RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05881

		COUNSEL:  NONE

		HEARING DESIRED:  YES  


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APPLICANT REQUESTS THAT:

1.  Her Line of Duty (LOD) determination should state she sustained a traumatic brain injury (TBI) when injured on duty.

2.  Her records be corrected to show she remained on active duty for medical treatment (MEDCON Orders) from Jun 05 through Mar 07.  

3.  She receive Service Members’ Group Life Insurance Traumatic Injury Protection (TSGLI).  

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APPLICANT CONTENDS THAT:

She sustained a TBI, but the Air Force misdiagnosed it during her LOD processing.  While serving overseas in 2005, she smashed into a wall and passed out.  Since then she has had multiple black outs, back surgery and permanent damage to the nerve in her legs, and was having problems walking.  In 2009, they found an injury to her brain.  Now she cannot work and must rely on others to help her with every day things.  

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

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STATEMENT OF FACTS:

The applicant served in the Air Force Reserve during the period of time in question.  

On 5 May 05, an LOD determination concluded the applicant’s back injury, which she reported she sustained by falling against a wall while getting out of bed, was “existed prior to service (EPTS)—Service Aggravated.”  The AF Form 348, Line of Duty Determination, stated “Nowhere in her medical history does she state any duty activity causing this injury.  She has a history of lumbar back disc herniation in 2003.  The 2003 surgery and disc herniation was not “in the line of duty,” so she is predisposed for back pain/disc herniation from a pre-existing non-military back injury.”  

On 28 Aug 07, an Informal LOD determination concluded the applicant’s major depressive disorder related to her back pain was “in the line of duty.”  

On 29 Aug 07, the Department of Veterans Affairs (DVA) awarded the applicant a 100 percent combined disability rating, based upon the loss of use of both lower extremities.  

On 24 Dec 08, an Informal LOD determination concluded the applicant’s myocardial infarction (heart attack), which occurred while she was on medical hold, was EPTS because it occurred on 17 Feb 07, while the applicant was not on orders.  

On 11 Sep 09, the Informal Physical Evaluation Board (PEB) found her unfit for duty and recommended permanent retirement with a combined compensable disability rating of 40 percent.  

On 6 Oct 09, the applicant non-concurred with the findings of the IPEB and requested a formal hearing.  

On 25 Jan 10, a formal PEB (FPEB) recommended permanent retirement with a disability rating of 50 percent.  

On 4 Feb 10, the applicant disagreed with the findings of the FPEB, arguing she should be granted a disability rating of 100 percent, and requested her case be referred to the Secretary of the Air Force Personnel Council (SAFPC) for final decision. 

On 7 Apr 10, a SAFPC determined the applicant should be granted a permanent disability rating of 60 percent.  

On 27 Aug 10, the applicant retired in the grade of MSgt due to permanent disability with a compensable physical disability rating of 60 percent, and she was credited with 5 years, 11 months, and 22 days of active service. 

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C and D.

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AIR FORCE EVALUATION:

AFRC/SG recommends denial indicating there is no evidence of an error or an injustice.  Between 2005 and 2009, the applicant filed four LOD cases.  The first was in 2005 for disc prolapse with left nerve root compression.  The second was in 2007 for depression related to her back problems.  The third was in 2008 for coronary disease.  The fourth was in 2009 for a cerebral vascular accident.  The member was on medical continuation (MEDCON) orders from Mar 07 until her medical retirement in Aug 10.  There are no documents from any medical encounter, or from any deployment, indicating the service member suffered any kind of TBI.  She does include documents showing she has a non-specific frontal lobe lesion.  The lesion was not diagnostic of previous trauma.  The significance of the lesion is unknown.  In her initial workup the attending neurologist notes, “she does not believe she sustained any serious injuries recently and does not recall a specific event that may explain the CT scan and MRI scan finding of a left (sub) frontal signal abnormality.”  The applicant’s case has been extensively reviewed from the point of a medical evaluation board, through the informal board and finally by the formal evaluation board.  There is absolutely no medical evidence she suffered any TBI.  Given the depth of review this case has received, and the lack of information pertaining to TBI, the board should not grant relief for a new diagnosis, back medical continuation pay, or award of TSGLI.  

A complete copy of the AFRC/SG evaluation is at Exhibit C.

AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice.  The Department of Defense (DoD) and DVA disability evaluation systems operate under separate laws.  Under Title 10 USC, PEBs must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank, or rating.  Further, it must be noted the USAF disability board 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 pick up 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 the condition.  The preponderance of evidence in this case reflects that no error or injustice occurred during the disability process or at the time of separation.  

A complete copy of the AFPC/DPFD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She submits excerpts from her medical records, provides a personal narrative overviewing the key events in her medical history, explains her current situation, and states she will not stop fighting for what she is owed (Exhibit F).

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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 her rebuttal response to the advisory opinion, 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.  The Board notes that after multiple reviews, no evidence could be found in the applicant’s medical records which indicate she suffered a traumatic brain injury (TBI) while on active duty.  While the Department of Veterans Affairs provided her a combined disability rating of 100 percent, such a finding is based on any and all medical conditions incurred in the line of duty, without regard to whether these conditions caused the early termination of the applicant’s military career.  The military disability evaluation system (DES) on the other hand is charged with ensuring a fit and vital force and provides compensation only for those conditions which caused the premature termination of the applicant’s career and there is no evidence that there is a causal relationship between the events in 2005 and the lesion on her frontal lobe diagnosed years later.  While the applicant has provided copies of several excerpts from her medical records related to her frontal lobe lesion and other conditions, we do not find these records sufficient to conclude there is a causal link between her purported injury in 2005 and the diagnosis of this lesion several years later.  Even if we assume for the sake of argument that such a link exists, there is still no evidence to indicate that her purported frontal lobe lesion would have, in and of itself, caused the early termination of her career and, thus, should have formed the basis for additional disability benefits from the military DES.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 

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.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2012-05881 in Executive Session on 22 Oct 13, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 14 Dec 12, w/atch.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFRC/SG, dated 25 Jun 13.
	Exhibit D.  Letter, AFPC/DPFD, dated 16 Jul 13.
	Exhibit E.  Letter, AFBCMR, dated 5 Aug 13.
	Exhibit F.  Letter, Applicant, dated 30 Aug 13, w/atchs. 




                                   
                                   Panel Chair