RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02250

	COUNSEL: XXXXXXXX
	
	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

His Not in Line of Duty (NILOD) finding determination be overturned and be found In Line of Duty (ILOD).  

APPLICANT’S CONTENTIONS

The medical evidence contained with his records indicates his Parkinson’s Disease (PD) was aggravated by his active military service.  Specifically, his performance of international flights continually disrupted his sleep-wake cycle, which is directly related to the symptoms associated with PD as early as 2004.  These symptoms include tremors in his right hand, and while these initial tremors resolved, he had complaints concerning his inability to ambulate with instances of instability, such as a limp, shuffling or dragging of a foot, or slow walking.  These symptomologies clearly indicate that his condition manifested, or at the very least aggravated itself, while serving in an active status.

The NILOD finding was the result of an improper assessment and the misapplication of the Air Force Instruction (AFI) by the LOD review board.  In this regard, any illness or injury sustained by a member in any active status is presumed to be ILOD.  The presumption can only be rebutted by clear and convincing evidence to the contrary.  The regulation states that any conditions incurred or aggravated “during one period of active service or authorized training in any of the Armed Forces, that recurs, is aggravated or otherwise caused the member to be unfit should be considered ILOD.”  In the present manner, his symptoms only arose during, or immediately after, his periods of active military service and subsided thereafter.  There is no information to suggest that a superseding intervening cause exists that would trump an ILOD determination, especially given the drastically different duties he performed in his civilian job, wherein he performed only short regional flights thus allowing him to maintain a healthy and consistent sleep-wake cycle.  The board’s NILOD finding required them to ignore the ample evidence that shows his PD was aggravated beyond its natural progress as a result of his frequent 24-hour flight missions that disrupted his sleep patterns.  Furthermore, he has not had any significant impairments since he stopped performing international flight operations, a crucial factor in the aggravation of his condition that only occurred while performing military duties.  While this may be attributed to the medication he’s been prescribed, it does not negate the aggravation aspect because but for the international flights he would not have required the medication.  

Moreover, the LOD Determination Board also failed to properly apply the 8-year rule.  The board determined he did not meet the criteria for application of the 8-year rule because he was not on active duty at the time of his diagnosis, and there was no documentation provided indicating his condition Existed Prior to Service (EPTS), but this rationale is misapplied since the board simultaneously ruled that the conditions must be EPTS due to the lack of an on-duty status.  Such a circular argument cannot be applied to his detriment.

The LOD determination board failed to apply the proper evidentiary burden in ruling his condition was NILOD, not due to misconduct.  Per AFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, a NILOD-Not Due to Member’s Misconduct determination can only be reached in two instances; 1) when the service member’s injury, illness, disease, or death occurred while the member was absent without authority; or 2) when the member’s injury, illness, or disease existed prior to service and was not aggravated by such service.  The standard of proof for an EPTS-Not Service Aggravated (EPTS-NSA) determination is “clear and unmistakable evidence” and in the present matter, there is no evidence that his PD existed prior to service.  Rather there is a plethora of evidence indicating that he did not begin to develop symptoms associated with PD until after his entry into the Air National Guard (ANG), and his symptoms routinely subsided after he came off orders and resumed normal sleep-wake cycle.  It is well established in the medical literature that there is a direct correlation between PD and disrupted sleep cycles which routinely occurred during his service due to piloting international flights.  The records indicate his symptoms occurred in close proximity to these long flight missions and as such, there is sufficient evidence to suggest that his PD was service-aggravated, and his civilian flight duties do not diminish this conclusion since they were short regional flights allowing him to maintain a consistent, healthy sleep-wake cycle.  Thus the failure to produce clear and convincing evidence to the contrary requires the NILOD determination be reversed and an ILOD determination rendered.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an XXXXX lieutenant colonel (O-5).

From 2004 to 2017, according to medical records provided by the applicant, he was seen multiple times by various medical providers for abdominal pain, difficulty sleeping, tremors in his right hand, and other gastrointestinal issues. 

On 4 Oct 17, the applicant was seen at John Hopkins Medical Center to discuss findings of a DaT scan performed in Sep 17.  The scan revealed changes consistent with Parkinsonian Syndrome and he was placed on a dopamine promoting medication.

On 2 Nov 18, according to AF Form 348, Line of Duty Determination, the applicant’s condition was determined to be Not in Line of Duty (NILOD) – Not due to member’s misconduct.  The description of symptoms included constipation, abdominal pain and Parkinson’s Disease. 

On 10 Jan 19, according to a memorandum from the applicant’s counsel, he appealed the NILOD-Not due to Misconduct finding and requested that his Parkinson’s Disease be found ILOD.  

On 6 Sep 19, the applicant’s request to change his NILOD - Not Due to Misconduct determination to In Line of Duty was disapproved by ANGRC/CC due to a lack of significant medical documentation to support the appeal claims.  The ANGRC/CC also found that there was no supporting medical documentation to validate the diagnosis of Parkinson’s Disease existed prior to service and the evaluation for the disease that was completed in 2015 was found to be negative.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.
APPLICABLE AUTHORITY/GUIDANCE

DAFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, 8 Oct 15:

1.10. LOD Determinations. One of the following three determinations will be applied to the member’s illness, injury, disease or death: 

1.10.1. In Line of Duty (ILOD). A determination of ILOD is made when the illness, injury, disease or death was not due to the member’s misconduct and was incurred when the member was present for duty or absent with authority or when the illness, injury or disease was service aggravated. 

1.10.1.1. For ARC members, this includes while the member was in any duty status (including direct travel status). 

1.10.1.2. Service Aggravation. A condition is aggravated by military service when there is a permanent worsening of a pre-service medical condition, over and above natural progression, caused by trauma or the nature of military service. Natural progression is the course an illness, injury or disease would take over time, regardless of military service.

