RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03762 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His official records be corrected to show: 1. His diagnosis of acute lymphoblastic lymphoma (cancer) was determined to be in the line of duty (LOD). 2. He served on continuous active duty until he was placed on limited duty. 3. He receive all back pay and allowances, and any consequential out of pocket expenses he occurred for his medical treatment. ________________________________________________________________ APPLICANT CONTENDS THAT: His Medical Evaluation Board (MEB) incorrectly found his cancer to have existed prior to service (EPTS). Prior to serving as a reservist he served on continuous active duty from Jun 95 (when he began as a cadet at the US Air Force Academy) to Sep 06. He volunteered for deployment to Al Udeid AB, Qatar, departing 8 Jun 08. On 18 Jun 08, he was diagnosed with non-Hodgkins lymphoma. An LOD determination was sent by his command for approval but was inappropriately denied as “Existed Prior to Service (EPTS)—LOD NA.” However, his lymphoma could not have EPTS for the following reasons: 1. The LOD determination that his non-Hodgkins lymphoma “Existed Prior to Service (EPTS)” is contrary to law. The law states an illness, injury, disease, or death sustained by a member in an active duty status is presumed to have occurred in the LOD. An LOD determination is based upon the onset of the disease, illness, or injury process, not the existence of symptoms. EPTS conditions include chronic disease, illnesses, and injuries with an incubation period that would rule out a finding that they were incurred during periods of active duty (AD), active duty training (ADT), or Inactive Duty Training (IDT). From the time of his release from active duty in Sep 06 (active duty as an officer began Jun 99) until his diagnosis in Oct 08, he was in an active status 252 days of the elapsed 652 days. In reality, 40 percent of the time until his diagnosis the applicant was on active duty. It is impossible for the board to unilaterally determine that his illness was not incurred during periods of AD, ADT, or IDT. The opinions of the LOD Board legal and medical officers were slipshod and not supported by factual or medical evidence. 2. The EPTS determination is contrary to medical evidence. His T-Cell lymphoblastic lymphoma is the type of lymphoma which is a solid mass tumor of the lymph node located in the chest. Studies have shown that the latency period for a solid mass tumor is a least five years. The applicant was released from active duty on 22 Sep 06 and has since served continuously in the Air Force Reserve. Five years prior to his diagnosis date of 18 Jun 08 places the onset of the disease in the middle of his active duty career. EPTS conditions include chronic disease, illness, injuries or disease with an incubation period that would rule out a finding that they were incurred during periods of AD, ADT, or IDT. Even if in the highly unlikely event that the incubation period of the cancer was shorter than the established minimum incubation period of several years, he would still have been covered as a drilling Air Force Reservist. The burden of proof is on the Air Force to show the applicant’s malignancy was not incurred during a period of active duty. After he left active duty in Sep 06, he dedicated 40 percent of his available working time to the Air Force and on those days he would have been considered in the LOD. In this case, based upon the incubation period of the disease, it is not possible to conclusively rule out that he incurred the disease while in an active status. 3. The EPTS finding is contrary to the protections of 10 U.S.C. Section 1207A, The Eight-Year Rule. The Eight-Year Rule states “a disabling condition will be found to be in the line of duty, even though the condition EPTS, if the member has at least eight years of service, and the member was on active duty orders specifying a period of 30 days at the time the condition became unfitting, as subsequently determined by a Physical Evaluation Board (PEB).” The applicant has over eight years of active duty, and therefore, his disability should have been found to be in the LOD as a matter of law. 4. His command supported the finding of “In Line of Duty (ILOD).” During coordination, all of his Wing leadership concurred with an ILOD determination, saw this situation as being extremely detrimental to the well being of the applicant, and stated that the AFRC should find his case in the line of duty. The physician, in his treatment plan, has written a statement contrary to the AFRC finding, stating that it is impossible to tell when the illness began. The 382AW requested AFRC/CC reverse the LOD determination. It is clear that because of the incubation period of this type of disease it could only have started when he was on active duty. In support of his appeal, the applicant provides copies of a 1997 X-Ray report, his May 08 Flight Physical, letters from an Oncologist, his record of reserve service, a point paper, and his LOD paperwork. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered active duty on 2 Jun 99. On 20 Sep 06, he released from active duty, entered the Air Force Reserve, and was credited with 7 years, 3 months, and 18 days of active service. According to the applicant’s point credit accounting report summary (PCARS), he performed a substantial amount of active and reserve duty during the period 21 Sep 06 through 1 Jun 08, earning a total of 153 active duty points and 135 inactive duty training points. On 4 Jun 08, the applicant was ordered to active duty (non- mobilized) and deployed to Iraq. On 18 Jun 08, he was seen in the medical clinic in Iraq due to a persistent cough and was subsequently diagnosed with acute lymphoblastic lymphoma. On 18 Jun 08, a LOD determination was initiated to determine whether or not his condition was incurred or aggravated in the LOD. On 28 Aug 08, the appointing authority determined the applicant’s condition was incurred in the LOD; however, the AFRC reviewing authorities disagreed with the initial determination and recommended a finding of existed prior to service (EPTS) – LOD not applicable. On 7 Oct 08, the LOD approving authority determined the applicant’s condition was EPTS – LOD N/A. According to information provided by the applicant, he was released from active duty on 8 Oct 08. AFI 36-2910, Line of Duty Determinations, paragraph 3.4.1.2.3. Eight Year Rule states “IAW 10 U.S.C. Section 1207a, a disabling condition will be found to be in the line of duty, even though the condition existed prior to service (EPTS), if the member has at least eight years of active service (the eight years do not have to be consecutive), and the member was on active duty orders specifying a period of more than 30 days at the time the condition became unfitting, as subsequently determined by the Physical Evaluation Board.” The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility which are included at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SG recommends denial, indicating there is no evidence of an error or injustice. AFI 36-2910 does not require the determination of the etiology of the applicant’s lymphomatous change, rather the greater weight of credible evidence speaks against an In Line of Duty (ILOD) finding in order to find EPTS. Two LODs have found the greater weight of credible evidence to support that his lymphoma originated in a non-duty period as required by AFI 36-2910 in order to be found EPTS/LOD NA. Further, both LOD investigations were unable to find permanent worsening beyond the natural progression of his disease process, also a requirement by AFI 36-2910 in order to make the finding of EPTS/LOD NA. In reviewing the supplied records, the applicant more likely than not had the malignancy prior to the time of his flight physical 8 May 08, yet long after his leaving active duty in 2006. This decision was arrived at knowing the percentage of time spent on active duty, the large size of the mass 10 days into this period of orders, an understanding of the clinical nuances involved in the etiology and presentation of T-cell lymphoblastic lymphoma that preclude concluding that the onset dated back to 2006, or sooner. The opinion from the civilian doctor states that “it is impossible to say exactly when the applicant’s cancer began,” yet the task prescribed by AFI 36-2910 is only that the greater weight of credible evidence must be present to overcome the presumption of an ILOD finding. Two Air Force physicians, highly skilled in the art and science required, were asked to make clinical judgments to see where the greater weight of credible evidence lies in this case and have twice found EPTS/LOD NA. Further, the applicant’s counsel calculates that he served in active status 40 percent of this time from 22 Sep 06 until 18 Jun 08. In the year prior to his diagnosis, the applicant performed military duties 41 percent of the year or 149 days from 2 Jun 07 through 2 Jun 08. This intervening period of 59 percent of days is the greater weight of the evidence that the period of origination of his disease was during a non-duty period. His attorney’s citation of 5 years of solid tumors is correct, however, although presenting as a mediastinal mass, T-Cell lymphoma is more etiologically related to leukemia and is considered a spectrum of this hematologic (non-solid) malignancy. His case presented in the classic manner: “Aggressive lymphomas commonly present acutely or subacutely with a rapidly growing mass, systemic B symptoms (i.e., fever night sweats, weight loss), and/or elevated levels of serum lactate dehydrogenase and uric acid. Examples of lymphomas with this aggressive or highly aggressive presentation include T lymphoblastic leukemia-lymphoma.” The applicant’s T-cell lymphoblastic lymphoma clearly followed this pattern. A complete copy of the AFRC/SG evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant repeats his initial contention that by law an illness while on active duty status is presumed to have occurred in the LOD. Also, the Air Force advisory simply supports the argument there is no certainty in when this lymphoma began. The Air Force found him fit for duty in May 08 (just prior to his deployment) and they are bound by that determination, as a matter of law. The applicant’s supporting medical opinions come from board certified physician oncologists from the leading institutions in the world, including the Mayo Clinic. The weight of their opinions outweighs the Air Force Advisor’s “nursing opinion.” Moreover, counsel points out that the Air Force has not objected to the Eight-Year Rule, so the petitioner must prevail on that issue. A complete copy of the applicants’ response is at Exhibit E. ________________________________________________________________ The AFBCMR Medical Consultant recommends denial, indicating there is no evidence of an error or injustice. The applicant has taken the position that the mass likely existed during his previous period of active service (2006 or earlier), which he also bases on a literature search regarding the tumor “latency” period of five years. A reasonably-minded clinician