RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2012-00028 
XXXXXXXXXX		COUNSEL: XXXXXXXXXX
			HEARING DESIRED: YES

 

APPLICANT REQUESTS THAT:
His discharge with a 50 percent disability rating be 
increased to a 100 percent disability rating retroactive to 
17 August 1978.

 

APPLICANT CONTENDS THAT:
His disability due to his burns had not changed during his time 
on the Temporary Disability Retired List (TDRL).

The Physical Evaluation Board (PEB) relied on an examination 
limited to the functionality of his hands.

The PEB failed to consider his other disabilities: (1) his 
psychological trauma, and (2) his severe intolerance to 
extreme temperatures.

As a result of a catastrophic military plane crash in 1976, he 
suffered second and third degree burns over 25 percent of his 
body, was found 100 percent disabled, and placed on the TDRL. 
The next year his injuries caused him to be permanently retired 
from the Air Force and the PEB unjustly rated him as only
50 percent disabled. The Department of Veterans Affairs (DVA) 
examination completed on 10 November 2009, yielded results that 
are exactly the same as those enumerated in the 1977 Medical 
Evaluation Board (MEB). It is therefore a clear and 
unmistakable error for the PEB conducted in 1978 to use the 
Veterans Affairs Schedule for Rating Disabilities (VASRD) code 
for second degree burn scars (7802) when the fact is that the 
burn scars are third degree (7801).

The Board should find it in the interest of justice to excuse 
his  failure  to  timely file because he was not aware the
50 percent disability rating was erroneous. He received a 
memorandum from the Air Force Physical Disability Division dated
6 August 2010, which showed that he was still suffering from the 
identical injuries that placed him on the TDRL with a disability 
rating of 100 percent.

In support of his request, the applicant provides copies of his 
AF Forms 356, Findings and Recommended Disposition of USAF 
Physical Evaluation Board; newspaper articles, clinical 
records, DVA	Rating	Decisions; and	various	other	documents	associated 
with his request.

The	applicant’s	complete	submission,	with	attachments,	is	at 
Exhibit A.

 

STATEMENT OF FACTS:
According to AF Form 711, USAF Mishap Report, dated 11 October 
1976, the applicant was 1 of 5 passengers who survived an 
aircraft accident that killed 5 crew members and 10 
passengers on 16 September 1976.

According to DA Form 8-18, Medical Board Proceedings dated
20 January 1977, the applicant received second and third 
degree burns involving the rear, anterior trunk, arms, 
hands and thighs. The MEB determined the applicant was not 
qualified for duty and recommended his case be presented to the 
PEB.

According to AF Form 356 dated 31 January 1977, the Informal PEB 
(IPEB) recommended the applicant be placed on the TDRL with a
100 percent disability rating for the aforementioned 
injuries with an effective date of 22 February 1977. 
Unfitting burn areas were assigned specific disability ratings 
under the VASRD codes 7801 (Scars, burns, third degree) and 
7802 (scars, burns, second degree).

According to AF Form 356 dated 16 June 1978, the IPEB found 
the applicant fit and recommended he be removed from the TDRL 
and returned to duty.

In a letter dated 20 June 1978, the applicant was advised of his 
options as they pertained to the IPEB findings. On 30 June 
1978, the applicant did not concur with the recommended findings 
and requested an appearance before the Formal PEB (FPEB)

In a letter dated 1 August 1978, a plastic and reconstructive 
surgeon who cared for the applicant's hands provided a letter to 
the PEB challenging the notion that he was fit to return to 
duty. The provider concluded, “It would be fallacious to say 
that this man's hands are not capable of not flying  an 
airplane.” Additionally, the surgeon expressed that the extent 
of the applicant's “burns both second and third degree, which 
were the genesis of the board action, have not changed.” Among 
concluding remarks, the provider stated that although the 
applicant is capable of flying, after a thorough psychiatric 
evaluation, to evaluate his reaction to the accident, there is 
no way to expunge the burn scars and resultant skin defects that 
he has acquired.

According to AF Form 356 dated 17 August 1978, the FPEB found 
the applicant unfit and recommended removal from the TDRL and



permanent  retirement  with  a  combined  disability  rating  of
50 percent.
Special Order Number 16864 issued on 8 September 1978, 
removed the applicant from the TDRL and retired him with a 
disability rating of 50 percent effective 26 September 1978.

