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AF | BCMR | CY2004 | BC-1998-02476a
Original file (BC-1998-02476a.doc) Auto-classification: Approved

                                 ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-1998-02476

      XXXXXXX    COUNSEL:  JAMES E. KEOUGH

      XXXXXXX    HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

In an application, dated 30 August 1998, he requested  permanent  retirement
by reason of physical disability, effective 6 July  1998,  with  retroactive
pay and allowances.  However, in his response to the advisory  opinion,  the
applicant’s counsel requested  a  disability  rating  greater  than  40%  be
awarded.

_________________________________________________________________

STATEMENT OF FACTS:

On 12 October 1999, the Board considered  applicant’s  request  that  he  be
retired by reason  of  physical  disability,  effective  6 July  1998,  with
retroactive pay and allowances.  Prior to rendering a final decision of  his
request, the Board recommended he undergo evaluation and review through  the
Air Force Disability  Evaluation  System  (DES)  to  determine  his  current
medical condition and that the results be forwarded to  the  Board  so  that
all necessary and appropriate actions may be completed.  For  an  accounting
of  the  facts  and  circumstances  surrounding  the  application,  and  the
rationale  of  the  earlier  decision  by  the  Board,  see  the  Record  of
Proceedings at Exhibit L.

The applicant was evaluated through the DES, with the Secretary of  the  Air
Force Personnel Council ultimately concurring with  the  recommendations  of
the Formal and Informal Physical Evaluation Boards  that  he  be  awarded  a
disability rating of  20%,  based  on  his  left  heel  injury,  and  he  be
discharged with severance pay (Exhibit M).

On 3 April  2001,  the  applicant’s  case  was  administratively  closed  in
accordance with his  counsel’s  request.   Counsel  requested  the  case  be
reopened  on  30  September  2002,  and  provided  additional  documentation
(Exhibit Q).





On 30 April 2003, counsel provided additional  documentation  regarding  the
applicant’s Department of Veterans Affairs (DVA) records (Exhibit R).

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR  Medical  Consultant  recommends  permanent  disability  retirement
based on a combined rating of 40% (20% - right foot  fasciitis  status  post
right plantar fascial release, and 20% - left  Achilles  tendon  injury  and
residuals of surgery).  The BCMR Medical Consultant states,  in  part,  that
elective surgery should not have been performed on the  applicant  so  close
to his separation date and  resulted  in  sub-optimal  post-operative  care.
This may have contributed to his disabling pain,  which  was  an  unexpected
outcome.  In view of this,  rating  the  right  foot  condition  at  20%  is
warranted based on improper procedures for  approval  of  elective  surgery.
When applying the bilateral factor for the left Achilles tendon injury,  for
which he was already rated at 20%,  his  records  should  reflect  permanent
retirement based on a combined rating of 40%.

The BCMR Medical Consultant’s evaluation is at Exhibit S.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states that although the advisory  opinion  proposed
no changes to the applicant’s records regarding  his  depression  and  other
psychiatric conditions, the DVA rated these conditions at 30%.  As such,  he
should either  receive  a  30%  rating  for  these  conditions,  or  in  the
alternative, receive a  new  physical  examination  through  the  Disability
Evaluation  System  (DES).   While  the  advisory  opinion  contends   these
conditions are not ratable or  compensable  under  the  military  disability
system, no regulation is cited to support these conclusions.  Counsel  notes
that six months after his discharge, the DVA  identified  his  condition  as
major depression, and the following month, diagnosed his condition as  major
depressive disorder.  Based on the results of an MRI completed prior to  his
discharge, the applicant should have received a 10% disability rating  based
on his chronic neck pain.  Furthermore,  his  Reflex  Sympathetic  Dystrophy
(RSD) was not evaluated by the PEB prior to his discharge, despite the  fact
that military physicians determined he is affected  with  chronic  pain  and
residuals of RSD.

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

_________________________________________________________________



THE BOARD CONCLUDES THAT:

1.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence  of  error  or  injustice  warranting  the  applicant’s  permanent
retirement by reason of physical disability, with a  40%  rating.   In  this
respect,  we  note  the  applicant  was  processed  through  the  Air  Force
Disability Evaluation System (DES).  However, after his  evaluation  through
the DES and prior to his discharge, he underwent a fascia  cut  and  release
operation.  In view of this, the  Board  directed  the  applicant  again  be
evaluated through the DES so that  any  new  medical  conditions/information
could be considered prior to the Board rendering a  final  decision  on  his
request for permanent  disability  retirement.   This  evaluation  has  been
completed, with the Secretary of the Air Force Personnel Council  concurring
with the recommendations of the  Informal  and  Formal  Physical  Evaluation
Boards that he be awarded a disability rating of  20%,  based  on  his  left
heel  injury,  and  discharged  with  severance  pay.   The   BCMR   Medical
Consultant indicates that elective surgery should not  have  been  performed
on the applicant so close to  his  separation  date  and  resulted  in  sub-
optimal post-operative care, which may have  contributed  to  his  disabling
pain.  In view of this,  we  agree  with  the  recommendation  of  the  BCMR
Medical Consultant that the  applicant  be  permanently  disability  retired
based on a combined rating of 40% (20% - right foot  fasciitis  status  post
right plantar fascial release and 20% -  left  Achilles  tendon  injury  and
residuals of surgery).  Therefore, we recommend the applicant’s  records  be
corrected to the extent indicated below.

