RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03356 COUNSEL: NONE HEARING DESIRED: NO __________________________________________________________________ APPLICANT REQUESTS THAT: His AF Form 469, Duty Limiting Condition Report, for the period Mar-Apr 2011 be changed to reflect “not fit for military duty.” __________________________________________________________________ APPLICANT CONTENDS THAT: The initial AF Form 469 is in error because a diagnosis of his injury was made with incomplete information from a civilian doctor, which resulted in the change of the second AF Form 469. He was prescribed Valium and Flexoril between Mar through Apr 2011, which are not conducive to the performance of military duty. He requests this correction not only for his family’s future, but to file for Incapacitation Pay (INCAP) he is entitled to for the period of Mar to May 2011. The flight surgeon attempted to change the original AF Form 469, but was unsuccessful. In support of his request, the applicant provides copies of his military and civilian medical records, AF Form 938, Request and Authorization for Active Duty Training/Active Duty Tour; AFRC IMT 348, Informal Line of Duty Determination; AF Form 1042, Medical Recommendation for Flying or Special Operational Duty, and AF Form 469. The applicant's complete submission, with attachments, is at Exhibit A. __________________________________________________________________ STATEMENT OF FACTS: Based on the applicant’s submission and the available records, he was on active duty 24 Sep 1997 through 12 Dec 1997, 12 Jan 1998 through 15 Oct 1998, 11 Feb 2003 through 4 Apr 2004, and 20 Jul 2008 through 31 May 2010, when he was released. __________________________________________________________________ AIR FORCE EVALUATION: HQ AFRC/SG recommends denial. SG states the AF Form 469, is the mechanism by which the provider communicates physical and deployment restrictions. In this case the AF Form 469 was prepared by the active medical provider at flight medicine and was based on a documented physical examination and interview with the applicant. SG states that although the member was taking Motrin during the day and Valium at night, he was only placed on Duties Not Including Flying (DNIF) and given running, lifting and bending restrictions. Since this was a temporary condition he was not taken off duty, or placed on an assignment availability code restricting any mobility. SG states to change a previous AF Form 469 is asking to change the medical provider’s assessment of the situation. The notes are congruent with the statements on the AF Form 469, which appear to be correct given their assessment of the patient at that moment in time. The complete SG evaluation is at Exhibit C. __________________________________________________________________ BCMR MEDICAL EXAMINER’S EVALUATION: The BCMR Medical Consultant recommends denial. The Medical Consultant states that although a referral physician indicated on 15 Apr 2011, that the applicant was unable to work until after surgery, it remained the military clinician’s responsibility to manage oversight of the applicant’s care and to implement appropriate restrictions as necessary. The Medical Consultant states that while the applicant was ultimately placed on orders, presumably initiated in May 2011, the supplied AF Form 469 initiated in Mar 2011 clearly indicated no intent to designate the applicant’s medical condition as potentially requiring a medical evaluation board (Code 37) or that it was known to require treatment 31-365 days (Code 31). Both spaces are left blank by the provider. The Medical Consultant states that in retrospect one may wonder why the applicant was not placed on medical continuation orders during his initial phases of treatment and diagnostic work-up (Mar-Apr 2011), noting the applicant experienced pain and required a change of medications. Conversely, the Medical Consultant opines that with precautionary instructions on usage and side effects of the prescribed medication, the fact that the applicant was designated DNIF, and the intervening evidence of some improvement in pain, a health care provider may consider a member worldwide qualified. The Medical Consultant agrees with the SG advisory’s opinion and finds it inappropriate to supplant his clinical judgment with that of the treating physician who cared for the applicant during the periods of service in question. Therefore, the Medical Consultant states the applicant has not met the burden of proof of an error or injustice that warrants the desired change of record The complete BCMR Medical Consultant’s evaluation is at Exhibit F. __________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states his request was not for the purpose of establishing medical continuation (MEDCON) orders from Mar through Apr 2011, but to request a code change so he could re-apply for incapacitation (INCAP) pay. His package was denied due to the improper code that was assigned to his injury on the AF Form 469. A doctor attempted to correct this code, but was unable to do so, and as a result of this administrative issue he was left without income for nearly five months. He refers to the remark, “meds were making the pain livable,” he made on 11 Mar 2011, and states it was made in the context of allowing him to physically function at a minimal level. "Livable" also applied to the fact that with the medications he was finally able to obtain a quasi-decent night's sleep without waking up in excruciating pain several times a night. Without the medications he would not have been able to perform any duty, and given the narcotic nature of two of the medications, there should have been a disqualification from duty. If he were to take the medications without a prescription it would be the end of his military career, but questions why taking them under prescription did not affect his duty status. At no point during his injury was he ever placed on medical continuation orders and questioned several people, but was told that despite obtaining the “Line of duty" designation for the injury the process was denied for the entirety of the injury/recovery. He reiterates that the purpose of his request is to recover INCAP pay for the period of Mar through Apr 2011 that was denied due to an improper code assigned to his injury. He is not seeking medical continuation orders, whether warranted or not. The applicant’s complete response is at Exhibit G. __________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The Medical Consultant recommends consideration for amending the record to reflect a check mark was placed in Block 31 of the AF Form 469, initiated on 11 Mar 2011. The Medical Consultant states the only medical document under question is the applicant's AF Form 469, on which his provider left blank an important designation (purposefully or otherwise) on the form he initiated on 11 Mar 2011. In the previous advisory, the Medical Consultant found it inappropriate, and still does, to supplant his clinical judgment with that of the applicant's practitioner, noting the likelihood that the provider may have initiated the document at the time when it could not be definitively determined whether the course of treatment would extend beyond 30 days; particularly for a condition believed to be limited to muscle spasms. Based upon a preponderance of the clinical evidence of record, the Medical Consultant opines the applicant may have indeed been sufficiently impaired to warrant the designation of Code 31, that is, a condition which actually required treatment for 31 to 365 days for resolution. The Medical Consultant states, if the Board feels the applicant deserves the benefit, not based upon error, but upon a possible resultant retrospectively determined injustice, then granting relief is appropriate. Furthermore, since the inclusive period of time of duty restrictions imposed on 11 Mar 2011 [likely unintentionally] actually totaled 31 days, then it would seem legally disingenuous to then not have placed the check mark in block 31 to indicate the same. The complete BCMR Medical Consultant’s evaluation is at Exhibit H. __________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: On 26 Mar 2012, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received (Exhibit I). __________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting corrective action. After our review of the evidence before us and noting in particular the evaluation prepared by the BCMR Medical Consultant, we believe the applicant’s AF Form 469 should be amended to reflect that a check mark was placed in Block 31 to reflect that his medical condition would be resolved within 31-365 days. In view of the above and as a matter of justice, we recommend the applicant’s records be corrected as indicated below. __________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the AF Form 469, initiated on 11 Mar 2011 be amended to reflect a check was placed in block 31. __________________________________________________________________ The following members of the Board considered this application in Executive Session on 1 May 2012, 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 Jul 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AFRC/SG, dated 9 Dec 2011. Exhibit D. Letter, SAF/MRBR, dated 29 Dec 2011. Exhibit E. Letter, SAF/MRBC, dated 23 Feb 2012. Exhibit F. Letter, BCMR Medical Consultant, dated 16 Feb 2012. Exhibit G. Rebuttal, Applicant, undated. Exhibit H. Letter, BCMR Medical Consultant, dated 22 Mar 2012, w/atchs. Exhibit I. Letter, SAF/MRBC, dated 26 Mar 2012.