RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-04477 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

Her records be corrected to show that: 

 

1. Her chronic back pain was not determined to have existed 
prior to service (EPTS), but was found to be “in the line of 
duty” (LOD: Yes), or was determined to be EPTS, but aggravated 
by her military service. 

 

2. She was continued on active duty service during the period 
1 Oct 09 through 30 Jul 10 for medical continuation (MEDCON). 

 

3. She was placed on the Temporary Duty Retired List (TDRL) on 
30 Jul 10 and remained there through the present. 

 

4. She receive a TDRL evaluation and her case be reviewed by a 
Physical Evaluation Board (PEB). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. Her lumbar and thoracic back problems developed during a 
period of active duty service. Her medical condition was not 
caused by or due to misconduct. She was unable to perform her 
military duties due to severe chronic back pain in her lower and 
mid back, with related pain down her left leg. Department of 
Defense (DoD) and Air Force Instructions (DoDIs/AFIs) require 
that her medical condition be presumed to be “LOD: Yes.” 
AFI 36-3212, Physical Evaluation for Retention, Retirement, and 
Separation, indicates that a PEB is to presume a member to have 
been in sound physical and mental condition upon entering 
military service except for defects or conditions noted and 
recorded at time of entry. Her medical records do not indicate 
she had back problems prior to her entry into military service. 

 

2. The LOD investigation recommended a finding of “LOD: Yes.” 
Inexplicably, the Judge Advocate General (JAG) office 
recommended a different finding that her back problems were EPTS 
and “LOD: No.” She submitted a request for reconsideration of 
the LOD determination but was erroneously denied. 

 


3. Because her medical condition was erroneously determined to 
be EPTS, it was determined that her chronic back problems were 
not service-connected and she did not meet the criteria for 
MEDCON. A 2007 Magnetic Resonance Inspection (MRI) showed a 
paracentral disc protrusion without impingement. A second MRI 
performed on 10 Jun 09 showed a disc protrusion. She should 
have been retained on active duty until a Medical Evaluation 
Board (MEB) was complete. 

 

4. She was released from active duty after serving a total of 
9 years, 4 months, and 29 days of active service. Since she had 
completed over 8 years of active duty service, it should have 
been presumed that her chronic back problems were incurred in 
the line of duty. She should have been either permanently 
retired, or placed on the TDRL until her medical condition 
stabilized. 

 

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

 

_________________ ______________________________________________ 

 

STATEMENT OF FACTS: 

 

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

 

On 30 Sep 09, she separated upon completion of required active 
service, and was credited with 9 years, 4 months, and 29 days of 
total active service. 

 

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

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFRC/A1K does not make a recommendation concerning the 
applicant’s LOD determination. Absent a determination from a 
medical authority which reverses the applicant’s concern with 
her LOD determination, there is no entitlement for her to have 
been kept on active duty orders. In accordance with DoDI 
1241.2, Reserve Component Incapacitation System Management, a 
reserve component member on active duty under a call or order to 
active duty specifying a period of 31 days or more, who incurs 
or aggravates an injury, illness, or disease in the line of 
duty, shall, with the member’s consent, be continued on active 
duty upon expiration of call or order to active duty until the 
member is determined fit for duty or the member is separated or 
retired as a result of a Disability Evaluation System 
determination. 

 


A complete copy of the AFRC/A1K evaluation is at Exhibit C. 

 

AFMOA/SGH recommends approval of the applicant’s request to have 
the LOD determination concerning her chronic back pain and 
piriformis changed to “did not exist prior to service” and her 
medical condition changed to “LOD: Yes.” Given the 
documentation provided, it is noted that her condition was 
incurred “in line of duty” as written in the Orthopedic Clinic 
MEB Narrative Summary note of 8 Sep 09. 

 

A complete copy of the AFMOA/SGH evaluation is at Exhibit D. 

 

The BCMR Medical Advisor recommends approval of the applicant’s 
request for her back pain to be determined to be “LOD: Yes,” 
however, recommends denial of her request to be provided MEDCON 
orders and be placed on the TDRL. The service member was 
separated under AFI 36-3209, Separation and Retirement 
Procedures for Air National Guard and Air Force Reserve Members, 
with a narrative reason for separation of completion of required 
active service. The applicant started to complain of mid 
thoracic (upper) back pain following childbirth in Jul 06. The 
applicant was later referred to pain management where a TENS 
trial, physical therapy, lumbar spine and trigger point 
injections were prescribed without symptomatic pain relief. No 
evidence of narcotic medications for chronic pain control was 
identified. Profiles for periods of limited movement and 
physical training participation were issued intermittently from 
2007 to 2009 although no evidence of worldwide disqualification 
due to a duty limiting condition was noted. On 8 Sep 09, an 
orthopedic MEB physical evaluation and narrative summary for 
thoracic back pain identified a normal physical examination. An 
MRI of the thoracic spine completed in Jun 09 indicated a small 
left paracentral disc protrusion at T10-T11 without nerve root 
encroachment. An MRI of the lumbar spine in Sep 09 revealed no 
lumbar disc herniation or evidence of degenerative disc disease. 
Films of the thoracic and lumbar spines on the date of the 
orthopedic evaluation revealed no abnormal curvature or 
significant osseous abnormality. With respect to the adverse 
“line of duty” determination, consultation progress notes 
indicate, “Patient speculates that low back pain may have 
evolved from unknown injury working as a transporter between 
ages 18-25 and may be exacerbated due to the demands of caring 
for a child.” With no documented injury or sentinel event or 
associated factors identified for the chronic back pain during 
the period of active duty, uncertainty exists for a clear 
service incurred associated for the chronic back pain. Indeed, 
the DVA rating letter dated 2 Aug 12 found no basis for military 
service connection for lumbar spine strain related to chronic 
back pain. The reviewer acknowledges a 10 percent service 
connection by the DVA for left piriformis syndrome diagnosed by 
an orthopedist following discharge in Mar 10. However, even if 
the disorder was present during the period of service and there 
was evidence of an upper thoracic disc protrusion (T10-T11), 
either condition would not necessarily be considered 
disqualifying or unfitting for continued military service and 


there was no evidence that either condition was the cause of 
service termination. The DVA is authorized to offer 
compensation for any medical condition determined service 
incurred without regard to, and independent of, its demonstrated 
or proven impact upon a service member’s fitness for continued 
active service or narrative reason for release from military 
service. With this in mind, Title 38, U.S.C, which governs the 
DVA compensation system, was written to allow awarding 
compensation ratings for conditions with a nexus with military 
service. This is why an individual can be found fit for release 
from active service and thereafter receives compensation ratings 
for the DVA. However, the military Disability Evaluation System 
(DES), established to maintain a fit and vital fighting force, 
can by law, under Title 10, U.S.C., only offer compensation for 
those services incurred diseases or injuries which specifically 
rendered a member unfit for continued active service and were 
the cause of career termination; and then only for the degree of 
impairment present at the time of separation and not based on 
future occurrences. DoDI 1332.32, Physical Disability 
Evaluation, reads “A Service member shall be considered unfit 
when the evidence establishes that the member, due to physical 
disability is unable to reasonably perform the duties of his or 
her office, grade, rank or rating to include duties during a 
remaining period of Reserve obligation.” Within the materials 
submitted, there were no reports of inability to perform work 
related duties or worldwide disqualification due to chronic 
pain. 

 

With regard to the issue of continuation on active duty orders 
and placement on the TDRL, extension of mobilization orders may 
be warranted when an airman has a disqualifying medical issue 
that cannot be resolved prior to expiration of the orders 
demobilization date. The common theme in either a mobilization 
continuation or extension is a disqualifying medical condition, 
and the records submitted for review fail to provide objective 
evidence of an unfitting or disqualifying condition at or 
following demobilization. In fact, the evidence to the contrary 
is substantial. In this case, no unfitting or disqualifying 
medical condition was identified and therefore no MEB was 
medically indicated. 

 

In review of the denial of LOD determination, the medical 
documentation appears to contain no clear and convincing 
evidence the chronic back pain was not incurred or aggravated 
while in an active duty status. This finding has no substantial 
bearing on the final recommendation of the case, denying the 
applicant MEDCON orders and placing her on the TDRL, since no 
unfitting condition resulted from possible aggravation of an 
injury, illness or disease while the applicant was in an active 
duty status. 

 

A complete copy of the AFBCMR Medical Advisor evaluation is at 
Exhibit E. 

 

________________________________________________________________ 


APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Through counsel, she reiterates each of her initial contentions, 
and resubmits her medical chronology. In addition, Counsel 
contends that although the Medical Advisor is correct there is 
“no clear and convincing evidence” her chronic back pain was not 
incurred or aggravated while on active duty status, in fact, 
there is no medical evidence indicating her condition existed 
prior to her entry onto active duty on 7 Feb 05. When she was 
released from active duty, she had served for a total of 9 
years, 4 months, and 29 days of active service. Her back 
condition was not caused by or due to her own misconduct. 
Therefore, is should be “presumed” to be service-connected. 
Further, the LOD investigation recommended a finding of “LOD: 
Yes.” Inexplicably, the Judge Advocate General review 
recommended a finding that her chronic back problems were not 
incurred in the line of duty. The “LOD: No” determination is 
not in accordance with DoD or AF Instructions and should be 
reversed as a clear abuse of discretion. The Medical Advisor is 
incorrect when he states that no unfitting or disqualifying 
medical condition was identified and therefore no MEB was 
medically indicated. Up until the time she was released from 
active duty, military medical providers had failed to diagnose 
and treat her for piriformis syndrome and, therefore, had failed 
to alleviate her severe pain. Her medical records reflect that 
her condition became so severe she could no longer perform her 
military duties. The case should have been sent to an MEB, and 
she should have been retained on active duty until her 
disability case was fully resolved. 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by 
existing law or regulations. 

 

2. The application was timely filed. 

 

3. Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice concerning 
the applicant’s line of duty determination. We considered the 
applicant’s complete submission in judging the merits of the 
case, to include her rebuttal response to the advisory opinions, 
and we agree with the opinion and recommendation of AFMOA/SGH 
and adopt its rationale as the basis for our conclusion the 
applicant’s medical condition did occur within the line of duty. 
Therefore, we recommend her records be corrected to the extent 
indicated below. 

 

4. Notwithstanding the above, we find insufficient relevant 
evidence has been presented to demonstrate the existence of an 
error or injustice concerning the applicant’s remaining 
requests. In this respect we agree with the opinions and 
recommendations of the BCMR IMA Medical Advisor and adopt his 


rationale as the basis for our conclusion the applicant has not 
been the victim of an error or injustice to warrant the relief 
sought in the remainder of the application. The applicant 
appears to believe if her medical condition were determined to 
be within the line of duty she would inexorably be retained on 
MEDCON orders for further processing through an MEB; however, 
this is not the case. An MEB is not warranted in this case 
because, other than her own assertions, nothing in the 
applicant’s medical records or within the materials she 
submitted establishes that her medical condition was unfitting 
or disqualifying. Therefore, we recommend her records be 
corrected to the extent indicated below. 

 

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 RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that on 
24 November 2009 competent authority determined that her lumbago 
was incurred in the line of duty (LOD). 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2012-04477 in Executive Session on 13 Jun 13, under 
the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

All members voted to correct the records as recommended. The 
following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 12 Sep 12, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFRC/A1K, dated 28 Feb 13. 

 Exhibit D. Letter, AFMOA/SGH, dated 28 Feb 13. 

 Exhibit E. Letter, BCMR Medical Advisory, dated 11 Apr 13. 

 Exhibit F. Letter, SAF/MRBR, dated 17 Apr 13, w/atch. 

 Exhibit G. Letter, Applicant, dated 17 May 12. 

 

 

 

 

 

 Panel Chair