IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20140004571 


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 award of the Purple Heart based on a concussion injury he suffered in 2010 in Iraq.

2.  The applicant states he was involved in two separate close proximity explosions (2007 and 2010).  Both explosions required him to seek post-incident medical assistance; however, medical providers in theater failed to properly record a concussion injury.  A memorandum from the U.S. Army Human Resources Command (HRC) incorrectly states that his injury was a "result of a tumor present in 2006."  His tumor was discovered in 2010.

	a.  In 2007, he was involved in an improvised explosive device (IED) strike while conducting logistical operations a few kilometers west of Forward Operating Base (FOB) Ramadi, Iraq.  He had severe post-blast symptoms and issues he ignored for mission accomplishment.  His commander, Captain (CPT) H____, noticed symptoms and recommended he receive medical attention.  His medical attention spanning a 5-month period resulted in three trips to the Level II treatment facility on FOB Ramadi, two separate trips to the 86th Combat Support Hospital (CSH) in Baghdad, and four appointments with the ear, nose, throat (ENT) specialist on Fort Stewart, GA.  An magnetic resonance imaging (MRI) of his head found no tumors.  All medical providers acknowledged the concussion symptoms and issued pain medication to assist with his headaches.  

	b.  On 2 February 2010, Joint Security Station (JSS) Sparrow Hawk was hit by an improvised rocket-assisted munition (IRAM).  He was knocked to the ground and can't recall what happened immediately after the blast.  He remained dazed and nauseated for almost two hours after the attack.  The team medic, Sergeant First Class (SFC) C_____, continued to check up on him every now and then to ensure he was all right.  The medical attention for this incident spanned over an 8-month period resulting in two trips to the 4th Battalion, 6th Infantry physician's assistant (PA) located on Contingency Operating Station (COS) Garry Owen.  The PA made a diagnosis of a mild concussion and prescribed Percocet for pain mitigation.  Two separate trips to Task Force 28 Adder Medical located on FOB Adder resulted in a diagnosis of an ear infection and prescription of vicodin for pain mitigation.  Sinus, mastoid, and C-spine 
X-rays conducted at Fort Riley, KS were ordered, but he was denied an MRI due to a short permanent change of station timeline.  Once at Kenner Army Health Clinic, Fort Lee, VA he had three additional appointments to include an MRI, which led to the discovery of a brain tumor.

	c.  He states his injuries fall under paragraphs 4b(1) and (2) of Army Directive 2011-07, dated 18 March 2011.  After both explosions he did not seek immediate aid due to the myriad of tasks and mission requirements expected of him.  Nevertheless, the injuries did eventually drive him to seek medical care.

3.  The applicant provides his Officer Record Brief and 20 exhibits in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a CPT in the Regular Army.  

2.  He deployed to Iraq with the 1st Marine Expeditionary Force (MEF) from 
10 January 2007 to 9 February 2007 and with the 2nd MEF from 10 February 2007 to 2 April 2008.  He provided the following documents concerning an incident that occurred in February 2007.

	a.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 20 November 2007, shows the applicant was seen at the 86th Combat Support Hospital (CSH) Clinic.  

       (1)  According to the 86th CSH Diagnostic Audiology Report the applicant reported to the clinic with an ENT consult for persistent left ear hearing loss for 
4 months with tinnitus, pain and pressure.  He had been treated with Augmentin (an oral antibacterial used to treat bacterial infections) 2 months earlier with no improvement.  He reported slight drainage the previous night.  He denied a history of ear infections.  He reported a 6-year history of left ear high-frequency hearing loss since acoustic trauma from Gulf War and received an H2 rating ("H" refers to hearing and the numeral "2" indicates that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty) in November 2006.

		(2)  The results were indicative of unilateral left ear mixed hearing loss moderate to moderately severe in degree.  Immittance was indicative of flat type B abnormal middle ear function for his left ear, consistent with a history of left ear hearing loss with ongoing ear infection in the left ear.

		(3)  Recommendations included an ENT evaluation and retest within 
3 months or as medically directed following treatment.

	b.  An SF 600, dated 22 November 2007, shows the applicant was seen at the 332nd Expeditionary Medical Group (EMDG).  The assessment/plan (A/P) was otitis media.  Comments included "persistent otitis media (middle ear infection), effusion, hearing loss for past month, no relief with drops, plan for PE (pressure equalization) tube left side, discussed procedure, patient wants to proceed."

	c.  An SF 600, dated 1 December 2007, shows the applicant was seen at the 332nd EMDG.  The A/P was otitis media, now resolving.  Discussed options of placing PE tube or monitoring, patient would rather monitor for 1 month then repeat audio and follow up with ENT.

	d.  A sworn statement, dated 27 February 2013, shows the applicant stated that in late February 2007 he was commanding a combat logistics patrol returning from the city of Hit located in the Al Anbar province of Iraq.  

		(1)  He had exited his vehicle and quickly re-masted an antenna.  As he turned to reenter his vehicle, an IED detonated under the armored security vehicle (ASV) to their front causing extensive damage to the left front of their vehicle.  The Corps supply push security element immediately went into their "react to contact" drill, securing the vehicle crew and preparing the damaged vehicle for recovery.  

		(2)  He jumped back into his vehicle to gain command and control of his element and make sure everyone was alright.  He realized that his hearing was diminished to the point where it was hard for him to communicate with his crew and understand radio transmissions.  Over the next 3-4 months his hearing did not improve and a dull pain started to develop in and around his left ear.  His company commander at the time, CPT H____, noticed his problems and immediately directed him to the Ramadi Level II Medical Treatment Facility (MTF).
		(3)  The Army doctors and PAs conducted numerous hearing and balance tests over a 3-day time span.  The final results were inconclusive and he was evacuated to Baghdad for further assistance.  While in Baghdad he was given a hearing exam and balance test, then flown to see an ENT specialist.  The ENT doctor acknowledged the severe tinnitus, balance and hearing issues but decided to try a procedure to place a tube in his left ear.  This was aborted after the doctor tried to cut into his ear drum and found that it was too damaged for the procedure.  After surgery and a day or two of recovery, he was prescribed Percocet for pain management and flown back to his unit.  During the remaining months of the deployment, the hearing loss and pain issues were never resolved.

		(4)  Upon their return to Fort Stewart,GA and during the unit's reintegration process, he was evaluated by the ENT at Winn Army Hospital, Fort Stewart.  An MRI of his head was done in April of 2008.  No abnormalities were identified and he continued to serve with the symptoms, assuming the damages were irreparable effects from a combat zone.

	e.  A sworn statement, dated 11 July 2013, from Major (MAJ) H____ shows she stated: 

		(1)  She did not arrive at Ramadi until after the incident of late February 2007.  However, she received more details that the applicant was actually out of the vehicle at the time of the blast and was experiencing some residual ear pain. He complained of a constant ringing in his ear as well as localized ear pain.  

		(2)  She directed him to the Ramadi Level II MTF.  She assumed it was an ear infection since they had recently arrived in theater and everyone seemed to get sick.  The PAs there conducted several diagnostic tests and determined that it was more severe than a simple ear infection.  He was evacuated to Balad for further testing.  Upon his return he said that there was really no change.  She continued to notice substantial hearing damage throughout the remainder of the deployment.

3.  He deployed to Iraq with the 1st Brigade, 1st Infantry from 19 September 2009 to 17 July 2010. 

4.  On 1 February 2013, he was assigned to the U.S. Army Sustainment Command (USASC), Rock Island Arsenal.

5.  A DA Form 4187 (Personnel Action), dated 20 June 2013, was submitted by the applicant for award of the Purple Heart for wounds/injuries received in action caused directly by the enemy.  The request referenced Army Regulation
600-8-22 (Military Awards) and Military Personnel Message 11-126, dated 
29 April 2011.  The following information was provided:

* date of incident:  2 February 2010
* location of incident:  Amarah, Maysan Province, Iraq
* description of incident:  IRAM attack

6.  He was assigned to Military Transition Team (MiTT) 10508 at the time of the incident.  The DA Form 4187 was signed by the applicant on 20 June 2013 and shows the:

* Commander, Distribution Management Center, USASC recommended approval on 1 July 2013
* Commander, USASC recommended approval on 6 September 2013
* Command Surgeon, USASC recommended disapproval due to contradicting information 

7.  The following documents were submitted with the DA Form 4187.

	a.  An SF 600, dated 24 June 2010, shows the applicant was seen at the 
Task Force (TF) 28 Adder Medical Clinic for hearing loss in his left ear for the last month.  

		(1)  The applicant had a permanent H2 profile due to an explosion and was seeking pain management.  His history included environmental exposure to an IED explosion and hearing loss from his last deployment.

		(2)  The A/P was otitis media nonsuppurative mucoid.  Comments included:  antibiotics as ordered, vicodin for severe pain and follow-up if he developed pain around the ear, jaw, fever, pain worsening, or any concerns.  Recommended follow-up at next stop in theater soon, follow-up in 10 days.  Discussed signs and symptoms of mastoiditis (the result of an infection that extends to the air cells of the skull behind the ear).

	b.  An SF 600, dated 2 September 2010, shows the applicant was seen at the Kenner Army Health Clinic, Fort Lee, VA, for equilibrium issues/unilateral deafness.  

       (1)  The applicant reported that while he was deployed he lost all hearing in his left ear and had some decreased hearing and tinnitus for several hours.  He also had occasional sharp pain in his left ear, at times he felt a little like the room was moving, had occasional sharp shooting pain in his scalp behind his ear, and 

the tip of his tongue felt a little numb at times.  He was exposed to a few bomb blasts while deployed.

		(2)  The A/P was hearing loss and tinnitus left ear.  For his headache he was given a prescription to obtain an MRI of the brain and left external auditory canal.  He was to schedule an appointment for follow-up a day or two after the test was completed.

	c.  A sworn statement, dated 15 March 2013, shows Lieutenant Colonel (LTC) B________ stated: 

		(1)  He was present during the 2 February 2010 IRAM attack at JSS Sparrow Hawk.  The explosion was in fact closer in proximity to the unit where the applicant was located.  None of his MiTT were injured and he received no injury reports from any of his subordinate elements after they conducted accountability reporting.  However, several days later one of his subordinate MiTT commanders contacted him and informed him that he was sending the applicant back to COB Adder to get checked out for some dizziness from the IRAM attack.

		(2)  He later talked to the applicant and inquired as to how he was doing and he had some complaints of headaches and dizziness, but was going to Soldier through the issue.  As a course of action, this attitude was prevalent with all the subordinate MiTT teams as medical care was always problematic for any issues other than urgent care.

		(3)  During the 5-day reintegration process at Fort Riley, the medical staff asked if anyone in the redeploying MiTTs had suffered a concussion or blast issues and if they reported the condition they were asked to subsequently explain their individual situation.  The staff advised affected members to wait until they arrived at their next duty station, and he believed blast or concussion information was recorded in their records.

		(4)  LTC B________ stated he did not conduct reintegration operations with the applicant as they redeployed several weeks before.

	d.  A sworn statement, dated 12 June 2013, shows the applicant stated JSS Sparrow Hawk was attacked by hostile elements of the Jaish Al Mahdi on 2 February 2010.  

		(1)  He was knocked to the ground and can't recall what happened immediately after the attack.  When SFC C_____ checked him for injuries, he was still dazed and the nausea began to subside.  He recalls just wanting to sit still and drink some cool water.  SFC C_____ continued to check on him and an hour later he went to bed.

		(2)  After 2 days he still had really bad headaches and some balance issues.  He reported his issues to SFC C_____ and he suggested they see the PA at COS Gary Owen, Al Amarah Iraq.  The PA diagnosed a concussion and suggested he take it easy for a few days.  He also prescribed Percocet for pain mitigation.  After about a week, the medication helped slightly with the headaches, but by then he was also taking Excedrin Migraine twice a day to take the edge off.

		(3)  A month later he was seen by a doctor at FOB Adder's CSH.  The doctor recommended that he seek additional medical care at Fort Riley upon redeployment.  The doctor prescribed additional pain medication and antibiotics for a possible ear infection.  During the remaining two and a half months of deployment, the headaches, hearing loss, and balance issues were never resolved.

		(4)  During the 5-day reintegration process at Fort Riley, the medical staff scheduled a set of sinus, mastoid, and c-spine x-rays.  He did not receive an MRI until 10 September 2010 at Fort Polk which by chance exposed a 4-centimeter brain tumor.  Since removal of the tumor on 22 October 2010 he still has periods of imbalance and controllable headaches.  He is completely deaf in his left ear and on a daily basis experiences reduced left side facial movement.  He has reduced vision in his left eye and persistent neck aches due to emplaced medical hardware and muscular scar tissue.  After such an intense surgery and long recovery period, he does not know which ailments are from his original issues from Iraq and which are post-surgical.

	e.  A sworn statement, dated 12 June 2013 from SFC C_____, the team medic, shows he stated:  

		(1)  He served on an 11-man MiTT with the applicant in the Maysan Province just north of Basra, Iraq.  He was present during the attack on 
2 February 2010 when an IRAM hit about 400 meters from them.  The applicant had just come out of the latrine area that was not protected from the blast impact.

		(2)  After that night and for several days, the applicant suffered from vertigo and complained of headaches.  SFC C_____ felt the applicant had a concussion at this time.  He treated him for his symptoms and took him to the PA at COS Gary Owen who also treated him for headaches and vertigo.  He also took the applicant to the CSH at FOB Adder where he was examined and released with a diagnosis of an ear infection.  He was prescribed pain medication, antibiotics, and told due to his MiTT status to wait until he got back to Fort Riley for further evaluation.

	f.  A sworn statement, dated 12 June 2013, from SFC L___ shows he stated the applicant was his direct supervisor on an 11-man MiTT in the Maysan Province north of Basra, Iraq.  He was present on 2 February 2010 when the unit was attacked and an IRAM hit about 500 meters from their camp.  After the attack he knew SFC C_____, the team medic, took the applicant to see the PA at COS Garry Owen and to the CSH on FOB Adder for headaches and hearing problems.  He remembers the applicant complaining of really bad headaches.  

8.  A memorandum, dated 19 December 2013, for the Commander, USASC, from HRC disapproved the request for award of the Purple Heart.  HRC determined the applicant's injury was the result of a tumor present in 2006.  The issues mentioned are all side effects of hearing nerve irritation, which progressed as the tumor enlarged over the years.  

9.  A memorandum, dated 6 March 2014, from Headquarters, USASC, states the Command Surgeon reviewed HRC's denial of the Purple Heart and all available pertinent date, e.g., medical records, sworn statements, etc.  The Command Surgeon concluded the applicant's health immediately following the blast exposure was entirely consistent with concussion.  The diagnosis of a 4-centimeter benign tumor 7 months later should correctly be considered an incidental finding. The only missing piece is the lack of medical documentation.

10.  Army Directive 2011-07, dated 18 March 2011, provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions.  When recommending and considering award of the Purple Heart for concussion injuries, both diagnostic and treatment factors must be present and documented in the Soldier's medical record by a medical officer.  Paragraph 4b provides a nonexclusive list of examples of medical treatment for concussion that meet the standard of treatment for award of the Purple Heart.  Two of the examples listed are:

* limitation of duty following the incident (limited duty, quarters, etc.)
* pain medication, such as acetaminophen, aspirin, ibuprofen, etc., to treat the injury

11.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  A wound is defined as an injury to any part of the body from an outside force or agent sustained as a result of hostile action.  Paragraph 2-8g(5) states that concussion injuries caused as a result of enemy-generated explosions may justify award of the Purple Heart.

DISCUSSION AND CONCLUSIONS:

1.  An SF 600, dated 20 November 2007, reports a history of left ear high-frequency hearing loss for 6 years since the Gulf War and that the applicant had a permanent H2 profile since November 2006.  SF 600s, dated 22 November and 1 December 2007, show continued treatment for otitis media.  There is no evidence his hearing loss was attributed to an IED explosion or that he was treated for a concussion.

2.  According to MAJ H____'s statement, she was not present during the IED explosion in 2007.  She referred the applicant for treatment based on his complaints of ringing in his ears and ear pain.  Her assessment (not a medical assessment) was possible ear infection because others were getting sick soon after their recent arrival in theater.

3.  The SF 600, dated 24 June 2010, shows an A/P for otitis media nonsuppurative mucoid.  There is no mention of injury caused by a concussion or explosion.

4.  The SF 600 dated 2 September 2010 shows an A/P for hearing loss and tinnitus left ear.  There is no mention of injury caused by a concussion or explosion.  He was to have obtained an MRI and scheduled a f/u a couple days after.  He did not submit evidence of this f/u appointment or the results of the MRI.

5.  According to LTC B________'s statement he was not a witness to how close the applicant was to the explosion or how it affected him at the time.  It was only later that he talked to the applicant who had some complaints of headaches and dizziness.

6.  The applicant contends SFC C_____ took him to COS Gary Owen where the PA diagnosed him with a concussion, suggested he take it easy for a few days, and prescribed Percocet for pain mitigation.  However, SFC C____ stated the PA treated the applicant for headaches and vertigo, made no mention of a diagnosis, and when he took him to the CSH he was examined and released with a diagnosis of an ear infection.

7.  The medical records he submitted show he was diagnosed with otitis media and treated for hearing loss and tinnitus.  According to his statement, this condition ultimately led to surgery on 22 October 2010 for removal of a tumor.

8.  In view of the above, there are insufficient diagnostic and treatment factors for a concussion injury present and documented in the Soldier's medical records to award the Purple Heart in this case.

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)                                         AR20140004571



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ABCMR Record of Proceedings (cont)                                         AR20140004571



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