IN THE CASE OF: BOARD DATE: 19 July 2012 DOCKET NUMBER: AR20120002364 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: * a line of duty determination be submitted for investigation and approval * her case be resubmitted for evaluation by a medical/physical evaluation board (MEB/PEB) * payment of lost pay and allowances 2. The applicant states upon being examined by the medical examination board, she discovered that a line of duty investigation should have been initiated for the earlier incident (she does not specify what incident). Although a line of duty was initiated, it was not submitted for investigation or approval; and as such, although her medical conditions were incurred in the line of duty, the conditions were deemed as non-line of duty medical disqualifications. Due to this event, she was transferred to the trainees, transients, holdees, and students (TTHS) account which placed her in a non-drilling status and subjected her to lost pay and allowances. She also cites narrative/selected paragraphs from Army Regulation (AR) 600-8-4 (Line of Duty Policy, Procedures, and Investigations). 3. The applicant provides: * DA Form 199 (Physical Evaluation Board Proceedings) * Notification of PEB Recommendation for Non-Duty Related (NDR) Cases * DA Form 2173 (Statement of Medical Examination and Duty Status) * DA Form 3349 (Physical Profile) * Standard Forms 600 (Chronological Record of Medical Care) * DA Forms 7349-R (Initial Medical Review - Annual Medical Certificate) * Civilian medical records related to cervical spine CONSIDERATION OF EVIDENCE: 1. The applicant's records show she was born on 23 September 1961. 2. Her records show she was appointed as an Army Nurse Corps (ANC) Reserve commissioned officer in the rank of first lieutenant and executed an oath of office on 5 August 1991. 3. She served in a variety of troop program units and she attained the rank of major (MAJ) on 29 October 1998. Her chronological statement of retirement points shows between August 1994 and August 2002, she was not an active participant in training. 4. She was considered for promotion to lieutenant colonel by the May 2005, May 2006, and May 2007 Reserve Component Selection Boards respectively but she was not selected for promotion. 5. Her service medical records are not available for review with this case. However, she submitted selected military and civilian medical documents as follows: a. DA Form 2173, dated 18 July 2004, which shows she was treated in an outpatient status on 18 July 2004 at the 369th Combat Support Hospital, PR. This form indicates she was performing a weapons qualification exercise when she received an injury with the M-16 to the left eye. b. DA Form 7349-R, dated 2 October 2004, wherein she answered in the positive to the question "have you been hospitalized or had surgery since your last periodic physical examination?" She indicated that she was diagnosed with L-4/S-1 disc disease and bulging disc, migraines, and depression disorder. She added that she was previously diagnosed with gastritis reflux. c. Initial evaluation report, dated 5 June 2006, at the Institute Para el Manejo Del Dolor, PR; she complained of cervical pain dated one year back. She had received treatment with chiropractor manipulation and physical therapy. d. Follow up visits, dated 30 June, 9 and 31 August, 21 September, and 11 October 2006, at the Institute Para el Manejo del Dolor, PR, wherein she reported some improvement but continued to have chronic cervical pain. e. Medical procedure, dated 6 September 2006, that shows she underwent computerized axial tomography of the cervical spine without contrast material. The report listed an impression of osteoarthritis affecting the left facet joint at the C2-3 interspace with sub-chondral bones sclerosis and marginal osteophtosis. f. Medical document, dated 13 March 2008, from a medical doctor at Fisistria Medicina, PR, which shows she suffered chronic neck and back pain secondary to bulging disc L4/L5. g. Multiple progress notes, dated on various dates in 2008 and 2009, related to selective nerve root and/or facets blocks with fluoroscopy. h. A chronological record of medical care, dated 9 April 2008, that shows the command surgeon, 65th Regional Support Command, reviewed her records and determined that according to AR 40-501, paragraph 3-39e and paragraph 3-13d, she was not fit for duty. He ordered a new physical profile be issued, assigning her a PULHES of "3-2-3-2-2-1" and her referral to a medical board for separation. 6. On 11 July 2008, she was issued a permanent physical profile for chronic neck pain, chronic low back pain, and chronic right knee pain. The physical profile assigned her functional limitations and shows the entry "For Non-Duty Related PEB IAW [in accordance with] AR 40-501, 3-39h: chronic neck pain, 3-39e: chronic low back pain." 7. On 28 October 2008, she completed a periodic health assessment and indicated that she had a neck injury not related to an accident. She also indicated she had back pain, gastroesophageal reflux disease (GERD), and she was depressed at times. 8. Also on 28 October 2008, she was issued a permanent physical profile for depression, neck pain, and back pain. She was assigned the functional limitation of “limited walk in combat boots to 1 mile and field gear and ruck sack to ¼ mile.” 9. She underwent a retention physical examination on 5 November 2008. The results of the physical examination required the command surgeon to review and/or take appropriate action. 10. On 17 May 2010, a non-duty related PEB (NDR-PEB) convened at Fort Sam Houston, TX. The PEB noted that: a. The applicant’s cervical and lumbar disc disease, although longstanding, had not responded to treatment. Her job as a medical-surgical nurse was demanding and required her to be mobile, flexible, and deployable. Her profile restricted her from deploying and as such, her use to her unit was minimal. Her commander did not recommend retaining her in the unit. b. Her referred conditions of knee pain, sleep apnea, and depression were not unfitting. She had a history of depression but had been treated recently. She reported that she felt the symptoms recurring with all the pain she had experienced but that did not render her unfit. She had a history of anterior cruciate ligament (ACL) reconstruction but there was very little information indicating that her knee pain would interfere with her duties. Sleep apnea was controlled with BiPAP (Bilevel positive airway pressure) and did not interfere either. c. Based on a review of the objective medical evidence of record, the findings of the PEB were that the applicant’s medical and physical impairments prevented reasonable performance of duties required by her grade and military specialty. d. The PEB recommended referral to the Reserve for disposition under Reserve Component regulations. 11. On 17 May 2010, by memorandum, officials of the U.S. Army Physical Disability Agency advised the applicant of the NDR-PEB’s findings and recommendation. She was also advised that if she did not concur with the “unfit for duty” finding and recommendation, she may submit a written rebuttal and/or demand a formal hearing. 