RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-00224
		INDEX CODE 108.05  108.10
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His 2002 discharge for completion of required active service be changed to a disability discharge/retirement.

[Note: The applicant also requested that his DD Form 214 be amended to reflect his correct foreign service time and award of the Armed Forces Expeditionary Medal (AFEM). These requests have been administratively granted and the applicant was so notified by AFPC on 1 Apr 03.] 
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APPLICANT CONTENDS THAT:

He was hospitalized almost immediately after his separation and eventually diagnosed with non-seminoma, testicular cancer, Stage 2C. In addition to the chemotherapy he is undergoing, he will require surgery and 5-10 years of expensive follow-up medical care. Since he will be infertile, he had to incur tremendous costs to retain his deposits at a sperm bank. He has no medical insurance, no income and no assets. He will be uninsurable because of a pre-condition, which existed while he was on active duty. He complained consistently of pains in the area where his tumor is now located, but was misdiagnosed. His records document this as well as his illnesses since his return from the Persian Gulf. He had planned to reenlist but since he never felt healthy enough to go through the rigors of his job, he opted for release. He needs to have his discharge changed to a medical retirement so TRICARE insurance can pay these and future bills.

Included in his appeal is a physician’s letter confirming that the cancer developed prior to discharge. The applicant’s complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 24 Jun 98 and was assigned to the 436th Aerial Port Squadron to Dover AFB, DE, as a ramp/passenger service agent. He was promoted to the grade of senior airman on 24 Jun 01. He had tours of duty in Saudi Arabia (7 Mar-13 Jun 00) and Oman (27 Sep-12 Dec 01). All of his performance reports reflect the highest overall rating of “5.”

Other than documentation provided by the applicant, his military medical records are unavailable. Apparently, the applicant began experiencing abdominal and low back pain sometime in Jul 02. On 10 Aug 02, he was treated at a civilian emergency room for increasing back and abdominal pain of five days’ duration. No clear history of injury or strain was present. No relief was obtained with treatment and physical exam and routine blood tests were unremarkable except for abdominal tenderness. 

On 30 Jul 02, the applicant’s request for separation effective 1 Nov 02 was approved.

The applicant was evaluated by the 436th Medical Group clinic on 12 Aug 02 for flank, abdominal and low back pain described as unbearable and focal. The physician noted back muscle spasms and suspected possible musculoskeletal back pain with muscle spasm, but listed the possibility of a kidney stone. The applicant was treated for the musculoskeletal diagnosis and instructed to return if there was no relief or symptoms increased.

At the applicant’s 12-13 Sep 02 medical assessment/separation physical exam, he reported intense back pain, cough, possible asthma, hearing loss and “feeling out of shape.” The physician indicated the applicant’s back pain had reportedly improved and noted a recent upper respiratory infection accompanied by wheezing. The physician also indicated the lower back pain was “consistent with lumbago” and no additional workup was needed. 

On 25 Sep 02, the applicant began terminal leave.  

He was released from active duty on 1 Nov 02 in the grade of senior airman with four years, four months and eight days of active service and transferred to the Air Force Reserve.

On 7 Nov 02, the applicant was hospitalized on an emergency basis for abdominal pain. Computed Axial Tomography (CAT scan) of his abdomen and pelvis revealed extensive, massive abnormal enlargement of lymph nodes. No other medical records are available for review between the time of his separation exam and his 7 Nov 02 hospitalization. 

An oncology consult on 8 Nov 02 records the applicant’s history of abdominal pain persisting off and on since Aug 02, as well as a 10-pound weight loss. A diagnosis of germ cell testicular cancer was made on biopsy. The applicant has been undergoing chemotherapy since 16 Nov 02. A period of one year of disability related to his cancer treatment is estimated.

The Department of Veterans Affairs (DVA) has granted service-connection for germ cell tumor at 100%, effective 2 Nov 02.

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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant indicates the applicant was diagnosed with his cancer one week after discharge. It is clear that the symptoms of abdominal and back pain, fatigue and weight loss in the three months prior to discharge represented the initial clinical presentation of his cancer that existed even before he experienced any symptoms. Although complete service medical records are not available for review, the Consultant believes the applicant would have been placed on medical hold and retained on active duty for diagnostic evaluation and initiation of treatment had his CAT scan been performed while on active duty. Pending the outcome of his cancer treatment, the applicant would have been placed on the Temporary Disability Retired List (TDRL) and reevaluated in one year. The Consultant concludes the applicant should be placed on the TDRL at 100%. 

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD notes that, although medical evidence shows the applicant was treated for various medical conditions, the preponderance of the evidence does not show his military career was curtailed as a result of an unfitting medical condition. Medical evidence provided by the applicant shows he was found to have an unfitting medical condition shortly after his release from active duty. Military records clearly indicate he was capable of performing his military duties right up until his discharge. A member’s ability to perform military duties coupled with the fact that a serious medical condition may curtail a military career are two of the primary considerations during the medical/physical evaluation board (MEB/PEB) process. Considering the sensitive nature of this situation, the applicant’s case was forwarded to the Informal Physical Evaluation Board (IPEB) for a fair, unbiased assessment. The IPEB determined that had he been referred to an MEB, the board would likely have returned him to duty for further treatment and observation. The IPEB agrees that, had the applicant remained on active duty, he may possibly have been eventually referred to an MEB. However, based on the 27 Nov 02 report from the Cancer Institute of New Jersey (Exhibit A), it seems unlikely that he would have been placed on the TDRL, at least up to the current point in time. The documentation provided more appropriately supports a return to active duty for continued care, after which his voluntary separation would take effect with subsequent medical care provided through the DVA. Although the AFBCMR Medical Consultant recommends placement on the TDRL with 100% disability, DPPD contends it is not in a position to modify the normal PEB process. DPPD explains the differences between Titles 10 and 38 of the United States Code (USC), which govern the Air Force and the DVA, respectively. DPPD recommends denial, asserting that approving the applicant’s request would set a precedent in which other veterans involved in similar untimely cases would not be given the same opportunity under the provisions of AFI 36-3212. The applicant should continue to receive treatment from the DVA as provided by Title 38.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends that, had he been correctly diagnosed in the first place while he was still on active duty, he would have fallen under the provisions of Title 10, rather than Title 38. The base hospital was closed on weekends so he went to a civilian hospital. He then visited the base hospital because he was doubled over in pain; however, the military facility did the same tests and went no further in its evaluation. He was incorrectly diagnosed with muscle spasms by the base hospital three months before his discharge. He had planned to reenlist but could no longer endure performing his duties due to pain. He trusted the military caregivers, who assured him his condition was due to muscle spasms. As a young man, the last thing he expected was the serious diagnosis he ultimately received. He describes the two surgeries he has had since 17 Mar 03. He is unable to father children. He remains uninsurable and unemployable. He had to turn to Charity Care and Social Security for disability, a situation he found degrading. He cites the AFBCMR Medical Consultant’s evaluation and recommendation, and his doctors who confirm his cancer existed before he was discharged. He requests a medical retirement.

In a second rebuttal, the applicant forwarded another letter from his oncologist, who advises that he is a “poor prognostic patient” requiring more cycles of chemotherapy than if he had been diagnosed while still in the “good” prognostic category. The oncologist describes the severe adverse effects of the applicant’s treatment. His disablement is anticipated to be at least one year, if not far longer, with extended follow-up care. The doctor asserts this cancer certainly developed prior to discharge from the service. Further, not only did the tumor develop while he was in the service, the [Air Force’s] inability to correctly diagnose the problem upon initial presentation in Aug 02 resulted in a delay in therapy and ultimately a poor prognosis categorization. The applicant’s outcome is clearly not as favorable as in patients who are diagnosed early in the course of this disease. Despite that, the doctor understands the applicant and his family are not considering a medical malpractice claim, which she believes may well be warranted in this case, but are only asking for Armed Services insurance coverage. This is reasonable and something the military should be willing to provide.

Complete copies of applicant’s responses, with attachments, are at 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.	Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant placing the applicant on the TDRL with a 100% disability rating. HQ AFPC/DPPD’s rationale and recommendation to deny was noted. However, after carefully reviewing the available evidence, we are inclined to agree with the opinion of the civilian medical providers and the AFBCMR Medical Consultant that the applicant’s symptoms of abdominal/back pain, fatigue and weight loss in the three months prior to discharge represented the initial clinical presentation of the cancer that existed even before he experienced any symptoms.  We further accept as reasonable that if the applicant had his CAT scan while still on active duty, he would have been placed on medical hold and retained for initiation of treatment and disability system evaluation. While HQ AFPC/DPPD believes the applicant would very likely have been returned to duty had he been evaluated by an IPEB, we are not entirely comfortable with this assumption given the applicant’s serious condition and his assertion that he curtailed his military career because he felt too ill to continue. We are persuaded that the available evidence supports giving the benefit of the doubt in this case to the applicant by placing him on the TDRL so he may be properly evaluated and treated until his condition is stabilized, which could take several years. At that point, the Air Force will make the final determination whether the applicant should be permanently retired or discharged with severance pay for medical disability, or found fit and returned to active duty. Therefore, the applicant’s records should be amended as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

	a.  On 31 October 2002, he was found unfit to perform the duties of his office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; that the diagnosis in his case was Stage IIC non-seminomatous germ cell tumor, VASRD Code 7528, disability rating 100%; that the disability may be permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; that the disability was in line of duty and was incurred during a period of national emergency; and that the disability was not the direct result of armed conflict or caused by an instrumentality of war.

	b.  On 1 November 2002, he was not honorably released from active duty but on 2 November 2002, his name was placed on the Temporary Disability Retirement List (TDRL) under the provisions of AFI 36-3212 and Title 10, United States Code, Section 1202.
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The following members of the Board considered this application in Executive Session on 30 July 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2003-00224 was considered:

   Exhibit A.  DD Form 149, dated 13 Jan 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant, dated 5 May 03.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 3 Jun 03.
   Exhibit E.  Letter, SAF/MRBR, dated 5 Jun 03.
   Exhibit F.  Letters, Applicant, dated 16 Jun & 4 Jul 03,
                     w/atchs.

                                   

AFBCMR BC-2003-00224

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to   , be corrected to show that:

	     a.  On 31 October 2002, he was found unfit to perform the duties of his office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; that the diagnosis in his case was Stage IIC non-seminomatous germ cell tumor, VASRD Code 7528, disability rating 100%; that the disability may be permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; that the disability was in line of duty and was incurred during a period of national emergency; and that the disability was not the direct result of armed conflict or caused by an instrumentality of war.

	     b.  On 1 November 2002, he was not honorably released from active duty but on 2 November 2002, his name was placed on the Temporary Disability Retirement List (TDRL) under the provisions of AFI 36-3212 and Title 10, United States Code, Section 1202.