RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03549
            INDEX CODE:  108.07
            COUNSEL:  NONE
            HEARING DESIRED:  Not Indicated

MANDATORY CASE COMPLETION DATE:  20 May 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His records be corrected of reflect he was  retired  with  a  disability
rating of 100 percent, rather than 70 percent; and, the disability  was  the
direct result of armed conflict or was caused by an instrumentality  of  war
and incurred in line of duty during a period of war.

2.  His  service-connected   medical   condition,   arteriosclerotic   heart
disease, be assessed as combat related in order to qualify for  compensation
under the Combat Related Special Compensation (CRSC) Act.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was exposed to Agent  Orange  in  Vietnam  and  eight  months  after  his
return, he had a heart attack.

In support of his request, applicant provided documentation associated  with
his  CRSC  application,  a  United  Stated  District  Court  Decision,   and
documentation  associated  with  his  Disability  Evaluation  System   (DES)
processing.  His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant served in the Enlisted Reserve Corps from 12  Dec  42  through  26
Jun 44.  He was appointed a second lieutenant, Army of the United States  on
27 Jun 44.  He entered the Air Reserves on 5 Nov 45  and  was  progressively
promoted to the Reserve grade of lieutenant  colonel,  having  assumed  that
grade on 1 Jul 67.

On 9 Oct 69, a Physical Evaluation Board (PEB) recommended he be  placed  on
the Temporary Disability Retired List (TDRL)  with  a  combined  compensable
rating of 70%, with a diagnosis of arteriosclerotic heart disease and  gout.
 He was placed on the TDRL on 1 Apr 70.  On 8 Oct  71,  the  Air  Force  PEB
recommended he be permanently retired from the Air  Force  with  a  combined
disability rating of 70%.  On 28 Oct 71, he was removed from  the  TDRL  and
permanently retired in the grade of lieutenant colonel  with  a  compensable
rating of 70%.  He served 20 years and 29 days on active duty.

Available Department of Veterans Affairs (DVA) records  reflect  a  combined
compensable rating of 100% for his unfitting conditions.

His CRSC application  was  erroneously  approved  for  his  arteriosclerotic
heart disease with a compensable rating of 100%.   The  approval  was  based
upon outdated DVA program information.  In accordance with the  current  DVA
Agent Orange policy applicant does not qualify for CRSC.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical  Consultant  recommends  denial.   The  Medical  Consultant
states the evidence of record indicates he was properly  rated  by  the  PEB
based on evidence of minimal symptoms and no evidence of heart failure  with
a normal physical examination, normal EKG,  and  normal  chest  x-ray.   The
Military DES, operating under Title 10,  can  only  offer  compensation  for
conditions for the degree of impairment present at  the  time  of  permanent
disposition and not on future events.  No change in disability  ratings  can
occur after permanent disposition  even  though  the  condition  may  become
better or worse.  The DVA, operating under Title 38, specifically  addresses
long term medical care, social support,  and  educational  assistance.   The
DVA is chartered to offer compensation for any service  connected  condition
without regard to whether it was unfitting for continued  military  service.
The DVA is also empowered to reevaluate  periodically  for  the  purpose  of
changing ratings if the level of  impairment  varies  over  time.   The  two
systems operating under Title 10 and Title 38 are complementary systems  and
are not intended to be  duplicative.   The  fact  that  the  DVA  may  grant
certain  service  connected  compensation   ratings   does   not   establish
eligibility for similar action from the Air Force.

There is documentation that his heart  disease  was  considered  related  to
Agent Orange by the DVA as part of the initial  compensation  program  prior
to the National  Academy  of  Sciences  (NSA)  Report  in  1994.   The  NAS,
Institute of Medicine, has not  established  an  association  between  Agent
Orange and atherosclerotic coronary artery  disease.   Since  the  1994  NAS
Report,  the  DVA  does  not  grant  presumptive  service   connection   for
atherosclerotic heart disease unless it has been medically established  that
the heart  disease  was  due  to  non-insulin  dependent  diabetes  mellitus
associated with Agent Orange.  At the time of his myocardial  infarction  he
did not have diabetes but did have strong risk factors  for  atherosclerotic
heart disease of long standing  hypertension  and  hyperlipidemia.   He  was
initially erroneously approved for CRSC compensation based the now  outdated
DVA compensation program but was subsequently denied based  on  current  DVA
Agent Orange policies under Title 38.  For purposes  of  the  military  DES,
Agent Orange is not considered an instrumentality  of  war.   Provisions  of
the  CRSC  program  list  Agent  Orange  as   a   distinct   category   from
instrumentalities of war.

The Medical Consultant 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 30  Sep
05 for review and comment within 30 days.  As of this date, this office  has
received no response.

_________________________________________________________________

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.  After a thorough review of  the  available
evidence of record, it is our opinion  that  the  service-connected  medical
conditions the applicant believes are combat-related were  not  incurred  as
the direct result of armed conflict, while engaged in hazardous service,  in
the performance of duty under  conditions  simulating  war,  or  through  an
instrumentality of war, and  therefore,  do  not  qualify  for  compensation
under the CRSC Act.  We carefully considered his request  that  his  records
be corrected to show  his  assigned  rating  upon  his  retirement  was  100
percent, rather than 70 percent and that the disability  was  determined  at
the time to be the direct result of armed conflict and incurred in the  line
of duty during a period  of  war.   We  find  that  evidence  has  not  been
presented which would lead us to believe that his disability processing  and
the rating he received at final disposition was contrary to  the  provisions
of the governing Air Force regulation  and  the  law.   We  agree  with  the
opinion  and  recommendation  of   the   Air   Force   office   of   primary
responsibility regarding these matters and adopt its 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 AFBCMR Docket Number  BC-2004-
03549 in Executive Session on 4 Jan 06, under  the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. Christopher Carey, Member
      Mr. James W. Russell III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Nov 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 30 Sep 05.
    Exhibit D.  Letter, SAF/MRBR, dated 30 Sep 05.




                                   THOMAS S. MARKIEWICZ
                                   Chair