RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00954

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her discharge for her medical condition of scoliosis be reevaluated and she be awarded compensation for the unfitting, service-connected condition.

APPLICANT’S CONTENTIONS

A mistake was made in the Narrative Summary of the Physical Evaluation Board (PEB); not all medical evidence was reviewed prior to the decision on her case.  Her unfitting medical condition of scoliosis was service related as it was aggravated from her time spent in the service.  She was diagnosed with scoliosis when she entered the Air Force meeting entrance limitations.  Her job in the Air Force, which required her to sit at her desk for 8 hours a day compounded with the physical activity she endured during basic training and her deployment caused her condition to worsen.  She did not receive proper treatment for her medical condition and was not supported by her command.  Her condition worsened due to the lack of treatment and support; her new diagnosis exceeded the Air Force limits for her disease which prompted her discharge.  She originally filed an appeal to the Informal PEB in July 2017 but was advised incorrectly by the unit Physical Evaluation Board Liaison Officer (PEBLO) and the appeal was never accomplished.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5).

Dated 20 Mar 12, DD Form 2808, Report of Medical Examination, indicates the applicant was diagnosed with scoliosis, 28 degrees T5 – T12 and 18 degrees L1 – L4.

On 25 Oct 16, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal PEB for scoliosis.

On 5 Feb 17, the Department of Veterans Affairs (DVA) proposed a disability rating for her Category I unfitting medical condition of scoliosis at 0 percent noting the evidence shows her condition existed prior to service (EPTS).  The report noted the following; there must be objective evidence of worsening of a pre-existing condition in order to establish service connection by aggravation and there is no evidence that the condition permanently worsened as a result of service.

On 8 Feb 17, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to her medical condition of scoliosis found to have EPTS without service aggravation with a recommendation of “Discharge Under Other Than Chapter 61, Title 10 U.S.C. (EPTS).” 

On 9 Feb 17, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant agreed with the findings of the board and waived her right to a formal hearing.

On 27 Apr 17, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of staff sergeant (E-5) after serving four years, nine months, and four days of active duty.  She was discharged, with a narrative reason for separation of “Disability, Existed Prior to Service, PEB (Enhanced).”

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

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the applicant’s request to be awarded compensation for her unfitting, service-connected condition.  On 8 Feb 17 the Informal PEB found the applicant unfit for scoliosis and determined the condition EPTS without service aggravation.  Block 15 of the AF Form 356 contains the following rationale for the EPTS without service aggravation decision “The applicant reported an onset of low back pain in Aug 15 following a deployment to Diego Garcia.  She reported a history of scoliosis diagnosed at the Military Entrance Processing Station (MEPS) with a thoracic curvature of 28 degrees and lumbar curvature of 23 degrees.  She has denied any new specific trauma or injury and her imaging in Aug 15 showed a thoracic curvature of 31 degrees and lumbar curvature of 23 degrees.  Her symptoms have improved/resolved with conservative treatment that has included the following: OTC (Over the Counter) pain medications, muscle relaxants, stretching/strengthening exercises with yoga, topical heat and pressure/massage, physical therapy and work/duty restrictions.  Her exam is otherwise unremarkable.  The applicant’s prognosis is that she should be able to return to her previous fitness level and complete all portions of the AFFA (Air Force Fitness Assessment); however, she is not deployable, as she is likely to continue experiencing intermittent low back pain, especially with periods of immobility, carrying extra weight or running.  Since the applicant is not deployable, the IPEB finds the applicant’s condition unfitting for continued military service.  Additionally, the IPEB finds that the condition EPTS without any service aggravation, as the applicant has returned to her previous level of fitness and the symptoms she experienced were temporary in nature and a natural course of this disease process.  The applicant’s commander has indicated the applicant is able to function in her primary Air Force Specialty Code (AFSC) and recommends retention.  The AF Form 469, Duty Limiting Condition Report, indicated the applicant has the following mobility/duty/fitness restrictions: no running/walking on the AFFA; no strenuous/high impact activities; no prolonged high intensity aerobic/cardiovascular activities; no Primary Change of Station (PCS)/Temporary Duty (TDY)/mobility.”

