RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03630
            INDEX CODE:  108.02

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability rating of 50% be adjusted to 100%.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Formal Physical Evaluation Board (FPEB) did  not  accurately  rate
his  disability  in  accordance  with  Veterans  Administration   (VA)
diagnostic codes.  He contends he should have been rated at 100% based
on the type and severity of his disability.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, and copies of his VA medical examination,  the  results  of
the Physical  Evaluation  board  (PEB),  and  results  of  a  civilian
examination.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was permanently retired, medically, with disability from
the ---- Air National Guard (-- ANG) while on  extended  active  duty.
On 16 November 2000, he suffered a severe stroke  that  paralyzed  the
left side of his body, significantly impaired his  ability  to  speak,
and  manifested  some  inattention  or  neglect  of  his   left   side
environment.  A Medical Evaluation Board (MEB)  evaluated  him  on  14
February 2002 the results of which led to a  permanent  retirement  at
40% disability (30% for left arm and 20% for left leg).   He  appealed
the MEB decision to the Formal Physical Evaluation Board (FPEB)  where
he appeared on 11 April 2002.  His appeal was denied, however the FPEB
did find that the applicant’s left arm percentage appeared to  be  low
and recommended the percentage be raised to 40%, which resulted  in  a
total disability percentage of 50%.  He submitted a  rebuttal  to  the
Secretary of the Air Force Personnel Council (SAFPC) in June 2002  and
it  was  denied.   He  was  consequently  medically  retired  at   50%
disability effective 26  August  2002.   A  subsequent  Department  of
Veterans Affairs  (DVA)  rating  decision,  dated  18  December  2002,
granted the applicant 100% disability based on the loss of use of  one
hand and one foot, effective 27 August 2002.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed this application and  recommended
the applicant’s disability rating be increased to 80%.  He noted that,
in  his  opinion,  the  preponderance   of   the   evidence   supports
consideration for a total disability  rating  of  100%.   The  Medical
Consultant observed the applicant  suffered  a  severe  stroke  on  16
November 2000, was hospitalized for  a  week,  was  transferred  to  a
rehabilitation hospital for five weeks of  therapy,  and  after  being
discharged from the hospital  received  physical  and  speech  therapy
throughout 2001.  The Medical Consultant notes the applicant  is  left
with residual deficits of severe loss of use of his left  hand,  right
foot weakness requiring the use of a brace, and mild left leg weakness
and associated spasticity  limiting  his  ability  to  ambulate.   The
muscle spasticity of his left leg  is  treated  with  delivery  of  an
antispasmodic drug directly into the spinal canal  with  an  implanted
pump.  He is able to walk limited distances with the use of a cane and
foot brace but uses a wheel chair for distances over  200  feet.   The
Medical Consultant opines  the  applicant’s  left  hand  and  arm,  as
documented by numerous examinations, best approximates the  60%  level
using the Veteran’s Administration Schedule  for  Rating  Disabilities
(VASRD) code for radial nerve paralysis  (8514).   He  further  opines
that the residual neurological deficits of the left leg, manifested by
diffuse weakness, more severe weakness of the foot and  motor  control
abnormalities (spasticities) requiring intrathecal  Baclofen  is  best
described as moderately severe under VASRD  code  8520,  paralysis  of
sciatic nerve, at 40%.   These  two  ratings  combined  yield  an  80%
disability rating (76% rounded up).  The Medical Consultant notes that
neither the DVA nor the AF addressed  whether  or  not  the  cognitive
effects of the stroke warranted disability  rating  under  VASRD  code
9305, vascular dementia.  He notes that  an  Air  Force  neurologist’s
narrative  summary  described  cognitive  deficits  severe  enough  to
interfere with the applicant performing his usual duties.

The BCMR Medical Consultant’s complete evaluation is at Exhibit C.

