IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20170014208 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20170014208 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20150010308 on 10 November 2016. _____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 16 November 2017 DOCKET NUMBER: AR20170014208 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20150010308 on 10 November 2016. In effect, he requests correction of his records to show lymphoma, which he was diagnosed with on 22 October 2010, was "In Line of Duty – Approved" instead of "Not In Line of Duty – Not Due to Own Misconduct." 2. The applicant states his claim should have been found service-connected. The emergency room doctor made a mistake on his notes; he put down months instead of days. The emergency room doctor corrected his notes to correct the error but his line of duty (LOD) was determined to be "Not In Line of Duty." He wonders why this was the case, as his cancer is service-related. 3. The applicant provides: * Department of Veterans Affairs (VA) Board of Appeal Proceedings * information papers concerning the effects of jet fuel exposure * Orders Numbers 272-006 and 272-007, issued by the Pennsylvania Army National Guard (PAARNG) on 29 September 2010 * Orders 294-062, issued by the PAARNG on 21 October 2010 * Department of Veterans Affairs (VA) Rating Decision, dated 15 May 2014 * U.S. Army Human Resources Command (HRC) LOD investigation appeal decision, dated 2 July 2014 * U.S. Department of Labor (DOL) worker's compensation decision, dated 13 April 2016 * a National Guard Bureau (NGB) email, dated 3 October 2016 * NGB Advisory Opinion, dated 4 October 2016, with the applicant's rebuttal * a letter from his Congressman, dated 14 October 2016 * Record of Proceedings for ABCMR Docket Number AR20150010308, dated 10 November 2016 * email with Veterans Benefits Administration (VBA), dated 1 May 2017 * email from the office of his Member of Congress, dated 3 May 2017 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150010308 on 10 November 2016. 2. The applicant provides information papers and a letter from his Congressman. These new documents constitute new evidence that was not previously considered by the Board. 3. The applicant enlisted in the PAARNG on 16 July 2003. He completed his initial entry training and was awarding military occupational specialty (MOS) 15T (UH-60 Helicopter Repairman). 4. A DA Form 261 (Report of Investigation LOD and Misconduct Status) within the applicant's record shows the following: * he was on a short tour of active duty for training (ADT) from 11 through 26 October 2010 * he reported to the Memorial Medical Center on 22 October 2010, for swelling in the neck and fatigue * the medical diagnosis was neck swelling; neck and mediastinal lymphadenopathy; rule out lymphoma * his medical issue was found to be "In the Line of Duty" by the LOD investigating officer and appointing authority on 4 December 2010 * his medical issue was found to be "Not In Line of Duty – Not Due to Own Misconduct" by the final approval authority on 8 March 2011 5. An NGB Memorandum, dated 8 March 2011, shows the following: a. The applicant's final determination was "Not In Line of Duty – Not Due to Own Misconduct" for Hodgkin's Lymphoma, Nodular Sclerosing Type. b. Per the NGB Surgeon, the preponderance of the medical evidence supports the recommendation of the State Surgeon that the disease started before entering this short period of active duty for training. The medical records show he first noticed the swollen lymph node 2-3 months before and intermittent light headedness for 3-4 months prior to entering this period of active duty less than 30 days. The applicant worsened after the training and if a specialist were to determine that his underlying condition was worsened by training or the reported multiple vaccines he was reportedly given this would be a reason for appeal for service aggravation. c. The NGB instructed that he be notified of his right to appeal the LOD determination. 6. The applicant appealed the LOD determination on 29 March 2011. He noted that he was submitting corrected medical documentation and added a professional opinion from an oncologist. 7. An NGB memorandum, dated 28 July 2011, shows the NGB Surgeon's office denied his appeal and noted any further appeal would be to HRC. His additionally submitted evidence was reviewed. The preponderance of medical evidence and accepted medical principles regarding his disease, although not diagnosed until he was on annual training orders, did in fact start prior to entry onto his short period of active duty. There was no medical evidence submitted to support any aggravation of the natural progression of the pre-existing disease. 8. It appears the applicant appealed the LOD determination to HRC. A letter from HRC, dated 4 October 2011, shows the Chief, Casualty and Mortuary Affairs Branch notified him that his appeal was denied. 9. The applicant appealed the LOD determination to HRC again on 26 March 2014. HRC denied his appeal once again. In a memorandum, dated 2 July 2014, the Director, Casualty and Mortuary Affairs Operations Center, advised the applicant his "Not In Line of Duty – Not Due to Own Misconduct" determination would stand. He was notified that his Hodgkin's lymphoma could not be service-connected or service-aggravated. He was also notified that he exhausted all of his administrative remedies. 10. An NGB Form 22 (National Guard Report of Separation and record of Service), for the period ending 15 January 2016, shows the applicant was honorably discharged from the PAARNG after being found medically unfit for retention. He completed 12 years and 6 months of service with the PAARNG. 