IN THE CASE OF:	  

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140020125 


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.

2.  The applicant states he was denied award of the Purple Hear for combat injuries he sustained while deployed in support of Operation Iraqi Freedom.  

	a.  In accordance with Army Regulation 600-8-22 (Military Awards), paragraphs 2-8b(4) and (5), and 2-8g(1), (2), and (5), he has met the criteria for award of the Purple Heart.  He was involved in an explosively formed projectile (EFP) attack while on patrol in Iraq on 4 January 2009.  He received musculoskeletal injuries as well as mild traumatic brain injury (TBI).  He was treated for his injuries by medical personnel immediately after and in the days and months following the incident.  

	b.  He was medically retired for various injuries, including the musculoskeletal injury he sustained that was determined by the Physical Evaluation Board (PEB) to be unfitting and to have been sustained in combat.  In addition, he will also be receiving combat-related special compensation (CRSC) for this injury.  This injury has required many years of treatment to include several invasive treatments to reduce pain. 

3.  The applicant provides:

* Orders Number 079-672, dated 19 March 2008
* two Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 5 January 2009 and 23 January 2009
* DA Form 2823 (Sworn Statement), dated 5 May 2009
* DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 4 June 2014
* Orders Number 191-1143, dated 10 July 2014
* DA Form 4187 (Personnel Action), dated 7 August 2014
* letter from the U.S. Army Human Resources Command (HRC), Soldiers Programs and Services Division, dated 26 September 2014
* Enlisted Record Brief (ERB)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 July 2001, held military occupational specialty 11B (Infantryman), and attained the rank/grade of staff sergeant (SSG)/E-6.  

2.  He provided Orders Number 079-672, issued by U.S. Army Garrison Baumholder, Germany on 19 March 2008, which show he was deployed in a temporary change of station (TCS) status to Task Force 2-6 Infantry, 2nd Brigade, 1st Armored Division, Iraq, with a will proceed date of on or about          5 April 2008.

3.  His ERB confirms he served in Iraq from 1 April 2008 to 14 May 2009.  

4.  He provided SFs 600, dated 5 January 2009 and 23 January 2009, which show:

	a.  On 4 January 2009, the applicant was involved in an EFP strike.  When he was seen by medical personnel later that day, he stated he had a minor headache of short duration that was probably due to the way he slept, he had neck pain that felt like a mild stinging sunburn sensation on the posterior left side of his neck, and he had left forearm and elbow pain mainly with flexion and palpitation and an area of minor abrasion on the posterior, lateral, and distal of his left elbow from being struck by an unknown debris/fragment during an EFP strike.  

   b.  The applicant was seen and screened for mild TBI with Military Acute Concussion Evaluation (MACE) testing.  The applicant stated he felt his left forearm and posterior left side of neck struck by fragment/debris during EFP strike on the armored vehicle he was riding in and he complained of hearing loss that had improved from an inability to hear at the time of the incident to muffled sounds at the time of the screening.  The ringing in his ears had also been constant since the time of the incident.  There were no other positive MACE symptoms indicating Mild TBI reported or found.  

	c.  On 5 January 2009, his doctor stated that 5 minutes of physical exertion produced no positive signs of mild TBI.  Furthermore, the applicant stated hearing loss had completely resolved overnight and he no longer complained of ringing or noticeable hearing loss.  The pain from the minor abrasions he received to his neck and forearm had also improved.  He was told he should follow up with a doctor for any return of tinnitus, diminished hearing or if he experienced any TBI symptoms.

		(1)  His problems were listed on his medical records as:

* ringing in ears (tinnitus)
* superficial injury – abrasion of left forearm
* superficial injury – abrasion of neck on left side

		(2)  The doctor indicated the applicant no longer noticed any hearing loss or ringing of the ears, and he was not suffering from lightheadedness, dizziness, vertigo, or fainting.  The applicant was not suffering from a decrease in concentrating ability, there was no decrease in consciousness, no confusion or disorientation, he was not frequently becoming lost, he was not suffering from memory lapse or loss, he was not experiencing periods of lost time, he was repeatedly questioning recent events, he had no focal disturbances, no speech difficulties, and no motor disturbances.  He was noted to have good coordination and no sensory disturbances. 

