RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03641
		INDEX CODE:  108.07
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His service-connected medical conditions, intevebral disc syndrome, tinnitus, and nervous condition, be assessed as combat related in order to qualify for compensation under the Combat Related Special Compensation (CRSC) Act.

2.  Corrections be made to his Aircraft Accident Report.

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APPLICANT CONTENDS THAT:

His application for CRSC benefits was disapproved based on criteria that was not made known to him, to include provisions that simply cannot and do not apply to his particular situation.  His injuries are the result of an accident in which he was a surviving crewmember of a B-47 aircraft that crashed 70 miles from home base on January 12, 1961.  His request was denied because it was a requirement that a commander or medical officer witness the injury.  The authenticity of the crash is available from a multiplicity of records.  A spinal disc injury is an injury that is not visible to the naked eye, hence it cannot be witnessed.  His acute and chronic knee and leg pain he suffered for months following the accident were symptomatic of a severe back injury.  His nervous system condition is a direct result of the aircraft accident.  His claims are based upon and occurred during his 10 years as a B-47 combat crewmember.  Under the description of what constitutes combat-related; namely while engaged in hazardous (combat simulated, aerial flight) and duty under conditions simulating war (as was their 24 hour airborne alert operations).  

In support of his request applicant provided a copy of his DD form 214, his retirement order, and two Officer Effectiveness Reports (OERs).  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant entered active duty on 9 Jan 51 and served in an enlisted status until his commissioning on 20 Sep 57.  He served as a B-47 and B-52 pilot.  On 12 Jan 61, applicant ejected out of a B-47 he was co-piloting when the aircraft developed uncorrectable control problems at approximately 15,700 feet.  He voluntarily retired for length of service on 1 Jul 71.  He served 20 years, 5 months, and 22 days on active duty.

A Department of Veterans Affairs (DVA) rating decision, dated 4 Sep 97 reflects the applicant was rated at 60% for degenerative disc disease, 30% for headaches, and 10% for tinnitus, for a combined rating of 80%.

His CRSC application was disapproved on 20 Oct 03 based on the evidence submitted with the application as not supporting approval of the disabilities claimed as combat related under the established guidelines for CRSC.  The portion of his application in which he claimed tinnitus as an eligible condition was approved with an effective date of 1 Jan 04 and a percentage of 10%. 

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states reviewing medical records, aircraft accident reports and DVA determinations, the evidence indicates that the applicant suffered only abrasions and contusions from an aircraft ejection in January 1961 in which he landed on top of a tree causing minor injuries.  The earliest evidence of his Spinal Disc condition was noted when he was diagnosed with osteoarthritis in September 1987, 16 years after his retirement.  He contends that even though he suffered pain, he was never properly x-rayed or diagnosed for the injuries he sustained.  The DVA originally denied his claim for the back and hip conditions, but based purely on speculation, it was granted to his benefit with no specific evidence and documentation.  The DVA conceded that it was the result of trauma experience following the ejection even though the evidence was not considered so evenly balanced, showing that his hip and back conditions were shown to be symptomatic many years following his retirement.  Having reviewed his medical and personnel records, and documents supporting the aircraft accident it appears that his injuries are not considered to be eligible for CRSC.  There is no documentation that he suffered his Nervous Disorder other than an anxiety episode a couple of times prior to his scheduled flying.  He was not grounded or taken off of flying status.  He claims his anxiety was accompanied by chronic migraine headaches due to stress after flying his missions.  Though he complained of headaches throughout his career, he had this problem during his teenage years prior to service.  Job related stress is not considered unique to the military. Therefore, his Nervous Disorder is not eligible for CRSC.  The DPPD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that he underwent major surgery on his left hip on 10 Jun 04.  The attending physician states in his observations that the "most likely' event that could possibly have precipitated, exacerbated, and caused his later incapacitation and eventual disablement can best be attributed to the severe, acute, and traumatic experience his body incurred at the time of impacting the tree that saved his life in 1961."  This authenticates that from 1961 to 2004 the attending physicians have faithfully recorded that the injuries sustained in the 1961 ejection are the reason for five subsequent major operations.  

In support of his response, applicant provided a personal statement, a statement from his physician, and documents extracted from his medical record.  

In an amended response to the Air Force evaluation applicant states the Aircraft Accident Report contains errors and was not prepared by the individual who performed the emergency parachute jump (himself) as directed by the form itself.  The narrative is written in third person singular and signed by Major   (who served on the staff of the XXnd Bombardment Squadron).  He did not write the narrative and never saw it until it was received during his various filings with the VA.  It contains many errors which, if corrected, could help his cause significantly.  The Medical Report indicates that he "showed no anxiety."  What it doesn't state is that he was in a state of "extreme shock"...and unable to reconcile the time of day within 7 hours on the day of the accident.  A comment was made that no x-rays were taken.  Throughout the days following the accident, and in spite of his complaints of knee and leg pain there was never an attempt to locate the source causing such pain.  Years later, the problem was identified as a ruptured disc that dislodged the routing of his sciatic nerve to the point where the nerve physically was looped around the disc and totally incapacitated him.  There is sufficient evidence in his medical record to directly connect his spinal disc condition to the accident that occurred while on a Combat Crew Training Mission.  While it may be the contention of the DPPD that his continued flying status gives the indication that his injuries were not severe, he knows that the pain in his legs began within hours of the event and continued for the remainder of his military career and later.  He lived with the pain, which was unbearable after each and every flight, lasting usually for upwards of 12 hours.  He continued because he believed in serving in his capacity faithfully, with credibility, honor, and commitment.  Applicant takes exception to the DPPD remark that the DVA originally denied his claim for the back and hip conditions, but based purely on speculation, it was granted to his benefit with no specific evidence and documentation.  He has been intimately involved with the DVA for years, and does not know of any circumstances regarding his health condition, in which an award or claim was based upon "no specific evidence and documentation."  On the contrary, his medical file consists of hundreds of pages along with a considerable amount of progress notes, medical reports, examinations, and interviews.  Regarding his condition of nervous system, applicant states the problem that existed before his accident was recurring "headaches."  Subsequent to the accident, anxiety with accompanying headaches began.  

