RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00306
		INDEX CODE 108.02
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His 30% medical retirement from the Air Force be increased to the Department of Veterans Affairs (DVA) rating of 90%.

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APPLICANT CONTENDS THAT:

When he was first retired, the doctors did not know what his disability would be but knew he was not going to be worldwide deployable.  The true state of his disability is now known to be total and permanent.  When he was removed from the Temporary Disability Retirement List (TDRL) and placed on the Permanent Disability Retirement List (PDRL), his disability rating was lowered.  He appealed this rating but was told to take what was offered.  The medical board commander wanted to save the Air Force money by cutting disability ratings.  This was not critical at the time because he had a good job.  However, now he’s unable to work and needs the money to sustain his family.

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

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STATEMENT OF FACTS:

The applicant entered active duty on 8 May 80 and served as a navigator instructor in the grade of captain.  

On 26 Sep 86, he was evaluated by a rheumatologist for low back pain, right elbow and right shoulder pain.  At this point, he had at least a one-year history of low back pain with symptoms progressing despite medication.  

On 4 Apr 89, he was disqualified from continued flying duties as a navigator instructor because of continued pain.  He cross-trained as a computer systems integrator (software engineer) but continued to experience back and joint pain.  On 12 Feb 90, he was diagnosed with undifferentiated spondyloarthropathy.

On 13 Apr 90, a Medical Evaluation Board (MEB) convened and referred the applicant’s case to a Physical Evaluation Board (PEB).  An Informal PEB (IPEB) convened on 30 Apr 90 and recommended the applicant be returned to duty because he had an excellent duty performance history and no documented physical profile limitations that would reasonably preclude him from fulfilling the duties of his rank and office.  The applicant indicated his nonconcurrence on 7 May 90.  His supervisor advised he observed continuing degradation in the applicant’s physical condition.  

On 31 May 90, a Formal PEB (FPEB) diagnosed the applicant as having seronegative spondyloarthropathy involving the shoulders, left knee, right elbow and right sacroiliac joint, with associated fatigue.  He was found to be unfit for worldwide duty and recommended for placement on the TDRL at 40%.  The applicant concurred.

On 23 Jul 90, the applicant was placed on the TDRL in the grade of captain, with a 40% rating, after 10 years, 2 months and 16 days of active service.  

An IPEB convened on 19 Nov 91 and found the applicant’s condition improved but still unfitting.  The board found him sufficiently stable to warrant final disposition of permanent retirement at 30% for mechanical low back pain, versus undifferentiated spondyloarthropathy, and left knee pain secondary to seronegative spondyloarthropathy.  The applicant did not concur and requested an FPEB on 16 Dec 91.  However, on 31 Jan 92, the applicant waived his right to an FPEB.

The applicant was permanently retired in the grade of captain, effective 15 Feb 92, with a rating of 30%.

The applicant had been granted a DVA disability rating of 20% beginning with his placement on the TDRL in 1990 until 2002, when it was increased to 80%.  His DVA rating was increased to a total combined rating of 90% in May 03.

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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant asserts review of the applicant’s medical records provide no evidence that his condition was unstable and warranted continuation on the TDRL.  The fact that the applicant’s DVA disability rating was less than his Air Force rating for over ten years also supports these conclusions.  Members appearing before the FPEB are provided legal counsel, free of charge, who represents the interests of the member, not the Air Force.  The Consultant explains the differences between the DVA disability system, operating under Title 38, USC, and the Military Disability Evaluation System, operating under Title 10, USC.  Action and disposition in this case were proper and equitable and no change in the records is warranted.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 19 Nov 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 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.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded his disability retirement rating should be increased from 30% to 90%.  Although the Air Force rates disabilities in accordance with the VA Schedule for Rating Disabilities, the Air Force and the DVA are separate federal agencies and operate under different laws and policies, as explained by the Medical Consultant in his advisory.  The applicant has not shown his condition was unstable and warranted continuation on the TDRL.  In fact, for over 10 years after his permanent disability retirement from the Air Force, the applicant’s DVA disability rating was less than his Air Force rating.  The Air Force based its disability rating on the applicant’s condition in 1990.  In accordance with its purpose, the DVA has increased their ratings as the applicant’s unfitting condition deteriorated and/or he acquired additional medical problems.  The applicant was provided counsel during the Air Force proceedings and, other than his own allegations, submits no evidence demonstrating his disability rating was improperly and incorrectly determined.  We therefore agree with the recommendations of the Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has not sustained his burden of having suffered either an error or an injustice.  In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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 12 January 2005 under the provisions of AFI 36-2603:
The following documentary evidence relating to AFBCMR Docket Number BC-2004-00306 was considered:

  Exhibit A.  DD Form 149, dated 23 Jan 04, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFBCMR Medical Consultant, dated 10 Nov 04.
  Exhibit D.  Letter, SAF/MRBR, dated 19 Nov 04.

                                   Panel Chair