RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-00979 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His Line of Duty (LOD) Determination, dated 16 November 2011, for allergic rhinitis and chronic sinusitis be changed from “Existed Prior to Service - Not Applicable” (EPTS/NA) to “In the Line of Duty” (ILOD) or “Existed Prior to Service – Aggravated” (EPTS/A). _________________________________________________________________ APPLICANT CONTENDS THAT: He was treated in a medical facility for sinusitis/rhinitis while deployed to Afghanistan. The sinusitis occurred over six months after he entered onto active duty. Given these facts alone, it is inconceivable why Air Force Reserve Command (AFRC) thought it was appropriate to change the 10th Air Force Appointing Authority’s finding of ILOD and substituted the unsupported finding of EPTS/NA. There is not a single line on the AFRC IMT 348, Informal line of Duty Determination, which justifies or explains what medical or factual evidence caused the AFRC Judge Advocate and Approving Authority to depart from the 10th Air Force Judge Advocate’s recommendation of EPTS/A or the 10th Air Force Appointing Authority’s recommendation of ILOD. Furthermore, there is no discussion or evidence of how his condition was found to be EPTS or that it was even considered for service aggravation. This was despite the inclusions of an article indicating the city of Kabul, by virtue of being a third world city located in a bowl surrounded by mountainous terrain, had a severe air pollution issue. In support of his appeal, the applicant provides copies of his Informal LOD Determination documentation, supporting medical documentation, and information papers concerning air quality in Afghanistan. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the United States Air Force Reserve (USAFR) who retired in the grade of colonel (O-6) effective 1 June 2011. He was deployed to Afghanistan from October 2010 through May 2011. While deployed, he was seen for Rhinitis and given Afrin. An Informal LOD determination was initiated on 25 May 2011 for the applicant’s condition of Allergic Rhinitis. It was recommended that his condition was “EPTS-Service Aggravated.” The Judge Staff Advocate concurred with the recommendation on 11 July 2011. The appointing authority found the applicant’s condition of Rhinitis was ILOD and forwarded the applicant’s appeal to the AFRC LOD Board. On 16 November 2011, the LOD Board found the applicant’s condition to be “EPTS-LOD Not Applicable.” The remaining relevant facts, extracted from the applicant’s military service records, are contained in the evaluation prepared by the Air Force office of primary responsibility at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: AFRC/SG recommends denial. SG states that a finding of ILOD for the applicant’s chronic condition of Allergic Rhinitis was not substantiated by the medical records. His case was considered for service aggravation, which requires permanent worsening beyond baseline progression, but was also not substantiated by the medical records. SG indicates that while there is no doubt the air in many regions of Afghanistan can cause one to have a runny nose, permanent worsening beyond baseline after exposure is not supported in this case. The complete SG evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Air Force Instruction (AFI) 36-2910 requires AFRC medical officers to initiate a LOD determination in the event a Reserve member receives medical treatment. Paragraph 1.6 states that “an illness, injury, disease, or death sustained by a member in an active status is presumed to have occurred in the line of duty.” Paragraph 1.7 of the AFI states that this presumption can be rebutted if a medical officer diagnoses that the illness, injury or disease existed prior to service. Paragraphs 3.5.2 and 3.5.2.2 indicate that a finding of a condition existing prior to service and not aggravated by service has to be supported by a preponderance of evidence. Therefore, the AFRC/SG medical officer’s determination that he has a pre-existing condition of Chronic Sinusitis, which rebuts the presumption of a LOD determination, requires support by a preponderance of evidence. Thus, there would seem to need to be some evidence for the medical officer’s diagnosis. He is totally confused as why anyone is diagnosing his condition as Chronic Sinusitis. He does not believe his medical record or anything else in his file supports a diagnosis of Chronic Sinusitis at all, let alone a preponderance of evidence. The doctor’s notes from his treatment in Afghanistan, dated 2 March 2011, states that his symptoms were consistent with Sinusitis, not Chronic Sinusitis. Even though he believes he does not have Chronic Sinusitis, assuming that he did and it is a pre-existing condition, it is still hard to understand AFRC’s position. AFI 36-2910, Line of Duty Misconduct, which applies to Reservists, states on page 2, “this interim change implements Title 10, United States Code (USC), Section 1207a’s eight-year rule which states members of the Air Force Reserve Component called or ordered to active duty for a period of more than 30 days who have incurred a disabling condition and have at least eight years of service, shall have the disability considered in the line of duty. He was on active duty and deployed for more than six months. In addition, he had more than eight years of cumulative service at the time of his deployment. Therefore, it is hard to understand why, even if his Sinusitis was chronic and maybe pre-existing, this would still require a finding of ILOD due to the eight-year rule. In order for the AFRC position to make sense, the Board would have to determine that the AFRC diagnosis of Chronic Sinusitis is correct, although it is completely unsupported by medical records or documentation. The Board would next have to find that the Rhinitis was also “chronic” although there is absolutely no medical evidence to support that position in the record. Next the Board would have to find that Title 10, United States Code (USC), Section 12079a did not apply. Finally, the Board would have