IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090015425 


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, in effect, that the chronic degenerative joint disease (arthritis) of the right shoulder, left shoulder, right elbow, left elbow, right wrist, left wrist, pelvis, right hip, left hip, right knee, left knee, right ankle, left ankle, right foot, left foot, hearing loss, and tinnitus be considered to have been incurred in the line of duty (LD).

2.  The applicant states he was redeployed from Afghanistan because of medical reasons and was medically evaluated at Fort Dix.  He states it was determined that all of the above listed medical conditions were aggravated by his active duty in Afghanistan.  He states after returning home he provided his unit the appropriate paperwork for a medical evaluation board (MEBD) and that he inquired monthly about the MEBD and completing an LD investigation for all the medical conditions listed above.  He states if he had been afforded the MEBD he was supposed to receive, he is sure there would have been an LD investigation done for all the medical conditions listed above.  He further states he wants an LD investigation so he can use it in his Department of Veterans Affairs (VA) appeal process.

3.  The applicant provides:

* a memorandum, subject:  Release from Theater
* two statements concerning the applicant's physical situation
* Standard Forms 600 (Health Record - Chronological Record of Medical Care)
* DA Form 3349 (Physical Profile)
* letters from the department of orthopedic surgery at Fort Dix
* a letter from a civilian doctor detailing hearing loss and tinnitus
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* VA documentation related to his claim for service connection in order to get medical treatment

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Army National Guard on 17 March 1979.  He completed initial entry training and was awarded the military occupational specialty of wheel vehicle mechanic.  The highest rank/grade he held was first sergeant/E-8.

2.  The applicant deployed to Afghanistan on 4 March 2007 and by the end of the same month it was determined he would be redeployed from Afghanistan for medical reasons.  The evidence indicates that on or about 7 April 2007 he was returned to Fort Dix.

3.  A Standard Form 600, dated 12 April 2007, lists the following medical problems:

* lumbar spondylosis (L5-S1)
* sacroiliitis
* lumbar spondylosis (L4-L5)
* sprain back
* lumbago
* bronchitis
* other upper respiratory infection

This form shows no indication of the items listed in the applicant's request.  The form further indicates the applicant should have an MEBD/physical evaluation board (PEB).  It states the MEBD/PEB was offered to be done at Fort Dix, but the applicant was firm on getting this done at home station.

4.  A DA Form 3349, dated 12 April 2007, contains the entry, "back pain, kidney stone (lumbar spondylosis, sacroiliitis)" in item 1 (Medical Condition).  This form shows no indication of the items listed in the applicant's request.

5.  The applicant was released from active duty on 2 May 2007 after completing 6 months and 21 days of active service.

6.  Letters from the orthopedic surgeon who reviewed his medical problems/
complaints indicate the applicant's history and subjective complaints (listed above) were indeed consistent with a degenerative or osteoarthritic process as the underlying pathology.

7.  The NGB Form 22 issued to the applicant shows he was transferred to the Retired Reserve effective 1 June 2008.  This form shows he completed a total of 29 years, 2 months, and 14 days of net service and service for retired pay.

8.  A letter from a civilian medical doctor, dated 29 June 2008, indicates the applicant had some noise-induced hearing loss.

9.  In the processing of this case, an advisory opinion was obtained from the Kentucky Army National Guard (KYARNG).  Based on the medical evidence and regulatory information provided, the KYARNG recommended the applicant's degenerative condition be found "not in LD."  The KYARNG further stated it was clearly documented medically that the applicant's medical conditions were found to be as a result of a degenerative process that occur in natural progression with age and would have occurred regardless of his duty status.  Further, the applicant's position at the time placed him in a role as a leader and supervisor overseeing operations in an administrative capacity as evidenced by his noncommissioned officer evaluation report covering the period of time in question and also from the Department of the Army Pamphlet 611-21 (Military Occupational Classification and Structure) which typically would not physically aggravate such a condition.

10.  The KYARNG continued:

	a.  In accordance with Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 3-4b, "The mere fact that the Soldier was in an 'authorized status' (duty, pass, leave, and so forth) does not support a determination of 'in LD' in and of itself."

	b.  In accordance with Army Regulation 600-8-4, paragraph 4-8e(3), "Specific findings of natural progress of the preexisting injury or disease based upon well-established medical principles alone are enough to overcome the presumption of service aggravation."

	c.  Army Regulation 635-40, paragraph 3-3, states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to a conclusion that they must have existed or have started before the individual entered the military service.

11.  The KYARNG further stated the medical records provided by the applicant provide the diagnosis and evidence of a degenerative process, not an injury or trauma sustained while on active duty.  The KYARNG then lists the physician's notes regarding the medical problems listed in part by the applicant.

12.  The KYARNG then depicts the duties and scope of someone serving in the capacity as that of the applicant as being primarily administrative.

13.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant responded, stating he believes the KYARNG had no right to say his conditions were just normal progression.

14.  An advisory opinion was also obtained from the NGB Personnel Division.  NGB recommended the applicant's preexisting arthritis condition be found aggravated in the LD and, therefore, receive service connection for this condition.  The recommendation was based on documentation provided by the applicant and coordination with the NGB Surgeon's office.

15.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

16.  A VA decision document, dated 5 February 2009, shows the VA considered and denied service connection of 11 of the medical conditions listed above.

17.  Army Regulation 600-8-4, paragraph 2-2 (Reasons for Conducting LD Investigations), only requires the initiation of an LD investigation for Soldiers for the following reasons:  extension of enlistment, longevity and retirement multiplier, forfeiture of pay, disability retirement and severance pay, medical and dental care for Soldiers on duty other than active duty for a period of more than 30 days, and benefits administered by the VA.  Paragraph 2-3 (Requirements for LD Investigations) states that LD 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.

18.  Army Regulation 600-8-4, paragraph 4-8, states that if a condition which existed prior to service (EPTS) was aggravated by military service, the finding will be "in LD."  If an EPTS condition is not aggravated by military service, the finding will be "not in LD – not due to own misconduct."  It further states that 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.

DISCUSSION AND CONCLUSIONS:

1.  Due to the degenerative nature of the above listed medical conditions and the fact that there is no evidence of any trauma which would have aggravated them, those conditions are not considered "in LD."

2.  While the symptoms of a condition may manifest during a weekend training assembly or a period of active duty, such an occurrence does not establish that it was incurred in the LD.  If it is determined that it was the progression of a preexisting condition, the condition is not considered to have been incurred in the LD.

3.  The applicant has not submitted and the record does not contain any medical documents which show he was treated for the medical conditions listed above while he was deployed to Afghanistan.

4.  In addition, since there was no evidence of a trauma and there is no indication that misconduct or negligence was involved in the injury none of the reasons for initiating an LD investigation contained in Army Regulation 600-8-4, paragraphs 2-2 and 2-3, exist.  As such, it would appear that an LD investigation was properly not initiated on the applicant's complaints.

5.  While it has no direct bearing on the appropriateness of the action taken by the Army, it is noted that the VA did not find any reason to attach service connection to the medical conditions listed by the applicant.

6.  As such, it appears the applicant had degenerative medical conditions which were not aggravated by military service.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090015425



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ABCMR Record of Proceedings (cont)                                         AR20090015425



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