RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-02018
            INDEX CODE:  136.00

            COUNSEL:  ANTHONY W. WALLUK

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her records be corrected to show she was not discharged with severance
pay but was permanently retired because of physical disability with  a
minimal combined compensable rating of 50% but more appropriately 70%.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Based on a Department of Veterans Affairs (DVA) Rating Decision, dated
31 January 2000, which initially rates her  service-connected  medical
conditions for a combined compensable disability rating  30%  from  30
April 1998 and 50% from  4  October  1999,  her  conditions  were  not
appropriately rated by the Air Force.  Therefore, her  discharge  with
severance pay should be set aside  and  the  findings  of  the  Formal
Physical Evaluation Board (FPEB) and the Personnel Council  should  be
replaced with findings that accurately reflect the  evidence  in  this
case.

In support of her application, the applicant provided a brief  by  her
counsel, and copies of medical records and documents  associated  with
the Air Force and DVA processing of and decisions in  her  case.   The
applicant's complete submission, with attachments is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted her initial enlistment  in  the  Regular  Air
Force on 29 October 1984.  She continued to enlist and serve on active
duty until 29 April 1998, at which time, she  was  honorably  relieved
from active duty and her name was placed on the  Temporary  Disability
Retired List (TDRL) in the grade of staff sergeant.  She had served 13
years, 6 months and 1 day on active duty.

The applicant’s retirement  had  its  basis  in  the  findings  of  an
Informal PEB (IPEB) that the applicant was unfit because  of  physical
disability, and that her unfitting conditions which  were  compensable
or ratable were “Pain, Left Knee, associated with cyhrondromalacia  of
patello-femoral  joint  and   lateral   compartment”   and   “Migraine
Headaches,” the former rated at 20% and the latter rated at 10% for  a
combined rating of 30  percent.   The  applicant  concurred  with  the
findings and recommended disposition of the IPEB.

On 10 January 2000, the applicant’s  name  was  removed  and  she  was
discharged by  reason  of  physical  disability  with  entitlement  to
severance pay.  Her discharge had its basis in the  approved  findings
of an FPEB that her unfitting conditions were ratable at 10% each  for
a combined compensable rating of 20%.

The remaining relevant facts pertaining to this application, extracted
from the applicant’s  military  personnel  and  medical  records,  are
contained in the letters prepared by the appropriate  offices  of  the
Air Force at Exhibits C, D and G.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief Medical Consultant, AFBCMR,  reviewed  the  application  and
states that the applicant and counsel continue their previous line  of
rebuttal that has been considered by both the Formal PEB and  the  SAF
Personnel Council  in  arriving  at  their  recommendations.   No  new
medical evidence is presented that would lead one to consider changing
applicant’s separation to a  medical  disability  retirement.   It  is
noted that the frequency of headaches, upon which they  propose  added
disability   compensation,   was   likely   affected   by    applicant
discontinuing prescribed medication some 3  months  before  undergoing
her TDRL evaluation in August  1999.   The  present  appeal  does  not
support  a  change  to  a  medical  disability  retirement.   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  upon  the
possibility of  future  events.   No  change  in  military  disability
ratings can occur after  permanent  disposition  under  the  rules  of
military disability system,  even  though  the  condition  may  become
better or worse.  However, Title 38, USC authorizes the VA to increase
or decrease the VA compensation ratings based  upon  the  individual’s
condition at  the  time  of  future  evaluations.   The  BCMR  Medical
Consultant is of  the  opinion  that  no  change  in  the  records  is
warranted and the application should be denied.  A  complete  copy  of
the evaluation is attached at Exhibit C.

AFPC/DPPD reviewed the application and states that the medical aspects
of this case are fully explained by the Medical Consultant; they agree
with his history.  Therefore, they  recommend  denial  of  applicant’s
request.  A complete copy of their evaluation is attached  at  Exhibit
D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for applicant states that in spite of  all  of  the  unrefuted
evidence establishing the severity of the applicant’s symptoms, no one
at the informal PEB, the formal PEB, the medical consultant or at AFPC
addresses the facts that have  presented  in  this  case.   All  these
advisories do is say “we agree with what the Air  Force  has  done  in
this case.”  Counsel questions how they can agree  without  addressing
and dismissing the factual evidence.

