IN THE CASE OF:	  

		BOARD DATE:	  22 October 2014

		DOCKET NUMBER:  AR20140008449 


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, correction of his DD Form 261 (Report of Investigation - Line of Duty (LOD) and Misconduct Status), dated 9 January 2013, to show his disease was "In Line of Duty" instead of "Not in Line of Duty - Not Due to Own Misconduct."

2.  The applicant does not make a statement.  However, he refers to a statement made by an individual he describes as his mother, who states she spoke to several people to include Captain Axxxxxx and asked "if the MRI (magnetic resonance imaging) had been done in Germany like the PA [physician assistant] told her son to do…would his orders have been amended?"  The injustice is that the PA did not do what he was supposed to do; the applicant was left in the sick bay for 9 days.  He was not medically evacuated to the nearest hospital for an MRI; the nearest hospital was 4 hours away. 

3.  The applicant provides:

* DD Form 261, dated 9 January 2013
* Medical statement, dated 25 April 2013, from Dr. S.A. Con---
* Personal email, dated 12 and 29 April 2013
* Response to his appeal from the U.S. Army Human Resources Command (HRC), dated 18 March 2014
* Self-authored statement titled "Appeal," dated 30 April 2014 
* Congressional correspondence, dated 1 May 2014
* Statement, dated 5 May 2014, which appears to be from his mother

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Florida Army National Guard (FLARNG) on 15 August 2008.  He was trained in and held military occupational specialty 11B (Infantryman). 

2.  He was ordered to active duty on 2 January 2010.  He served in Kuwait/Iraq from 1 March to 17 December 2010.  He was honorably released from active duty on 10 January 2011 to the control of his State ARNG unit.  

3.  His records contain a DD Form 261, dated 9 January 2013.  It shows he was a member of Company C, 1st Battalion, 124th Infantry, on temporary duty (TDY) status from 28 July to 11 August 2012 in Germany.  He injured his knee on 
1 August 2012, while TDY.  The investigating officer (IO) indicated that if an MRI had been given at the location, his condition may have been found earlier and treatment would have started in Germany.  He indicated in item 18 (Findings) that the disease was "In Line of Duty."  The IO placed his name, signed this form, and forwarded the DD Form 261 to the appointing authority.  

4.  On 19 February 2013, the case was reviewed by a surgeon at the National Guard Bureau (NGB).  By memorandum, the NGB surgeon forwarded his medical opinion to the State Joint Force Headquarters.  He stated/opined: 

	a.  The member was on TDY orders from 28 July to 11 August 2012.  During the period of the orders, the member was evaluated for a knee injury.  There is no documentation of an injury from the period of orders other than a DD Form 689 (Sick Call Slip) which lists the knee injury.  The member was later evaluated after training on 27 August 2012 and diagnosed with knee sprain and effusion.  As of September 2012, he was diagnosed with an osteosarcoma in the left proximal tibia.  "Not Due To Own Misconduct (NLD: NDOM)."

	b.  The medical documentation supports the diagnosis of osteosarcoma of the left proximal tibia.  However, the findings are not associated with the knee injury that may have been sustained on 2-week TDY orders.  It is more likely that the member's pain was associated with the tumor and clearly this is a condition that existed prior to service (EPTS).

5.  On 3 May 2013, the appointing authority reviewed the DD Form 261 and allied documents and stated that he agreed with the findings of the IO.  The appointing authority placed his name, signed this form, and forwarded the DD Form 261 to the reviewing authority.  

6.  On 7 May 2013, the reviewing authority reviewed the case but disapproved the findings and recommendations.  He made the following statement, placed his name, signed this form, and forwarded the DD Form 261 to the approving authority.   

With additional documents uploaded, I still do not concur with IO's findings of In-LOD.  The IO originally stated that if an MRI was administered during the 3-week ODT (not at all standard medical protocol for a knee sprain), then cancer would have been" identified" while on active duty.  Whether the cancer was found during the ODT has no bearing on the fact that there is no evidence that the cancer was either caused or aggravated while in a military duty status.  Additional documentation provided by Soldier's attending Oncologist states "I believe that his initial injury on 8/1/12 was related to the osteosarcoma" suggesting that there was no injury during training but rather symptoms of the cancer developing/manifesting.  The physician further states "I believe his condition and symptoms would be aggravated by active duty military exercises."  This statement clearly differs from "was aggravated in line of duty."  Per State Surgeon, a knee sprain simply would not aggravate/worsen cancer.

7.  On 9 May 2013, the approving authority reviewed the case and stated that in accordance with Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations), chapter 2-6, paragraph 6(c), "Line of Duty Determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of the fact."  The approving authority approved, on behalf of the Secretary of the Army, a finding of "Not in Line of Duty - Not Due to Own Misconduct" for left knee proximal tibia osteosarcoma.  

