PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 April 2002
         DOCKET NUMBER: AR2001058582
         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Ronald E. Blakely		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that the medical bills he incurred as a result of six surgeries he received for an injury he incurred while on active duty in the Army National Guard (ARNG) be paid by the Army. In addition, he requests payment for the personal vacation and sick leave he took for the surgeries and periods of convalescent that followed those surgeries.

3. The applicant states, in effect, that he was unable to obtain approval for his surgical procedures because the order of his noncommissioned officer in charge, that a line of duty (LOD) investigation be initiated on his injury, was not obeyed. Although he was injured in May 1995, his LOD investigation was not initiated until September 1997.

4. The applicant’s military records show that on 24 June 1986 he was admitted to a civilian hospital for bilateral inguinal hernia repair. (A hernia is a rupture and is usually noticed as a lump in the groin area. The tissue which lines the abdominal cavity breaks through a weakened area of the abdominal wall, which is primarily designed to hold the intestines. The abdominal wall is a sheet of tough muscle and tendon running from the ribs to the legs at the groin. When a weakness in the wall materializes, the contents of the abdomen pushes against the wall and through the “window” created by the weakness. The visible protrusion through the skin is identified as a hernia. Typically, the windows of weakness materialize in areas of normal weakness in the abdominal wall. This includes canals in which plumbing (major arteries, urine ducts, major nerve centers, etc.) flows through the scrotum and the legs. These are known as the inguinal canals. Consequently, the unsupported space in the groin after testicles descend into the scrotum are prime areas. The resultant pressure of the internal tissue through the gap in the abdominal wall in the groin area is called an inguinal hernia. The hernia can become life threatening if the intestine is trapped in the opening, and may require immediate emergency surgery. In the absence of a lump, but where pain exists, ultrasound, injections, physiotherapy, and graduated exercise are recommended prior to surgery. However, when a lump is present, and the groin muscles are torn, surgery is indicated. Traditional surgery includes pushing back the internal bulge through the opening into the abdominal wall and stitching it so that contents of the abdominal wall will be contained at the point of surgery. Approximately 10% of these hernias recur, however, because the internal scar tissue unravels and is pulled loose at some point. A common surgical repair method today is the mesh. The bulging tissue is pushed back through the opening of the abdominal wall. At that point, a piece of sterile mesh is placed at the opening of the tissue, held in place firmly, and enclosed. It is generally regarded as more comfortable and requires less convalescing time. The overall recurrence rate for hernias ranges from 10 to 20%, with 15% as the most frequently cited statistic. Further, the likelihood of a successful repair diminishes with each recurrent hernia operation, because the tissue around the surgical area is eroded from surgical scarring and the loss of blood flow.) There is no evidence, indication or argument to show that the hernia was service related.

5. The applicant performed 4 days of active duty, which was a portion of an alternate annual training (AT), (where a reservist or guardsman performs AT at a time other than that which the main body of the unit. Alternate AT may be performed “lump sum” [all 14 days at once] or incrementally) from 21 to 24 March 1995. The applicant was a staff sergeant in the ARNG.

6. On 15 August 1995, the applicant was admitted to a civilian hospital with complaints of abdominal pain located in the epigastic area and also occasional nausea because of the severity of the pain. At that time he was diagnosed as suffering from a ventral hernia in the upper portion of the abdomen.  He then underwent surgical repair.

7. On 9 September 1997, a formal line of duty (LOD) investigation (DD Form 261) was initiated on the applicant’s 15 August 1995 hospitalization for hernia repair.

8. In the conduct of that investigation the applicant, after being advised that he did not have to make any statements regarding his injury, chose to make a sworn statement. In that statement the applicant said that while on annual training, on 22 March 1995, he was moving heavy equipment searching for a missing radio when he “felt some pain and discomfort while lifting some light sets.” He continued to perform his duties since the pain was not too severe, but he mentioned the pain to two NCO’s. He went to a civilian hospital on 5 April 1995 and was diagnosed as having a hernia. When it was evident that no help was forthcoming from his unit, he admitted himself to a civilian hospital for hernia repair utilizing his civilian employer’s insurance plan. He concluded his statement by saying that after additional surgeries were performed he requested a LOD investigation be initiated.

9. The formal line of duty investigation was completed on the applicant’s 15 August 1995 hospitalization for hernia repair. The investigating officer recommended that his hernia be approved as in line of duty, existing prior to service (EPTS), service aggravation. The appointing and reviewing authorities approved that recommendation, as did the Chief, National Guard Bureau.

10. Subsequently, the applicant submitted an appeal of the EPTS finding of the formal LOD. The NGB denied the applicant’s appeal, stating that a review of the medical records by the NGB Chief Surgeon determined that the applicant’s hernia was a preexisting condition which was probably related to colectomy surgery the applicant underwent in 1986. The NGB Chief Surgeon also opined that complications and subsequent surgeries were the result of poor patient compliance with post-operative instructions and, therefore, were not the responsibility of the Government. The NGB concluded that since the applicant’s hernia was considered EPTS, the appropriate level of care provided by the Army should have been relief of immediate pain for the single episode of hernia. The NGB added that since the applicant did not obtain prior approval for his civilian medical care, those bills were not payable by the Army.

