ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: BC-2012-00966 COUNSEL: None HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His Reserve retirement be changed to a disability retirement. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant is a former member of the Air Force Reserve (AFRES) who served in the grade of master sergeant (E-7). On 1 March 2009, while serving on a tour of active duty from 23 February 2009 to 25 May 2009, the applicant reported for medical care as a result of back pain sustained as a result of lifting baggage for his initial outbound deployment flight. An Informal Line of Duty Determination, dated 10 July 2010, indicates the applicant’s injury was found to be in the line of duty (ILOD). As a result, his Reserve retirement scheduled to be effective 1 August 2009, was put on hold. A Physical Profile Serial Report, dated 5 August 2009, placed the applicant on a “P4” profile, indicating he was not allowed to participate in the Reserve program until after he was cleared from restrictions. The applicant underwent surgery on 5 August 2009. He was subsequently authorized to return to work/school on 14 September 2009, with restrictions of no running and no lifting over 40 pounds. The applicant was transferred to the Retired Reserve Section and placed on the Reserve Retired List effective 1 November 2009. A Department of Veteran Affairs (DVA) Rating Decision, dated 21 September 2009, indicates the applicant was awarded a 20 percent disability rating for “low back spasms, s/p microdiscectomy L5-S1 with resolved left leg neuropathy and pain.” The applicant also received service connection and a ten percent disability rating for Tinnitus and a ten percent rating for bilateral hearing loss; the latter was subsequently determined not service connected with “normal hearing for VA purposes.” On 27 November 2012, the Board considered the applicant’s initial appeal and recommended he be placed on Invitational Travel Orders for the purpose of evaluation for an analysis of his qualifications for worldwide duty, at or about the date of his release from military service (2009) and currently. For an accounting of the facts and circumstances surrounding the applicant’s earlier appeal; and, the rationale of the decision by the Board, see the Record of Proceedings (ROP) at Exhibit F with Exhibits A through E. As a result of the Board’s earlier decision, a Narrative Summary by a military spine surgeon, dated 26 April 2012, indicates the applicant’s condition as chronic low back pain secondary to lumbar spondylosis. The surgeon also indicates the applicant’s condition is “unlikely to resolve and allow him full functional capabilities.” Referring to the applicant’s prognosis, the provider opined, “This is stabilized maintenance of a chronic condition with no further treatment at this time.” A complete copy of the Narrative Summary is at Exhibit G. ______________________________________________________ BCMR MEDICAL CONSULTANT’S EVALUATION: The BCMR Medical Consultant recommends denial. The Medical Consultant states that in the case under review, despite the applicant’s pain episodes and his current contentions, the record indicates that he had an approved retirement date of 1 August 2009, which was revoked in order for him to receive surgical treatment and, that his medical condition had improved significantly after surgery. His retirement date was then re- established with an effective date of 1 November 2009 following his recovery from surgery. The Air Force appropriately revoked the first retirement date so the applicant could complete treatment. From indications in the record, the applicant had a good; at least immediate, post-operative result, which likely led his physicians, and the applicant, to believe that there was insufficient residual impairment that would justify a medical release from service were he not already retiring. Since the applicant had an approved retirement date, had he undergone a Medical Evaluation Board (MEB) and referral to a Physical Elevation Board (PEB), it is entirely possible that he would have been returned to duty to proceed with his previously approved retirement, under the presumption of fitness rule. At the same time; however, noting the nature of the applicant’s complaints and the need for surgical treatment, the PEB would have been challenged with determining if the applicant’s medical condition overcame the presumption of fitness, in accordance with Department of Defense (DoD) Instruction 1332.38. Thus a key determination before consideration of initiating an MEB and subsequent PEB action would first be to determine whether the applicant’s post-operative results and ability to function would have disqualified him for further service, but not for his pending length of service retirement; then, to determine if the impairment overcomes the presumption of fitness if referred to the PEB. The Medical Consultant opines the applicant would not have overcome the presumption of fitness. The Medical Consultant can only assume, absent the evidence, the applicant’s ability to function was not believed to be sufficiently impaired at the time of remobilization to warrant retention on medical continuation orders; nor was he impaired sufficiently after recovery from surgery to warrant MEB processing. If the applicant insists on an unfit finding, under the Integrated Disability Evaluation System, the Military Department would accept the rating decision of the DVA, but apply the rating(s) only to the unfitting condition. In this case, the back pain which was rated at 20 percent, would only qualify him for separation with severance pay. It is acknowledged that his medical condition appears to have worsened by the time of his 4 April 2012 Compensation and Pension (C&P) Examination; however, noting the identification of the left lower extremity radiculopathy, as well as the degenerative disc disease of the spine, a higher disability rating would be considered unlikely; albeit likely not representative of his level of impairment at the “snap shot” time of his November 2009 release form service. It should be noted that the applicant’s thoracolumbar