RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04572 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: While it is not readily apparent, it appears as though the applicant is requesting that her lower back pain condition be determined to be in the line of duty (LOD). ________________________________________________________________ APPLICANT CONTENDS THAT: It appears as though the applicant contends she sustained an LOD injury while on active duty in 2000; however, her command did not initiate a request for an LOD determination until several years later (2008). She submitted sufficient documentation to substantiate her injury was line of duty (ILOD); however, much of it was completely ignored in violation of the requirements of AFI 36-2910, Line of Duty (Misconduct) Determinations, and DoD Instruction 1332.38, Physical Disability Evaluation. As a result, her condition was erroneously determined to not be LOD - existed prior to service (EPTS). Furthermore, the approving authority ignored the requirements of 10 USC 1207a, also known as the eight-year rule, which provides that an airman on active duty for over 30 days, who has at least eight years of active service, will be compensated for all unfitting disabilities, even if the unfitting disabilities were not incurred or aggravated while entitled to basic pay (i.e. not in the line of duty). In support of her request, the applicant provides a voluminous submission which includes copies of active duty orders; point credit summaries; excerpts of her military and civilian medical records; excerpts of DoDI 1332.38, AFI 36-2910, and other pertinent directives; an ARPC/JA memo describing the tenets of the “eight-year Rule;” and various e-mail communiqués pertaining to the matter under review. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: Information extracted from the Military Personnel Data System (MilPDS) on 8 Sep 11 indicates the applicant is currently serving in the Air Force Reserve in the grade of chief master sergeant (E-9), effective and with a date of rank of 1 Mar 04. As of 27 Oct 10, the close-out of her most recent retention/retirement (R/R) year, the applicant has been credited with 29 years of satisfactory reserve service, of which 13 years and 9 days is active service. Title 10, United States Code (USC), Section 1207a provides that a member with at least eight years of active service who would be covered by section 1201, 1202, or 1203 of Title 10 (disability evaluation provisions) but for the fact that the member’s disability is determined to have been incurred before the member became entitled to basic pay in the member’s current period of active duty, the disability shall be deemed to have been incurred while the member was entitled to basic pay and shall be so considered for purposes of determining whether the disability was incurred in the LOD. The remaining relevant facts pertaining to this application are contained in the letters prepared by the Air Force office of primary responsibility (OPR) and the AFBCMR Medical Consultant, which are attached at exhibits C and E. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SGP recommends denial, indicating there is no evidence of an error or injustice. While the applicant’s request is unclear, it appears as though she is concerned about the findings and notification of multiple LOD determinations. She had five such determinations completed. The first was for Asthma and was completed in Oct 09 with a finding of ILOD. The second was for Lumbar Disc Herniation and was completed on 3 Mar 10 with a finding of EPTS – LOD N/A. A thorough review of her case file indicated a long history of back pain predating entrance onto status with no specific injury and nothing more than natural progression to support a service aggravation. The third was for major depression and was completed on 23 Feb 10 with a finding of ILOD of duty in accordance with 10 USC 1207a (eight-year rule). The fourth was for a right meniscal tear and patellofemoral syndrome and was completed on 6 Apr 10 with a finding of in the ILOD. The fifth was for obstructive sleep apnea and was completed on 6 Feb 11 with a finding of EPTS – LOD N/A. In this case, the eight-year rule did not apply as it only applies to disabling conditions. No requests for LOD reinvestigations have been submitted in accordance with AFI 36-2910, Line of Duty (Misconduct) Determinations. A complete copy of the AFRC/SGP evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 4 Mar 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION The AFBCMR Medical Consultant recommends the applicant’s record be corrected to reflect that her chronic recurrent low back pain was service-incurred and ILOD. The applicant supplied a personal chronology of her medical history and official medical documentation reflecting evaluations and treatment she received for chronic recurrent low back pain, presumably originating from a reported injury in Sep 2000, and lasting at least through 9 Mar 10, the date of the notification of not in the line of duty. The documentation provided describes the extensive treatment she received over the span of several years, which are punctuated with recurrences of lower back pain and lower left leg pain and numbness, referrals for physical therapy and other specialty treatments, radiographic studies, etc. Of note is an incident in Feb 07 where she presented with back pain times one week, stating that she had mopped a floor and developed some pain. Another is an incident in Oct 08 where she was involved in a motor vehicle accident which resulted in her being admitted to the emergency room and diagnosed with a “sprained back.” The AFRC/SGP evaluation noted the applicant’s “long history of back pain predating entrance onto status with no specific injury and nothing more than natural progression to support a service aggravation,” and the resultant finding of EPTS – LOD N/A. The Medical Consultant concedes, in the absence of a discernable injury, the presence of lumbar degenerative disc disease is likely a product of the natural aging process over time. Therefore, a recommendation to overturn the findings of HQ RMG/SG and the LOD approving authority is not taken lightly; however, given the applicant’s lengthy service and greater than eight years of active service (IAW 10 USC 1207a), albeit not continuous, the applicable extract from AFI 36-2910, paragraph 3.4.1.2.3, and the HQ ARPC/JA policy directive of 31 Aug 04, the Medical Consultant opines, whether emanating from her 7 Sep 00 gym workout, aggravated by mopping a floor in Feb 07, by her motor vehicle accident in Oct 08, worsened by her continued efforts to comply with fitness requirements, that there is a greater than 50 percent probability that her back condition was permanently aggravated through her military service. This was the position taken by the initial evaluating physician and LOD appointing authority; and is the current position of the Medical Consultant. Should the Board determine the applicant’s recurring lumbar pain condition should have been determined to be service incurred, one might consider this condition may have also been unfitting and included in her disability computation. According to AFPC/DPSD (USAF Physical Disability Division) a decision was made, on or about 30 Jun 11, to place the applicant on the TDRL with a combined disability rating of 50 percent; which consisted of a 30 percent disability rating for Asthma and a 30 percent disability rating for Major Depression. Noting the applicant’s predominant spine range of motion present in the supplied documentation and the absence of sufficient incapacitating episodes, the Medical Consultant believes that no greater than a ten percent disability rating would likely have been awarded for the applicant’s low back pain under the general rating formula for rating disabilities. A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 11 Jul 11 for review and comment within 30 days. As of this date, no response has been received by this office (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. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends that her lower back pain should have been found to be in the line of duty (LOD). After a thorough review of the evidence of record and the applicant’s complete submission, we believe corrective action is warranted. While we note the comments of AFRC/SGP indicating the applicant has a long history of back pain with no specific injury and nothing more than natural progression to support a service aggravation, we believe that a preponderance of evidence indicates the applicant’s back injury should have been determined to be in the LOD. In this respect, we note the comments of the AFBCMR Medical Consultant indicating the applicant’s condition is unfitting and there is at least a 50 percent probability the applicant’s back injury was aggravated by her military service. Furthermore, we note that 10 USC 1207a (eight-year rule) provides that an unfitting condition that existed prior to the current period of service (such as the case with the applicant) shall be deemed to have been incurred while in a duty status in the case of a member who has served more than eight years of active duty and is currently serving on active duty for over 30 days. Therefore, in view of the AFBCMR Medical Consultant opinion that her lower back injury is unfitting and in light of the applicant’s lengthy service, we believe the records should be corrected to reflect that her lower back injury was incurred in the line of duty under the provisions of 10 USC 1207a (eight- year rule). ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 3 March 2010, her chronic recurrent lower back pain was found to be in the Line of Duty (LOD) under the provisions of Title 10, United States Code, Section 1207a. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04572 in Executive Session on 15 Sep 11, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Nov 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SGP, dated 24 Feb 11. Exhibit D. Letter, SAF/MRBR, dated 4 Mar 11. Exhibit E. Letter, AFBCMR Medical Consultant, dated, 6 Jul 11. Exhibit F. Letter, SAF/MRBR, dated 11 Jul 11.