RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02625
            INDEX NUMBER:  108.00
      XXXXXXXXXXXXXX   COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  20 Feb 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

The 10%  disability  rating  she  was  given  when  removed  from  the
Temporary Disability Retired List (TDRL) on 14 Jul 04 be changed to  a
minimum of 30% entitling her to permanent medical retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a brief prepared by the Disabled American Veterans,  the  applicant
contends that based on the criteria contained  in  the  Department  of
Veterans Affairs (DVA) Schedule for Rating Disabilities  (VASRD),  the
applicant is entitled to a minimum evaluation of 30%.

The Physical Evaluation Board (PEB)  ignored  the  objective  criteria
contained in the VASRD and applied no more  than  mere  conjecture  or
speculation at the time the Board was conducted.

In further support of her appeal, the applicant provides copies of the
PEB documentation and a copy of the disability  rating  decision  from
the DVA.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 25 Apr  96.   On
11 Jul 02, a Medical Evaluation Board (MEB)  diagnosed  the  applicant
with  allergic  rhinitis,  asthma,  irritable  bowel   syndrome,   and
exceeding Military Weight Allowances.  The MEB referred the  applicant
to a PEB.  On  25  Jul  02,  an  informal  PEB  (IPEB)  diagnosed  the
applicant with asthma with a 10% disability rating and  with  allergic
rhinitis,  determined  to  be  noncompensable.   The  IPEB  found  the
applicant unfit and recommended she be discharged with  severance  pay
with a 10% disability rating.

On 2 Aug 02, the applicant indicated  on  AF  Form  1180,  “Action  on
Physical Evaluation Board Findings and Recommended  Disposition”  that
she did not agree with the findings and  recommended  disposition  and
requested a formal hearing.  On 3 Sep 02,  a  formal  PEB  (FPEB)  was
conducted.   The  FPEB  agreed   with   the   earlier   findings   and
recommendations of the IPEB.  On 4 Sep 02, the applicant indicated  on
the  AF  Form  1180  she  did  not  agree  with   the   findings   and
recommendations of the FPEB and desired to submit a written  rebuttal.
The applicant submitted a written rebuttal dated  25  Sep  02  to  the
Secretary of the Air Force Personnel Council (SAFPC).

On 5 Nov 02, based on new information that was not  available  to  the
IPEB and FPEB, SAFPC  diagnosed  the  applicant  with  asthma  with  a
disability rating of 30% and recommended she be placed on the TDRL and
reevaluated in one year.  Effective  13  Jan  03,  the  applicant  was
relieved from active duty and placed on the TDRL effective 14 Jan  03.
On 8 Jan 04, the applicant  received  a  periodic  evaluation.   As  a
result of the evaluation, the applicant was scheduled  for  continuing
use of medications and follow-up with the attending physician.

On 10 Feb 04, an  IPEB  was  conducted  on  the  applicant.   She  was
diagnosed  with  asthma  with  a  10%  disability  rating.   The  IPEB
recommended the applicant be discharged with severance pay.  On  5 Mar
04, the applicant indicated she did not  agree  with  the  recommended
findings and requested to appear before a FPEB.  On  20  Apr  04,  the
FPEB agreed with the earlier recommendation of the IPEB.   On  20  Apr
04, the applicant indicated on the AF Form 1180 she did not agree with
the findings and recommended disposition of  the  FPEB  and  that  she
desired to submit a rebuttal.  In a letter dated 3 May 04 the Disabled
American Veterans submitted a rebuttal  to  SAFPC  in  behalf  of  the
applicant.

