ADDENDUM TO RECORD OF PROCEEDINGS

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

	COUNSEL: YES

	HEARING: YES

APPLICANT REQUESTS THAT:

The Board reconsider his Line of Duty (LOD) request for his six years of exposure to hazardous herbicides from 1974 to 1980.  

RESUME OF THE CASE:

On 2 Jun 16, the Board considered and denied a request for correction of military records submitted by the applicant, finding that although the Board was not unsympathetic to the applicant’s plight, the applicant had provided insufficient evidence of an error or injustice to justify relief.  The Board further noted the Air Force Instruction defers all LOD claims to the Department of Veterans Affairs (DVA) that are not addressed within 180 days of completion of the period of service.  

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit G.

On 23 Feb 18, the U.S. District Court, District of Columbia, issued an order directing the AFBCMR to reconsider de novo the applicant’s requests for a LOD determination.  Exhibit H.  

On 6 Mar 18, the AFBCMR staff emailed the applicant’s counsel requesting any additional evidence they desired to submit for the Board’s consideration.  Exhibit I.  

On 9 Apr 18, the applicant’s counsel submitted supplemental evidence for the Board’s consideration.  He again contends the applicant was exposed to Agent Orange while flying on contaminated C-123 aircraft and now suffers from numerous medical conditions that the Department of Veterans Affairs (DVA) recognizes as entitled to the presumption of service connection.  When the Board initially considered his application, they concluded insufficient evidence had been presented to demonstrate an error or injustice, invoking the 180-day rule.  The applicant was unable to meet the 180-day deadline because the U.S. government did not acknowledge post-Vietnam War service on C-123s exposed crews to Agent Orange until well after the applicant completed his service; and, his medical conditions are latent diseases that developed slowly and remained undiagnosed (through no fault of the applicant) for an extended period of time.  Furthermore, imposing the 180-day filing deadline relied on a distinction between Air Force veterans and Air Force Reserve veterans.  

The applicant further contends: the Board cannot deny two facts: 1) the applicant was exposed to Agent Orange from 1974 to 1980, and 2) has developed numerous medical conditions.  The only reasonable conclusion the Board can draw from these facts is to grant his LOD determination and have the military records reflect the connection between his latent diseases and service aboard the C-123s.  The Board has the authority to waive the 180-day requirement when it is in the interests of justice to do so.  In this case, granting his LOD determination would be in the interests of justice. 

The applicant’s complete submission is at Exhibit J.

STATEMENT OF FACTS:

According to special order AB-6, dated 23 Jan 75, the applicant transferred from the California Air National Guard to the Air Force Reserve and was assigned to the 74th Aeromedical Evacuation Squadron, Westover AFB, effective 1 Feb 75 as a staff sergeant.  On 23 May 80, the applicant was discharged from enlisted status (technical sergeant) and on 24 May 80, appointed a Second Lieutenant.  

Effective 19 Jun 15, 38 CFR 3.307 was amended expanding Agent Orange-related compensation and health care benefits eligibility to Air Force Reserve personnel who were exposed to the herbicide through regular and repeated contact with contaminated C-123 aircraft.  The DVA identified Reserve members assigned to the 74th Aeromedical Evacuation Squadron as eligible. 

On 16 Feb 16, the Air Force partially approved the applicant’s claim for Combat-Related Special Compensation, providing a combined 100 percent rating for his Agent Orange-related disabilities, effective 1 Jul 15.  

For more information, see the miscellaneous documents and the excerpt of the applicant’s record at Exhibit M.  

AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denying the applicant’s request to accomplish a de facto LOD determination for any potential exposure that did not present as a disease, illness or injury, or symptoms thereof, while in a duty status.  Although there may have been an exposure to an offending agent during the years in question (1974 to 1980), there is no evidence of actual clinical disease entity, illness or injury that was incurred, manifested, or permanently aggravated by military service during those years.  

The fact that a nexus has been established between the applicant’s military service and the occurrence of disease decades later does not warrant a de facto LOD Determination, made effective from the applicant’s date(s) of service or the suspected exposure date(s).  While a LOD determination is important for establishing whether an illness or injury was the result of military service, the LOD cannot be retroactively applied to a period during which there was no actual or suspected clinical illness or injury affecting duty or expected to affect duty.  Stated differently, if there was no clinical or suspected illness or an injury with a likelihood of a permanent disability during the requested period of service, there can be no retroactive LOD applied to that period, even though the DVA has established a nexus with military service.  

Finally, the applicant states that granting this request simply recognizes the applicant’s factual on-duty exposures and thus meets the objectives of the ILOD regulation.  Finding so would be in direct opposition to the policy, as the policy states there must be a disease, illness, or injury that was incurred or aggravated in a duty status.  No such association has been factually presented, as the applicant did not exhibit signs or symptoms of diabetes, heart disease, or prostate cancer in a duty status.  These diagnoses were made many years later.  