2.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice to warrant awarding the  applicant  a  total
disability rating greater than 40%.  Counsel contends the applicant’s  other
conditions (i.e., major depressive disorder, chronic neck pain,  and  Reflex
Sympathetic Dystrophy (RSD)) should have been rated by the  Air  Force.   It
appears counsel believes the Air Force erred in not rating these  conditions
since the applicant has received disability ratings from the DVA  for  these
conditions.  However, we note that although the Air  Force  is  required  to
rate  disabilities  in  accordance  with  the  DVA   Schedule   for   Rating
Disabilities, the DVA operates  under  a  totally  separate  system  with  a
different statutory basis.  In this respect, we note the DVA rates  for  any
and all service-connected conditions, to  the  degree  they  interfere  with
future employability, without consideration of fitness.   Whereas,  the  Air
Force, upon a finding of unfitness, rates a  member's  disability  based  on
the degree of severity at the time of separation.  In the applicant's  case,
the Air Force considered these conditions  and  other  than  his  mechanical
neck pain, which was found to be unfitting but not compensable  or  ratable,
determined they did not render him unfit for  military  service.   Based  on
the foregoing, and in the absence of evidence to the contrary,  we  find  no
basis upon which  to  recommend  awarding  him  a  total  disability  rating
greater than 40%.

3.  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 issues 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 5 July 1998, he was found unfit to perform the duties of  his
office, rank, grade or rating by  reason  of  physical  disability  incurred
while entitled to receive basic pay; the diagnoses in  his  case  were  left
Achilles  tendinosis  secondary  to  spiked  gaff  injury,  status  post  12
December 1996 excision of tendinosis, VA Diagnostic Codes  5311-5399,  rated
at 20%; right  foot  fasciitis,  status  post  25 June  1998  right  plantar
fascial release, VA Diagnostic Codes 5310-5399,  rated  at  20%;  the  total
combined compensable rating was 40%; the  disabilities  are  permanent;  the
disabilities were not due to intentional misconduct or willful neglect,  the
disabilities were not incurred during a period of unauthorized absence;  the
disabilities were not incurred during a period of  national  emergency;  and
the disabilities were not the direct result of armed conflict or  caused  by
an instrumentality of war.

      b.    On 6 July 1998,  he  was  not  discharged  with  entitlement  to
disability severance pay, but on that date,  he  was  released  from  active
duty and, on 7 July 1998, he was permanently retired by reason  of  physical
disability under the provisions of Title 10, USC, Section 1201, and AFI  36-
3212, with a combined compensable disability rating of 40%.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-1998-02476
in Executive Session on 4 February 2004, under the  provisions  of  AFI  36-
2603:

                       Mr. Michael K. Gallogly, Panel Chair
                       Ms. Mary Johnson, Member
                       Ms. Rita S. Looney, Member

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

    Exhibit L.  Record of Proceedings, dtd 17 Feb 00, w/atchs.
    Exhibit M.  Letter, AFPC/DPPD, dated 31 Jan 01, w/atchs.
    Exhibit N.  Letter, AFBCMR, dated 7 Mar 01.
    Exhibit O.  Letter, Counsel, dated 29 Mar 01.
    Exhibit P.  Letter, AFBCMR, dated 3 Apr 01.
    Exhibit Q.  Letter, Counsel, dated 30 Sep 02, w/atchs.
    Exhibit R.  Letter, Counsel, dated 30 Apr 03.
    Exhibit S.  Letter, BCMR Medical Consultant, dated 20 Oct 03.
    Exhibit T.  Letter, AFBCMR, dated 21 Oct 03.
    Exhibit U.  Letter, Counsel, dated 5 Nov 03.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair

AFBCMR BC-1998-02476




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 XXXXXXX, XXXXXXX, be corrected to show that:

                 a.    On 5 July 1998, he was found unfit to perform the
duties of his office, rank, grade or rating by reason of physical
disability incurred while entitled to receive basic pay; the diagnoses in
his case were left Achilles tendinosis secondary to spiked gaff injury,
status post 12 December 1996 excision of tendinosis, VA Diagnostic Codes
5311-5399, rated at 20%; right foot fasciitis, status post 25 June 1998
right plantar fascial release, VA Diagnostic Codes 5310-5399, rated at 20%;
the total combined compensable rating was 40%; the disabilities are
permanent; the disabilities were not due to intentional misconduct or
willful neglect, the disabilities were not incurred during a period of
unauthorized absence; the disabilities were not incurred during a period of
national emergency; and the disabilities were not the direct result of
armed conflict or caused by an instrumentality of war.

                 b.    On 6 July 1998, he was not discharged with
entitlement to disability severance pay, but on that date, he was released
from active duty and, on 7 July 1998, he was permanently retired by reason
of physical disability under the provisions of Title 10, USC, Section 1201,
and AFI 36-3212, with a combined compensable disability rating of 40%.






JOE G. LINEBERGER

Director

Air Force Review Boards Agency

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