RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03630
		INDEX CODE:  108.02

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His disability rating of 50% be adjusted to 100%.

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APPLICANT CONTENDS THAT:

The Formal Physical Evaluation Board (FPEB) did not accurately rate his disability in accordance with Veterans Administration (VA) diagnostic codes.  He contends he should have been rated at 100% based on the type and severity of his disability.

In support of his appeal, the applicant has provided a personal statement, and copies of his VA medical examination, the results of the Physical Evaluation board (PEB), and results of a civilian examination.

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

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STATEMENT OF FACTS:

The applicant was permanently retired, medically, with disability from the ---- Air National Guard (-- ANG) while on extended active duty.  On 16 November 2000, he suffered a severe stroke that paralyzed the left side of his body, significantly impaired his ability to speak, and manifested some inattention or neglect of his left side environment.  A Medical Evaluation Board (MEB) evaluated him on 14 February 2002 the results of which led to a permanent retirement at 40% disability (30% for left arm and 20% for left leg).  He appealed the MEB decision to the Formal Physical Evaluation Board (FPEB) where he appeared on 11 April 2002.  His appeal was denied, however the FPEB did find that the applicant’s left arm percentage appeared to be low and recommended the percentage be raised to 40%, which resulted in a total disability percentage of 50%.  He submitted a rebuttal to the Secretary of the Air Force Personnel Council (SAFPC) in June 2002 and it was denied.  He was consequently medically retired at 50% disability effective 26 August 2002.  A subsequent Department of Veterans Affairs (DVA) rating decision, dated 18 December 2002, granted the applicant 100% disability based on the loss of use of one hand and one foot, effective 27 August 2002.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed this application and recommended the applicant’s disability rating be increased to 80%.  He noted that, in his opinion, the preponderance of the evidence supports consideration for a total disability rating of 100%.  The Medical Consultant observed the applicant suffered a severe stroke on 16 November 2000, was hospitalized for a week, was transferred to a rehabilitation hospital for five weeks of therapy, and after being discharged from the hospital received physical and speech therapy throughout 2001.  The Medical Consultant notes the applicant is left with residual deficits of severe loss of use of his left hand, right foot weakness requiring the use of a brace, and mild left leg weakness and associated spasticity limiting his ability to ambulate.  The muscle spasticity of his left leg is treated with delivery of an antispasmodic drug directly into the spinal canal with an implanted pump.  He is able to walk limited distances with the use of a cane and foot brace but uses a wheel chair for distances over 200 feet.  The Medical Consultant opines the applicant’s left hand and arm, as documented by numerous examinations, best approximates the 60% level using the Veteran’s Administration Schedule for Rating Disabilities (VASRD) code for radial nerve paralysis (8514).  He further opines that the residual neurological deficits of the left leg, manifested by diffuse weakness, more severe weakness of the foot and motor control abnormalities (spasticities) requiring intrathecal Baclofen is best described as moderately severe under VASRD code 8520, paralysis of sciatic nerve, at 40%.  These two ratings combined yield an 80% disability rating (76% rounded up).  The Medical Consultant notes that neither the DVA nor the AF addressed whether or not the cognitive effects of the stroke warranted disability rating under VASRD code 9305, vascular dementia.  He notes that an Air Force neurologist’s narrative summary described cognitive deficits severe enough to interfere with the applicant performing his usual duties.

The BCMR Medical Consultant’s complete evaluation is at Exhibit C.

