RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-03494
INDEX CODE: 108.00
COUNSEL: ANTHONY W. WALLUK
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
His disability rating be changed from 60 percent to the maximum
75 percent retroactive to the date of his retirement.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was improperly rated and should have received the maximum rating of
75 percent. This is based on the evaluations conducted by the
Department of Veterans Affairs (DVA) prior to his retirement, which he
did not receive until after the decision of the Secretary of the Air
Force Personnel Council (SAF/MRBP).
In support of his appeal, the applicant provided a counsel’s brief,
SAF/MRBP memorandum, DVA rating decision, and medical documentation
from the DVA.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant was voluntarily ordered to extended active duty on 30 May 90
in the grade of second lieutenant.
On 9 Sep 02, a Medical Evaluation Board (MEB) convened and established
a diagnosis of mood disorder with major depressive like feature due to
chronic pain condition. The MEB recommended the applicant’s case be
referred to an Informal Physical Evaluation Board (IPEB).
On 24 Sep 02, an IPEB convened and established a diagnosis of severe
left brachial plexopathy associated with mood disorder with depressive
features. The IPEB recommended the applicant be permanently retired
with a disability rating of 30 percent.
On 27 Sep 02, the applicant disagreed with the findings and
recommended disposition of the IPEB and demanded a formal hearing of
the case.
On 22 Oct 02, a Formal Physical Evaluation Board (FPEB) convened and
established a diagnosis of severe left brachial plexopathy associated
with mood disorder with depressive features. The FPEB recommended the
applicant be permanently retired with a disability rating of 40
percent. The applicant did not agree with the findings and
recommended disposition of the FPEB.
On 6 Jan 03, SAF/MRBP under its delegated authority directed the
applicant be permanently retired with a disability rating of
60 percent.
On 7 Mar 03, the applicant was relieved from active duty and,
effective 8 Mar 03, permanently retired by reason of physical
disability in the grade of captain, with a compensable disability
rating of 60 percent. He was credited with 12 years, 9 months, and 8
days of active service.
A Department of Veterans Affairs (DVA) Rating Decision, dated 2 Jun
03, indicates the applicant was granted service-connected disability
compensation for brachial plexopathy and myeloneuropathy, severe
(60 percent), major depressive disorder, severe (50 percent),
degenerative joint disease, cervical spine, with recurrent torticollis
(20 percent), degenerative joint disease, lumbosacral spine with
sciatica (10 percent), and tinnitus (10 percent), for a total combined
disability compensation rating of 90 percent.
The relevant facts pertaining to the applicant’s medical conditions
are discussed in the advisory opinion provided by the AFBCMR Medical
Consultant at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
The Medical Consultant recommended denial noting the applicant was
permanently retired by reason of physical disability for left brachial
plexopathy associated with depression with a 60 percent rating
following his appeal to SAF/MRBP which essentially granted his request
at the time of the appeal. According to the Medical Consultant, the
contribution of the co-morbid depression to the applicant’s impairment
and level of unfitness for duty was reflected in his rating by
associating it with the brachial plexopathy. In his view, the action
and disposition in this case were proper and equitable reflecting
compliance with Air Force directives which implement the law.
A complete copy of the Medical Consultant’s evaluation is at Exhibit
C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on 12
May 04 for review and response (Exhibit D). By letter, dated 21 Jul
04, the applicant’s counsel requested his case be temporarily
withdrawn (Exhibit E).
Counsel subsequently provided a response to the Medical Consultant’s
advisory opinion, indicating he believes the Board is confronted with
a conflict between an Air Force medical evaluation and a board
conclusion which considered the applicant’s depression to be mild and
merely a “mood disorder” and a DVA evaluation that found it to be a
severe, major depression, separate from the other medical condition.
It is counsel’s view that in such cases, when there is clearly
conflicting evidence from two Federal agencies, the decision should be
in favor of the service member who developed both of these conditions
while serving his country. It is clear the applicant had his career
shortened considerably and his life functions have been permanently
altered.
Counsel’s complete response, with attachment, is at Exhibit G.
_________________________________________________________________
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. The applicant's complete
submission was thoroughly reviewed and his contentions were duly
noted. However, we do not find the applicant’s assertions and the
documentation presented in support of his appeal sufficiently
persuasive to override the rationale provided by the Medical
Consultant. The evidence of record indicates the applicant was
permanently retired by reason of physical disability with a 60 percent
compensable rating after successfully appealing to have his rating
increased from 30 and 40 percent, respectively, to the 60 percent
rating. He had requested his rating be increased between 60 and 70
percent. He now requests his rating be increased to a maximum of 75
percent. However, after a thorough review of facts and circumstances
of this case, no evidence has been presented which shows to our
satisfaction the applicant was improperly diagnosed or inappropriately
rated. In view of the foregoing, and in the absence of sufficient
evidence to the contrary, we adopt the Medical Consultant’s rationale
as the basis for our decision the applicant has failed to sustain his
burden of establishing that he has suffered either an error or an
injustice. Accordingly, we find no compelling basis to recommend
granting the relief sought in this application.
4. 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 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-
2003-03494 in Executive Session on 6 Oct 04, under the provisions of
AFI 36-2603:
Mr. Charles E. Bennett, Panel Chair
Ms. Barbara R. Murray, Member
Mr. Albert C. Ellett, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 3 Oct 03, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, Medical Consultant, dated 11 May 04.
Exhibit D. Letter, SAF/MRBR, dated 12 May 04.
Exhibit E. Letter, counsel, dated 21 Jul 04.
Exhibit F. Letter, AFBCMR, dated 29 Jul 04.
Exhibit G. Letter, counsel, dated 23 Sep 04, w/atch.
CHARLES E. BENNETT
Panel Chair
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