ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2012-00966
      COUNSEL: None
	              	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

His Reserve retirement be changed to a disability retirement.  

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STATEMENT OF FACTS:

The applicant is a former member of the Air Force Reserve 
(AFRES) who served in the grade of master sergeant (E-7).  On 1 
March 2009, while serving on a tour of active duty from 23 
February 2009 to 25 May 2009, the applicant reported for medical 
care as a result of back pain sustained as a result of lifting 
baggage for his initial outbound deployment flight.  

An Informal Line of Duty Determination, dated 10 July 2010, 
indicates the applicant’s injury was found to be in the line of 
duty (ILOD).  As a result, his Reserve retirement scheduled to 
be effective 1 August 2009, was put on hold.  A Physical Profile 
Serial Report, dated 5 August 2009, placed the applicant on a 
“P4” profile, indicating he was not allowed to participate in 
the Reserve program until after he was cleared from 
restrictions.  The applicant underwent surgery on 5 August 2009.  
He was subsequently authorized to return to work/school on 14 
September 2009, with restrictions of no running and no lifting 
over 40 pounds.  

The applicant was transferred to the Retired Reserve Section and 
placed on the Reserve Retired List effective 1 November 2009.  

A Department of Veteran Affairs (DVA) Rating Decision, dated 
21 September 2009, indicates the applicant was awarded a 
20 percent disability rating for “low back spasms, s/p 
microdiscectomy L5-S1 with resolved left leg neuropathy and 
pain.”  The applicant also received service connection and a ten 
percent disability rating for Tinnitus and a ten percent rating 
for bilateral hearing loss; the latter was subsequently 
determined not service connected with “normal hearing for VA 
purposes.”  

On 27 November 2012, the Board considered the applicant’s 
initial appeal and recommended he be placed on Invitational 
Travel Orders for the purpose of evaluation for an analysis of 
his qualifications for worldwide duty, at or about the date of 
his release from military service (2009) and currently.  For an 
accounting of the facts and circumstances surrounding the 
applicant’s earlier appeal; and, the rationale of the decision 
by the Board, see the Record of Proceedings (ROP) at Exhibit F 
with Exhibits A through E.  

As a result of the Board’s earlier decision, a Narrative Summary 
by a military spine surgeon, dated 26 April 2012, indicates the 
applicant’s condition as chronic low back pain secondary to 
lumbar spondylosis.  The surgeon also indicates the applicant’s 
condition is “unlikely to resolve and allow him full functional 
capabilities.”  Referring to the applicant’s prognosis, the 
provider opined, “This is stabilized maintenance of a chronic 
condition with no further treatment at this time.”  

A complete copy of the Narrative Summary is at Exhibit G.  

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BCMR MEDICAL CONSULTANT’S EVALUATION:

The BCMR Medical Consultant recommends denial.  The Medical 
Consultant states that in the case under review, despite the 
applicant’s pain episodes and his current contentions, the 
record indicates that he had an approved retirement date of 1 
August 2009, which was revoked in order for him to receive 
surgical treatment and, that his medical condition had improved 
significantly after surgery.  His retirement date was then re-
established with an effective date of 1 November 2009 following 
his recovery from surgery.  The Air Force appropriately revoked 
the first retirement date so the applicant could complete 
treatment.  From indications in the record, the applicant had a 
good; at least immediate, post-operative result, which likely 
led his physicians, and the applicant, to believe that there was 
insufficient residual impairment that would justify a medical 
release from service were he not already retiring.  Since the 
applicant had an approved retirement date, had he undergone a 
Medical Evaluation Board (MEB) and referral to a Physical 
Elevation Board (PEB), it is entirely possible that he would 
have been returned to duty to proceed with his previously 
approved retirement, under the presumption of fitness rule.  At 
the same time; however, noting the nature of the applicant’s 
complaints and the need for surgical treatment, the PEB would 
have been challenged with determining if the applicant’s medical 
condition overcame the presumption of fitness, in accordance 
with Department of Defense (DoD) Instruction 1332.38.  Thus a 
key determination before consideration of initiating an MEB and 
subsequent PEB action would first be to determine whether the 
applicant’s post-operative results and ability to function would 
have disqualified him for further service, but not for his 
pending length of service retirement; then, to determine if the 
impairment overcomes the presumption of fitness if referred to 
the PEB.  The Medical Consultant opines the applicant would not 
have overcome the presumption of fitness.  

The Medical Consultant can only assume, absent the evidence, the 
applicant’s ability to function was not believed to be 
sufficiently impaired at the time of remobilization to warrant 
retention on medical continuation orders; nor was he impaired 
sufficiently after recovery from surgery to warrant MEB 
processing.  If the applicant insists on an unfit finding, under 
the Integrated Disability Evaluation System, the Military 
Department would accept the rating decision of the DVA, but 
apply the rating(s) only to the unfitting condition.  In this 
case, the back pain which was rated at 20 percent, would only 
qualify him for separation with severance pay.  It is 
acknowledged that his medical condition appears to have worsened 
by the time of his 4 April 2012 Compensation and Pension (C&P) 
Examination; however, noting the identification of the left 
lower extremity radiculopathy, as well as the degenerative disc 
disease of the spine, a higher disability rating would be 
considered unlikely; albeit likely not representative of his 
level of impairment at the “snap shot” time of his November 2009 
release form service.  

