RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04477 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: Her records be corrected to show that: 1. Her chronic back pain was not determined to have existed prior to service (EPTS), but was found to be “in the line of duty” (LOD: Yes), or was determined to be EPTS, but aggravated by her military service. 2. She was continued on active duty service during the period 1 Oct 09 through 30 Jul 10 for medical continuation (MEDCON). 3. She was placed on the Temporary Duty Retired List (TDRL) on 30 Jul 10 and remained there through the present. 4. She receive a TDRL evaluation and her case be reviewed by a Physical Evaluation Board (PEB). ________________________________________________________________ APPLICANT CONTENDS THAT: 1. Her lumbar and thoracic back problems developed during a period of active duty service. Her medical condition was not caused by or due to misconduct. She was unable to perform her military duties due to severe chronic back pain in her lower and mid back, with related pain down her left leg. Department of Defense (DoD) and Air Force Instructions (DoDIs/AFIs) require that her medical condition be presumed to be “LOD: Yes.” AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, indicates that a PEB is to presume a member to have been in sound physical and mental condition upon entering military service except for defects or conditions noted and recorded at time of entry. Her medical records do not indicate she had back problems prior to her entry into military service. 2. The LOD investigation recommended a finding of “LOD: Yes.” Inexplicably, the Judge Advocate General (JAG) office recommended a different finding that her back problems were EPTS and “LOD: No.” She submitted a request for reconsideration of the LOD determination but was erroneously denied. 3. Because her medical condition was erroneously determined to be EPTS, it was determined that her chronic back problems were not service-connected and she did not meet the criteria for MEDCON. A 2007 Magnetic Resonance Inspection (MRI) showed a paracentral disc protrusion without impingement. A second MRI performed on 10 Jun 09 showed a disc protrusion. She should have been retained on active duty until a Medical Evaluation Board (MEB) was complete. 4. She was released from active duty after serving a total of 9 years, 4 months, and 29 days of active service. Since she had completed over 8 years of active duty service, it should have been presumed that her chronic back problems were incurred in the line of duty. She should have been either permanently retired, or placed on the TDRL until her medical condition stabilized. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: The applicant served in the Air Force Reserve during the period of time in question. On 30 Sep 09, she separated upon completion of required active service, and was credited with 9 years, 4 months, and 29 days of total active service. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPRs) which are included at Exhibits C, D, and E. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/A1K does not make a recommendation concerning the applicant’s LOD determination. Absent a determination from a medical authority which reverses the applicant’s concern with her LOD determination, there is no entitlement for her to have been kept on active duty orders. In accordance with DoDI 1241.2, Reserve Component Incapacitation System Management, a reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the line of duty, shall, with the member’s consent, be continued on active duty upon expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System determination. A complete copy of the AFRC/A1K evaluation is at Exhibit C. AFMOA/SGH recommends approval of the applicant’s request to have the LOD determination concerning her chronic back pain and piriformis changed to “did not exist prior to service” and her medical condition changed to “LOD: Yes.” Given the documentation provided, it is noted that her condition was incurred “in line of duty” as written in the Orthopedic Clinic MEB Narrative Summary note of 8 Sep 09. A complete copy of the AFMOA/SGH evaluation is at Exhibit D. The BCMR Medical Advisor recommends approval of the applicant’s request for her back pain to be determined to be “LOD: Yes,” however, recommends denial of her request to be provided MEDCON orders and be placed on the TDRL. The service member was separated under AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, with a narrative reason for separation of completion of required active service. The applicant started to complain of mid thoracic (upper) back pain following childbirth in Jul 06. The applicant was later referred to pain management where a TENS trial, physical therapy, lumbar spine and trigger point injections were prescribed without symptomatic pain relief. No evidence of narcotic medications for chronic pain control was identified. Profiles for periods of limited movement and physical training participation were issued intermittently from 2007 to 2009 although no evidence of worldwide disqualification due to a duty limiting condition was noted. On 8 Sep 09, an orthopedic MEB physical evaluation and narrative summary for thoracic back pain identified a normal physical examination. An MRI of the thoracic spine completed in Jun 09 indicated a small left paracentral disc protrusion at T10-T11 without nerve root encroachment. An MRI of the lumbar spine in Sep 09 revealed no lumbar disc herniation or evidence of degenerative disc disease. Films of the thoracic and lumbar spines on the date of the orthopedic evaluation revealed no abnormal curvature or significant osseous abnormality. With respect to the adverse “line of duty” determination, consultation progress notes indicate, “Patient speculates that low back pain may have evolved from unknown injury working as a transporter between ages 18-25 and may be exacerbated due to the demands of caring for a child.” With no documented injury or sentinel event or associated factors identified for the chronic back pain during the period of active duty, uncertainty exists for a clear service incurred associated for the chronic back pain. Indeed, the DVA rating letter dated 2 Aug 12 found no basis for military service connection for lumbar spine strain related to chronic back pain. The reviewer acknowledges a 10 percent service connection by the DVA for left piriformis syndrome diagnosed by an orthopedist following discharge in Mar 10. However, even if the disorder was present