ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-05406-3

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO  	

APPLICANT’S REQUEST

The Board reconsider his request for the following:

1.	His injury be found in the line of duty (ILOD).

2.	He be entered into the Disability Evaluation System (DES).

3.	He be granted a medical retirement and receive retroactive back pay and compensation until resolution of his case.

4.	His compensable disability rating for his intervertebral disc syndrome be 60 percent and his rating for his radiculopathy associated with sciatic nerve compression, moderate neuralgia be 10 percent.  

RESUME OF THE CASE

The applicant is a former Air National Guard (ANG) staff sergeant (E-5).  

On 24 Jul 12, the applicant enlisted in the ANG and was honorably discharged on 23 Jul 18, with narrative reason for separation of “Expiration of Enlistment.”

On 23 Oct 18, the Board considered and denied his request.  The Board did not dispute the applicant was diagnosed with disc issues in Mar 13; however, there was no evidence the injury occurred or was aggravated during a period of active duty service.  The Board also determined there was no error or injustice in the processing of his Non-duty Disability Evaluation System (NDDES).  The applicant also cited BC-2007-00406 as precedent to grant his request.  However, the Board did not find the cases similar and the cited case was also denied by the Board.  

On 14 Jun 21, the Board reconsidered and denied the applicant’s request for reconsideration.  The Board remained unconvinced he incurred an ILOD injury, was unjustly denied entry into the DES or denied a medical retirement.  In this respect, the Board found no evidence was presented to sustain the applicant incurred an injury or aggravated an injury during a period of military service.  The applicant requested the Board identify documents in his medical records to sustain the decision to deny his case; however, the applicant was reminded it was his burden to provide evidence to substantiate his claim. 

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit J. 

On 17 Nov 21, the applicant, filed a motion before the United States Court of Federal Claims (CoFC) to enter judgment on the administrative record in his favor.  The applicant requested additional information from his wing to show he was on active duty when he incurred a back injury.  If the injury did not occur ILOD, it was at least aggravated during the term of service.  It is undisputed he was diagnosed with a herniated disc by his civilian orthopedic surgeon in early 2013.  The herniated disc and accompanying sciatica were chronic conditions throughout the remainder of his enlistment.  The applicant contends the AFBCMR review was not conducted in accordance with regulations.  He provides new evidence to allow for a thorough review and consideration of his discharge.  

In an order dated 13 Jan 22, the CoFC remanded the applicant’s case to the AFBCMR for reconsideration.  It was ordered the applicant be provided an opportunity to provide additional evidence and supplemental legal argument.  

He served in the Army National Guard prior to enlisting in the ANG.  The Air Force conducted a full enlistment physical and the 2013 diagnosis and all civilian and military consultations are documented in his medical record.  He contends there is an absence of any ILOD investigation or determination that documented he incurred or aggravated his injury while on an active duty status, although his visits to the flight medicine clinic in 2016 and 2017 were while he was in an active duty status. This alone meets the criteria of AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON) and Incapacitation (INCAP) Pay, paragraph 1.8.2, which states, “Any medical condition, incurred or aggravated during one period of active service or authorized training in any of the Armed Forces that recurs, is aggravated or otherwise causes the member to be unfit, should be considered ILOD.”  The AFBCMR may respond that the period of active service must be longer than 30 days.  He was under a doctor’s treatment in Apr 13 and it was noted his symptoms subsided in May 13.  He provides orders that show he was ordered to active duty for technical training from 19 May 13 to 28 Jun 13 (41 days), while he was still under medical care.  He was not offered a right to a physical evaluation board (PEB) to determine the cause of the injury, extent of aggravation and other criteria and the only option available was discharge or participation in the NDDES.  

He joined the ANG in Sep 12 and was diagnosed with a herniated disc in Mar 13.  He asserts he acted in accordance with AFI 36-2910, when reporting his injury in 2014.  He was still ordered to active duty regardless of what was reported to his Guard Medical Unit (GMU).  He was new to the ANG and naïve about LOD considerations.  He had an acute and recurring injury/condition throughout his six year enlistment. The government was aware of his condition and injury while in an active status.  He meets all criteria for a medical retirement.  To substantiate his claims, he provides medical notes for his visits to the flight surgeon in 2016 and 2017 and the active duty orders that cover the time period for both medical appointments.  The new evidence provides indisputable proof he was on active duty when visiting the flight surgeon and that the injury was aggravated during the said period of active service.  Per AFI 36-2910, paragraph 1.10.2.2.1.1, the burden of proof regarding his condition existing prior to service (EPTS) is with the AFBCMR.  

