RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00462

XXXXXXXXXXX	COUNSEL: XXXXXx
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His Line of Duty (LOD) determination be changed from Not In Line of Duty (NILOD)-Not Due to Own Misconduct to In Line of Duty (ILOD).

APPLICANT’S CONTENTIONS

On 6 Dec 19, while on Title 10 active duty orders and being processed for an upcoming deployment supporting Operation FREEDOM SENTINEL, he received the Typhoid, Measles, Mumps and Rubella (MMR), and Anthrax vaccinations.   Approximately 10 days later, he began feeling sick, which was accompanied by a fever and swelling below his left arm where he received the Typhoid and MMR inoculations.  On 27 Dec 19, he sought treatment at the Department of Veterans Administration (DVA) hospital, who noted a soft tissue mass to the left chest area.  Following extensive testing, multiple computerized tomography (CT) scans, a biopsy and hospital stays, his left axial lymph node was surgically removed.  It was later found to show markers from Bartonella Henselae bacteria.  This bacterial infection begins to exhibit symptoms, to include enlarged left axial lymph node, enlarged spleen, and abdominal lymphadenopathy, within one to three weeks (per the Center for Disease Control), which is well within the time-frame from when he received the vaccinations. 

He appealed the finding of “NILOD – Not due to member’s misconduct, Existed Prior to Service (EPTS), not service aggravated.”  However, due to being a traditional guardsman who works full-time and the wing being on limited staffing due to COVID-19 restrictions, the appeal was filed outside of the acceptable window and was denied, with no consideration take into account for the extenuating COVID-19 circumstances.

As a healthy airman prior to the vaccinations, and the symptoms showing up post vaccinations, there is no evidence to show that the condition existed prior to being placed on orders.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air National Guard (ANG) senior master sergeant (E-8).

According to documents provided by the applicant:

On 6 Dec 19, as noted on DD Form 2766C, Vaccine Administration Record, the applicant received vaccinations for Typhoid, MMR, and Anthrax. 

	On 12 Jan 20, as noted on AF Form 348, Line of Duty Determination, the applicant’s diagnosis of “soft tissue mass” (left axillary lymphadenopathy) was recommended by his immediate commander to be ILOD.

	On 23 Apr 20, as noted on AF Form 348, the approving authority rendered the final LOD determination of “NILOD, Existed Prior to Service with No Service Aggravation for Left Axillary Lymphadenopathy.”

For more information, see the applicant’s submission at Exhibit A and the advisories at Exhibit C and Exhibit D.

AIR FORCE EVALUATION

NGB/SGPS recommends denying the applicant’s request to have his NILOD- EPTS changed to ILOD. A complete review of the documents provided by the applicant determined that the documentation provided is not sufficient to support his claim nor does it prove evidence of an error or injustice.  The applicant’s request requires a complete copy of all Infectious Disease and Oncology notes pertaining to the lymphadenopathy condition and the military and civilian medical records, provided by the applicant, were incomplete and without the complete medical records this office is unable to recommend if the condition were incurred or service aggravated in a qualified duty status or incurred or aggravated in a non-duty status.  As such, this office cannot render a recommendation for approval without all military and civilian medical documentation related to the illness, injury and potentially disqualifying medical conditions.  In addition, the medical documentation should include pertinent labs, diagnostic reports, specialty consults, and/or encounter notes related to the condition(s).

The complete advisory opinion is at Exhibit C.

NGB/A1PS recommends denying the applicant’s request to have his NILOD-EPTS changed to ILOD.  This office reviewed the applicant’s submission in its entirety and determined that based upon the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  Department of the Air Force Instruction (DAFI) 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON), and Incapacitation (INCAP) Pay, paragraph 1.9, states that for members on orders 30 days or less, the standard of proof the government must overcome to make a NILOD determination is Preponderance of the Evidence.  Preponderance of the Evidence is defined as the greater weight of credible evidence.  That evidence that, when fairly considered, produces the stronger impression and is more convincing as to its truth when weighed against the opposing evidence. Paragraph 1.9 goes on to state that all members are responsible for providing accurate and timely documentation regardless of duty status and that requested medical documentation should be limited to relevant information to reasonably identify the initial condition for which the LOD determination is being requested; this can include an initial diagnosis, treatment plan, or a note from the provider describing the condition.  It notes that if the diagnosis evolves, another LOD may be warranted for future benefits.

As part of the LOD determination board’s recommendation, the preponderance of evidence standard was exceeded when the board remarked that “Based upon medically accepted principles, the timeline and presentation of symptoms do not link the Left Axillary Lymphadenopathy to a vaccination reactions; however, the LOD board notes that further testing is still being conducted.  Should ongoing testing reveal any indication of vaccine reaction as the etiology of the condition, a new AF Form 348 should be initiated with this AF Form 348 as part of the package.”

This office was unable to find evidence to a support that a new AF Form 348 was initiated based upon this statement.

Additionally, this office concurs with NGB/SGPS’s recommendation and notes that the medical documentation provided in the original LOD determination package, as well in the applicant’s submission, is insufficient to support evidence of an error or injustice that would result in changed LOD determination.  Furthermore, according to DAFI 36-2910, paragraph 3.2.5, a final LOD determination may be appealed once by the member by any reason and that the appellant must submit the written appeal within 30 days of receipt of the LOD determination.  By the applicant’s own statement, his appeal was submitted outside the acceptable timeframe.  This office confirms fair and equitable processing of the applicant’s LOD appeal submission and can assert that no other LOD appeals were accepted outside of the acceptable timeframe due to extenuating COVID-19 circumstances.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinions to the applicant on 13 May 22 for comment (Exhibit E), but has received no response.

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 recommendations of both NGB/SGPS and NGB/A1PS and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board concludes that the government met the preponderance of evidence threshold and concurs that based upon medically accepted principles, the timeline and presentation of symptoms do no link the Left Axillary Lymphadenopathy to a vaccination reaction.  Furthermore, the Board notes that the applicant provided insufficient medical documentation to support evidence of either an error or injustice that would result in a changed LOD determination.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2022-00462 in Executive Session on 22 Jun 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 30 Dec 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, NGB/SGPS, dated 1 Apr 20.
Exhibit D:  Advisory Opinion, NGB/A1PS, dated 9 May 22.
Exhibit E:	Notification of Advisories, SAF/MRBC to Applicant, dated 13 May 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.