RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04677 COUNSEL: NONE (DECEASED SERVICE MEMBER) HEARING DESIRED: NO (APPLICANT) ________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased spouse’s Line of Duty (LOD) determination for his active duty period of 3 Jan 11 to 18 Mar 11 be changed to reflect in LOD-Yes or LOD-Existed Prior to Service (EPTS)/Service Aggravated, versus EPTS-LOD Not Applicable (NA). ________________________________________________________________ APPLICANT CONTENDS THAT: The deceased former member’s melanoma should have been diagnosed in 2000 while he was serving on active duty. He noticed a mole that appeared to have changed in size and color. He sought medical treatment and was told that moles change all the time and that is does not necessarily mean they are melanoma. The physician did not conduct a biopsy. He was not satisfied with the diagnosis and requested that it be documented in his records. Although the service member was ultimately diagnosed with melanoma in 2008, he received treatment and was given a clean bill of health. It was noted in the service member’s medical records that there was no evidence of a recurrence. In addition the service member’s 2010 pre-deployment physical reflected he was disease free. As such, authorities should not have determined that his melanoma existed prior to his service. In support of the request, the applicant provides copies of documents extracted from the service member’s military personnel and medical records, a Department of Veterans Affairs Rating Decision, and a copy of the service member’s death certificate. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: The deceased former service member was ordered to active duty for the period 3 Jan 11 to 18 Jun 11 in support of Operation ENDURING FREEDOM. On 9 Mar 11, an LOD Determination was initiated to evaluate the service member’s abdominal pain. While deployed to Qatar the service member underwent an abdominal/pelvis cat scan which resulted in abnormal findings and the service member was returned stateside. On 24 May 11, the service member’s medical condition was determined to be EPTS-LOD Not applicable. On 3 Jun 11, the deceased former service member released from active duty and reverted to his traditional (part-time) status as a member of the Air Force Reserve. He was credited with six years, five months, and one day of total active service. On 18 Jul 11, the service member appealed the findings of the LOD. On 13 Sep 11, the service member’s malignant melanoma was determined to be EPTS-LOD Not applicable. On 21 Nov 11, the Department of Veterans Affairs awarded the service member a disability rating of 100 percent for his service connected melanoma. On 12 Jan 12, the service member passed away. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SG recommends denial indicating the finding of EPTS/LOD Not Applicable is appropriate and is in accordance with AFI 36-2910, Line of Duty and Misconduct Determinations. Under the provision of the AFI a military medical officer must determine whether the illness, injury, or disease, or the underlying condition causing it, existed prior to the period of service in which the member exhibited symptoms. The service member in this case exhibited symptoms of metastatic melanoma early in his active period of service as confirmed by the diagnosis of metastatic disease within six weeks of entering his period of active service. Since the service member was diagnosed so early while on active duty orders that a finding of metastatic disease could have only originated during this period on active duty orders. The AFI further states if the determination is made that the medical condition existed prior to service, then the military medical officer must determine whether the condition has been aggravated by military service. Given the location of this melanoma on the lower abdomen, military induced conversion of an atypical nevus or melanoma in-situ to a malignant melanoma is unlikely as the proper wear of a military uniform, even in deployed environments includes at a minimum, trousers and t- shirt. Thus, there can be no aggravation of this nevus by the nature of military duties. A complete copy of the AFRC/SG evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 24 Feb 13, for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends that relief be granted, indicating the deceased former member’s skin lesions should have been biopsied while he was on active duty in 2000. However, years later a lesion in the same area, or the same lesion itself, was ultimately diagnosed as melanoma requiring wide excision and regional lymph node dissection with several months of chemotherapy beginning in 2008. Follow-up assessments over the following year showed the service member to be free of disease and he was cleared for deployment. However, during his deployment period of 3 Jan 11 to 18 Mar 11, he suffered acute symptoms that resulted in his return from deployment. The Consultant agrees with the assessment by AFRC/SG that the degree of disease involvement during the time of the service member’s deployment could not have first begun after his period of activation in Jan 2011. Additionally, the Consultant agrees with the doubt that environmental factors during the service member’s previous deployments, particularly sun exposure, was an unlikely contributor or aggravating factor in the service member’s disease, when considering its location in an area unlikely to be sun-exposed. However, in considering the totality of evidence, to include the expert opinion of the service member’s oncologist, the likelihood of the transformation of a neglected [not by the service member] lesion from 2000 during a prior period of service, and the decision of the DVA, the Medical Consultant recommends granting relief. The relief should be granted under the provision in DoDI 1332.38 regarding Prior Service impairments, under the revised post-NDAA 2008 Directive Type Memorandum, which reads: “Any medical condition incurred or aggravated during one period active service or authorized training in any of the Armed Forces that recurs, is aggravated, or otherwise causes the member to be unfit, should be considered incurred in the LOD, provided the origin of such impairment or its current state is not due to the member’s misconduct or willful negligence, or progresses to unfitness as a result of intervening events when the member was not in a duty status.” In the case under review, the service member was satisfactorily deemed free of disease after his treatment between 2008 and 2009, and received periodic follow-up and was cleared for deployment in 2009. However, his medical condition became disqualifying while in a duty status in 2010. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 9 Jul 13, for review and comment within 30 days. As of this date, no response has been received by this office. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends that her deceased husband’s melanoma should have been found to be incurred in the line of duty (LOD). We note the differing opinions of the Air Force office of primary responsibility and the AFBCMR Medical Consultant; however, we concur with opinion and recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion that relief should be granted. In our view, the deceased former member’s melanoma should have been diagnosed in 2000 and said diagnosis should have formed the basis for a determination that the resurgence of his melanoma during the contested deployment constituted an unfitting condition for which the deceased former member should have ultimately been permanently retired for physical disability. Therefore, we recommend his records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the DECEASED FORMER SERVICE MEMBER be corrected to reflect that: a. On 2 June 2011, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was metastatic melanoma, VASRD code 7833, that the total compensable percentage was 100 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. He was not released from active duty on 3 June 2011, but on 4 June 2011 his name was placed on the Permanent Disability Retired List. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04677 in Executive Session on 18 Jul 13, under the provisions of AFI 36-2603: , Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SGP, dated 7 Feb 13, w/atch. Exhibit D. Letter, SAF/MRBR, dated 24 Feb 13. Exhibit E. Letter, AFBCMR Medical Consultant, dated 9 Jul 13. Exhibit F. Letter, SAF/MRB, dated 9 Jul 13, w/atch. Chair