RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02258

XXXXXXXXXXX	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

Her discharge with severance pay (DWSP) be changed to a permanent disability retirement.

APPLICANT’S CONTENTIONS

She was involved in a motor vehicle accident in 2006 which caused her lumbar back strain.  She was placed on a profile due to the pain.  After some improvement, the profile lapsed.  In 2009, she was diagnosed with hallux valgus and underwent surgery in 2011 and 2012.  In 2012 she was involved in another motor vehicle accident which aggravated her lower back condition.  She attended physical therapy which alleviated the pain.  In 2015, she again experienced lower back pain due to her pregnancy and again attended physical therapy.  The decision of the Physical Evaluation Board (PEB) regarding her lower back condition was contrary to substantial evidence that her lower back condition was unfitting as she has a long history of lower back pain.  Had the lower back condition been deemed independently unfitting, she would have received a higher combined compensable disability rating, which would have resulted in permanent retirement for physical disability instead of DWSP.  Her lower back pain rendered her non-deployable, unable to perform a fitness test, and unable to perform her primary duties in her Air Force Specialty Code (AFSC) to which she was given a 40 percent disability compensation rating by the Department of Veterans Affairs (DVA).

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 7 Jun 18, an AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal PEB for chronic lower back pain, bilateral hallux deformity with painful bunions, bronchospasm, and left wrist ganglion cyst.

On 26 Jul 18, the DVA proposed a disability rating for her medical conditions of thoracolumbar strain and spondylosis without myelopathy with degenerative arthritis of the spine rated at 40 percent, right and left hallux valgus deformity with painful bunions rated at 10 percent each, bronchospasm found not service-connected, and left wrist ganglion cyst rated at 10 percent.  She was rated for several other medical conditions with a combined disability rating of 90 percent.

On 31 Jul 18, an 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 bilateral hallux deformity with painful bunions, DVA rated as right and left hallux valgus deformity with painful bunions at 10 percent each with a combined disability compensation rating of 20 percent and a recommendation of “DWSP.”  Her other medical conditions of lower back pain, thyroid condition, bronchospasms, and left wrist ganglion cyst were found as Category II, conditions that can be unfitting but are not currently unfitting.  The board noted the applicant had intermittent lower back pain since 2007; however, it has not required duty or fitness restrictions, has not been treated in physical therapy since 17 May 17, has not entailed evaluation by a physician since 9 Nov 16, and does not appear to be severe or persistent enough to be unfitting for duty.

On 13 Aug 18, an AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant disagreed with the findings of the board and requested a formal hearing.

On 29 Aug 18, an AF Form 356, Formal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to her medical condition of bilateral hallux deformity with painful bunions, DVA rated as right and left hallux valgus deformity with painful bunions at 10 percent each with a combined disability compensation rating of 20 percent and a recommendation of “DWSP.”  Her other medical conditions of lower back pain, thyroid condition, bronchospasms, and left wrist ganglion cyst were found as Category II, conditions that can be unfitting but are not currently unfitting.  The Board noted there is no doubt the applicant has a history of intermittent lower back pain which may have recently worsened, however, found no evidence of any duty, fitness, or mobility restrictions related to her lower back pain; therefore, the Board concluded the applicant’s lower back pain is not unfitting.

On 11 Sep 18, an AF Form 1180, indicates the applicant disagreed with the findings of the board and requested her case be referred to Secretary of the Air Force Personnel Council (SAFPC) for review and final decision.  The applicant also requested a one-time reconsideration of her disability rating for her unfitting conditions.

On 4 Dec 18, a memorandum from SAF/MRBP indicates the applicant’s case was reviewed by SAFPC and upheld the previous boards’ decisions of DWSP at 20 percent finding the applicant’s condition of lower back pain revealed she did not require duty, mobility, or fitness restrictions due to her lumbar condition since Dec 2007, after her initial injury.  Therefore, the board concluded the member’s chronic low back pain not unfitting for continued military service.  

On 26 Dec 18, the applicant’s counsel requested a limited assignment status (LAS) determination requesting the final disposition of her case be deferred so she can be considered for retention.

On 6 Feb 19, the applicant’s request for a LAS determination was denied.

On 21 May 19, the applicant filed a complaint with the Inspector General (IG) office alleging the PEBLO Office neglected her medical evaluation case on numerous occasions; sent her package up to AFPC with outdated forms, missing limitations on her profile, and forced her to re-accomplish her DVA appointment for a disability rating.  This neglect resulted in her receiving a medical separation instead of a medical retirement.

On 28 May 19, 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 16 years, 6 months, and 17 days of active duty.  She was discharged, with a narrative reason for separation “Disability, Severance Pay, Non-Combat, Related IDES.”

On 10 Jun 19, the Wing IG Office conducted a complaint analysis and determined the applicant’s complaint is a command matter.

On 25 Jul 19, the Medical Group reviewed the applicant’s complaint and determined all the applicant’s medical conditions were properly reviewed and appealed.  Any issues with outdated forms or missing limitations on her profile would have been addressed during the appeal process.

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

AIR FORCE EVALUATION

SAFPC recommends denying the applicant’s request for a medical retirement.  The applicant and her counsel have provided no evidence that would rebut the presumption of regularity in the conduct of government affairs.  Counsel’s arguments are noted, but the evidence provided is not sufficient to conclude the applicant is the victim of an error or injustice.  While the applicant’s counsel makes a variety of arguments about errors committed during the applicant’s disability processing, counsel has not cited any new evidence that was not considered during the applicant’s disability processing.  While the applicant and counsel have provided a tome of documentary evidence for review in support of this appeal, none of what was provided is new evidence.  While counsel makes a variety of arguments as to why the findings related to the applicant are erroneous, there is no new and relevant evidence presented to undermine the findings of the IPEB, FPEB, and SAFPC in concluding that the applicant’s lower back condition was not independently unfitting at the time of the applicant’s disability discharge.  While the applicant’s submission includes a response to an IG complaint regarding her disability processing, the documentation provided on this point indicates that the IG complaint revealed no findings to indicate that the processing of her case somehow constituted an error or resulted in an injustice.  Ultimately, applicant’s counsel wants the AFBCMR to substitute its judgment for that of the IPEB, FPEB, and SAFPC and come to a different conclusion as to whether the applicant’s lower back condition was unfitting at the time of her disability discharge.  The available evidence suggests that but for the referral due to the bilateral hallux valgus deformity, the applicant may have continued military service.  Also, not convincing of the unfitting nature of the low back pain is the applicant’s subsequent application for LAS which would have allowed her retention for continued military service.

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 7 Mar 22 for comment (Exhibit D), and the applicant replied on 31 Mar 22.  In her response, the applicant’s counsel contends the advisory opinion fails to address the ample evidence at the time of her hearing that proved her lower back condition was unfitting.  Before consideration by SAFPC but after her PEB, medical evidence showed her lower back pain was so severe that it caused urinary retention and an occasional complete loss of bladder control about twice per week.  The advisory opinion’s main argument is that the applicant did not present new evidence, therefore there is no basis for the Board to find an error or injustice.  The decisions by the PEB and SAFPC were not supported by the medical evidence, and therefore, are erroneous.  The advisory opinion’s reliance on the applicant’s LAS application as evidence she was fit is misguided.  She submitted that application when, against substantial evidence to the contrary, all her efforts to have her lower back pain deemed unfitting had been rejected and she was set to be separated without retirement benefits.  It was a reasonable action of a person trying to salvage her 16-year Air Force career.

The applicant’s complete response is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends denying the applicant’s request for a favorable finding of an unfitting low back condition.  The facts remain that the applicant indeed had longstanding intermittent flare-ups of subjected lower back pain, but the evidence specific to her spine (excluding her unfit foot conditions) did not support a finding of unfitness near the snapshot of time of service separation. The applicant’s counsel cites various statements as facts in his memorandum to the Board which reflected components of only partial truths or accuracy.   First, counsel notes that “On 20 Aug 12, [the applicant] was involved in another motor vehicle accident that aggravated her back condition.”   While it is true that the applicant reported such an accident, evidence of an aggravation of her prior back condition (diagnosed as a back strain) is inconsistent with the reviewed medical records.   The evidence remains clear that in the summer of 2008, her low back strain was completely healed.  Her physical examination was normal, she was without symptoms and she was fully engaged in all activities.   Additionally, her new diagnosis after the second motor vehicle accident was that of a muscle spasm vs her prior condition of a back strain.  This advisor agrees with counsel whereby he states that in regards to her diagnosis of muscle spasms, “…at some point her pain had resolved.”  That time of resolution occurred on 11 Dec 12 when she reported no further pain or numbness in her legs.
   
Excluding a single clinic visit for lower back pain that was associated with giving birth in Dec 15, counsel appropriately cites the next chronological evidence of a physical therapy referral for lower back pain as Sep 16…nearly four years after her lower back pain associated with muscle spasms.  Evidence during that four year interim held true that the vast majority of her medical visits remained specific to the issues with her feet and surgical rehabilitation of the same.   Counsel appeared to concur with such a statement when he authored, “Meantime, [prior to Nov 16] medical records continued to reflect that her hallux valgus-related pain (foot conditions) and functional limitations persisted despite numerous attempts at treatment.” 

Counsel also brought forth applicant’s concerns as gathered from her Disability Benefits Questionnaire (DBQ) when applying for DVA benefits.  Her DVA Compensation & Pension (C&P) examination DBQ for the spine was dated 6 Mar 18 and contained entries that were inconsistent with both comments authored in counsel’s memorandum as well as in reviewed medical records.   The DBQ noted mid-low back pain was near daily onset with no flare-ups of the thoracolumbar spine.   A comprehensive medical record review discovered the inconsistency of the above statements.  Back pain was not a near daily occurrence for there were multiple prolonged periods of being pain free.   Additionally, flare-ups did occur which prompted various referrals to physical therapy.  The DBQ itself remained inconsistent whereby it listed “no” as to having any functional loss or functional impairment because of the back condition, but then it goes on to state a limited spinal range of motion (ROM) causing functional loss (forward flexion of 25 degrees [normal = 90 degrees]).   Lastly, she denied any bladder problems on the spine DBQ, but records reveal she reported having small amounts of urinary leakage since the birth of her child.
   
Counsel also summarized and cited the Narrative Summary (NARSUM) dated 14 Dec 17 where the applicant’s diagnoses and prognosis were specific for both her foot conditions as well as the lower back pain.   Under the diagnosis of lower back pain, the doctor listed “Has not found any relief from physical therapy”…which is in direct conflict of objective evidence found in the reviewed medical records.  The doctor’s prognosis with regards to lower back pain included the “probable” need for further physical therapy and the “unlikeliness” of deploying and her ability to perform her fitness test.  Counsel also cited the Commander’s Impact Statement (CIS) dated 23 Apr 18 which documented discussing the applicant’s physical limitations with the doctor, but nowhere on the CIS was it noted that such limitations were rendered and put in place due to a specific spine condition.   This medical advisor opines that the vast amount of records concerning her bilateral foot conditions with surgical repair and physical rehabilitation were the nidus for such physical restrictions and not due to infrequent flare-ups of lower back pain. 
 
Counsel additionally cited the opinion of the applicant’s podiatrist, who connected the applicant’s low back condition with her inability to perform fitness requirements, deploy or perform the duties of her Air Force occupation with the unlikeliness of any favorable change with regards to her low back.  This medical advisor cautiously puts any degree of appropriateness to a Podiatrist diagnosing and rendering a prognosis for a spinal condition involving subjective lower back pain.  A podiatry provider is considered highly credible in regards to managing the applicant’s foot conditions, but minimal valid as per assessing a spinal condition.
  
Counsel also cites the DVA rating for the applicant’s thoracolumbar spine condition of 40 percent which correlates to forward flexion being less than 30 degrees (measured 25 degrees at DVA examination).  Specifically, counsel notes “extremely limited ROM of her back” and this medical advisor agrees that such a measured 25 degrees is indeed consistent as being extremely limited; however, the record often described her restricted duties were mainly deskwork and sitting and the simple act of sitting would clearly dictate forward flexion of the lower spine to be significantly higher than the cited 25 degrees and thus be much closer to near normal at 90 degrees.  Records revealed that the applicant had “minor pain with prolonged sitting and a simple change of position would relieve her pain.”  

