RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03279
            INDEX CODE:  108.02
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability rating be increased to 80 percent.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His disability processing and assigned rating were not  accomplished  fairly
and the disability evaluation  system  (DES)  is  unfair  and  flawed.   His
neurologist  stated  that  his  condition  had  changed  from  a  relapsing-
remitting Multiple Sclerosis (MS) to a secondary-progressive MS  and  placed
him on the Temporary Disability Retired List (TDRL).  This clearly  shows  a
continuing deterioration of his condition.  His neurologist at the  Veterans
Administration (VA) hospital stated  that  his  condition  is  worsening  as
well.  The Air Force  stated  in  a  letter  to  his  Congressman  that  his
condition is  permanent  and  relatively  stable  according  to  guidelines.
However, his condition is permanent but definitely  not  stable.   It  seems
that the Medical Evaluation Board (MEB) did not take into consideration  his
neurologist's views when they made their decision.   They  chose  the  least
rating that was allowed by the Veterans Administration Schedule  for  Rating
Disabilities (VASRD).  He did not challenge the Air Force decision to  place
him on the TDRL at 30 percent because he thought if his  condition  worsened
the rating would increase.  However, when he was  placed  on  the  permanent
disability retirement list he was rated  at  only  30  percent.   After  his
challenge of  that  decision,  his  rating  was  increased  to  50  percent.
Because of his deteriorating condition his rating should have been  no  less
than 80 percent.

In making their determinations, the MEB follows regulations  and  guidelines
and does not seem to look at a person's injury or illness as a whole,  which
is unfair to the person being evaluated.  The MEB should look at  the  long-
term prospects and future conditions that the injury or  illness  will  lead
to.  The MEB system does not  take  into  consideration  that  there  are  a
variety of illnesses that continue to deteriorate and will  never  stabilize
or improve.

In support of his request, applicant provided documentation associated  with
his MEB processing and copies of responses to Congressional inquiries.   His
complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  19
Nov 86 and was progressively  promoted  to  the  grade  of  staff  sergeant,
having assumed that grade effective and with a date of rank of 1 Sep 92.

An MEB was convened on 16 May 00  and  referred  his  case  to  an  Informal
Physical Evaluation Board (IPEB) with a diagnosis of MS.  On 7 Jun  00,  the
IPEB found him unfit for further military service and  recommended  that  he
be placed on the Temporary Disability Retired List (TDRL)  with  a  combined
compensable rating of 30 percent.  The applicant agreed  with  the  findings
and recommended disposition of the IPEB.  He was placed on  the  TDRL  on  2
Aug 00.  A physical re-evaluation was conducted on 17 Jan  02.   On  21  Feb
02, the Air Force PEB recommended that the applicant be permanently  retired
from the Air Force with a combined disability rating  of  30  percent.   The
applicant did not agree with the recommendation and findings  and  requested
a disability rating of 100 percent be  assigned.   On  3  Apr  02,  after  a
Formal PEB  review,  the  Secretary  of  the  Air  Force  Personnel  Council
(SAFPC), directed that he be permanently retired with  a  disability  rating
of 50 percent.  On 23 Apr 02, he was removed from the TDRL  and  retired  in
the grade of staff sergeant with a compensable rating  of  50  percent.   He
served 17 years, 8 months, and 13 days on active duty

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant states that the Board may reasonably  choose  to
increase his disability  rating  to  60  percent.   The  Medical  Consultant
states that MS is an autoimmune-based disease that results in damage to  and
loss of the outer lining of  nerve  cells  in  the  brain  and  spinal  cord
resulting  in   disturbances   of   neurologic   function.    The   specific
manifestations of the disease  depend  on  the  locations  of  the  affected
nervous tissue.  Common manifestations include  weakness,  clumsiness,  loss
of sensation, loss of bladder control, constipation, and visual  impairment.
 In more severe cases, cognitive dysfunction and seizures can occur.   There
is tremendous variability in the severity and course over  time  between  MS
patients.  Some individuals may experience  a  single  episode  followed  by
lasting remission.  Others have recurrent disease with partial  or  complete
recovery,  while  others  experience  progressive   disease   resulting   in
permanent neurologic deficits.  Some have severe disease rendering them bed-
ridden.  A small number of MS patients have  a  rapidly  progressive  course
leading to disability  in  multiple  neurologic  functions  or  death  in  a
relatively short time after disease onset.

