IN THE CASE OF

		BOARD DATE:	    16 April 2014

		DOCKET NUMBER:  AR20140001810 


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, reversal of a "Not in the Line of Duty-Not Due to Own Misconduct (NLD-NDOM)" determination.

2.  The applicant states that though an officer had decided before hand that he wasn't deployable, he was issued a permanent profile during pre-mobilization that allowed him to deploy.  He did not know he had the hip injury for which he is seeking an in line of duty (ILD) determination until it was established as the result of a magnetic resonance imaging (MRI) from the Department of Veterans Affairs (VA) because he thought the pain was coming from his ankle.

3.  The applicant provides his military medical records and VA medical documents.

CONSIDERATION OF EVIDENCE:

1.  After completing 6 years of prior service in the Tennessee Army National Guard (TNARNG), he reentered the TNARNG on 6 March 2006 for 6 years.  He remained a member of the TNARNG until he was discharged on 16 November 2013 due to a medical, physical, or mental condition.

2.  His medical record shows on 11 June 2002 a pry bar slipped while he was working on a tank track and hit him on the left knee resulting in blunt trauma to his knee.  He was treated at Weed Army Hospital and released with crutches and a knee immobilizer.  The injury was determined to have occurred ILD.
3.  His record shows on 8 August 2008 he incurred a metatarsal sprain when he rolled his ankle playing basketball during physical training.

4.  A DA Form 3349 (Physical Profile) shows on 23 September 2009 he was issued a permanent profile due to left ankle pain. 

5.  A DD Form 2796 (Post-Deployment Health Assessment (PDHA)), dated 19 July 2010, contains comments that he had a permanent profile for left ankle pain that was worse and that he was fit for duty.  There is no mention of hip pain or injury.

6.  His record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was ordered to active duty in support of Operation Iraqi Freedom during the period 5 December 2009 through 5 August 2010.

7.  On his Post-Deployment Health Assessment Re-assessment (PDHRA), dated 6 February 2011, he marked that he was not wounded, injured, or otherwise physically hurt during deployment.  This document further lists that he had daily left ankle and left knee pain.  There is no mention of hip pain or injury.
 
8.  A Bone and Joint Clinic document, dated 9 January 2012, identified the applicant's chief complaint as "follow-up for left hip arthroscopy."  The document states the applicant's main complaint was having muscle spasms in the leg and pain in his knee and ankle.  It shows the applicant indicated his hip was improving, but the muscle spasms still continued to be a problem.

9.  On 18 April 2011, Mr. DL, a nurse practitioner, VA Tennessee Valley Healthcare System, composed two letters addressed "To whom it may concern" and a third letter with no addressee regarding the applicant's medical condition.  Mr. DL indicated in these letters that he had examined the applicant at the Nashville VA Medical Center on that date.  Mr. DL stated the applicant had osteoarthritis, a possible labrum tear, and may have had femoral acetabular impingement confirmed on MRI.  He also had chronic pain in his left ankle from an old sprain.  He would need an MRI of his left ankle and an arthrogram of his left hip (and possibly left ankle) to further evaluate his hips and ankle injury.  Mr. DL further outlined the nature of work/duty the applicant could or should not perform.  He also indicated the applicant should avoid Army Physical Fitness Test type activities.

10.  On 24 January 2012, the above nurse practitioner composed a letter stating the applicant suffered a labrum tear of the left hip and a vertical split tear of the left posterior tibial tendon.  The applicant underwent surgical repair of the hip labral tear in October 2011.  The nurse practitioner stated that there was ample evidence to link the applicant's hip condition with the initial injury he incurred at the National Training Center in 2001 when a chain lift lever supporting an entire tank track popped loose and smacked him in the left tibia just below the knee, and a subsequent injury to his left ankle.  He further stated that the adverse effects of impaired weight-bearing in the applicant's ankle caused that weight to be borne by other weight-bearing joints in his left lower extremity, namely his knee and his hip.

