RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-00381
            INDEX NUMBER:  108.02
      XXXXXXXXXXXXXXXX COUNSEL:  Anthony W. Walluk

      XXX-XX-XXXX      HEARING DESIRED:  No

________________________________________________________________

APPLICANT REQUESTS THAT:

His Air Force disability rating be increased  from  40  percent  to  75
percent retroactive to his date of retirement.

________________________________________________________________

APPLICANT CONTENDS THAT:

In a  four  page  brief  with  seven  exhibits  submitted  by  counsel,
applicant contends that the  medical  conditions  that  forced  him  to
involuntarily leave  the  Air  Force  before  he  would  have  normally
retired, and from which he still suffers, should  have  been  rated  as
separate conditions with a minimum total rating of 75 percent.

He was diagnosed with Multilevel Degenerative Disk  Disease  after  the
Formal Physical Evaluation Board (FPEB)  rated  his  disability  at  40
percent and before he left  active  duty.   The  doctors  treating  him
verified the condition and called it “significantly  disabling.”   This
assessment by itself fulfills a rating of 60 percent and  supports  his
request for an increase in his disability rating.

He is also suffering from the  disease  Fibromyalgia,  which  both  the
Departments of Defense and Veterans Affairs accept  as  a  debilitating
disease.

If he only suffers from the single diagnostic code the FPEB incorrectly
assigned, then it was  malpractice  for  the  Air  Force  to  give  the
applicant the treatments he received for Degenerative Disk Disease.  It
is more likely that the doctors treating the applicant did so correctly
and that the FPEB acted inappropriately by combining both conditions.

Based on the method of computing the disability rating  in  cases  like
his, the two disability ratings added together would come to 76 percent
and be rounded to 75 percent.

Applicant’s complete submission, with attachments, is at Exhibit A.

________________________________________________________________
STATEMENT OF FACTS:

The applicant was involuntarily retired due to physical disability with
a rating of 40 percent in the  grade  of  major  on  29  Dec  99.   The
remaining relevant facts pertaining to this case are contained  in  the
evaluations prepared by the appropriate offices of the Air Force  found
at Exhibits C and D.

________________________________________________________________

AIR FORCE EVALUATION:

The BCMR  Medical  Consultant  recommends  denial  of  the  applicant’s
request.  It is  his  opinion  that  there  is  no  clear  evidence  of
impropriety or inequity in this case.  He recommends that the Board  in
determining if the Air Force disability rating  was  accurate,  proper,
and equitable, focus on judging the applicant’s functional capacity and
ability to work at the time he underwent his physical evaluation  board
in 1999.

The applicant  suffers  from  two  conditions  unfitting  for  military
service, chronic back pain apparently due to degenerative disc  disease
without neurologic findings, and fibromyalgia syndrome (FMS).

The applicant had a variety of mild abnormalities  on  imaging  studies
that were of unclear relationship to his chronic back pain.  One  spine
specialist felt his response to discography supported his  degenerative
disc disease  as  a  source  of  pain.   The  applicant  did  not  have
neurologic deficits, his neuro-electrodiagnostic testing (EMG/NCV)  was
normal, and  a  bone  scan  which  frequently  shows  abnormalities  in
degenerative  spine  disease  was  also  normal.   Until  he  developed
fibromyalgia, the applicant appeared to be performing his  duties  very
well despite his chronic back pain from 1995 to 1998.

Of importance in considering the issue raised by the applicant  is  the
interaction between these two chronic pain conditions.  The  consulting
rheumatologist concluded that the applicant’s FMS the primary disabling
condition and that the FMS was the cause for his report  of  back  pain
that seemed out of proportion to the  objective  findings  of  physical
examination, electro-diagnostic testing and imaging studies reported in
his records.  In other words,  the  FMS  amplified  his  back  pain  as
producing widespread pain and other symptoms.  In  addition,  his  back
injury may have been a triggering event for his FMS.