The applicant presented with  mild  symptoms  with  an  initially  confusing
clinical picture that was more suggestive of  a  peripheral  nerve  disorder
but he was subsequently diagnosed with MS.  The records  never  definitively
address whether the applicant's apparent peripheral nerve disorder  actually
existed as a separate diagnosis, or was in fact a part of the MS  diagnosis.
 Peripheral nerve involvement is not considered a characteristic of  MS  and
the applicant had reported some symptoms of hand numbness possibly due to  a
peripheral nerve disorder for several years before the leg and arm  weakness
attributed to  MS  began.   At  the  time  of  his  placement  on  TDRL  his
neurologic  examination  documented  bilateral  lower  extremity   weakness,
spastic dysarthria, and milder  upper  extremity  weakness  associated  with
diffuse hyper-reflexia.  More recent examinations document absence of  right
arm and leg findings, but more severe involvement of the left leg  and  left
arm.  He has never exhibited involvement of eye  function,  disturbances  of
cognitive function, or seizures.  Fecal  incontinence  has  been  a  problem
reported by the applicant.  Initially, he was thought to be demonstrating  a
relapsing/remitting pattern, however  he  appears  to  have  a  more  slowly
progressive  pattern  mostly  involving  the  left  leg  and  arm  that   is
classified by his neurologists  as  the  secondary  progressive  form.   The
course of his MS has spanned approximately 6 years and  has  shown  evidence
of progression.  His clinical classification suggests he  will  continue  to
show slow gradual progression over many years  with  or  without  occasional
relapses, minor remissions, and plateaus.

Two issues must be  addressed.  First,  the  current  Air  Force  disability
rating, and secondly, whether his illness is  "stable"  as  defined  by  DoD
disability policy.  Disability  rating  of  Multiple  Sclerosis  in  the  VA
Schedule of Rating Disabilities ranges from a minimum of  30  percent  to  a
maximum of 100%.  The  minimum  rating  of  30%  requires  the  presence  of
objective residual neurologic deficits.  There are only  general  guidelines
that stipulate that disability  "may  be  rated"  from  the  minimum  rating
indicated to a maximum of 100% "in proportion to the  impairment  of  motor,
sensory, or mental function".  Functional factors to be  considered  include
but are  not  limited  to  psychotic  manifestations,  speech  disturbances,
impairment of vision, tremors, complete or partial loss of  use  of  one  or
more extremities, and  visceral  manifestations.   The  guidance  recommends
taking into consideration ratings from  other  applicable  sections  of  the
VASRD,  for  example,  for  complete  or  partial  functional  loss  of   an
extremity, reviewing the ratings  under  peripheral  nerves.   There  is  no
specific stipulation that the  overall  rating  be  exclusively  of  a  mild
(30%), moderate (50%), moderately severe (80%)  or  pronounced,  progressive
grave types  (100%),  but  would  appear  to  allow  flexibility  for  finer
increments of  10%  depending  on  the  myriad  possible  manifestations  of
multiple sclerosis.

The applicant  appears  to  have  a  moderately  severe  neurologic  deficit
involving his left leg affecting his ability to  ambulate  more  than  short
distances and with an associated increased risk for falling.  His left  hand
and arm are mildly weak with loss of  sensation  and  coordination  limiting
function, however he is right handed.  Within the full  potential  range  of
disease severity, the applicant has relatively mild  to  moderate  deficits.
There is no documented seizure, visual impairment, or cognitive  impairment,
and he has full use of his dominant arm.  For most  occupational  activities
he is quite limited.  There is  no  doubt  that  the  applicant  has  speech
difficulty but apparently not to the extent that effective communication  is
impaired.   When  attempting  to  ascertain  the  applicant's   occupational
disability in a global fashion, different conclusions might be reached  when
considering  what  he  can  do  with  his  unaffected  functional  abilities
(vision, cognition, right arm and hand, and right leg), as opposed  to  what
he cannot do  with  his  affected  functions  (disabilities).   The  VA  has
decided he is not a good candidate for vocational rehabilitation.   In  this
case,  instead  of  applying  a  purely  global  assessment  of   functional
disability (which has resulted  in  conflicting  opinions),  VASRD  guidance
also allows assessment  by  comparison  to  analogous  VASRD  codes  to  his
residual deficits: in this case the left leg (sciatic nerve 8520)  and  left
arm  (all  radicular  groups  8513).   Using  this  approach,  the   Medical
Consultant arrives at a combined rating of 60% (left leg  moderately  severe
paralysis 40%, and moderate paralysis of left arm taking into  account  loss
of coordination in addition to mild weakness,  30%;  combining  the  ratings
based  on  the  Combined  Ratings  Table  yields  58%).    The   applicant's
dysarthria appears to be noticeable, but functionally  mild.   Rating  under
analogous code (paralysis of tenth cranial  nerve  8210)  requires  moderate
involvement to meet  the  minimum  rating.   The  applicant's  complaint  of
continence has apparently not reached a severity sufficient to  receive  any
more than passing  mention  by  his  VA  neurologist.   Occasional  moderate
leakage correlates with a 10 percent rating.   Rating  the  incontinence  at
10% would boost the combined rating only to 62%, thus would  not  result  in
an increase in a combined rating.

