RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-01108

					COUNSEL:  

		HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

He receive Combat-Related Special Compensation (CRSC).


APPLICANT CONTENDS THAT:

Exposure to Agent Orange in Vietnam caused his heart disease, but, they incorrectly concluded his weight was his problem without medical reason to support their finding.  His final physical evaluation was conducted in 1976, 18 months after he was placed on the Temporary Duty Retirement List (TDRL), which was seven years after his heart problems began.  He was not overweight when he developed ischemic heart disease.  He had no weight problems until after his heart surgery in 1973.  It was a miracle that his problem was discovered before his aneurism burst.  Ischemic heart disease was not on the Department of Veteran Affairs’ (DVA) Agent Orange list when he retired, but it has since been added.

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 19 Jul 55.

In Sep 72, the applicant experienced the onset of angina, which led to coronary bypass surgery in May 73.  

On 12 Jul 74, the applicant was transferred to the TDRL after serving 18 years, 11 months, and 23 days of active service. 

On 25 Feb 76, the USAF Physical Review Council diagnosed the applicant with the unfitting condition of arteriosclerotic heart disease associated with exogenous obesity, and recommended permanent retirement with a 100 percent compensable disability, and indicated the disability was not “the direct result of armed conflict or was caused by an instrumentality of war and incurred in the line of duty during a period of war.”  The applicant agreed with the Physical Review Council’s findings and recommendations.  

Under Special Order AC-5936, the applicant was removed from the TDRL and medically retired with a 100 percent compensable disability, effective 4 Apr 76. 

On 29 Feb 12, the DVA issued the applicant an updated Rating Decision in which the DVA continued the applicant’s 100 percent compensable disability rating for arteriosclerotic heart disease and noted his contention his heart disease was due to exposure to Agent Orange, but did not make a positive determination that Agent Orange caused his condition, nor that his heart disease was combat related.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    


AIR FORCE EVALUATION:

AFPC/DPFDC recommends denial indicating there is no evidence of an error or an injustice.  The CRSC program was established to provide compensation to certain retirees with combat-related disabilities that qualify under established criteria.  CRSC guidance requires objective documentary evidence in order to support a combat-related determination.  Military Departments will determine whether a disability is combat-related using the definitions and criteria set forth in DD Form 2860, Claim for Combat-Related Special Compensation (CRSC), Appendix A.

Findings from the Physical Evaluation Board (PEB)/Review Council, dated 25 Feb 76, 13 Jun 74, and 11 Jun 74, all indicate the applicant’s heart condition is associated with exogenous obesity.  In addition, on 17 Jun 74, the applicant signed the AF Form 1180, Action on Physical Evaluation Board findings and Recommended Disposition, indicating he agreed with the findings and recommended disposition of the PEB.  The applicant is on the DVA’s Agent Orange Registry, and he does have ischemic heart disease, which is one of the Agent Orange presumptive conditions; however, in order for certain heart disease conditions to be approved for CRSC, they must be specifically granted by the DVA as presumptive to Agent Orange exposure, and this determination must be stated in the applicable DVA rating decision.  Conditions specifically attributed to other causes, such as obesity, are not considered combat related.  The DVA has not determined the applicant’s condition is presumptive of Agent Orange exposure.  Furthermore, medical documentation clearly indicates his heart condition was associated with obesity, as was acknowledged by the applicant at the time.  No evidence was provided to confirm his disability was the direct result of armed conflict, hazardous service, instrumentality of war, or conditions simulating war.  The applicant applied for CRSC for his heart condition and was denied on 16 Aug 12, 18 Oct 12, 6 Nov 12 and 22 Jan 14.  His heart condition does not meet the mandatory criteria for compensation under the CRSC program as outlined under the provision of Title 10 United States Code, §1413a, and the Office of the Secretary of Defense Guidance.  

A complete copy of the AFPC/DPFC evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, he states he served in Vietnam (Pleiku) and was exposed to Agent Orange and was medically retired after 18 years 11 months and 23 days due to arteriosclerotic heart disease (etiology unknown).  The applicant was rated with a 100 percent disabling evaluation for his condition by the DVA.  A veteran who served in the Republic of Vietnam during the period 9 Jan 62 through 7 May 75, shall be presumed to have been exposed to a herbicide agent during such service, unless there is affirmative evidence to establish that he was not exposed.  Service medical records were negative for any heart/chest treatment prior to his reporting to Vietnam in Oct 67.  He left Vietnam in Nov 68, and complaints of chest pains were reported in 1969.  Since he served in Vietnam and subsequently developed ischemic heart disease, his heart disease is by law service connected under Title 38 Code of Federal Register (CFR) §3.307(a)(6)(iii), “presumptive jurisdiction.”  Since the heart condition was noted after his Vietnam service, the DVA must adjust their rating decision (date of “Nehmer” enactment) to reflect that herbicide exposure is the cause of the ischemic heart disease (Exhibit E).


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of AFPC/DPFDC and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the Board notes the applicant’s contention that the DVA should adjust their rating decision to reflect his heart condition was caused by herbicide exposure, the fact remains that the DVA has never identified a causal link between the applicant’s medical conditions and exposure to Agent Orange.  If fact, even if the DVA did establish that the applicant’s heart disease was caused by Agent Orange, that fact in itself would not establish that the applicant’s medical condition was combat related, which is a requirement for receipt of the CRSC he is requesting.  Therefore, in the absence of an affirmative decision from the DVA indicating there is a causal nexus between Agent Orange exposure and the applicant’s medical condition, we find no basis to recommend granting the requested relief.


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2014-01108 in Executive Session on 19 Feb 15 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 27 Jan 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDC, dated 9 Apr 14, w/atchs.
Exhibit D.  Letter, SAF/MRBR, dated 28 Jul 14.
Exhibit E.  Letter, Applicant, dated 12 Aug 14, w/atchs.