RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03621
		INDEX CODE:  108.07
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His service-connected medical conditions, residuals of surgical resection of a right sided acoustic neuroma including right sided deafness, right sided tinnitus, right facial nerve paralysis, and a 4X4cm skull defect, be assessed as combat related in order to qualify for compensation under the Combat Related Special Compensation (CRSC) Act.

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APPLICANT CONTENDS THAT:

His AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, line 10(b) is marked YES, as the disability did occur during a time of war in the line of duty.  His duties were air operations testing the war fighting capability of aircraft during war and simulating war.  Item 10(d) is marked N/A because he entered the Air Force prior to 25 Sep 75.  What the Air Force is telling him is that in no way an Air Force member can have a combat-related injury if they were medically retired and entered the Air Force prior to the date indicated on the form.  As a by product of the AF Form 356, his retirement orders indicate Disability Was the Direct Result of a Combat Related Injury - N/A.  During his 20-year career on the flightline, his Air Force Specialty was required to have an annual hearing test because of hazardous noise levels.  It should seem likely that his hearing and associated disability was a result of the hazardous noise levels.  He was exposed to hazardous noise in excess of safe operating levels.  He worked on turbine engines, diesel engines, air compressors, hydraulic test stands and an assortment of high frequency noise items in direct support of flying operations.  

In support of his request, applicant provided a personal statement, documentation associated with his disability processing, separation documents, his Department of Veterans Affairs (DVA) ratings decision, extracts from DoD Instruction 1332.38, and an excerpt from the National Defense Authorization Act for Fiscal Year 2003.  His complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 1 Nov 68.  He was progressively promoted to the grade of technical sergeant, having assumed that grade effective and with a date of rank of 1 Feb 87.  He served as a Combat Control Helper, as an Aircraft Control and Warning Systems Technician, and a Cable Splicing Specialist.  

An MEB was convened on 28 Apr 94 and referred his case to an Informal Physical Evaluation Board (IPEB) with a diagnosis of acoustic neuroma and chronic low back pain.  On 12 May 94, the IPEB found him unfit for further military service based on a diagnosis of acoustic neuroma and found his back pain not ratable.  The IPEB recommended permanent retirement with a combined compensable rating of 40%.  The applicant agreed with the findings and recommended disposition of the IPEB.  The Air Force PEB revised the findings and recommended he be returned to duty.  He disagreed with the recommendation and requested a formal hearing.  The FPEB recommended that the applicant be permanently retired from the Air Force with a combined disability rating of 70%.  The applicant concurred with the recommended findings.  On 15 Sep 94, he was retired in the grade of master sergeant with a compensable rating of 70%.  He served 20 years, 4 months, and 1 day on active duty

Current Department of Veterans Affairs (DVA) records reflect a combined compensable rating of 60% for his unfitting conditions.  

His CRSC application was disapproved on 11 Jul 03 based upon the fact that none of his service-connected medical conditions were determined to be combat-related or received during simulated war conditions/exercises.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states the medical summary provided at the time of his MEB revealed he had a history of acoustic neuroma.  He was initially presented with a three-year history of progressive right-sided hearing loss and a one year history of tinnitus.  Brainstem revoked responses revealed a retrocochlear lesion.  An MRI confirmed a 3 cm soft tissue mass of the right cerebellar pontine angle.  Surgical resection of the acoustic neuroma was performed on 22 Sep 93.  Residuals from the surgery included right-sided facial paralysis, right ear deafness, loss of sensation of the right side of his tongue, and tinnitus.  

He was treated fairly throughout the disability evaluation process and was properly rated under disability guidelines.  His service-connected medical conditions were not the results of a combat related injury.  

The DPPD 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 the applicant on 13 Feb 04 for review and comment within 30 days.  As of this date, this office has received no response.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  The Medical Consultant states his disabilities are the direct result of a tumor of the acoustic nerve and the residuals of surgery.  There is no relationship between the development of this tumor to combat, conditions simulating war, instrumentality of war, or hazardous duty.  The Medical Consultant Evaluation is at Exhibit E.

ODUSD(MPP)/Comp reviewed the applicant's request and concurs with the findings and recommendation of the BCMR Medical Consultant.  The ODUSD evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Copies of the additional Air Force evaluations were forwarded to the applicant on 28 Jul 04 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 a thorough review of the available evidence of record, it is our opinion that the service-connected medical conditions the applicant believes are combat-related were not incurred as the direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war, and therefore, do not qualify for compensation under the CRSC Act.  We agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of 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-2003-03621 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 22 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 6 Feb 04.
    Exhibit D.  Letter, SAF/MRBR, dated 13 Feb 04.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 23 Feb 04.
    Exhibit F.  Letter, ODUSD(MPP)/Comp, dated 21 Jul 04.
    Exhibit G.  Letter, SAF/MRBC, dated 28 Jul 04.