According to the DVA Rating Decision dated 23 March 2006, the 
evaluation of Post-Traumatic Stress Disorder (PTSD) which was
30	percent  disabling was increased to 70 percent effective
31	August 2004.
In a letter to the applicant dated 19 February 2010, the DVA 
advised the applicant that some of his individual disability 
percentages increased.  However, his overall combined rating of
100 percent remains unchanged.
A memorandum from AFPC/DPSDC dated 6 August 2010, addressed to 
the applicant, indicates approval for Combat Related Special 
Compensation (CRSC) with a combined rating of 90 percent for his 
burn scars and for PTSD effective January 2008 and increased to
100 percent effective November 2008.

 

AIR FORCE EVALUATION:
The BCMR Medical Consultant recommends denial.  Aside from the
34 years that have transpired since the applicant's release from 
the TDRL and his permanent retirement with a 50 percent 
disability rating, he is reminded that disability ratings 
assigned for compensation by the Military Department, under the 
Legacy Disability· Evaluation System, were only applied to those 
aspects of an illness, disease, or injury that were determined 
unfitting for military service. One can argue the post-service 
characterization of some of the applicant's third degree burns 
might indicate no change has occurred since initial injury and 
that in 1978 some burns were characterized as “unchanged.” 
However,  the  fact  that  the  DVA  assigned  the  applicant  a
100 percent disability rating and he has received CRSC for PTSD 
is not proof that the ratings underlying these actions are 
reflective of the applicant's actual functionality at the time 
of his release from the TDRL in 1978. Specifically, operating 
under Title 10, United States Code (USC) the Military Department 
assigns fitness and rating determinations based upon the 
clinical evidence [severity, stability, functional impairment] 
present at the “snap shot” time of final military 
disposition, and not upon future changes or developments; 
particularly those occurring or identified decades post 
service, notwithstanding the 1978 letter from the applicant's 
plastic and reconstructive surgeon.

Operating under a different set of laws, Title 38 USC, the DVA 
is authorized to offer compensation for any medical condition



with a nexus to military service, e.g., the applicant's PTSD, 
without regard to its proven or demonstrated impact upon a 
service member's retainability or fitness to serve at the time 
of release from military service; nor the intervening period 
since release from military service. Thus, it is conceivable 
that the DVA assigned disability ratings for some of the 
applicant's scars, which were not considered separately 
unfitting. Nevertheless, the use of the term “unchanged” in the 
1978 letter challenges the notion of a reduction in a previously 
assigned higher disability rating when first placed on the TDRL. 
However, it appears this letter was largely generated to 
challenge the decision of the IPEB to return the applicant to 
duty, fit to resume pilot duties. Although the applicant's 
arguments suggest he may have been 'short-changed' in his 
military disability ratings of 1978, the Medical Consultant 
finds it difficult to supplant or invalidate clinical evidence 
of 1978 which resulted in the specific unfit findings, with a 
clinical opinion based upon symptoms reported and rating 
decisions made two to three decades later.

The complete Medical Consultant’s evaluation is at Exhibit D.

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 18 October 2011, the applicant requested his case be 
administratively closed until such time he is able to proceed.

In a letter dated 28 March 2014, the applicant’s counsel 
requested the applicant’s case be reopened. Counsel asserts 
that while the BCMR Medical Consultant recommends the 
applicant’s request be denied, an examination of the clinical 
evidence available in 1978 demonstrates that the applicant was
100 percent disabled at the time of his release from TDRL. 
Counsel’s complete response, with attachments, is at Exhibit F.

 

ADDITIONAL AIR FORCE EVALUATION:
AFPC/DPFD concurs with the BCMR Medical evaluation and 
recommends denial. The preponderance of evidence reflects that 
no error or injustice occurred during the disability process or 
at the time of separation.  As background, the Department of 
Defense (DoD) and the DVA disability evaluation systems operate 
under separate laws. Under Title 10, USC, PEBs must determine 
if a member's condition renders him or her unfit for continued 
military service relating to his or her office, grade, rank or 
rating. The fact that 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 his or her 
military duties.  If the board renders a finding of unfit, the



law provides appropriate compensation due to the premature 
termination of his or her 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 the member’s condition at that time. It is the 
charge of the DVA to pick up where the Air Force must, by law, 
leave off. Under Title 38, the DVA may rate any service- 
connected condition based upon future employability or 
reevaluated based on changes in the severity of a condition. 
This often results in different ratings by the two agencies.

