RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02743
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His narrative reason for discharge be changed to a medical  retirement  with
disability.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force knowing that he had  chronic  back  pain  failed  to  properly
refer him through the disability evaluation system (DES).

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant a Reservist, was on  extended  active  duty  from  12 November
2001 to 31 May 2002.  The applicant was assigned to the 1SFS,  Langley  AFB,
VA.

A review of the available medical records indicate the following:

On 27 January 1970, the applicant was seen for low back  pain.   The  record
of medical care indicates “lumbar  sacral  pain  -  onset  6 days  ago”  and
diagnosed as mild lumbosacral strain.

On  10  February  1970,  a  follow-up  medical  examination  indicates   the
applicant’s back pain was improving and the examination was normal.

On  11  August  1970,  the  applicant’s  separation   physical   examination
indicates his spine was normal.  It further indicates, “One episode  of  low
back pain  following  lifting  of  heavy  tanks,  March  1970,  x-rays  were
negative, treated with muscle relaxers, diagnosed as  muscle  strain,  still
has occasional low back pain, no comp, no seq.”

On 28 May 1982, the applicant was treated for low back pain  with  exercises
diagnosed as low back strain.

On  19  December  1985,  a  report  of  medical  examination  indicates  the
applicant checked “don’t know” to  the  question  regarding  recurrent  back
pain.

On 14 May 1986, the applicant was diagnosed with recurrent mild  lumbosacral
sprain.

On 10 January 1988, a record of medical care indicates low back pain  “since
lifting object yesterday.”

A medical certificate dated  13  July  1988,  indicates  the  applicant  was
receiving a VA disability of 20 percent.

On 15 July 1989,  a  report  of  medical  history  indicates  the  applicant
checked “yes” to recurrent back pain and  the  applicant  indicated  he  was
receiving VA disability of 20 percent for back pain since 1985.

On 28 July 1993,  a  report  of  medical  history  indicates  the  applicant
checked “no” to recurrent back pain and the physical exam of the  spine  was
checked “normal”.

On 1 March 1997, a medical examination indicates the applicant checked  “no”
to recurrent back pain.

On 12  January  2000,  the  applicant’s  personal  physician  indicated  the
applicant’s history as cervicalgia.   A  magnetic  resonance  imaging  (MRI)
study of the cervical spine was completed and the findings were as  follows:
 the disc space narrowing with endplate spurs and degenerative changes  were
noted primarily at the C4-C5  and  C5-C6  levels  consistent  with  cervical
spondylosis.  There was paucity of subarachnoid space at  those  levels  due
to posterior bony ridges and spurs.  There was a subtle central  focal  disc
protrusion at the C3-C4 level, probably consistent with  a  minimal  central
subligamentous HNP.  There was mild diffuse  disc  bulging  associated  with
endplate spurs posteriorly at the  C4-C5  level.   Some  mild  diffuse  disc
bulging at the C6-C7 level bordering normal.  The cervical cord  was  normal
in size and contour  without  compression  or  intrinsic  abnormality.   The
level of the foramen magnum was unremarkable.

The applicant’s history as lumbago indicates an MRI was  completed  and  the
findings were as follows:  there was disc desiccation noted  diffusely  with
some mild loss of discal height at  the  L3-L4,  L4-L-5  and  L5-S1  levels.
Very subtle central focal disc protrusions at the  L4-L5  and  L5-S1  levels
which may be consistent with minimal subligamentous  HNP  centrally.   There
also was some moderate spinal canal stenosis at the L4-L5 and  L5-S1  levels
probably due to congenitally short pedicles as well  as  due  to  some  mild
facet hypertrophic arthropathy.  The other disc  spaces  were  intact.   The
level of the conus was  unremarkable.   There  was  no  evidence  of  marrow
infiltrative disease.

Reserve Component Health Risk Assessment  (RCHRA)  forms  dated  14 November
2001 and 6 December 2001, indicate  the  applicant  reported  he  had  a  VA
disability for 40 percent relating to a back injury from his active duty  in
1969.

On 28 May 2002, the applicant was seen and treated for recurrence  of  lower
back pains (LBPs).

On 31 May 2002, it appears the applicant was released from active  duty  and
transferred back to the Reserve of the Air Force.

On 22 October 2002, a medical officer interviewed the applicant  and  signed
off on an AF Form 348, Line of Duty (LOD) Determination form.

On  4 November  2002,  a  master  sergeant  within  the   applicant’s   unit
interviewed  the  applicant  and  indicated  the  pain  the  applicant   was
experiencing was a result of a  previous  injury  for  which  he  was  being
compensated.  The interview revealed the applicant was 55 years of age  with
lower back problems and the continuous weight  of  a  firearm  and  required
equipment agitated  the  existing  injury,  and  continuously  standing  and
walking on concrete compounded the existing pain,  mandating  the  need  for
more pain relief medicine.

