RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02018
		INDEX CODE:  136.00

		COUNSEL:  ANTHONY W. WALLUK

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her records be corrected to show she was not discharged with severance pay but was permanently retired because of physical disability with a minimal combined compensable rating of 50% but more appropriately 70%.

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APPLICANT CONTENDS THAT:

Based on a Department of Veterans Affairs (DVA) Rating Decision, dated 31 January 2000, which initially rates her service-connected medical conditions for a combined compensable disability rating 30% from 30 April 1998 and 50% from 4 October 1999, her conditions were not appropriately rated by the Air Force.  Therefore, her discharge with severance pay should be set aside and the findings of the Formal Physical Evaluation Board (FPEB) and the Personnel Council should be replaced with findings that accurately reflect the evidence in this case.

In support of her application, the applicant provided a brief by her counsel, and copies of medical records and documents associated with the Air Force and DVA processing of and decisions in her case.  The applicant's complete submission, with attachments is at Exhibit A.

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STATEMENT OF FACTS:

The applicant contracted her initial enlistment in the Regular Air Force on 29 October 1984.  She continued to enlist and serve on active duty until 29 April 1998, at which time, she was honorably relieved from active duty and her name was placed on the Temporary Disability Retired List (TDRL) in the grade of staff sergeant.  She had served 13 years, 6 months and 1 day on active duty.

The applicant’s retirement had its basis in the findings of an Informal PEB (IPEB) that the applicant was unfit because of physical disability, and that her unfitting conditions which were compensable or ratable were “Pain, Left Knee, associated with cyhrondromalacia of patello-femoral joint and lateral compartment” and “Migraine Headaches,” the former rated at 20% and the latter rated at 10% for a combined rating of 30 percent.  The applicant concurred with the findings and recommended disposition of the IPEB.

On 10 January 2000, the applicant’s name was removed and she was discharged by reason of physical disability with entitlement to severance pay.  Her discharge had its basis in the approved findings of an FPEB that her unfitting conditions were ratable at 10% each for a combined compensable rating of 20%.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military personnel and medical records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C, D and G.

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AIR FORCE EVALUATION:

The Chief Medical Consultant, AFBCMR, reviewed the application and states that the applicant and counsel continue their previous line of rebuttal that has been considered by both the Formal PEB and the SAF Personnel Council in arriving at their recommendations.  No new medical evidence is presented that would lead one to consider changing applicant’s separation to a medical disability retirement.  It is noted that the frequency of headaches, upon which they propose added disability compensation, was likely affected by applicant discontinuing prescribed medication some 3 months before undergoing her TDRL evaluation in August 1999.  The present appeal does not support a change to a medical disability retirement.  Once an individual has been declared unfit, the Service Secretaries are required by law to rate the condition based upon the degree of disability at the time of permanent disposition and not upon the possibility of future events.  No change in military disability ratings can occur after permanent disposition under the rules of military disability system, even though the condition may become better or worse.  However, Title 38, USC authorizes the VA to increase or decrease the VA compensation ratings based upon the individual’s condition at the time of future evaluations.  The BCMR Medical Consultant is of the opinion that no change in the records is warranted and the application should be denied.  A complete copy of the evaluation is attached at Exhibit C.

AFPC/DPPD reviewed the application and states that the medical aspects of this case are fully explained by the Medical Consultant; they agree with his history.  Therefore, they recommend denial of applicant’s request.  A complete copy of their evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for applicant states that in spite of all of the unrefuted evidence establishing the severity of the applicant’s symptoms, no one at the informal PEB, the formal PEB, the medical consultant or at AFPC addresses the facts that have presented in this case.  All these advisories do is say “we agree with what the Air Force has done in this case.”  Counsel questions how they can agree without addressing and dismissing the factual evidence.

It is very well documented that the applicant’s knee has required four surgeries, she is required to walk with a knee brace at all times, her Air Force supervisor stated in detail how her duties were impacted, and her current supervisor stated that it continues to cause problems at work with frequent absences.  There was no improvement in her condition while she was on the TDRL (unless all the reviewers consider one additional surgery to be an improvement over her having had three surgeries prior to the TDRL).  The VA at the time of her separation, using the exact same criteria and standards that the Air Force uses considered the severity of the knee injury to justify a total of 30% (20% plus 10%).  The VA justified their decision in two solid pages of narrative (see exhibit 1 to this response).  The Air Force IPEB simply said “she has improved,” the FPEB gave four lines of rationale saying that she hasn’t missed much work, disputing without evidentiary basis her level of discomfort and instability and then “argu[ing] that her knee is best described as no more than slight.”  That argument simply is not based on the facts in the case.  The BCMR medical advisory simply states that the decision is well documented.  The AFPC advisory essentially says the same thing, “we agree with what they said.”  No one disputes or refutes what the VA found, using the same standards and criteria as the Air Force.  In the interest of brevity counsel stated he will not recite the VA findings at page 3 of their report, but those findings are clearly inconsistent with a determination that this knee, operated on 4 times, is slightly impaired.

