RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-05406

XXXXXXXXXXXXXX	COUNSEL: NONE 

  	HEARING: NO

APPLICANT REQUESTS THAT:

His injury be found in the line of duty (LOD) and he be entered into the Disability Evaluation System (DES).  

He be granted a medical retirement or in the alternative, be placed on the temporary disability retired list (TDRL).  

APPLICANT CONTENDS THAT:

The decision of the Deployment Availability Working Group (DAWG) that his injury was non-duty related was unfair and unjust.  In Nov 17, he entered into the Non-duty Disability Evaluation System (NDDES).  Substantial medical evidence was provided to show his injury was caused or at least aggravated by his service in the Air National Guard (ANG).  However, the DAWG made the decision the injury was not in the LOD.  He appealed the decision and in Oct 17, the DAWG again found his injury was not in the LOD.   

In 2012, he received a full enlistment physical and an orthopedic examination.   He had no prior back issues prior to his enlistment date.  

In Mar 13, he was diagnosed with a herniated disc.  He attended a 6-week technical school at Keesler AFB, MS while receiving care and recovering from an incapacitating episode. His orthopedic doctor determined sit-ups and running were aggravating symptoms of his disc issues.  He began using an abdominal machine to train for his fitness assessment.    

In Sep 16, while on orders performing a week of annual training, he reported to the 325th Medical Group Clinic (325 MDG) for pain.  The flight surgeon noted he was being treated by a civilian doctor for a herniated disc.

In BC-2007-00406, the BCMR stated AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON) and Incapacitation (INCAP) Pay, states an injury, illness, disease or death sustained by a service member in an active duty status or in an active duty training status is presumed to have occurred in the LOD.    The DAWG provided no documentation on their findings from their evaluation.   The only document the 325 MDG produced is the DD Form 469, Duty Limiting Condition Report, which states he was going through the medical evaluation board (MEB) NDDES process.   

The medical evidence supports a 60 percent rating under the Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 5243, Intervertebral Disc Syndrome; and a 20 percent rating for VASRD Code 8720, Neuralgia, for his pain behind his left knee.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former ANG staff sergeant.

He provides an undated letter from his civilian doctor, which states he was under chiropractic care since 14 Mar 13.  He initially visited his primary care physician on 5 Mar 13 for intense pain behind his left knee.  On 14 Mar 13, X-rays of his lower back showed possible herniated nucleus pulposus with impingement on the associated nerve causing pain in the left knee.  He continued with weekly visits and a treatment regime of massage and heat to his lower back.   

The applicant provides chronological record of medical care dated 15 Sep 16 and other medical evidence, which shows he was seen by his primary care provider  and civilian doctor for chronic low back pain and herniated disc issues.  

AF Form 469 dated 16 Jan 17, shows the applicant was placed on duty and mobility restrictions and was undergoing a MEB.  

The applicant cites BC-2007-00406 as precedent to grant his request (Exhibit C).  On 14 Jun 07, the Board denied the request for an in the LOD determination since the applicant in this case detoured in his travel home following a period of service and by no fault of his own was injured.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit D.

AIR FORCE EVALUATION:

NGB/SGP recommends denial.  There is no evidence to support a link to the applicant’s Mar 13 initial diagnosis of a “herniated nucleus pulposis at L4-S1 with impingement” with a period of military service.  There was also no documentation provided to substantiate the applicant’s duty status for all periods of service mentioned.  Further, there is insufficient medical documentation provided to support an aggravation of his chronic, pre-existing condition and NGB/SGP notes he was able to complete his annual fitness assessment in Feb 16 without restrictions or documented complications.

The events describe the possibility of an acute exacerbation of a chronic, pre-existing condition.  Each instance where the applicant was placed in a new duty status (formal technical school orders, annual training, or other training) indicates that the applicant is presumed fit to perform military duties.  LOD determinations require substantiating medical documentation that connects the specified medical condition with evidence of a duty status at the time of the illness, injury or disease occurred.  The preponderance of the evidence suggests the applicant’s diagnosis existed prior to service and there is no evidence to support service aggravation.  Only AFPC may make a determination on percentages related to DES processing.  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 19 Sep 18 for comment (Exhibit E).  He states the medical reviewer makes a dramatic effort to use the term “chronic, pre-existing condition.”  This is a presumptuous statement since there is no documentation included in the application that annotates any symptoms or medical treatment prior to his enlistment date of 23 Jul 12.  These statements are made without facts or evidence.  DODI 1332.8 defines preponderance of evidence as that degree of proof necessary that there is greater than a 50 percent probability that the disease was incurred during or aggravated by military service.  As with the review by the DAWG, the findings of NGB/SGP are arbitrary and capricious.  The current review as labeled the injury as EPTS without demonstrating any evidence for the assertion.  The applicant’s complete submission is at Exhibit E.  

THE BOARD CONCLUDES THAT:

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 that the applicant is not the victim of an error or injustice.  While we do not dispute the applicant was diagnosed with disc issues in Mar 13, there is no evidence the injury occurred or was aggravated during a period of military service.  Furthermore, we find no evidence of an error or injustice in the processing of his NDDES evaluation or appeal by the DAWG.  The applicant disagrees with NGB/SGP that his injury was a chronic, pre-existing condition; however, he has not provided substantial evidence to show he was injured or his condition was aggravated during a period of military service.  The applicant also cites BC-2007-00406 as precedent to grant his case.  However, we find no similarities and note the Board in that case also denied the request for an in the LOD determination.  In view of the above, the Board concurs with the rationale and recommendation of NGB/SGP and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, 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 Docket Number BC-2017-05406 in Executive Session on 23 Oct 18:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 15 Dec 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Record of Proceedings, BC-2007-00406, dated 14 Jun 07.  
Exhibit D:	Advisory opinion, NGB/SGP, w/atchs, dated 14 Sep 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 19 Sep 18.
Exhibit F:  Applicant’s response, dated 24 Sep 18.  

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