It should be noted that the applicant’s thoracolumbar spine 
forward flexion, as determined by a military physical therapist 
in April 2013 averaged 25 degrees.  This finding alone would 
justify a 40 percent rating under the General Rating Formulas 
for Diseases and Injuries of the Spine.  However, neither of the 
two aforementioned findings is indicative of the applicant’s 
level of impairment at the time of his release from service.  
The Medical Consultant opines a 20 percent severance pay 
disposition would be a greater long-term detriment to the 
applicant than the Reserve retirement he currently holds.  

Unless the Board determines that an egregious error or injustice 
took place by failing to conduct an MEB in 2009, and this has 
resulted in a progressive detriment to the applicant, the 
Medical Consultant does not believe his fitness to serve or his 
level of impairment at the “snap shot” time of final military 
disposition should be based upon a 2012 or 2013 medical 
assessment.  Further worsening of conditions over time is the 
purview of the DVA.  

A complete copy of the BCMR Medical Consultant’s evaluation, 
with attachment, is at Exhibit H.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He is certain that had he stayed in the military and never 
considered retiring, he believes he would not have met the 
physical requirements to qualify to remain in the service.  He 
sincerely feels his ILOD injury ended his military career.  His 
back pain was virtually non-existent right after his surgery as 
was the burning pain down his leg and into his left foot.  
However, the numbness remained in his left thigh above the knee.  
He was told the numbness would go away within a year.  This 
thigh numbness/tingling has not stopped and his back pain began 
again within a year. 

Prior to this ILOD injury, he did not have back problems.  He 
was not evaluated by the Air Force as to his fitness for duty 
after his surgery, which was delayed by approximately five 
months due to a misdiagnosis.  The Medical Consultant’s opinion 
that he would not have overcome the presumption of fitness is 
purely speculatory and unsubstantiated by fact.  

He is no longer in agreement with receiving a disability 
separation with severance pay.  He now understands that 
severance pay is for members not eligible for retirement.  He 
worked hard and completed the required time to qualify for 
retirement under Title 10, United States Code.  It would be 
unfair to reverse his retirement qualification after meeting the 
requirements and officially retiring over three years ago.  

He disagrees with the Medical Consultant’s evaluation and the 
recommendation to deny his request, as his life is forever 
changed when his “L5” disc ruptured while vertically lifting the 
baggage over his head to personnel on the baggage truck that 
day.  The pain he has endured, the medication he has consumed, 
and the delay of appropriate treatment took its toll on him not 
only physically, but emotionally as well.  His ILOD injury has 
robbed him of his vitality and basic physical capabilities.  

He appreciates the opportunity to respond to the Medical 
Consultant’s evaluation and sincerely hopes to receive a fair 
consideration of his case. 

The applicant’s complete rebuttal, with attachments, is at 
Exhibit J.  

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THE BOARD CONCLUDES THAT:

1. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or an injustice.  In 
earlier findings, the Board directed the applicant be put on 
invitational orders for the purpose of evaluation for an 
analysis of his qualification for worldwide duty, at or about 
the date of his length-of-service retirement and current state.  
After thoroughly reviewing the requested Medical Narrative 
Summary, the BCMR Medical Consultant’s evaluation, the evidence 
of record, and noting the applicant’s contentions, we find no 
basis to adjust his records to reflect a disability retirement.  
As indicated by the evidence of record, the applicant was found 
fit, with restrictions, subsequent to his surgery; and, returned 
to duty so he could proceed with his approved retirement.  This 
is documented by the applicant’s neurosurgery physician at 
Wright-Patterson Medical Center, dated 14 September 2009, 
authorizing the applicant to return to work/school with 
restrictions of no running and no lifting over 40 pounds.  The 
military DES only offers compensation for an illness or injury 
that is the cause for career termination; and then only to the 
degree of impairment present at the “snap-shot” time of final 
military disposition, and not based upon future occurrences or 
developments.  Although, the applicant contends his condition 
has progressively worsened, the DVA is authorized to offer 
compensation for any medical condition with a nexus to military 
service, without regard to its proven impact upon a service 
member’s fitness to serve or the narrative reason for release 
from service.  Although, the BCMR Medical Consultant opines that 
had the applicant been found unfit for duty at the time of his 
release from service, his condition at that time would more than 
likely have resulted in a 20 percent disability rating with 
severance pay.  As the applicant would have had to make a choice 
at that time to accept the disability separation with severance 
pay; or, his length-of-service retirement, the Medical 
Consultant points out that a 20 percent pay disposition would be 
a greater long-term detriment to the applicant than the Reserve 
Retirement he holds.  We are sympathetic to the applicant’s 
situation and recommend he continue to pursue the Department of 
Veterans Affairs disability system for appropriate care and 
benefits.  Therefore, in view of the above and in the absence of 
evidence to the contrary, we find no basis to recommend granting 
the relief sought in this application.

2. 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.

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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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2012-00966 in Executive Session on 11 March 2014, 
under the provisions of AFI 36-2603:

			                     , Panel Chair
			                     , Member
			                     , Member

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2012-00966:

    Exhibit F.  ROP, dated 21 Dec 12, w/Exhibits A through E.
    Exhibit G.  Medical Narrative Summary, dated 26 Apr 13. 
    Exhibit H.  Letter, BCMR Med Cnslt, dated 2 Apr 13, w/atch.
    Exhibit I.  Letter, SAF/MRBC, dated 17 May 13.
    Exhibit J.  Letter, Applicant, not dated, w/atchs.




								                   
								Panel Chair