RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-00470

					COUNSEL:

		HEARING DESIRED:  YES 



APPLICANT REQUESTS THAT:

1.  His spine injury be determined to be “in-the-line-of-duty” 
(ILOD).

2.  He be placed into the Integrated Disability Evaluation System 
(IDES).

3.  He be medically retired, and receive back retirement pay from 
the date of his retirement until the present.  


APPLICANT CONTENDS THAT:

Both of his spinal injuries should have been determined to be ILOD 
and he should have been medically retired in the grade of Colonel 
(O-6).  In Nov 01, while running into a bunker at Al Jaber Air 
Base, Kuwait, he tripped, impacted the wall opposite the bunker 
entrance with his head, and felt pain in his neck and lower back.  
An Apr 13 Informal Physical Evaluation Board (IPEB) found the 
applicant unfit for duty due to both his cervical and lumbar spine 
conditions.  The verbiage in his medical records establishes his 
injuries as far more severe than the bland assessment of the IPEB.  
His lumbar injury was severe enough that surgery was required.  
Post-operative range of motion studies, had they been adopted by 
the IDES, would yield 20 percent disability rating for each spinal 
area under VASRD, Title 38 Code of Federal Register (CFR), §4.71a.  
The inquiry rightfully must center on whether these coexisting 
conditions were ILOD conditions.  They qualify as ILOD if they 
were service aggravated.  In 2010, it appears there was an 
affirmative determination the cervical spine condition was found 
to be ILOD due to service aggravation.  On 14 Jul 11, the 
applicant received official notification of an affirmation LOD 
determination.  He is entitled to an MEB for both of his spine 
conditions. 

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



STATEMENT OF FACTS:

According to the documentation submitted by the applicant:

	a.  On 13 Jul 10, an Informal LOD Determination was conducted 
to reviewed the applicant’s “cervical protrusion” associated with 
his active duty service during the period 27 Oct 01 through 30 Nov 
01, for service connection and determined his condition to have 
“Existed Prior to Service—Service Aggravated.”

	b.  On 24 Jul 10, the applicant appealed the Informal LOD 
Determination of “existed prior to service—Service Aggravated” for 
his cervical spine, asking that the injury be re-investigated.  

	c.  On 21 Apr 11, a second Informal LOD Determination was 
conducted on the same “cervical protrusion” condition.  Rather 
than making a determination, the Appointing Authority directed a 
“Formal Investigation” be accomplished.  

	d.  On 14 Jul 11, the applicant received a memorandum from 
his base Chief of Customer Service, stating “Your line of duty 
determination (LOD) has been approved.”  

	e.  On 17 Oct 11, after the formal investigation of the 
circumstances of his cervical spine injury, the Report of 
Investigation Line of Duty and Misconduct Status revealed, and the 
Appointing Authority determined, his condition “EPTS—LOD Not 
Applicable.”  The applicant was issued official notification on 
18 Apr 12.  

	f.  On 5 Apr 13, the Informal Physical Evaluation Board 
(IPEB) held a fitness-only review and found the applicant unfit 
for duty due to diabetes mellitus and osteoarthropathy (multiple 
joints).  The IPEB did not address the applicant’s spine 
conditions.

	g.  On 10 May 13, the AFRC PEB manager notified the applicant 
the IPEB had found him unfit for duty, he would be afforded the 
opportunity to apply for a regular retirement (NOT a medical 
retirement) in lieu of discharge, and that he had the right to 
have his case reviewed by a Formal PEB (FPEB).  The applicant did 
not appeal the decision of the IPEB.  

	H.  On 31 May 13, the applicant underwent surgery for “severe 
multilevel lumbar spinal stenosis.”  

On 23 Sep 13, the applicant transferred to the Retired Reserve, 
and was credited with 26 years, 4 months, and 6 days of total 
satisfactory Reserve service, which included 5 years, 7 months, 
and 19 days of total active service.

The remaining relevant facts pertaining to this application are 
contained in the memoranda prepared by the Air Force offices of 
primary responsibility (OPR), which are attached at Exhibits C, D, 
and E.


