RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2005-01143
INDEX CODE:
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 6 October 2006
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her late son’s disability rating be increased from 40 percent to 100
percent.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The Physical Evaluation Board (PEB) made its decision without the
benefit of having all the facts. The problem is the 18 Mar 03
decision was arrived at before subsequent major surgeries and
treatments/intensive care at ***** Medical Center and five months
prior to his release from active duty.
In support of the appeal, applicant submits a copy of AF Form 356,
Findings and Recommended Disposition of USAF Physical Evaluation
Board, dated 18 Mar 03, a copy of the Operation Report, and a copy of
Department of Veterans Affairs (DVA) Rating Decision.
Applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The member enlisted in the Regular Air Force on 7 Jun 00. Based on
complaints of low back pain, the member was presented to a Medical
Evaluation Board (MEB).
On 4 Mar 03, the MEB recommended he be referred to an informal
Physical Evaluation Board (IPEB).
On 18 Mar 03, the IPEB found him unfit and recommended he be placed on
the TDRL with a compensable rating of 40%, based on the diagnosis of
Ewing’s Sarcoma, status post resection and chemotherapy, associated
with mood disorder and chronic pelvic pain. The member did not agree
with the findings and recommendations of the IPEB and requested a
Formal Physical Evaluation Board (FPEB).
On 20 May 03, the FPEB sustained the findings and recommendation of
the IPEB and recommended he be placed on the TDRL. On 2 Aug 03, his
name was placed on the TDRL with a rating of 40 percent.
The member died on 15 May 04. The death certificate lists
polypharmacy as the cause of death.
On 25 Feb 05, the DVA awarded a combined compensable disability rating
of 100 percent for Ewing Sarcoma status post resection and
chemotherapy, 10 percent for painful scar, and zero percent for mood
disorder (depression) effective 2 Aug 03.
_________________________________________________________________
AIR FORCE EVALUATION:
The BCMR Medical Consultant is of the opinion that a change in the
records is warranted to show a higher disability rating. By law,
payment of DVA disability compensation and military disability pay for
the same medical condition or disability is prohibited. Changing the
member’s disability rating, even to a rating of 100 percent will not
result in any additional monetary benefits for his heirs. The maximum
possible disability retired pay would be 75% (even with a 100 percent
rating) of his base pay (E-4 over three years of service base pay
$1665 in 2003 and $1726 in 2004) resulting in a monthly disability
retired pay of $1250 per month in 2003 and $1295 in 2004. The DVA
disability compensation for a single veteran (rates for married
veterans with or without children are higher) rated 100 percent in
2003 was $2103/month, and $2239/month in 2004, both higher than any
maximum Air Force disability compensation.
Although changing the former member’s Air Force TDRL disability rating
will not result in any additional monetary benefits for his heirs, the
BCMR Medical Consultant opines that the preponderance of the evidence
of the record warrants a higher TDRL disability rating than the 40
percent originally adjudicated and concludes that the evidence of the
record most nearly approximates the 60 percent rating but notes that
greater weight given to the relative contribution of the mood disorder
and pain could result in a combined rating of 75 percent as previously
discussed.
A complete copy of the evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 5 Jun 06, a copy of the Air Force evaluation was forwarded to the
applicant for review and response. As of this date, no response has
been received by this office.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing
law or regulations.
2. The application was timely filed.
3. Sufficient relevant evidence has been presented to demonstrate
the existence of error or injustice warranting an increase in the
member’s disability rating to 75 percent. In this respect, we note
the member was processed through the Disability Evaluation System
resulting in his placement on the TDRL with a compensable rating of 40
percent. The BCMR Medical Consultant is of the opinion that a
preponderance of the evidence of record supports a rating of 60
percent and that greater weight given to the relative contribution of
the mood disorder and pain could result in a combined rating of 75
percent. We agree and in the interest of justice believe that greater
weight should be given to the contributing relationship of the
member’s mood disorder and pain. Therefore, we recommend his records
be corrected to the extent indicated below.
