RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03279
		INDEX CODE:  108.02
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His disability rating be increased to 80 percent.

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APPLICANT CONTENDS THAT:

His disability processing and assigned rating were not accomplished fairly and the disability evaluation system (DES) is unfair and flawed.  His neurologist stated that his condition had changed from a relapsing-remitting Multiple Sclerosis (MS) to a secondary-progressive MS and placed him on the Temporary Disability Retired List (TDRL).  This clearly shows a continuing deterioration of his condition.  His neurologist at the Veterans Administration (VA) hospital stated that his condition is worsening as well.  The Air Force stated in a letter to his Congressman that his condition is permanent and relatively stable according to guidelines.  However, his condition is permanent but definitely not stable.  It seems that the Medical Evaluation Board (MEB) did not take into consideration his neurologist's views when they made their decision.  They chose the least rating that was allowed by the Veterans Administration Schedule for Rating Disabilities (VASRD).  He did not challenge the Air Force decision to place him on the TDRL at 30 percent because he thought if his condition worsened the rating would increase.  However, when he was placed on the permanent disability retirement list he was rated at only 30 percent.  After his challenge of that decision, his rating was increased to 50 percent.  Because of his deteriorating condition his rating should have been no less than 80 percent.  

In making their determinations, the MEB follows regulations and guidelines and does not seem to look at a person's injury or illness as a whole, which is unfair to the person being evaluated.  The MEB should look at the long-term prospects and future conditions that the injury or illness will lead to.  The MEB system does not take into consideration that there are a variety of illnesses that continue to deteriorate and will never stabilize or improve.  

In support of his request, applicant provided documentation associated with his MEB processing and copies of responses to Congressional inquiries.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 19 Nov 86 and was progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 1 Sep 92.

An MEB was convened on 16 May 00 and referred his case to an Informal Physical Evaluation Board (IPEB) with a diagnosis of MS.  On 7 Jun 00, the IPEB found him unfit for further military service and recommended that he be placed on the Temporary Disability Retired List (TDRL) with a combined compensable rating of 30 percent.  The applicant agreed with the findings and recommended disposition of the IPEB.  He was placed on the TDRL on 2 Aug 00.  A physical re-evaluation was conducted on 17 Jan 02.  On 21 Feb 02, the Air Force PEB recommended that the applicant be permanently retired from the Air Force with a combined disability rating of 30 percent.  The applicant did not agree with the recommendation and findings and requested a disability rating of 100 percent be assigned.  On 3 Apr 02, after a Formal PEB review, the Secretary of the Air Force Personnel Council (SAFPC), directed that he be permanently retired with a disability rating of 50 percent.  On 23 Apr 02, he was removed from the TDRL and retired in the grade of staff sergeant with a compensable rating of 50 percent.  He served 17 years, 8 months, and 13 days on active duty

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AIR FORCE EVALUATION:

The BCMR Medical Consultant states that the Board may reasonably choose to increase his disability rating to 60 percent.  The Medical Consultant states that MS is an autoimmune-based disease that results in damage to and loss of the outer lining of nerve cells in the brain and spinal cord resulting in disturbances of neurologic function.  The specific manifestations of the disease depend on the locations of the affected nervous tissue.  Common manifestations include weakness, clumsiness, loss of sensation, loss of bladder control, constipation, and visual impairment.  In more severe cases, cognitive dysfunction and seizures can occur.  There is tremendous variability in the severity and course over time between MS patients.  Some individuals may experience a single episode followed by lasting remission.  Others have recurrent disease with partial or complete recovery, while others experience progressive disease resulting in permanent neurologic deficits.  Some have severe disease rendering them bed-ridden.  A small number of MS patients have a rapidly progressive course leading to disability in multiple neurologic functions or death in a relatively short time after disease onset.  

