BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20130017887 


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 correction of his records to show a Line of Duty (LD) finding of "In Line of Duty, Not Due To Own Misconduct."

2.  The applicant states his service with the Army National Guard of the United States (ARNGUS) shows a history of asthma prior to his deployment to Afghanistan in 2007.  His condition was severely aggravated by exposure to burn pits in Salerno, Afghanistan.

   a.  He states that he sought medical treatment while on deployment for aggravated symptoms of asthma due to carcinogen inhalation while stationed at Salerno.  He was seen by Major Michael J------, 1st Battalion, 285th Aviation, and dismissed without treatment.  He adds that he continued to suffer aggravated symptoms during and after his deployment.

   b.  He states his Arizona ARNG (AZARNG) medical records show the medical condition existed prior to service (EPTS).  On 6 November 2006, a lung function test measured at 79% predicted.  On 12 December 2011, a test showed a decrease in lung function measured at 67% predicted.  He adds that the AZARNG did not pay for any of his asthma lung function tests.

   c.  On 8 August 2013, the U.S. Army Human Resources Command (HRC) denied his appeal of the "Not in Line of Duty, Not Due to Own Misconduct" finding indicating "there are no convincing medical records that show your condition worsened during or immediately following your deployment."
   d.  He states the governing Army regulation provides that, "Any physical condition having its inception in line of duty during one period of Service or authorized training in any of the Armed Forces that recurs or is aggravated during later Service or authorized training, regardless of the time between, should be in line of duty.  The aggravated condition must not be caused by misconduct or willful negligence."

3.  The applicant provides copies of his:

* medical records
* LD appeal review memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in May 1963.  He enlisted the ARNGUS and AZARNG on 4 June 1991.

2.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty for training (ADT) on 29 August 1991, honorably released from ADT on 11 April 1992, and transferred to an AZARNG unit.

3.  He was promoted to staff sergeant/pay grade E-6 on 1 January 2004.

4.  On 25 September 2006, he was ordered to active duty in support of Operation Enduring Freedom (OEF).  He served in Afghanistan from 15 January 2007 to 
16 January 2008.  He was honorably released from active duty on 17 March 2008 and transferred to an AZARNG unit.

5.  On 1 July 2011, the Deputy Chief of Staff, G-1, Joint Force Headquarters - Arizona, Phoenix, AZ, notified the applicant that his eligibility for retired pay had been established upon attaining age 60 (a 20-Year letter).

6.  A review of the applicant's Official Military Personnel File (OMPF) failed to reveal a copy of the LD investigation currently under review in this case.

7.  In support of his request the applicant provides the following documents:

   a.  Pulmonary Associates, Spirotech Integrity Pulmonary Function Test (PFT) results, dated 13 September 2002, that show, in pertinent part:


   Parameter												Predicted
   Forced Vital Capacity (FVC)								5.18
   Forced Expired Volume in One Second (FEV1)			4.22
   Forced Expired Flow 25%-75% (FEF 25%-75%)		4.28
	Peak Expiratory Flow (PEFR)								9.36

   b.  A Fit for Duty Evaluation for Active, Reserve, and ARNG Soldier, dated
3 November 2006, that shows the examining physician found the applicant fit for duty and deployable.
   
   c.  A Standard Form 600 (Chronological Record of Medical Care), dated 
6 November 2006 that shows the applicant's chief complaint was asthma -shortness of breath worse with exposure to cold and exercise.  The applicant reported a history of asthma since age 30 and the last time he went to the emergency room for asthma was over 4 years ago.  The PFT results show:

   Parameter			Predicted
   FVC						4.99
   FEV1						4.01
   FEV1/FVC				0.81
   FEF 25%-75%			4.04
							PEFR					    10.00
   
    	(1)  Mild Obstructive Pulmonary Impairment indicated by the finding of a mild reduction in the FEV1 as a percentage of the FVC (FEV1/FVC).
   
    	(2)  Post-bronchodilator testing failed to demonstrate a significant change in FVC, FEV1, or FEF 25%-75%.

   d.  Pulmonary Associates of South Arizona medical record, dated 
12 December 2011, that shows the applicant's chief complaint was asthma.  He indicated his asthma, for the most part, was controlled needing rescue inhaler about 2 or 3 times a week.  His exercise capacity depended on pollutants and the overall weather.  He noted the last time he was in the emergency room was
6 years ago.  The PFT results show:

   Parameter			Predicted
   FVC						4.87
   FEV1						3.87
   FEV1/FVC				0.80
   FEF 25%-75%			3.79
							PEFR						9.79
   
    	(1)  Mild Obstructive Pulmonary Impairment indicated by the finding of a mild reduction in the FEV1/FVC.
   
    	(2)  Post-bronchodilator testing failed to demonstrate a significant change in FVC, FEV1, or FEF 25%-75%.