		(3)  His medical records did not specifically indicate a diagnosis of mild TBI at this time.  Additionally, there was no indication that he suffered from a loss of consciousness or he was capacitated for 48 hours of more as a result of a mild TBI injury.  

	d.  On 23 January 2009, the applicant was seen for right lateral forearm pain he had been experiencing since 2004.  The applicant stated he was in an EFP attack in January 2004 and the equipment fell into his forearm.  

5.  The applicant provided a DA Form 2823, dated 5 May 2009, wherein he stated, on 4 January 2009, the armored vehicle he was riding in was hit by an EFP on the rear right edge of the vehicle near where he was sitting.  He heard the impact, saw the inner armor collapse in, and the Crew Vehicle Receiver Jammer (CVRJ) was nearly knocked off its mount.  He had his arm resting on the CVRJ and felt something hit his arm just below his elbow causing pain and something else hit the back of his neck causing pain.  He told another Soldier about his arm and the Soldier pulled up the applicant's sleeve and noted that the applicant had a bruised arm but was not bleeding.  The applicant went on to describe the remainder of the mission, which he completed prior to being seen by the unit medic, who he stated had informed him that there were "broken bones or other injury requiring immediate attention…[and that the applicant]… would need further medical examination as soon as [his unit] returned…" to Combat Outpost Cahill.

6.  His record does not contain any evidence to show he applied for or was awarded CRSC.  

7.  His record contains a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) and an undated memorandum (Line of Duty Investigation).  These documents show he was treated in a hospital on 4 December 2012 for severe trauma to the lower left extremity (foot) as a result of a motorcycle accident and the injury he sustained to his foot was determined to be in the line of duty-yes. 

8.  His record contains an SGLV Form 8600 (Servicemembers’ Group Life Insurance Traumatic Injury Protection Program (TSGLI)), dated 20 February 2013.  The applicant described his traumatic injury on this form by stating:

On 4 December 2012, at approximately 0745, while traveling west on [his] motorcycle down Arrow Highway just before Barranca Avenue in Glendora, CA [he] was struck on the left side by a car making a left turn that did not see [him].  [His] lower left leg was crushed between the car and [his] motorcycle.  The collision threw [him] approximately 20 feet.  [He] sustained a broken ankle and several deep lacerations to [his] left leg.  [He] also sustained fractures to [his] right elbow and right wrist.  [He] was evacuated to Citrus Valley Emergency where it was also found [he] had lost almost all [the] circulation to [his] left foot.  Unable to handle [his] injuries [he] was then moved to Harbor UCLA for further treatment.  After several days, doctors were only able to restore about half the circulation to [his] left foot.  Doctors found that [his] ankle and foot had become infected and the majority of the muscles and tissue were dyeing due to inadequate circulation.  The final decision was that [he] required a below the knee amputation of [his] entire left foot to ensure the removal of all dead, dying and infected tissue in [his] ankle and foot.  The amputation was performed on 8 December 2012 and was then formalized on 15 December 2012.

9.  His record contains a seven-page Medical Evaluation Board (MEB) narrative summary (NARSUM), dictated on 13 June 2013, and stating he was being referred into the Integrated Disability Evaluation System for left below the knee amputation secondary to a motorcycle accident in December 2012.  

	a.  His NARSUM listed the following conditions/diagnoses not meeting medical standards:

		(1)  Status post left below the knee amputation, healed.  The onset of this condition began on 4 December 2012.  It is unlikely he will be able to return to his MOS as an 11B.  The service member cannot run, patrol or ruck and is unsure of how much he can lift or carry at this time.  The service member is being referred to the PEB based on Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-13a(1)(b) as the persistence of symptoms prevent service member from being able to perform the functions of his MOS and physical training.

		(2)  Healed distal right fibular fracture – Post-traumatic change - tibiofibular change.  The onset of this condition began in August 2003.  The service member reports pain with running and that he has right ankle swelling with prolonged running and has to ice his ankle and take Ibuprofen.  The service member is being referred to the PEB based on Army Regulation 40-501, paragraph 3-41e(1) as persistence of symptoms prevent service member from being able to perform the functions of his MOS and physical training.

	b.  His NARSUM listed the following conditions/diagnoses which met medical standards:

		(1)  Left elbow stable joint extensor carpi radialis brevis, no effects on MOS, not medically disqualifying.

		(2)  No right elbow fracture found, no effects on MOS, not medically disqualifying.

