  awarded  on  14 November  1996.   The
applicant provides no evidence newer than the examination  results  of  1996
to compare present status to that used in his disability  evaluation,  other
than a Department  of  Veterans  Administration  (DVA)  rating  decision  of
August 1997.  As stated by the applicant, it was his own decision to  retire
early, and not one forced by  his  sleep  or  post-surgical  problems.   The
decision  was  based  on  his  perceptions  that  his  job  performance  had
suffered, perceptions that are not borne  out  by  review  of  his  records.
There is no evidence to support a higher rating at the time  of  retirement.
Furthermore, his  case  was  properly  evaluated,  appropriately  rated  and
received  full  consideration  under  the   provisions   of   AFI   36-3212.
Therefore, while sympathetic to the applicant  for  his  continuing  medical
problems, the BCMR Medical Consultant is of the opinion that  no  change  in
the records is warranted and recommends the application be denied.

A complete copy of the Air Force evaluation is attached at Exhibit C.

The  Chief,  Special  Actions/BCMR  Advisories,  AFPC/DPPD,   reviewed   the
application  and  states  that  there  are  no  errors,  irregularities,  or
injustices that would require a change to applicant’s military records.   It
is their opinion  that  the  applicant  was  properly  rated  under  Federal
disability rating guidelines based on the medical evidence provided and  was
afforded a full and fair hearing required under disability laws and  policy.
 Therefore, they recommend the application be denied.

A complete copy of the Air Force evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant’s counsel on 7 April 2000,  for  review  and  response  within  30
days.  On 4 August 2000, the application was withdrawn  in  accordance  with
counsel’s request.

On 31 March 2001, the applicant’s  counsel  provided  his  response  to  the
evaluations and requested the case be reopened.  Counsel states that the  VA
thoroughly  evaluated  the  applicant’s  condition  immediately  after   his
retirement and rated the nerve damage as 50%  because  it  was  severe,  not
moderate  as  the  evaluations  suggest.   There  is  no  mention   of   the
applicant’s  condition  being  moderate  anywhere  in  his   records.    The
narrative summaries in file both use the terms  severe  and  significant  in
describing the level of applicant’s  impairment.   Given  the  clarity  with
which the VA evaluated his condition there can  be  no  question  that  this
condition, by itself, should have been  rated  at  50%.   Furthermore,  both
evaluations ignore the facts that this permanent  disfigurement  came  about
only because the applicant had sleep apnea which, when treated  by  surgery,
worsened to  the  point  that  the  applicant  now  has  to  live  with  the
Continuous Positive Airway Pressure (CPAP) machine at high  volume  all  the
time.  The VA finds the applicant’s sleep apnea condition,  by  itself,  50%
disabling.  Even if it were conceded that sleep apnea alone, with  no  other
complications, is not unfitting, under the circumstances seen in this  case,
it was an obvious factor in the applicant’s  involuntary  early  retirement.
The particular circumstances of this case justify a rating of 50%  for  this
condition on top of the rating for the paralysis  that  ultimately  resulted
from it.

Counsel’s complete response, with attachments, is at Exhibit H.

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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  thoroughly  reviewing  the
evidence of record and  noting  the  applicant’s  contentions,  we  are  not
persuaded that his disability rating should  have  been  rated  higher  than
40%.  The applicant contends that his disability rating should  be  upgraded
as compensation for the damages done to him given his lack of an ability  to
seek medical malpractice compensation  from  the  Air  Force.   However,  we
found that no evidence has been presented to show that he was  not  properly
rated under Federal  disability  rating  guidelines  based  on  the  medical
evidence provided or that he was  not  afforded  a  full  and  fair  hearing
required  under  disability  laws  and  policy.   We  took  notice  of   the
applicant's complete submission in judging the merits of the case;  however,
we agree with the opinions and recommendations of the Air Force  offices  of
primary responsibility and adopt  their  rationale  as  the  basis  for  our
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.  Therefore, in the absence of evidence to the contrary,  we  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 24 April 2001, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Vice Chair
                       Mr. Billy C. Baxter, Member
                       Mr. Mike Novel, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Oct 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 18 Feb 00.
    Exhibit D.  Letter, AFPC/DPPD, dated 27 Mar 00.
    Exhibit E.  Letter, SAF/MIBR, dated 7 Apr 00.
    Exhibit F.  Letter, Counsel, dated 17 Jul 00.
    Exhibit G.  Letter, AFBCMR, dated 4 Aug 00.
    Exhibit H.  Letter, Counsel, dated 30 Mar 01, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair