RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-03762 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His official records be corrected to show: 

 

1. His diagnosis of acute lymphoblastic lymphoma (cancer) was 
determined to be in the line of duty (LOD). 

 

2. He served on continuous active duty until he was placed on 
limited duty. 

 

3. He receive all back pay and allowances, and any 
consequential out of pocket expenses he occurred for his medical 
treatment. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His Medical Evaluation Board (MEB) incorrectly found his cancer 
to have existed prior to service (EPTS). Prior to serving as a 
reservist he served on continuous active duty from Jun 95 (when 
he began as a cadet at the US Air Force Academy) to Sep 06. He 
volunteered for deployment to Al Udeid AB, Qatar, departing 
8 Jun 08. On 18 Jun 08, he was diagnosed with non-Hodgkins 
lymphoma. An LOD determination was sent by his command for 
approval but was inappropriately denied as “Existed Prior to 
Service (EPTS)—LOD NA.” However, his lymphoma could not have 
EPTS for the following reasons: 

 

1. The LOD determination that his non-Hodgkins lymphoma 
“Existed Prior to Service (EPTS)” is contrary to law. The law 
states an illness, injury, disease, or death sustained by a 
member in an active duty status is presumed to have occurred in 
the LOD. An LOD determination is based upon the onset of the 
disease, illness, or injury process, not the existence of 
symptoms. EPTS conditions include chronic disease, illnesses, 
and injuries with an incubation period that would rule out a 
finding that they were incurred during periods of active duty 
(AD), active duty training (ADT), or Inactive Duty Training 
(IDT). From the time of his release from active duty in Sep 06 
(active duty as an officer began Jun 99) until his diagnosis in 
Oct 08, he was in an active status 252 days of the elapsed 


652 days. In reality, 40 percent of the time until his 
diagnosis the applicant was on active duty. It is impossible 
for the board to unilaterally determine that his illness was not 
incurred during periods of AD, ADT, or IDT. The opinions of the 
LOD Board legal and medical officers were slipshod and not 
supported by factual or medical evidence. 

 

2. The EPTS determination is contrary to medical evidence. His 
T-Cell lymphoblastic lymphoma is the type of lymphoma which is a 
solid mass tumor of the lymph node located in the chest. 
Studies have shown that the latency period for a solid mass 
tumor is a least five years. The applicant was released from 
active duty on 22 Sep 06 and has since served continuously in 
the Air Force Reserve. Five years prior to his diagnosis date 
of 18 Jun 08 places the onset of the disease in the middle of 
his active duty career. EPTS conditions include chronic 
disease, illness, injuries or disease with an incubation period 
that would rule out a finding that they were incurred during 
periods of AD, ADT, or IDT. Even if in the highly unlikely event 
that the incubation period of the cancer was shorter than the 
established minimum incubation period of several years, he would 
still have been covered as a drilling Air Force Reservist. The 
burden of proof is on the Air Force to show the applicant’s 
malignancy was not incurred during a period of active duty. 
After he left active duty in Sep 06, he dedicated 40 percent of 
his available working time to the Air Force and on those days he 
would have been considered in the LOD. In this case, based upon 
the incubation period of the disease, it is not possible to 
conclusively rule out that he incurred the disease while in an 
active status. 

 

3. The EPTS finding is contrary to the protections of 10 U.S.C. 
Section 1207A, The Eight-Year Rule. The Eight-Year Rule states 
“a disabling condition will be found to be in the line of duty, 
even though the condition EPTS, if the member has at least eight 
years of service, and the member was on active duty orders 
specifying a period of 30 days at the time the condition became 
unfitting, as subsequently determined by a Physical Evaluation 
Board (PEB).” The applicant has over eight years of active 
duty, and therefore, his disability should have been found to be 
in the LOD as a matter of law. 

 

4. His command supported the finding of “In Line of Duty 
(ILOD).” During coordination, all of his Wing leadership 
concurred with an ILOD determination, saw this situation as 
being extremely detrimental to the well being of the applicant, 
and stated that the AFRC should find his case in the line of 
duty. The physician, in his treatment plan, has written a 
statement contrary to the AFRC finding, stating that it is 
impossible to tell when the illness began. The 382AW requested 
AFRC/CC reverse the LOD determination. 

 

 


It is clear that because of the incubation period of this type 
of disease it could only have started when he was on active 
duty. 

 

In support of his appeal, the applicant provides copies of a 
1997 X-Ray report, his May 08 Flight Physical, letters from an 
Oncologist, his record of reserve service, a point paper, and 
his LOD paperwork. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant entered active duty on 2 Jun 99. On 20 Sep 06, he 
released from active duty, entered the Air Force Reserve, and 
was credited with 7 years, 3 months, and 18 days of active 
service. 

 

According to the applicant’s point credit accounting report 
summary (PCARS), he performed a substantial amount of active and 
reserve duty during the period 21 Sep 06 through 1 Jun 08, 
earning a total of 153 active duty points and 135 inactive duty 
training points. 