1.10.2. Not in Line of Duty (NILOD)-Not Due to Member’s Misconduct. 

1.10.2.2. Existed Prior to Service (EPTS)-Not Service Aggravated (NSA). A determination of NILOD-Not Due to Member’s Misconduct is also made when an investigation determined, by clear and unmistakable evidence, the member’s illness, injury, disease or the underlying condition causing it, existed prior to the member’s entry into military service with any branch or component of the Armed Forces or between periods of such service, and was not service aggravated. EPTS-NSA conditions include chronic conditions and conditions where the incubation period rules out a finding that the condition started during any period of active duty, active duty for training (ADT) or IDT. 

1.10.2.2.1. Standard of Proof. 

1.10.2.2.1.1. RegAF and ARC members with conditions that became unfitting while ordered to active duty of more than 30 days (other than for ADT or IDT). The standard of evidentiary proof used in making EPTS-NSA determinations is clear and unmistakable evidence. Clear and unmistakable evidence means undebatable information that the condition existed prior to military service or if increased in service was not aggravated by military service. In other words, reasonable minds could only conclude that the condition existed prior to military service from a review of all of the evidence in the record. It is a standard of evidentiary proof that is higher than a “preponderance of evidence” and “clear and convincing evidence.” 

1.10.2.2.1.2. ARC members with conditions that became unfitting while ordered to active duty of 30 days or less, or while on ADT or IDT. The standard of evidentiary proof used in making EPTS-NSA determinations is preponderance of evidence. 

1.10.2.2.2. Eight Year Rule (10 U.S.C. § 1207a, Members with Over Eight Years of Active Service: Eligibility for Disability Retirement for Pre-Existing Conditions).  An illness, injury or disease that is EPTS may be deemed to have occurred in a duty status for the purpose of determining disability separation or retirement by a Physical Evaluation Board if the member: 

1.10.2.2.2.1. Has at least eight years of total active service; 

1.10.2.2.2.2. Was on Title 10, U.S.C. active duty orders specifying a period of greater than 30 days at the time the condition became unfitting; and 

1.10.2.2.2.3. Was not released from active duty within 30 days of commencing such period of active duty under 10 U.S.C. § 1206a, Reserve Component Members Unable to Perform Duties When Ordered to Active Duty: Disability System Processing, due to an EPTS condition not aggravated during the period of active duty. 

1.10.2.2.2.4. Whether medical separation or retirement for EPTS conditions is appropriate under the Eight Year Rule is a finding made in the Disability Evaluation System (DES). While the Eight Year Rule is not an LOD determination, LOD referring authorities are responsible for identifying and referring to the DES those EPTS cases to which the Eight Year Rule might apply (i.e., those with members meeting the criteria of this paragraph and having an EPTS condition that is potentially unfitting in terms of retention and/or mobility standards). This ensures that such cases are entered into the DES and appropriately assessed under the Eight Year Rule

AIR FORCE EVALUATION

NGB/A1PS recommends denying the application.  Based upon documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  The original LOD determination and subsequent LOD appeal were found to be processed appropriately and in accordance with policy.  The applicant asserts the previous determinations in the LOD were contrary to AFI-36-2910, not supported by medical evidence and otherwise arbitrary and capricious and the “8 year rule” was not appropriately applied.  Additionally, his counsel argues that the action had the incorrect burden of proof applied and claims there is absolutely no evidence to support the current findings.  Specifically, his counsel refers to an “abundance of medical literature” asserting a direct correlation between the applicant’s medical condition and his military service.  The medical evidence submitted by the applicant consists of his medical records, which document the progression of symptoms and subsequent diagnosis, along with articles from periodicals that assert a direct correlation between sleep and Parkinson’s.  This new evidence does not sufficiently support an aggravation of his condition over and above the natural progression due to trauma of the nature of military service.

NGB/SG medical experts confirm circadian rhythm changes are not included as risk factors for Parkinson’s Disease and noted that sleep disorders are a common manifestations of the disease, but not currently recognized etiology.  Furthermore, the articles, provided by the applicant, are from journals that are not reliable sources for professional medical opinions offered in the course of medical treatment, or peer reviewed medical publications, or peer reviewed conclusions based upon any testing or studies.  Such information from the internet is not sufficient to challenge the medical explanation offered by NGB/SG as to the etiology of Parkinson’s Disease.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Jan 22 for comment (Exhibit D), and the applicant replied on 2 Feb 22 (Exhibit E).  In his response, the applicant requests that the Board disregard the advisory opinion due to its misapplication of regulatory guidance, lack of consideration of relevant medical literature, and failure to address most of the applicant’s contentions and respectfully requests the Board grant the requested relief.

The advisory opinion draws broad conclusions without supporting evidence and appears to be a conscious effort of the part of NGB to find loopholes for finding conditions as NILOD regardless of the actual factual situation underlying the cause and/or aggravation of the condition.  Additionally, the advisory opinion has tried to justify a NILOD determination by  repeating the NGB’s final decision without any legal or factual justification for the actual cause of his PD or how it has been determined that his condition was not aggravated by his service.  These are without merit, as his PD most certainly was aggravated by the international flights he piloted.

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of NGB/A1PS and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The new evidence does not sufficiently support an aggravation of his condition over and above the natural progression of the disease.  Furthermore, the Board notes that the applicant’s condition is controlled by medication as he continues to perform military duties.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2021-02250 in Executive Session on 21 Mar 22:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 23 Jun 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/A1PS, w/atchs, dated 6 Jan 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Jan 22.
Exhibit E:	Applicant’s Response, w/atchs, dated 2 Feb 22.

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