RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01979

 						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

He be granted a Line of Duty (LOD) determination for his six years of exposure to hazardous herbicides from 1974 to 1980.   

He be granted Combat-Related Special Compensation (CRSC)for Agent Orange disabilities (Administratively Corrected).  

APPLICANT CONTENDS THAT:

He requires a LOD for the Department of Veterans Affairs (DVA) to recognize his six years of hazardous exposure injuries as a result of his C-123 aircraft missions from 1974 to 1980.  

The Air Force failed to properly identify the residual herbicide contaminations on the C-123, tail number 362, in 1979 when safety complaints were raised.  The Air Force finally categorized the C-123 post-Vietnam aircraft as “heavily contaminated with dioxin on all surfaces and a danger to public health” but did not notify aircrew members and maintenance personnel.  

The LOD is the only way to protect his DVA benefits.  In accordance with AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON) and Incapacitation (INCAP) Pay, the Secretary can waive any provision of the document.  The instruction also includes provisions regarding “benefit of the doubt” and the importance the DVA places on the LOD.

He is “catastrophically disabled” per the DVA with 415 percent service connected disability.  Additionally, the AFBCMR medically retired him from the Air Force with a 100 percent rating for compensable physical disability per BC-1999-00390. He is currently receiving surgeries, radiation and other treatment for aggressive prostate cancer, heart disease, spinal cord injuries and the loss of both feet.  The cancer treatment is uncertain as the cancer has spread to his bladder.  The ailments combined give him a limited life expectancy with a 60 percent chance of surviving two years.

The requested relief only affects the date he earned statutory veteran status for purpose of earned DVA benefits.  It is the same procedure the Air Force Reserve follows on current exposures with resultants illness or injuries.  

It was a full 17 years after their safety and exposure complaints were raised that it was determined the C-123 aircraft remained “heavily contaminated with dioxin on all test surfaces and was a danger to public health.  As dioxin degrades slowly over time, the Institute of Medicine of the National Academy of Sciences concluded the C-123s were even more contaminated when they were flown from 1972 to 1982.  However, the DVA will not offer full eligibility for benefits without a LOD placing him in the exposure.  The DVA regulations recognize statutory veteran status if an Air Force Reserve member is harmed and a LOD is generated.  Without the LOD, all post-Vietnam Reserve airmen are denied disability compensation from the date of the DVA claim although active duty C-123 post-Vietnam aircrew receive full retroactive disability compensation.  An LOD brings equality and ensures aircrew who performed the same duties aboard the same aircraft over the same years at the same base and who experience the same range of recognized Agent Orange illnesses are treated equitably.  

The objective of AFI 36-2910 is to ensure veterans’ rights and access to DVA benefits post-service.  He was denied those rights and benefits for decades through no fault of his own.  He requests the Board not further block his DVA benefits by refusing a LOD for the exposure illnesses.  This issue was acknowledged by the DVA and Air Force only on 8 January 2015.  Until then, the position of both agencies was that no contamination existed and no exposure was possible.  

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

STATEMENT OF FACTS:

The applicant was removed from the Temporary Disability Retired List (TDRL) and permanently retired by reason of physical disability with a compensable rating of 100 percent effective 28 March 1996 per the SAF/MRB directive dated 4 April 2012 (BC-1999-00390).    

In a letter dated 20 April 2016, AFPC/DPFDC advised the applicant his request for Agent Orange disabilities was resolved through administrative procedures and did not require referral to the Board.  In a letter dated 16 February 2016, the applicant was informed his claim for CRSC for the conditions of the loss of use of both feet, malignant growth genitourinary (prostate cancer with local invasion of bladder) diabetes mellitus, paralysis of musculospiral nerve (diabetic peripheral neuropathy, right upper extremity), paralysis of musculospiral nerve (diabetic peripheral neuropathy, left upper extremity), arteriosclerotic heart disease (coronary artery disease), tinnitus, impaired hearing, and urinary condition (erectile dysfunction) with special monthly compensation was approved for  combat-related disability rating of 100 percent effective 1 July 2015.  The applicant’s service connected disability conditions of skeletal system (post-operative degenerative disc disease), cervical spine, cervical spondylitis, spinal stenosis, with radiculopathy both shoulders, impairment of sphincter control (bowel incontinence), intervertebral disc syndrome (lumbar spine degenerative joint disease) and degenerative disc disease, status post decompression and fusion and bladder paralysis (urinary incontinence) were determined not combat-related.   

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

AIR FORCE EVALUATION:

AFRC/SGO recommends no action.  A proper LOD determination cannot be made nor does the AFI require such.  The applicant is already engaged with the DVA and service connection has been established.  A LOD will not address the central issue of retroactive compensation.  The current AFI 36-2910 defers all LOD determination claims to the DVA that are not addressed within 180 days of completion of the period of service.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He needs and can justify a LOD following a decade of exposure while serving aboard former Agent Orange spray aircraft.  He was  harmed by his duty and the Air Force did not take steps to protect him then or subsequent to the exposure.  AFI 36-2910 states the Secretary of the Air Force or the designee may revise any determination made under this instruction.  Chapter 1 states an LOD determination is a finding made after an investigation into the circumstances of a member’s illness, injury, disease or death.  An LOD determination protects the interests of both the member and the government.  The AFI further states the DVA may use the applicant’s military records to include any LOD determinations when determining benefits.  The only avenue for addressing previously unreported illness, injury or disease is through the DVA.  Without an LOD, he is unable to turn to the DVA for appropriate care and benefits.  Of particular concern are two surgeries he had in 1978 to address peripheral neuropathy in his left leg.  Peripheral neuropathy is a recognized Agent Orange related illness but was not in 1978.  His exposure was not known at the time although he had already been flying the C-123 for four years by that time.  He requests an LOD to address this.

Veterans have had to endure a five-year struggle to bring the DVA to recognize the exposure injuries and have yet to gain any protection from the Air Force.  The only protection available now is a LOD determination recognizing the initial             C-123 aircraft duty assignment and exposure.  This will enable veterans to turn to the DVA with a reasonable “time stamp” for any Agent Orange associated injuries.  Lacking the LOD, veterans have only the 15 June 2015 date set by the DVA to recognize the injuries, some which date back to the mid-1970s.  This involves no cost to the Air Force and veterans are benefited because DVA regulations require that military source documents govern DVA disability decisions.

The applicant’s complete submission is at Exhibit F.

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 note the applicant requests a LOD for his Agent Orange Exposure for the period of 1974 to 1980; however, as pointed out by the Air Force OPR (AFRC/SGO), LOD claims not addressed within 180 days of completion of the period of service are addressed to the DVA for resolution per AFI 36-2910.  While the Board is not unsympathetic to the applicant’s plight, we adopt the opinion and recommendation of AFRC/SGO as our conclusion the applicant has not been the victim of an error or injustice.  The Board is pleased to know the applicant is receiving compensation from the DVA for his combat-related and service-connected disabilities and recommends he continue to engage with the DVA on any corrections of disability compensation effective dates which he believes are warranted.  The applicant’s personal sacrifice and unselfish service to his country are noted and our decision in no way lessens our regard for his service; however, aside from the administrative correction for the combined rating of 100 percent for CRSC effective 1 July 2015, 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-2015-01979 in Executive Session on 2 June 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 30 December 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFRC/SGO, dated 14 March 2016.
	Exhibit D.  Memorandum, AFPC/DPFDC, dated 20 April 2016,
			  w/atch.
	Exhibit E.  Letter, AFBMCR, dated 28 April 2016.
	Exhibit F.  Letter, Applicant, undated.