RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060011893 


	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.



	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that a line of duty (LD) determination be made on the injury to his right ankle, both knees, foot condition, and lower back which he sustained during an airborne operation on 4 November 1997.

2.  The applicant states that his initial injuries to his right ankle and toe were incurred during his parachute landing.  His lower back, both knees and feet were “further agitated/aggravated” during the 12 mile road march with full combat equipment after the landing.  He explains that he needs the LD determination to support his Combat Related Special Compensation (CRSC) claim.

3.  In a second request, the applicant requests a LD determination be made on his “tinnitus injury.”  The applicant states that he was routinely exposed to hazardous noise on military aircraft during airborne operations.

4.  The applicant provides his CRSC partial denial, his Department of Veterans Affairs (VA) rating decision, and excerpts from his military personnel and medical records.

CONSIDERATION OF EVIDENCE:

1.  On 4 November 1997, the applicant, a regular Army enlisted Soldier in pay grade E-7, made a combat equipment, mass tactical, night parachute jump.

2.  On 12 December 1997, the applicant was examined for a complaint of ankle pain.  At that time it was noted that the applicant had a previous history of severe sprain to his right ankle.  

3.  The applicant was seen twice afterwards for his ankle pain.  On 12 February 1998, when the applicant was examined for ankle pain, it was noted that his ankle pain had a gradual onset but seemed to become more symptomatic after a parachute jump and road march in November 1997.  The applicant provides several other treatment records for his ankle.

4.  On 3 October 2001, the applicant was examined for a complaint of knee pain.  He reported at that time that he did not suffer any trauma to his extremities.  The applicant provides three other treatment records for his knees.

5.  On 20 November 2001, the applicant was examined for flat feet.  The applicant provides one other treatment record for his flat feet.

6.  On 25 October 2002, the applicant was examined for complaints of back pain which he reported to have existed for 2 months.  At that time the applicant reported that he did not have a history of ankle, knee or back injury.

7.  Army Regulation 600-8-4, paragraph 2–3, Requirements for line of duty investigations, states that 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, except as described in paragraphs c (1) and (8) below.

		(2) In the case of injuries clearly incurred as a result of enemy action or attack by terrorists.

		(3) 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 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 (para 4–10a).

		(10) When requested or directed for other cases.

8.  Combat-Related Special Compensation (CRSC), as established by Section 1413a, Title 10, United States Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it wasn’t for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling.  For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.





DISCUSSION AND CONCLUSIONS:

1.  The applicant was initially examined for ankle pain over a month after his parachute jump.  At that time it was noted that the applicant had a previous history of severe sprain to his right ankle.  

2.  Over 3 months after the parachute jump the applicant reported that his ankle pain had a gradual onset but seemed to become more symptomatic after a parachute jump and road march in November 1997.

3.  In view of the medical records provided by the applicant, it is impossible to ascertain what caused the applicant’s ankle pain.  It is apparent that his ankle pain existed prior to his parachute jump, and there is no clear indication that the parachute jump aggravated the ankle injury.  As such, there isn’t a specific injury to consider in a LD investigation.

4.  As for the applicant’s knees, he initially reported knee pain almost 4 years after his parachute jump.  When he reported having knee pain, he also reported that he had not suffered any trauma to his extremities.  As such, it must be presumed that the applicant’s knee pain was due to a disease process which does not require a LD investigation by regulation.

5.  As for the applicant’s foot condition, he had flat feet.  That is a congenital condition and is not caused by an injury.  As such, no LD investigation is required by regulation.

6.  As for the applicant’s back pain, almost 5 years after his parachute jump he reported having back pain for 2 months.  At that time the applicant reported that he did not have a history of ankle, knee or back injury.  As such, it must be presumed that the back pain was due to a disease process which does not require a LD investigation by regulation.

7.  While the applicant submitted documents showing that his hearing was tested while he was on active duty, he did not submit any documentation to show that he was treated for an acoustic trauma.  As such, it must be presumed the applicant’s tinnitus was due to a disease process which does not require a LD investigation by regulation.

8.  The fact that LD determinations cannot be made or are not necessary does not adversely affect the service connection of the medical conditions in question.  As such, LD determinations should not effect the applicant’s entitlement, or lack of entitlement, to CRSC.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____lmd_  ____ym__  ____gjp__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




________Yolanda Maldonado_______
          CHAIRPERSON




INDEX

CASE ID
AR20060011893
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070515
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.