APPLICANT REQUESTS:  In effect, the applicant requests that the line of duty determination of 22 November 1993 for an injury to his lower back that he sustained on 17 July 1993  be changed from, “In line of duty for bruised right knee; in line of duty - existed prior to service - aggravation for lower back sprain”, to reflect a new and separate injury.  Subsequent to his original application, he states that he would like to amend his original request to have the wording on the line of duty remain the way it is, but in addition add to it, “and new injury to lower back”.  

APPLICANT STATES:  That his private physician and a medical officer at Kimbrough Army Hospital at Fort Meade, Maryland, have told him that his injury was new and separate from his prior existing back problem and should not be considered pre-existing.  

EVIDENCE OF RECORD:  The applicant's military records are unavailable.  Information contained herein was obtained from alternate sources.

The applicant was a member of the Pennsylvania Army National Guard, who injured his back on 17 July 1993 while at annual training at Fort Pickett, Virginia.  The line of duty (LOD) determination was, “Approved:  In Line of Duty for Bruised Right Knee; In Line of Duty - Existed Prior to Service (EPTS) - Aggravation for Lower Back Sprain”.

On 6 April 1994 the applicant requested through his chain of command that the line of duty determination be changed to show, in effect, that the injury to his back was a new and separate injury.  He stated that after treatment at Kimbrough Army Hospital, it became apparent to him that his military career might be in jeopardy, which would also affect his full time employment as a service support specialist.  He stated that he had been treated by his private physician, who informed him that his injury was and is a new injury of an additional problem of acute lumbar strain, along with recurrent disc herniation.  The applicant stated that the injury to his back was new, did not exist prior to service, and was not an aggravation for lower back sprain of a pre-existing injury. 

The applicant’s private physician stated that the applicant had a diagnosis of acute and chronic lumbar strain, L-5,S-1 degenerative disc disease and L4-5, S-1 spinal stenosis.  That doctor stated that the applicant’s acute lumbar strain was due to the accident that occurred on 17 July 1993, when he fell off the steps of a truck, twisted and landed on his canteen on his left lower back.  The doctor stated that the applicant did suffer from chronic lumbar strain, however, he further injured his back when he fell, and now he additionally suffered from acute lumbar strain.

On 2 November 1994 an official in the office of The Surgeon General opined (COPY ATTACHED) that there was no evidence to support the contention that the applicant sustained a separate, new injury; and that based on reasonable probability, and the natural history of lumbar disc disease (pre and post operative), it could be proposed that the injury sustained on 17 July 1993 was an aggravation of pre-existent problems. This was supported from the analysis of the CT noted at the L5-S1 level.  There was no evidence of a new, separate, or distinct process.

On 18 November 1994 the Total Army Personnel Command (PERSCOM) notified the Chief, Army National Guard Bureau, that administrative and legal reviews, and a medical opinion from The Surgeon General, concerning the applicant’s LOD and his appeal thereto, determined that the proper findings remained in line of duty for his bruised right knee, and in line of duty (existed prior to service, service aggravation) for his lower back strain (COPY ATTACHED).

On 23 March 1995 the applicant requested, in a letter to his commanding officer to be forwarded to this Board, that the denial of his appeal be further reviewed.  The applicant stated that he had a right L5-S1 hemilaminectomy and microdiscectomy performed on 9 June 1987 and had been 
treated since that time by his physician for chronic lumbar disc disease.  Since his accident at Fort Pickett he had experienced back pain on his left side.  A CT scan of 
23 August 1993 showed recurrent disc herniation.  Although he did have an existing back condition on his right side, his back injury to his left side was a new injury.  The applicant stated that a doctor at Kimbrough verbally affirmed that his injury was a new injury.

The applicant’s private physician stated that the CT scan of the applicant’s spine on 23 August 1993 showed recurrent disc herniation which was not previously present, that the applicant had exacerbation of his chronic lumbar disease due to his accident, that the accident resulted in an exacerbation to his prior back condition.  The doctor stated that the applicant has persistent pain over and above his pre-existing discomfort that he had experienced in the past.  
On 27 July 1995 the applicant requested that a member of congress (MC) assist in asking this Board to expedite his request, because the Board’s decision would determine how and the way in which his pending separation and retirement would be based.  He stated that he had recently received a retention physical and was issued a temporary profile, and was advised that he would be recommended for separation.  He stated that on 5 July he received notice that he did not meet the medical standards for retention and that the National Guard was taking action to separate him.  

The applicant has since requested consideration for the temporary early reserve retirement eligibility for disabled members of the Army National Guard, under the national Defense Authorization Act for FY 1995, Public Law 103-337, Section 517, which established benefits for soldiers involuntarily separated from the Army National Guard due to physical disability.  He requested transfer to the retired reserve.


Army Regulation 600-8-1 prescribes the policies and procedures concerning line of duty determinations.  Paragraph 41-8 of that regulation, in pertinent part, states that the term “EPTS” added to a medical diagnosis shows that there is substantial evidence that the disease or injury, or underlying condition, existed before military service or it happened between periods of active service.  The doctor, during examination and treatment of the member, usually determines an EPTS condition.  He annotates the medical records as to whether the condition existed prior to service.  If an line of duty finding is required, information from the medical records will be used to support a finding that an EPTS condition was or was not aggravated by military service.  If an EPTS condition was aggravated by military service, the finding will be “in line of duty”.
 
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant’s injury that he sustained on 17 July 1993 was an aggravation of his previous back condition.  The line of duty determination, in line of duty (existed prior to service, service aggravation) for the lower back strain, is correct.  The applicant has submitted no probative medical evidence to the contrary.     

2.  The Board recognizes that at times there will be an honest difference of opinion among physicians as to a diagnosis.  However, the Office of the Surgeon General has opined that there was no evidence that the applicant sustained a separate, new injury.  The applicant’s private physician stated, in fact, that the applicant’s condition was diagnosed as chronic lumbar disc disease exacerbated by the injury that occurred on 17 July.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.
 
DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director