RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2007-02827

            COUNSEL:  NOT INDICATED

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be permanently retired by reason of  physical  disability,  rather  than
discharged.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

She should have been permanently retired by reason of  physical  disability,
rather than discharged.   Although  the  Formal  Physical  Evaluation  Board
determined her scoliosis  was  not  service-aggravated,  the  Department  of
Veterans Affairs (DVA) has determined otherwise, and awarded her a  combined
compensable disability rating of 40 percent for the condition.

In support of the appeal, the applicant submits a copy of her DVA rating.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 2 Jan 02, for a  term  of
four 4 years.

A Medical Evaluation Board (MEB) convened on 6 May 02, to determine  whether
she should be continued on active duty due to the  diagnosis  of  scoliosis,
symptomatic, existed prior to service without service aggravation.  The  MEB
referred her to an Informal Physical Evaluation Board (IPEB).

On 16 May 02, an IPEB convened and determined she was  unfit  for  continued
active duty and recommended she  be  separated  with  severance  pay  and  a
compensable rating of 10  percent.   On  1  Jul  02,  she  agreed  with  the
findings and recommendations of the IPEB and did not submit a rebuttal.   On
3 Jul 02, she was honorably discharged under the provisions of  Chapter  61,
Title 10,  U.S.  Code,  for  disability,  existed  prior  to  service.   She
completed a total of 7 months, and 22 days of active  service.   On  20  Apr
04, the  DVA  awarded  her  a  combined  compensable  disability  rating  of
40 percent, based  on  scoliosis,  existed  prior  to  service,  permanently
worsened as a result of service, effective 24 Aug 02.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPD recommends denial.  DPPD states in part,  that  the  preponderance
of evidence  reflects  that  no  error  or  injustice  occurred  during  the
disability process.  The Department of Defense (DoD) and the DVA  disability
evaluation systems operate  under  separate  laws.   Under  Title  10,  USC,
Physical Evaluation Boards must determine if a  member’s  condition  renders
them unfit for continued military service relating to their  office,  grade,
rank or rating.  The fact that a person may have a  medical  condition  does
not mean that the condition is unfitting  for  continued  military  service.
To be unfitting, the condition must be such  that  it  alone  precludes  the
member from fulfilling their  military  duties.   If  the  board  renders  a
finding of unfit, the law  provides  appropriate  compensation  due  to  the
premature termination of their career.  Further, it must be noted  the  USAF
disability boards must rate disabilities based on the member’s condition  at
the time of evaluation, in essence, a snapshot of their  condition  at  that
time.  It is the charge of the DVA to pickup  where  the  AF  must,  by  law
leave-off.   Under  Title  38,  the  DVA  may  rate  any   service-connected
condition, based upon future employability or reevaluate  based  on  changes
in the severity of a condition.  This often results in different ratings  by
the two agencies.

The complete AFPC/DPPD evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 19 Dec 07, for review and comment within 30 days.  However,  as  of  this
date, no response has been received by this office.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  The BCMR Medical  Consultant
is of the opinion that no change in the records  is  warranted.   He  opines
that the DVA was overly generous in  awarding  a  disability  rating  of  40
percent, correlating to a range of motion of not greater  than  30  degrees.
While her range of motion was 30 degrees pain-free,  the  VASRD  measurement
of thoracolumbar range of  motion  does  not  take  into  account  when  the
individual starts having pain, but rather the range of motion capability  of
the individual.

It should be noted, that the applicant  had  a  severe  level  of  scoliosis
prior to service and this curvature was not worsened  by  military  service.
She has a condition that should cause back pain with  exertion.   While  the
exertion associated with military service may have  caused  back  pain,  the
pain  was  relievable  with  medication  and  not,  in  itself,   disabling.
However,  these  medications  were  prohibited  from  use  during   Personal
Reliability Program duties due to the potential to cause drowsiness.   Since
the applicant was training as a nuclear weapons specialist,  her  medication
requirement would be incompatible and unsuitable for an  Air  Force  career.
However, her condition was not considered  disabling  for  a  civilian  work
environment.

The Medical Consultant noted, that the  applicant’s  attorney  stated,  that
the MEB narrative  summary  was  written  by  a  Physician’s  Assistant  and
countersigned by a physician.  Contrary to  the  attorney’s  statement  that
the physician was not board certified, the physician’s AFSC was 44F3,  which
implies a board certified/eligible  family  physician.   Regardless  of  the
level of the specialist  who  saw  the  applicant,  she  had  a  preexisting
condition that predisposed her to back pain with  exercise.   Her  pain  was
predictable and could recur at any time with exertion,  and  thus,  she  was
not suitable for military service.

In the medical Consultant’s view,  the  preponderance  of  evidence  of  the
record shows that the  applicant’s  scoliosis  condition  existed  prior  to
service, and  that  her  back  pain  was  the  natural  progression  of  the
condition.  Action and disposition in this case  are  proper  and  equitable
reflecting compliance with Air Force directives that implement the law.

The BCMR Medical Consultant evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the BCMR Medical Consultant’s evaluation was forwarded to the
applicant on 16 Dec 07, for review and comment 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 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.  After a thorough review  of  the  evidence
of record  and  applicant’s  submission,  we  are  not  persuaded  that  the
requested relief should be granted.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air  Force  office  of  primary
responsibility and the BCMR Medical Consultant and adopt their 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 compelling  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  Docket  Number  BC-2007-02827
in Executive Session on 30 Jan 08, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. Kurt R. LaFrance, Member
                       Mrs. Lea Gallogly, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Aug 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 26 Sep 07.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Oct 07.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 15 Nov 07.
    Exhibit F.  Letter, AFBCMR, dated 19 Dec 07.





                                   THOMAS S. MARKIEWICZ
                                   Chair