RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00118 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be entitled to Medical Continuation (MEDCON) orders beginning the date he was released from active duty. ________________________________________________________________ APPLICANT CONTENDS THAT: He was prematurely released from active duty orders in Mar 09, based on an injury he incurred while deployed. In Jun 08, he deployed to Iraq and started to experience back problems. As a senior airman, he decided to suffer through the pain after seeing a fellow airman being ridiculed by senior leadership for seeking treatment for an illness during a deployment. He reported his back issues during his post-deployment medical in-processing. However, he was still released from active duty which was not in accordance with (IAW) AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation. The issues with his back are the result of repetitive bending, kneeling, and stooping which was accelerated by the weight of the full body armor. He started treatment for his back immediately after returning from his deployment. He does not know when the Informal Line of Duty (LOD) determination was initiated, however, in May 10, he received notification that it was denied because his back injury was a pre-existing medical condition. This is not true, as he has never had any back problems prior to his deployment. According to the AFI an Informal LOD should have been completed within 50 days. He appealed the Informal LOD decision, but never received any updates on his paperwork. He was put on a “P4” profile (permanent disqualification) in Aug 11, but he was not receiving any pay or allowances, which is not IAW Department of Defense Instruction (DoDI) 1241.2, Section 6.2.1. His back condition has dramatically deteriorated. He is receiving spinal block injections in order to manage the pain and be able to walk. He is utilizing his civilian leave and vacation, but at this point he does not have any more leave to use. He is also covering his medical bills out of pocket. To date he has lost over $9,000 in civilian income not including his medical bill. He cannot agree to surgery due to the length of time for recovery, and loss of income for 3-6 months. In Oct 11, a Wounded Warrior Care Coordinator, offered to help him resolve his situation. After several attempts to get the information from his unit, his wife solicited the help of a general officer. Subsequently, in Mar 12, his Informal LOD was approved and found In Line of Duty (ILOD). Four years later, his Medical Evaluation Board (MEB) process still has not been started. On 27 Jul 12, he applied for MEDCON orders and never received any follow-up. He also submitted for Incapacitation (INCAP) pay six months ago and has not seen it either. In support of his request, the applicant provides a personal statement, copies of his orders, post-deployment medical inprocessing paperwork, loss of income statements, and various other documents associated with his request. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to the applicant’s AF IMT 938, Request and Authorization for Active Duty Training/Active Duty Tour, dated 8 Apr 08, the applicant was scheduled for a temporary tour of active duty from 23 Jun 08 to 30 Apr 09. The applicant’s Standard Form 600, Chronological Record of Medical Care, Post-Deployment Inprocessing, dated 7 Feb 09, reflects that he served in Iraq from 27 Jul 08 to 5 Feb 09 and received a referral for evaluation of pain. On 7 Nov 09, an AF Form 469, Duty Limiting Condition Report, was initiated placing the applicant on a temporary physical profile until 6 Jan 10, with no lifting, pulling or pushing greater than 10 pounds, no repetitive stooping, bending, or climbing, no PT testing, non WWD. On 7 Jan 10, an AFRC IMT 348, Informal Line of Duty Determination was initiated by the applicant’s medical provider. Contrary to the SF Form 600, it reflects that he served on active duty status from 23 Jun 08 thru 31 Mar 09. It also reflects that on 23 Mar 09, the applicant reported back pain that developed while he was deployed to Iraq and had progressively believed it was from the heavy body armor, no single traumatic event. The medical provider diagnosed the applicant’s condition as “Lumbago” and recommended that it be found ILOD. On 21 Jan 10, the appointing authority determined that the applicant’s condition was ILOD. In April 10, the medical and legal reviewers nonconcurred with the appointing authority and recommended a new finding: Existed Prior to Service (EPTS)-LOD not applicable. On 13 Apr 10, the approving authority agreed with the medical and legal review’s recommendation of EPTS-LOD not applicable. On 12 Feb 12, another AFRC IMT 348, Informal Line of Duty