RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2009-00978 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His disability rating be increased. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The Air Force wrongly rated his lumbar and spine injury at 20 
percent. He requests his condition be reviewed and corrected to 
show the actual condition to be far more disabling and rated at a 
higher percentage. 

 

In support of his application, applicant provides a personal 
statement and documents extracted from his military personnel and 
medical records. 

 

Applicant's complete submission, with attachments, is at Exhibit 
A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 7 Aug 80, the applicant contracted his initial enlistment in 
the Air Force Reserves. He was progressively promoted to the 
grade of master sergeant having assumed the grade effective and 
with a date of rank of 1 May 04. On 13 Nov 08, he was 
permanently retired with a 60 percent disability rating for 
Nonepileptiform Seizures and Chronic low back pain. 

 

The remaining relevant facts pertaining to this application, 
extracted from the applicant's military records, are contained in 
the evaluation prepared by the BCMR Medical Consultant. 

 

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AIR FORCE EVALUATION: 

 

The BCMR Medical Consultant recommends denial. The Medical 
Consultant states the applicant has presented a valid concern 
regarding the currency of medical information utilized by the 
Formal Physical Evaluation Board (FPEB) in making its 
determination. However, the Medical Evaluation Board (MEB) 
addendum comment, dated 12 Feb 08, entered into the applicant's 


narrative summary, indicated his medical condition had been 
unchanged since his initial MEB assessment. While not recorded 
in degrees, the Medical Consultant opines that the applicant's 
demonstrated ability to forward flex, presumably with hands 
reaching the level of the ankles, likely far exceeds the "30 
degrees or less" thoraco-lumbar motion required in order to 
qualify for an increase in rating to 40%. The record does not 
contain alternative range of motion data that may be utilized to 
justify an alternative disability rating determination, nor is 
there evidence of a cumulative period of incapacitating episodes 
during the 12 months preceding the applicant's MEB/PEB actions 
that warrant a change in the combined disability rating 
computation. The applicant has not contested the 50% disability 
rating received for his seizures in the current appeal 
application. With reference to his employability, the Medical 
Consultant is aware that 100% disability ratings are offered by 
the Department of Veterans Affairs (DVA) for individual 
unemployability, when a veteran cannot be reasonably expected to 
sustain substantially gainful employment. However, such a 
determination may be temporary, and not reflective of a lifelong 
impediment to employment resulting from a given medical 
condition. Based upon the evidence provided, the Medical 
Consultant found no basis in range of motion or episodes of 
incapacitation to justify a change in the disposition of the 
applicant's retirement. The applicant may present new evidence, 
e.g., range of motion physical assessments conducted in proximity 
to his date of retirement or evidence of incapacitating episodes 
of 4 or more weeks duration (cumulative) for the 12 months 
preceding his MEB/PEB assessments, for a reconsideration of his 
case. The MDES is established to maintain a fit and vital 
fighting force and can by law, only offer compensation for those 
service incurred (or aggravated) diseases or injuries which 
rendered a member unfit for continued active service, or were the 
cause for career termination; and then only for the degree of 
impairment present at the time of separation, and not on any 
projected future worsening of the condition or planned treatment. 
To the contrary, under Title 38, the DVA is authorized to offer 
compensation for any service connected medical condition, as 
established by medical records documentation, without regard to 
its proven or demonstrated impact upon a service member's 
retention or ability to perform the mission. More importantly, 
the DVA may periodically reevaluate veterans for the purpose of 
adjusting the disability rating awards, as the severity of a 
particular medical condition may vary (worsen or improve) over 
the lifetime of the veteran. 

 

The BCMR Medical Consultant's complete 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 31 Jul 09 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 not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file. 

 

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. The 
applicant’s contentions are duly noted; however, we agree with 
the opinion and recommendation of the AFBCMR Medical Consultant 
and adopt his rationale as the basis for our conclusion that the 
applicant has failed to sustain his burden of proof of the 
existence of either an error or injustice. We believe the 
processing under the medical disability evaluation system was 
appropriate and accomplished in accordance with Air Force policy. 
We note the applicant currently has a combined DVA disability 
rating of 60 percent. However, former servicemembers are 
authorized treatment from the DVA under the provisions of Title 
38, USC. Title 38, allows the DVA to provide compensation for 
servicemembers who incur a service-connected medical condition 
while on active duty and to increase or decrease the disability 
rating based on the seriousness of medical condition throughout 
the former servicemember’s life span. Therefore, in the absence 
of evidence to the contrary, we find no 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-2009-00978 in Executive Session on 12 Nov 09 under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, 26 Feb 09, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, BCMR Medical Consultant, dated 28 Jul 09. 

 Exhibit D. Letter, SAF/MRBR, dated 31 Jul 09. 

 

 

 

 

 

 Panel Chair