RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00019
		INDEX CODE:  108.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he was permanently retired by reason of physical disability with a compensable rating of 50 percent, rather than 30 percent.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Department of Veterans Affairs (DVA) increased his disability rating for his left hip replacement from 30 percent to 50 percent.  They made this determination based upon his official Air Force records.  The DVA found that his condition had increased in severity.  He believes the Air Force incorrectly and unjustly denied him equitable disability compensation.

In support of his appeal, the applicant provided an expanded statement, documentation pertaining to his disability retirement, and his DVA rating.

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

_________________________________________________________________

STATEMENT OF FACTS:

Available documentation indicates the applicant was relieved from active duty and his name was placed on the Temporary Disability Retired List (TDRL), effective 22 Jul 97, in the grade of lieutenant colonel, with a compensable disability rating of 50 percent, after he was diagnosed with severe avascular necrosis, left, hip, status post 12 Dec 96 total hip arthroplasty.  He was credited with 24 years, 10 months, and 2 days of active service.

On 5 Aug 99, the Secretary of the Air Force Personnel Council (SAFPC) under its delegated authority directed that the applicant’s name be removed from the TDRL under the provisions of 10 USC 1210, and he be permanently retired with a compensable disability rating of 30 percent under the provisions of 10 USC 1201.

On 14 Sep 99, the applicant’s name was removed from the TDRL and he was permanently retired in the grade of lieutenant colonel, with a compensable disability rating of 30 percent.  He is receiving retired pay based on length of service (over 60 percent) since that results in a higher pay than if based on the disability rating (30 percent).

A Department of Veterans Affairs (DVA) Rating Decision, dated 15 Sep 99, indicates the applicant’s service-connected disability compensation for avascular necrosis of the left hip femoral head with residual scarring was increased from 30 percent to 50 percent.

_________________________________________________________________

AIR FORCE EVALUATION:

The Medical Consultant recommended denial noting the applicant was diagnosed with avascular necrosis of bone (interruption of blood supply to the bone resulting in the death of the bone followed by gradual breakdown of the bony portion of the joint structure) involving the left femoral head (thigh bone at the hip joint) in 1985 after a one to two year history of increasing, intermittent left hip pain.  The applicant underwent total hip replacement in Dec 96 with good result.  The applicant demonstrated good range of motion and no neuromuscular or functional deficits were documented other than the usual limitations placed on hip replacement patients to avoid activities that place undue stress on the prosthesis.  The minimum Veterans Administration Schedule for Rating Disabilities (VASRD) rating for hip replacement is 30 percent.  To receive a rating of 50 percent, there should be "moderately severe residuals of weakness, pain or limitation of motion.”  The Medical Consultant indicated that available documentation did not show the presence of moderately severe residuals of weakness, pain or limitation motion, rather, only mild residuals were documented.  If the applicant's hip condition were to be rated on loss of range of motion, a rating of zero percent would result.  Because there was a prosthesis present with the associated limitations inherent in all hip replacements, a minimum rating of 30 percent was stipulated in the VASRD.

The Medical Consultant stated the military service disability system, operating under Title 10, and the DVA disability system. operating under Title 38, are complementary systems not intended to be duplicative.  Operating under different laws with a different purpose, adjudication decisions made by the Department of the Defense (DoD) under Title 10 and the DVA under Title 38 are not determinative of the issues involved in the other.

In the Medical Consultant’s view, the action and disposition in this case were proper and equitable reflecting compliance with the Air Force directives that implement in the law, and that no change in the records is warranted.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 28 May 04 for review and response (Exhibit D).  By letter, dated 2 Jun 04, the applicant requested his case be temporarily withdrawn (Exhibit E).

Applicant subsequently provided a response to the Medical Consultant’s advisory opinion indicating he believes that clear evidence in the form of medical evaluations and the DVA disability rating of 50 percent because of his left hip replacement compels the Board to find in his favor.  In his view, a disability rating of 50 percent is the proper and fair rating for his disability.

Applicant’s complete response, with attachments, is at Exhibit G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

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 30 percent compensable rating.  He now requests his disability rating be increased to 50 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.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2004-00019 in Executive Session on 3 Feb 05, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 Dec 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 25 May 04.
    Exhibit D.  Letter, SAF/MRBR, dated 28 May 04.
    Exhibit E.  Letter, applicant, dated 2 Jun 04.
    Exhibit F.  Letter, AFBCMR, dated 7 Jun 04.
    Exhibit G.  Letter, applicant, dated 17 Nov 04, w/atchs.

                                   Chair