It is very well documented that the applicant’s knee has required four
surgeries, she is required to walk with a knee brace at all times, her
Air Force supervisor stated in detail how her  duties  were  impacted,
and her current supervisor stated that it continues to cause  problems
at work with frequent absences.   There  was  no  improvement  in  her
condition while she was on the TDRL (unless all the reviewers consider
one additional surgery to be an improvement over her having had  three
surgeries prior to the TDRL).  The VA at the time of  her  separation,
using the exact same criteria and standards that the  Air  Force  uses
considered the severity of the knee injury to justify a total  of  30%
(20% plus 10%).  The VA justified their decision in two solid pages of
narrative (see exhibit 1 to this response).  The Air Force IPEB simply
said “she has improved,” the FPEB gave four lines of rationale  saying
that she hasn’t missed much work, disputing without evidentiary  basis
her level of discomfort and instability and then “argu[ing]  that  her
knee is best described as no more than slight.”  That argument  simply
is not based on the facts in the  case.   The  BCMR  medical  advisory
simply states that the decision is well documented.  The AFPC advisory
essentially says the same thing, “we agree with what they  said.”   No
one disputes or refutes what the VA found, using  the  same  standards
and criteria as the Air Force.  In the  interest  of  brevity  counsel
stated he will not recite the VA findings at page 3 of  their  report,
but those findings are clearly inconsistent with a determination  that
this knee, operated on 4 times, is slightly impaired.

The documentation in the  file  clearly  shows  that  the  applicant’s
migraines exceed the criteria for even a 30% rating.  It is undisputed
that she has debilitating migraines 2-3 times per month.   The  rating
tables require only a history of one per month to  be  rated  at  30%.
The FPEB believed that if she didn’t miss work for the migraines  they
didn’t exist or didn’t count, yet she testifies that she was  able  to
exchange shifts with other workers rather than miss work.  Again,  the
amount of time missed from work  is  nowhere  in  any  criteria.   The
criteria are frequency and severity  of  the  attacks.   There  is  no
evidence in the  record  to  rebut  or  dispute  that  she  has  these
migraines at this level.  The Medical Consultant surmises, again  with
no documentation or evidence in the record, that her headaches are the
result of her discontinuing medication.  The evidence shows  that  she
was taking the medication throughout the first year and a half of  her
TDRL and they reduced the migraines from a 5-6 level to 2-3.  The fact
that she discontinued the medication when it failed to further  reduce
the headaches below the 2-3 level after 18 months does not in any  way
impugn the fact that the  do  exist  and  are  documented.   No  other
evidence in the  record,  suggests  non-compliance  as  a  reason  for
reducing her rating.  Neither the TDRL doctors nor either  PEB  saw  a
non-compliance  issue  in  the  documentation   and   testimony   they
considered.  It is disingenuous for the Medical consultant to  try  to
raise this issue without any evidence at this time merely  to  justify
the erroneous action of the PEB.

The criteria for rating migraines found in 38 CFR Chapter 1, Part 4 is
as follows:

8100 Migraine:
With  very  frequent  completely  prostrating  and  prolonged  attacks
productive of severe economic inadaptability………………50

With characteristic prostrating attacks occurring on an average once a
month over last several months……………………30

With characteristic prostrating attacks averaging one in 2 months over
last several months…………………………10

With less frequent attacks……………………0

There is no evidence in the record to document the  10%  finding  that
the PEB made.

Finally, neither advisory specifically  addresses  the  issue  of  the
tinnitus.   Counsel  submits  that  the  argument  he  made   in   the
applicant’s submission does establish that this  condition  interfered
with her duties as a communications installer.  The  evidence  in  the
record substantiates that argument.

Counsel maintains that the applicant was improperly rated by  the  PEB
and these advisories do nothing to refute or  rebut  the  evidence  we
have submitted.  The  applicant  requests  that  the  BCMR  grant  her
application.”