The second issue to consider is whether his condition is stable  as  defined
by DoD disability policies.  Air Force members are placed on the  TDRL  when
they would be qualified for permanent disability retirement except  for  the
fact that their disability is not of a  permanent  nature  and  not  stable.
Members with disabilities such as MS are placed on TDRL  status  when  their
condition is considered "unstable" as defined by DoD  instruction.   At  any
time prior to the 5 year limit on  TDRL  status,  the  PEB  may  permanently
retire the member when in their judgment keeping the member on  TDRL  status
for the full five years will not be likely to result in a  higher  or  lower
disability rating.  Once a permanent disposition  is  made,  the  disability
rating is based on current disability and not based on future events.   Even
in cases that remain on TDRL for the full five years  allowed  by  law,  the
final rating is based on  current  status  and  not  on  an  expectation  of
possible future events.  The applicant was placed on  TDRL  August  2000  at
30% and permanently retired February 2002 at 30% (now 50% per the  Secretary
of the Air Force Personnel Council).  Comparison of the Air Force  neurology
examinations of March 2000 and  January  2002  finds  little  difference  in
objectively reported neurologic deficits; therefore it  was  reasonable  for
the IPEB to conclude that his  MS  was  stable.   The  applicant's  clinical
pattern of disease is the "secondary progressive" form.  Patients with  this
pattern  experience  gradual  progression  over  years   interspersed   with
apparent plateaus.  The applicant's DVA neurologist implied at the  time  of
his letter that  the  applicant  was  clinically  stable  but  planned  more
intensive therapy when he showed new evidence of progression.   No  evidence
is  provided  otherwise  that  his  condition  is  unstable.   The   Medical
Consultant concurs that the applicant's condition has stabilized as  defined
by DoD policy.  The Medical Consultant, utilizing VASRD codes  for  specific
residuals of  left  arm  paralysis,  left  leg  paralysis  and  incontinence
arrived at a combined rating of 60% and  concurs  with  the  IPEB  that  his
condition is stable as defined in DoD policy after 2 years on TDRL.

The Medical Consultant evaluation is at Exhibit C.

AFPC/DPPD recommends denial.  DPPD states that the IPEB  reviewed  the  case
file and concurs with the BCMR Medical Consultant's assessment  as  pertains
to the stability/permanency of his medical  condition.   However,  the  IPEB
notes the long-standing practice/precedent that MS is exclusively  rated  on
a mild (30 percent), moderate (50 percent), moderately severe (80  percent),
and pronounced grave (100 percent) basis.  This practice was agreed upon  at
the inter-service  meetings  of  disability  adjudicators  and  is  accepted
throughout DoD.  To deviate from this  standard  without  similar  consensus
would be inconsistent and arbitrary.  This standard was adopted  because  MS
has systemic  manifestations  and  individually  rating  the  many  residual
symptoms would be tantamount to pyramiding,  which  is  prohibited.   It  is
important to note that disability evaluations  are  based  on  the  member's
condition at the time of evaluation.  All determinations should be based  on
his condition as of 1 Apr 02.  It appears as though the  Medical  Consultant
bases his proposed rating on information  subsequent  to  SAFPC's  decision.
While that practice is permitted under the policies/statutes  applicable  to
the  Department  of  Veterans  Affairs  (DVA)  it  would  be   contrary   to
statutes/policies  applicable  to  DoD.   The   IPEB   understands   SAFPC's
rationale cited in its  assessment  that  the  applicant's  condition  rated
between 30 and 50 percent.  As such, the final rating was decided  in  favor
of the applicant.

The applicant was treated fairly throughout the DES process  and  was  rated
properly under Federal disability guidelines.  DPD finds no grounds why  the
Secretarial decision should be overturned and why he  should  be  awarded  a
higher disability rating.  The DPPD evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to  the  applicant  on  9
May 03 for review and comment within 30 days.  As of this date, this  office
has received no response.

_________________________________________________________________

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  that  would  warrant  an  increase  of  the
applicant's disability rating.  Evidence has not been presented which  would
lead us to believe  that  the  applicant's  disability  processing  and  the
rating he received at final disposition were contrary to the  governing  Air
Force Instructions which implements the law.  We are not persuaded that  the
appropriate standards of policy were not applied,  that  the  applicant  was
denied rights to which he was entitled, or that he was  treated  differently
than other similarly situated individuals.  We took notice of  his  complete
submission in judging the merits of  the  case,  to  include  the  differing
opinions of the Air Force evaluators; however, we  agree  with  the  opinion
and recommendation of the Air Force Physical Disability Division  and  adopt
their rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.  We are  compelled  to  note  that
the Air Force is required to rate an individual's disability at the time  of
evaluation.  The DVA  operates  under  a  totally  separate  system  with  a
different statutory basis.  In this respect, we believe that the  Air  Force
appropriately considered and rated the applicant's condition at the time  of
disposition.  The DVA rates for any and all service connected conditions  to
the degree in  which  they  interfere  with  future  employability,  without
consideration of fitness.  Therefore, in the absence of persuasive  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 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 AFBCMR Docket Number  BC-2002-
03279 in Executive Session on 17 Jun 03, under the  provisions  of  AFI  36-
2603:

      Mr. Robert C. Boyd, Panel Chair
      Mr. James W. Russell III, Member
      Ms. Martha Maust, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 12 Mar 03.
    Exhibit D.  Letter, AFPC/DPPD, dated 30 Apr 03.
    Exhibit E.  Letter, SAF/MRBR, dated 9 May 03.




                                   ROBERT C. BOYD
                                   Panel Chair