On 5 November 2002, the applicant’s commander found the  applicant’s  injury
was agitation of a previous injury.  As a result of the  investigation,  the
recommended  finding  was  Existed  Prior  to  Service  (EPTS)  -  LOD   not
applicable.

On 21 November 2002, the medical officer reviewed the applicant’s  case  and
indicated the applicant was subsequently seen on 14  and  19 June,  12,  17,
and 26 July, 14 August, 4, 6, and 20 September, 8, 15, 18,  and  24  October
and 7 November 2002 for  back  pain.   He  had  existing  back  pain  before
reentering active duty and it was aggravated by the nature of  his  military
Air Force Specialty Code (AFSC) (prolonged  sitting,  standing,  carrying  a
gun, a heavy belt, and long shifts).   The  medical  officer  concluded  the
applicant’s condition was service aggravated.

Two undated legal reviews were conducted and indicated the determination  of
“EPTS-LOD Not Applicable” to be  legally  insufficient.   The  first  review
indicates the applicant a reservist, was  activated  on  12  November  2001.
His duties required him to carry a firearm and  wear  a  vest.   On  28  May
2002, he sought medical treatment for lower back pain, and  it  was  learned
he had suffered from chronic back pain for which he is receiving 40  percent
disability from the VA.  On 4 November 2002, a master  sergeant  interviewed
the  applicant  and  determined  “the  current   pain   the   applicant   is
experiencing was a result of  a  previous  injury  in  which  he  was  being
compensated.  The continuous weight of  a  firearm  and  required  equipment
agitates existing injury.  Furthermore, continuously  standing  and  walking
on concrete compounds  the  existing  pain.”   The  analysis  indicated  the
applicant’s preexisting condition is not disputed.  The  issue  was  whether
his military service aggravated his condition.  There was  no  statement  or
finding by the medical officer in the case as  to  the  effect  of  military
service  on  applicant’s  condition.    The   analysis   further   indicated
coordination with  the  medical  officer  was  necessary.   If  the  medical
officer could state the condition was not service  aggravated,  the  medical
officer would only need to document that fact  in  the  applicant’s  medical
records.  No further action would be required, and the AF Form 348  used  in
the  case  would  be  unnecessary.   However,  should  the  medical  officer
conclude the applicant’s military service did aggravate his condition,  such
that an AF Form 348 is required, the finding of EPTS-LOD Not Applicable”  in
box 17 on AF Form 348 must be supported by a preponderance of the  evidence.
 The evidence in this case does not support such a finding.   The  statement
from the master sergeant  in  box  14  indicates  certain  duties  “agitates
exiting injury” and “compounds the existing pain.”  Box 15 of  AF  Form  348
states the proximate cause of injury was determined to be  “agitation  of  a
previous injury.”  Based on this evidence, it is more likely  than  not  the
applicant’s condition was aggravated by his  military  service.   The  legal
review’s recommendation was to coordinate with the medical  officer  to  see
if  it  can  be  concluded  the  applicant’s  condition  was   not   service
aggravated.

The second legal review indicates the applicant received disability pay  for
a back condition which existed prior to his  current  service.   His  duties
consisted of standing gate patrol three to four hours  a  day  on  concrete,
carrying a firearm, and wearing a vest.  On 28 May 2002, he  sought  medical
treatment for lower back pain,  and  returned  for  follow-up  treatment  14
times during the next six months.  On 4 November 2002, a master sergeant  in
the applicant’s unit interviewed him and it was  determined  “the  pain  the
applicant was experiencing was a result of a previous injury.  The  analysis
indicated the “EPTS-LOD Not Applicable” noted in box 27 of AF Form  348  was
not supported by a preponderance  of  the  evidence.   The  medical  officer
stated in no  uncertain  terms  the  applicant’s  back  condition  had  been
aggravated by his military service.  The  master  sergeant  who  interviewed
the applicant similarly concluded the applicant’s current condition was  the
result of an “agitation of a previous injury,” and his use of  such  phrases
as “agitates existing injury” and  “compounds  the  existing  pain”  in  his
statement is consistent with a finding of a  service  aggravated  condition.
On the other hand, there was no  evidence  which  supported  a  finding  the
applicant’s  military  service  did  not  aggravate  his  preexisting   back
condition.  Therefore, the greater weight of credible  evidence  supports  a
finding of “EPTS-Service Aggravated, rather than “EPTS-LOD Not  Applicable.”
 They recommended the  applicant’s  condition  be  characterized  as  “EPTS-
Service Aggravated.”

On 15 January 2003, the commander changed his results of  his  investigation
from “EPTS-LOD Not Applicable to “EPTS-Service Aggravated.”

On 1 April 2003, the applicant transferred to the Reserve Retired List.

