RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03604, 
				INDEX CODE:  108.00
	APPLICANT	COUNSEL:  None

	SSN		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His records be corrected to allow him to receive compensation for permanent injuries he sustained while on active duty.

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APPLICANT CONTENDS THAT:

The Air Force did not evaluate the spine and neck injuries he received in the performance of his official duties.

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered Regular Air Force on 2 December 1957 for a period of four years as an airman basic.

During the applicant’s military career he was treated for a variety of conditions.  A review of his medical records reflects he presented to the clinic on 6 September 1973 for acute back pain to the right lumbar area radiating to his knee with tingling sensation of the right toes.  The applicant was hospitalized with bed rest and traction.  The applicant was again hospitalized on 30 January 1974 through 30 April 1974 for evaluation of his diffuse spine pain.  A myelogram (injection of x-ray contrast into the spinal canal allows detection of herniated discs and other conditions with x-rays) was attempted on 4 February 1974.  A second myelogram was performed on 12 February 1974 and detected a small defect of L5 on the right.  The applicant was treated with a Depro-Medrol (steroid) injection with good results.  Prior to be being discharged from the hospital the applicant was evaluated by Neurosurgery and it was recommended his conservative therapy be continued.  On 25 April 1974 a request was made for cross training for the applicant.  The applicant was discharged from the hospital on 30 April 1974 with a permanent profile of L3.  The applicant had a follow up appointment at the orthopedic clinic on 3 July 1974 and the visit reflected he was doing well without back pain except for cold weather.  

A 10 September 1974 clinic note reports the applicant was experiencing mild back pain that was relieved with Tylenol.  The applicant, at a 5 December 1974 orthopedic visit, complained of continued back pain, but revealed he was not performing his back exercises.  The applicant was referred to physical therapy.  Physical therapy evaluated the applicant on 10 and 11 December 1974.  They recommended daily therapy.  A 18 December 1974 physical therapy record entry indicates the applicant did not show up for his appointments after his initial evaluation.  The applicant was treated on 30 January 1975 for a flare up of back pain.

The applicant’s term of enlistment was expiring in September 1975.  He underwent his separation physical on 30 July 1975.  The separation physical documented his history of herniated nucleus pulposus which required limitation of duty including not lifting, climbing, twisting or aerobics.  The applicant was wearing a back brace and taking Darvon.  There was no indication of neck pain listed on the separation physical.  The physician determined the applicant’s condition did not warrant evaluation by the disability system, but referred the applicant for evaluation and opinion by Neurosurgery and Orthopedics.  On 30 July 1975, Neurosurgery determined the applicant had a 2-year history of recurrent back pain.  The examination revealed no weakness or muscle atrophy.  Reflexes were normal and there was abnormal sensation involving the left foot and leg to the knee.  The Neurology Clinic note indicated no evidence of radiculopathy and that the applicant’s pain was mostly non-specific musculoskeletal pain; it was felt that there was no lumbar disc protrusion.  The Orthopedic evaluation was performed on 13 August 1975 and determined that the applicant could be separated routinely.

The applicant’s personnel files indicate the applicant was transferred from aircraft maintenance to the administrative duties after 27 June 1974.

Applicant’s EPR profile as a staff sergeant is listed below.

			PERIOD ENDING		OVERALL EVALUATION

			  1 Aug 69 				9
			  1 Aug 70				6
			 21 Jun 71				8
			 10 May 72				9
			 20 Mar 73				8
			 15 Oct 73				9
			 27 Jun 74				9
			 26 Jun 75				9

The applicant was voluntarily discharged in the grade of staff sergeant on 19 September 1975, after completion of his required service.  He served 15 years, 11 months, and 28 days of active federal military service.  The applicant had a 1 year, 9 month and  19  day  break  in  service  from 2 December 1965  through 21 September 1967.

