RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2016-04778

	COUNSEL:  NONE

	HEARING:  NO

APPLICANT’S REQUEST.  Reinstate disability compensation for his in-the-line-of-duty (ILOD) injuries of lower back pain, right elbow pain and bilateral tear of left shoulder, and provide disability compensation for his right shoulder pain.   

APPLICANT’S CONTENTION.  He was originally evaluated in person at Wilford Hall Medical Center and was rated as 20 percent disabled for lower back pain, and 20 percent for right elbow pain.  However, when he appealed to the Formal PEB (FPEB) for consideration for his right should pain, the FPEB denied him compensation for his lower back pain and right elbow pain.  At the time of his retirement, he was dealing with pain in both shoulders.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS.  

On 21 Sep 15, an Informal PEB (IPEB) rated the applicant as having two unfitting conditions, lower back pain and right elbow pain, each individually rated at 20 percent disability.  

On 11 Dec 15, the FPEB determined the applicant’s right should injury and groin strain were unfitting, but not compensatory, and his lower back pain and right elbow pain were not unfitting.  The applicant requested reconsider of the FPEB decision. 

On 27 Jul 16, the DVA notified the applicant his 20 percent disability rating from the DVA for his right shoulder injury was being increased to 40 percent.  

On 15 Sep 16, the Secretary of the Air Force Personnel Council notified the applicant his compensable rating was changed from 20 percent to 40 percent based upon the total combined disability rating established by DVA.  

Under Special Order No ACD-00204, dated 3 Nov 16, the applicant was permanently disability retired with a compensable physical disability percentage of 40 percent, effective 29 Oct 16.  

AIR FORCE EVALUATION.  AFBCMR Medical Advisor recommends denying the application.  In order to restore both the applicant’s low back pain and right elbow pain as unfitting and compensable by the Military Department as initially recommended by the IPEB, first, there must be evidence the conditions sufficiently interfered with the applicant’s ability to perform the duties of his office grade, rank, and rating; with both conditions ILOD.  

With respect to the applicant’s back condition, the MEB narrative summary convincingly discloses the adverse impact the wear body armor had on the applicant’s back condition. Thus, the lumbar/groin condition should be found unfitting.  However, it is possible the intervening events experienced by the applicant [fall from wing of aircraft and fall from a ladder when not in a duty status] clouds the appropriateness of an ILOD finding; particularly since there was recovery from the initial ILOD injury.  Thus, with respect to the compensability for the back condition, the Medical Advisor found insufficient evidence to refute the analysis by the FPEB.  The PEB declared the condition non-compensable “due to the extensive intervening period of time from date of initial injury, two subsequent deployments” [2005/2006], “with full functional recovery,” and “full duty performance without restriction” until presenting with a recurrence of back and pelvic pain after falling from a ladder at home in December 2012.  Under the Prior Service Impairment policy in DoDI 1332.18, Disability Evaluation System, although the applicant’s back injury, when first incurred, was ILOD, SAFPC opined it progressed to unfitness due to an intervening event [the fall from a ladder] when not in a duty status. 

With respect to the applicant’s right elbow condition, after collectively considering that “medical records failed to reveal any further targeted treatment or duty restrictions for his right elbow condition since 2013,” the Medical Advisor, again, found insufficient evidence to invalidate or challenge the decision of the SAFPC.  This then leaves the applicant’s right shoulder ailment as the sole unfitting and compensable medical condition.  Noting the initial 20 percent assigned for the right shoulder and its subsequent increase to 40 percent, following a one-time reconsideration by the DVA reviewer, the Medical Advisor recommends no change of the record.

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION.  The Board sent a copy of the Air Force evaluation to the applicant on 17 Jan 18 for comment (Exhibit D), and the applicant replied on 30 Jul 17.  In his response, the applicant contended his medical clinic failed to properly maintain his medical records, made mistakes in processing his LOD paperwork and even falsified accident reports.  In addition, he provided additional medical documentation from the DVA.  The applicant’s complete response is at Exhibit E.

THE BOARD CONCLUDES:

1. The application was timely filed.  

2. The applicant exhausted all available avenues of non-judicial relief before applying to the Board.  

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is not the victim of an error or injustice.  The Board concurs with the AFBCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  

THE BOARD RECOMMENDS:  The applicant be informed the evidence did not demonstrate material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION: The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered AFBCMR Docket Number BC-2016-04778 in Executive Session on 11 Apr 18:

, Panel Chair
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A: Applicant’s application, DD Form 149, dated 22 Aug 16, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, AFBCMR Medical Advisor, dated 28 Dec 17.
Exhibit D: Notification of Advisory, SAF/MRBR to applicant, dated 17 Jan 18.
Exhibit E:  Applicant’s response to Exhibit D, dated 22 Mar 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings for Docket Number BC-2016-04778 required by AFI 36-2603, paragraph 4.11.9.