RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02873
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be changed to show his disability was service-connected and that he receive a disability retirement.

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APPLICANT CONTENDS THAT:

He was determined fit for duty with no disqualifying defects and no waiver of medical qualifications.  He was qualified for enlistment and eligible for reenlistment.  He was discharged with a physical disability and is being denied service disability pay.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 30 October 1972 in the grade of airman basic for a period of four years.

Available medical records reveal the following:

	  The applicant’s enlistment medical examination on 28 September 1972 indicates the applicant reported a history of back problems by checking the yes block next to recurrent back pain on the Standard Form 93, Report of Medical History.  The physical examination indicated his back was normal.  The applicant also reported a history of nervous trouble and chronic cough on his enlistment exam.

	  On 30 May 1973, the applicant’s separation medical examination, Standard Form 93, Report of Medical History, revealed the applicant indicated in block 8, Statement of Examinee’s present health, “Right now I feel real sore in my lower back.  I can’t set (sic) or stand for a long time and I can’t pick anything real heavy up, I had this trouble most of my life.”

	  On 31 May 1973, a Medical Evaluation Board (MEB) report indicated the applicant was diagnosed with chronic low back pain, which existed prior to service, was not qualified for commission or enlistment, and his defect would interfere with worldwide service.  The board recommended since the applicant was considered unfit for general military duty, his application for immediate discharge should be granted.

On 1 June 1973, the applicant submitted an application for discharge under the provisions of AFM 35-4, Chapter 9.  He indicated he requested discharge for physical disability.  He had been notified based upon findings of a medical board which convened on 31 May 1973, he was considered unfit for world-wide service because of physical disability which was considered to have existed prior to entry on active duty and appeared to be not incident to or aggravated by, his active military service.  He certified it had been fully explained to him that he was entitled as a matter of right to the same processing as any other member of the Air Force who was separated for physical disability including consideration of his case by a Physical Evaluation Board (PEB).  However, he did not elect to exercise that right.  He further indicated it had been fully explained to him as a result of the discharge application, he could be discharged for physical disability without a further hearing.  He indicated he understood the discharge would be without disability retirement or disability severance pay.

On 7 June 1973, the discharge authority approved the applicant’s honorable discharge for physical disability.

On 12 June 1973, the applicant was honorably discharged in the grade of airman, under the provisions of AFM 35-4, Physical Disability - Existed Prior To Service.  He served 7 months and 13 days of total active duty service.

The applicant provided documents from the Department of Veterans Affairs (DVA) which indicated his claim for service connection for low back pain was denied on 17 July 1973, and his case was reopened in 1998.  On 4 April 2003, the DVA denied the applicant’s claim for service connected disability compensation.  The DVA indicated they grant service connection for diseases or disabilities, which existed prior to military service and permanently worsened beyond the natural progress of the disease as a result of service.  They denied service connection for his low back condition, to include chronic low back pain, the congenital condition of spina bifida occulta, and his degenerative arthritis of the lumbar spine, because the evidence did not show his low back condition was permanently worsened beyond the natural progress of the disease as a result of service.  There also was no evidence of continuity of treatment for his low back condition due to the injury (apparently lifted a heavy object) in the service from separation in 1973 until 1992.  In addition, there was evidence of an intercurrent injury in 1993.

On 14 August 1998, the applicant’s personal physician indicated the diagnosis he believed at that time was spina bifida.  The applicant was told his condition was a congenital condition and apparently was discharged at least in part based on his condition.  His professional opinion was the applicant’s symptoms in 1993 were likely not related to the spina bifida occulta, which is in almost all instances asymptomatic.  He does not believe any symptoms the applicant had then, in the interim, or now could be causally related to a minor spina bifida occulta.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommended denial.  He indicated the preponderance of the evidence indicates the applicant had a history of recurrent low back pain prior to entering the service and the back pain was also associated with a pre-service motor vehicle accident.  Recurrent back pain while on active duty resulted in hospitalization.  An Evaluation while hospitalized failed to identify a specific reason for his pain beyond a strain.  The applicant indicates he injured his back in an accident with a floor buffer, a DVA document indicates a lifting incident.  There is no primary documentation of a specific injury or strain while on active duty.  The applicant indicated on his enlistment medical examination and his separation examination that he experienced difficulties with anxiety (nervousness), and this is consistent with the impression by the psychiatrist who examined him at the time of his hospitalization.  It is a well established principle of medicine that such psychological symptoms aggravate symptoms of back pain.  The diagnosis of reactive depression correlates to a diagnosis of Adjustment Disorder in today’s diagnostic terminology, a condition that resolves when the individual escapes the stressful situation causing the symptoms, in this instance military service.  The fact that the applicant waived his right to review by the Physical Evaluation Board indicated he desired to leave the Air Force and agreed his condition existed prior to service and was not permanently aggravated by service.  Evidence of the record indicates the applicant was employed as a firefighter and a peace officer following his discharge from the Air Force and the documentation provided by the applicant indicates he experienced a pattern of recurrent back pain no different than before service.  A medical exam in June 1984, over ten years following his discharge from the Air Force reports the back examination was normal.  Twenty years following discharge from the Air Force, DVA medical documentation indicates increasing problems with back pain following a 1993 motor vehicle accident and with radiographic findings of degenerative arthritis of the spine.  Conditions that exist prior to service do not entitle a member to disability compensation unless that condition is permanently aggravated by military service beyond the natural progression of the condition.  Although the applicant’s back pain rendered him unfit after several months on active duty, evidence of the available records indicates his condition was not permanently aggravated by service.  Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.

The evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 5 March 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.

On 18 March 2004, the applicant requested his case be temporarily withdrawn (Exhibit E).

On 28 March 2004, the applicant’s case was temporarily withdrawn (Exhibit F).

On 23 November 2004, the applicant submitted a letter, with attachments, through his congressman’s office requesting his case be reopened.  He indicated if the Department of Defense would release medical records it would help him to prove his case.  By getting the medical records would prove he was under the influence of strong pain medication and was not aware of the documents he was required to sign.

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

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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 an error or injustice.  After reviewing the evidence of record, we are convinced the applicant’s separation from the Air Force was in accordance with Air Force policy.  His contentions are duly noted; however, in our opinion, the detailed comments provided by the AFBCMR Medical Consultant adequately address these allegations.  Therefore, we are in agreement with the comments and recommendation of the Medical Consultant and adopt his rationale as the basis for our decision that the applicant has not been the victim of either an error or injustice.  In this respect, the applicant has not established that his disability was service connected.  In view of the above and in the absence of evidence to the contrary, we find no compelling basis upon which to recommend favorable action on this application.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of an error or injustice; the application was denied without a personal appearance; and 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-2003-02873 in Executive Session on 12 January 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A. DD Form 149, dated 8 August 2003, w/atchs.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, AFBCMR Medical Consultant,
		      dated 19 February 2004.
   Exhibit D. Letter, SAF/MRBR, dated 5 March 2004.
   Exhibit E. Letter, Applicant, dated 18 March 2004.
   Exhibit F. Letter, AFBCMR, dated 28 March 2004.
   Exhibit G. Letter, Congressman XXXXXX, dated 19 November 2004,
		      w/letter, Applicant, dated 16 November 2004,
              w/atchs.