    	(3)  Assessment:  Chronic Asthma:  493.00; some worsening in function since 2006.

   e.  DA Form 3349 (Physical Profile) that shows the applicant was issued a permanent profile, on 21 December 2011, for severe asthma and a torn medial meniscus, right knee (23 January 2001).

   f.  Pulmonary Associates of South Arizona medical record, dated 8 May 2012, that shows the applicant's chief complaint was asthma.  He indicated his asthma, for the most part, was controlled needing rescue inhaler about 2 or 3 times.  His exercise capacity depended on pollutants and the overall weather.  He noted that he had not been hospitalized for asthma.  Assessment:  Chronic Asthma:  493.00; has remained stable since 2006 with 3% decline only.

   g.  DA Form 3349 that shows the applicant was issued a permanent profile, on 8 August 2012, for severe asthma (no exposure to fumes or dust) and a torn medial meniscus, right knee (23 January 2001).

   h.  Tucson Pulmonary, Pulmonary Clinic, medical record, dated 31 August 2012, that shows the applicant's chief complaint was follow-up for asthma that was worse lately and needing to use Albuterol MDI about once daily.  The PFT results show:

   Parameter			Predicted
   FVC						4.45
   FEV1						2.30
   FEV1/FVC				0.52

    	(1)  Moderate Obstructive Ventilatory Defect.

    	(2)  The examining physician noted the applicant's last Spirometry FEV1 was “2.74” in December 2011, so there had been worsening in function.
   
    	(3)  Assessment:  Asthma was exacerbated recently with increased need for medication.  He noted, "Asthma worsening symptoms due to environmental exposures and affecting his physical performance more."
   
   i.  Tucson Pulmonary Clinic, medical record, dated 9 November 2012, that shows the applicant's chief complaint was follow-up for asthma.  The PFT results show:

   Parameter			Predicted
   FVC						4.45
   FEV1						2.30
   FEV1/FVC				0.52
   
    	(1)  Moderate Obstructive Ventilatory Defect.
   
    	(2)  The examining physician noted his last Spirometry FEV1 was “2.74” in December 2011, so there had been worsening in function.
   
    	(3)  Assessment:  Asthma exacerbated recently with increased need for medication.  He noted, "Asthma worsening symptoms due to environmental exposures and affecting his physical performance more."

   j.  Tucson Pulmonary Clinic, medical record, dated 6 September 2013, that shows the applicant's chief complaint was follow-up for asthma.

    	(1)  History of Present Illness:  "Noted that he was exposed to open pit burning in Salerno, Italy [sic] and he got worse after that.  I have seen [applicant] for the first time after he returned from duty in Afghanistan.  His lung function in 2006 was measured at 79% predicted before he went to Afghanistan, last time he was tested (August 2012) it was 67% or less than before.  Currently doing well."
   
    	(2)  Assessment:  "Has definitive Asthma that, based on my spirometric values, worsening after he returned from Salerno.  Moderate Persistent Asthma."

   k.  HRC memorandum, dated 8 August 2013, subject:  LD Appeal [for applicant], that shows the Director, Casualty and Mortuary Affairs Operations Center, denied the applicant's appeal and informed him, "Please be advised that after a thorough administrative review of your Line of Duty Investigation and appeal, the finding of 'Not In the Line of Duty – Not Due to Own Misconduct' will stand."  He informed the applicant, "The EPTS finding is also supported by the Army HRC Surgeon General's opinion which notes there are no convincing medical records that your condition worsened during or immediately following your deployment.  According to the medical records, you did not report significant symptomatic changes until 2012, four years after the deployment."  

8.  Army Regulation 600-8-4 (LD Policy, Procedures, and Investigations), in effect at the time, prescribes the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provides standards and considerations used in determining LD status.  It also provides the reasons for conducting LD investigations, which include 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 Department of Veterans Affairs.

   a.  Chapter 2 (LD Determinations), paragraph 2-6 (Standards applicable to LD determinations), shows that decisions on LD determinations will be made in accordance with the standards set forth in this regulation.  Subparagraph b shows that an injury, disease, or death is presumed to be in LD unless refuted by substantial evidence contained in the investigation. 

   b.  Chapter 3 (The LD Investigation Process), paragraph 3-11 (Actions by final approving authority), provides that the final approving authority will take the following actions:

* review the investigation for completeness and accuracy
* approve or disapprove the determination of the lower headquarters
"By Authority of the Secretary of the Army"

   c.  Chapter 4 (Special Considerations and Other Matters Affecting LD Investigations) shows:

        (1)  paragraph 4-8 (Medical treatment), addresses venereal disease, pregnancies and abortions, hernias, surgical operations and treatments, conditions that existed prior to service, and presumptions concerning injuries and diseases.  Subparagraph e (Injury or disease prior to service), shows:

             (a)  The term "EPTS" [existed prior to service] is added to a medical diagnosis.  It 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.  Included in this category are chronic diseases with an incubation period that clearly precludes a determination that it started during short tours of authorized training or duty. 