AFPC/DPPD recommends denial.  They address the BCMR Medical Consultant’s advisory by stating that the PEB, under military disability laws, may only rate unfitting conditions based upon the individual’s medical status at the time of his or her MEB evaluation; in essence a snapshot of their condition at that time.  Nevertheless, DPPD forwarded the file to the informal PEB for additional review.  The PEB reviewed the evidence and determined the original assessments provided by the FPEB and SAFPC were indeed accurate and provided a fair evaluation of the individual’s medical condition at the time.  The IPEB pointed out that the applicant was able to perform his duties as a Booking Clerk in the ANG and that he continued to progress from both a recovery and rehabilitation standpoint until his eventual medical retirement.  Addressing the apparent disparity between DVA and AF disability ratings, DPPD notes that DVA may increase or decrease veteran’s service connected disability ratings throughout the veteran’s life span while the PEB is limited to the snapshot in time previously mentioned.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s wife provided the rebuttal in behalf of her husband, with his permission.  After review of the advisory opinions, he feels the BCMR Medical Consultant supports the request to increase his disability rating from 50% to 100%.  He feels the IPEB and FPEB “horribly underrated” his disability.  He disagrees with comments from the narrative summary of the DPPD evaluation indicating the applicant was able to continue performing his job as a Booking Clerk in the ANG and that he continued to progress both from a recovery and rehabilitation standpoint.  He was never able to return to his job and, while he did continue to progress in his recovery and rehabilitation, the IPEB and FPEB continue to underrate his disability.  Issue is also taken with page two of the advisory wherein it states the applicant was treated fairly throughout the military DES process.  He contends the Board (FPEB) denied his counsel’s request to attend the hearing but informed him the entire proceeding would be videotaped and he would be able to have access to that videotape in case he did not agree with the FPEB findings.  He is concerned that during the hearing there were discrepancies in many of the medical reports that were never addressed during the hearing.  When he requested the videotape, after the proceedings, he was told the FPEB could not find the tape.  After continuing requests for the videotape, he was finally notified by letter the videocassette recorder had malfunctioned on the day of his hearing.  His lawyer told him his was the only case the videocassette recorder failed to capture.  He continues to rely on a leg brace, a cane, and a wheelchair to get around.  He continues to have residual left neglect syndrome and requires assistance with any higher level functioning tasks.  He cannot maintain household finances due to his visual/spatial and cognitive deficits.  Further, he has absolutely no use of his left arm or hand.  He implores the Board to consider the opinion of the BCMR Medical Consultant and find that the evidence submitted clearly warrants a 100% disability rating.

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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.  After reviewing the applicant’s complete submission, evidence of record, and the BCMR Medical Consultant’s advisory, the Board is of the opinion relief is warranted.  The Board took note that as a result of a stroke, the applicant suffered severe loss of use of his left hand, right foot weakness requiring the use of a brace, and mild left leg weakness limiting his ability to walk.  The ratings for each, afforded by the VASRD codes 8514 (radial nerve paralysis) and 8520 (paralysis of the sciatic nerve) are 60% and 40% respectively, which yield a total disability rating of 80% (76% rounded up).  Further, we agree with the BCMR Medical Consultant that the applicant’s record should have been evaluated by either DVA or AF with respect to whether or not the cognitive effects of his stroke (VASRD code 9305 vascular dementia) warranted a disability rating which could have raise his combine rating to 80%, and that a total disability rating at 100% is supportable by the preponderance of the evidence.  Therefore, we recommend the applicant's records be corrected as indicated below. 

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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 at the time of his permanent retirement for physical disability on 26 August 2002, he was assigned a combined compensable rating of 100% for radial nerve paralysis VASRD code 8514, paralysis of the siactic nerve VASRD code 8520 and vascular dementia VASRD code 9305.

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The following members of the Board considered this application in Executive Session on 22 October 2003, under the provisions of AFI 36‑2603:

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

    Exhibit A.  DD Form 149, dated 7 Nov 02, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 30 Jun 03.
    Exhibit D.  Letter, AFOC/DPPD, dated 12 Aug 03.
    Exhibit E.  Letter, SAF/MRBR, dated 22 Aug 03.
    Exhibit F.  Letter, Rebuttal, dated 14 Sep 03, w/atchs.

 DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary

AFBCMR BC-2002-03630

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 APPLICANT, be corrected to show that at the time of his permanent retirement for physical disability on 26 August 2002, he was assigned a combined compensable rating of 100% for radial nerve paralysis VASRD code 8514, paralysis of the siactic nerve VASRD code 8520 and vascular dementia VASRD code 9305.