11. The applicant submitted a rebuttal to that denial in which he stated that he had his second surgery on 14 February 1996, his third surgery on 22 May 1996, his fourth surgery on 5 June 1996, and his fifth surgery on 13 October 1997. He details in his rebuttal how he had attempted to have a LOD investigation initiated since he experienced pain on 22 March 1995.

12. The applicant sent a supplemental rebuttal to the NGB’s denial on 7 December 1998 in which he disagreed with the EPTS finding of the NGB Surgeon. In that rebuttal he stated he has passed medical examinations and Army Physical Fitness Tests on numerous occasions since his colectomy surgery in 1986; he disagreed with the NGB’s Surgeon’s statement that his 2^nd through 5^th surgery were due to poor compliance with post-operative instructions, contending that there is no evidence of such non-compliance; and he disagreed that the Army is only responsible for emergency treatment for the relief of the immediate pain for a single episode of hernia. The applicant again charged that he would have received proper medical treatment and continuation of pay during periods of convalescence if an LOD investigation would have been initiated in a timely manner.

13. On 14 October 1999, the Office of The Surgeon General (OTSG) responded to the NGB’s request to review the applicant’s LOD. In that response the OTSG stated that while the applicant may have had a predisposition for recurring herniation due to the scars from previous surgery, it did not mean that a newly diagnosed hernia would have been an EPTS condition. As such, an in line of duty finding would have been appropriate for the applicant’s ventral hernia, diagnosed in April 1995. The OTSG chronicles the events which led to the applicant’s 15 August 1995 surgery, starting with the applicant being given a surgical evaluation on 27 February 1995 for an episode of abdominal and left sided flank pain which had become asymptomatic; then he was seen in urgent care for abdominal swelling and tenderness on 5 April 1995; then a surgical evaluation on 10 April 1995; then a second urgent care evaluation for severe left lower quadrant abdominal pain on 19 July 1995 with a diagnosis of probable diverticulitis (inflammation of an abnormal pouch (diverticulum) in the intestinal wall, usually found in the large intestine [colon]); then with the applicant being seen for a complaint of severe epigastric (the upper middle region of the abdomen; the pit of the stomach) pain on 24 July 1995 with a diagnosis of symptomatic ventral hernia requiring repair with mesh; concluding with surgery on 15 August 1995 which revealed unsuspected cholecystitis (inflammation of the gall bladder) serious enough to warrant a cholecystecomy.  The OTSG opined that, in retrospect, it was likely that the applicant’s symptoms of epigastic pain, nausea and vomiting were due to the gallbladder and not the hernia. The OTSG stated that this operation appears to have successfully fixed the applicant’s medical problems, based on subsequent treatment records. The OTSG stated that based on the available records, none of the applicant’s subsequent hernias were the result of military duty.

14. The applicant was provided a copy of the OTSG opinion by the staff of the Board and was provided an opportunity to respond. The applicant responded with a rebuttal in which he reiterated that he was forced to use civilian medical care for his surgery because he could not get his unit to initiate an LOD investigation. He also stated that since he had submitted his application to the Board he has had ventral hernia repair in June 1999 and April 2000. He also submitted a letter from the Chief, General Surgery Section, Department of Veterans Affairs, Central Texas Health Care System. In that letter the surgeon stated that “. . . recurrent hernias, to me, generally are associated with the previous attempt to have repaired that hernia site and therefore not independent events . . .”

15. Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an EPTS condition was aggravated by military service, the finding will be in line of duty. If an EPTS condition is not aggravated by military service, the finding will be not in line of duty – not due to own misconduct (NLD-NDOM), EPTS. Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation. Under AR 600-8-1, Army Casualty and Memorial Affairs and LOD Investigations (1986), para. 41-8c(2), members of the National Guard, while in an authorized duty status, ”will be considered to have acquired or aggravated the hernia ‘in LOD’ if the following conditions exist:” (a) no evidence of hernia at time of entering duty; or (b) “there is evidence of accident or other circumstances occurring while on duty sufficient to cause the hernia or aggravation.” Further, the regulation provides, “If an EPTS [existing prior to term of service] condition was aggravated by military service, the finding will be “in line of duty.” AR 600-8-1, para. 41-8e(2). Additionally, in a section on hernia, the regulation provides a hernia which existed prior to service may be “in-LOD” if it was aggravated during a period of service. This is to be distinguished from the natural progression of a pre-existing disease or injury. AR 600-8-1, para. 41-8e(2) & (3).

