RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03494
		INDEX CODE:  108.00

		COUNSEL:  

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His disability rating be changed from 60 percent to the maximum 75 percent retroactive to the date of his retirement.

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APPLICANT CONTENDS THAT:

He was improperly rated and should have received the maximum rating of 75 percent.  This is based on the evaluations conducted by the Department of Veterans Affairs (DVA) prior to his retirement, which he did not receive until after the decision of the Secretary of the Air Force Personnel Council (SAF/MRBP).

In support of his appeal, the applicant provided a counsel’s brief, SAF/MRBP memorandum, DVA rating decision, and medical documentation from the DVA.

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

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STATEMENT OF FACTS:

Applicant was voluntarily ordered to extended active duty on 30 May 90 in the grade of second lieutenant.

On 9 Sep 02, a Medical Evaluation Board (MEB) convened and established a diagnosis of mood disorder with major depressive like feature due to chronic pain condition.  The MEB recommended the applicant’s case be referred to an Informal Physical Evaluation Board (IPEB).

On 24 Sep 02, an IPEB convened and established a diagnosis of severe left brachial plexopathy associated with mood disorder with depressive features.  The IPEB recommended the applicant be permanently retired with a disability rating of 30 percent.

On 27 Sep 02, the applicant disagreed with the findings and recommended disposition of the IPEB and demanded a formal hearing of the case.

On 22 Oct 02, a Formal Physical Evaluation Board (FPEB) convened and established a diagnosis of severe left brachial plexopathy associated with mood disorder with depressive features.  The FPEB recommended the applicant be permanently retired with a disability rating of 40 percent.  The applicant did not agree with the findings and recommended disposition of the FPEB.

On 6 Jan 03, SAF/MRBP under its delegated authority directed the applicant be permanently retired with a disability rating of 60 percent.

On 7 Mar 03, the applicant was relieved from active duty and, effective 8 Mar 03, permanently retired by reason of physical disability in the grade of captain, with a compensable disability rating of 60 percent.  He was credited with 12 years, 9 months, and 8 days of active service.

A Department of Veterans Affairs (DVA) Rating Decision, dated 2 Jun 03, indicates the applicant was granted service-connected disability compensation for brachial plexopathy and myeloneuropathy, severe (60 percent), major depressive disorder, severe (50 percent), degenerative joint disease, cervical spine, with recurrent torticollis (20 percent), degenerative joint disease, lumbosacral spine with sciatica (10 percent), and tinnitus (10 percent), for a total combined disability compensation rating of 90 percent.

The relevant facts pertaining to the applicant’s medical conditions are discussed in the advisory opinion provided by the AFBCMR Medical Consultant at Exhibit C.

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AIR FORCE EVALUATION:

The Medical Consultant recommended denial noting the applicant was permanently retired by reason of physical disability for left brachial plexopathy associated with depression with a 60 percent rating following his appeal to SAF/MRBP which essentially granted his request at the time of the appeal.  According to the Medical Consultant, the contribution of the co-morbid depression to the applicant’s impairment and level of unfitness for duty was reflected in his rating by associating it with the brachial plexopathy.  In his view, the action and disposition in this case were proper and equitable reflecting compliance with Air Force directives which implement the law.

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 12 May 04 for review and response (Exhibit D).  By letter, dated 21 Jul 04, the applicant’s counsel requested his case be temporarily withdrawn (Exhibit E).

Counsel subsequently provided a response to the Medical Consultant’s advisory opinion, indicating he believes the Board is confronted with a conflict between an Air Force medical evaluation and a board conclusion which considered the applicant’s depression to be mild and merely a “mood disorder” and a DVA evaluation that found it to be a severe, major depression, separate from the other medical condition.  It is counsel’s view that in such cases, when there is clearly conflicting evidence from two Federal agencies, the decision should be in favor of the service member who developed both of these conditions while serving his country.  It is clear the applicant had his career shortened considerably and his life functions have been permanently altered.

Counsel’s complete response, with attachment, is at Exhibit G.

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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.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Medical Consultant.  The evidence of record indicates the applicant was permanently retired by reason of physical disability with a 60 percent compensable rating after successfully appealing to have his rating increased from 30 and 40 percent, respectively, to the 60 percent rating.  He had requested his rating be increased between 60 and 70 percent.  He now requests his rating be increased to a maximum of 75 percent.  However, after a thorough review of facts and circumstances of this case, no evidence has been presented which shows to our satisfaction the applicant was improperly diagnosed or inappropriately rated.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we adopt the Medical Consultant’s rationale as the basis for our decision the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend granting the relief sought in this application.

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 issues 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 AFBCMR Docket Number BC-2003-03494 in Executive Session on 6 Oct 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 11 May 04.
    Exhibit D.  Letter, SAF/MRBR, dated 12 May 04.
    Exhibit E.  Letter, counsel, dated 21 Jul 04.
    Exhibit F.  Letter, AFBCMR, dated 29 Jul 04.
    Exhibit G.  Letter, counsel, dated 23 Sep 04, w/atch.