The applicant provides Special Order Number XXXX dated 14 Apr 13, showing he was placed on active duty orders from 19 May 13 to 28 Jun 13 (41 days) for military formal training attendance.  

The applicant provides SF 507-109, Health History Questions/Interval History, dated 6 Feb 14, in which the applicant noted he was diagnosed with herniated disc requiring special or continuous treatment.  

The applicant provides a SF 600, Chronological Record of Medical Care dated 7 Feb 14, which shows the flight surgeon cleared the applicant for flying/special operational duty and the applicant’s medical records were reviewed in accordance with AFI 48-123, Medical Standards.  

The applicant provides special order number XXXX dated 18 Apr 14, showing he was placed on active duty orders from 26 May 14 to 21 Jun 14 (27 days) for military formal training attendance.  

The applicant provides special order number XXXX dated 6 Mar 16, showing he was on a period of active duty from 12 Sep 16 to 19 Sep 16 (8 days) for annual training (AT).  He provides a medical note to show he was seen at the flight medicine clinic on 15 Sep 16 for complaint of low back pain.  The applicant stated his back pain returned during the period of his active status while exercising.  He stated he had been seen by his own primary care provider for chronic low back pain and herniated disc issues.  The applicant was not placed on any work or duty limitations and was instructed to follow-up as needed with his primary care manager or the flight medicine clinic.  

In an email dated 15 Sep 16, the applicant’s unit informed him based on the Medical Standards Directory (MSD) for retention, his case would need to meet a deployment availability working group (DAWG).  The DAWG would determine if he would need an initial review in lieu of (I-RILO) medical evaluation board (MEB), which was the first stage of a potential medical board.  The applicant was asked to provide the list of information in addition to what he had already provided.  

The applicant provides special order number XXXXX dated 10 Jun 17, showing he was on active duty from 26 Jun 17 to 30 Jun 17 (5 days) for AT.  He provides a medical note to show he was seen at the flight medicine clinic on 28 Jun 17.  It was noted he was seen for a follow-up on his herniated disc.  The applicant indicated he was being seen off-base for treatment and was last seen in the flight medicine clinic in Sep 16.  The applicant was released without limitations and instructed to follow up with the flight medicine clinic as needed.  

The applicant’s complete submission is at Exhibit M.

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay,  An illness, injury, disease or death sustained by a member while in qualified duty status is presumed ILOD.  Qualified Duty Status:  Reserve Component members are considered on active duty when on Title 32 and Title 10 orders. 

DoDI 1332.18, Disability Evaluation System and AFI 36-2910, paragraph 1.12. Prior Service Condition (PSC).  For the purpose of DES processing, a PSC is any medical condition incurred or aggravated during one period of active service or authorized training in any of the Military Services that recurs, is aggravated, or otherwise causes the member to be unfit.   

DoDI 1332.18, Disability Evaluation System, 1(c), In order to be rated as unfitting for a condition, the Service member must be impaired to such extent that his or her condition is unfitting independently or due to combined effect.  Physical examination findings, laboratory tests, radiographs and other findings do not, in and of themselves, constitute a basis for determining that a service member is to be rated for a condition.  

AIR FORCE EVALUATION

NGB/SGP finds no evidence to link the applicant’s herniated nucleus pulposis at L5-S1 with impingement or associated chronic low back pain with any period of military service.  The applicant completed an enlistment physical on 12 Dec 11 but the enlistment physical documentation was not submitted.  A review of the enlistment physical would provide NGB/SG a means to validate if the applicant had any prior history of illness, injury or disease prior to enlisting in the ANG.  

The applicant enlisted in the ANG on 24 Jul 12.  On or about 3 Mar 13, he experienced pain behind his left knee and visited his civilian primary care physician and was referred to an orthopedic surgeon/chiropractor.  .  He was subsequently diagnosed with herniated nucleus pulposis at L5-S1 with impingement in Mar 13, while not in a duty status.  He was treated with steroid epidural injections, physical therapy, chiropractic care and the period of incapacitation lasted around nine weeks.  While AFI 48-123, Medical Standards, requires Reserve members to promptly report an illness or injury within 72 hours, the applicant reported his herniated disc condition during his military flight physical on 6 Feb 14, 11 months later.  He noted on the flight physical he was diagnosed with a herniated disc and it required special or continuous treatment.  On 7 Feb 14, the applicant signed the SF 507, Health History Questions/Interval History, reflecting he was medically cleared for flying/special operation duty.  There is no indication or annotation by the flight surgeon on the flight physical addressing the herniated disc and the flight surgeon medically cleared the applicant for flying and special operational duty.