The documentation in the file clearly shows that the applicant’s migraines exceed the criteria for even a 30% rating.  It is undisputed that she has debilitating migraines 2-3 times per month.  The rating tables require only a history of one per month to be rated at 30%.  The FPEB believed that if she didn’t miss work for the migraines they didn’t exist or didn’t count, yet she testifies that she was able to exchange shifts with other workers rather than miss work.  Again, the amount of time missed from work is nowhere in any criteria.  The criteria are frequency and severity of the attacks.  There is no evidence in the record to rebut or dispute that she has these migraines at this level.  The Medical Consultant surmises, again with no documentation or evidence in the record, that her headaches are the result of her discontinuing medication.  The evidence shows that she was taking the medication throughout the first year and a half of her TDRL and they reduced the migraines from a 5-6 level to 2-3.  The fact that she discontinued the medication when it failed to further reduce the headaches below the 2-3 level after 18 months does not in any way impugn the fact that the do exist and are documented.  No other evidence in the record, suggests non-compliance as a reason for reducing her rating.  Neither the TDRL doctors nor either PEB saw a non-compliance issue in the documentation and testimony they considered.  It is disingenuous for the Medical consultant to try to raise this issue without any evidence at this time merely to justify the erroneous action of the PEB.

The criteria for rating migraines found in 38 CFR Chapter 1, Part 4 is as follows:

8100 Migraine:
With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability………………50

With characteristic prostrating attacks occurring on an average once a month over last several months……………………30

With characteristic prostrating attacks averaging one in 2 months over last several months…………………………10

With less frequent attacks……………………0

There is no evidence in the record to document the 10% finding that the PEB made.

Finally, neither advisory specifically addresses the issue of the tinnitus.  Counsel submits that the argument he made in the applicant’s submission does establish that this condition interfered with her duties as a communications installer.  The evidence in the record substantiates that argument.

Counsel maintains that the applicant was improperly rated by the PEB and these advisories do nothing to refute or rebut the evidence we have submitted.  The applicant requests that the BCMR grant her application.”

Counsel's complete response, with attachments, is attached at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant states that judging the severity and frequency of migraines for the assignment of a disability rating is difficult since the primary source of information is the subjective report by the patient.  Raters have little objective evidence to assess severity and frequency.  Such objective evidence of severity includes lost days from work, and emergency room visits.  The difference of opinion boils down to whether the applicant has “prostrating” migraine headaches as opposed to something less than prostrating, though those headaches may never the less be severe and limiting when the individual experiences them.  The intent of the VASRD in using the word “prostrating” was to convey the more extreme end of the spectrum of migraines and it in fact further clarifies the intent further by stating “Prostrating and prolonged attacks productive of severe economic inadaptability”.  It is the phrase regarding the severe loss of economic adaptability that points to the intent of the VASRD in assigning ratings for migraine.  Although the term prostrating alone may be open to broad interpretation, the combination of this term with economic impact requires rating disability for migraine based on two factors, severity, and economic inadaptability.  Both must be present and they must be related.  Headache and migraine headaches are conditions experienced commonly by many people.  When those headaches become so severe and prolonged (prostrating) so as to prohibit employment, then those migraines are disabling and ratable.  There are many individuals who experience severe migraine headaches, yet are fully employed and are thus not economically disabled by their headaches.  There are individuals who suffer with migraine headaches who are unemployed but their unemployed status is not due to their headaches, though some may claim they are unemployed due to migraine headaches.  There are some migraine sufferers whose condition is so severe as to cause severe economic inadaptability and thus are ratable using the guideline contained in the VASRD table for migraine headache.  The applicant is employed fulltime in her field of training and there is no evidence that at the time of her placement on TDRL status or the time of her permanent separation from the Air Force that her migraine headaches produced any economic inadaptability.  The applicant contends the frequency and severity of her headaches rates higher than the 10% awarded, but since there is no evidence of economic inadaptability a higher rating does not appear to be justified.  Therefore, the BCMR Medical Consultant is of the opinion that no change in the rating for migraine headache is warranted.

A complete copy of their evaluation is attached at Exhibit H.