Although the member points out that the AF Form 356, incorrectly states that MEPS diagnosed a 23 degree lumbar curvature but should read 18 degrees, it has no true bearing on the PEB’s decision and only illustrates the scoliosis condition was previously documented to have EPTS per the DD Form 2808.  Additionally, the DVA Disability Evaluation System proposed rating decision, dated 2 Feb 17, also noted “The evidence shows that scoliosis existed prior to service.  There must be objective evidence of worsening of a pre-existing condition in order to establish service connection by aggravation.  There is no evidence that the condition permanently worsened as a result of service… We have assigned a non-compensable evaluation for your thoracolumbar spine based on range of motion within normal limits.”  Furthermore, based on the DVA’s medical examination of the applicant’s back condition, they assigned a zero percent rating for DoD purposes per the 2 Feb 17 Proposed Ratings Code Sheet.  On 9 Feb 17 the applicant accepted the IPEB’s findings of EPTS without service aggravation but did not seek Office of Airmen’s Counsel advice or representation. There is no evidence that she appealed to the Formal PEB based on her elections.  Additionally, her contention that the PEB failed to fully review all available medical documentation is also false.  Although the medical documentation that she submitted as part of this BCMR submission might not have been included in the PEB record, the PEB reviews all available electronic medical record documentation prepared and uploaded by the Medical Treatment Facility during the review process.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 6 Dec 21 for comment (Exhibit D), and the applicant replied on 17 Feb 22 asking for her case to be administratively closed to allow more time to formulate a response.  On 24 Mar 22, the applicant provided a response to the advisory opinion.  In her response, the applicant contends the PEB did not have a true picture of her condition and its progression during her time in the service as not all the evidence was presented to the board.  At the time of her accession into the Air Force, she met the accession standards for her lumbar curvature but her condition worsened over her Air Force career which resulted in her medical discharge.  There is clear evidence her condition was aggravated and was permanently worsened outside the normal progression of the disease as a result of her service.  As for the contention that she did not appeal the PEB decision, she was informed by the PEBLO office that she may continue the appeal process, but it would take longer and was told she could appeal her decision through the DVA after her discharge which she later found out was incorrect.

The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DPFDD responded to the applicant’s rebuttal stating her condition was found during her MEPS entrance exam and although at the time she met entrance standards, her condition worsened while she was in service which is considered a natural progression of the condition. There is nothing in her medical records that would indicate a specific event that could be considered service aggravation.  Furthermore, the 20 Apr 16 Medical Narrative Summary prepared by her medical provider indicates she denied any new specific trauma or injury.  This confirms that the condition was not service-aggravated.  Per our original advisory both the PEB and the DVA independently determined that this condition EPTS and was not service-aggravated based on her medical records. Due to this fact, the DVA did not service-connect this condition and issued a 0 percent rating for Disability Evaluation System (DES) purposes only.  Therefore, even if the PEB would have determined this condition service-aggravated, we would have still had to use the DVA's 0 percent rating under the IDES process.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 29 Jul 22 for comment (Exhibit G), however, the applicant has not responded.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions. While the Board notes the applicant met entrance standards, her condition was considered to have existed prior to service (EPTS) and worsened over time, which is considered a natural progression of the illness.  In addition, there is no evidence of a specific event that occurred to be considered service aggravation.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2021-00954 in Executive Session on 26 Jan 22 and 29 Sep 22:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 4 Dec 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DPFDD, w/atchs, dated 16 Jun 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 6 Dec 21.
Exhibit E: Applicant’s Response, dated 24 Mar 22.
Exhibit F: Advisory Opinion Email, AFPC/DPFDD, dated 28 Jul 22.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 29 Jul 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.