8.  Also on 9 May 2013, by memorandum, the approving authority notified the State Joint Force Headquarters of the disapproval.  The approving authority stated: 

	a.  The member's final LOD determination was "Not in Line of Duty - Not Due to Own Misconduct for Left Knee Proximal Tibia Osteosarcoma." 

	b.  There is no evidence that links his condition to military service.  In accordance with Army Regulation 600-8-4, chapter 2-6, paragraph 6(c), "Line of Duty Determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of the fact."  There is no documentation of an injury from the period of orders other than a DD Form 689 which lists a knee injury.  He was later evaluated after Annual Training (AT) on 27 August 2012 and diagnosed with a knee sprain and effusion.  As of September 2012, he was diagnosed with an osteosarcoma in his left proximal tibia.  The medical documentation supports the diagnosis of osteosarcoma of the left proximal tibia.  However, the finding is not associated with the knee injury that may have been sustained on 2-week TDY orders.  It is more likely that his pain was associated with the tumor and clearly this is an EPTS condition.

	c.  The member should be provided a copy of the final LOD determination by certified mail and informed of the right to appeal.  If he appeals the LOD determination, he must sign the appeal unless physically unable to do so.  The appeal process must be in accordance with Army Regulation 600-8-4, paragraph 4-17a, and must be forwarded to arrive at the NGB Headquarters within 30 days of receipt.  He may also request an extension of the 30 days.  Any request must be in writing and fully justified prior to the end of the 30-day period. 

9.  It appears he submitted an appeal at some point.  On 18 March 2014, by memorandum, the HRC Director of Casualty and Mortuary Affairs Operations Center responded to his appeal.  He stated: 

	a.  After a thorough administrative review of the enclosed LOD Investigation, HRC determined the finding of "Not in the Line of Duty-Not Due to Own Misconduct" will stand.

	b.  The LOD IO concluded that the applicant's diagnosis of Proximal Tibia Osterosarcoma of the left knee was In-LOD and the Appointing Authority agreed. However, the Reviewing and Final Approval Authorities found his condition "Not in the Line of Duty-Not Due to Own Misconduct."

	c.  While serving on TDY orders from 28 July 2012 to11 August 2012, the applicant reported a fall and twisting his left knee during a ruck march.  At that time he denied any other knee trauma or pre-existing knee pain.

	d.  On 3 August 2012, he was examined at Landstuhl Regional Medical Center for his knee injury.  An X-ray was performed and read as "unremarkable." He was prescribed a non-steroidal anti-inflammatory drug (NSAID) and given a 
14-day profile with no running, jumping, marching, and etc.  

	e.  On 27 August 2012, he was reevaluated and diagnosed with a knee sprain and effusion.  In September 2012, he was diagnosed with left proximal tibia osterosarcoma.  
	f.  According to the HRC Surgeon General's office medical opinion, this tumor was already present prior to 27 July 2012.  Tumors take months, even years to develop; as such, this disease was an EPTS condition.  While it may be true that an MRI could have found the disease, medical documentation provides no evidence linking the disease to activities while in a duty status.

	g.  Army Regulation 600-8-4, paragraph 4-8 states for an injury/illness to be considered In-LOD, it must have been sustained while on active duty or aggravated as a result of military service.  There is no evidence presented to indicate his disease was either service-connected or service-aggravated.

10.  The applicant provides: 

	a.  A statement, dated 25 April 2013, from Dr. S.A. Con---, Program Director, Orthopaedic Surgery Residency Program Assistant Professor, Division of Musculoskeletal Oncology, Department of Orthopaedics and Rehabilitation University of Miami Miller School of Medicine indicates the applicant was seen by her for initial consultation on 13 September 2012 regarding a left proximal tibia lesion.  He reported a history of left knee pain sustained after a twisting injury which occurred abroad (Hohenfels Army Base in Germany) while serving in the United States Army.  Since that time, he reported worsening pain, progressive difficulty weight bearing, and decreased range of motion of the knee.  His physical exam, radiographs, and MRI were highly suspicious for a neoplastic lesion in the proximal/left tibia and he subsequently underwent a biopsy, which confirmed a high-grade osteosarcoma of the tibia.  At his request, she reviewed his previous medical records which pertain to the onset of his knee pain including a radiograph report from 8/3/2012 and clinical notes from 8/1/2012, 8/5/2012, 8/8/2012, and 8/9/2012.  Given the extent of disease demonstrated on the imaging studies at her diagnosis and her experience with this disease, she believes that his initial injury on 8/1/12 was related to the osteosarcoma and she believes his condition and symptoms would be aggravated by active duty military exercise.

	b.  A statement, dated 5 May 2014, addressed to the Board, from an individual who claims to be the applicant's mother, states she and her son, the applicant, have done everything possible to get you (presumably the Board) to understand the injustice that was done to the applicant.  They all know this was pre-existing, but it was misdiagnosed in Germany.  He was left in sick bay at Hohenfels (Army) Base for 9 days because he was going back to the States and was told by the PA that he could take care of it there.  The PA would not go the extra mile for a Reserve Army National Guard.  If the PA at Hohenfels (Army) Base in Germany had medically evacuated her son to Landstuhl Regional Medical Center (4 hours away) and done the LOD correctly, her son's orders would have been amended, and he would not be going through the hardship they have been going through since August 2012.  

11. The applicant also provides an unsigned self-authored Memorandum for Record, dated 30 April 2014.  He states he has received the final LOD determination dated 18 March 2014 which found him "Not in the Line of Duty-Not Due to Own Misconduct."  He plans to appeal the decision to the Army Review Boards Agency.  The purpose of this memorandum is to request that this determination be changed to In-LOD.

	a.  While serving on active duty from 28 July to 18 August 2012, he fell and hurt his knee during a ruck march.  Even though he was in considerable pain, he was given Ibuprofen and an X-ray.  Eventually, in September 2012, he was diagnosed with left proximal tibia osteosarcoma.  

	b.  Even though a doctor has not labeled his condition as EPTS, he is not arguing that his cancer formed during active duty.  He is saying that his cancer was aggravated by his active duty service.  According to Army Regulation 
600-8-4, paragraph 2-6b, "…an injury, disease, or death is presumed to be In-LOD unless refuted by substantial evidence contained in the investigation."  Paragraph 4-8(e) states 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 Line of Duty."  He has a letter from Dr. Con---, the Program Director for the Orthopaedic Surgery Residency Program at University of Miami.  She was one of the doctors who treated him and she reviewed his medical records.  She believes, based on the medical records and her expertise, "that my (the applicant's) condition (osteosarcoma) was aggravated in the line of duty by active duty military exercises."  For this reason, he should be found in the LOD.  There has been no evidence presented to refute the presumption of service aggravation.  

12.  Army Regulation 600-8-4 prescribes policies, procedures, and mandated tasks governing LOD determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses. 

	a.  Paragraph 2-6b states an injury, disease, or death is presumed to be In- LOD unless refuted by substantial evidence contained in the investigation.

	b.  Paragraph 2-6c states LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact, considering all direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or all indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions may be drawn to establish an unobserved fact, knowledge, or state of mind.

13.  Information obtained from the Bone Cancer – National Cancer Institutes website indicates that although bone cancer does not have a clearly-defined cause, researchers have identified several factors that increase the likelihood of developing these tumors.  Osteosarcoma occurs more frequently in people who have had high-dose external radiation therapy or treatment with certain anti-cancer drugs.  A small number of bone cancers are due to heredity.  Additionally, people who have hereditary defects of bones and people with metal implants, which doctors sometimes use to repair fractures, are more likely to develop osteosarcoma.  

14.  Army Regulation 15-185 governs the operation of the Army Board for Correction of Military Records (ABCMR).  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.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  While TDY in Germany from 28 July to 11 August 2012, the applicant reported a fall and twisting his left knee during a ruck march.  At that time he denied any other knee trauma or pre-existing knee pain.  He was examined at Landstuhl, Germany, on 3 August 2012, for his knee injury.  An x-ray was performed and read as "unremarkable."  He was prescribed NSAIDs and given a 14-day profile with no running, jumping, marching, and etc.  He was reevaluated on 27 August 2012 and diagnosed with a knee sprain and effusion.  In September 2012, he was diagnosed with left proximal tibia osterosarcoma.  His injury was determined to be "Not In Line of Duty - Not Due to Own Misconduct." 

2.  A medical opinion by the NGB Surgeon, dated 19 February 2013, determined his injury was "Not Line of Duty, Not Due to Own Misconduct."  This is based on the likelihood that the applicant's condition (osteosarcoma) was an EPTS condition.  It is unreasonable to presume that the cause or aggravation of the applicant's condition is connected to his military service.

3.  According to the U.S. Department of Health, osteosarcoma is an uncommon malignant bone tumor accounting for only one percent of all cancers diagnosed annually in the United States.  However, osteosarcoma is the most common bone cancer in children and in the second decade of life.  The applicant was diagnosed at approximately age 23.

4.  The applicant provides correspondence from his treating physician, Dr. S.A. Con--- that provides an opinion that "his condition and symptoms would be aggravated by active duty military exercises."  This opinion can be argued.  The clinical manifestation of osteosarcoma often presents as joint pain for several months in duration.  The applicant's complaint of joint pain spanned over several days and was due to the reported trauma.  Based on information from the National Institutes of Health, it appears that the traumatic event given in the applicant's history did not cause the bone cancer but called it to the applicant's attention.

5.  Osteosarcoma lacks specific clinical findings therefore imaging studies with the use of the MRI was not clinically indicated at the time of injury.  It is most likely that the applicant's pain is from the natural progression of disease and not the result of trauma.

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)                                         AR20140008449



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140008449



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1