AIR FORCE EVALUATION:

AFRC/SG recommends denial indicating there is no evidence of an 
error or an injustice.  The applicant filed two LOD cases: 

1.  One was for cervical disk disease filed in Dec 09 and was 
determined to have “existed prior to service, service aggravated.”  
The applicant contended his cervical disk disease was related to 
his 2001 deployment to Kuwait, however he was never treated 
downrange, his post-deployment documentation was entirely silent 
on this condition, and he continued to participate in military 
duties without complication or restrictions.  While witness 
statements support his contention that he did fall, possibly 
injuring his neck in Kuwait in 2001, he didn’t complain about this 
as an issue until many years later with normal annual Physical 
Health Assessments (PHA) during the intervening years.  His PHA 
completed on 12 Dec 01 listed no back/neck problems, and listed 
his overall health as excellent.  The IPEB noted his condition was 
more than likely related to normal aging and his obesity.  The 
applicant had a Body Mass Index (BMI) or 35.95, which is 
unsuiting.  

2.  Another LOD case was filed in 2008 after the applicant moved a 
560 pound BBQ at home and experienced left shoulder and arm pain.  
An MRI conducted on 18 Mar 08 indicated a herniated disc at C-4/5.  
No medical documentation was provided to indicate a lumbar injury 
or any other spinal conditions were LOD injuries.  The 
investigation finding was “existed prior to service, line of duty 
not applicable.”  On 8 Nov 12, the applicant was found 
disqualified for continued military service for the diagnoses of 
diabetes mellitus and osteoarthropathy.  He also suffered from 
depression, obstructive sleep apnea, impairment of renal function, 
chronic esophagitis and hypokalemia.  On 5 Apr 13, the IPEB found 
him unfit for duty.  The applicant did not appeal the IPEB 
determination and opted for transfer to the Retired Reserve in 
lieu of administrative discharge due to physical disqualification.  
The IPEB did review the documents provided related to his lumbar 
condition, but there is no evidence he is entitled to the 
disability evaluation system for his lumbar spine as there was 
absolutely no documentation that he had an LOD injury involving 
his lower back.  If the applicant’s condition has changed over 
time, he can return to the Department of Veteran Affairs (DVA) for 
re-evaluation.  

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

AFPC/DPFD does not make a recommendation, only states that since 
the applicant’s case was not referred to the PEB, it could not 
have issued the applicant a medical retirement.  
A complete copy of the AFPC/DPFD evaluation is at Exhibit D.

AFPC/JA recommends denial indicating there is no evidence of an 
error or an injustice.  On 21 Jul 12, an Air Force physician 
drafted a narrative summary of the applicant’s entire medical 
history as part of the disability evaluation process.  The 
physician highlighted a motor vehicle accident the applicant was 
involved in at the age of 18, prior to his military service, which 
fractured his back at the L1-L3 joints.  The physician also noted 
that in 2008 the applicant moved a 560 pound BBQ at home while not 
on active duty orders, and afterwards experienced left shoulder 
and arm pain. 

Regarding the applicant’s contention the IPEB failed to appreciate 
the severity of his spinal condition, according to AFI 36-3212, 
Physical Evaluation For Retention, Retirement, And Separation, 
when reviewing cases, the IPEB considers medical documentation, 
any statements submitted by the member, and the administrative 
file, such as the LODs and the Narrative Summary of the medical 
evidence.  There is no evidence the IPEB failed to appreciate the 
severity of his spinal condition by not reviewing sufficient 
evidence during the hearing.  

There is no medical evidence supporting the applicant’s spinal 
injuries between the time he alleged he sustained the injuries in 
Nov 01 and Aug 05.  The PHA completed on 12 Dec 01 listed no 
back/neck problems and his overall health was excellent.  He was 
World Wide Deployable from 2005 to 2007.  In Aug 05, there are 
medical documents regarding arthritic changes and lumbar changes 
in the same joints he injured in the motor vehicle accident, but 
not cervical issues.  Further, the first medical documents 
pertaining to cervical injuries appear to stem from the applicant 
lifting a BBQ at home on 26 Mar 08 while not on active duty 
orders, over six years after his tour in Kuwait.  Regardless of 
the severity of the spinal injuries, the injury must be ILOD to be 
compensable.  There is no evidence to support the applicant’s 
contention the IPEB committed an error by failing to consider his 
injury more severe than they noted in their findings.  

Regarding the applicant’s contention his injury should have been 
found ILOD because it occurred in Kuwait in Nov 01, when the 
applicant was asked for any civilian medical documentation that 
would support this contention, he provided information from Mar 08 
and DVA information from Sep 09.  No document was provided that 
indicates any lumbar injury or other spinal condition was 
associated with an LOD injury.  His line of duty cases were for 
cervical herniation related to lifting a BBQ grill at home in Mar 
08 while not on active duty orders, and not relating back to the 
incident in Nov 01.  

Members of the Reserve with non-duty related impairments are only 
entitled to a fitness for duty review and not a compensable IPEB 
review.  Regardless of whether he was on orders for more or less 
than 30 days, the IPEB cannot provide disability compensation 
without an LOD determining there was evidence linking an injury 
while on active duty in Nov 01 to the spinal condition he 
presented to the IPEB.  There is no evidence of an error by the 
IPEB.  

The IPEB found the applicant’s lumbar joints were fractured in a 
motor vehicle accident more than 18 years earlier and the same 
ones were currently causing pain, resulting in an unfit finding. 
The medical records support the IPEB’s findings that the 
applicant’s cervical injuries were caused by lifting a BBQ grill 
in Mar 08, six years after the incident in Kuwait.  There are no 
medical records linking the Nov 01 incident to the cervical 
injuries considered by the IPEB.  He has no medical records 
reporting cervical or lumbar symptoms or injuries from Nov 01 
through Aug 05.  The applicant did not establish an error 
warranting correction.  

A complete copy of the AFPC/JA evaluation is at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

DoDI 1332.38, Physical Disability Evaluation, Paragraph 
E3.P4.5.2.2.2., states “any injury or disease discovered after a 
service member enters active duty…in presumed to have incurred in 
the line of duty.”  Discovery of the lower back problem occurred 
in 2001 while the applicant was on active duty.  Discovery is the 
operative word here.  Since the IPEB found both the cervical and 
lumbar injuries unfitting, all that remains is whether the 
injuries occurred in the line of duty.  The AFRC IMT 348, Informal 
Line of Duty Determination, dated 13 Jul 10 is dispositive of an 
LOD determination for the cervical spine.  This was confirmed by 
the 14 Jul 11 memorandum from 452 FSS/FSMPS notifying the 
applicant his LOD determination had been approved, and the AF Form 
261, Report of Investigation Line of Duty and Misconduct Status, 
dated 17 Oct 11.  There is nothing in the regulatory scheme which 
allows for the reversal of an ILOD finding except fraud, newly 
discovered material evidence or misconduct.  Although there is no 
ILOD determination of the lumbar spine, it too required surgical 
intervention.  The car accident referred to is irrelevant to the 
question of etiology and discovery as there is no causative proof 
to overcome the presumption of ILOD.  Relief should be granted 
(Exhibit G).


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 his 
rebuttal response to the advisory opinions, 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.  
While the Board acknowledges the applicant’s initial informal line 
of duty (LOD) determination and LOD notification letter, we note 
the ensuing Formal LOD Determination and final determination 
regarding his spine condition was that his injuries existed prior 
to service (EPTS).  In addition, no documentation was presented 
which establishes that his lumbar or cervical spine injuries were 
suffered in the line of duty or should have been found to be 
unfitting.  Because the medical conditions for which the applicant 
requests medical retirement were ultimately found to be EPTS, they 
cannot serve as the basis for disability benefits (e.g., medical 
retirement).  While the applicant argues that there is no basis to 
overturn an initial finding of LOD-Service Aggravated through an 
informal LOD determination in favor of an EPTS finding, we are not 
convinced that the ultimate findings of the Formal LOD 
Investigation were erroneous.  In our view, the fact that these 
findings conflict with the initial findings of the Informal LOD 
determination does not, in and of itself, form the legitimate 
basis of a determination that said findings are incorrect.  
Therefore, in the absence of evidence to the contrary, we find no 
basis to recommend granting the requested relief.

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 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.


The following members of the Board considered AFBCMR Docket Number 
BC-2014-00470 in Executive Session on 22 Jan 15 under the 
provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-00470 was considered:

	Exhibit A.  DD Form 149, dated 23 Jan 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFRC/SG, dated 20 Mar 14.
Exhibit D.  Memorandum, AFPC/DPFD, dated 27 Mar 14.
Exhibit E.  Memorandum, AFPC/JA, dated 12 May 14.
Exhibit F.  Letter, SAF/MRBR, dated 28 Jul 14.
Exhibit G.  Letter, Applicant, dated 11 Aug 14, w/atchs.