 

On 4 Jun 08, the applicant was ordered to active duty (non-
mobilized) and deployed to Iraq. On 18 Jun 08, he was seen in 
the medical clinic in Iraq due to a persistent cough and was 
subsequently diagnosed with acute lymphoblastic lymphoma. 

 

On 18 Jun 08, a LOD determination was initiated to determine 
whether or not his condition was incurred or aggravated in the 
LOD. On 28 Aug 08, the appointing authority determined the 
applicant’s condition was incurred in the LOD; however, the AFRC 
reviewing authorities disagreed with the initial determination 
and recommended a finding of existed prior to service (EPTS) – 
LOD not applicable. On 7 Oct 08, the LOD approving authority 
determined the applicant’s condition was EPTS – LOD N/A. 
According to information provided by the applicant, he was 
released from active duty on 8 Oct 08. 

 

AFI 36-2910, Line of Duty Determinations, paragraph 3.4.1.2.3. 
Eight Year Rule states “IAW 10 U.S.C. Section 1207a, a disabling 
condition will be found to be in the line of duty, even though 
the condition existed prior to service (EPTS), if the member has 
at least eight years of active service (the eight years do not 
have to be consecutive), and the member was on active duty 
orders specifying a period of more than 30 days at the time the 
condition became unfitting, as subsequently determined by the 
Physical Evaluation Board.” 

 


The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force offices of 
primary responsibility which are included at Exhibits C and D. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFRC/SG recommends denial, indicating there is no evidence of an 
error or injustice. AFI 36-2910 does not require the 
determination of the etiology of the applicant’s lymphomatous 
change, rather the greater weight of credible evidence speaks 
against an In Line of Duty (ILOD) finding in order to find EPTS. 
Two LODs have found the greater weight of credible evidence to 
support that his lymphoma originated in a non-duty period as 
required by AFI 36-2910 in order to be found EPTS/LOD NA. 
Further, both LOD investigations were unable to find permanent 
worsening beyond the natural progression of his disease process, 
also a requirement by AFI 36-2910 in order to make the finding 
of EPTS/LOD NA. 

 

In reviewing the supplied records, the applicant more likely 
than not had the malignancy prior to the time of his flight 
physical 8 May 08, yet long after his leaving active duty in 
2006. This decision was arrived at knowing the percentage of 
time spent on active duty, the large size of the mass 10 days 
into this period of orders, an understanding of the clinical 
nuances involved in the etiology and presentation of T-cell 
lymphoblastic lymphoma that preclude concluding that the onset 
dated back to 2006, or sooner. 

 

The opinion from the civilian doctor states that “it is 
impossible to say exactly when the applicant’s cancer began,” 
yet the task prescribed by AFI 36-2910 is only that the greater 
weight of credible evidence must be present to overcome the 
presumption of an ILOD finding. Two Air Force physicians, 
highly skilled in the art and science required, were asked to 
make clinical judgments to see where the greater weight of 
credible evidence lies in this case and have twice found 
EPTS/LOD NA. 

 

Further, the applicant’s counsel calculates that he served in 
active status 40 percent of this time from 22 Sep 06 until 
18 Jun 08. In the year prior to his diagnosis, the applicant 
performed military duties 41 percent of the year or 149 days 
from 2 Jun 07 through 2 Jun 08. This intervening period of 
59 percent of days is the greater weight of the evidence that 
the period of origination of his disease was during a non-duty 
period. 

 

His attorney’s citation of 5 years of solid tumors is correct, 
however, although presenting as a mediastinal mass, T-Cell 
lymphoma is more etiologically related to leukemia and is 
considered a spectrum of this hematologic (non-solid) 
malignancy. His case presented in the classic manner: 


“Aggressive lymphomas commonly present acutely or subacutely 
with a rapidly growing mass, systemic B symptoms (i.e., fever 
night sweats, weight loss), and/or elevated levels of serum 
lactate dehydrogenase and uric acid. Examples of lymphomas with 
this aggressive or highly aggressive presentation include 
T lymphoblastic leukemia-lymphoma.” The applicant’s T-cell 
lymphoblastic lymphoma clearly followed this pattern. 

 

A complete copy of the AFRC/SG evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Through counsel, the applicant repeats his initial contention 
that by law an illness while on active duty status is presumed 
to have occurred in the LOD. Also, the Air Force advisory 
simply supports the argument there is no certainty in when this 
lymphoma began. The Air Force found him fit for duty in May 08 
(just prior to his deployment) and they are bound by that 
determination, as a matter of law. The applicant’s supporting 
medical opinions come from board certified physician oncologists 
from the leading institutions in the world, including the Mayo 
Clinic. The weight of their opinions outweighs the Air Force 
Advisor’s “nursing opinion.” Moreover, counsel points out that 
the Air Force has not objected to the Eight-Year Rule, so the 
petitioner must prevail on that issue. 

 

A complete copy of the applicants’ response is at Exhibit E. 