Prior to the development  of  the  FMS,  the  applicant  was  receiving
excellent performance reports and  was  even  continuing  to  exercise.
There was no evidence, other than his report of  pain  that  his  spine
disease had objectively changed since the initial rating of 20 percent.
 Although he has both a painful back condition and FMS,  a  generalized
pain condition, it appears that  it  was  predominantly  the  FMS  that
resulted in disability making him unfit for continued military service,
and that FMS amplified his back pain.  At  the  time  of  his  Physical
Evaluation  Board,  the  FPEB  felt  that  his  pain   and   functional
limitations due to pain were mostly the result of his FMS.  They  rated
his disability by grouping the two conditions (VASRD 5293 and 5025) and
rating him at 40 percent based on their judgement of his  global  level
of functioning at his job.   The  FPEB  concluded  that  his  continued
excellent duty performance as reflected in his OPRs was evidence of his
ability, at that time, to continue to function in an  employed  status,
though his condition was unfitting for continued military service.  His
excellent duty  performance  did  seem  to  be  in  conflict  with  the
subjective limitations that the applicant reported in his letters,  and
descriptions of the  limitations  contained  in  the  other  supporting
documentation available to the FPEB.

It would  seem  reasonable  to  rate  the  two  conditions  separately.
Although the FMS aggravated the back pain, it would seem reasonable  to
rate the back pain separately but not to the degree it  was  aggravated
by the FMS.  Determining the relative contributions of  each  condition
to his overall disability and the proportion that the FMS increased the
pain associated with the degenerative disc disease is impossible.   The
FPEB took the only rational approach it could by lumping them  together
since the common symptom of pain was shared by both conditions and  the
two conditions were intimately intertwined in their final manifestation
of disabling pain.  The next step is to rate the disability  using  the
appropriate VASRD codes as a guideline at the time  the  applicant  was
undergoing his PEB.  At the time of the FPEB,  the  applicant  reported
missing work due to his conditions, and the commander’s  letter,  dated
25 Nov 98 reported physical limitations impacting  his  performance  of
tasks that required him to move about, climb stairs or  travel,  though
he  continued  to   make   significant   contributions   within   those
constraints.  The FPEB rated his disability at 40 percent.  The maximum
for fibromyalgia in the VASRD (code 5025) is  40  percent.   The  VASRD
code 5293, invertebral disc syndrome,  requires  neurologic  signs  and
symptoms to be rated at the maximum of 60 percent.   Lower  ratings  of
severe, recurring attacks with  intermittent  relief  (40%),  moderate,
recurring attacks (20%) and mild (10%) are not clear as to  requirement
for neurologic signs or symptoms.

The complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPD recommends denial of the applicant’s request.  The  applicant
appeared before the FPEB accompanied by his private counselor on 15 Jul
99 for the purpose of adjudicating his case.   Following  an  extensive
review of  the  additional  medical  evidence,  and  testimony  by  the
individual, the FPEB diagnosed his medical condition  as  chronic  back
pain associated with  Fibromyalgia  and  pain  amplification  syndrome.
They then recommended that he be permanently retired with a 40  percent
disability rating.  The applicant’s  medical  condition  for  bilateral
carpal  tunnel  syndrome  was  also  examined;  however,  it  was   not
considered unfit at the time of the evaluation.  Applicant agreed  with
the Board’s findings and recommendation and shortly thereafter  he  was
permanently retired with a  40  percent  disability  rating  under  the
provisions of Title 10, USC, Section 1201.

It is essential that the individual understand the  difference  between
Title 10 and 38 of the USC.  The Air Force and DVA  disability  systems
operate under separate laws.  Under  the  Air  Force  system,  Physical
Evaluation Boards  must  determine  if  a  member’s  medical  condition
renders them unfit for continued military service.   The  fact  that  a
person may have a medical condition  while  on  active  duty  does  not
automatically mean  that  the  condition  is  unfitting  for  continued
military service.  Air Force disability boards can only rate  unfitting
conditions based upon the individual’s medical status at  the  time  of
his or her evaluation; in essence a snapshot of their condition at  the
time.

The DVA, however, is charted to provide continual medical care  to  the
veteran for  service-connected  medical  conditions  once  they  depart
active service.  Under Title 38, USC, the DVA may increase or  decrease
an individual’s disability rating  based  on  the  seriousness  of  the
medical condition throughout his or her life span.

