RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03279 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He receive a medical retirement rather than being discharged from the Air National Guard. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. He injured his head while on active duty and caused damage to his cervical spine. In the years to follow, he began having major complications to include severe pain and nerve damage resulting from spondylosis. The spondylosis caused his discs to bulge and herniate to the fullest degree. He believes that since his injury occurred while serving on active duty that he should be eligible for a retirement from the Air Force. 2. Based on the requirement to receive a permanent disability retirement, a member must be rated at 30 percent disabled or higher. He received a 60 percent disability rating from the Department of Veterans Affairs (DVA) and should be eligible to receive a permanent disability retirement from the Air Force. His disability has had a major adverse affect on his life and has greatly limited his life activities, which include the types of career positions he can apply for or perform. In support of his request, the applicant provides a copy of his Department of Veterans Affairs (DVA) disability rating. His complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Air National Guard in the grade of staff sergeant (E-5). He was released from active duty after completing his manpower authorization (MPA) tour on 30 Jan 02. According to the applicant’s medical records, on 9 Dec 93, he was treated for a head injury; he struck his head after raising his head under stairs. On 14 Dec 93, he was placed on a profile for a two-week period advising him against running, marching, and sports activities; he could walk slowly. On 4 Jan 94, his profile was renewed until 31 Jan 94, post-concussion. On 30 Sep 04, the applicant was placed on a “4T” physical profile for his chronic right arm and shoulder pain for which he was undergoing evaluation and treatment. The applicant’s NGB Form 22, National Guard Report of Separation and Record of Service, reflects he had 12 years and 9 days of total service. Block 23, Authority and Reason, reflects “expiration term of service.” He received an honorable discharge on 27 Nov 04. _________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. The evidence does not reflect the applicant had a functional impairment that could have or should have been the cause for a medical release from military service. The applicant experienced problems in the 2003-2004 timeframe, and up to his date of release. His medical issues included neck and right upper extremity pain and apresthesias for which he was placed on a “4T” profile. The Medical Consultant notes the applicant may have been released from the ANG with a pending/unresolved profile. Particular attention was directed to a Compensation and Pension Examination, dated 9 Aug 07, that examined the applicant’s right upper extremity, which he disclosed “He developed neck, upper back and right arm symptoms suddenly after an injury in 2003;” he goes on to say, he was helping a friend in construction when he lifted a 50 pound bag of singles [sic] in a twisting motion. He had a sudden sharp pain that began in the neck and went down the right arm. His arm was so painful that he sought medical attention, which led to a magnetic resonance imaging (MRI). The applicant was told the result of MRI was that he had a herniated C6-7 disc with C-7 radiculopathy, which raises concern of the true origin of his impairment. Although the DVA granted service connection and compensation for the applicant’s neck and upper extremity impairments, there is no line of duty documents for either impairment. With regard to the applicant’s head injury that occurred in 1993 while on active duty, it is presumed to have been service incurred; however, there has also been no official clinical correlation of record between his head injury, from which he recovered, and the cervical herniated disc; other than his assertion on his DD Form 149, Application for Correction of Military Record under the Provisions of Title 10 U.S. Code, Section 1552. There are no separation physical examination documents or periodic health assessment documents to review, not to say these documents were not completed; however, the evidence is not supplied upon which to make certain administrative and medical assessments of possible error or injustice. The Medical Consultant opines the applicant’s unaddressed “4T” profile assigned during the weeks approaching his date of separation constitutes an unexplained error, which the Medical Consultant opines that the applicant may have been eligible for a Medical Hold to determine if a Medical Evaluation Board (MEB) should be convened, or as a minimum remove the “4T” profile as to indicate his fitness for release from military service. It is concerning that there had been no reported functional impairment, to include an intervening period of subsequent active service, that the “4T” duty restrictions were imposed only 3 months prior to his release from service in 2004; and which did not require surgical treatment until nearly four years thereafter. The Medical Consultant addresses the applicant’s implicit desire to receive a medical retirement; he is advised that the Military Departments, operating under Title 10 USC only offers compensation for and when an illness or injury is the cause for career termination; and then only based upon the degree of severity or impairment at the time of final military disposition. However, the DVA is authorized to offer compensation for any medical condition determined service connected without regard to its proven or demonstrated impact upon a former service member’s retainability, fitness to serve, narrative reason for release from military service, or the span of time since release from military service. Noting the scant service documentation of the applicant’s cervical pain and upper extremity ailment, the only troubling evidence of record is the “4T” profile of September 2004. However, the Medical Consultant finds this document alone insufficient to outright recommend a retroactive medical retirement based upon the medical evidence during the applicant’s final period of service and that which has been provided post- service. The complete BCMR Medical Consultant’s evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 29 Feb 12 for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-03279 in Executive Session on 17 May 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence AFBCMR Docket Number BC-2011- 3279 was considered: Exhibit A. DD Form 149, dated 28 Jul 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Medical Consultant, dated 23 Feb 12. Exhibit D. Letter, SAF/MRBR, dated 29 Feb 12. Panel Chair