11. The applicant provides: a. A VA Board of Appeal Proceedings, dated 14 December 2009, which shows the results of a hearing in reference to another veteran's lymphoma case. Unlike the applicant, the veteran in the VA's case was active duty for 20 years. The VA determined the veteran's lymphoma was related to trichloroethylene and other chemical solvent exposure during his period of active service; therefore, the VA concluded the veteran's lymphoma was service-connected. He also provided a third party's VA service-connected decision, dated 15 May 2014, which has no specific reference(s) to the circumstances related to his case. b. Various documents that show several studies concluded jet fuels and other chemicals can contribute to cancer in people who come in contact with them. c. Orders issued by the PAARNG that ordered him to annual training under Title 32, US Code, section 502, for the periods 11 – 26 October 2010 and 26 – 30 October 2010. d. A DOL worker's compensation decision, dated 13 April 2016, which shows his claim for an occupational disease was accepted as a result of his diagnosis of "Classical Hodgkin Lymphoma." e. An NGB email, dated 3 October 2016, which shows: (1) The applicant did appeal the LOD findings again. He provided the NGB with an opinion form his treating oncologist. The NGB determined the information was not new evidence. (2) His condition was accepted as diagnosed condition under his federal technician Employment through the DOL. NGB believed that was the appropriate route for his claim, not through the LOD process as his symptoms pre-dated his duty status by months and was more closely aligned with his Monday through Friday Federal technician status. (3) Injury, illness, or disease suffered while performing duties as a civilian employee of the Department of the Army does not qualify technicians for medical care at Government expense. f. NGB's advisory opinion, dated 4 October 2016, and his rebuttal, which were considered by the Board in his previous request. The NGB recommended disapproval of his request. g. A letter from his Congressman, dated 14 October 2016, which shows his representative believed he should receive an approved LOD based on the following: * he did not have any type of symptoms or diagnosis of lymphoma when he entered the PAARNG * he was diagnosed with lymphoma while he was on orders 26 October 2010 * the NGB did already admit he was on annual training status when he was diagnosed with lymphoma; and * the DOL and his oncologist concluded and determined his job as an Aircraft Mechanic was direct cause of his lymphoma h. An email from a VBA representative, dated 1 May 2017, which shows it appears he applied for VBA benefits. (1) The VBA representative informed him the VBA only pays benefits to ARNG individuals who are activated under Title 10 (Active Duty). His orders fell under Title 32 (full-time ARNG) when he was diagnosed with cancer in 2010. (2) In his case, he was activated under PAARNG Title 32. When activated under Title 10, he would be issued a DD Form 214 (Certificate of Release or Discharge from Active Duty), which is what the VBA needs to process the claim for disability benefits. They had to deny his claim because his was under Title 32 when diagnosed with cancer in 2010. (3) The VBA representative stated he/she thought his cancer was related to his job as a technician in the ARNG. i. An email from his Congressman's office, dated 3 May 2017, shows information about the MacArthur amendment, which protects people with pre-existing conditions under the Affordable Health Care Act from increased health-care premiums. 12. In the processing of this case, an advisory opinion was obtained on 13 October 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The advisory official noted and opined: a. A review of the applicant's electronic medical record (AHL TA) revealed clinical encounters between Oct 2004 and Jan 2005 (he was seen once for cough, twice for upper back pain and twice for conjunctivitis). There were no clinical notes or radiological studies. Laboratory studies reviewed from Jul 2004 thru Feb 2007 (unremarkable). The applicant's paper Service Treatment Record (STR) was not available for review from the National Personnel Records Center (NPRC) at the National Archives and Records Administration (NARA). The applicant's (Interactive Personnel Electronic Records Management System) iPERMS records were reviewed. b. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 22 October 2010, for incident on 22 October 2010 at 1600 in Johnstown PA. "Swelling in head neck, left; enlargement lymph nodes, neck, left; other malignant lymph NEC (not elsewhere classified) head. Details: neck swelling, neck & mediastinal lymphadenopathy; rule out lymphoma; admitted from emergency department… c. Emergency Department note at Conemaugh Valley Memorial Hospital on 22 October 2010 with chief complaint: Neck Swelling. History of Present Illness: "This is a 24-year old who notes he has been feeling dizzy for a prolonged period of time but over the past 2 week's neck swelling on the left side. It has been more prominent lately, tightness and trouble swallowing. Denies any fever... d. Admission History and Physical dated 22 October 2010 was reviewed. Abdomen: "Abdomen is a little obese. He is a big guy..." Lymph node biopsy consultation dated 23 October 2010. HPl: ...left neck mass which he noticed about 2 to 3 months (later corrected to 'days', but 'weeks' in ER note) ago... Past Medical/Surgical History: 1) Closed reduction of a nasal bone fracture; 2) Left post-traumatic tympanic membrane perforation along with hearing loss on the left side of the ear; and 3) Excision of pilonidal cyst. (1) CT soft tissue neck enhanced (22 October 2010) - extensive adenopathy in the left side of the neck beginning in the mid neck region and extending inferiorly into the chest and left axilla. The findings are highly suspicious for lymphoma. Correlation with tissue sampling is recommended... The largest lymph node in the posterior triangle measures 3.2 cm... There is mild adenopathy in the right base of the neck with the largest lymph node measuring 2.3 cm. (2) CT thorax enhanced (22 October 2010) - extensive adenopathy involving the base of the neck, mediastinum and left axilla. (3) MRI Brain with contrast (23 October 2010) - unremarkable MRI of the brain with contrast. There is no acute infract, hemorrhage or mass. I see no abnormal enhancing lesions. (4) CT scan pelvis with contrast (23 October 2010) - no evidence of retroperitoneal or inguinal adenopathy. (5) CT abdomen with contrast (23 October 2010) - unremarkable CT of the abdomen with no evidence of