RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00160 (Case 2)
		INDEX CODE:  108.02

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The disability rating at the time of his permanent retirement be increased from 10 to 30 percent.
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APPLICANT CONTENDS THAT:

At the time of his discharge on 10 Jan 98, both he and the attorneys at the Physical Evaluation Board (PEB) believed that the correct disability percentage should have been 30%.  According to the VA Schedule of Ratings (VASRD) standard for paroxysmal atrial fibrillation (PAF) attacks, 10% is for “infrequent” and 30% is for “severe and frequent”.  The evidence submitted clearly showed that the attacks were anything but “infrequent”; but, with no definition of what constituted “severe and frequent,” he was denied the 30%.

In May of 1999, the Department of Veterans’ Affairs (DVA) rated his disability of paroxysmal atrial fibrillation (PAF) at 30%.

In support of his request, the applicant submits a personal statement, the DVA rating decision of 12 May 99, and additional documents associated with the issues cited in his contentions.  These documents are appended at Exhibit A.
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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is 7 Feb 73.  He was relieved from active duty on 9 Jan 98 and was permanently disability retired in the grade of lieutenant colonel, with a 10% compensable rating for physical disability.  He was credited with 24 years, 11 months and 3 days of active service for retirement.

The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force.  Accordingly, there is no need to recite these facts in this Record of Proceedings.
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AIR FORCE EVALUATIONS:

The AFBCMR Medical Consultant, stated that the applicant served the last 18 years of his career with a known problem of atrial fibrillation (PAF), a condition of the heart that causes irregular heart action and various levels of resulting effects and symptoms.  For the most part, the applicant was able to function well with treatment until the last year or so when the symptoms became more frequent and problematic.  Because they now interfered to some degree with performance of his usual duties, the applicant was presented to a Medical Evaluation Board (MEB) and then through the disability evaluation system and determined to be no more than 10% disabled by his disorder.  The applicant had sufficient years for retirement therefore it was recommended he be retired with the 10% disability.  The applicant’s scheduled retirement date of 10 Dec 87 was changed to 10 Jan 98 when work in-progress was felt of such significance as to warrant extension into the new year and completion of the investigation he was conducting.  Following his retirement, the applicant applied to the DVA and was awarded a higher level of compensation based on their interpretation of the severity and frequency of his heart-related symptoms.  The VASRD criteria changed on 12 Jan 98, two days after applicant’s retirement.

The AFBCMR Medical Consultant stated that the applicant’s testimony heard during the Formal Physical Evaluation Board (FPEB) proceedings indicated he missed only 8 days of work in the previous year because of his condition and that he worked long hours and some weekend days in accomplishing his duties.  While aware of applicant’s claim to increased frequency of his symptoms, the SECAF Personnel Board commented correctly that the severity of these symptoms was not sufficient to warrant a higher rating of 30%, and that his duty performance was not severely impacted by his problem.  The DVA, on the other hand, interpreted the VASRD literally, as is often the case, to allow a higher percentage disability level.

The AFBCMR Medical Consultant indicated that the relative lack of significant events and the few days lost due to illness were felt to justify no more than the award granted.  There is no evidence to support a higher rating at the time of permanent disposition, and changes in governing documents (i.e., the VASRD) that occur after such disposition should not affect conclusions reached prior to such changes.  The AFBCMR Medical Consultant stated that the real test of level of disability, in this case, was the relative lack of incapacitation experienced by the applicant.  This is clearly exemplified in the extension of his retirement date for the convenience of the government, an extension which, parenthetically, allowed applicant the benefit of a new year’s increase in retirement salary compensation.  The AFBCMR Medical Consultant is of the opinion that no change in the records is warranted and the application should be denied (Exhibit C).

The Physical Disability Division, HQ AFPC/DPPD, stated that a Medical Evaluation Board (MEB) convened on 17 Jun 97 and the applicant was referred to the Informal Physical Evaluation Board (IPEB).  Upon reviewing the MEB, the IPEB examined the preponderance of evidence and found the applicant unfit for “paroxysmal atrial fibrillation.”  His medical conditions for gout and hypertension were also considered but not found unfitting at the time of his MEB.  Shortly thereafter, the IPEB recommended the applicant be permanently retired with a 10% disability rating.  The applicant disagreed with the findings and recommendation and requested a formal hearing of his case.  On 4 Sep 97, the applicant, with the assistance of legal counsel, met the Formal Physical Evaluation Board (FPEB).  Following testimony and a thorough review of the medical evidence, which included a board-directed consult by the Department of Cardiology at Wilford Hall Medical Center at Lackland AFB, the FPEB confirmed the findings and recommendation of the IPEB and once again recommended that the applicant be permanently retired, with a 10% disability rating.  In the FPEB’s comments, they noted that the applicant had consistently ignored his physicians’ recommendations as far back as Mar 95, in regard to his weight loss, dietary changes and medication changes.  The FPEB also recommended that any review by a higher authority, with the intention of raising his level of disability above 10%, should carefully consider an appropriate deduction for non-compliance.  The applicant disagreed with the FPEB’s findings and recommendation and elected to submit a written rebuttal to the Secretary of the Air Force Personnel Council (SAFPC) requesting permanent retirement, with a 30% disability rating.