The complete advisory is at Exhibit K.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 7 Jun 18 for review and comment (Exhibit L).  The applicant’s counsel replied on 6 Jul 18 and the applicant replied on 22 Jul 18.  The applicant contends the Board should reject the medical advisor’s opinion since it erects a procedural bar by stating he did not exhibit signs or symptoms.  Simply stated, the diseases caused by exposure to Agent Orange do not manifest quickly.  Furthermore, AFI 36-2910 specifically provides the SECAF full authority over the LOD process and the Board can waive the 180-day limit on the Air Reserve Component (ARC) LOD requests permitting compassionate flexibility where appropriate.  As AFI 36-2910 requires, this was an on-duty exposure injury, and it had permanent and totally disabling results that are potentially fatal, which is why the DVA “flagged” him as terminally ill due to cancers.  Although the Board’s medical consultant does not stress the fact, the Board can waive the 180-day limit on ARC LOD requests.  To do otherwise is to pretend toxic exposures somehow are not harmful unless manifested by cancer within six months.  Such an illogical pretense is hardly in keeping with Air Force values and the duty to protect his health and DVA benefits.  

The applicant further contends that the LOD is needed to establish not his Agent Orange-related disabilities, but only the exposure itself as an injury/event during the period of his aircrew duties aboard the C-123; the LOD is to provide VA the date of his exposures as being 1974-1980.  A refusal of the request for an LOD investigation denies him all reasonable Air Force affirmation of his years of C-123 exposure.  That exposure is otherwise established via flight orders, AF Form 5, expert witnesses and other official documentation, but an LOD dates the event.  DVA’s rules then handle effective date for coverage, but because their recognition of presumptive C-123 exposures was done via a “liberalizing rule,” no claims can be honored prior to 19 Jun 15 unless based on fact-proven exposure.  An LOD provides that vital date affirmation, not of any illness or disease, not for continuation pay, military retirement or service medical care, but only probable facts of the exposure incident itself, so DVA can decide.  In a subsequent email, the applicant provides AFBCMR Docket Number BC-2007-00406, Record of Proceedings as an example of how the 180-day imposition is limited only to Air Reserve Component members.  Furthermore, he provides a copy of the Air Force Surgeon General’s response to his Freedom of Information Act request.  The response is virtually empty, showing how completely impossible it is for service members to learn about the hazards of flying the C-123 aircraft.  In closing, he provides a list of his current service-connected disabilities.  

The applicant’s complete response, with attachments, is at Exhibit M.

THE BOARD CONCLUDES THAT:

1.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice and therefore finds no basis to recommend granting the requested relief.  The Board agrees with the BCMR Medical Consultant that a LOD determination is required or warranted only when a medical diagnosis is made, not when a member is potentially exposed.  Furthermore, the LOD cannot be retroactively applied to a period during which there was no actual or suspected clinical illness or injury affecting duty or expected to affect duty.  In the applicant’s case, none of his medical conditions presumed to be those from his exposure to Agent Orange were diagnosed during the period of service in question.  Since his conditions were not diagnosed nor manifested during the period of service in question, these conditions cannot be considered for a LOD determination.  While the Board notes the applicant contends the Board has the authority to waive the AFI restriction and grant a LOD, the Board believes that the applicant’s record already reflects his exposure to contaminated C-123 aircraft.  In this regard, the Board notes the applicant’s record and the evidence provided shows he was assigned to the 74th Aeromedical Evacuation Squadron, Westover AFB, Massachusetts, during his post-Vietnam service (1975-1980).  The Board further notes the nexus between this assignment and the presumption of that service for any Agent Orange-related conditions in which the DVA is providing or could provide disability benefits based on 38 CFR 3.307(v).  The Board further notes the Air Force has rated his Agent Orange-related disabilities and awarded Combat-Related Special Compensation.  While the Board remains sympathetic regarding the applicant’s struggles to establish effective dates or service connection for DVA benefits, the Board reminds the applicant that establishing DVA effective dates and service connection are outside the Board’s purview.  Therefore, the Board recommends against correcting the applicant’s records.

2.  In order to fulfill the court’s requirement of a de novo review, the Board consisted of a completely new panel and required a new advisory opinion from the Air Force office of primary responsibility.

3.  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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2015-01979 in Executive Session on 25 Jul 18:

Panel Chair
Panel Member
Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit G:	Record of Proceedings, w/ Exhibits A-F, signed 15 Jun 16.
Exhibit H:	Order, U.S. District Court, District of Columbia, dated 23 Feb 18. 
Exhibit I:	Email, AFBCMR Staff, dated 6 Mar 18.  
Exhibit J:	Supplemental Documents, w/atchs, dated 9 Apr 18.
Exhibit K:	Advisory, SAF/MRBM, dated 7 Jun 18. 
Exhibit L:	Notification of Advisory, SAF/MRBC to applicant, dated 7 Jun 18.
Exhibit M:	Applicant’s response, w/atchs, dated 6 Jul 18 and 22 Jul 18.
Exhibit N:	Miscellaneous Documents/Excerpts from Master Human Resource Record.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.