The complete DPFD evaluation is at Exhibit C.

 

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:
The entire “Discussion” section is devoted to one point, that 
the DoD and the DVA have different laws, which may lead to 
different disability ratings by the different Departments. That 
point is not relevant to the applicant’s claim, which is that at 
the time of his release from the TDRL on 17 August 1978 the PEB 
incorrectly  found  that  his  condition  had  improved  from
100 percent disabled to 50 percent disabled, when all of the 
medical evidence on that date showed he was still 100 percent 
disabled just as he was the day he was placed on TDRL.

The PEB ruling in 1978 was unjust and erroneous because all of 
the medical evidence available to the PEB showed that the 
applicant’s disability due to his burns had not changed during 
his time on the TDRL; any reliance by the PEB on an examination 
limited to the functionality  of the applicant’s hands was 
misplaced; no consideration was given to the psychological 
trauma that he was suffering; and no consideration was given to 
the fact that his burns made him unfit to work in extreme 
temperatures.

The only two physicians who conducted complete, full-body 
examinations before the PEB hearing were the plastic and 
reconstruction surgeon who treated the applicant for the four 
months after the plane crash and who re-examined him again two 
weeks before the PEB, and the chief of plastic surgery who 
examined the applicant two days before the PEB hearing. These 
physicians found his burn injuries 100 percent disabling. The 
third physician, a hand surgeon, focused his evaluation solely 
on the burns on the applicant’s hand and concluded, “As a hand 
surgeon, I can honestly say I feel that this gentleman would be 
very able to fly an aircraft providing that his psychological 
status would warrant this.” (Emphasis added.) No such 
examination was performed until many years later.

Despite the reports provided by the two physicians who conducted 
complete, full-body examinations and with no other evidence to 
the contrary, the PEB downgraded the applicant’s disabilities to



50 percent. Further, in finding that his disabilities had 
changed and in downgrading his disabilities by 50 percent, the 
PEB made no mention of the plastic and reconstruction surgeon’s
1 August 1978 report in which he concluded that “the areas of 
burns for which he was initially boarded have not changed” in 
the 18 months he was on TDRL (emphasis added).

Counsel’s complete response is at Exhibit K.

 

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 error or injustice. We note the 
applicant requests his discharge with a 50 percent disability 
rating be increased to 100 percent retroactive to 17 August 
1978. However, based on the available evidence it is our 
opinion the applicant's disability rating of 50 percent was 
properly adjudicated and the applicant has not provided 
substantial evidence which would lead us to believe that his 
separation was in error or contrary to the governing Air Force 
instructions. The  applicant's case has also undergone an 
exhaustive review by the BCMR Medical Consultant and we do not 
find the evidence sufficient to overcome his assessment of the 
case. Therefore we agree with the opinions and recommendations 
of the Air Force office of primary responsibility and the BCMR 
Medical Consultant and adopt their rationale as the basis for 
our conclusion that the applicant has failed to sustain his 
burden of proof that he has been the victim of an error or 
injustice. In view of the above and 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 this application 
in Executive Sessions on 12 February 2015, under the provisions 
of AFI 36-2603:




 , Panel Chair 
 , Member 
 , Member

The following documentary evidence pertaining to AFBCMR BC-2012- 
00028 was considered:

Exhibit A.	DD Form 149, dated 1 September 2011, w/atchs. 
Exhibit B.	Applicant's Master Personnel Records.
Exhibit C.	Letter, BCMR Medical Consultant, dated
1 October 2012.
Exhibit D.	Letter, SAF/MRBC, dated 5 October 2012. 
Exhibit E.	Email, Applicant, dated 18 October 2012. 
Exhibit F.	Letter, SAF/MRBC, dated 18 October 2012. 
Exhibit G.	Letter, Counsel, dated 28 March 2014, w/atchs. 
Exhibit H.	Letters, Counsel, dated 30 May 2014 and 3 June
2014.
Exhibit I.	Letter, AFPC/DPFD, dated 3 June 2014. 
Exhibit J.	Letter, SAF/MRBR, dated 12 November 2014 
Exhibit K.	Letter, Counsel, dated 11 December 2014.