It appeared that counsel assumed a nexus of urinary incontinence with that of a severe spinal condition.  Medically, that was not the case.  Her minor symptoms of urine leakage began after giving birth; often a frequent symptom in post-partum mothers.  Additionally, there was no objective evidence to back up the changing intensity of urinary incontinence from that of a small leak to “complete loss of bladder control twice per week” as subjectively described in late 2018.    

Lastly, counsel stated that the applicant’s lower back pain condition “…significantly worsened in the time between the FPEB’s decision (29 Aug 18) and her separation (28 May 19).  Not only was she still exhibiting painful flare-ups that were entirely resistant to injection, pain-relief treatments (sic) it had deteriorated to include incontinence issues, which any reasonable mind would clearly conclude would interfere with the performance of duties. Clearly, at the time she was separated, her lower back pain was unfitting and since the DVA assigned 40 percent in the course of her Integrated Disability Evaluation System (IDES) processing, 40 percent is the appropriate Veterans Affairs Schedule for Rating Disabilities (VASRD) rating.”  However, just the opposite was revealed in the medical records whereby the severe painful limitation of spinal ROM measured both in Mar and Oct 18 improved to “full active ROM without pain” in Jan 19 as noted by pain management.  Such a finding of this non-painful full spinal ROM being seen just five months prior to separation would clearly be rated at 0 percent by DVA impairment guidelines, thus not affecting any change in her current overall rating.  This medical advisor non-concurs with the counsel’s assumption that the specific verbiage of “Again, unlikely to deploy or do her fitness test” as authored by the NARSUM provider, was a clear indication that the applicant’s lower back pain contributed to her limitations to the same extent as her bilateral foot conditions.     

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 14 Apr 22 for comment (Exhibit H), and the applicant replied on 2 May 22.  In her response, the applicant’s counsel contends the AFBCMR Medical Advisor fails to acknowledge the connection between the applicant’s lower back pain and the comments made in the NARSUM, CIS, and the AF Form 469, Duty Limiting Condition Report, detailing the limitations caused by her medical condition which noted she had not found any relief with physical therapy and will probably need ongoing physical therapy and pain management.  She is unable to deploy and complete a fitness test.  The applicant’s lower back pain had worsened after the FPEB finds as she had undergone multiple steroidal injections for the pain that only provided a 40 percent relief which lasted only two days contrary to what the advisory opinion states as having full active range of motion without pain.  The DVA awarded the applicant a 40 percent disability rating for her lower back pain with extremely limited range of motion.  Despite the arguments in the Medical Advisor Opinion to the contrary, the evidence clearly reflects that the applicant’s lower back pain was contributing to her duty limitations and unfitness for duty.  It should have been deemed an unfitting condition and rated at 40 percent consistent with the VASRD.  

The applicant’s complete response is at Exhibit I.

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 concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of SAFPC and the AFBCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While the applicant’s counsel makes a variety of arguments about errors committed during the applicant’s disability processing, counsel has not cited any new evidence that was not considered during the applicant’s disability processing. Even though the applicant had longstanding intermittent flare-ups of subjected lower back pain, the evidence specific to her spine (excluding her unfit foot conditions) did not support a finding of unfitness near the snapshot of time of service separation.  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-2021-02258 in Executive Session on 6 May 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 17 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, SAFPC, dated 5 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Mar 22.
Exhibit E: IG Case File, dated 21 May 19 - WITHDRAWN.
Exhibit F:	Applicant’s Response, dated 31 Mar 22.
Exhibit G:	Advisory Opinion, AFBCMR Medical Advisor, dated 12 Apr 22.
Exhibit H:	Notification of Advisory, SAF/MRBC to Applicant, dated 14 Apr 22.
Exhibit I:  Applicant’s Response, dated 2 May 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.