to find the AFRC/SG’s statement that his “Chronic Sinusitis” has not had permanent worsening beyond the baseline and thus aggravation due to military service is not supported. He believes he does not have a chronic and pre-existing condition; however, he does believe his sinuses are worse after serving in Afghanistan. The applicant’s complete rebuttal is at Exhibit D. _________________________________________________________________ BCMR MEDCIAL CONSULTANT’S EVALUATION: The BCMR medical Consultant recommends denial. The Medical Consultant states that while there has been an association with exposures to air pollutants and acute exacerbation of existing pulmonary or allergic disease; in this case the supplied medical evidence, e.g., a singular clinic visit on 2 March 2011 when the applicant was prescribed a nasal decongestant (Afrin), the established “long history of bacterial sinusitis” reported in 2006, and the current argument that his condition was “worsened over [his] normal once a year rate, is insufficient to establish a permanent worsening of a pre-existing condition, whether considering the applicant’s rhinitis or his sinusitis. Emphasis is placed upon the requirement for permanent worsening, as there must be evidence that the condition has manifested above and beyond the expected natural clinical expression or progression of the disorder. There is insufficient evidence of a permanent worsening of the applicant’s condition(s) and beyond the expected clinical expression or natural progression. His description of his symptoms as documented in his memorandum of 14 May 2001 paints a far worse and expansive picture than recorded by the healthcare provider at the time of his clinical presentation on 2 March 2011, when he was only prescribed Afrin. Addressing the applicant’s alternative contention that he would qualify for an ILOD finding based upon the provisions of Title 10, USC, Section 1207a, also known as the “8-year rule,” the BCMR Medical Consultant opines that although the applicant had achieved in excess of eight years of active service, the rule would not apply in his case, unless he was found unfit or medically disqualified [career ending] due to the claimed medical conditions; which would have otherwise rendered him eligible for release from service under Title 10, USC, Section 1201, 1202, or 1203. The applicant’s DD Form 214 indicates he received a mandatory retirement after achieving 30-years of service. Finally, acknowledging that under the National Defense Authorization Act (NDAA) 2008 there must be “clear and unmistakable” evidence that a medical condition existed prior to service, the applicant’s documented treatment for sinusitis and allergic rhinitis in 2006 and the documented report of a “longstanding history of recurring bacterial sinusitis” recorded within a short period of a previous deployment, as well has his self-report of experiencing sinusitis approximately once per year, is a reasonable clear and unmistakable evidence that his predisposition for developing an acute exacerbation or recurrence of his medical condition(s), existed prior to the alleged offending deployment. The applicant’s remaining defense for a permanent worsening of his condition appears to rest upon his report of “two infections in the 14 months since returning from Afghanistan” which he says, is more than his “normal once a year rate” of occurrence. The applicant has not supplied evidence of treatment for sinusitis within the three to six months following his deployment to help determine if there is a reasonable or proximate association with his most recent alleged exposure and any clinical presentations different from his usual one per year rate. The Department of Veteran Affairs (DVA) generally considers medical conditions occurring within the 12 months post- active service in establishing service-connection. The applicant has not supplied evidence of service connection for sinusitis or allergic rhinitis from the DVA. The burden of proof has not been substantiated to warrant the desired change of the record. The complete BCMR Medical Consultant’s evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: If he had the pre-existing condition of “chromic sinusitis” then he believes the BCMR Medical Consultants’ opinion is correct in its main points, and the finding of EPTS ILOD NA is correct. If the Board finds this is the case, then he requests the Board direct the Air Force Reserve Command (AFRC) to initiate an LOD for his initial case of sinusitis for which he received medical treatment while he was on active duty in Iraq in 2006. However, if he did not have “chronic sinusitis” but rather merely a history of brief annual episodes of sinusitis beginning after his Iraq deployment, with each episode occurring and ending in a few days, then the correct finding for both the brief episode of sinusitis for which he was treated for in Afghanistan, as well as the treatment records indicating a brief episode in sinusitis in Iraq, should both be characterized as ILOD. The Board should end this drawn-out process and direct AFRC to change the finding of his condition as ILOD as there is absolutely zero evidence of a pre-existing condition of “chronic sinusitis” in his records. The applicant’s complete rebuttal to the BCMR Medical Consultant’s evaluation, with attachments, is at Exhibit G. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility and the BCMR Medical Consultant, which have not been adequately rebutted by the applicant, and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. 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 our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-00979 in Executive Sessions on 27 November 2012 and 22 March 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2012-00979: Exhibit A. DD Form 149, dated 12 Mar 12, w/atchs. Exhibit B. Letter, AFRC/SG, dated 23 May 12. Exhibit C. Letter, SAF/MRBR, dated 4 Jun 12. Exhibit D. Letter, Applicant, dated 2 Jun 12 Exhibit E. Letter, BCMR Medical Consultant, dated 7 Feb 13. Exhibit F. E-mail, SAF/MRBC, dated 8 Feb 13. Exhibit G. Letter, Applicant, dated 8 Mar 13, w/atchs. Panel Chair