adenopathy. (6) Surgical Pathology Report (Memorial Medical Center), dated 25 October 2010 post excisional biopsy left supraclavicular lymph node. Final dx: Hodgkin's Lymphoma, nodular sclerosing type. e. A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 18 November 2010, with Final Approval: Not in Line of Duty - Not Due to Own Misconduct for Hodgkin's Lymphoma, Nodular Sclerosing Type. Signed by Authority of the Secretary of the Army - 8 March 2011. f. Surgeon Medical Opinion dated 28 July 2011. "Findings: Hodgkin's lymphoma, nodular sclerosing type, Stage ll-B, Not Due To Own Misconduct... The additionally submitted appeal packet documents were reviewed. The preponderance of the medical evidence and accepted medical principles regarding Stage llb Hodgkin's lymphoma nodular sclerosing type support the medical opinion of the State Surgeon that the disease, although not diagnosed until the SM was on annual training orders, did in fact start prior to entry onto this short period of active duty. There is no medical evidence submitted to support any aggravation of the natural progression of the pre-existing disease. The applicant reported onset of palpable symptomatic lymph nodes of his neck within days of entering onto active duty and had systemic symptoms for months before entering onto active duty. This is consistent with the clinical staging of the applicant's disease at Stage llb (more than one lymph node region on the same side of the diaphragm involved plus the presence of systemic symptoms of Hodgkin's lymphoma in the preceding 6 months before diagnosis). Any further appeal would be HRC." g. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 22 April 2013 (reconsideration #1) with "The Board finds the Soldier is physically fit and that the Soldier's disposition be referred for case disposition under reserve Component regulations. Section IV - Medical Conditions Determined Not to be unfitting: You were evaluated for the following condition: Cancer originating from white blood cells (Non-Duty Related). You are fit for duty as a 15T (UH-60 Helicopter Repairer). You were diagnosed with Hodgkin's Lymphoma in 2010. You successfully completed treatment in March 2012. Your Hematologist states that currently there is no evidence of active lymphoma (Dr. J_ L_, dated 9 April 2013). Your residuals of treatment are not unfitting. The Disability Evaluation System (DES) is performance based. Commanders and first-line supervisors are best positioned to evaluate a Soldier's ability to perform duties. Your commander, CPT J_ S_, strongly recommends retention. Your serial profile can be reviewed based upon updated medical evidence. Any restrictions imposed by your profile are subject to a request for reconsideration by the unit commander in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), paragraph 7-12." The applicant concurred on 6 May 2013. h. Physical Profile, dated 11 Dec 2013 for cancer originating from white blood cells, chronic low back pain, history of back surgery. "Soldier's condition has worsened with multiple hospitalizations. Referred back to PEB." i. Medical Statement dated 20 Feb 2014 by Dr. J_ L_, MD, treating physician, hematologist/oncologist, for applicant... "This letter will provide an attestation that, at the time he first began in experience adenopathy and symptoms related to his classical Hodgkin lymphoma underwent a series of immunizations as required by his employment. He also works with a number of chemicals as a mechanic in the US Army. Certainly the immunizations could aggravate the classical Hodgkin lymphoma as this malignancy is immunoreactive arising probably from an immature B-cell. In addition, noxious chemicals are also known to have mutagenic effects and also precipitate immune reactions which could have aggravated his classical Hodgkin lymphoma. In fact, by his admission, he appeared to have stable adenopathy, but once the immunizations were performed, the adenopathy appeared to grow much more rapidly consistent with the effect of immunizations." (1) The ARBA advisory official noted he agreed in general,with the treating physician's assessment and analysis. At the time (prior to annual training) he first began to experience adenopathy and symptoms related to his classical Hodgkin lymphoma he underwent a series of immunizations…This is a fact. (2) Certainly, the immunizations could (may or may not) aggravate the classical Hodgkin lymphoma (that the applicant already had, otherwise it couldn't aggravate it; aggravation is not causation) as this malignancy is immunoreactive (malignancy would have to be present to be immunoreactive)…This is a fact. (3) In fact, by the applicant's admission, he appeared to have stable adenopathy (evidence of the underlying Hodgkin's lymphoma), but once the immunizations were performed the adenopathy appeared to grow much more rapidly consistent with the effect of immunizations (consistent with, but not causative)…This is a fact. j. An Informal PEB Proceedings, dated 23 March 2015 (initial informal findings) with "The Board finds the Soldier is physically unfit and that the Soldier's disposition be referred for case disposition under Reserve Component regulations. Disability 1) Hodgkin's Lymphoma. You are unfit for duty as a 15T, Helicopter Repairer, due to the diagnosis of Hodgkin's Lymphoma... because continuing in the military presents a decided medical risk to the Soldier. This is based partly on the Soldier's inability to participate in the monthly battle assembly due to the adverse effects treatments required, and the recurrence of the condition in 2013 and 2014. Additionally, the Soldier requires close proximity to a medical treatment facility that provides the level of care needed by the Soldier." The applicant did not concur and demanded a formal hearing, written appeal was not attached, requested a personal appearance and regularly appointed counsel - applicant signed and dated 10 April 2015. (1) Memorandum for the President of the PEB, dated 5 Jun 2015, from the Soldier's Counsel regarding "Withdrawal of demand for formal PEB hearing..." The above named Soldier concurs with the findings of the informal PEB Board, and hereby withdraws his