RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03920 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His records be corrected to reflect that he retired effective 24 November 2011 with the associated back pay. APPLICANT CONTENDS THAT: His diagnosis of intervertebral disc degeneration – lumbar, should be considered unfitting and he should be placed on the Permanent Disability Retired List (PDRL) with a 40 percent disability rating. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, on 11 Oct 05, he entered the Regular Air Force. On 27 Jul 11, an Informal Physical Evaluation Board (IPEB) found the applicant unfit and recommended he be discharged with severance pay with a disability rating of 10 percent for diagnosis of degenerative lumbar disc disease with chronic low back pain. On 23 Nov 11, the applicant was honorably discharged with a narrative reason for separation of “Disability, Severance Pay, Non-Combat.” He was credited with 6 years, 1 month, and 13 days of total active service. On 11 Feb 14, the Department of Veterans Affairs (DVA) evaluated the applicant’s diagnosis of lumbar disc disease (back pain) and proposed that the previous 40 percent disability rating be decreased to 10 percent. The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force Offices of Primary Responsibility (OPR), which are included at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating the preponderance of evidence reflects no error or injustice occurred during the disability process. On 27 Jul 11, the IPEB found the applicant unfit and recommended discharge with severance pay with a disability rating of 10 percent for diagnosis of degenerative lumbar disc disease with chronic low back pain. On 14 Sep 11, the Formal Physical Evaluation Board (FPEB) also recommended discharge with severance pay with a disability rating of 10 percent for diagnosis of bilateral foot pain. On 15 Sep 11, the applicant concurred with the FPEB findings and on 20 Sep 11, the Secretary of the Air Force directed the applicant be separated from active service for physical disability under the provisions of 10 USC 1203. On 23 Dec 11, the applicant was honorably discharged and was credited with 6 years, 2 months, and 13 days of total active service. The complete DPFD evaluation is at Exhibit C. The BCMR Medical Consultant recommends approval indicating favorable consideration should be given to the spine range of motion measurements conducted on 24 Aug 11 and the probative value of the rating assigned by the DVA. On 25 May 11, an MEB diagnosed the applicant with back pain and recommended referral to an IPEB. On 27 Jul 11, an IPEB found the applicant unfit and recommended he be discharged with severance pay and a 10 percent disability rating. On 5 Aug 11, the applicant disagreed with the findings and recommendation of the IPEB and appealed to the FPEB for a 40 percent disability rating based on his 24 Aug 11, range of motion. On 14 Sep 11, the FPEB upheld the IPEB decision noting the applicant’s two range of motion measurements, with an average of 90 degrees of flexion on both occasions. The board also noted “other non-physiological signs” displayed on examination of the applicant “on numerous occasions in the record.” On 15 Sep 11, the applicant agreed with the findings of the FPEB and elected not to appeal to the Secretary of the Air Force Personnel Council. On 17 Aug 12, the DVA evaluated the applicant’s diagnosis of lumbar disc disease and assigned a 40 percent disability rating. The applicant’s counsel has introduced a variety of circumstances to justify the 40 percent rating; however, he has not explained how the applicant’s range of motion fell from 90 degrees on 3 Jul 11 to a mere 13 degrees on 24 Aug 11 without any intervening reported trauma. Although the applicant’s lumbar MRI scan demonstrated degenerative disc disease and a broad-based disc bulge, this finding alone is not necessarily the cause of the applicant’s pain, nor a measure of its severity; as these radiological findings are common among the asymptomatic population with no history of back pain or injury. Nevertheless, the Medical Consultant has no reason to suspect fraudulent complicity on the part of the military physical therapist who conducted the applicant’s second range of motion. The Medical Consultant also has no reason to suspect the applicant was feigning the severity of his illness, as a chronological review of his record suggests the emergence of a Pain Disorder, where objective findings to explain the degree of pain may be limited, but the individual is clearly functionally impaired. The Medical Consultant recommends granting the applicant relief by amending the record to reflect that he was found unfit by the FPEB and was assigned a 40 percent disability rating for lumbar degenerative disc disease and retired permanently, effective 23 Nov 11. The complete BCMR Medical Consultant evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel refutes the validity of the conclusion of the DPFD advisory opinions and argues that the opinion does not address or respond to the evidence and argument supplied by the applicant. Counsel states that it offers nothing new in the way of analysis or justification, and therefore should be disregarded by the Board. Additionally, counsel indicates the applicant concurs with the BCMR Medical Consultant’s advisory opinion; however, disagrees with the opinion that the applicant’s range of motion assessment is not probative of the applicant’s disability at the time of his discharge due to passage of time. Furthermore, while the BCMR Medical Consultant acknowledges the error of the FPEB in asserting that both of the applicant’s range of motion studies showed 90 degrees of forward flexion, he does not acknowledge the other evidence of PEB bias against the applicant, such as the unsupported assertions of the FPEB that the applicant exhibited "other non­physiological signs on numerous occasions" during the course of his evaluation and treatment by the USAF, or the misleading assertion the applicant had "positive Waddell's signs," when in fact his Waddell responses did not amount to a positive test. The applicant requests that the Board reject the opinion of DPFD and accept the recommendation of the BCMR Medical Consultant that the Board grant his application and the relief he is requesting (Exhibit F). 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 warranting relief. We note the Air Force office of primary responsibility recommends denial stating that the preponderance of evidence reflects no error or injustice in the disability process. However, after carefully reviewing this application, we agree with the recommendation of the BCMR Medical Consultant and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice. Therefore, we recommend the applicant's records be corrected as set forth 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: a. On 27 Jul 11, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was lumbar degenerative disc disease, a condition which is rated at a compensable percentage of 40 percent under Veterans Administration Schedule for Rating Disabilities (VASRD) code 5242-5243; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. On 23 Nov 11, he was released from active duty and on 24 Nov 11, his name was placed on the Permanent Disability Retired List. c. His election of Survivor Benefit Plan option(s) will be corrected in accordance with the member's expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. The following members of the Board considered AFBCMR Docket Number BC-2014-03920 in Executive Session on 10 Jun 15 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 16 Sep 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 30 Oct 14. Exhibit D. Letter, BCMR Medical Consultant, dated 17 Mar 15 Exhibit E. Letter, SAF/MRBR, dated 7 Apr 15. Exhibit F. Letter, Applicant’s Counsel, dated 23 Apr 15.