DPPD stated that following an extensive review of the medical evidence, SAFPC decided to concur with the IPEB and FPEB recommendations for a final disposition of permanent retirement, with a 10% disability rating.  Subsequently, SAFPC also extended the applicant’s retirement from 10 Dec 97 to 10 Jan 98 as an exception to policy due to operational commitments considered in the best interest of the Air Force.

DPPD indicated that a DVA decision rating, dated 5 Dec 99, reflects that the applicant is currently being rated for PAF and hypertension at 30% and 10% disabling for a combined compensable disability rating of 40%.

DPPD stated that records show that the regulations that govern the DVA schedule for rating disabilities for the cardiovascular system were revised 12 Jan 98.  Prior to that date, an evaluation of 30% was assigned for severe, frequent attacks.  Effective 12 Jan 98, and evaluation of 30% is assigned if there is PAF or other supraventriculr tachycardia, with more than four episodes per year documented by ECG or Holter monitor.  DVA records indicate applicant’s disability rating was resolved giving reasonable doubt in the favor of the patient in which they interpreted the severity of his medical condition differently than Air Force reviewing authorities at the time of his MEB.  In the case of the applicant’s MEB being adjudicated by the PEB, the new DVA rating referred to was effective 12 Jan 98 and was neither in existence nor effective at the time of his disability processing/MEB.  

Following a thorough review of the applicant’s case file, DPPD determined the applicant was treated fairly throughout the military disability evaluation process, that he was properly rated under the Federal disability guidelines, in effect at the time of his MEB, and that he was afforded a full and fair hearing as required under disability laws and policy.  DPPD recommended the applicant’s request be denied.  The applicant has not submitted any material or documentation to show he was improperly rated or processed under the provisions of military disability laws and policy at the time of his permanent disability retirement.

A complete copy of this evaluation is appended at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on 25 May 01 for review and response.  As of this date, no response has been received by this office (Exhibit E).
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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  After a thorough review of the evidence of record and applicant’s submission, the Board majority is unpersuaded that an increase in the applicant’s disability rating is warranted.  It is the Board majority’s opinion that the applicant’s disability case was properly evaluated, appropriately rated and received full and fair consideration under the appropriate Air Force instruction.  All levels of review considered the medical record in assessing the severity and frequency of the applicant’s medical condition.  The Board majority is not convinced by the evidence presented that, at the time of permanent disposition, the applicant’s medical condition was misdiagnosed by Air Force medical personnel, which included a board-directed consult by the Department of Cardiology at Wilford Hall Medical Center, or that his case was not processed properly.  The Board majority therefore agrees with the opinions and recommendations of the respective Air Force offices and adopts their rationale as the basis for concluding that the applicant has not been the victim of an error or injustice.  In addition, it was noted that “reasonable doubt was resolved in the applicant’s favor” when the Department of Veterans Affairs (DVA) assigned the 30 percent evaluation.  In view of the foregoing and absent sufficient evidence to the contrary, the Board majority finds no compelling basis to recommend favorable action on his request.
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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.
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The following members of the Board considered this application in Executive Session on 19 July 2001, under the provisions of AFI 36-2603:

	            Vice Chair
	            Member
	            Member

Mr.    and Ms.    voted to deny the applicant's request.  Mr.  voted to grant the applicant's request and submitted a minority report.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 Jan 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant, dated 1 May 01.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 16 May 01.
   Exhibit E.  Letter, SAF/MIBR, dated 25 May 01.
   Exhibit F.  Minority Report.

                                   
                                   Vice Chair

						July 26, 2001

MEMORANDUM FOR THE 	EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
			CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  APPLICANT

	After reviewing the evidence presented, I disagree with the conclusions drawn by the majority of the Board and recommend the applicant’s disability rating be increased to 30 percent.

	The advisories from the AFBCMR Medical Consultant and HQ AFPC/DPPD all stress that the applicant was properly rated through the Air Force disability evaluation process; however, I believe there are additional issues that need to be taken into consideration and which leads me to the conclusion that a grant of his request is in order.  Specifically, the evidence shows the applicant had frequent attacks requiring additional time off.  In addition to the eight days of work the Formal Physical Evaluation Board (FPEB) stated he missed, no mention was made of the 40 or so times during his last year that he had to leave work early or rest in his office because of his medical condition.  The applicant’s absenteeism is substantiated by the statement from his commander and the rater’s comments on his Officer Performance Reports (OPRs) closing 26 Jan 97 and 13 Jun 97.  Further, just two days after the applicant’s retirement, the Department of Veterans Affairs (DVA) determined the applicant should be awarded a 30 percent disability rating based on the evidence showing the applicant having frequent attacks; i.e., more than four episodes per year documented by ECG or Holter monitor.  As indicated in the DVA’s Rating Decision, their 30 percent was assigned (under either the old or new law) in accordance with the criteria specified in the Veterans Administration Schedule for Rating Disabilities (VASRD). While we are not of course bound by the DVA’s Rating Decision, it has probative value in this case because it relates to the period in which the applicant was on active duty - not, which is often the case, to a period several years later after conditions have been aggravated.

	Accordingly, in view of the foregoing, I believe the applicant’s medical condition at the time of his retirement warrants a higher disability rating.

		
		Panel Member

AFBCMR 01-00160

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
		CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT
 
	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.