would agree that it clearly and unmistakably did NOT first begin during his brief period of active service in Jun 08. Further, the mere fact that a medical condition of the nature of the applicant’s may have first manifested during a service period of 30 days or less, is not sufficient to establish a causal or aggravating relationship with military service. However, even if the applicant’s medical condition first occurred during the time he served intermittent periods of 30 days or less service this is not proof the condition is service incurred or the proximate result of performance of his military duties. DoDI 1332.38, Physical Disability Evaluation, Enclosure 3, Paragraph E2.3.4.5.3., reads “Any medical condition incurred or aggravated during one period of service or authorized training in any of the Armed Forces that recurs or is aggravated during later service or authorized training, regardless of the time between, should normally be considered incurred in the LOD, provided the condition or subsequent aggravation was not the result of the member’s misconduct or willful negligence. In those cases in which the service member reverts to a civilian status after the condition is incurred, the service member must prove by a preponderance of evidence that the medical condition was incurred or aggravated in the LOD and was not due to intentional misconduct or willful negligence.” He also introduced the contention that the Eight-Year Rule (10 USC, 1207a) should apply in his case, noting he had previously completed eight years of active service. However, the Eight-Year Rule would only apply if his medical condition became disqualifying or resulted in his referral through the military Disability Evaluation System resulting in an unfit finding for further military service. Thus, the Eight-Year Rule would not apply solely for the purpose of establishing an ILOD determination, particularly in the case of a person who has continued to serve. In addition, the law now requires there be “clear and unmistakable” evidence that a condition existed prior to service. The Medical consultant opines the applicant’s large chest mass discovered within days of his 2008 deployment is fairly and unmistakable evidence the condition could not have first begun during the brief period of deployment. Although the applicant has proposed that his lymphoma began during a previous period of active service (Sep 06 or earlier), alternatively based upon a proposed 5-year tumor growth, that is insufficient as stand alone proof to conclude his Acute Lymphoblastic Leukemia actually first occurred during his previous period of active service. The medical Consultant opines the evidence is insufficient to meet the burden of proof that his medical condition first began during his previous period of active service (1996-2006), nor that it was incurred ILOD during his period of Traditional Reserve duty or upon his activation in 2008. A complete copy of the AFBCMR Medical Consultant’s evaluation 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. Sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. The applicant is requesting his lymphoblastic lymphoma (cancer) be determined to be in the line of duty (LOD), rather than to have existed prior to service (EPTS). After a thorough review of the evidence of record and the applicant's complete submission, to include his responses to the advisory opinions rendered in this case, we believe he has raised sufficient doubt as to whether or not his cancer existed prior to service (EPTS). The medical advisors for both the applicant and the Air Force agree it is impossible to say exactly when the cancer began to develop. While we note the comments of AFRC/SG indicating the applicant was not on active duty orders for 59 percent of the period between 20 Sep 06 when he left extended active duty and 18 Jun 08 when he was diagnosed, we are not convinced this is sufficient to establish that the disease did not begin during one of many periods of military duty he performed during this approximately 20 month period. In fact, the law now requires that there be “clear and unmistakable” evidence that a condition existed prior to service prior to such a determination being made. While it cannot be conclusively determined when his cancer manifested, in view of the fact the applicant spent nearly half of this 20-month period in some form of military duty status (active duty, inactive duty training, annual field training period), we believe it is just as likely as not that the applicant’s condition manifested in the LOD. Thus, he should have been retained on active duty from the date he was separated on 8 Oct 08 until 15 Dec 09 when AFRC/SG determined he was physically fit for continued military duty. Therefore, we believe it appropriate to resolve any doubt in the applicant’s favor and recommend his records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. His lymphoblastic lymphoma (cancer) was determined to be in the line of duty (LOD). b. On 8 October 2008, he was not released from active duty, but continued to serve on active duty until 15 December 2009 when he was determined to be fit for duty. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-03762 in Executive Session on 12 Aug 12, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-03762 was considered: Exhibit A. DD Form 149, dated 11 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SG, undated. Exhibit D. Letter, SAF/MRBR, dated 6 Jan 12. Exhibit E. Letter, Counsel, dated 29 Feb 12. Exhibit F. Medical Consultant Memo, dated 22 May 12. Exhibit G. Letter, AFBCMR, dated 14 Jun 12.