In support of his submission, applicant provided a personal statement, documents extracted from his medical records, and a document associated with his CRSC application.  

His complete submission, with attachments, is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  The Medical Consultant states the applicant bailed out of a disabled B-47 aircraft in January 1961.  His medical records show abrasions, bruising and knee pain following the incident.  There is a single service medical record entry four years after the aircraft incident for low back pain diagnosed as paravertebral muscle spasm.  There is no evidence that indicates his back pain was related to the ejection or parachute landing.  His service records show he was hospitalized in March 1951 for back pain due to lumbosacral pain while digging a trench and he was hospitalized in June 1952 for upper back pain due to lifting shower boards in the barracks.  He underwent back surgery approximately 15 to 16 years after the incident.  Evidence of record does not support causal relationship.  It may be reasonable to speculate that the incident may have contributed to his back condition, but the medical record finds nothing to support this.  The medical record documents a history of nervous condition prior to the January 1961 incident and only two entries for anxiety following the incident indicating the condition was not significantly worsened.  He continued to fly bomber aircraft for nearly ten more years.  The fact that a member incurred the disability during a military exercise or while participating in an exercise is not sufficient to support a combat-related determination.  There must be a direct causal relationship between the unique aspects of the exercise (or conditions simulating war) and the disability.  The Medical Consultant Evaluation is at Exhibit F.

ODUSD(MPP)/Comp reviewed the applicant's request and concurs with the findings and recommendation of the BCMR Medical Consultant.  The ODUSD evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant states that the Medical Consultant bases a considerable amount of his evaluation on the information contained in the aircraft accident report.  The information contained in the aircraft accident report was prepared by an officer other than himself and was based entirely on hearsay information.  No place on the form can be found any collaboration with the flight surgeon, medical examiner, or medical officer.  Certain parts of the form identify him as the navigator showing there was an apparent mix-up between the completion of the forms pertaining to himself (co-pilot) and the navigator.  The applicant provides his account of what the accident report should state and adds the injuries he sustained in the B-47 ejection fully qualifies him for CRSC.  The nervous condition he experienced after the ejection, continued through his remaining years in service, was identified by the DVA as service-connected.  Leg pain and knee pain of the nature described are both symptomatic of a back injury and his record clearly documents these symptoms from the day of the ejection.  The fact that the medical record shows no direct evidence or connection of such pain with a back injury is not his fault.  It as an omission on the part of the attending physicians who should have determined from his frequent visits and complaints of such pain that the cause was due to sciatic nerve damage (brought on by spinal disc rupture).  He continued flying; however, subsequent to each and every mission, it took 12-24 hours to recover from the pain experienced subsequent to the missions.  He provided two documents, which he believes should carry as much or more credibility, than that contained in much of the "history" being reviewed.  The Medical Consultant points out that on his retirement physical he did not mark "YES' to the question of "have you had, or have you now, nervous trouble of any sort" inferring that his claim for disability for a nervous condition is without substance.  His medical records do indicate that he had such a nervous condition so the obvious conclusion is that his answer should have been YES.  This nervous condition has persisted to this day, has been addressed and helped through the years by the efforts of the DVA and medication.  His complete submission, is at Exhibit I.

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THE BOARD CONCLUDES THAT:

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

2.  The applicant requests changes be made to his 12 Jan 61 Aircraft Accident Report.  His request for corrections to his Aircraft Accident Report was not filed within three years after the alleged error or injustice was discovered, or could have been discovered, as required by Section 1552, Title 10, United States Code (10 USC 1552), and Air Force Instruction 36-2603.  Although the applicant asserts a date of discovery which would, if applicable, make the application timely, the essential facts which give rise to the application were known to the applicant long before the asserted date of discovery.  Knowledge of those facts constituted the date of discovery and the beginning of the three-year period for filing.  Thus, his request pertaining to the Aircraft Accident Report is untimely.  Paragraph b of 10 USC 1552 permits us, in our discretion, to excuse untimely filing in the interest of justice.  We have carefully reviewed applicant's submission and the entire record, and we do not find a sufficient basis to excuse the untimely filing of this application.  The applicant has not shown a plausible reason for delay in filing, and we are not persuaded that the record raises issues of error or injustice that require resolution on its merits.

3.  The applicant's request pertaining to his service-connected conditions is timely filed.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice with respect to his request that his service-connected medical conditions qualify for compensation under the CRSC Act.  After a thorough review of the available evidence of record, it is our opinion that the service-connected medical conditions the applicant believes are combat-related were not incurred as the direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war, and therefore, do not qualify for compensation under the CRSC Act.  We agree with the opinions and recommendations of the Air Force offices 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.  In the absence of persuasive 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-2003-03641 in Executive Session on 6 Oct 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Oct 03, w/.atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 26 Jan 04.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Feb 04.
    Exhibit E.  Letter, Applicant, dated 10 Feb 04, w/atchs.
    Exhibit F.  Letter, BCMR Medical Consultant, dated 24 Feb 04.
    Exhibit G.  Letter, ODUSD(MPP)/Comp, dated 21 Jul 04.
    Exhibit H.  Letter, SAF/MRBC, dated 28 Jul 04.
    Exhibit I.  Letter, Applicant, dated 12 Aug 04, w/atchs