spine forward flexion, as determined by a military physical therapist in April 2013 averaged 25 degrees. This finding alone would justify a 40 percent rating under the General Rating Formulas for Diseases and Injuries of the Spine. However, neither of the two aforementioned findings is indicative of the applicant’s level of impairment at the time of his release from service. The Medical Consultant opines a 20 percent severance pay disposition would be a greater long-term detriment to the applicant than the Reserve retirement he currently holds. Unless the Board determines that an egregious error or injustice took place by failing to conduct an MEB in 2009, and this has resulted in a progressive detriment to the applicant, the Medical Consultant does not believe his fitness to serve or his level of impairment at the “snap shot” time of final military disposition should be based upon a 2012 or 2013 medical assessment. Further worsening of conditions over time is the purview of the DVA. A complete copy of the BCMR Medical Consultant’s evaluation, with attachment, is at Exhibit H. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He is certain that had he stayed in the military and never considered retiring, he believes he would not have met the physical requirements to qualify to remain in the service. He sincerely feels his ILOD injury ended his military career. His back pain was virtually non-existent right after his surgery as was the burning pain down his leg and into his left foot. However, the numbness remained in his left thigh above the knee. He was told the numbness would go away within a year. This thigh numbness/tingling has not stopped and his back pain began again within a year. Prior to this ILOD injury, he did not have back problems. He was not evaluated by the Air Force as to his fitness for duty after his surgery, which was delayed by approximately five months due to a misdiagnosis. The Medical Consultant’s opinion that he would not have overcome the presumption of fitness is purely speculatory and unsubstantiated by fact. He is no longer in agreement with receiving a disability separation with severance pay. He now understands that severance pay is for members not eligible for retirement. He worked hard and completed the required time to qualify for retirement under Title 10, United States Code. It would be unfair to reverse his retirement qualification after meeting the requirements and officially retiring over three years ago. He disagrees with the Medical Consultant’s evaluation and the recommendation to deny his request, as his life is forever changed when his “L5” disc ruptured while vertically lifting the baggage over his head to personnel on the baggage truck that day. The pain he has endured, the medication he has consumed, and the delay of appropriate treatment took its toll on him not only physically, but emotionally as well. His ILOD injury has robbed him of his vitality and basic physical capabilities. He appreciates the opportunity to respond to the Medical Consultant’s evaluation and sincerely hopes to receive a fair consideration of his case. The applicant’s complete rebuttal, with attachments, is at Exhibit J. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. In earlier findings, the Board directed the applicant be put on invitational orders for the purpose of evaluation for an analysis of his qualification for worldwide duty, at or about the date of his length-of-service retirement and current state. After thoroughly reviewing the requested Medical Narrative Summary, the BCMR Medical Consultant’s evaluation, the evidence of record, and noting the applicant’s contentions, we find no basis to adjust his records to reflect a disability retirement. As indicated by the evidence of record, the applicant was found fit, with restrictions, subsequent to his surgery; and, returned to duty so he could proceed with his approved retirement. This is documented by the applicant’s neurosurgery physician at Wright-Patterson Medical Center, dated 14 September 2009, authorizing the applicant to return to work/school with restrictions of no running and no lifting over 40 pounds. The military DES only offers compensation for an illness or injury that is the cause for career termination; and then only to the degree of impairment present at the “snap-shot” time of final military disposition, and not based upon future occurrences or developments. Although, the applicant contends his condition has progressively worsened, the DVA is authorized to offer compensation for any medical condition with a nexus to military service, without regard to its proven impact upon a service member’s fitness to serve or the narrative reason for release from service. Although, the BCMR Medical Consultant opines that had the applicant been found unfit for duty at the time of his release from service, his condition at that time would more than likely have resulted in a 20 percent disability rating with severance pay. As the applicant would have had to make a choice at that time to accept the disability separation with severance pay; or, his length-of-service retirement, the Medical Consultant points out that a 20 percent pay disposition would be a greater long-term detriment to the applicant than the Reserve Retirement he holds. We are sympathetic to the applicant’s situation and recommend he continue to pursue the Department of Veterans Affairs disability system for appropriate care and benefits. Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 2. 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 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. ________________________________________________________________ _ The following members of the Board considered AFBCMR Docket Number BC-2012-00966 in Executive Session on 11 March 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2012-00966: Exhibit F. ROP, dated 21 Dec 12, w/Exhibits A through E. Exhibit G. Medical Narrative Summary, dated 26 Apr 13. Exhibit H. Letter, BCMR Med Cnslt, dated 2 Apr 13, w/atch. Exhibit I. Letter, SAF/MRBC, dated 17 May 13. Exhibit J. Letter, Applicant, not dated, w/atchs. Panel Chair