RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-04019
            INDEX NUMBER:  108.02
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability retirement rating of 40% be changed to 100%.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a letter to SAF/LLI written by his Congressman, it is  pointed  out
that in addition to the back injuries  the  applicant  was  discharged
for, he also suffers from Bilateral Leg Edema, which  has  caused  his
legs  to  swell.   The  applicant  attempted  to  receive   disability
compensation for  this  condition  from  the  Department  of  Veterans
Affairs (DVA), but was referred back to  the  Air  Force  to  get  his
medical records revised to show service connection for the condition.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant served on active duty from 15 Jul 57 to 14 Jul 61  as  a
medical services specialist.  After leaving active  duty,  he  entered
the Air Force Reserve  and  by  1979  had  20  satisfactory  years  of
service, which entitled him to retired pay at age 60.   The  applicant
continued to serve in the Reserve and on  30  Jan  91,  again  entered
active duty.  The applicant suffered an injury to his back during this
period and was released from active duty in May 91.  It  appears  that
due to ongoing problems with his back, the applicant was  recalled  to
active duty on 18 May  92.   On      15  Oct  92,  the  applicant  was
evaluated by a Medical Evaluation Board  (MEB),  which  diagnosed  him
with neurogenic claudication and spinal stenosis.  The MEB recommended
he be referred to an Informal Physical  Evaluation  Board  (IPEB)  for
further evaluation.  On 13 Nov 92, the IPEB convened and diagnosed the
applicant with low back pain with neurogenic  claudication  associated
with spinal stenosis, primarily at L4-5 level  with  spondylolisthesis
at L4-5.  The IPEB assigned a disability rating of 40%.  The IPEB also
diagnosed the applicant with Edema, both  legs,  non-cardiogenic,  and
determined that the condition was  not  ratable.   The  applicant  was
recommended for permanent retirement with a disability rating of  40%.
The applicant was initially approved for retirement effective  26  Jan
93.   However,  due  to  the  applicant  being  recalled  for  further
disability  processing,  the  order  approving  his   retirement   was
rescinded.   After   considering   additional   information   in   the
applicant’s case, consisting of an updated narrative from one  of  his
treating  physicians,  the  IPEB  determined   that   the   additional
information did not provide any change in applicant’s condition.   The
applicant was then approved for retirement effective 5  Mar  93.   The
applicant retired on     5 Mar 93 due to  medical  disability  with  a
disability rating of 40%.

_________________________________________________________________

AIR FORCE EVALUATION:

Pursuant to the Board’s request, the BCMR Medical Consultant evaluated
the applicant’s case and recommends denial.  The applicant’s leg edema
was considered at the time he was disability retired with a 40% rating
for his back condition, but was not determined  to  be  unfitting  for
military duty.  Review of  the  applicant’s  service  medical  records
indicates that the Physical Evaluation Board (PEB) properly rated  his
back condition.  The fact that the DVA rated the condition at the same
level and later reduced the rating  four  years  later  supports  this
conclusion.  The service medical records also support  the  conclusion
that at the time of his disability evaluation, his leg edema  was  not
severe enough to be considered  unfitting  for  continued  duty  as  a
medical services technician.  Under the rules of  the  DoD  Disability
Evaluation System (DES) only those conditions that are  unfitting  for
continued service are ratable and  compensable.   The  possibility  of
future   impairment   from   non-unfitting   conditions   is   not   a
consideration.  Further, the onset of the  applicant’s  chronic  edema
occurred so soon after activation, it  is  highly  probable  that  the
underlying condition existed prior to entry onto active duty.

DVA  and  other  documentation  indicate  the  applicant’s  leg  edema
worsened in the years following discharge from the Air Force; however,
the DVA has apparently  determined  that  the  edema  is  not  service
connected.  DVA officials have full access to the applicant’s  service
medical records and, therefore, there is no medical evidence that they
have not already reviewed in making their decision.  The DoD  and  DVA
utilize the service medical record for different  purposes.   The  DoD
renders decisions under Title 10 and the DVA under Title  38  and  the
two processes are unrelated and have no impact on the other.  The  DVA
and not the DoD makes the determination of service  connectedness  for
purposes of DVA compensation.  The AFBCMR may  only  correct  military
records and has no jurisdiction over the documentation  and  decisions
made by the DVA.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 8
Aug 04 for review and comment within 30 days.  To date, a response has
not been received.

_________________________________________________________________
THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation  of  the  AFBCMR
Medical Consultant and adopt  his  rationale  as  the  basis  for  our
conclusion that the applicant has not been the victim of an  error  or
injustice.  Therefore, in the absence of 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 Docket  Number  BC-2003-
04019 in Executive Session on 5 October 2004, under the provisions  of
AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Mr. James W. Russell, III, Member
      Ms. Peggy E. Gordon, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 4 Aug 04.
    Exhibit D.  Letter, AFBCMR, dated 8 Aug 04.




                                   RICHARD A. PETERSON
                                   Panel Chair