RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-00222

XXXXXXXXXXXXXXXXXX				COUNSEL: XXXXX

XXX-XX-XXXX				     HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His disability rating be increased from 30% to 100%.

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APPLICANT CONTENDS THAT:

He should be given an increase in his 30% disability rating to 100% because he suffered a lacunar stroke while he was still serving on active duty. 

In support of his application, he provides copies of medical records and a copy of the Physical Evaluation Board (PEB) results.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 21 July 1971, the applicant enlisted in the Regular Air Force at the age of 18 in the grade of airman basic (E-1) for a period of six years.  He was progressively promoted to the rank of staff sergeant (E-5) effective and with a date of rank of 1 November 1976.  The applicant was honorably discharged on 20 July 1977 for completion of his term of service.  On 21 July 1977, he enlisted in the Air Force Reserve and served in enlisted status until 21 June 1982.  The applicant was tendered and accepted a Reserve commission as a first lieutenant on 19 February 1987 and was voluntarily ordered to extended active duty on 3 October 1988.  He was progressively promoted to the grade of major effective and with a date of rank of 1 September 1994. 

On 15 April 1999, the applicant was involved in a motor vehicle accident and sustained a whiplash injury resulting in chronic pain of his neck and upper back.  Associated with his persistent myofascial pain (pain of the soft tissues of the neck and upper back) he developed symptoms of depression diagnosed as Major Depressive Disorder and it was indicated that he was unable to perform his duties for over a year.  The applicant was referred for consideration by a medical evaluation board (MEB) on 8 June 2000 for major depression; moderate, degenerative disc disease C4-5-6-7; and chronic myofascial pain syndrome.  The MEB recommended that an Informal Physical Evaluation Board (IPEB) consider his case.  The IPEB was convened on 20 June 2000 and found the applicant was unfit due to “major depressive disorder secondary to myofascial pain syndrome associated with degenerative disc disease C4 through C7, definite social and industrial adaptability impairment” and recommended his name be placed on the Temporary Disability Retired List (TDRL) with a 30% disability rating.  On 22 June 2000, the applicant agreed with the findings and recommended disposition of the IPEB.  On 23 June 2000, the Secretary of the Air Force directed that the applicant’s name be placed on the TDRL.  Orders dated 5 July 2000 announced the applicant’s relief from active duty on 2 October 2000 and his retirement because of physical disability, effective 3 October 2000, at which time, he would be credited with 18 years, 3 months and 16 days of active duty service and 24 years, 6 months and 15 days of service for pay.  At the time the applicant’s retirement orders were published, a disability retirement date calculator was accomplished with a workout date of 5 July 2000, calculating the applicant’s retirement date based on 20 days of permissive TDY, 20 days for processing, 39 days of unsaleable leave and 10 additional days of leave accrued during this period. 

On 14 July 2000, the applicant was hospitalized at a Naval Hospital for right arm and leg weakness, difficulty holding a cup, and right foot dragging.  He was diagnosed with a small stroke (lacunar infarct) and was discharged on 15 July 2000 with a stable physical examination.

The Department of Veterans Affairs (DVA) granted the applicant a temporary disability rating of 100% pending evaluation effective 1 November 2000 because of the history of his stroke.  On 13 December 2000, the applicant’s DVA rating was reduced from 100% to a combined rating of 50% owing to a change in his temporary rating for his stroke from 100% to 10%.  The 13 December 2000 DVA rating decision reported the applicant’s neurological exam showed normal motor and sensory exams, with intact strength and normal gait.

The applicant underwent TDRL reevaluation in January 2002.  After considering the applicant’s medical records, including information pertaining to the applicant’s treatment for the lacunar stroke, on 27 February 2002, the IPEB recommended the applicant be permanently retired because of physical disability with a compensable rating of 30% for major depressive disorder associated with myofascial pain.  On 20 March 2002, the applicant concurred with the findings of the IPEB.  On 27 March 2002, the Secretary of the Air Force directed that the applicant’s name be removed from the TDRL and that he be permanently retired because of physical disability.  On 16 April 2002 the applicant’s name was removed from the TDRL and he was retired in the grade of major with a compensable percentage of 30%.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change in the records is warranted.  The BCMR Medical Consultant states that the applicant appears to have achieved total or near total recovery from his lacunar stroke approximately one month after the event.  Had he not been already found unfit due to his depression and myofascial pain, it is very likely that his lacunar infarct would not have been found unfitting since he recovered almost completely.  Because of his excellent recovery and his years of service, an MEB purely for his stroke would have resulted in a return to duty decision.  It is the BCMR Medical Consultant’s opinion that action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.  Details of the BCMR Medical Consultant’s evaluation are at Exhibit C.

AFPC/DPPD recommends denial.  DPPD states, after reviewing the preponderance of evidence provided, they find no error or injustice occurred during the applicant’s process through the disability evaluation system (DES).  It is DPPD’s opinion that the applicant was treated fairly throughout the military DES process and that he was properly rated under federal disability guidelines at the time of his evaluation as required by federal law and policy.  DPPD states they find no reasons why the applicant’s record should be corrected to show an increase in his disability rating in accordance with military disability laws and policy.  DPPD concurs with the BCMR Medical consultant’s assessment.  The DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 25 July 2003, copies of the Air Force evaluations were forwarded to the applicant 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.  After careful consideration of the applicant's request and the available evidence of record, we are not persuaded that the compensable rating for his permanent retirement because of physical disability in 2002 was improper or contrary to the provisions of the governing regulations, which implement the law, or to accepted medical principles.  The applicant believes he is entitled to an increase in his compensable rating because he suffered a stroke after he had entered permissive TDY/leave status in anticipation of his October 2000 temporary retirement date.  The evidence indicates he received treatment and compensation for this condition by the VA and that he had almost completely recovered by December 2000.  At the time of his TDRL reevaluation in 2002, the medical boards were well aware of the foregoing facts in reaching their determinations concerning the permanent disposition in this case and the applicant concurred with their recommendations.  In view of the above and absent persuasive evidence that the applicant was denied rights to which entitled, appropriate regulations were not followed, or appropriate standards were not applied, we agree with the opinions and recommendations of the BCMR Medical Consultant and the appropriate Air Force office and adopt their conclusions as our findings in the case.  Therefore, applicant's request 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 1 October 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-00222:

	Exhibit A.  DD Form 149, dated 12 Jan 03, with attachment.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, BCMR Medical Consultant, dtd 23 Jun 03. 
	Exhibit D.  Letter, AFPC/DPPD, dated 17 Jul 03. 
	Exhibit E.  Letter, SAF/MRBR, dated 25 Jul 03.