Counsel's complete response, with attachments, is attached at  Exhibit
F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant  states  that  judging  the  severity  and
frequency of migraines for the assignment of a  disability  rating  is
difficult since the primary source of information  is  the  subjective
report by the patient.   Raters  have  little  objective  evidence  to
assess severity and frequency.  Such objective  evidence  of  severity
includes  lost  days  from  work,  and  emergency  room  visits.   The
difference  of  opinion  boils  down  to  whether  the  applicant  has
“prostrating” migraine headaches as opposed  to  something  less  than
prostrating, though those headaches may never the less be  severe  and
limiting when the individual experiences  them.   The  intent  of  the
VASRD in using the word “prostrating” was to convey the  more  extreme
end of the spectrum of migraines and it in fact further clarifies  the
intent  further  by  stating  “Prostrating   and   prolonged   attacks
productive of severe  economic  inadaptability”.   It  is  the  phrase
regarding the severe loss of economic adaptability that points to  the
intent of the VASRD in assigning ratings for migraine.   Although  the
term prostrating alone  may  be  open  to  broad  interpretation,  the
combination  of  this  term  with  economic  impact  requires   rating
disability for migraine based on two factors, severity,  and  economic
inadaptability.  Both must  be  present  and  they  must  be  related.
Headache and migraine headaches are conditions experienced commonly by
many people.  When those headaches  become  so  severe  and  prolonged
(prostrating) so as to prohibit employment, then those  migraines  are
disabling and ratable.  There  are  many  individuals  who  experience
severe migraine headaches, yet are fully employed  and  are  thus  not
economically disabled by their headaches.  There are  individuals  who
suffer with migraine headaches who are unemployed but their unemployed
status is not due to their headaches, though some may claim  they  are
unemployed  due  to  migraine  headaches.   There  are  some  migraine
sufferers whose condition is so severe as  to  cause  severe  economic
inadaptability and thus are ratable using the guideline  contained  in
the VASRD table for migraine  headache.   The  applicant  is  employed
fulltime in her field of training and there is no evidence that at the
time of her placement on TDRL status or  the  time  of  her  permanent
separation from the Air Force that her migraine headaches produced any
economic inadaptability.  The applicant  contends  the  frequency  and
severity of her headaches rates higher than the 10% awarded, but since
there is no evidence of economic inadaptability a higher  rating  does
not appear to be justified.  Therefore, the BCMR Medical Consultant is
of the opinion that no change in the rating for migraine  headache  is
warranted.

A complete copy of their evaluation is attached at Exhibit H.

_________________________________________________________________

APPLICANT'S ADDITIONAL REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant submits that the criteria for the 50% rating
on the headaches is very well documented.  The applicant has a history
of the  requisite  number  of  debilitating  attacks  to  justify  the
requested change.  The advisory does not dispute the frequency nor  is
there any refuting evidence anywhere in the voluminous file  that  has
been presented.  Quite simply state, the Air Force  and  the  VA  have
specific objective criteria that are clearly met in this case.

The advisory attempts to rely on an inaccurate perception of her prior
work history while she was on the TDRL to belittle her  true  physical
condition.  Even if their understanding of her history of missing work
were correct, that argument  is  irrelevant.   The  VA  rates  medical
conditions that interfere with a member’s ability to work  after  they
are retired.  The Air Force rates conditions that interfere with their
military duty performance.  That this is  true  is  reflected  in  the
standard  boilerplate  advisories  that  the  BCMR  receives  from  HQ
AFPC/DPPD.  An example of  this  is  seen  in  the  advisory  from  HQ
AFPC/DPPD (at exhibit 2) in another case,  cited  here  merely  as  an
example of their reliance on this dichotomy for recommending denial in
other cases.  It was previously determined that these  conditions  did
interfere with applicant’s duty performance and that is  why  she  was
initially placed on the TDRL.  The only function that the FPEB had was
to determine the current level of her disability after her  period  of
observation on the TDRL as specified in the VASRD as again illustrated
below.  Her condition did not improve while she was on the TDRL --  it
worsened.