    	      (b)  The doctor, during examination and treatment of the Soldier, usually determines an EPTS condition.  The doctor annotates the Soldier's medical records as to whether the condition existed prior to service.  If a LD determination is required, information from the medical records will be used to support a determination that an EPTS condition was or was not aggravated by military service.  If an EPTS condition was aggravated by military service, the determination will be "In LD."  If an EPTS condition is not aggravated by military service, the determination will be "Not in LD - Not Due to Own Misconduct." 

    	      (c)  Specific findings of natural progress of the pre-existing injury or disease based upon well-established medical principles alone are enough to overcome the presumption of Service aggravation. 

        (2)  Paragraph 4-17 (Appeals), in pertinent part, that if a Soldier is assigned within the geographic area of responsibility of the original final approving authority or is a Soldier of the ARNG, the appeal will be sent through channels to the final approving authority.  The final approving authority may change his or her previous determination of "not in line of duty" to "in line of duty" if there is substantial new evidence to warrant it.  If the final approving authority determines that there is no basis for a change in the determination, it will be so stated by endorsement and the appeal will be sent to HRC (AHRC-PDC), Fort Knox, KY 40122, for final review and determination.

   d.  The Glossary, section II (Terms), provides definitions for LD terminology and shows the following:

    	(1)  Existed prior to service:  Any injury, disease, or illness, to include the underlying causative condition, which was sustained or contracted prior to the present period of AD or authorized training, or had its inception between prior and present periods of AD or training is considered to have existed prior to service.  A medical condition may in fact be present or developing for some time prior to the point when it is either diagnosed or manifests symptoms.  Consequently, the time at which a medical condition "exists" or is "incurred" is not dependent on the date of diagnosis or when the condition becomes symptomatic.  (Examples of some conditions which may be pre-existing are slow-growing cancers, heart disease, diabetes, or mental conditions, which can all be present well before they manifest themselves by becoming symptomatic.)

    	(2)  Presumption:  An inference of the truth of a proposition or fact, reached through a process of reasoning and based on the existence of other facts.  Matters that are presumed need no proof to support them, but may be rebutted by evidence to the contrary.

    	(3)  Service aggravation:  Refers to a medical condition that existed prior to service and which worsened or was aggravated as a result of military service more than it would have been worsened or aggravated in the absence of military service. 
9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show an LD finding of In Line of Duty – Not Due to Own Misconduct because his medical records show a history of asthma prior to his deployment to Afghanistan in 2007 and his medical condition was aggravated by exposure to burn pits while serving in Afghanistan.

2.  The applicant enlisted in the ARNGUS on 4 June 1991.  He attended ADT from 29 August 1991 through 11 April 1992.

3.  The applicant was diagnosed with asthma by a civilian health care provider on 13 September 2002.

4.  The applicant was ordered to active duty on 25 September 2006 in support of OEF.  In November 2006, he sought treatment for his asthma at a military treatment facility and the medical record shows he acknowledged a history of asthma since 1993.  Thus, the evidence of record supports the contention that his medical condition was EPTS with respect to this period of service.

5.  He deployed overseas and served in Afghanistan from 15 January 2007 to
16 January 2008.  It is during this period of active duty the applicant contends his condition was severely aggravated due to carcinogen inhalation from burn pits.  He was released from active duty on 17 March 2008.

6.  The evidence of record shows the governing Army regulation provides, "If an EPTS condition is not aggravated by military service, the determination will be "Not in LD - Not Due to Own Misconduct."

7.  The available evidence does not shows the applicant sought medical treatment for any aggravating symptoms or worsening of his asthma between the time he was processed for deployment in November 2006 and 11 December 2011.


8.  The evidence of record shows the applicant sought treatment for asthma from a civilian provider on 12 December 2011.  He acknowledged the last time he was in the emergency room for asthma was 6 years ago (i.e., December 2005).  The examining physician noted some worsening in function since 2006.

9.  The applicant did not provide a copy of the LD Investigation in question and the LD Investigation is not filed in his OMPF.

10.  In the absence of evidence to the contrary, it is presumed that the applicant's LD Investigation was accomplished in compliance with applicable regulations, then in effect, and without any procedural errors which would have jeopardized his rights.

   a.  In this regard, the evidence of record shows the appellate authority reviewed the LD Investigation and the applicant's appeal and, on 8 August 2013, determined that the LD Investigation complies with the Army's regulatory legal requirements.

   b.  In addition, the appeal authority informed the applicant that the EPTS finding is also supported by the Army HRC Surgeon General's opinion which notes there are no convincing medical records that his condition worsened during or immediately following his deployment.  Accordingly, he affirmed the finding of "Not In LD – Not Due to Own Misconduct."

11.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based upon Army Regulation 600-8-4 which provides that the correct conclusion based on the facts must be shown.  The evidence of record supports the conclusion that the LD Investigation findings and determination of "Not in LD – Not Due to Own Misconduct" are correct.

12.  Therefore, there is an insufficient evidentiary basis for granting 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)                                         AR20130017887



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ABCMR Record of Proceedings (cont)                                         AR20130017887



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