On 18 Jun 04, SAFPC directed the applicant be removed  from  the  TDRL
and discharged with severance pay with a  disability  rating  of  10%.
SAFPC stated that the rationale for their decision was  based  on  the
applicant’s demonstrated civilian social and occupational  impairment,
in addition to her pulmonary function studies in the medicated  state.
Consequently, SAFPC found the applicant’s successful fulltime  college
attendance and work-study employment, along with her “normal  baseline
spirometry”  compelling  evidence  that  her   level   of   functional
impairment fell within  the  parameters  determined  by  two  previous
boards.  The applicant was removed from the TDRL and  discharged  with
severance pay effective 14 Jul 04.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical  Consultant  recommends  denial  of  the  applicant’s
request to change her Air  Force  disability  rating.   The  applicant
contends the need for continued treatment including intermittent  oral
corticosteroids warrants a rating of at least 30%.  The Department  of
Defense (DoD) is required to use the VASRD  as  a  guideline  to  rate
disabilities that are unfitting for continued  military  service.   By
policy outlined in DoD instruction 1332.39, the intent is to rate  the
degree of impairment in civilian occupational earning capacity.  DoD I
1332.39 states in paragraph 6.2, Higher of Two Evaluations, “When  the
circumstances of a case are such that two percentage evaluations could
be applied, the higher percentage will be assigned only if the Service
member’s disability more nearly approximates  the  criteria  for  that
rating.  Otherwise,  the  lower  rating  will  be  assigned.”   Rating
guidance  contained  in  the  VASRD,  Section  4.7,  Higher   of   two
evaluations, states, “Where there is a question as  to  which  of  two
evaluations shall be applied, the higher evaluation will  be  assigned
if the  disability  picture  more  nearly  approximates  the  criteria
required for  that  rating.   Otherwise,  the  lower  rating  will  be
assigned.”  Using this guidance Physical Evaluation Boards  take  into
account  the  results  of  pulmonary  function  testing,  patterns  of
medication use, and evidence of occupational impairment when  arriving
at a rating, and not based solely on one factor.  It is noted that DVA
ratings may vary from those granted by  the  DoD  based  on  differing
weighting and interpretation of evidence.  The PEBs adjudicated a  10%
rating  balancing  the  repeatedly  normal  pulmonary  function   test
results,  the  requirement  for  treatment,  and   the   evidence   of
occupational functional ability (absence of  evidence  of  significant
occupational impairment) in arriving at the rating, which is  intended
by policy to rate the  degree  of  civilian  occupational  disability.
Operating   under   different   laws   with   a   different   purpose,
determinations made by the DoD under Title 10 and the DVA under  Title
38 are not determinative or binding on decisions made by the other.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The Disabled American Veterans  National  Service  Officer  (DAV  NSO)
responded to the Air Force evaluation on behalf of the applicant.   He
states  the  Air  Force  PEB  has  determined  that  the   applicant’s
participation in school and a sheltered  DVA  work-study  program  was
construed as gainful employment.  However, he asserts that  the  work-
study program was established by the DVA  to  help  eligible  veterans
earn extra income while attending  school.   The  applicant  was  only
eligible to work a maximum of 25 hours per week and was  not  required
to routinely report to a regular assignment.  He opines the  applicant
has shown both with medical evidence and testimony that her  condition
remains chronic and regulated with a strict medication regimen.

The DAV NSO opines that to  ignore  the  applicant’s  compliance  with
prescribed medications and need for emergency medical attention, given
her chronic pulmonary disorder, and focus primarily on  employment  is
not proper application of the law.  He further asserts the  Air  Force
PEB has failed to resolve reasonable doubt in the applicant’s favor or
apply the higher  of  two  evaluations.   He  states  that  since  her
placement on the TDRL, the applicant  has  progressively  worsened  to
warrant a 30%, then 60%, evaluation by the DVA.

The complete response is at Exhibit F.

_________________________________________________________________

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.   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 Air Force
office of primary responsibility and  adopt  their  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.

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 Docket  Number  BC-2004-
02625 in Executive Session on 13 and  15  September  2005,  under  the
provisions of AFI 36-2603:

      Mr. John B. Hennessey, Panel Chair
      Ms. Renee M. Collier, Member
      Mr. Richard K. Hartley, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 1 Aug 05.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Aug 05.
    Exhibit E.  Letter, SAF/MRBR, dated 5 Aug 05.
    Exhibit F.  Letter, DAV, dated 29 Aug 05, w/atch.




                                   JOHN B. HENNESSEY
                                   Panel Chair