In Feb 14, the applicant began training for his fitness assessment (FA) and began experiencing chronic pain and discomfort behind the knee.  After his FA, he was treated with the same steroidal epidural regimen.  However, there is no military medical documentation substantiating he was treated for this episode or reported his pain/discomfort following his FA to his GMU.  The applicant contends the same occurrences happened after his 2015 and 2016 FAs.  There is no civilian or military medical documentation submitted to substantiate any treatment for his chronic herniated disc after completing his 2015 and 2016 FAs.  The civilian medical documentation submitted for 29 Jun 16, 19 Jul 16, 22 May 17 and 9 Jun 17 discusses the applicant’s herniated disc condition but does not show treatment immediately following the FAs in 2015 and 2016.  

On 18 Apr 14, he received school orders for the dates of 26 May 14 to 21 Jun 14 and was ordered to duty for technical school.  He signed acknowledging his acceptance to attend technical training.  If he was ill or injured at the time, it was his responsibility to notify his GMU in accordance with AFI 48-123.  If he did not report any illness or injury to the GMU during his outprocessing prior to departing for technical school, he was presumed fit for duty.

It appears the applicant only visited the medical group (MDG) flight surgeon clinic when in an active status.  He provides orders to substantiate visits to the base flight surgeon in 2016 and 2017 and the Armed Forces Health Longitudinal Technology Application (AHLTA) notes dated 15 Sep 16 and 28 Jun 17 document he was seen in the flight medicine clinic for lower back pain but notes he was treated by his primary care provider off-base.  The AHLTA notes do not indicate how his low back pain/herniated disc was injured or aggravated while in an active duty status.

In Nov 17, the applicant’s GMU advised him his medical condition was non-duty related and he would be processed through the NDDES.  However, he elected not to enter the NDDES and elected discharge proceedings to be initiated within six months.  The applicant decided to separate and did not proceed with the NDDES process.

The DES, can by law, under 10 U.S.C., only offer compensation for those service-incurred diseases or injuries which renders a member unfit for continued service and were the cause for career termination; and only the degree of impairment present at the “snapshot” time of separation and not based on future progression of injury or illness.  After review of all documentation, NGB/SG finds no evidence to link his herniated nucleus puposis at L5-S1 with impingement or associated chronic low back pain with any period of military service.  

NGB/A1PS recommends denial and concurs with the NGB/SGP’s recommendation.  To establish a service aggravation to an EPTS condition, medical documentation would provide a nexus to military duty by documenting the cause of the condition.  However, the medical documentation provided support the applicant had been receiving ongoing treatment prior to being placed on orders but provides no link to how the military caused the aggravation.  Based on the evidence provided and applicable policy, there is no evidence to support the military caused a permanent worsening of his EPTS conditions.  

Based on the definition and the medical documentation provided, the applicant meets EPTS criteria per AFI 36-2910, dated 8 Oct 15, in effect at the time of the claimed period.  Moreover, EPTS-not Service Aggravated (EPTS-NSA) conditions include chronic conditions and conditions where the incubation period rules out a finding that the condition started during any period of active duty.  Paragraph 1.10.2.2.1.2, states “ARC members with conditions that became unfitting while ordered to active duty of 30 days or less, or while on active duty training (ADT) or inactive duty training (IDT). The standard of evidentiary proof used in making EPTS-NSA determinations is preponderance of evidence.”  Since the periods of service the applicant is claiming were less than 30 days (12-19 Sep 16 and 26 to 30 Jun 17), the appropriate standard of evidentiary proof, preponderance of evidence, was used.  The Summary of Argument incorrectly cites paragraph 1.10.2.2.1.1, which only applies to members on orders greater than 30 days.  Paragraph 1.10.1.2, states a condition aggravated by military service is when there is a worsening of a pre-service medical condition, over and above natural progression, caused by trauma or the nature of military service.  Natural progression is the course an illness, injury or disease would take over time, regardless of military service.  