12. On 19 May 2010, the applicant concurred with the NDR-PEB’s findings and recommendations and waived her right to a formal hearing of her case. 13. She was honorably discharged from the U.S. Army Reserve (USAR) on 26 November 2010. Her Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows she completed 9 qualifying years of service toward non-regular retirement. 14. AR 635-40 (Personnel Separations. Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army Physical Disability Evaluation System (PDES), Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. 15. AR 40-501 governs medical fitness standards for enlistment, retention, and separation. Paragraph 9-12 states that RC Soldiers with nonduty-related (NDR) medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness. The process is designed to give the Soldier with NDR impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits. 16. Department of Defense Instruction (DODI) 1332.38, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Members with NDR impairments are eligible to be referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits. The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the RC." 17. AR 600-8-104 prescribes policies, procedures, and mandated tasks governing line of duty determinations of soldiers who die or sustain certain injuries, diseases, or illnesses. Line of duty investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an LD investigation may or may not be required to make this determination. a. The LD determination is presumed to be "LD YES" without an investigation (1) In the case of disease, with some exceptions; (2) In the case of injuries clearly incurred as a result of enemy action or attack by terrorists; and in the case of death due to natural causes or while a passenger in a common commercial carrier or military aircraft. b. In all other cases of death or injury, except injuries so slight as to be clearly of no lasting significance (for example, superficial lacerations or abrasions or mild heat injuries), an LD investigation must be conducted. c. Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence. A formal LD investigation must be conducted in the following circumstances: (1) Injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence; (2) Injury or death involving the abuse of alcohol or other drugs; (3) Self-inflicted injuries or possible suicide; (4) Injury or death incurred while AWOL; (5) Injury or death that occurs while an individual was en route to final acceptance in the Army; (6) Death of a USAR or Army National Guard (ARNG) Soldier while participating in authorized training or duty; (7) Injury or death of a USAR or ARNG Soldier while traveling to or from authorized training or duty; (8) When a USAR or ARNG Soldier serving on an AD tour of 30 days or less is disabled due to disease; (9) In connection with an appeal of an unfavorable determination of abuse of alcohol or other drugs; and (10) when requested or directed for other cases. DISCUSSION AND CONCLUSIONS: 1. The applicant underwent surgical procedures in 2006 related to chronic cervical pain. It appears at some stage, her chain of command referred her case to a command surgeon for evaluation. In April 2008, the 65th RSC command surgeon reviewed her records and determined that according to AR 40-501, she was not fit for duty. He ordered a new physical profile be issued and her referral to a medical board for separation. 2. When a member of the RC have medical issues that are neither incurred nor aggravated while the member was performing duty that renders the member unfit for retention, they have four options: an honorable discharge; transfer to the Retired Reserve, if eligible; or consideration by an NDR PEB. Members with NDR impairments are eligible to be referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits. The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the RC. 3. Here, the applicant appears to have elected referral to an NDR PEB for a fitness determination. The PEB considered her case and determined: a. her cervical and lumbar disc disease, although longstanding, had not responded to treatment. Her job as a medical-surgical nurse was demanding and required her to be mobile, flexible, and deployable. Her profile restricted her from deploying and as such, her use to her unit was minimal. Her commander did not recommend retaining her in the unit. b. her referred conditions of knee pain, sleep apnea, and depression were not unfitting. She had a history of depression but had been treated recently. She reported that she felt the symptoms recurring with all the pain she had experienced but that did not render her unfit. She had a history of ACL reconstruction but there was very little information indicating that her knee pain would interfere with her duties. Sleep apnea was controlled with BiPAP and did not interfere either. c. Based on a review of the objective medical evidence of record, the PEB found the applicant’s medical and physical impairments prevented reasonable performance of duties required by her grade and military specialty. The PEB recommended referral to the Reserve for disposition under RC regulations. 4. Since she had not completed sufficient qualifying years of service toward full non-regular retirement (20 qualifying years) or reduced non-regular retirement (15 qualifying years), the only available option was to honorably discharge her from the USAR. 5. The applicant produces a voluminous, yet selective, number of medical documents, specifically physical profiles that documented various conditions, including chronic neck pain, chronic low back pain, and chronic right knee pain. She also refers to the line of duty determination of an unknown incident. a. It is virtually impossible, given the selected documents she submitted, to determine which medical conditions existed prior to service, during service, while on active duty, or which were aggravated by service. It is equally impossible to determine which specific condition or conditions she believes should have been investigated or are disabling. b. There is a difference between a duty-related impairment and a non-duty related impairment. A duty-related impairment could result in consideration by a PEB for the purpose of assigning disability compensation. However, one of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. c. The applicant's 2008 physical profile was delivered to the unit. The profiling officer made a recommendation to the commander. That triggered a determination of fitness evaluation by the appropriate regional command. In order for the applicant to have received any compensation in the form of medical retirement or severance pay, she would had to show that any conditions that were deemed by a PEB to be unfitting were incurred while entitled to basic pay or that they were aggravated by active service. She provides insufficient evidence to show her one unfitting condition, cervical and lumbar disc disease, was incurred while entitled to base pay. 6. In view of the foregoing, the applicant is not entitled to the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _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. ABCMR Record of Proceedings (cont) AR20120002364 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120002364 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1