16. Army Regulation 135-381 and Title 37, U.S. Code, section 204, provides for continuation of pay and allowances under certain circumstances to reservists and guardsmen who are disabled in line of duty. To receive continuation of pay, referred to as incapacitation pay, reservists and guardsmen must either be unable to perform their normal military duties or be able to show a loss of nonmilitary income. In either case, the monetary value of civilian sick and annual leave is deducted. The Army cannot, by law, pay a reservist for any leave taken due to a service related disability. If civilian leave is taken, there is no loss of income to reimburse. This regulation also provides the standards of eligibility for medical care, continuation of pay (incapacitation pay) and physical disability separation for reservists and guardsmen. Paragraph 4-1 states that to be eligible for incapacitation pay reservists and guardsmen must be unable to perform normal military duty or show a loss of nonmilitary income; the individual must be disabled “while so employed;” and the disabling condition must have been incurred or aggravated while in a duty or travel status. This regulation also outlines the difference in benefits for injuries and diseases incurred subsequent to the passage of Public Law 99-661 (National Defense Authorization Act for Fiscal Year 1987, 100 Stat. 3816, 14 November 1986). One of the major changes enacted by this law was the requirement to deduct earnings a soldier made from any source from his or her incapacitation pay entitlement. This includes money derived from a reservist using civilian sick or vacation leave. Prior to the passage of this law a reservist could receive his or her full military pay and allowances based on inability to perform normal military duty, even though he or she continued to work his or her civilian job. The intent of the law was to stop reservists from being enriched because they were disabled from a line of duty injury. While this law offset the amount of incapacitation pay a reservist could receive by his or her civilian income, it expanded benefits to include reservists who were disabled due to diseases incurred on inactive duty (weekend drill).

17. Paragraph 2-6h of this regulation states that “Non-emergency care by civilian health care providers is not authorized unless prior approval is obtained from the supporting Army [Medical Treatment Facility] commander (for USAR soldiers) NGB (for ARNG soldiers). Approval must be obtained in writing.”

18. AR 4-400, Patient Administration, paragraph 10-6c, allows for emergency medical care at civilian facilities without prior approval.

CONCLUSIONS:

1. The reluctance of the applicant’s command to initiate a line of duty investigation, to provide him medical care, or to provide him incapacitation pay, is understandable. The applicant has a history of hernias, and did not seek or receive medical treatment for two weeks after he was released from active duty.

2. While the applicant states that he reported hernia-like pain while he was on active duty, he has not submitted any evidence to substantiate that claim. Since a guardsman is only provided medical care for line of duty medical conditions, the standard operating procedure is to continue medical care for guardsmen who receive initial medical treatment while on active or inactive duty. Even if he had evidence to show that he reported having pain while on active duty, his history of hernias would bring into question the liability of the Army to provide him with medical care.

3. However, the NGB approved the applicant’s hernia as in line of duty in a formal investigation, albeit four years after the injury. The Board must defer to that finding in its consideration of the applicant’s request.

4. The Board will consider the applicant’s request for payment of his civilian medical bills first. In that regard, the evidence clearly indicates that the applicant received an emergency hernia operation on 15 August 1995. Since the Army traditionally exempts soldiers from the requirement to obtain authorization for civilian medical services in times of emergency, that portion of the medical bills as pertains to the treatment of the applicant’s hernia is payable by the Army. The applicant’s gall bladder problem was not service connected and any medical treatment he received for that condition is not payable by the Army

5. As for payment for the applicant’s subsequent surgeries, conflicting medical opinion is provided to the Board. Upon careful review of these opinions, the Board has concluded that if it is to accept the applicant’s hernia that was reportedly suffered during four days of active duty as in line of duty (service related), then the subsequent hernias cannot be considered in line of duty. That is to say, if the Board is to accept that the applicant’s prior hernia did not cause the hernia he allegedly suffered while on active duty, then the Board cannot say that the service connected hernia caused any subsequent hernias. The logic is incompatible.

6. To approve the applicant’s other request, to pay him for the leave he used when convalescing (incapacitation pay), would be in contravention of law and would result in the enrichening of the applicant. The law provides for the payment of a reservist’s or guardsmen’s lost civilian income. The intent of this law is to insure reservists and guardsmen do not experience financial hardships if unable to perform their civilian jobs due to disabilities incurred in line of duty. Since the applicant did not lose any civilian income, there is no statutory basis, nor reason, to pay him for the leave he used.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

         a. showing that the 15 August 1995 hospitalization of the individual concerned at a non-Government medical treatment facility was authorized by proper military authority; and

b. forwarding his medical bills to the servicing U.S. Army Medical Department Activity for payment of the bills incurred during the 15 August 1995 hospitalization to repair his hernia, in accordance with applicable rules and regulations which govern the payment of civilian medical bills.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___fne___ ___reb__ ___bje___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __________Fred N. Eichorn___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058582
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020418
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	128.14
2.
3.
4.
5.
6.