The complete advisory opinions, with attachment, is at Exhibit M.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 8 Jun 22 for comment (Exhibit N, and the applicant replied on 9 Jun 22.  In his response, he states the original advisory referred to a pre-existing condition.  The applicant strongly objected the implication his condition existed prior to service.  The Air Force in the decision did not mention a pre-existing condition and based the decision on lack of evidence.

In this CoFC claim, the Air Force has simply returned to the claim of a pre-existing condition.  The applicant has fully addressed this argument in previous filings and strongly states there was no pre-existing condition before his term of enlistment.  It is highly unorthodox that the Air Force abandoned the argument during the initial filing, only to return to it again without substantiation.  It is apparent the applicant will not receive a fair review at the AFBCMR level, as the Board consistently pivots between various positions.  

The case was remanded so that evidence can be reviewed that was not previously seen by the Board.  That review has been accomplished and he requests the case be sent back to the CoFC so that a full and impartial judicial examination can be performed.  

The applicant’s complete response is at Exhibit O.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board concurs with the rationale and recommendations of NGB/SGP and NGB/A1PS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  As ordered by the CoFC, the Board reconsidered the applicant’s request his back injury with chronic low back pain be considered in the ILOD, he be entered into the DES and be granted a medical retirement.  In view of the additional evidence provided, the Board obtained new advisory opinions from the NGB and conducted its own independent review of the applicant’s case.  The applicant contends he did not have an EPTS injury prior to his enlistment in the ANG in 2012.  However, the evidence shows his injury and diagnosis of a herniated disc in Mar 13 did not occur during a period of active duty service.  The applicant after his diagnosis completed formal training from May 13 to Jun 13 and contends he was receiving treatment during this time.  However, there is no evidence of a service incurred injury or aggravation or that the applicant was unable to perform his period of service due to his condition.  In this respect, the Board reminds the applicant AFI 36-2910, for Reserve Component members, requires an injury or illness to have been incurred during a period of military service to be found ILOD.  Since the applicant’s injury did not occur during a period of military duty, an LOD determination was not required.  The applicant also did not report his injury until 2014, 11 months later, during his flight physical, although AFI 36-2910 requires Reserve component members to report any injury or illness immediately within 72 hours.  Nonetheless, the applicant was not placed on any restrictions and the flight surgeon medically cleared the applicant for flying and operational duties. In 2014, the applicant was ordered to duty for technical training.  He did not report any illness or injury and was presumed fit and cleared to perform the period of active duty.  While the applicant contends his visit to the flight surgeon’s clinic during his 2016 and 2017 annual tours is sufficient to conclude his injury was aggravated by military service, no evidence was provided to show a nexus of his condition and his military service.  In this respect, simply reporting to the clinic with chronic back pain is insufficient to conclude the applicant incurred an ILOD injury or that the period of service caused further aggravation.  Further, the applicant was not placed on any restrictions or duty limitations and there was no indication he could not perform his duties, a requirement to be placed in the DES. Since the applicant was not placed on restrictions and presumed fit to perform his duties, there was no reason to warrant the convening of a MEB or placement in the DES in accordance with DoDI 1332.18.   The applicant also contends his injury was acute and if not found ILOD it was at least aggravated by military service; however, insufficient evidence has been presented to substantiate this to be the case.  It is the opinion of the Board the applicant’s lower back pain is a chronic condition, as a result of his non-duty related injury in Mar 13, and is likely due to natural progression regardless of military service.  Since the Board finds no evidence the applicant incurred an ILOD injury or that his injury was aggravated by military service, the Board finds no evidence to warrant granting any of the requested relief.  In view of the above, the Board finds no evidence of an error or injustice in the applicant’s honorable discharge for expiration of term of service.   Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2017-05406-3 in Executive Session on 13 Jul 22 and 15 Jul 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit J:	Record of Proceedings, w/ Exhibits A-I, dated 28 Oct 18.
Exhibit K:	CoFC Remand Order, w/atchs, dated 13 Jan 22.
Exhibit L:	Documentary evidence, including relevant excerpts from official records.
Exhibit M:	Advisory Opinion, NGB/A1PS, w/atchs, dated 3 Jun 22. 
Exhibit N:	Notification of Advisory, SAF/MRBC to Applicant,, dated 8 Jun 22.
Exhibit O:	Applicant’s Response, dated 9 Jun 22.
 
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.