On 2 April 2003, the applicant retired  in  the  grade  of  master  sergeant
awaiting pay at age 60.

On 7 May 2003, the appointing authority approved the finding of Air  Reserve
Component (ARC) EPTS - Service Aggravated.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/SG recommended  denial.   They  indicated  that  a  medical  board  was
initiated at 1 AMDS, Langley AFB, VA, but was not  completed  prior  to  the
applicant’s  retirement.   There  is  no  evidence  to  suggest   that   the
applicant’s back pain was of sufficient degree  that  if  processed  through
the disability evaluation system that he would  have  been  found  medically
unfit for continued service or that  if  found  unfit  he  would  have  been
offered a medical retirement.  Only members found unfit with the most  grave
of medical conditions are granted a medical retirement.  The  applicant  met
the presumption of fitness standard when he retired.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 November 2003, a copy of the Air Force  evaluation  was  forwarded  to
the applicant for review and response within 30 days.  As of this  date,  no
response has been received by this office.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommended denial.  He indicated the  applicant
had chronic low back pain with  documented  degenerative  disc  disease  for
which he was receiving DVA service connected  disability  compensation  that
existed prior to reserve duty and was unrelated to his  reserve  duty  prior
to his activation in November 2001.  During the final year of service  prior
to retirement, the applicant  experienced  increased  pain  associated  with
carrying his weapon and gear, and prolonged standing.  There  is  no  report
of injury which would have permanently worsened his underlying  degenerative
spine  disease.   In  order  to  be  eligible  for  Air   Force   disability
compensation a pre-existing condition must be permanently aggravated  beyond
the natural  progression  of  the  condition.   There  is  no  evidence  the
applicant’s condition was permanently aggravated by  his  period  of  active
duty.  There is no evidence which shows his condition would  have  warranted
a rating which would qualify for a  medical  retirement,  noting  also,  the
rating would only be for the degree to which the condition  was  permanently
aggravated beyond the  natural  progression  of  the  pre-existing  disease.
Furthermore, members in the 12 months prior to retirement are  presumed  fit
unless there is clear and convincing evidence to the contrary.  For  members
who are in the process of retiring or separating,  medical  hold  (retaining
on active duty due to medical reasons) is not approved for  the  purpose  of
evaluating or treating chronic conditions,  performing  diagnostic  studies,
elective  surgery  or  it’s  convalescence,  other  elective  treatment   of
remedial  defects,  or  for  conditions  that  do  not   otherwise   warrant
termination  of  active  duty  through  the  Disability  Evaluation  System.
Furthermore, when there has been no serious  deterioration  within  the  12-
month presumptive period, the ability to perform duty in  the  future  shall
not be a consideration.  Action and disposition in this case are proper  and
equitable reflecting compliance with Air  Force  directives  that  implement
the law.

The evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 12 March 2004, a copy of the Air Force evaluation was  forwarded  to  the
applicant for review and response within 30  days.   As  of  this  date,  no
response has been received by this office.

_________________________________________________________________

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  warranting  the  applicant’s  narrative
reason for discharge be changed to a  medical  retirement  with  disability.
After a thorough review of  the  evidence  of  record  and  the  applicant’s
submission, the discharge appears to be in  compliance  with  the  governing
AFI and we find no evidence to indicate his separation from  the  Air  Force
was inappropriate.  We find no evidence of error  in  this  case  and  after
thoroughly reviewing the evidence of  record,  we  do  not  believe  he  has
suffered from an injustice.  In  view  of  the  above,  we  agree  with  the
opinions and recommendation of the Air Force and the Medical Consultant  and
adopt their rationale as the basis for our conclusion the applicant has  not
been the victim of an error or injustice.  There is no evidence which  shows
the applicant’s condition would have warranted processing  through  the  DES
and a  possible  rating  which  would  have  qualified  him  for  a  medical
retirement.  The applicant has received a disability rating from the VA  for
chronic low pack pain, and we believe the VA is the appropriate  agency  for
awarding compensation for his condition.    Therefore,  in  the  absence  of
evidence to the contrary, we find no compelling basis to recommend  granting
the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of an 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-2003-
02743 in Executive Session on 21 April 2004, under the provisions of AFI 36-
2603:

                  Mr. Thomas S. Markiewicz, Chair
                  Mr. Frederick R. Beaman III, Member
                  Mr. Vance E. Lineberger, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 8 August 2003, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ARPC/SG, dated 5 November 2003.
   Exhibit D.  Letter, SAF/MRBR, dated 15 November 2003.
   Exhibit E.  Letter, AFBCMR, dated 12 February 2004.
   Exhibit F.  Letter, AFBCMR Medical Consultant,
               dated 5 March 2004.
   Exhibit G.  Letter, AFBCMR, dated 12 March 2004.




                                THOMAS S. MARKIEWICZ
                                Chair