RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02034 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: The deceased member receives a permanent disability retirement with a 100 percent disability rating with pay and compensation. _________________________________________________________________ APPLICANT CONTENDS THAT: On 1 July 2008, the deceased member received a regular retirement after serving 20 years of honorable service. On 1 June 2009, he was diagnosed with Stage 4 Aden carcinoma after several years of suffering from pulmonary related health problems predating his discharge. He died from lung cancer on 12 March 2010. The deceased member’s medical history shows pulmonary and other symptoms of this disease were present at the time of his discharge and were initially diagnosed and treated as pneumonia. Based on review of his medical history, it appears his cancer was present prior to retirement, manifesting as right lung pneumonia. In support of her request, the applicant provides copies of the deceased member’s DD Form 214, Certificate of Release or Discharge from Active Duty; extracts from his medical records, death and marriage certificates, and letters from his medical providers. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 8 June 1988, the deceased member enlisted in the Regular Air Force. On 1 July 2008, he retired in the grade of technical sergeant after serving 20 years and 23 days. The deceased member’s periodic health assessment dated 16 April 2008 reflected he suffered from obstructive sleep apnea, hypertension, hyperlipidemia, obesity, and reported stress from the death of his grandparents. On 22 May 2008, the deceased member was diagnosed with walking pneumonia symptoms. On 25 July 2008, he was also diagnosed with a white/clear productive cough, fever, sore throat and sore chest from coughing. On 5 May 2009, the deceased member was diagnosed and treated for obstructive sleep apnea and a reactive airway disease. On 12 November 2009, the Department of Veterans Affairs (DVA) found the deceased member’s Aden carcinoma of the lung service connected and assessed him with a 100 percent disability rating. On 17 December 2009, a medical provider at Walter Reed Army Medical Center diagnosed the deceased member with lung cancer. It appeared that it was present prior to his April 2008 retirement. On 10 March 2010, he succumbed to his illness. _________________________________________________________________ BCMR MEDICAL CONSULTANT EVALUATION: The BCMR Medical Consultant recommends approval. The Medical Consultant states DoD Instructions 1332.32, Overcoming the Presumption, states within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring. The Medical Consultant opines this statement applies to the deceased member’s case and that, more likely than not, he would have been retired with a 100 percent disability rating. Therefore, an initial temporary disability retirement would have been the norm in most cases of initial cancer diagnosis, but would have likely later resulted in permanent retirement noting the likely progression of the disease while under treatment. The deceased member had lung cancer prior to his retirement date. The medical providers exercised reasonable prudence in treating and advising the deceased member regarding his cough; particularly in the context of his relative youth at the time and the fact that he was a non-smoker, although we cannot determine the outcome had his diagnosis been earlier achieved. The complete BCMR Medical Consultant evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT EVAUATION: On 16 February 2011, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a careful review of the evidence of record, we are of the opinion a change in the applicant’s disability rating is warranted. Therefore, we accept the opinion and recommendation from the BCMR Medical Consultant, who indicates that an injustice may have occurred in that the deceased member was retired without consideration of the progression of his disease while on active duty. Based on the above, we believe the applicant should have been found unfit by reason of physical disability. Therefore, we concur with the assessment by the BCMR Medical Consultant and adopt his rationale that the deceased member would have been retired with a 100 percent disability rating. In view of the foregoing, and in an effort to offset any possibility of an injustice, we believe his records should be corrected to the extent indicated below. _________________________________________________________________ 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 30 June 2008, he was found unfit to perform the duty of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnoses in his case was Neoplasms, malignant, any specified part of respiratory system exclusive of skin growths, a condition which is rated at a compensable percentage of 100 percent, under the Veterans Administration Schedule for Rating Disabilities (VASRD) code 6819; that the degree of impairment was 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; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. He was not released from active duty on 30 June 2008 and retired for length of service on 1 July 2008, but on 30 June 2008 his name was placed on the Permanent Disability Retired List with a 100 percent compensable disability rating, in the grade of technical sergeant. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-02034 in Executive Session on 21 April 2011, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary was considered: Exhibit A. DD Form 149, dated 19 May 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Medical Consultant, dated 9 Feb 11. Exhibit D. Letter, SAF/MRBR, dated 16 Feb 11. AFBCMR BC-2010-02034 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 30 June 2008, he was found unfit to perform the duty of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnoses in his case was Neoplasms, malignant, any specified part of respiratory system exclusive of skin growths, a condition which is rated at a compensable percentage of 100 percent, under the Veterans Administration Schedule for Rating Disabilities (VASRD) code 6819; that the degree of impairment was 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; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. He was not released from active duty on 30 June 2008 and retired for length of service on 1 July 2008, but on 30 June 2008 his name was placed on the Permanent Disability Retired List with a 100 percent compensable disability rating, in the grade of technical sergeant.