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AF | BCMR | CY2005 | BC-2004-00019
Original file (BC-2004-00019.DOC) Auto-classification: Denied


                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00019
            INDEX CODE:  108.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect  he  was  permanently  retired  by
reason of physical disability with a compensable rating of 50 percent,
rather than 30 percent.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Department of Veterans  Affairs  (DVA)  increased  his  disability
rating for his left hip replacement from  30  percent  to  50 percent.
They made  this  determination  based  upon  his  official  Air  Force
records.  The DVA found that his condition had increased in  severity.
He  believes  the  Air  Force  incorrectly  and  unjustly  denied  him
equitable disability compensation.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, documentation pertaining to his disability retirement,  and
his DVA rating.

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

_________________________________________________________________

STATEMENT OF FACTS:

Available documentation indicates  the  applicant  was  relieved  from
active duty and his  name  was  placed  on  the  Temporary  Disability
Retired List (TDRL), effective 22 Jul 97, in the grade  of  lieutenant
colonel, with a compensable disability rating of 50 percent, after  he
was diagnosed with severe avascular necrosis, left, hip,  status  post
12 Dec 96 total hip arthroplasty.  He was credited with 24  years,  10
months, and 2 days of active service.

On 5 Aug 99, the Secretary of the Air Force Personnel Council  (SAFPC)
under its delegated authority directed that the  applicant’s  name  be
removed from the TDRL under the provisions of 10 USC 1210, and  he  be
permanently retired with a compensable disability rating of 30 percent
under the provisions of 10 USC 1201.

On 14 Sep 99, the applicant’s name was removed from the  TDRL  and  he
was permanently retired in the grade of  lieutenant  colonel,  with  a
compensable disability rating of 30 percent.  He is receiving  retired
pay based on length of service (over 60 percent) since that results in
a higher pay than if based on the disability rating (30 percent).

A Department of Veterans Affairs (DVA) Rating Decision,  dated  15 Sep
99,   indicates   the   applicant’s    service-connected    disability
compensation for avascular necrosis of the left hip femoral head  with
residual scarring was increased from 30 percent to 50 percent.

_________________________________________________________________

AIR FORCE EVALUATION:

The Medical Consultant recommended denial  noting  the  applicant  was
diagnosed with avascular  necrosis  of  bone  (interruption  of  blood
supply to the bone resulting in the death  of  the  bone  followed  by
gradual  breakdown  of  the  bony  portion  of  the  joint  structure)
involving the left femoral head (thigh bone at the hip joint) in  1985
after a one to two year history of increasing, intermittent  left  hip
pain.  The applicant underwent total hip replacement in  Dec  96  with
good result.  The applicant demonstrated good range of motion  and  no
neuromuscular or functional deficits were documented  other  than  the
usual  limitations  placed  on  hip  replacement  patients  to   avoid
activities that place undue stress on  the  prosthesis.   The  minimum
Veterans  Administration  Schedule  for  Rating  Disabilities  (VASRD)
rating for hip replacement is 30 percent.   To  receive  a  rating  of
50 percent, there should be "moderately severe residuals of  weakness,
pain or limitation of motion.”  The Medical Consultant indicated  that
available documentation did not show the presence of moderately severe
residuals of weakness, pain or limitation motion,  rather,  only  mild
residuals were documented.  If the applicant's hip condition  were  to
be rated on loss of range of motion, a rating of  zero  percent  would
result.  Because there was a prosthesis present  with  the  associated
limitations inherent in all hip replacements, a minimum rating  of  30
percent was stipulated in the VASRD.

The Medical Consultant stated the military service disability  system,
operating under Title 10, and the  DVA  disability  system.  operating
under  Title  38,  are  complementary  systems  not  intended  to   be
duplicative.  Operating under different laws with a different purpose,
adjudication decisions made by the Department  of  the  Defense  (DoD)
under Title 10 and the DVA under Title 38 are not determinative of the
issues involved in the other.

In the Medical Consultant’s view, the action and disposition  in  this
case were proper and equitable  reflecting  compliance  with  the  Air
Force directives that implement in the law, and that no change in  the
records is warranted.

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  28
May 04 for review and response (Exhibit D).  By letter,  dated  2  Jun
04, the applicant requested his case be temporarily withdrawn (Exhibit
E).

Applicant subsequently provided a response to the Medical Consultant’s
advisory opinion indicating he believes that  clear  evidence  in  the
form of medical evaluations  and  the  DVA  disability  rating  of  50
percent because of his left hip replacement compels the Board to  find
in his favor.  In his view, a disability rating of 50 percent  is  the
proper and fair rating for his disability.

Applicant’s complete response, with attachments, 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 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.   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 30 percent
compensable  rating.   He  now  requests  his  disability  rating   be
increased to 50 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-
2004-00019 in Executive Session on 3 Feb 05, under the  provisions  of
AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Renee M. Collier, Member
      Ms. Cheryl V. Jacobson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 Dec 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 25 May 04.
    Exhibit D.  Letter, SAF/MRBR, dated 28 May 04.
    Exhibit E.  Letter, applicant, dated 2 Jun 04.
    Exhibit F.  Letter, AFBCMR, dated 7 Jun 04.
    Exhibit G.  Letter, applicant, dated 17 Nov 04, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair

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