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APPLICANT'S ADDITIONAL REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant submits that the criteria for the 50% rating on the headaches is very well documented.  The applicant has a history of the requisite number of debilitating attacks to justify the requested change.  The advisory does not dispute the frequency nor is there any refuting evidence anywhere in the voluminous file that has been presented.  Quite simply state, the Air Force and the VA have specific objective criteria that are clearly met in this case.

The advisory attempts to rely on an inaccurate perception of her prior work history while she was on the TDRL to belittle her true physical condition.  Even if their understanding of her history of missing work were correct, that argument is irrelevant.  The VA rates medical conditions that interfere with a member’s ability to work after they are retired.  The Air Force rates conditions that interfere with their military duty performance.  That this is true is reflected in the standard boilerplate advisories that the BCMR receives from HQ AFPC/DPPD.  An example of this is seen in the advisory from HQ AFPC/DPPD (at exhibit 2) in another case, cited here merely as an example of their reliance on this dichotomy for recommending denial in other cases.  It was previously determined that these conditions did interfere with applicant’s duty performance and that is why she was initially placed on the TDRL.  The only function that the FPEB had was to determine the current level of her disability after her period of observation on the TDRL as specified in the VASRD as again illustrated below.  Her condition did not improve while she was on the TDRL -- it worsened.

The documentation in the file clearly shows that applicant’s migraines exceed the criteria for even a 30% rating.  It is undisputed that she has debilitating migraines 2-3 times per month.  The rating tables require only a history of one per month to be rated at 30%.

The criteria for rating migraines found in 38 CFR Chapter 1, Part 4 is as follows:

8100 Migraine:
With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability………………50

With characteristic prostrating attacks occurring on an average once a month over last several months……………………30

With characteristic prostrating attacks averaging one in 2 months over last several months…………………………10

With less frequent attacks……………………0

Even if it were appropriate for the Air Force to consider the absences from her civilian job as controlling, that theory is very well rebutted in applicant’s attached statement (Exhibit 1).  She missed considerably more time from work than the 14 official sick days that she was allowed.  She should not be penalized for having severe migraine attacks on weekends when work is not an issue, nor should she be penalized because coworkers were kind enough to trade shifts with her for medical reasons.

Counsel submits that this new advisory adds nothing to the Air Force position that this application should be denied.  We again ask the BCMR to apply the required VA rating for the proven medical condition from which the applicant suffers.”

Counsel's complete response, with attachments, is attached at Exhibit I.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting an increase in the disability rating.  After reviewing the evidence of record, it appears that the applicant’s migraines were occurring more frequently then determine by the Air Force disability system.  We agree with the statement made by the Medical Consultant that the severity and frequency of migraines for the assignment of a disability rating is difficult.  However, based on the statements submitted by doctors and co-workers, we believe that the appropriate rating for her migraines should be 30%.  In view of the foregoing, and in an effort to offset any possibility of an injustice, we believe her records should be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting a disability rating of 50% or higher has requested.  While the additional documentation does support that her migraines occurred on an average of at least once a month for an extended period to warrant a rating of 30%, we do not believe that the applicant’s condition at the time she was discharged warrant a higher rater.  In the absence of evidence to the contrary, we do not recommend favorable action on her request for disability retirement with a rating of 50% or higher.

5.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.
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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

    a.  On 21 December 1999, competent authority determined that the rating for her unfitting condition pertaining to migraine headaches was 30 percent, rather than 10 percent.

    b.  On 10 January 2000, her name was placed on the Permanent Disability Retired List, with a combined compensable rating of 40%, rather than being discharged with entitlement to disability severance pay.
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The following members of the Board considered AFBCMR Docket Number 01-02018 in Executive Sessions on 20 March 2002 and 11 February 2003, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
              Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 25 Jun 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, Medical Consultant, dated 25 Sep 01.
   Exhibit D.  Letter, AFPC/DPPD, dated 1 Nov 01.
   Exhibit E.  Letter, SAF/MRBR, dated 9 Nov 01.
   Exhibit F.  Counsel’s Response, undated, w/atchs.
   Exhibit G.  Letter, BCMR Medical Consultant, dated 2 May 02.
   Exhibit H.  Letter, AFBCMR, dated 3 May 02.
   Exhibit I.  Counsel’s Response, undated, w/atchs.

                                   

AFBCMR 01-02018

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, be corrected to show that:

		    a.  On 21 December 1999, competent authority determined that the rating for her unfitting condition pertaining to migraine headaches was 30 percent, rather than 10 percent.

		    b.  On 10 January 2000, her name was placed on the Permanent Disability Retired List, with a combined compensable rating of 40%, rather than being discharged with entitlement to disability severance pay.