Determination was initiated. It reflects that the applicant initially reported low back pain on 23 Mar 09 that had developed while deployed to Iraq and believed it was from the heavy body armor, no single traumatic event. The medical provider diagnosed the applicant’s condition as “Posterior Disc Bulge at L5-S1” and recommended that it be found ILOD. On 7 Mar 12, the appointing authority determined it was ILOD and recommended the applicant’s case be forwarded to the HQ AFRC LOD Board. The recommendation was upheld by the AFRC LOD Board on 23 Mar 12, and the final approval authority on 26 Mar 12. On 10 Jun 13, the applicant’s enlistment was extended 12 months to 5 Jun 14, for the purpose of his pending MEB. On 28 Dec 13, the applicant was released from active duty and placed on the Temporary Disability Retired List (TDRL) effective 29 Dec 13. ________________________________________________________________ AIR FORCE EVALUATION: AFMOA/SGHI was unable to make a recommendation for continuous orders for the time period after the applicant’s deployment end- date as he has not provided sufficient evidence to support his claim. SGHI states that the applicant’s former unit should be contacted for further explanation as to why the applicant’s LOD was not found ILOD in Apr 10 and why a MEDCON request was not submitted in Mar 12. The documents provided by the applicant make no reference as to why his LOD or MEDCON request were not completed prior to his orders ending and no MEDCON request was found in the Command Manday Allocation System (CMAS). Typically an Air Reserve Component (ARC) members’ medical unit, in his case the 302nd Aeromedical Staging Squadron (302 ASTS) or assigned unit, the 302nd Security Forces (302 SFS) would complete such a request in CMAS. The applicant would have qualified for MEDCON orders until his LOD was found ILOD or service aggravated which did not occur until 26 Mar 12. There appears to be adequate medical documentation, but there is no explanation as to why his original LOD was found Not ILOD on 13 Apr 10. There is also no explanation as to why a MEDCON request was not submitted by the 302 ASTS or SFS in Mar 12. The complete SGHI evaluation is at Exhibit B. HQ AFRC/SG recommends relief only if the lag time in making a diagnosis was caused solely by inaction on the part of the medical squadron rather than the applicant. On the other hand, if the member did not provide the needed medical information or attend required medical appointments then relief should not be granted. SG states that the applicant’s initial LOD was initiated on 31 Dec 09, by the 302 AMDS (AFRC) for lumbago (low back pain, which is not a definitive diagnosis). There was a delay of several months while the unit made multiple attempts to get the member to get a definitive diagnosis from a medical physician. Ultimately, his condition was found LOD/NA in Apr 10 by the AFRC LOD Board as the only records available were physical therapist and chiropractor notes which indicated some improvement but no diagnosis that could be supported by his history or submitted documents. This is a key point: AFRC cannot find the condition ILOD unless they have an actual medical diagnosis. The LOD would have entitled him to care and treatment for this condition from 31 Dec 09 until Apr 10. He would not have been eligible for MEDCON until/unless the LOD was closed in his favor due to the break in service from Feb 09 through Dec 09. The Armed Forces Health Longitudinal Technology Application (AHLTA) [electronic military medical records] from Peterson AFB, indicate the applicant did have Physical Therapy (PT) consults entered soon after redeployment, but they expired without being booked by the applicant. In May 09, there was a new PT referral requested by the applicant’s spouse on behalf of the applicant with reference that “Pt [patient] works full time night shift in Denver at the jail and is requesting to have PT done in [TRICARE] network because of later hours.” PT began in Jun 09 and continued twice weekly until Nov 09. There is a gap in AHLTA records for a while after this. An LOD reinvestigation was initiated on Jun 10 by the 302 ASTS. Per previous conversation with 302 ASTS, it took 499 days to receive updated information from the member to process the case. A Magnetic Resonance Imaging (MRI) in Aug 10 then a neurosurgery consult in Oct 11, showed a herniated vertebral disc. Based on this information, the case closed on Mar 12 as ILOD for the definitive diagnosis of posterior disc bulge at L5-S1. The applicant was entitled to care and treatment while his reinvestigation was pending from Jun 10 based on his Interim LOD. However, he was not entitled to INCAP or MEDCON until his condition was found ILOD in Mar 12 based on the valid LOD. On 10 Sep 13, his MEB was submitted by the 21st Medical Group to AFPC/DPSDD. Given the above circumstances, the applicant’s case did not meet the requirements for MEDCON at the time. The complete SG evaluation is at Exhibit C. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial of the applicant’s implicit petition for MEDCON orders from the date of his remobilization until the present. The Medical Consultant acknowledges that it is the responsibility of the military health care provider to timely initiate profile restrictions, to timely initiate LOD determinations, and to timely initiate MEB processing IAW established AF policies. However, it is also the responsibility of the service member, in the case of the ARC member, IAW AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, to timely supply necessary medical documentation from civilian sources so that military medical officials may act appropriately on this evidence. The Medical Consultation is also aware of the policies that assure ARC members on active duty orders who sustain an illness of injury that interferes with the performance of military duties [results in profile restrictions precluding worldwide qualification] are either retained on those orders until returned to duty without restrictions or processed through the Disability Evaluation System (DES). Although the applicant has presented an argument for MEDCON orders from the time of his remobilization in 2009 to the present [noting he is currently undergoing MEB, and likely on orders], there are certain factors, some pointed out by AFRC/SG, that confound his request and bring into question the existence of error or injustice to the extent alleged. 1) There is no actual documentation of a diagnosis or treatment of a diagnosis during the deployment; nor is there evidence to reflect the extent of the resultant impairment, if any, while deployed. 2) The SG indicates the applicant was not eligible for MEDCON or INCAP pay since “lumbago,” as listed on his initial LOD document, is not [in his view] considered a “diagnosis,” which is, implicitly, a prerequisite for initiating either of these benefits. The fact that the applicant’s initial LOD recommendation was overturned and ruled EPTS LOD N/A by the AFRC LOD board, would have rendered him ineligible at that time. 3) The SG recommends consideration of relief only if the time lag in making the diagnosis was caused solely by inaction on the part of the medical unit versus the applicant; noting the 499 days which passed awaiting receipt of the applicant’s medical documentation, referred to in the advisory. 4) The applicant’s Duty-Limiting Condition Report (DLC) of 8 Aug 10, is the first and only indication that suggests that the medical unit had concluded that his medical condition had reached the point [Code “37”] of requiring MEB processing. While this date suggests incapacity to meet military physical standards for retention, it does not rule out intervening assignment of duties not involving deployment or the restrictions imposed. It is, however, clear that by 21 Oct 11, the applicant’s surgeon had advised him against continued wear of heavy pack and doing heaving lifting, as this would further aggravate his condition. It is not known whether this information was not timely made available to his military medical unit or whether the fault of the medical unit, noting this assessment is well past the 8 Feb 11, expiration date of his previous DLC report; and fully justified a renewed DLC report since that time. There is presumption of regularity on the part of the military. The applicant continued to receive treatment from his civilian provider, in Nov 11 and on 21 Feb 12; the later visit where he reported improvement after an epidural injection and reported that he had been “back on full duty” working in his civilian corrections job. The Medical Consultant states that the applicant may be eligible for at least periodic restoration of active duty orders to receive treatment for his medical condition on the dates he was required to take leave from his civilian employment, but finds the evidence insufficient to establish MEDCON orders along the entire continuum requested; noting the evidence suggesting that his medical condition waxed and waned while under treatment with epidural and sacroiliac steroid injections; allowing his return to full duty at his place of civilian employment at one point. The Medical Consultant recommends alternatively offering the applicant INCAP for the period he was unable to perform his civilian duties, but was required to use his personal leave to receive pay; likewise, consideration for MEDCON orders for any unpaid absences if proven to represent time he required and received treatment of his medical condition; or, again