The documentation in the file clearly shows that applicant’s migraines
exceed the criteria for even a 30% rating.  It is undisputed that  she
has debilitating migraines 2-3 times per  month.   The  rating  tables
require only a history of one per month to be rated at 30%.

The criteria for rating migraines found in 38 CFR Chapter 1, Part 4 is
as follows:

8100 Migraine:
With  very  frequent  completely  prostrating  and  prolonged  attacks
productive of severe economic inadaptability………………50

With characteristic prostrating attacks occurring on an average once a
month over last several months……………………30

With characteristic prostrating attacks averaging one in 2 months over
last several months…………………………10

With less frequent attacks……………………0

Even if it were appropriate for the Air Force to consider the absences
from her civilian  job  as  controlling,  that  theory  is  very  well
rebutted in applicant’s attached statement (Exhibit  1).   She  missed
considerably more time from work than the 14 official sick  days  that
she was allowed.  She  should  not  be  penalized  for  having  severe
migraine attacks on weekends when work is not an issue, nor should she
be penalized because coworkers were kind enough to trade  shifts  with
her for medical reasons.

Counsel submits that this new advisory adds nothing to the  Air  Force
position that this application should be denied.   We  again  ask  the
BCMR to apply the required VA rating for the proven medical  condition
from which the applicant suffers.”

Counsel's complete response, with attachments, is attached at  Exhibit
I.

_________________________________________________________________

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  error  or  injustice  warranting  an  increase  in  the
disability rating.  After reviewing the evidence of record, it appears
that the applicant’s migraines were  occurring  more  frequently  then
determine by the Air Force  disability  system.   We  agree  with  the
statement made  by  the  Medical  Consultant  that  the  severity  and
frequency of migraines for the assignment of a  disability  rating  is
difficult.  However, based on the statements submitted by doctors  and
co-workers, we believe that the appropriate rating for  her  migraines
should be 30%.  In view of the foregoing, and in an effort  to  offset
any possibility of an injustice, we  believe  her  records  should  be
corrected to the extent indicated below.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice warranting a disability rating  of
50% or higher has requested.  While the additional documentation  does
support that her migraines occurred on an average of at least  once  a
month for an extended period to warrant a rating of  30%,  we  do  not
believe that the applicant’s condition at the time she was  discharged
warrant a higher rater.  In the absence of evidence to  the  contrary,
we do not recommend favorable action on  her  request  for  disability
retirement with a rating of 50% or higher.

5.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

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 21 December 1999, competent authority determined  that  the
rating for her unfitting condition pertaining  to  migraine  headaches
was 30 percent, rather than 10 percent.

    b.  On 10 January 2000, her  name  was  placed  on  the  Permanent
Disability Retired List, with a combined compensable  rating  of  40%,
rather than being discharged with entitlement to disability  severance
pay.
_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 01-
02018 in Executive Sessions on 20 March  2002  and  11 February  2003,
under the provisions of AFI 36-2603:

                  Mr. David C. Van Gasbeck, Panel Chair
                  Ms. Brenda L. Romine, Member
              Ms. Martha Maust, Member

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

   Exhibit A.  DD Form 149, dated 25 Jun 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, Medical Consultant, dated 25 Sep 01.
   Exhibit D.  Letter, AFPC/DPPD, dated 1 Nov 01.
   Exhibit E.  Letter, SAF/MRBR, dated 9 Nov 01.
   Exhibit F.  Counsel’s Response, undated, w/atchs.
   Exhibit G.  Letter, BCMR Medical Consultant, dated 2 May 02.
   Exhibit H.  Letter, AFBCMR, dated 3 May 02.
   Exhibit I.  Counsel’s Response, undated, w/atchs.




                                   DAVID C. VAN GASBECK
                                   Panel Chair







AFBCMR 01-02018




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 21 December 1999, competent authority
determined that the rating for her unfitting condition pertaining to
migraine headaches was 30 percent, rather than 10 percent.

                b.  On 10 January 2000, her name was placed on the
Permanent Disability Retired List, with a combined compensable rating
of 40%, rather than being discharged with entitlement to disability
severance pay.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency