RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00470 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. His spine injury be determined to be “in-the-line-of-duty” (ILOD). 2. He be placed into the Integrated Disability Evaluation System (IDES). 3. He be medically retired, and receive back retirement pay from the date of his retirement until the present. APPLICANT CONTENDS THAT: Both of his spinal injuries should have been determined to be ILOD and he should have been medically retired in the grade of Colonel (O-6). In Nov 01, while running into a bunker at Al Jaber Air Base, Kuwait, he tripped, impacted the wall opposite the bunker entrance with his head, and felt pain in his neck and lower back. An Apr 13 Informal Physical Evaluation Board (IPEB) found the applicant unfit for duty due to both his cervical and lumbar spine conditions. The verbiage in his medical records establishes his injuries as far more severe than the bland assessment of the IPEB. His lumbar injury was severe enough that surgery was required. Post-operative range of motion studies, had they been adopted by the IDES, would yield 20 percent disability rating for each spinal area under VASRD, Title 38 Code of Federal Register (CFR), §4.71a. The inquiry rightfully must center on whether these coexisting conditions were ILOD conditions. They qualify as ILOD if they were service aggravated. In 2010, it appears there was an affirmative determination the cervical spine condition was found to be ILOD due to service aggravation. On 14 Jul 11, the applicant received official notification of an affirmation LOD determination. He is entitled to an MEB for both of his spine conditions. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the documentation submitted by the applicant: a. On 13 Jul 10, an Informal LOD Determination was conducted to reviewed the applicant’s “cervical protrusion” associated with his active duty service during the period 27 Oct 01 through 30 Nov 01, for service connection and determined his condition to have “Existed Prior to Service—Service Aggravated.” b. On 24 Jul 10, the applicant appealed the Informal LOD Determination of “existed prior to service—Service Aggravated” for his cervical spine, asking that the injury be re-investigated. c. On 21 Apr 11, a second Informal LOD Determination was conducted on the same “cervical protrusion” condition. Rather than making a determination, the Appointing Authority directed a “Formal Investigation” be accomplished. d. On 14 Jul 11, the applicant received a memorandum from his base Chief of Customer Service, stating “Your line of duty determination (LOD) has been approved.” e. On 17 Oct 11, after the formal investigation of the circumstances of his cervical spine injury, the Report of Investigation Line of Duty and Misconduct Status revealed, and the Appointing Authority determined, his condition “EPTS—LOD Not Applicable.” The applicant was issued official notification on 18 Apr 12. f. On 5 Apr 13, the Informal Physical Evaluation Board (IPEB) held a fitness-only review and found the applicant unfit for duty due to diabetes mellitus and osteoarthropathy (multiple joints). The IPEB did not address the applicant’s spine conditions. g. On 10 May 13, the AFRC PEB manager notified the applicant the IPEB had found him unfit for duty, he would be afforded the opportunity to apply for a regular retirement (NOT a medical retirement) in lieu of discharge, and that he had the right to have his case reviewed by a Formal PEB (FPEB). The applicant did not appeal the decision of the IPEB. H. On 31 May 13, the applicant underwent surgery for “severe multilevel lumbar spinal stenosis.” On 23 Sep 13, the applicant transferred to the Retired Reserve, and was credited with 26 years, 4 months, and 6 days of total satisfactory Reserve service, which included 5 years, 7 months, and 19 days of total active service. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D, and E. AIR FORCE EVALUATION: AFRC/SG recommends denial indicating there is no evidence of an error or an injustice. The applicant filed two LOD cases: 1. One was for cervical disk disease filed in Dec 09 and was determined to have “existed prior to service, service aggravated.” The applicant contended his cervical disk disease was related to his 2001 deployment to Kuwait, however he was never treated downrange, his post-deployment documentation was entirely silent on this condition, and he continued to participate in military duties without complication or restrictions. While witness statements support his contention that he did fall, possibly injuring his neck in Kuwait in 2001, he didn’t complain about this as an issue until many years later with normal annual Physical Health Assessments (PHA) during the intervening years. His PHA completed on 12 Dec 01 listed no back/neck problems, and listed his overall health as excellent. The IPEB noted his condition was more than likely related to normal aging and his obesity. The applicant had a Body Mass Index (BMI) or 35.95, which is unsuiting. 2. Another LOD case was filed in 2008 after the applicant moved a 560 pound BBQ at home and experienced left shoulder and arm pain. An MRI conducted on 18 Mar 08 indicated a herniated disc at C-4/5. No medical documentation was provided to indicate a lumbar injury or any other spinal conditions were LOD injuries. The investigation finding was “existed prior to service, line of duty not applicable.” On 8 Nov 12, the applicant was found disqualified for continued military service for the diagnoses of diabetes mellitus and osteoarthropathy. He also suffered from depression, obstructive sleep apnea, impairment of renal function, chronic esophagitis and hypokalemia. On 5 Apr 13, the IPEB found him unfit for duty. The applicant did not appeal the IPEB determination and opted for transfer to the Retired Reserve in lieu of administrative discharge due to physical disqualification. The IPEB did review the documents provided related to his lumbar condition, but there is no evidence he is entitled to the disability evaluation system for his lumbar spine as there was absolutely no documentation that he had an LOD injury involving his lower back. If the applicant’s condition has changed over time, he can return to the Department of Veteran Affairs (DVA) for re-evaluation. A complete copy of the AFRC/SG evaluation is at Exhibit C. AFPC/DPFD does not make a recommendation, only states that since the applicant’s case was not referred to the PEB, it could not have issued the applicant a medical retirement. A complete copy of the AFPC/DPFD evaluation is at Exhibit D. AFPC/JA recommends denial indicating there is no evidence of an error or an injustice. On 21 Jul 12, an Air Force physician drafted a narrative summary of the applicant’s entire medical history as part of the disability evaluation process. The physician highlighted a motor vehicle accident the applicant was involved in at the age of 18, prior to his military service, which fractured his back at the L1-L3 joints. The physician also noted that in 2008 the applicant moved a 560 pound BBQ at home while not on active duty orders, and afterwards experienced left shoulder and arm pain. Regarding the applicant’s contention the IPEB failed to appreciate the severity of his spinal condition, according to AFI 36-3212, Physical Evaluation For Retention, Retirement, And Separation, when reviewing cases, the IPEB considers medical documentation, any statements submitted by the member, and the administrative file, such as the LODs and the Narrative Summary of the medical evidence. There is no evidence the IPEB failed to appreciate the severity of his spinal condition by not reviewing sufficient evidence during the hearing. There is no medical evidence supporting the applicant’s spinal injuries between the time he alleged he sustained the injuries in Nov 01 and Aug 05. The PHA completed on 12 Dec 01 listed no back/neck problems and his overall health was excellent. He was World Wide Deployable from 2005 to 2007. In Aug 05, there are medical documents regarding arthritic changes and lumbar changes in the same joints he injured in the motor vehicle accident, but not cervical issues. Further, the first medical documents pertaining to cervical injuries appear to stem from the applicant lifting a BBQ at home on 26 Mar 08 while not on active duty orders, over six years after his tour in Kuwait. Regardless of the severity of the spinal injuries, the injury must be ILOD to be compensable. There is no evidence to support the applicant’s contention the IPEB committed an error by failing to consider his injury more severe than they noted in their findings. Regarding the applicant’s contention his injury should have been found ILOD because it occurred in Kuwait in Nov 01, when the applicant was asked for any civilian medical documentation that would support this contention, he provided information from Mar 08 and DVA information from Sep 09. No document was provided that indicates any lumbar injury or other spinal condition was associated with an LOD injury. His line of duty cases were for cervical herniation related to lifting a BBQ grill at home in Mar 08 while not on active duty orders, and not relating back to the incident in Nov 01. Members of the Reserve with non-duty related impairments are only entitled to a fitness for duty review and not a compensable IPEB review. Regardless of whether he was on orders for more or less than 30 days, the IPEB cannot provide disability compensation without an LOD determining there was evidence linking an injury while on active duty in Nov 01 to the spinal condition he presented to the IPEB. There is no evidence of an error by the IPEB. The IPEB found the applicant’s lumbar joints were fractured in a motor vehicle accident more than 18 years earlier and the same ones were currently causing pain, resulting in an unfit finding. The medical records support the IPEB’s findings that the applicant’s cervical injuries were caused by lifting a BBQ grill in Mar 08, six years after the incident in Kuwait. There are no medical records linking the Nov 01 incident to the cervical injuries considered by the IPEB. He has no medical records reporting cervical or lumbar symptoms or injuries from Nov 01 through Aug 05. The applicant did not establish an error warranting correction. A complete copy of the AFPC/JA evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: DoDI 1332.38, Physical Disability Evaluation, Paragraph E3.P4.5.2.2.2., states “any injury or disease discovered after a service member enters active duty…in presumed to have incurred in the line of duty.” Discovery of the lower back problem occurred in 2001 while the applicant was on active duty. Discovery is the operative word here. Since the IPEB found both the cervical and lumbar injuries unfitting, all that remains is whether the injuries occurred in the line of duty. The AFRC IMT 348, Informal Line of Duty Determination, dated 13 Jul 10 is dispositive of an LOD determination for the cervical spine. This was confirmed by the 14 Jul 11 memorandum from 452 FSS/FSMPS notifying the applicant his LOD determination had been approved, and the AF Form 261, Report of Investigation Line of Duty and Misconduct Status, dated 17 Oct 11. There is nothing in the regulatory scheme which allows for the reversal of an ILOD finding except fraud, newly discovered material evidence or misconduct. Although there is no ILOD determination of the lumbar spine, it too required surgical intervention. The car accident referred to is irrelevant to the question of etiology and discovery as there is no causative proof to overcome the presumption of ILOD. Relief should be granted (Exhibit G). THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission, to include his rebuttal response to the advisory opinions, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While the Board acknowledges the applicant’s initial informal line of duty (LOD) determination and LOD notification letter, we note the ensuing Formal LOD Determination and final determination regarding his spine condition was that his injuries existed prior to service (EPTS). In addition, no documentation was presented which establishes that his lumbar or cervical spine injuries were suffered in the line of duty or should have been found to be unfitting. Because the medical conditions for which the applicant requests medical retirement were ultimately found to be EPTS, they cannot serve as the basis for disability benefits (e.g., medical retirement). While the applicant argues that there is no basis to overturn an initial finding of LOD-Service Aggravated through an informal LOD determination in favor of an EPTS finding, we are not convinced that the ultimate findings of the Formal LOD Investigation were erroneous. In our view, the fact that these findings conflict with the initial findings of the Informal LOD determination does not, in and of itself, form the legitimate basis of a determination that said findings are incorrect. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2014-00470 in Executive Session on 22 Jan 15 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00470 was considered: Exhibit A. DD Form 149, dated 23 Jan 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFRC/SG, dated 20 Mar 14. Exhibit D. Memorandum, AFPC/DPFD, dated 27 Mar 14. Exhibit E. Memorandum, AFPC/JA, dated 12 May 14. Exhibit F. Letter, SAF/MRBR, dated 28 Jul 14. Exhibit G. Letter, Applicant, dated 11 Aug 14, w/atchs.