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AF | BCMR | CY2007 | BC-2007-00249
Original file (BC-2007-00249.doc) Auto-classification: Approved

                       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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