RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02625
		INDEX NUMBER:  108.00
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  20 Feb 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

The 10% disability rating she was given when removed from the Temporary Disability Retired List (TDRL) on 14 Jul 04 be changed to a minimum of 30% entitling her to permanent medical retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a brief prepared by the Disabled American Veterans, the applicant contends that based on the criteria contained in the Department of Veterans Affairs (DVA) Schedule for Rating Disabilities (VASRD), the applicant is entitled to a minimum evaluation of 30%.

The Physical Evaluation Board (PEB) ignored the objective criteria contained in the VASRD and applied no more than mere conjecture or speculation at the time the Board was conducted.

In further support of her appeal, the applicant provides copies of the PEB documentation and a copy of the disability rating decision from the DVA.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 25 Apr 96.  On 11 Jul 02, a Medical Evaluation Board (MEB) diagnosed the applicant with allergic rhinitis, asthma, irritable bowel syndrome, and exceeding Military Weight Allowances.  The MEB referred the applicant to a PEB.  On 25 Jul 02, an informal PEB (IPEB) diagnosed the applicant with asthma with a 10% disability rating and with allergic rhinitis, determined to be noncompensable.  The IPEB found the applicant unfit and recommended she be discharged with severance pay with a 10% disability rating.

On 2 Aug 02, the applicant indicated on AF Form 1180, “Action on Physical Evaluation Board Findings and Recommended Disposition” that she did not agree with the findings and recommended disposition and requested a formal hearing.  On 3 Sep 02, a formal PEB (FPEB) was conducted.  The FPEB agreed with the earlier findings and recommendations of the IPEB.  On 4 Sep 02, the applicant indicated on the AF Form 1180 she did not agree with the findings and recommendations of the FPEB and desired to submit a written rebuttal.  The applicant submitted a written rebuttal dated 25 Sep 02 to the Secretary of the Air Force Personnel Council (SAFPC).

On 5 Nov 02, based on new information that was not available to the IPEB and FPEB, SAFPC diagnosed the applicant with asthma with a disability rating of 30% and recommended she be placed on the TDRL and reevaluated in one year.  Effective 13 Jan 03, the applicant was relieved from active duty and placed on the TDRL effective 14 Jan 03.  On 8 Jan 04, the applicant received a periodic evaluation.  As a result of the evaluation, the applicant was scheduled for continuing use of medications and follow-up with the attending physician.  

On 10 Feb 04, an IPEB was conducted on the applicant.  She was diagnosed with asthma with a 10% disability rating.  The IPEB recommended the applicant be discharged with severance pay.  On  5 Mar 04, the applicant indicated she did not agree with the recommended findings and requested to appear before a FPEB.  On 20 Apr 04, the FPEB agreed with the earlier recommendation of the IPEB.  On 20 Apr 04, the applicant indicated on the AF Form 1180 she did not agree with the findings and recommended disposition of the FPEB and that she desired to submit a rebuttal.  In a letter dated 3 May 04 the Disabled American Veterans submitted a rebuttal to SAFPC in behalf of the applicant.  

On 18 Jun 04, SAFPC directed the applicant be removed from the TDRL and discharged with severance pay with a disability rating of 10%.  SAFPC stated that the rationale for their decision was based on the applicant’s demonstrated civilian social and occupational impairment, in addition to her pulmonary function studies in the medicated state.  Consequently, SAFPC found the applicant’s successful fulltime college attendance and work-study employment, along with her “normal baseline spirometry” compelling evidence that her level of functional impairment fell within the parameters determined by two previous boards.  The applicant was removed from the TDRL and discharged with severance pay effective 14 Jul 04.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s request to change her Air Force disability rating.  The applicant contends the need for continued treatment including intermittent oral corticosteroids warrants a rating of at least 30%.  The Department of Defense (DoD) is required to use the VASRD as a guideline to rate disabilities that are unfitting for continued military service.  By policy outlined in DoD instruction 1332.39, the intent is to rate the degree of impairment in civilian occupational earning capacity.  DoD I 1332.39 states in paragraph 6.2, Higher of Two Evaluations, “When the circumstances of a case are such that two percentage evaluations could be applied, the higher percentage will be assigned only if the Service member’s disability more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.”  Rating guidance contained in the VASRD, Section 4.7, Higher of two evaluations, states, “Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.”  Using this guidance Physical Evaluation Boards take into account the results of pulmonary function testing, patterns of medication use, and evidence of occupational impairment when arriving at a rating, and not based solely on one factor.  It is noted that DVA ratings may vary from those granted by the DoD based on differing weighting and interpretation of evidence.  The PEBs adjudicated a 10% rating balancing the repeatedly normal pulmonary function test results, the requirement for treatment, and the evidence of occupational functional ability (absence of evidence of significant occupational impairment) in arriving at the rating, which is intended by policy to rate the degree of civilian occupational disability. Operating under different laws with a different purpose, determinations made by the DoD under Title 10 and the DVA under Title 38 are not determinative or binding on decisions made by the other.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The Disabled American Veterans National Service Officer (DAV NSO) responded to the Air Force evaluation on behalf of the applicant.  He states the Air Force PEB has determined that the applicant’s participation in school and a sheltered DVA work-study program was construed as gainful employment.  However, he asserts that the work-study program was established by the DVA to help eligible veterans earn extra income while attending school.  The applicant was only eligible to work a maximum of 25 hours per week and was not required to routinely report to a regular assignment.  He opines the applicant has shown both with medical evidence and testimony that her condition remains chronic and regulated with a strict medication regimen.

The DAV NSO opines that to ignore the applicant’s compliance with prescribed medications and need for emergency medical attention, given her chronic pulmonary disorder, and focus primarily on employment is not proper application of the law.  He further asserts the Air Force PEB has failed to resolve reasonable doubt in the applicant’s favor or apply the higher of two evaluations.  He states that since her placement on the TDRL, the applicant has progressively worsened to warrant a 30%, then 60%, evaluation by the DVA.

The complete response is at Exhibit F.

_________________________________________________________________

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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office 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.  Therefore, in the absence of evidence to the contrary, 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 Docket Number BC-2004-02625 in Executive Session on 13 and 15 September 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 1 Aug 05.
    Exhibit D.  Letter, SAF/MRBR, dated 3 Aug 05.
    Exhibit E.  Letter, SAF/MRBR, dated 5 Aug 05.
    Exhibit F.  Letter, DAV, dated 29 Aug 05, w/atch.