RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03058 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His service-connected medical condition, sinusitis and hepatitis C, be assessed as combat-related in order to qualify for compensation under the Combat Related Special Compensation (CRSC) Act. APPLICANT CONTENDS THAT: He would like his records to reflect that there is a definite, documented, causal relationship between his hazardous service in Vietnam and/or an instrumentality of war and/or a simulation of armed combat, and his resulting disability of sinusitis and hepatitis C. There is no specific error in his medical records, just a failure on the part of his doctors to provide the proper documentation. How would the doctors have known in 1969 that years later he would suffer from sinusitis and hepatitis C? Hepatitis C had not yet been discovered. And years later, when the sinusitis and hepatitis became evident, how would the doctors be able to relate it to incidents that happened years earlier and to which they were not witnesses? The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 17 April 1998, Department of Veteran Affairs Rating Decision (VARD) established the applicant had a service connection for chronic viral hepatitis C. On 1 April 2001, the applicant was assigned to the Retired Reserve Section and placed on the USAF Retired List in the grade of colonel. On January 2004 the applicant’s initial CRSC application, which included the hepatitis condition, was denied. Follow-on CRSC applications were denied on 28 April 2004, and 20 October 2006 based upon the fact that his service-connected medical conditions were determined not to be combat-related. On 24 July 2009, a VARD established the applicant had a service connection for sinusitis. On 19 September 2013, 6 June 2014 and 12 August 2014 the applicant submitted follow-on requests for CRSC, which included his initial sinusitis claim, and continued his hepatitis claims, were denied based upon the fact that his service-connected medical conditions were determined not to be 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: AFPC/DPFDC recommends denial indicating the applicant’s sinusitis, per Office of the Under Secretary of Defense Guidance, “Determinations of whether a disability is combat related will be based on the preponderance of available documentary information where quality of information is more important than quantity. All relevant documentary information is to be weighed in relation to known facts and circumstances, and determinations will be made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture.” Documentation does not confirm the applicant’s sinusitis was caused by exposure to tear gas. The applicant’s hepatitis C, documentation does not confirm a combat-related event as the direct cause. The VA Rating Decision awarding hepatitis C indicates “The examiner opined that it was as likely as not that the applicant contacted hepatitis C in Vietnam around 1969 either by the contaminated gamma globulin or needle stick from an infected patient.” Additionally, in accordance with DD Form 2860, Claim for Combat- Related Special Compensation (CRSC), the fact that a member incurred a disability in an area of armed conflict, while participating in combat operations, during a period of simulating war, in an area of simulated armed conflict, while participating in simulated combat operations or during a period of hazardous service is not sufficient by itself to support a combat-related determination. There must be a definite, documented, casual relationship between the armed conflict, simulated armed conflict, hazardous service or instrumentality of war and the resulting disability. Neither gamma globulin injections, nor a needle stick from an infected patient are combat-related events. In that same classification, a condition incurred from receiving a vaccine (such as a reaction to anthrax) or a disease incurred from an injection (such as HIV) would not be approvable for CRSC. The applicant’s conditions of sinusitis and hepatitis C do not meet the mandatory criteria for compensation under the CRSC program. Ultimately, there is no confirmation that a combat- related event was the direct cause of these conditions. A complete copy of the AFPC/DPFDC evaluation, with attachments, is at Exhibit C. The AFBCMR Medical Advisor recommends denial. The Medical Advisor states the applicant has supplied a like description of the law, characterized as Public Law 107-314, December 2, 2002, Section 636, Special Compensation for Certain Combat-Related Disabled Uniformed Service Retirees; as well as a 17-page Directive Type Memorandum issued by the Department of Defense on April 27, 2004, that includes revised policies with respect to the CRSC program. The Consultant directs attention to inclusion of a new statement, under hazardous service which reads, “Travel to and from such service, or actions incidental to a normal duty status not considered hazardous are not included.” The Medical Advisor opines the applicant’s duties as a surgeon and any occurrences incident to performing his normal duties, e.g., exposure to Hepatitis C patients or needle sticks, is not considered hazardous in the spirit of the DoD policy and the law. With respect to the applicant’s sinusitis, the Medical Advisor finds it unlikely that a single exposure to tear gas, while holding breath and exiting a building, albeit reportedly through a “fog” of tear gas, would result in purulent bacterial sinusitis requiring surgical drainage and intravenous antibiotics. The Medical Advisor opines the applicant’s self-description of his exposure, without documentation of the same in the health record, does not meet the objective evidence required for CRSC eligibility. While the VA narrative shows the applicant was treated for sinusitis during his military service was sufficient to establish a nexus with military service, the Medical Advisor opines the narrative and evidence supplied are insufficient objective proof that the recurring disorder was the direct result of an Instrumentality of War. Additionally, since it has been determined that the applicant likely contracted Hepatitis C either by exposure to patients, a needle stick, or from gamma globulin inoculations during his military service, that ocular problems, e.g., keratoconjunctivitis or dry eye syndrome, are known to be associated with Hepatitis C, and that depression followed the treatment of Hepatitis C, then it should follow that each of these conditions was found service-connected. This fact, however, the Medical Advisor opines, and occurrences should not be considered combat-related conditions; despite the fact that this non-combatant was performing duties in a Geneva Convention protected facility in a war zone. The BCMR Medical Advisor adopts the analysis and recommendation of the BCMR CRSC reviewer to deny the applicant’s petition for designating his medical conditions as combat-related or the direct result of an Instrumentality of War. The complete copy of the AFBCMR Medical Advisor’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant asserts that his hepatitis C be declared combat related and states hepatitis C has a VASRD code of 7354 or any hepatitis that is not A or B can be rated under this code. Hepatitis C is an infection in the liver that most often does not show any symptoms. A worse case of hepatitis C can, however, lead to cirrhosis, liver cancer, and liver failure. For this condition to qualify for a rating, its presence must be proved by a serologic test. His assigned duties were to assist and advise at a Vietnamese civilian hospital. Hepatitis C is endemic in the Vietnamese civilian population. He was operating without the proper protective gear. The gloves were reused, and had many holes in them, and the gowns were not impervious. Universal precautions were unknown at the time. He was frequently soaked in blood. In addition, there were invariably needle sticks. Any one of these bloody operations or needle sticks could have been the source of his hepatitis C. This was clearly hazardous duty. The evaluators insist that there be a single incident that is well documented, where the cause and effect relationship between the incident and the disability is proven. As long as the disability is the direct result of the hazardous duty, that is sufficient. Please also note that diseases can be combat related; it does not have to be a traumatic injury. There are other hazardous duties other than hand to hand combat. The preponderance of evidence clearly leads to the conclusion that he incurred hepatitis C while operating on Vietnamese civilians. One can easily presume that my hepatitis C was acquired as a direct result of the actions taken in the performance of hazardous duty in a war zone. One does not need to have a well- documented single incident. The VA benefit of the doubt presumption of service connection is sufficient. Especially since there is no documentary evidence that he incurred hepatitis C under circumstances that were not combat related. The applicant’s complete response, with attachments, 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission, to include his rebuttal, in judging the merits of the case; however, the majority of the Board agrees with the opinions and recommendations of the Air Force OPRs and adopts their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. The applicant’s conditions of sinusitis and hepatitis C do not meet the mandatory criteria for compensation under the CRSC program. There is no confirmation or conclusive evidence that a combat-related event was the direct cause of these conditions. Therefore, in the absence of evidence to the contrary, the majority of the Board finds 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. RECOMMENDATION OF THE BOARD: The majority of the board finds insufficient evidence of error or injustice and recommends the application be denied. The following members of the Board considered AFBCMR Docket Number BC-2014-03058 in Executive Session on Thursday, 24 November 2015 under the provisions of AFI 36-2603: Although chaired the panel, in view of his unavailability, has agreed to sign as Acting Panel Chair. By a majority vote, the Board recommended denial of the application. voted to partially grant the applicant’s request but does not desire to submit a minority report. The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03058 was considered: Exhibit A. DD Form 149, dated 13 July 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFDC, dated 18 February 2015. Exhibit D. Memorandum, AFBCMR Medical Consultant, dated 21 October 2015. Exhibit E. Letter, SAF/MRBR, dated 23 October 2015. Exhibit F. Letter, Applicant, not dated, w/atchs. 2