AFPC/DPPD  recommends  denial.   They   address   the   BCMR   Medical
Consultant’s  advisory  by  stating  that  the  PEB,  under   military
disability laws, may only rate unfitting  conditions  based  upon  the
individual’s medical status at the time of his or her MEB  evaluation;
in essence a snapshot of their condition at that time.   Nevertheless,
DPPD forwarded the file to the informal  PEB  for  additional  review.
The PEB reviewed the evidence and determined the original  assessments
provided by the FPEB and SAFPC were indeed  accurate  and  provided  a
fair evaluation of the individual’s medical  condition  at  the  time.
The IPEB pointed out that the applicant was able to perform his duties
as a Booking Clerk in the ANG and that he continued to  progress  from
both a recovery  and  rehabilitation  standpoint  until  his  eventual
medical retirement.  Addressing the apparent disparity between DVA and
AF disability ratings, DPPD notes that DVA may  increase  or  decrease
veteran’s  service  connected  disability   ratings   throughout   the
veteran’s life span while the PEB is limited to the snapshot  in  time
previously mentioned.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s wife provided the rebuttal in behalf of her husband,  with
his permission.  After review of the advisory opinions, he  feels  the
BCMR  Medical  Consultant  supports  the  request  to   increase   his
disability rating from 50% to  100%.   He  feels  the  IPEB  and  FPEB
“horribly underrated” his disability.  He disagrees with comments from
the narrative summary of the DPPD evaluation indicating the  applicant
was able to continue performing his job as a Booking Clerk in the  ANG
and  that  he  continued  to  progress  both  from  a   recovery   and
rehabilitation standpoint.  He was never able to  return  to  his  job
and,  while  he  did  continue  to  progress  in  his   recovery   and
rehabilitation,  the  IPEB  and  FPEB  continue   to   underrate   his
disability.  Issue is also taken with page two of the advisory wherein
it states the applicant was treated fairly throughout the military DES
process.  He contends the Board (FPEB) denied his counsel’s request to
attend the hearing but informed him the  entire  proceeding  would  be
videotaped and he would be able to have access to  that  videotape  in
case he did not agree with the FPEB findings.  He  is  concerned  that
during the hearing there were discrepancies in  many  of  the  medical
reports that  were  never  addressed  during  the  hearing.   When  he
requested the videotape, after the proceedings, he was told  the  FPEB
could not find the tape.  After continuing requests for the videotape,
he was finally notified  by  letter  the  videocassette  recorder  had
malfunctioned on the day of his hearing.  His lawyer told him his  was
the only case  the  videocassette  recorder  failed  to  capture.   He
continues to rely on a leg brace, a cane,  and  a  wheelchair  to  get
around.  He continues to  have  residual  left  neglect  syndrome  and
requires assistance with  any  higher  level  functioning  tasks.   He
cannot maintain household  finances  due  to  his  visual/spatial  and
cognitive deficits.  Further, he has absolutely no use of his left arm
or hand.  He implores the Board to consider the opinion  of  the  BCMR
Medical Consultant  and  find  that  the  evidence  submitted  clearly
warrants a 100% disability rating.

_________________________________________________________________

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.   After  reviewing  the  applicant’s
complete  submission,  evidence  of  record,  and  the  BCMR   Medical
Consultant’s  advisory,  the  Board  is  of  the  opinion  relief   is
warranted.  The Board took note that as a  result  of  a  stroke,  the
applicant suffered severe loss of use of his  left  hand,  right  foot
weakness requiring the use of a brace,  and  mild  left  leg  weakness
limiting his ability to walk.  The ratings for each, afforded  by  the
VASRD codes 8514 (radial nerve paralysis) and 8520 (paralysis  of  the
sciatic nerve) are 60% and  40%  respectively,  which  yield  a  total
disability rating of 80% (76% rounded up).  Further, we agree with the
BCMR Medical Consultant that the applicant’s record should  have  been
evaluated by either DVA or AF with  respect  to  whether  or  not  the
cognitive effects of his stroke (VASRD code  9305  vascular  dementia)
warranted a disability rating  which  could  have  raise  his  combine
rating to  80%,  and  that  a  total  disability  rating  at  100%  is
supportable by the  preponderance  of  the  evidence.   Therefore,  we
recommend the applicant's records be corrected as indicated below.

______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that at  the  time  of  his
permanent retirement for physical disability on 26 August 2002, he was
assigned a combined  compensable  rating  of  100%  for  radial  nerve
paralysis VASRD code 8514, paralysis of the siactic nerve  VASRD  code
8520 and vascular dementia VASRD code 9305.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 22 October 2003, under the provisions of AFI  36-
2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Carolyn B. Willis, Member
      Mr. James W. Russell, III, Member

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

    Exhibit A.  DD Form 149, dated 7 Nov 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 30 Jun 03.
    Exhibit D.  Letter, AFOC/DPPD, dated 12 Aug 03.
    Exhibit E.  Letter, SAF/MRBR, dated 22 Aug 03.
    Exhibit F.  Letter, Rebuttal, dated 14 Sep 03, w/atchs.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC




[pic]
Office Of The Assistant Secretary





AFBCMR BC-2002-03630




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 APPLICANT, be corrected to show that at the time of
his permanent retirement for physical disability on 26 August 2002, he
was assigned a combined compensable rating of 100% for radial nerve
paralysis VASRD code 8514, paralysis of the siactic nerve VASRD code
8520 and vascular dementia VASRD code 9305.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency