RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01714 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His Air Force (AF) Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, be changed to reflect “yes” in Section 10, Item C, Disability was the direct result of Armed Conflict or was caused by an Instrumentality of War and incurred in the line of duty during a period of War; and Item D, Disability was the direct result of a combat related injury. ________________________________________________________________ APPLICANT CONTENDS THAT: Upon being evaluated by the Department of Veteran Affairs (DVA) and civilian physicians, it was concluded that his conditions of Asthma and Chronic Sinusitis were the result of his exposure to the smoke from burning oil well fires, dust, and extreme heat while being deployed during the Gulf War. In support of his request, the applicant provides copies of his AF Form 356; AF Form 1180, Action on Informal Physical Evaluation Board Findings and Recommended Disposition; Progress Notes; DVA Rating Decision; and physician statements. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served from 2 August 1990 to 21 July 1994 in support of Operation DESERT SHIELD/STORM. A Medical Evaluation Board (MEB) Report, dated 8 April 1994, indicates the applicant was diagnosed with Asthma and Hypofibrinogenemia (a deficiency of fibrinogen, a blood clotting factor, in the blood) incurred while entitled to basic pay. The MEB referred the applicant’s case for review by the Informal Physical Evaluation Board (IPEB). The IPEB findings, dated 18 April 1994, indicates the applicant was found unfit for duty due to his physical disabilities of Hypofibrinogenemia (rated at 30 percent) and Asthma (rated at 10 percent) for a total of a compensable disability rating of 40 percent. The AF Form 356 indicates the applicant’s disabling conditions were incurred in the line of duty in time of War or National Emergency or after 14 September 1978; however, they found his conditions were not the direct result of armed conflict or caused by an instrumentality of War, and that his disabilities were not the direct result of a combat related injury. As a result, the IPEB recommended the applicant be placed on the Permanent Disability Retired List (PDRL) with a compensable disability rating of 40 percent. On 10 May 1994, the applicant agreed with the findings and recommended disposition of the IPEB by signing the AF Form 1180. According to Special Order ACD-1544, issued 24 May 1994, the applicant was honorably released from active duty effective 21 July 1994, and placed on the PDRL effective 22 July 1994. He served 10 years, 10 months, and 1 day on active duty. A DVA Rating Decision, dated 24 October 2008, indicates the DVA granted the applicant a 60 percent disability rating for his condition of Bronchial Asthma; 30 percent for his condition of Hypofibrinogenemia; 10 percent for his condition of Postoperative Internal Derangement, Right Knee; and 10 percent for his condition of Sinusitis. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of retirement. The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, indicates he served in support of Operation DESERT SHIELD/STORM from 2 August 1990 to 21 July 1994. It also indicates that he served in the Operation DESERT SHIELD/STORM Area of Responsibility (AOR), but does specify dates of deployment or locations. According to his 5 March 1992 Enlisted Performance Report (EPR), he was deployed to Al-Kharj, Saudi Arabia. Similarly, an 18 June 1992 Air Force Achievement Medal citation also places him at Al-Kharj Air Base, Saudi Arabia and specifies serving a three-month period from 19 June 1991 to 16 September 1991. However, based on his service record, it is difficult to place him within the immediate vicinity of where these fires were known to have occurred. In fact, Al-Kharj, Saudi Arabia, is several hundred miles Southwest of those locations. Moreover, the prevailing winds in Kuwait and the adjacent area blow to the Northeast rather than to the Southwest. This does not establish the applicant wasn’t exposed to oil well fires or their debris, just that the available evidence does not place him in the locations most commonly associated with such exposure. Clearly, he was exposed to dust and extreme temperatures while deployed. The provided physician narrative summary, dated 6 April 1994, indicates he was tested for allergies in 1993 and a dust allergy was noted at the time. However, the dust allergy is not noted as being exceptionally severe and the applicant had no evidence of these health problems prior to his deployment. As noted in the final paragraph of the narrative summary, all of these conditions manifested in the years immediately following his deployment. This certainly suggests it is possible there could be a correlation between his conditions and deployment. However, the fact that a condition initially manifests under deployed conditions does not automatically make it a “direct result of armed conflict or caused by an instrumentality of War in the line of duty during a period or War; or, as the direct result of a combat related injury, as defined and outlined in existing guidance. After considering all the facts, the IPEB found they did not find adequate evidence in the file to establish the direct relationship to either combat or the instrumentality of War required under guidance. If the applicant disagreed, he had two opportunities to appeal the IPEB’s findings. He chose not to do so. Moreover, based on the established definitions and the facts available under review, even with the benefit of years of subsequent medical research in the area of “Gulf War Illness” and related conditions, there is no obvious reason to suspect that if the applicant’s medical conditions were reviewed today by the IPEB, they would consider his conditions were caused by an instrumentality of War or as a direct result of armed conflict. The complete DPSD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: It is hard and frustrating fighting a system that is doing everything in its power to deny his appeal. When you put your life on the line and sacrifice your life for this great country, you expect more out of the system. The applicant’ complete rebuttal is at Exhibit E. ________________________________________________________________ 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The available evidence of record does not support a finding that the service- connected medical condition the applicant believes is combat- related was incurred as the direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war; and, therefore, does not qualify for compensation under the CRSC Act. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC- 2010-04745 in Executive Session on 13 September 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-01714 was considered: Exhibit A. DD Form 149, dated 5 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 27 Jun 11. Exhibit D. Letter, SAF/MRBR, dated 22 Jul 11. Exhibit E. Letter, Applicant, dated 1 Aug 11.