demand for a formal hearing before the National Capital Region PEB... (2) Memorandum for the Adjutant General of Pennsylvania, dated 31 Aug 2015, regarding "Non-Duty Related Case"... The PEB determined the applicant was unfit for duty. k. Medical Statement dated 13 Apr 2015, by Dr. J_ L_, MD, treating physician, hematologist/oncologist, for applicant... "This letter will provide evidence of the pensionable nature of your previous 12 years exposure to carcinogenic agents during your tenure in the U.S. Army. We believe that exposure to agents such as methyl ethyl ketone, zine chromate, CARC paint, jet fuel and grease such as A3282, which carries a warning about being carcinogenic, has to be considered causative in your illness. One also notes that at the time you received immunization, your disease appeared to progress rather rapidly. All of this is related to your service in the U.S. Army. Normally any of these agents would be considered pensionable causes of your illness, that being classical Hodgkin lymphoma, which has remained retractor to therapy including matched unrelated donor peripheral blood stem cell transplantation and the indication of chronic graft versus host disease... " (1) The ARBA Advisory official noted that he agrees, in general, with the treating physician's medical assessment and analysis. The applicant had exposure to various carcinogenic agents during periods of active duty, and non-continuous annual training and monthly battle assemblies over 6 plus years (not 12 years) during between July 2004 entry onto active duty for training and October 2010 (initial diagnosis of Hodgkin's Lymphoma). (2) We believe that exposure to agents such as methyl ethyl ketone, zine chromate, CARC paint, jet fuel and grease such as A3282, which carries a warning about being carcinogenic, has to be considered (we can "consider" it, but association is not causation) causative (most people exposed to these chemicals do NOT get cancer) in your illness. (3) One also notes that at the time you received immunization, your disease appeared (yes, it 'appeared' to do so) to progress rather rapidly (or the slow progression of disease finally resulted in signs/symptoms that affected function and respiration necessitating it urgent medical attention). (4) All this is related to your service in the United States Army (uniformed service – probably not (~1-2 months per year over 6 years); civilian technician position - much more likely (full time, except the ~1-2 months per year in uniform). (5) Normally any of these agents would be considered pensionable causes of your illness (pensionable causes - direct causation is NOT required for these, association or a period service in an area where used, whether exposed or not)... This is a fact (non-specific) - pensionable from his civilian technician position where the vast preponderance of associated chemical exposures likely occurred. l. Medical Statement, dated 17 Aug 2015, by Dr. J_ L_, MD, treating physician, hematologist/oncologist, for applicant. "... Thank you for providing the information regarding your prior exposure to benzene in jet fuel and trichloroethylene, both of which are known carcinogens associated with lymphoid malignancy. This was integral to your employment in the Army and therefore I believe that this is certainly a pensionable claim." (1) The ARBA advisory official noted he agreed, in general, with the treating physician's medical assessment and analysis. "…prior exposure to benzene and trichloroethylene, both of which are known carcinogens associated with lymphoid malignancy..." This is a fact. They are both associated (but association is not proof of causation; many people work with environments with exposure to these agents, but the vast majority do not get cancer). (2) See previous comment/note regarding "pensionable" – pensionable from his civilian technician position where the vast preponderance of associated chemical exposures likely occurred. m. Limited review of VA's records through the Joint Legacy Viewer with no active problems. The applicant is not currently VA service-connected. n. The applicant did not meet medical retention standards for Hodgkin's Lymphoma IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. o. His medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability condition which would support a change to the character or reason for the discharge in this case. p. LOD determination – summary: (1) The applicant was generally healthy when he joined the ARNG in 2003. Details available in his 16 July 2003 medical history and examination. (2) The applicant was on annual training status at the time of diagnosis. (3) The applicant noted asymptomatic painless lymphadenopathy at least several weeks (to months) prior to evaluation and presumptive diagnosis of lymphoma on 22 October 2010. (4) The applicant's and external observer's appreciation of the lymphadenopathy may have been obscured by the applicant's obese body habitus, weight, and limited physical activity with history of multiple profiles and recent back surgery. According to the available records, the applicant's last recorded APFT was on 11 October 2008 when he failed height/weight standards. The early signs and symptoms of his Hodgkin's lymphoma easily may have been masked by these factors resulting in delayed presentation for initial evaluation/diagnosis. A thin individual would have noticed the presence of enlarged lymph nodes of the base of the neck, posterior triangle and axilla much earlier (much more likely than not). Association, not causation. (5) The DOL did NOT conclude that his job as an Aircraft Mechanic was a direct cause of his lymphoma. The DOL (Office of Workers' Comp Programs) accepted the applicant's claim for an occupational disease - that is not the same as concluding that his job was a direct cause. Association, not causation. (6) The applicant's oncologist did NOT conclude that his job as an Aircraft Mechanic was a direct cause of his lymphoma. The applicant's oncologist concluded that exposure to carcinogenic agents is associated with lymphoid malignancy and may factor in his malignancy- that is not the same as direct causation. Association, not