RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03462

XXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: YES 

APPLICANT’S REQUEST

The decision of the formal physical evaluation board (FPEB), dated 27 Apr 21 that his condition (degenerative arthritis of the lumbosacral spine with fusion) was not duty related be reversed. 

APPLICANT’S CONTENTIONS

He incurred an in the line of duty (ILOD) injury on active duty and the medical treatment was covered in the ILOD.  All of his medical issues during the following years forcing him to retire are due to the initial injury, as attested to by several doctors.   

As an Air Reserve Technician (ART), he has been in a dual status for over 24 years, with 31 years total military service.  He injured his back in 2005.  His injury was determined ILOD and the Air Force paid for his back surgery in 2007.  He is being forced to retire early due to the FPEB decision, which will cause him to lose his civil service position.  He requests the medical board process make necessary exceptions to accommodate his dual technician status and reverse the FPEB decision.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force Reserve senior master sergeant (E-8).  

AFRC IMT 348, Informal Line of Duty Determination, dated 11 Aug 06, with annotation “Completed 31 Aug 17,” states the applicant injured his back performing a brake change on an aircraft while in Guam on 6 Oct 05.  He was on military personnel appropriation (MPA) orders from 2 through 22 Oct 05.  The appointing authority found the injury occurred ILOD.  

AF IMT 938, Request and Authorization for Active Duty Training/Active Duty Tour, shows the applicant was placed on medical continuation (MEDCON) orders from 5 Mar 07 to 18 May 07 for hospitalization. MEDCON orders were extended through 30 Sep 07 and further extended to 18 Feb 08.  

On 21 Aug 09, the applicant was informed he completed the required years of service per 10 U.S.C. § 12731 and would be entitled to retired pay at age 60 (20-year letter).  

On 24 Jul 15, the applicant entered a period of active duty per his DD Form 214, Certificate of Release or Discharge from Active Duty, dated 27 Dec 15.  The applicant was on Partial Mobilization Orders in accordance with 10 U.S.C. § 12302 in support of Operation ENDURING FREEDOM from 24 Jul 15 to 27 Dec 15.  

On 2 Sep 15, the applicant was seen at the deployed location medical unit.  He stepped wrong and jarred his hip while walking out of the dining facility. The medical note stated he had a previous history of L5-S1 fusion in 2007.  The applicant indicated the pain did not prevent him from doing his duties.  A medical encounter on 3 Sep 15 noted the applicant was seen for low back pain.  He was going to have a nerve abrasion prior to deployment but ran out of time and that his pain had increased since deployment.  He was also seen on 9 Sep 15 for lower back pain with acute exacerbation and trial of left sacroiliac joint injection with steroid.  On 20 Sep 15, he reported the pain was more manageable and reported pain in the superior glute on that date.  He was released and instructed to follow up if the pain worsened.  

The applicant provides a letter from his orthopedics provider dated 25 Mar 19.  It states he had seen the applicant since 17 May 17.  He was diagnosed with LT sacrolitis as the result of his L5-S1 fusion and due to his altered biomechanics.  The applicant was receiving joint injections and most likely would continue have joint pain due to the L5-S1 fusion.  

On 3 Jan 20, the applicant’s unit commander stated in the member utilization questionnaire, the applicant’s return to duty would have a positive impact on the unit’s ability to accomplish its mission.  His current restrictions did not impact his ability to perform his current job but would impact his ability to perform the mission in a deployed environment.  However, the applicant could deploy in a limited status or to limited locations and effectively accomplish his duties.  His commander stated the applicant was a valued senior noncommissioned officer (SNCO) in their unit with a vast amount of job knowledge and experience.  His commander was in complete favor of him returning to duty.  However, if decided the applicant would not be able to fully recover, or doing so would exceed the agreed upon timeline, it was recommended he look for less strenuous work by retraining or retiring.

AF Form 469, Duty Limiting Condition Report, dated 7 Feb 20, states a medical evaluation board (MEB) was required to determine worldwide duty and retention.  The applicant was placed on duty and mobility restrictions through 6 Feb 21.  A package would be created by flight medicine and forwarded to AFPC for a decision.

A MEB narrative summary (NARSUM) dated 10 Mar 20, noted the applicant had an extensive history of chronic low back pain with long term opioid use.  It began in 2005 while lifting a box and experiencing acute low back pain with radicular symptoms.  He had an MRI showing L5-S1 disc bulge.  His records show his condition worsened over the years.  In 2007, he underwent an anterior lumbar inner-body fusion.  His first MEB was submitted in 2009 and his records showed improvement and he was returned to duty.  For unknown reasons, there is a gap in his records from 2009 to 2015, although there are web based physical health assessments (PHA) for 2013 and 2014.  However, they were not in person.    On 25 Aug 15, while deployed, he stepped off a sidewalk and hyper extended his leg, re-aggravating his previous back injury.  Upon return from deployment, he received an epidural on 19 Jan 16 and a follow up set on 22 Apr 16.  He reported greater than 60 percent pain relief after the epidural and the plan was to discontinue pain medication and resume activity as tolerated.  In Aug 16, he reported low back pain after lifting an object at home and the pain was affecting his quality of life.  On 1 Sep 16, he returned to the clinic to recheck his medication for continued low back pain.  He was prescribed hydrocodone acetaminophen.  The applicant returned to the clinic on 16 Sep 20 with complaint the medication was not controlling his pain.  He was then seen on 11 Oct 16, 3 Nov 16, 22 Dec 16, 23 Jan 17, 16 Mar 17 and 5 Apr 17.  On 17 May 17, the applicant was transferred to orthopedics. He was given joint injections and reported 50 percent improvement.  On 11 Oct 17, he reported he strained his back walking his dog and was in severe pain.  On 9 Jan 18, he was seen for medication refill and referral to a neurosurgeon.  On 19 Jan 19, he was seen by his primary care and it was noted he was not taking narcotic pain medication for his back at the time.  He was seen in person for a PHA in Apr 19 and it was reported he was off narcotics since Dec 18. On 28 Feb 20, he was seen by his primary care for low back pain after picking up his granddaughter the night before.  

In a memorandum dated 26 Mar 20, the applicant’s Reserve Medical Unit (RMU) forwarded the worldwide duty evaluation case to AFRC/SGO for review and action.  

On 13 Jul 20, AFR/SGP determined the applicant was medically disqualified for continued military duty in accordance with AFI 48-123, Medical Standards, for his intervertebral disc displacement, lumbar region.

On 13 Aug 20, ARPC/DPTS forwarded the applicant’s medical disqualification case to AFPC per his request for a fitness review determination.    

The applicant provides a letter from his provider dated 11 Nov 20.  His provider noted he had been treating the applicant for degenerative disc disease since10 Aug 16.  The applicant had a back injury while in military service in 2005 and had back surgery.  The chronic changes in his spine from the fusion caused his chronic sacroilitis and chronic low back pain.  It was his provider’s opinion the applicant’s injury and surgery that occurred during his military service was responsible for his chronic low back pain.  

The applicant’s condition was determined not to be an LOD condition and on 13 Nov 20, the applicant appealed the unfitting condition and that it should be deemed ILOD under the eight year rule.  

On 7 Dec 20, the Office of Disability Counsel (ODC) in the SAFPC LOD Appellate Review stated based on clear and unmistakable evidence, reasonable minds could not conclude the condition existed prior to military service.  Accordingly, his case should be justly considered ILOD.  

On 23 Feb 21, the Air Force Personnel Board (AFPB) found the applicant’s condition was NILOD.  The AFPB acknowledged the applicant conceded his degenerative arthritis of the lumbosacral spine with fusion was unfitting; however, contended the condition should have been considered ILOD as he was diagnosed and treated while on active duty orders.  In Feb 06, his back injury was found ILOD and he underwent disc fusion surgery in Mar 07.  He was returned to full duty in Feb 08.  In Jul 15, he deployed and had exacerbated (temporarily flared-up) back pain requiring narcotics for relief.  It was also noted that his fusion and the natural degenerative changes in his lumbar spine subjected the applicant to periods of sudden temporary flare ups.  The applicant exacerbated his back several other times while in civilian status.  His medical records noted his condition was not permanently worsened and improved each time with treatment.  Based on the evidence, the AFPB found no evidence of permanent worsening beyond the natural progression of his condition, and therefore could not find his chronic back pain ILOD.  

Per AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, dated 1 Mar 21, the applicant disagreed with the findings and requested a formal hearing.  

On 23 Apr 21, the applicant appealed the findings of the IPEB and the AFPB that his condition was NILOD.  He stated he deployed to Guam in 2005 and felt a pop in his back while changing an aircraft brake.  He had surgery on his back and while he had some relief, he continued to have pain.  He was returned to full duty in 2009.  He deployed to Qatar from 3 Aug 15 to 27 Dec 15 for 146 days and acutely exacerbated his back after falling off of a sidewalk at least 8 to 10 inches and ended up jamming his hips and back.  It was not that he simply stepped off a sidewalk.  The condition that resulted in him being found unfit is the direct result of the fusion surgery as a result of his injury on active duty in 2005, as attested to by two different doctors in 2017 and 2020.  The exacerbation in 2015 was the final straw and he was unable to complete his fitness assessment in 2016, the reason for the MEB/PEB process.  The system failed him as it was noted in the NARSUM he should not have deployed.  If an MEB had been accomplished back then, the determination would have been ILOD.  He requested the determination be changed to ILOD so he could receive the benefits due him.  

On 27 Apr 21, the FPEB concurred with the IPEB his degenerative arthritis of the lumbosacral spine with fusion was unfitting and did not meet the criteria of the eight year rule.  The FPEB noted the applicant received four physical therapy sessions for his condition but there were no further encounters for the remaining 146 days of the deployment, he was not returned from deployment, he scored an “Excellent” on his fitness assessment on 3 Apr 16.   Accordingly, the FPEB determined his condition did not become unfitting while deployed as he did not require any services outside of the theater clinic, prolonged care or an early return from deployment.  Thus, the Eight Year Rule was not applicable.  The FPEB concluded the applicant’s condition rendered him unable to deploy, meet physical requirements and perform common military tasks; therefore his condition of degenerative arthritis of the lumbosacral spine was incompatible with military service and was unfitting.  

On 28 Apr 21, the SAFPC directed the applicant be separated for non-duty related physical disability.

An email from the Disability Case Manager dated 7 May 21, states the applicant accepted the findings of the FPEB.  

The military personnel data system (MilPDS) shows the applicant was placed on the Retired Reserve List, effective 1 Jan 22, awaiting pay upon age 60.  

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

APPLICABLE AUTHORITY/GUIDANCE

10 U.S.C. § 1207a.  Members with over eight years of active service: eligibility for disability retirement for pre-existing conditions. (a) In the case of a member who would be covered by section 1201, 1202 or 1203 but for the fact the member’s disability is determined to have been incurred before the member became entitled to basic pay in the current period of active duty, the disability shall be deemed to have been incurred while the member was entitled to basic pay and shall be deemed to have been incurred while the member was entitled to basic pay and shall be so considered for purposes of determining whether the disability was incurred ILOD.  

AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, paragraph 1.13. Eight Year Rule. Per Title 10 USC § 1207a, Members with Over Eight Years of Active Service: Eligibility for Disability Retirement for Pre-Existing Conditions, An illness, injury or disease that is EPTS must be deemed to have occurred in a duty status for the purpose of determining disability separation or retirement by a Physical Evaluation Board if the member has at least eight years of total active service at the anticipated time of separation. 

AFI 36-2910, paragraph 1.12. Prior Service Condition (PSC).  For the purpose of disability evaluation system (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, should be considered incurred ILOD, provided the origin of such condition or its current state is not due to the service member’s misconduct or willful negligence, or progressed to unfitness as the result of intervening events when the service member was not in a duty status. Note: Intervening events can be a car accident that worsened the existing condition, a civilian job that aggravates the condition, member’s willful neglect or misconduct.

AIR FORCE EVALUATION

SAFPC recommends denial.  The applicant contends his condition was found NILOD because he sought civilian medical care, the real reason is his condition does not qualify as ILOD because there were documented instances of intervening events which took place while he was not performing military duties.

DoDI 1332.18, Disability Evaluation System, describes a prior service condition as any medical condition incurred or aggravated during one period of active service or authorized training that recurs, is aggravated, or otherwise caused the member to be unfit, provided the original condition or its current state was not due to the members misconduct or willful negligence, or progressed due to unfitness as the result of intervening events while the member was not in a duty status.  The applicant’s records documents at least three intervening events which served to accelerate the progression of his condition into unfitness.  In 2016, he aggravated his back while lifting a heavy object at home.  In 2017, he strained his back while walking his dog and in Feb 20, he aggravated his condition when he picked up his granddaughter at home.  Because of this, his condition cannot qualify as a prior service condition.  The AFPB finding his condition was NILOD is correct.

The applicant was cleared to deploy from Jul 15 to Dec 15, without any mobility or duty restrictions.  During this deployment, he injured his back again when he stepped off of a curb outside a dining facility.  Trigger point injects were recommended and the applicant was prescribed narcotic medication and physical therapy.  The applicant was able to complete his deployment.  Upon return from deployment, he obtained pain relief with the use of pain management injections.  He performed his military duties, attaining satisfactory years of service from 2015 through 2020, when determined he was no longer medically fit to perform his duties.  

On 13 Aug 20, ARPC notified AFPC the applicant was medically disqualified but elected referral into the DES for a fitness review. On 13 Nov 20, the IPEB found the applicant was unfit.  On 20 Dec 20, the applicant appealed the finding to the AFPB.  Through counsel, the applicant argued his unfitting conditions should be deemed to be ILOD because it was a prior service condition (PSC).  Counsel argued the condition was not due to any misconduct on the part of the applicant, nor did it progress to unfitness as the result of intervening events.  On 5 Feb 21, the AFBP denied the appeal and concluded the record clearly indicated there were intervening events outside of military duty, which caused the condition to progress to unfitness.  On 21 Feb 21, the Secretary of the Air Force Personnel Council (SAFPC) denied the request.  On 27 Apr 21, the FPEB determined he was unfit and concluded his unfitting condition was NILOD.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 21 Jun 22 for comment (Exhibit E), but has received no response.

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 finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant requests the Board reverse the decision of the FPEB finding his condition was not duty related based on his dual status as an ART; however, there is no evidence the applicant’s condition was duty related.  As pointed out by the AFPB and SAFPC, there were intervening events that occurred while the applicant was not on active duty.  In this respect, the Board is persuaded the applicant’s condition is likely due to natural progression rather than military service.   Further, the Board notes the applicant concurred with the FPEB findings and recommendations on 7 May 21.  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-2021-03462 in Executive Session on 27 Jul 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 2 Jun 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: AFPB Case, w/atchs, dated 5 Feb 21.  
Exhibit D:	Advisory Opinion, SAF/MRBP, dated 17 Jun 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 21 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.