 

________________________________________________________________ 

 

The AFBCMR Medical Consultant recommends denial, indicating 
there is no evidence of an error or injustice. The applicant 
has taken the position that the mass likely existed during his 
previous period of active service (2006 or earlier), which he 
also bases on a literature search regarding the tumor “latency” 
period of five years. A reasonably-minded clinician would agree 
that it clearly and unmistakably did NOT first begin during his 
brief period of active service in Jun 08. Further, the mere 
fact that a medical condition of the nature of the applicant’s 
may have first manifested during a service period of 30 days or 
less, is not sufficient to establish a causal or aggravating 
relationship with military service. However, even if the 
applicant’s medical condition first occurred during the time he 
served intermittent periods of 30 days or less service this is 
not proof the condition is service incurred or the proximate 
result of performance of his military duties. DoDI 1332.38, Physical Disability Evaluation, Enclosure 3, Paragraph 
E2.3.4.5.3., reads “Any medical condition incurred or aggravated 
during one period of service or authorized training in any of 
the Armed Forces that recurs or is aggravated during later 
service or authorized training, regardless of the time between, 
should normally be considered incurred in the LOD, provided the 
condition or subsequent aggravation was not the result of the 


member’s misconduct or willful negligence. In those cases in 
which the service member reverts to a civilian status after the 
condition is incurred, the service member must prove by a 
preponderance of evidence that the medical condition was 
incurred or aggravated in the LOD and was not due to intentional 
misconduct or willful negligence.” 

 

He also introduced the contention that the Eight-Year Rule 
(10 USC, 1207a) should apply in his case, noting he had 
previously completed eight years of active service. However, 
the Eight-Year Rule would only apply if his medical condition 
became disqualifying or resulted in his referral through the 
military Disability Evaluation System resulting in an unfit 
finding for further military service. Thus, the Eight-Year Rule 
would not apply solely for the purpose of establishing an ILOD 
determination, particularly in the case of a person who has 
continued to serve. 

 

In addition, the law now requires there be “clear and 
unmistakable” evidence that a condition existed prior to 
service. The Medical consultant opines the applicant’s large 
chest mass discovered within days of his 2008 deployment is 
fairly and unmistakable evidence the condition could not have 
first begun during the brief period of deployment. Although the 
applicant has proposed that his lymphoma began during a previous 
period of active service (Sep 06 or earlier), alternatively 
based upon a proposed 5-year tumor growth, that is insufficient 
as stand alone proof to conclude his Acute Lymphoblastic 
Leukemia actually first occurred during his previous period of 
active service. The medical Consultant opines the evidence is 
insufficient to meet the burden of proof that his medical 
condition first began during his previous period of active 
service (1996-2006), nor that it was incurred ILOD during his 
period of Traditional Reserve duty or upon his activation in 
2008. 

 

A complete copy of the AFBCMR Medical Consultant’s evaluation is 
at Exhibit F. 

 

________________________________________________________________ 

 

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 an injustice. The 
applicant is requesting his lymphoblastic lymphoma (cancer) be 
determined to be in the line of duty (LOD), rather than to have 
existed prior to service (EPTS). After a thorough review of the 
evidence of record and the applicant's complete submission, to 
include his responses to the advisory opinions rendered in this 


case, we believe he has raised sufficient doubt as to whether or 
not his cancer existed prior to service (EPTS). The medical 
advisors for both the applicant and the Air Force agree it is 
impossible to say exactly when the cancer began to develop. 
While we note the comments of AFRC/SG indicating the applicant 
was not on active duty orders for 59 percent of the period 
between 20 Sep 06 when he left extended active duty and 
18 Jun 08 when he was diagnosed, we are not convinced this is 
sufficient to establish that the disease did not begin during 
one of many periods of military duty he performed during this 
approximately 20 month period. In fact, the law now requires 
that there be “clear and unmistakable” evidence that a condition 
existed prior to service prior to such a determination being 
made. While it cannot be conclusively determined when his 
cancer manifested, in view of the fact the applicant spent 
nearly half of this 20-month period in some form of military 
duty status (active duty, inactive duty training, annual field 
training period), we believe it is just as likely as not that 
the applicant’s condition manifested in the LOD. Thus, he 
should have been retained on active duty from the date he was 
separated on 8 Oct 08 until 15 Dec 09 when AFRC/SG determined he 
was physically fit for continued military duty. Therefore, we 
believe it appropriate to resolve any doubt in the applicant’s 
favor and 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 APPLICANT be corrected to show that: 

 

a. His lymphoblastic lymphoma (cancer) was determined to be in 
the line of duty (LOD). 

 

b. On 8 October 2008, he was not released from active duty, but 
continued to serve on active duty until 15 December 2009 when he 
was determined to be fit for duty. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2011-03762 in Executive Session on 12 Aug 12, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

 

 

 


All members voted to correct the records as recommended. The 
following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-03762 was considered: 

 

 Exhibit A. DD Form 149, dated 11 Sep 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFRC/SG, undated. 

 Exhibit D. Letter, SAF/MRBR, dated 6 Jan 12. 

 Exhibit E. Letter, Counsel, dated 29 Feb 12. 

 Exhibit F. Medical Consultant Memo, dated 22 May 12. 

 Exhibit G. Letter, AFBCMR, dated 14 Jun 12. 

 

 

 

 

 

 Panel Chair