causation. q. LOD determination – conclusion: (1) The applicant case is consistent with the typical young adult male patient, between the ages of 15 and 34 years, presenting with nodular sclerosing Hodgkin lymphoma (NSHL). (2) There may or may not be evidence that NSHL may result from an atypical immune response to a virus or other trigger, in an individual with a genetic predisposition to such a response. Whether in this particular applicant there is a direct causative linkage CANNOT be determined at this time. The applicant previously received numerous immunizations and vaccinations during childhood, adolescence, on enlistment in the ARNG, and during his era of service. It is a hypothesis that the 2010 vaccinations (and not any of the others) contributed to or were causative in the development of the applicant's NSHL. In NSHL, adenopathy (a manifestation of the lymphoma) progresses naturally (malignantly during the course of the disease. For vaccination/immunization there is an association, but no direct causation or service related aggravation. (3) The applicant's primary job was as a Federal Technician (full time). (4) The applicant's part time job was as a National Guardsman (part time). (5) There is an association between certain chemical, fuel, and solvent exposures and carcinogenic effects. Because of these associations, certain disorders and diseases are or may be considered occupationally related. This relationship does not imply causation, but enables the DOL, VA, US Army and other agencies or organizations to legally provide financial compensation for these associated conditions. (6) The majority of the applicant's occupational work was not performed as an active duty National Guardsman but as a civilian Federal Technician or equivalent. If chemical exposure was an associated factor in the development of this applicants NSHL and IF the duration of exposure is also a factor then the preponderance of exposure did NOT occur while the applicant was serving as an active duty military National Guard Soldier. (7) The exact date of onset of the applicant's NSHL cannot be determined, but clear manifestations (painless lymphadenopathy) were noted several weeks prior to presentation. Supra-diaphragmatic mediastinal (chest) adenopathy, non-specifically asymptotic, most likely began up to several months (up to six (6) months with stage IIb at diagnosis) prior to clinical presentation, growing insidiously inside the applicant's chest before peripheral manifestations (neck) became apparent a few weeks before diagnosis on 22 October 2010. (8) From the military (ARNG) medical perspective, the applicant's condition was Not In Line of Duty. Onset was not directly attributable to military service. The diagnosis at time of annual training was coincidental. Diagnosis during annual training was related to the applicant's delay in recognizing a significant abnormality (painless progressive lymphadenopathy) and seeking earlier medical evaluation. (9) From the civilian occupational medicine perspective, the applicant's NSHL does meet criteria for an occupationally associated medical condition (as a Federal Technician) potentially subject to compensation based on the specific regulations and laws governing the agency. 13. The applicant was provided a copy of the advisory opinion on 17 October 2017, to provide him an opportunity to comment and/or submit a rebuttal. He responded on 26 October 2017, that he reviewed the advisory opinion and was taking the opportunity to submit the following comments, in effect: a. He agrees that he was in good health when he joined the ARNG in 2003, and was on annual training status when diagnosed. b. He was diagnosed with a sinus infection prior to entering annual training duty status and was treated by his flight surgeon. The documents the advisory official talked about were from flawed notes from the emergency room that were corrected. The (months/weeks) he/she is referring to were from a typographical error entered in the doctor's notes that were corrected. He also does not agree with the date of the diagnosis; he was diagnosed 26 October 2003. c. According to the Army's height/weight standards he was considered obese on paper. However, he scored 250 on a majority of his Army Physical Fitness Tests and that's why you cannot find a flag or anything else of that nature. He was a big guy with a lot of muscle mass. Just because he had a lot of muscle mass doesn't mean that he wasn't physically fit or had limited physical activity. The reviewer is jumping to a conclusion by stating that a thin individual would have noticed the presence of enlarged lymph nodes of the base of the neck. The reviewer's statement is irrelevant, ridicules, and needs to be ignored. d. "The DOL did NOT conclude that his job as an Aircraft Mechanic was a direct cause of his lymphoma. The DOL (Office of Workers Comp Programs) accepted the applicant's claim for an occupational disease - that is not the same as concluding that his job was a direct cause. Association, not causation." He does not agree with that statement. How can it not be considered causation? If his job as an Aircraft Mechanic was not considered a "cause" of his disease then how is it that the DOL accepted his claim? Obviously the DOL has proven that exposure to the many chemicals he dealt with was a direct cause of my disease and classified it as an occupational disease. This absolutely is concluding that his job was a direct cause of his disease. If it wasn't considered a direct cause then how was his claim accepted? e. How can you say in terms of CANCER that it's associated but not be considered causative? If it's associated then it's a tool that was used in connection with causation. If it's associated then it played an important role in causing my malignancy. There is no data proving that this did not cause his cancer however, there is a significant amount of data/case studies proving that his job was a direct cause. f. In the Line of Duty determination – Conclusion made by the advisory official, he/she stated, "There may or may not be evidence that NSHL may result from an atypical immune response to a virus or other trigger, in an individual with a genetic