RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-00249
INDEX CODE: 108.02
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His disability rating be changed to 100 percent rather than 40
percent.
_________________________________________________________________
APPLICANT CONTENDS THAT:
His disabilities have rendered him unable to engage in gainful
employment. The Veterans’ Administration (VA) has rated his service-
connected disability at 100 percent and permanently and totally
disabled. The Social Security Administration (SSA) has determined he
is disabled and entitled to disability benefits.
In support of his appeal, the applicant has provided copies of various
VA generated paperwork and SSA paperwork.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 17 November 2000, the applicant underwent an audiometric evaluation
that revealed hearing loss in both ears. On 16 August 2002, he
underwent a right ear stapedectomy in hopes of correcting hearing loss
he had experienced since childhood requiring the use of hearing aids.
After surgery he experienced tinnitus, ear pain and hearing loss. On
5 September 2002, exploratory surgery revealed some granulation and
inflammatory tissue. After this surgery his pain decreased but
deafness and imbalance remained. He has also undergone vestibular
rehabilitation to no avail. Additional hearing examinations conducted
on 24 January and 30 July 2003 revealed further hearing loss in his
right ear. Post surgeries and during rehabilitation, he developed
major depression related to his dizziness and hearing loss. In a
psychiatric evaluation of 24 November 2003, his Social and Industrial
Adaptability was rated as “severe.” On 25 November 2003, he met a
medical evaluation board (MEB) that determined the medical issues of
Vestibular Dysfunction with Vertigo with Depression and Hearing Loss
were unfitting conditions and referred his case to the Informal
Physical Evaluation Board (IPEB). On 16 December 2003, the IPEB
recommended temporary retirement with a disability rating of 30
percent. He disagreed and requested a hearing with the Formal PEB
(FPEB). On 19 February 2004, the applicant and counsel attended the
FPEB hearing that recommended permanent disability retirement with a
disability rating of 40 percent. He submitted a rebuttal to the
FPEB’s findings and recommendations that was forwarded to the
Secretary of the Air Force Personnel council (SAF/PC) for review. On
10 May 2004, SAF/PC upheld the findings and recommendation of the FPEB
and recommended he be permanently disability retired with a disability
rating of 40 percent. Effective 6 July 2004, he was relieved from
active duty and effective 7 July 2004, he was permanently disability
retired in the retired pay grade of major with a compensable
percentage for physical disability of 40 percent. He had served 16
years, 10 months and 2 days.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPD recommends denial. DPPD states the preponderance of
evidence reflects that no error or injustice occurred during the
discharge process. DPPD notes that the disability systems of both the
Department of Defense (DOD) and the Department of Veteran’s Affairs
(DVA) operate under separate laws. Physical Evaluation Boards must
determine if a member’s condition renders them unfit for continued
military service relating to their office, grade, or ranking. The
fact a person may have a medical condition does not mean that the
condition is unfitting for continued military service. To be
unfitting, the condition must be such that it alone precludes the
member from fulfilling their military duties. If the board renders a
finding of unfit, the law provides appropriate compensation due to the
premature termination of the member’s career. Further, it must be
noted the USAF disability boards must rate disabilities based on the
member’s condition at the time of evaluation; in essence, a snapshot,
of their condition at that time. The DVA must, by law, pick up where
the Air Force leaves off. The DVA may rate any service-related
condition based on future employability or reevaluate based on changes
in the severity of a condition. The results often result in different
ratings by the two agencies.
DPPD’s complete evaluation is at Exhibit C.
The BCMR Medical Consultant recommends partial relief in that he is of
the opinion that his disability rating from the Air Force should be
increased to 80 percent. He opines the applicant should have been
granted a 50 percent disability rating for his major depression
(Social and Industrial Adaptability rating of “considerable”); 30
percent for his vertigo; and 10 percent for hearing loss. The
combination of the three disability percentages above calculates to an
overall 81 percent disability rating that is rounded down to 80
percent.
The remaining pertinent medical facts are contained in the evaluation
prepared by the BCMR Medical Consultant at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on
14 September 2006 for review and comment within 30 days. 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 an error or injustice. After a careful review of the
evidence of record, we are of the opinion a change in the applicant’s
disability rating is warranted. We concur with the AFBCMR Medical
Consultant’s findings that the applicant’s depression was not fully
addressed by previous Boards. The medical consultant opines that the
nature of the applicant’s depression warranted a disability rating of
50 percent. The inclusion of the 50 percent would increase the
applicant’s overall disability rating from 40 percent to 80 percent.
Therefore, we recommend that the records be corrected as indicated
below.
______________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show that:
a. The diagnoses for his unfitting conditions which led to his
retirement because of physical disability on 7 July 2004 major
depression, VASRD diagnostic code 9434, rated at 50 percent; and
vestibular dysfunction with vertigo, VASRD diagnostic code 6204,
rated at 30 percent; and hearing loss, VASRD diagnostic code 6100,
rated at 10 percent; that the combined compensable percentage was 80
percent; that the degree of impairment was permanent; that the
disability was not due to intentional misconduct or willful neglect;
that the disability was not incurred during a period of unauthorized
absence; and, that the disability was not received in the line of
duty as a direct result of armed conflict or caused by an
instrumentality of war.
b. On 7 July 2004, he was permanently disability retired with a
combined compensable percentage for physical disability of
80 percent, rather than 40 percent.
______________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-
2007-00249 in Executive Session on 11 October 2007, under the
provisions of AFI 36-2603:
Mr. Wayne R. Gracie, Panel Chair
Ms. B. J. White-Olson, Member
Mr. Mark J. Novitski, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered pertaining to AFBCMR
Docket Number BC-2007-00249:
Exhibit A. DD Form 149, dated 23 January 2007, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPD, dated 2 April 2007.
Exhibit D. Letter, BCMR Medical Consultant, dated 6 September
2007.
Exhibit E. Letter, SAF/MRBR, dated 14 September 2006.
WAYNE R. GRACIE
Panel Chair
DEPARTMENT OF THE AIR FORCE
WASHINGTON DC
[pic]
Office Of The Assistant Secretary
AFBCMR BC-2007-00249
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 APPLICANT, be corrected to show that:
a. The diagnoses for his unfitting conditions which led
to his retirement because of physical disability on 7 July 2004 major
depression, VASRD diagnostic code 9434, rated at 50 percent; and
vestibular dysfunction with vertigo, VASRD diagnostic code 6204,
rated at 30 percent; and hearing loss, VASRD diagnostic code 6100,
rated at 10 percent; that the combined compensable percentage was 80
percent; that the degree of impairment was permanent; that the
disability was not due to intentional misconduct or willful neglect;
that the disability was not incurred during a period of unauthorized
absence; and, that the disability was not received in the line of
duty as a direct result of armed conflict or caused by an
instrumentality of war.
b. On 7 July 2004, he was permanently disability retired
with a combined compensable percentage for physical disability of
80 percent, rather than 40 percent.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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