during the period of service and there was evidence of an upper thoracic disc protrusion (T10-T11), either condition would not necessarily be considered disqualifying or unfitting for continued military service and there was no evidence that either condition was the cause of service termination. The DVA is authorized to offer compensation for any medical condition determined service incurred without regard to, and independent of, its demonstrated or proven impact upon a service member’s fitness for continued active service or narrative reason for release from military service. With this in mind, Title 38, U.S.C, which governs the DVA compensation system, was written to allow awarding compensation ratings for conditions with a nexus with military service. This is why an individual can be found fit for release from active service and thereafter receives compensation ratings for the DVA. However, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, U.S.C., only offer compensation for those services incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause of career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences. DoDI 1332.32, Physical Disability Evaluation, reads “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability is unable to reasonably perform the duties of his or her office, grade, rank or rating to include duties during a remaining period of Reserve obligation.” Within the materials submitted, there were no reports of inability to perform work related duties or worldwide disqualification due to chronic pain. With regard to the issue of continuation on active duty orders and placement on the TDRL, extension of mobilization orders may be warranted when an airman has a disqualifying medical issue that cannot be resolved prior to expiration of the orders demobilization date. The common theme in either a mobilization continuation or extension is a disqualifying medical condition, and the records submitted for review fail to provide objective evidence of an unfitting or disqualifying condition at or following demobilization. In fact, the evidence to the contrary is substantial. In this case, no unfitting or disqualifying medical condition was identified and therefore no MEB was medically indicated. In review of the denial of LOD determination, the medical documentation appears to contain no clear and convincing evidence the chronic back pain was not incurred or aggravated while in an active duty status. This finding has no substantial bearing on the final recommendation of the case, denying the applicant MEDCON orders and placing her on the TDRL, since no unfitting condition resulted from possible aggravation of an injury, illness or disease while the applicant was in an active duty status. A complete copy of the AFBCMR Medical Advisor evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, she reiterates each of her initial contentions, and resubmits her medical chronology. In addition, Counsel contends that although the Medical Advisor is correct there is “no clear and convincing evidence” her chronic back pain was not incurred or aggravated while on active duty status, in fact, there is no medical evidence indicating her condition existed prior to her entry onto active duty on 7 Feb 05. When she was released from active duty, she had served for a total of 9 years, 4 months, and 29 days of active service. Her back condition was not caused by or due to her own misconduct. Therefore, is should be “presumed” to be service-connected. Further, the LOD investigation recommended a finding of “LOD: Yes.” Inexplicably, the Judge Advocate General review recommended a finding that her chronic back problems were not incurred in the line of duty. The “LOD: No” determination is not in accordance with DoD or AF Instructions and should be reversed as a clear abuse of discretion. The Medical Advisor is incorrect when he states that no unfitting or disqualifying medical condition was identified and therefore no MEB was medically indicated. Up until the time she was released from active duty, military medical providers had failed to diagnose and treat her for piriformis syndrome and, therefore, had failed to alleviate her severe pain. Her medical records reflect that her condition became so severe she could no longer perform her military duties. The case should have been sent to an MEB, and she should have been retained on active duty until her disability case was fully resolved. ________________________________________________________________ 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 concerning the applicant’s line of duty determination. We considered the applicant’s complete submission in judging the merits of the case, to include her rebuttal response to the advisory opinions, and we agree with the opinion and recommendation of AFMOA/SGH and adopt its rationale as the basis for our conclusion the applicant’s medical condition did occur within the line of duty. Therefore, we recommend her records be corrected to the extent indicated below. 4. Notwithstanding the above, we find insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice concerning the applicant’s remaining requests. In this respect we agree with the opinions and recommendations of the BCMR IMA Medical Advisor and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice to warrant the relief sought in the remainder of the application. The applicant appears to believe if her medical condition were determined to be within the line of duty she would inexorably be retained on MEDCON orders for further processing through an MEB; however, this is not the case. An MEB is not warranted in this case because, other than her own assertions, nothing in the applicant’s medical records or within the materials she submitted establishes that her medical condition was unfitting or disqualifying. Therefore, we recommend her records be corrected to the extent indicated below. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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 24 November 2009 competent authority determined that her lumbago was incurred in the line of duty (LOD). ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04477 in Executive Session on 13 Jun 13, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 12 Sep 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/A1K, dated 28 Feb 13. Exhibit D. Letter, AFMOA/SGH, dated 28 Feb 13. Exhibit E. Letter, BCMR Medical Advisory, dated 11 Apr 13. Exhibit F. Letter, SAF/MRBR, dated 17 Apr 13, w/atch. Exhibit G. Letter, Applicant, dated 17 May 12.