predisposition to such a response." "Whether in this particular applicant there is a direct causative linkage CANNOT be determined at this time." (1) This statement to any reasonable person does NOT perceive any amount of certainty. Let's be honest, the reviewer and the Board CANNOT with any degree of certainty disprove the findings from the DOL, the multiple oncologist that evaluated him, his case for the DOL, and his own oncologist. Those of which are ALL subject matter experts on this disease. In fact the reviewer AGREED in general to every statement his oncologist Dr. L_ presented. How can someone agree with his statements and then in a few paragraphs later disagree with no data, no facts, and no evidence proving otherwise? (2) You CANNOT prove that his disease was not caused or aggravated by his service. If, and he means if, it can be proven that his cancer was NOT caused by his service then that data and case study needs to be produced to him, the DOL and his oncologist. He has no genetic predisposition to the disease. Cancer does not run in his family; he is the first. (3) He also DID NOT have cancer according to the Army when he passed a Flight Physical, Soldier Readiness Center (SRC), and Soldier Readiness Processing (SRP) during Annual Training (AT). If he did have such a noticeable malignancy then how was it overlooked during pre-deployment medical screenings? You can't even deploy with a tooth cavity! How was cancer missed? He didn't have symptoms months or weeks prior to the date he was diagnosed. He experienced symptoms merely days before he was diagnosed. Just read the sworn statements from his chain of command. The only evidence of symptoms is based off a typographical error. If the reviewer and the Board researched and contacted his oncologist to get the specifics of his disease they would find that even at stage 4 he still would have yet to show any sort of signs or symptoms of his disease. (4) As for the subject of Immunizations, he is glad he received them to be honest. His disease is immune reactive and if it had not been for those immunizations making his disease progress rapidly he may have found it too late. He's very thankful of this. He was diagnosed as stage 2B at the time of diagnosis on 26 October 2010. It is HIGHLY possible that prior to diagnosis he was stage 1. After receiving immunizations for deployment, his disease progressed extremely rapidly. In the weeks/months prior to diagnosis he was fine and there was no evidence of a malignancy of any type. This statement is backed up by his passing of all pre-deployment medical screenings with flying colors. After DAYS upon receiving the immunizations he and his flight medic noticed a lump starting to grow in his neck (left side) behind his clavicle (collarbone). That's when it was recommended to him by his flight medic to go to the emergency room immediately. He opted to complete the training iteration for his Soldiers and upon the returning flight to his home station he was ordered to go to the emergency room by his Commander. It is possible that his disease progressed from stage 1 to stage 2 in a few days with the immune response from the immunizations. g. He agrees that being a Federal Technician was his full-time job. He would like to add for the record that he was a DUAL STATUS Federal Technician. This means that he could not be in that position without holding a primary slot in an ARNG unit and maintain currency for his flight duties. h. If the Board was able to research his job they would find that he performed the same duties on both ARNG and Federal technician status. His job as a Crew Chief Flight Instructor would constantly cross over to his full-time Technician job. The purpose of a Duel Status Federal Technician is to maintain unit readiness and that is the entire reason for their existence. As a medical evacuation (MEDEVAC) Crew Chief and Technician his job never ends. The only difference is who is paying him at a specific time of the day and with authorization to "flex" hours it gets confusing. i. The reviewer noted "There is an association between certain chemical, fuel, and solvent exposures and carcinogenic effects. Because of these associations, certain disorders and diseases are or may be considered occupationally related. This relationship does not imply causation, but enables the DOL, VA, the Army and other agencies or organizations to legally provide financial compensation for these associated conditions." (1) He agrees with this statement and he's really glad the reviewer said it. Knowing this, however, he is confused. Why is he having issues getting service connection for his disease? Again he's not sure how in terms of cancer, association cannot be considered causation. If chemical exposure is associated with increasing the chances of acquiring a malignancy, then it has to be considered causative. Cancer is a different type of animal. It's not always a black and white situation like falling off the top of an aircraft and breaking your arm or leg. (2) The chemical exposure over time made his body's nature defenses weak and or negated his body's ability to fight off ANY type of malignancy. He literally could have acquired ANY type of blood cancer at this point. It's really a "luck of the draw" situation. He could have been diagnosed with any type of blood cancer such as leukemia, Non-Hodgkin's lymphoma, or in his case Hodgkin's lymphoma. It really all depends on what the person's body does. j. He does not agree with the reviewer's statement that most of his exposure to chemicals was a Civilian Federal Technician. The reviewer did not research his job. If an individual would look at his points per year as an ARNG Soldier and research how many flight hours he performed they would see how much time he spent in and working on the aircraft. (1) Also this reviewer has jumped to yet another conclusion based on NO facts or evidence to supports such an opinion. To try and narrow the duration of his exposure to one status or the other is an impossible feet. Was it that one flight during drill weekend? Did it happen during an "AFTP" or specific training flight? Did it happen during annual training or any other type of maneuver? Did