The applicant, after his discharge, applied for service connected disability compensation through the Department of Veterans Affairs (DVA).  He was initially rated at 10 percent for his back pain.  The applicant underwent another DVA compensation examination on 26 June 1999.  The examination documented degenerative arthritis of his joints and there was no mention neck pain.  On 4 August 1999 the DVA increased his rating for his herniated nucleus pulposus from 10 percent to 20 percent; and awarded him 10 percent for degenerative joint disease of the hands, knees, and elbows, giving the applicant a combined rating of 30 percent.  The applicant currently has a combined DVA disability rating of 40 percent.

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AIR FORCE EVALUATION:

The Chief, Medical Consultant, AFBCMR, reviewed this application and states the reason the applicant could be found fit for duty by the Air Force and later be granted a service connected disability by the DVA lies in understanding the differences in Title 10 USC and Title 38 USC.  Title 10 USC, Chapter 61 is the federal statue that charges the Service Secretaries with maintaining a fit and vital force.  For an individual to be considered unfit for military service, there must be a medical condition so severe that it prevents performance of any work commensurate with rank and experience.  The presence of a physical defect or condition does not qualify the servicemember for a disability retirement or discharge.  The physical defect or condition must be severe enough to render the servicemember unfit for duty, and their military career must have been cut short due to the service connected disability.  Congress created Title 38 because they recognized that servicemembers may acquire conditions that may not be unfitting at the time of their separation, but later progress in severity and possibly may alter the servicemember’s lifestyle and employability.  Title 38 USC governs the DVA compensation system in awarding disability percentage ratings for conditions that are not unfitting for military service.

The BCMR Medical Consultant further states the disposition of the applicant’s discharge was proper and equitable and in compliance with Air Force directives that implement the law and recommends denying the applicant’s request.

A complete copy of the BCMR Medical Consultant evaluation is attached at Exhibit C.

HQ AFPC/DPPD states the medical disability evaluation system is used to determine if the servicemember’s medical condition renders him fit or unfit for continued military service.  If the member’s condition is found to preclude him from continuing on active duty, the law provides appropriate compensation for the premature termination of the member’s military career.  They further state that under military disability laws and policy, the boards can only rate those medical conditions which make the member unfit for continued service at the time of the medical evaluation.  The DVA is chartered to provide continual medical care for veterans once they leave active duty.  Under Title 38, USC, the DVA may increase or decrease a member’s disability rating based on the seriousness of the medical condition throughout his or her life span.  Furthermore, they concur with the BCMR Medical Consultant’s advisory.  Therefore based on the evidence submitted DPPD recommends denying the requested relief (Exhibit D).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 18 April 2003, for review and response.  As of this date, no response has been received by this office.

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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 of timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  Applicant’s contentions are duly noted; however, we agree with the opinions and recommendations of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Title 10, USC, Chapter 61 is the federal statue that charges the Service Secretaries with maintaining a fit and vital force.  For an individual to be considered unfit for military service, there must be a medical condition so severe that it prevents performance of any work commensurate with rank and experience.  The applicant has presented insufficient evidence that he was not reasonably capable of performing his duties in compliance with his office, grade, rank or rating right up until his release from active duty.  In fact, it is noted the applicant received the highest rating available on his last two performance reports, which would appear to confirm he was performing his military duties in an appropriate manner.  However, former servicemembers are authorized treatment from DVA under the provisions of Title 38, USC.  Title 38, USC allows the DVA to provide compensation for servicemembers who incurred a service-connected medical condition while on active duty and to increase or decrease the disability rating based on the seriousness of medical condition throughout the servicemember’s life span.  In this respect, we note the applicant currently has a combined DVA disability rating of 40 percent.  Therefore, 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-2002-03604 in Executive Session on 8 July 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 7 Nov 02.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFBCMR, Medical Consultant, dated
				26 Feb 03.
	Exhibit D.	Letter, HQ AFPC/DPPD, dated 9 Apr 03.
	Exhibit E.	Letter, SAF/MRBR, dated 18 Apr 03.