RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00050
		INDEX CODE:  108.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to reflect a disability rating of 60 percent, rather than 20 percent; and, that he was retired by reason of a physical disability, rather than discharged with severance pay.

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APPLICANT CONTENDS THAT:

He was incorrectly rated at 20 percent under Diagnostic Code 8520.  His symptoms more closely approximate the criteria for a 60 percent rating.

In support of his appeal, the applicant provided a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States, documentation from his medical records, and a memorandum from the Secretary of the Air Force Personnel Council.

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

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STATEMENT OF FACTS:

Applicant initially enlisted in the Regular Air Force on 19 Jul 95 for a period of four years in the grade of airman.

In Sep 99, the applicant fell on and fractured his left knee. He was appropriately treated but experienced persistent knee pain, and had temperature changes in the knee.  In addition to his knee problems, the applicant also experienced and was treated for depression.

On 10 Apr 02, an MEB convened and established a diagnosis of reflex sympathetic dystrophy, left lower extremity and left knee pain.  The MEB recommended that the applicant’s case be referred to an Informal Physical Evaluation Board (IPEB).

On 22 Apr 02, an IPEB convened and established a diagnosis of chronic left knee pain secondary to reflex sympathetic dystrophy, left lower extremity.  The IPEB recommended that the applicant be discharged with severance pay.

On 29 Apr 02, the applicant disagreed with the findings and recommended disposition of the IPEB and demanded a formal hearing of the case.

On 29 May 02, an FPEB convened and established a diagnosis of chronic left knee pain secondary to reflex sympathetic dystrophy, left lower extremity.  The FPEB recommended that the applicant be discharged with severance pay with a disability rating of 20 percent.  The applicant did not agree with the findings and recommended disposition of the FPEB.

On 17 Jul 02, the Secretary of the Air Force Personnel Council under its delegated authority directed that the applicant be discharged with severance pay with a disability rating of 20 percent.

On 9 Sep 02, the applicant was honorably discharged under the provisions of AFI 36-3208 (Disability, Severance Pay).  He was credited with 7 years, 1 month, and 21 days of active service.

A Department of Veterans Affairs (DVA) Rating Decision, dated 8 Apr 03, indicates that the applicant was granted service-connected disability compensation for left leg with muscle atrophy and with associated intermittent tremors, headaches, numbness, and pain in hips and low back pain (60 percent), major depressive disorder (50 percent), and tinnitus (10 percent), for a total combined disability compensation rating of 100 percent.

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AIR FORCE EVALUATION:

The Medical Consultant indicated that based on the preponderance of the evidence, the applicant suffered from depression with a social and industrial adaptability impairment based on an interpretation of the occupational details provided by his commander that supports a finding of job instability.  Under Department of Defense (DoD) policy, increased severity of symptoms due to transient stressors associated with the PEB and prospect of separation or retirement and relocation or reemployment will not be considered in determining the degree of impairment.  Further, DoD instructions allow for deduction in disability ratings by the PEBs for noncompliance with prescribed treatment if it has been clearly demonstrated that the servicemember was advised clearly and understandably of the medically proper course of treatment, therapy, medication, or restriction; and, that the servicemember’s failure or refusal was willful or negligent and not the result of mental disease or of physical inability to comply.  The FPEB concluded that had the applicant complied with recommended mental health care, his condition would have been considerably better.  The Medical Consultant agrees with that assessment, however, he opines that the applicant’s depression would still have warranted a separate rating of 10 percent resulting in a combined rating of 28 percent, rounded up to 30 percent.  The Medical Consultant is of the opinion that the records should be changed to show permanent disability retirement at 30 percent for reflex sympathetic dystrophy syndrome (20 percent, VASRD Code 8720-8799) and mood disorder not otherwise specified (10 percent, VASRD Code 9435).

A complete copy of the Medical Consultant’s evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 21 Nov 03 for review and response.  As of this date, no response has been received by this office (Exhibit D).

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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.  Having carefully reviewed this application, we agree with the recommendation of the Medical Consultant and adopt his rationale as the basis for our decision that the applicant has been the victim of an error or an injustice with regard to his disability rating.  We took note of the applicant’s request that his rating be increased from 20 percent to 60 percent.  However, after a thorough review of the facts and circumstances of this case, we agree with the Medical Consultant’s assessment that the applicant’s condition of depression would have warranted a separate rating of 10 percent.  This would have resulted in a combined rating of 28 percent, rounded up to 30 percent.  Accordingly, we recommend that the applicant’s records be corrected to reflect that he was permanently retired by reason of physical disability with a disability rating of 30 percent.  In our view, this is proper and fitting relief.

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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 8 Sep 02, he was found unfit to perform the duties of his office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; that the diagnoses in his case were reflex sympathetic dystrophy, VASRD Code 8720-8799, rated at 20 percent; and, mood disorder not otherwise specified, VASRD Code 9435, rated at 10 percent, for a combined compensable rating of 30 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and the disability was not received in line of duty as a direct result of armed conflict or caused by an instrumentality of war.

	b.  He was not honorably discharged under the provisions of AFI 36-3208 on 9 Sep 02 by reason of physical disability, with entitlement to severance pay, but, on that date, he was permanently retired by reason of physical disability with a 30 percent disability rating under the provisions of Title 10, USC, 1201 and AFI 36-3212.

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The following members of the Board considered AFBCMR Docket Number BC-2003-00050 in Executive Session on 13 Jan 04, 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 12 Sep 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, Medical Consultant, dated 5 Nov 03.
     Exhibit D.  Letter, SAF/MRBR, dated 21 Nov 03.

                                   

AFBCMR BC-2003-00050

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 8 Sep 02, he was found unfit to perform the duties of his office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; that the diagnoses in his case were reflex sympathetic dystrophy, VASRD Code 8720-8799, rated at 20 percent; and, mood disorder not otherwise specified, VASRD Code 9435, rated at 10 percent, for a combined compensable rating of 30 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and the disability was not received in line of duty as a direct result of armed conflict or caused by an instrumentality of war.

		b.  He was not honorably discharged under the provisions of AFI 36-3208 on 9 Sep 02 by reason of physical disability, with entitlement to severance pay, but, on that date, he was permanently retired by reason of physical disability with a 30 percent disability rating under the provisions of Title 10, USC, 1201 and AFI 36-3212.