it happen during maintenance after flying? When he was on ARNG status was he somehow impervious to these chemicals and this disease? (2) The smartest person in the world surrounded by all the data and studies that exist on his disease CANNOT prove this! Please explain how this reviewer came to this conclusion. Show him the data and studies that prove that his disease was not caused during my ARNG time and during a flight training exercise while he was instructing. If you can prove this to him then he will buy it. However, he knows you cannot. k. How is that the reviewer seems confident enough to say when his disease did not happen yet say the exact date of onset cannot be determined? Where is the data showing that he had clear manifestations (painless lymphadenopathy) several weeks prior to presentation? He would like to be shown the PET/CT scan or MRI showing that he had clear manifestations weeks prior to presentation. If the Board CANNOT produce this information then this reviewer is making medical opinions based on no data or test that exist. This CANNOT be determined or proved in any way. Again he showed NO signs or symptoms prior to diagnosis. The reviewer also in this paragraph claims to know the pattern in which his cancer spreads threw his body. Again he would love to know how the reviewer can prove that his disease didn't start in his neck and move to his chest. Again he would like to point out that the reviewer is making opinions based on no factual evidence. l. There is an astronomical amount of data proving that his disease was caused and or aggravated by his military service. There is no data other than opinions proving that it wasn't. Diagnosis during annual training can be considered coincidental; however, cause of this disease is due to exposure to chemicals over a period of time related to my job for the ARNG. (1) If it wasn't for his military service he would not have been in contact with chemicals that increased the chances to acquire his disease. (2) The reviewer states that diagnosis during annual training was related to his delay in recognizing a significant abnormality (painless progressive lymphadenopathy) and seeking earlier medical evaluation. This makes absolutely no sense. As soon as he did realize a significant abnormality he brought it to the attention of medical professionals and was ordered by his chain of command to seek a higher level of care. If he showed no signs or symptoms from a (painless progressive lymphadenopathy) how would he know that something was wrong with his body to seek earlier medical evaluation? m. "From the civilian occupational medicine perspective, the applicant's NSHL DOES meet criteria for an occupationally associated medical condition (as a Federal Technician) potentially subject to compensation based on the specific regulations and laws governing the agency." He agrees that his diseases does meet the criteria for an occupationally associated medical condition as a Technician. If it meets the criteria for an occupational disease associated with his job as a Technician then how does the same job with higher exposure not meet the criteria for his military service? Does military status somehow make a Soldier impervious to this disease while preforming the same duties? n. In conclusion the reviewer or the Board CANNOT prove that his disease was not caused or aggravated by his military service. The smartest doctors in the world cannot make such a bold statement. There is no data, case studies or evidence proving that the chemicals that he was exposed to for his military job was not causative in the development of his disease. The reviewer is speaking in generalities such as "most people exposed to these chemicals do not get cancer" that is true, but it doesn't mean that it CAN'T happen, it DOESN'T happen, or that it DIDN'T happen. Most Soldiers don't fall walking up the stairs, but that doesn't mean that the minority of Soldiers won't fall flat on their faces. o. Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations), paragraph 2-6, states an injury, disease, or death is presumed to be in the LOD refuted by substantial evidence contained in the investigation. LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact. (1) There is no evidence other than opinions that are vague and general in nature to say that his disease is not service-connected. There is an astronomical amount of evidence proving that chemical exposer from his military service was causative and or at the very least aggravated his disease. The Board CANNOT prove that his military service did not cause his disease. (2) The Board CANNOT say that the bulk of his exposure was during his Technician status. That is just an assumption and cannot be backed up with any data or facts. Was his disease caused by his exposure during his ARNG status, or was it during Technician status? Since there is no way of telling when his disease manifested itself or what status he was on when exposure became a factor, his disease is presumed to be In The Line of Duty unless you can refute that with a substantial amount of evidence. Again no one on this planet can prove that his disease is not service-connected. REFERENCES: Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier providing standards and considerations used in determining LOD status. a. A formal LOD investigation is a detailed investigation that normally begins with DA Form 2173 completed by the medical treatment facility and annotated by the unit commander as requiring a formal LOD investigation. The appointing authority, on receipt of the DA Form 2173, appoints an investigation officer who completes DD Form 261 and appends appropriate statements and other documentation to support the determination, which is submitted to the General Court Martial Convening Authority for approval. b. Paragraph 1-7a states the worsening of a pre-existing medical condition over and above the natural progression of the condition as a direct result of military duty was considered an aggravated condition. Commanders must initiate and complete LOD investigations, despite a presumption of Not In the Line of Duty, which can only be determined with a formal LOD investigation. c. Paragraph 2-6 states decisions on LOD determinations will be made in accordance with the standards set forth in this regulation. Injury, disease, or death proximately caused by the Soldier's intentional misconduct or willful negligence is "not in line of duty – due to own misconduct". Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. d. An injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation. e. LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact. f. Paragraph 4-8e states the following concerning injury or disease existing prior to service. (1) The term "existed prior to service (EPTS)" is added to a medical diagnosis. It shows that there is substantial evidence that the disease or injury, or underlying condition existed before military service re. Included in this category are chronic diseases with an incubation period that clearly precludes a determination that it started during short tours of authorized training or duty. (2) The doctor, during examination and treatment of the Soldier, usually determines an EPTS condition. The doctor annotates the Soldier's medical records as to whether the condition existed prior to service. If an LOD determination is required, information from the medical records will be used to support a determination that an EPTS condition was or was not aggravated by military service. If an EPTS condition was aggravated by military service, the determination will be "in line of duty." If an EPTS condition is not aggravated by military service, the determination will be "not in line of duty – not due to own misconduct." g. Paragraph 4-17a states a Soldier may appeal, in writing, within 30 days after receipt of the notice of the LD determination. For appeals not submitted within the 30-day time limit, the reason for delay must be fully explained and a request for exception to the time limit justified. The appeal must be personally signed by the Soldier unless the Soldier is physically unable to sign or is mentally incompetent. In such cases, the appeal will include evidence of the condition that prevented the Soldier from personally signing. Appeals will be submitted as follows: (1) If a Soldier is assigned within the geographic area of responsibility of the original final approving authority or is a Soldier of the ARNG, the appeal will be sent through channels to the final approving authority. The final approving authority may change his or her previous determination of "not in line of duty" to "in line of duty" if there is substantial new evidence to warrant it. If the final approving authority determines that there is no basis for a change in the determination, it will be so stated by endorsement and the appeal will be sent to HRC for final review and determination. (2) If a Soldier is no longer assigned in the geographic area of responsibility of the original final approving authority, the Soldier may send the appeal directly to HRC. DISCUSSION: 1. The applicant's request to show his disease is service-connected by showing his LOD determination was determined to be "In the Line of Duty" was carefully considered. He contends he was diagnosed with cancer while on annual training orders and his military service aggravated his condition by exposing him to carcinogenic chemicals. 2. The applicant was a member of the PAARNG in the MOS 15T. He also was employed as a Federal Technician performing roughly the same duties as those performed by Soldiers in MOS 15T. He was on annual training orders when he reported swelling in his neck. He went to an emergency room and was subsequently diagnosed with cancer. 3. A LOD investigation was initiated and the final approval authority determined his disease was "Not In Line of Duty – Not Due to Own Misconduct." 4. The applicant exhausted his right to appeal the LOD determination after several attempts through the NGB and HRC. He was subsequently discharged from the PAARNG due to medical unfitness. 5. There is a presumption of administrative regularity in the conduct of governmental affairs. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Vetted through medical channels, the NGB, and HRC during the appeal process, the applicant's medical condition was determined to be one that existed prior to service. Therefore, by regulatory guidance the condition in question was determined to be "Not In Line Of Duty – Not Due to Own Misconduct." 6. The applicant applied for record correction to the ABCMR and was denied relief. 7. The applicant contends there is no evidence that shows his disease was present prior to his diagnosis on annual training, nor is there evidence that shows his disease was the result of his Federal Technician employment. 8. The governing regulation states LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact. After comprehensive reviews by military medical professionals, it was determined that his disease existed prior to his military service (before his orders to annual training from 11 – 26 October 2010) and prior to his diagnosis on 22 October 2010. Subsequently, it was also determined his disease was not aggravated by military service. If his condition existed prior to his military service and was not aggravated by military service, the determination will be "Not In Line of Duty – Not Due to Own Misconduct." 9. An advisory opinion was provided by the ARBA Senior Medical Advisor. The official reviewed the applicant's medical records and determined his disease was not service-connected agreeing with the NGB that his diagnosis during annual training was related to his delay in recognizing a significant abnormality (painless progressive lymphadenopathy) and not seeking an earlier medical evaluation. 10. The applicant provided a rebuttal to the advisory opinion contending the reviewer and the Board cannot determine he did not have the disease prior to annual training, or that his duties during annual training did not cause the disease. Therefore, applicant contends that there is no way to determine his disease is not service-connected. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001844 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170014208 20 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2