		(3)  Normal lumbar spine exam no lower extremity radiculopathy, normal exam, normal x-ray of lumbar spine, no effects on MOS, not medically disqualifying.

		(4)  Normal hearing with subjective tinnitus, not medically disqualifying.

		(5)  Nondisplaced fracture of the right wrist scaphoid, healed without complication, no effects on MOS, not medically disqualifying.

		(6)  Mild OA right knee, stable joint, not medically disqualifying.

		(7)  Chrondromalacia patella left knee, stable joint, currently asymptomatic, not medically disqualifying.

		(8)  Allergic rhinitis, present since 2009, prescribed Zyrtec, no significant allergy symptoms reported at this visit, not medically disqualifying.

		(9)  Lipoma, no effects on MOS, not medically disqualifying.

		(10)  Epidermal inclusion cyst, no effects on MOS, not medically disqualifying.

		(11)  Scars x 3, healed, no effects on MOS, not medically disqualifying.

		(12)  Headache, no recent visits found for symptoms in ALTHA, no mention of symptoms at NARSUM visit or in Commander’s Statement, not medically disqualifying.

		(13)  TBI with normal Montreal Cognitive Assessment (MOCA) score of 29 out of 30, not medically disqualifying.

		(14)  Insomnia, not medically disqualifying.

10.  His record contains a DA FORM 3947 (MEB Proceedings), dated 
13 September 2013, which listed the same conditions as the MEB NARSUM.  It found that only his conditions of status post left below the knee amputation, healed; and healed distal right fibular fracture, post-traumatic change tibiofibular did not meet medical retention standards.  The MEB recommended he be referred to a PEB for his unfitting conditions.

	a.  He checked a block indicating that he did not agree with the MEB's findings, filed an appeal and requested an independent medical review.  

	b.  His appeal, dated 12 September 2012, indicated he disagreed that his condition of "left elbow carpi radialis brevis" was considered to be not disqualifying.  He stated this condition began in January 2009 and that none of the treatment he received had resolved this condition.  The constant aching pain, sharp pain on pressure points and limitations in lifting capability limited his ability to perform his duties as an 11B.  He further stated he had difficulty lifting anything over 15 pounds and the impairment was progressively worse as the weight increased.  He stated that this impaired his ability to put on his IBA, lift and carry an M249 squad automatic weapon machine gun, an M4 rifle with full battle ammunition load, push open turret hatch covers and many similar activities.  He stated he had pain and discomfort with pushups or any motion which required him to bear weight such as pushing open doors, pushing loaded hand carts, moving furniture and other activities that arise in his activities of daily living.  He felt, that because of these issues, it would be challenging for him to carry and fire his assigned weapon; properly affix his helmet, body armor or load bearing equipment to his person; don his protective mask and mission oriented protective posture equipment; and move 40 pounds while wearing full gear.  He further stated that this was particularly true since his right hand and arm were not able to compensate for his left arm deficiencies.  Based on this, he felt his left arm condition should fall below retention standards and be characterized as not medically acceptable in accordance with Army Regulation 40-501.

11.  His record contains a DA Form 199, dated 4 June 2014 showing an informal PEB convened to consider his unfitting medical conditions and recommended a total disability rating of 50 percent (%) based on a Department of Veterans Affairs (VA) Compensation & Pension examination, VA rating determination and his other medical records.  

	a.  His condition of left below the knee amputation began on 4 December 2012 in CA when he was involved in a motorcycle accident and was considered unfitting.  The PEB/VA recommended a 40% disability rating.  

	b.  His condition of left elbow epicondylitis (reconsidered by the VA) was sustained in an EFP blast in 2009 while deployed and was considered unfitting.   The PEB/VA recommended a 10% disability rating.

	c.  His condition of right fibular fracture with tibioifibular change was evaluated and determined to be (not unfitting). 

	d.  The applicant concurred with the PEBs findings and waived his right to a formal hearing.  

12.  He provided a DA Form 4187, dated 7 August 2014.  He submitted this DA Form 4187 to HRC to request award of the Purple Heart for wounds he sustained on 4 January 2009 in Iraq as a result of an EFP attack.

