RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01206
		INDEX CODE:  108.02

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His disability rating at the time of his permanent retirement be increased from 40 to 100 percent to correspond with current Department of Veterans Affairs (DVA) and Social Security Administration evaluations.

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APPLICANT CONTENDS THAT:

Two different USAF Boards/Councils (Physical Evaluation Board (PEB) and Physical Review Council (PRC)) downgraded his psychiatric diagnosis of severe to first moderate (50%) and then to definite (30%).  He believes these actions were particularly unjust in that these Boards/Councils had no psychiatric/medical capabilities or responsibilities to change his psychiatric diagnosis.

In support of his request, the applicant submits a personal statement and additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 27 May 1957, the applicant was appointed a second lieutenant, Reserve of the Air Force, and was voluntarily ordered to extended active duty on 18 Aug 1957.  He was integrated into the Regular Air Force on 17 May 1960 and was progressively promoted to the grade of colonel, effective and with a date of rank of 6 Nov 1981.

A Medical Evaluation Board (MEB) was convened on 7 Feb 1983 and their diagnosis and findings were:  Acute severe bipolar disorder manic type.  Degree of impairment: Marked for military service, definite for civilian and industrial adaptability.  The MEB recommended referral to the Informal Physical Evaluation Board (IPEB) and transfer to VA Hospital.  Subsequent to being evaluated by the Informal Physical Evaluation Board (IPEB) and Formal Physical Evaluation Board (FPEB), the applicant was released from active duty under the provisions of AFR 35-4 (Placed on Temporary Disability Retired List (TDRL)).  He was serving in the grade of colonel, with 25 years, 9 months and 26 days of active service for retirement at the time of his release from active duty.  Effective 14 Jun 1983, the applicant’s name was placed on the Temporary Disability Retired List (TDRL), with a disability rating of 70 percent.  Following a period of observation, the applicant’s name was removed from the TDRL by Special Order No. ACD-1512, dated 12 Jun 1986; and, on 2 Jul 1986, he was retired in the grade of colonel, with a compensable rating of 40 percent for physical disability.  He was credited with a total of 26 years and 17 days of service for basic pay.

The Department of Veteran’s Administration records, dated 27 Jul 2000, reflect that the applicant was granted a combined disability rating of 70 percent from 22 Jul 1999.

The remaining 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 at Exhibits C and D.

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AIR FORCE EVALUATIONS:

The AFBCMR Medical Consultant recommends the application be denied.  The AFBCMR Medical Consultant stated that the applicant’s name was placed on the Temporary Disability Retired List (TDRL) on 13 Jun 1983 as a result of the unfitting condition Manic Depressive Disorder, with a disability rating of 70 percent.  Following a period of observation and treatment on TDRL status, he was permanently disability retired on 12 Jun 1986, with a disability rating of 40 percent for his condition and received pay in the grade of colonel, with over 26 years of service.

The AFBCMR Medical Consultant indicated that the fact the applicant’s disease was considered to be markedly improved, and in remission while he was compliant with his lithium therapy, no doubt heavily factored in the Formal Physical Evaluation Board’s (FPEB) decision.  Bipolar disorder is marked by a course of relapses and remissions.  The fact that the applicant’s disease was in “remission” on medication at the time of his final PEB would lead some to conclude that a lower disability rating would be appropriate; however, because the disease is chronic with relapses and remissions, the rating rendered by the PEB provides a level that accounts for this variability.  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 the military disability system, even though the condition may become better or worse.  However, Title 38, USC, authorizes the DVA to increase or decrease the DVA compensation ratings based upon the individual’s condition at the time of future evaluations.

The AFBCMR Medical Consultant stated that there is no evidence to support a higher rating at the time of permanent disposition.  The applicant’s case was properly evaluated, appropriately rated, and received full consideration under the provisions of AFR 35-4.  Action and disposition in this case are proper and reflect compliance with Air Force directives that implement the law.  The AFBCMR Medical Consultant’s evaluation is at Exhibit C.