11.  A Physical Review Board medical opinion, dated 23 July 2013, stated the applicant was deployed in 2010.  In his pre-deployment physical he did not mention any issues with his hip (or any other orthopedic problem).  He had minor medical issues evaluated in the theater clinic, but did not have any orthopedic issues.  In his PDHA and PDHRA in 2010 and 2011 respectively, he mentions left ankle and knee pain, but not hip pain.  

12.  U.S. Army Human Resources Command (HRC), Military Personnel Law Attorney, Major AR, in a memorandum dated 27 August 2013, stated that in 2002 the applicant injured his knee while on active duty.  Likewise, in 2008 he injured his ankle.  In October 2011, surgery was performed on his left hip.  Mr. DL, nurse practitioner, stated that ample evidence linked the applicant's knee and ankle injuries to his hip injury.  Dr. MS, National Guard Bureau (NGB) physician, opined that there was no documentation of a specific trauma to his hip.  In the applicant's PDHA and PDHRA there is no mention of hip pain.  After an investigation and reported medical opinions, the applicant's left hip injury was found NLD-NDOM.  The applicant appealed.  Major AR indicated the Commanding General, HRC, should not reverse the finding and that it should remain NLD-NDOM.

	a.  He provided further discussion regarding whether the applicant's labral tear of the left hip began while he was deployed.  He stated that Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 2-6b governs LD investigations.  It states that an injury is presumed to be in the ILD "unless refuted by substantial evidence contained in an investigation."  An ILD determination must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of the fact.





	b.  He stated the investigating officer (IO) concluded that the applicant's hip injury was NLD-NDOM.  The IO reasoned that because the applicant did not cooperate with treatment for his left ankle injury, the alleged secondary hip disability was a result of his own negligence.  Failure to take advantage of treatment led to an aggravated left ankle disability which, in turn, contributed to the labral tear in the left hip.  The IO further supported his finding by explaining that he did not find adequate evidence of the injury in the applicant's service medical records.  No symptoms of the left hip injury were manifested during his deployment.  Lastly, the IO stated that the applicant's civilian profession requires heavy lifting and standing for long periods of time.  His civilian job was likely an intervening cause aggravating the left hip injury.

	c.  Major AR stated that the appointing authority, reviewing authority, and Chief, NGB concurred with the IO's finding.

	d.  He concludes by stating that substantial evidence shows the applicant's labral tear of the left hip did not manifest itself during duty.  The absence of symptoms leads to a conclusion that the left hip injury is acute, NLD-NDOM, and not a long-term degenerative disability.  The proper course of action is to sustain the IO's findings.

13.  An HRC, Director, Casualty and Mortuary Affairs Operations Center letter, dated 3 September 2013, addressed to the applicant stated after a thorough administrative review of the applicant's LD investigation, HRC had determined the finding of NLD-NDOM would stand.  The LD IO concluded that his labrum tear was NLD-NDOM and the appointing, reviewing, and final approval authorities approved the finding.

14.  Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LD status.  This regulation provides, in pertinent part, that the Soldier may appeal, in writing, within 30 days after receipt of the notice of the LD determination required by paragraph 3-12b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, the evidence of record does not support his request.
2.  Not only has the applicant not provided sufficient documentation to support his contention that his hip injury was incurred or permanently aggravated as a result of military service, he has also failed to show that the findings of the LD investigation were incorrect.

3.  In his pre-deployment physical he did not mention any issues with his hip (or any other orthopedic problem).  In his PDHA and PDHRA in 2010 and 2011 respectively, he mentions left ankle and knee pain, but not hip pain.  While it is possible to connect his hip condition to the left lower extremity conditions, there is no documentation that the hip was injured while on active duty or that the hip pain even occurred while on active duty.  Based on the absence of symptoms it appears that the left hip injury was not a long term degenerative disability.

4.  There is no documented evidence that the Army caused or aggravated his hip condition.  The LD determination appears to be appropriate considering all of the facts in this case.  Therefore, there is an insufficient 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)                                         AR20140001810



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ABCMR Record of Proceedings (cont)                                         AR20140001810



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