The complete evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel forwarded a statement prepared  by  the  applicant;
however, applicant forwarded a second statement  with  instructions  to
substitute it for the statement forwarded by counsel.

The applicant indicates that the rating given by the PEB was improperly
combined as he showed in the original letter to the board by the  Chief
of Reumatology who stated that  he  had  two  separate  and  distinctly
ratable conditions.  He states that he has shown an injustice based  on
incorrect categorizing and diagnosis coding and a biased, desire by the
FPEB to save money  by  inappropriately  assigning  medical  disability
percentages to incorrect nondiagnosed medical conditions.  He maintains
that the video of the  PRB  shows  the  personnel  officer  (and  Board
President) tell him that he was trying to get out of the Air Force only
to secure a very lucrative position elsewhere.  He maintains  that  his
retirement percentage was  purposely  deflated  for  this  reason.   He
indicates that he is presently rated as 100 percent disabled by the  VA
and provides information  on  how  difficult  his  life  is.   He  also
maintains that he was retired 3 days short of CY2000  to  avoid  giving
him a $300.00 monthly increase he would have been entitled to.

The applicant maintains that the staff  person  wants  to  confuse  the
issues with false statements  like  “Member  has  been  in  the  weight
management system since 1988.”  Applicant states that anyone knows that
this is impossible for anyone,  much  less  anyone  on  track  to  make
colonel.  The evaluations also make  several  other  false  assumptions
regarding his condition.

He asks the Board to consider that  he  was  a  major  working  at  the
CINCPAC staff and on time and target to  make  lieutenant  colonel  and
colonel prior to his medical conditions, which worsened to the point he
was no longer able to sustain his job  performance,  which  is  clearly
outlined in his appeal and by the doctors letters.  He wants the  Board
to know that he is in a wheelchair full time and  unemployable  due  to
his medical conditions.  The applicant describes the current  state  of
pain he is in.  He states that he had a great career going and recounts
some of the things he can no longer do because of the pain he is in.

He states that he has shown that if the FPEB  had  rated  both  of  his
separately  ratable,  distinct  medical  conditions  (Fibromyalgia  and
Degenerative Disk Disease) that he would  have  been  awarded  the  75%
rating that his counsel and he had requested.   The  FPEB  stated  that
both conditions forced him to stop  working.   They  also  acknowledged
that the combination of these diagnosed conditions forced him  to  stop
working.

Applicant’s complete response, with attachment, is at Exhibit F.

________________________________________________________________

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 error or injustice.  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  primary  basis
for our conclusion that the applicant has not been  the  victim  of  an
error or injustice.  We also reviewed the FPEB video referenced by  the
applicant, but were unable to validate his claims of  bias.   Based  on
the  evidence  of  record,  we  believe  that  the  disability   rating
determined by the Formal Physical Evaluation Board was  reasonable  and
appropriate at the time it was rendered.  We note  the  difficulty,  as
discussed by the BCMR Medical Consultant, in determining  the  relative
contributions of both the Degenerative Disk Disease and Fibromyalgia to
the applicant’s overall disability.  While  the  applicant’s  condition
has progressively worsened since his  retirement,  the  critical  issue
before this Board is the assessed degree of disability at the  time  of
his retirement.  It does appear that the  applicant  is  receiving  the
appropriate  care  and  benefits  through  the  VA  disability  system.
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 Docket Number 02-00381 in
Executive Session on 1 August 2002, under the  provisions  of  AFI  36-
2603:

      Mr. John L. Robuck, Panel Chair
      Mr. Albert F. Lowas, Jr., Member
      Mr. William H. Anderson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Nov 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant, dated.
                23 Apr 02.
    Exhibit D.  Memorandum, AFPC/DPPD, dated 10 May 02.
    Exhibit E.  Letter, SAF/MIBR, dated 17 May 02.
    Exhibit F.  Letter, Applicant, dated 10 Jun 02.




                                   JOHN L. ROBUCK
                                   Panel Chair