The Physical Disability Division, HQ AFPC/DPPD, recommends the application be denied.  DPPD stated that the applicant was presented before a Medical Evaluation Board (MEB) and his case subsequently forwarded to the Informal Physical Evaluation Board (IPEB) for adjudication.  The IPEB determined the individual unfit for continued military service for his acute severe bipolar disorder and recommended that he be placed on the Temporary Disability Retired List (TDRL), with a 30 percent disability rating.  The applicant disagreed with the IPEB’s findings and recommendation and requested a formal hearing of his case.  On 18 Mar 1983, assisted by an appointed military counsel, the applicant met the Formal Physical Evaluation Board (FPEB).  Having reviewed additional medical data and testimony from the applicant, the FPEB determined his acute severe bipolar disorder (in remission on lithium) as 70 percent disabling.  The FPEB recommended that he be placed on the TDRL, with a combined compensable disability rating of 70 percent.  The applicant disagreed with the findings and recommendation of the FPEB and elected to submit a written rebuttal to the Secretary of the Air Force Personnel Council (SAFPC).  The SAFPC reviewed the preponderance of evidence provided and sustained the recommendation of the FPEB.  Consequently, the Council directed that the applicant be placed on the TDRL, with a 70 percent disability rating.  The applicant was placed on the TDRL effective 14 Jun 1983.  On the initial reexamination, because it was felt that his medical condition for bipolar disorder had not stabilized, the applicant was retained on the TDRL.  On the second reexamination, the IPEB reviewed the evidence and, based on a preponderance thereof, recommended to the Physical Review Council (PRC) that the applicant be permanently retired with a 60 percent disability rating.  The applicant agreed with the initial recommendation but the PRC later changed the IPEB’s social and industrial adaptability impairment ranking from “considerable” to “definite” and reduced the disability rating to 40 percent.  The applicant disagreed with the PRC’s findings and once again requested a formal hearing of his case.  On 24 Apr 1986, assisted by military counsel, the applicant met the FPEB.  The FPEB agreed with the PRC’s position; however, the applicant disagreed with these findings and recommendation and elected to submit another written rebuttal to the SAFPC.  SAFPC reviewed the evidence and upheld the findings and recommendation of the FPEB.  Consequently, the Council directed that the applicant be permanently retired, with a 40 percent disability rating, effective 2 Jul 1986.

It is DPPD’s opinion that the applicant was treated fairly throughout the military disability evaluation process, that he was properly rated under Federal disability guidelines at the time of his evaluation, and that he was afforded a full and fair hearing as required under military disability laws and policy.  Based on the above findings, DPPD is unaware of any reasons that would require that the applicant’s records be corrected to reflect an increase in his disability rating at the time of his permanent disability retirement.  DPPD agrees with the BCMR Medical Consultant’s assessment.  The DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and indicated that the issue to be determined by this action is whether a Board, without psychiatric representation, can legally downgrade a psychiatrist’s diagnosis from severe to definite.  The applicant’s complete submission is at Exhibit F.

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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 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 have thoroughly and carefully reviewed the applicant’s complete submission and the evidence of record in judging the merits of this case.  We are not unappreciative of the applicant’s contributions while on active duty nor do we dispute the unfortunate circumstances of his medical condition.  However, in our opinion, the applicant’s disability case was properly evaluated, appropriately rated and received full consideration under the appropriate Air Force regulations.  All levels of review considered the medical records in assessing the severity of the applicant’s unfitting medical condition.  It is our opinion that the assessment of the applicant’s medical condition was based on accepted medical principles at that particular point in time.  We are not persuaded by the evidence presented that, at the time permanent disposition was made, the applicant’s medical condition was misdiagnosed by Air Force medical personnel or that his case was not processed properly.  The applicant’s contentions regarding the composition of the evaluating boards have been noted.  However, other than his assertions, the applicant has presented no evidence which would lead the Board to believe that the board composition was contrary to the provisions of the governing regulation, which implemented the law, or that the duly appointed medical and physical evaluation board members were unable to make a reasonable determination of the degree of severity of his medical condition at that time.  We note that the Physical Review Council (PRC) indicated that the applicant’s condition was improved with treatment; therefore, they believed their revised findings and recommendations were more appropriate.  Noting that the applicant was progressing well while on medication, and, based on the evidence of record and testimony at the time, the Formal Physical Evaluation Board (FPEB) concurred with PRC’s findings and recommendation.  We further note that, after evaluating all the evidence presented, the Secretary of the Air Force Personnel Council (SAFPC) upheld the revised findings and recommendation of the FPEB.  Inasmuch as the FPEB and SAFPC did not disagree with PRC’s findings and recommendation, they apparently believed the applicant’s medical condition at that time did not warrant a higher disposition.  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.  The Department of Veterans Affairs (DVA), under Title 38, USC, is responsible for evaluating changes in service-connected medical conditions of eligible veterans after they are separated from the service.  In this respect, we note that the applicant has been awarded a service-connected disability rating, with compensation entitlement, from the appropriate agency (DVA) for his current medical condition.  We are in agreement with the opinions and recommendations of the respective Air Force offices and adopt the rationale expressed as the basis for concluding that the applicant has not been the victim of an error.  Accordingly, we find no compelling basis to recommend favorable action on his request.

4.  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 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.
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The following members of the Board considered this application in Executive Session on 13 February 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number 02-01206.

   Exhibit A.  DD Form 149, dated 2 Apr 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant,
               dated 1 Aug 02.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 15 Aug 02.
   Exhibit E.  Letter, SAF/MRBR, dated 23 Aug 02.
   Exhibit F.  Letter from Applicant, dated 4 Sep 02, w/atch.