INCAP pay, but not both, if there is evidence he was unable to perform his civilian occupation. The complete BCMR Medical Consultant’s evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states that the information obtained from the 302nd Aeromedical Staging Squadron (ASTS) is incorrect. His post deployment physical noted that he had back pain and that he needed a follow-up; however, that never took place. Immediately after his return, he reported for inprocessing, and then was granted block leave. Upon completion, he was discharged from active duty without the follow-up ever taking place. According to AFI 36-3212, paragraph 8.6.2. “ARC members who incur or aggravate an injury, illness or disease in the line of duty while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case. These members’ entitlement to full pay and allowances and benefits continue to the same extent provided by law or regulation to regular component members.” There was no delay on his part in keeping his unit updated on his treatment. The same paperwork was turned in several times. He was in pain and loosing income from his civilian job so it was in his best interest to keep in touch with his unit, especially, since he was hoping for MEDCON orders. The advisory states that his “PT began in Jun 09 and continued twice weekly until Nov 09.” However, his therapy actually continued until Jan 10, and after six months of attending the sessions twice weekly without any relief, it was decided that it was not beneficial for him to continue. The advisory also states “Per previous conversation with 302 ASTS, it took almost 499 days to receive updated information from the member to process the case,” again, all the paperwork that he had from four different doctors was turned in personally by him. He informed them that it was all he had at the time, and there were no new updates. Since one diagnosis was not good enough, he got a second, and then third opinion just to make sure they had all that they needed. It was in his best interest to comply with the multiple requests to turn in doctor’s statements. His INCAP pay took over six months to be completed because it was stuck at the unit level. He applied for MEDCON orders (after his second LOD was already approved and found In Line of Duty), but he never received an answer. The last four years has been exhausting, he received no support from his unit despite countless emails and phone calls. His has been out of work again for almost two months due to his back, and is awaiting spinal fusion. The applicant's complete response is at Exhibit G. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant Medical Continuation (MEDCON) orders beginning the date he was released from active duty in 2009. While the applicant is requesting MEDCON orders beginning the date he was released from active duty it appears that his medical provider did not initiate the Informal LOD determination until 7 Jan 10. Therefore, we find no basis to recommend the requested relief. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting partial relief. In this respect, we note the applicant was identified by medical authorities as having an injury to his back that required an evaluation. Subsequently he was placed on a temporary medical profile for 60 days. However, contrary to established guidance dictating that he remain on active duty orders until processed through the disability evaluation system, he was demobilized from active duty. Further, it appears the applicant’s LOD determination which was initially denied in Jan 2010 was subsequently approved in March 2012 for essentially the same back condition that was previously found to have EPTS. Accordingly, it is our opinion that in order to resolve the injustices he has suffered his record should be corrected to show that he was placed on active duty orders for “pay and points” effective the date his medical provider first initiated the Informal LOD (7 Jan 10) until his placement on the TDRL on 28 Dec 13. Therefore, we recommend his records be corrected to the extent 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 he was placed on active duty orders for “pay and points” for the period 7 Jan 10 until he was released from active duty on 28 Dec 13 and placed on the Temporary Disability Retired List (TDRL). ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-00118 in Executive Session on 5 Dec 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 2 Jan 13, w/atchs. Exhibit B. Letter, AFMOA/SGHI, dated 31 May 13. Exhibit C. Letter, AFRC/SG, dated 17 Sep 13. Exhibit D. Letter, BCMR Medical Consultant, dated 30 Sep 13. Exhibit E. Letter, SAF/MRBC, dated 1 Oct 13. Exhibit F. Letter, SAF/MRBC, dated 15 Oct 13. Exhibit G. Email, Applicant, dated 15 Nov 13. 1 2