4. Notwithstanding the above, we do not believe that sufficient
evidence has been presented to warrant increasing the combined
disability rating to 100 percent. It appears the applicant believes
the DVA's decision to award her late son a combined disability rating
of 100 percent, substantiates that he should have received this rating
from the Air Force at the time he was placed on the TDRL. However, we
note that although the Air Force is required to rate disabilities in
accordance with the DVA Schedule for Rating Disabilities, the DVA
operates under a totally separate system with a different statutory
basis. In this respect, we note the DVA rates for any and all service
connected conditions, to the degree they interfere with future
employability, without consideration of fitness. The Air Force, on
the other hand, rates a member's disability at the time of separation,
and based on considerations some of which differ from the DVA’s. In
the applicant's case, at the time of his placement on the TDRL his
conditions did not warrant such a rating. Therefore, in the absence
of evidence to the contrary, we find no compelling basis for a
combined disability rating greater than 75 percent.
________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 1 August 2003,
competent authority determined that the rating for his unfitting
condition was 75 percent, rather than 40 percent.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-
2005-01143 in Executive Session on 23 June 2006, under the provisions
of AFI 36-2603:
Mr. Laurence M. Groner, Panel Chair
Mr. James A. Wolffe, Member
Ms. LeLoy W. Cottrell, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 31 Mar 05, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, BCMR Medical Consultant, dated 31 May 06.
Exhibit D. Letter, SAF/MRBR, dated 5 Jun 06.
LAURENCE M. GRONER
Panel Chair
AFBCMR BC-2005-01143
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:
The pertinent military records of the Department of the Air
Force relating to XXXXXXX, be corrected to show that on 1 August 2003,
competent authority determined that the rating for his unfitting
condition was 75 percent, rather than 40 percent.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
AF | BCMR | CY2004 | BC-2003-03494
The IPEB recommended the applicant be permanently retired with a disability rating of 30 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...
AF | BCMR | CY2013 | bc-2011-04080
In view of the DVA rating decisions and the severity of her condition, the disability rating awarded by the Air Force should have been higher and she should have been retired by reason of physical disability. 60 percent – Requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if...
AF | BCMR | CY2013 | BC 2013 01627
The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are at Exhibits C and E. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating there was no evidence of an error or injustice that occurred during the disability process. The USAF disability boards must rate disabilities based on the members condition at the time...
AF | BCMR | CY2003 | BC-2003-00222
After considering the applicant’s medical records, including information pertaining to the applicant’s treatment for the lacunar stroke, on 27 February 2002, the IPEB recommended the applicant be permanently retired because of physical disability with a compensable rating of 30% for major depressive disorder associated with myofascial pain. _________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Consultant is of the opinion that no change in...
AF | BCMR | CY2003 | BC-2003-01238
On 5 Feb 01, the Air Force PEB recommended that the applicant be discharged from the Air Force with severance pay with a combined disability rating of 10 percent. The DPPD evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 19 Sep 03 for review and comment within 30 days. It is our opinion that because of the severity of his condition...
AF | BCMR | CY2005 | BC-2004-02236
_________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Consultant summarized the information contained in the applicant’s personnel and medical records and states that the applicant’s condition of cognitive impairment is permanent, but is not judged to be stable, and does not meet or exceed a disability rating of 80 percent. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military...
AF | BCMR | CY2010 | BC-2010-03405
RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03405 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her diagnosis of Adrenal Insufficiency be added to her AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 22 Jul 10, and included as part of her overall disability rating. It should also be noted that had...
AF | BCMR | CY2003 | BC-2002-03279
On 21 Feb 02, the Air Force PEB recommended that the applicant be permanently retired from the Air Force with a combined disability rating of 30 percent. Functional factors to be considered include but are not limited to psychotic manifestations, speech disturbances, impairment of vision, tremors, complete or partial loss of use of one or more extremities, and visceral manifestations. Evidence has not been presented which would lead us to believe that the applicant's disability processing...
AF | BCMR | CY2003 | BC-2002-01026
Whereas the Air Force rates a member's disability based on the degree of severity at the time of separation. The BCMR Medical Consultant evaluation is at Exhibit C. AFPC/DPPD recommends the application be denied. Whereas the Air Force rates a member's disability based on the degree of severity at the time of separation.
AF | BCMR | CY2004 | BC-2003-02671
She was granted a 60% evaluation because of her appeal but she is 100% disabled and unable to obtain employment. The Medical Consultant states a review of her service medical records show that at the time of permanent disability disposition, formal psychometric testing indicated her cognitive disorder produced a "considerable" Social and Industrial Adaptability Impairment that correlates with a 50% rating in the Veterans Administration Schedule for Rating Disabilities (VASRD). The Medical...