The applicant presented with mild symptoms with an initially confusing clinical picture that was more suggestive of a peripheral nerve disorder but he was subsequently diagnosed with MS.  The records never definitively address whether the applicant's apparent peripheral nerve disorder actually existed as a separate diagnosis, or was in fact a part of the MS diagnosis.  Peripheral nerve involvement is not considered a characteristic of MS and the applicant had reported some symptoms of hand numbness possibly due to a peripheral nerve disorder for several years before the leg and arm weakness attributed to MS began.  At the time of his placement on TDRL his neurologic examination documented bilateral lower extremity weakness, spastic dysarthria, and milder upper extremity weakness associated with diffuse hyper-reflexia.  More recent examinations document absence of right arm and leg findings, but more severe involvement of the left leg and left arm.  He has never exhibited involvement of eye function, disturbances of cognitive function, or seizures.  Fecal incontinence has been a problem reported by the applicant.  Initially, he was thought to be demonstrating a relapsing/remitting pattern, however he appears to have a more slowly progressive pattern mostly involving the left leg and arm that is classified by his neurologists as the secondary progressive form.  The course of his MS has spanned approximately 6 years and has shown evidence of progression.  His clinical classification suggests he will continue to show slow gradual progression over many years with or without occasional relapses, minor remissions, and plateaus.  

Two issues must be addressed. First, the current Air Force disability rating, and secondly, whether his illness is "stable" as defined by DoD disability policy.  Disability rating of Multiple Sclerosis in the VA Schedule of Rating Disabilities ranges from a minimum of 30 percent to a maximum of 100%.  The minimum rating of 30% requires the presence of objective residual neurologic deficits.  There are only general guidelines that stipulate that disability "may be rated" from the minimum rating indicated to a maximum of 100% "in proportion to the impairment of motor, sensory, or mental function".  Functional factors to be considered include but are not limited to psychotic manifestations, speech disturbances, impairment of vision, tremors, complete or partial loss of use of one or more extremities, and visceral manifestations.  The guidance recommends taking into consideration ratings from other applicable sections of the VASRD, for example, for complete or partial functional loss of an extremity, reviewing the ratings under peripheral nerves.  There is no specific stipulation that the overall rating be exclusively of a mild (30%), moderate (50%), moderately severe (80%) or pronounced, progressive grave types (100%), but would appear to allow flexibility for finer increments of 10% depending on the myriad possible manifestations of multiple sclerosis.  

The applicant appears to have a moderately severe neurologic deficit involving his left leg affecting his ability to ambulate more than short distances and with an associated increased risk for falling.  His left hand and arm are mildly weak with loss of sensation and coordination limiting function, however he is right handed.  Within the full potential range of disease severity, the applicant has relatively mild to moderate deficits.  There is no documented seizure, visual impairment, or cognitive impairment, and he has full use of his dominant arm.  For most occupational activities he is quite limited.  There is no doubt that the applicant has speech difficulty but apparently not to the extent that effective communication is impaired.  When attempting to ascertain the applicant's occupational disability in a global fashion, different conclusions might be reached when considering what he can do with his unaffected functional abilities (vision, cognition, right arm and hand, and right leg), as opposed to what he cannot do with his affected functions (disabilities).  The VA has decided he is not a good candidate for vocational rehabilitation.  In this case, instead of applying a purely global assessment of functional disability (which has resulted in conflicting opinions), VASRD guidance also allows assessment by comparison to analogous VASRD codes to his residual deficits: in this case the left leg (sciatic nerve 8520) and left arm (all radicular groups 8513).  Using this approach, the Medical Consultant arrives at a combined rating of 60% (left leg moderately severe paralysis 40%, and moderate paralysis of left arm taking into account loss of coordination in addition to mild weakness, 30%; combining the ratings based on the Combined Ratings Table yields 58%).  The applicant's dysarthria appears to be noticeable, but functionally mild.  Rating under analogous code (paralysis of tenth cranial nerve 8210) requires moderate involvement to meet the minimum rating.  The applicant's complaint of continence has apparently not reached a severity sufficient to receive any more than passing mention by his VA neurologist.  Occasional moderate leakage correlates with a 10 percent rating.  Rating the incontinence at 10% would boost the combined rating only to 62%, thus would not result in an increase in a combined rating.  

The second issue to consider is whether his condition is stable as defined by DoD disability policies.  Air Force members are placed on the TDRL when they would be qualified for permanent disability retirement except for the fact that their disability is not of a permanent nature and not stable.  Members with disabilities such as MS are placed on TDRL status when their condition is considered "unstable" as defined by DoD instruction.  At any time prior to the 5 year limit on TDRL status, the PEB may permanently retire the member when in their judgment keeping the member on TDRL status for the full five years will not be likely to result in a higher or lower disability rating.  Once a permanent disposition is made, the disability rating is based on current disability and not based on future events.  Even in cases that remain on TDRL for the full five years allowed by law, the final rating is based on current status and not on an expectation of possible future events.  The applicant was placed on TDRL August 2000 at 30% and permanently retired February 2002 at 30% (now 50% per the Secretary of the Air Force Personnel Council).  Comparison of the Air Force neurology examinations of March 2000 and January 2002 finds little difference in objectively reported neurologic deficits; therefore it was reasonable for the IPEB to conclude that his MS was stable.  The applicant's clinical pattern of disease is the "secondary progressive" form.  Patients with this pattern experience gradual progression over years interspersed with apparent plateaus.  The applicant's DVA neurologist implied at the time of his letter that the applicant was clinically stable but planned more intensive therapy when he showed new evidence of progression.  No evidence is provided otherwise that his condition is unstable.  The Medical Consultant concurs that the applicant's condition has stabilized as defined by DoD policy.  The Medical Consultant, utilizing VASRD codes for specific residuals of left arm paralysis, left leg paralysis and incontinence arrived at a combined rating of 60% and concurs with the IPEB that his condition is stable as defined in DoD policy after 2 years on TDRL.  

The Medical Consultant evaluation is at Exhibit C.

AFPC/DPPD recommends denial.  DPPD states that the IPEB reviewed the case file and concurs with the BCMR Medical Consultant's assessment as pertains to the stability/permanency of his medical condition.  However, the IPEB notes the long-standing practice/precedent that MS is exclusively rated on a mild (30 percent), moderate (50 percent), moderately severe (80 percent), and pronounced grave (100 percent) basis.  This practice was agreed upon at the inter-service meetings of disability adjudicators and is accepted throughout DoD.  To deviate from this standard without similar consensus would be inconsistent and arbitrary.  This standard was adopted because MS has systemic manifestations and individually rating the many residual symptoms would be tantamount to pyramiding, which is prohibited.  It is important to note that disability evaluations are based on the member's condition at the time of evaluation.  All determinations should be based on his condition as of 1 Apr 02.  It appears as though the Medical Consultant bases his proposed rating on information subsequent to SAFPC's decision.  While that practice is permitted under the policies/statutes applicable to the Department of Veterans Affairs (DVA) it would be contrary to statutes/policies applicable to DoD.  The IPEB understands SAFPC's rationale cited in its assessment that the applicant's condition rated between 30 and 50 percent.  As such, the final rating was decided in favor of the applicant.  

The applicant was treated fairly throughout the DES process and was rated properly under Federal disability guidelines.  DPD finds no grounds why the Secretarial decision should be overturned and why he should be awarded a higher disability rating.  The DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 9 May 03 for review and comment within 30 days.  As of this date, this office has received no response.

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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 error or injustice that would warrant an increase of the applicant's disability rating.  Evidence has not been presented which would lead us to believe that the applicant's disability processing and the rating he received at final disposition were contrary to the governing Air Force Instructions which implements the law.  We are not persuaded that the appropriate standards of policy were not applied, that the applicant was denied rights to which he was entitled, or that he was treated differently than other similarly situated individuals.  We took notice of his complete submission in judging the merits of the case, to include the differing opinions of the Air Force evaluators; however, we agree with the opinion and recommendation of the Air Force Physical Disability Division and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  We are compelled to note that the Air Force is required to rate an individual's disability at the time of evaluation.  The DVA operates under a totally separate system with a different statutory basis.  In this respect, we believe that the Air Force appropriately considered and rated the applicant's condition at the time of disposition.  The DVA rates for any and all service connected conditions to the degree in which they interfere with future employability, without consideration of fitness.  Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 AFBCMR Docket Number BC-2002-03279 in Executive Session on 17 Jun 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Oct 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 12 Mar 03.
    Exhibit D.  Letter, AFPC/DPPD, dated 30 Apr 03.
    Exhibit E.  Letter, SAF/MRBR, dated 9 May 03.