13.  HRC denied his request for award of the Purple Heart in a letter, dated       26 September 2014.  HRC stated that the award of the Purple Heart was limited to members of the Armed Forces of the United States who were wounded or killed as a direct result of enemy action.  The diagnosis and treatment the applicant provided did not meet the criteria for award of the Purple Heart.  Furthermore, while the event was unfortunate, a request for award of the Purple Heart has several regulatory requirements not met by the documentation the applicant provided.  
14.  His DD Form 214 shows he was honorably retired from active duty by reason of a permanent disability on 20 October 2014.  His DD Form 214 also shows he was deployed to Iraq from 1 May 2003 to 17 July 2004 and from 1 April 2008 to 14 May 2009.

15.  The American Academy of Orthopedic Surgeons states epicondylitis or lateral epicondylitis (tennis elbow) is a painful condition of the elbow caused by overuse.  Playing tennis or other racquet sports can cause this condition.  But several other sports and activities can also put individuals at risk.  Tennis elbow is an inflammation of the tendons that join the forearm muscles on the outside of the elbow.  The forearm muscles and tendons become damaged from overuse — repeating the same motions again and again.  This leads to pain and tenderness on the outside of the elbow.  

   a.  The elbow joint is a joint made up of three bones: your upper arm bone (humerus) and the two bones in your forearm (radius and ulna).  There are bony bumps at the bottom of the humerus called epicondyles.  The bony bump on the outside (lateral side) of the elbow is called the lateral epicondyle.  Muscles, ligaments, and tendons hold the elbow joint together.  Lateral epicondylitis, or tennis elbow, involves the muscles and tendons of your forearm.  Your forearm muscles extend your wrist and fingers. Your forearm tendons -- often called extensors -- attach the muscles to bone.  They attach on the lateral epicondyle.  The tendon usually involved in tennis elbow is called the Extensor Carpi Radialis Brevis (ECRB).  
	
   b.  Recent studies show that tennis elbow is often due to damage to a specific forearm muscle.  The extensor carpi radialis brevis (ECRB) muscle helps stabilize the wrist when the elbow is straight.  This occurs during a tennis groundstroke, for example.  When the ECRB is weakened from overuse, microscopic tears form in the tendon where it attaches to the lateral epicondyle.  This leads to inflammation and pain.  The ECRB may also be at increased risk for damage because of its position.  As the elbow bends and straightens, the muscle rubs against bony bumps.  This can cause gradual wear and tear of the muscle over time.
   
   c.  Athletes are not the only people who get tennis elbow.  Many people with tennis elbow participate in work or recreational activities that require repetitive and vigorous use of the forearm muscle.  Painters, plumbers, and carpenters are particularly prone to developing tennis elbow. Studies have shown that auto workers, cooks, and even butchers get tennis elbow more often than the rest of the population.  It is thought that the repetition and weight lifting required in these occupations leads to injury.

16.  Army Regulation 600-8-22 (Military Awards), paragraph 2-8 states the Purple Heart is awarded for a wound sustained while in action against an enemy or 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.  Paragraphs 2-8b(4) and (5) state the Purple Heart is awarded to members of the Armed Forces of the United States who, while serving under competent authority in any capacity with one of the U.S. Armed Services after 5 April 1917, have been wounded, were killed, or who have died or may hereafter die of wounds received under any of the following circumstances:  (4) As the result of an act of any such enemy of opposing Armed Forces; and (5) As the result of an act of any hostile foreign force.

	b.  Paragraphs 2-8g(1), (2), (5) and (6) state examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows:  (1) Injury caused by enemy bullet, shrapnel, or other projectile created by enemy action; (2) Injury caused by enemy-placed trap or mine; (5) Concussion injuries caused as a result of enemy-generated explosions; and (6) Mild traumatic brain injury or concussion severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident.

	c.  Paragraph 2-8h(12) – (17) lists the following examples of injuries or wounds which clearly do not justify award of the Purple Heart are as follows:  (12) Hearing loss and tinnitus (for example: ringing in the ears); (13) Mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function; (14) Abrasions and lacerations (unless of a severity to be incapacitating);  (15) Bruises (unless caused by direct impact of the enemy weapon and severe enough to require treatment by a medical officer); (16) Soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth); and (17) First degree burns.

DISCUSSION AND CONCLUSIONS:

1.  On 4 January 2009, the applicant was involved in an EFP blast while he was deployed to Iraq.  Following the incident he was able to complete his mission before being seen at the medical facility and treated by medical personnel.  His medical records, dated 5 January 2009, listed his injuries as: ringing in ears (tinnitus); superficial injury- abrasion of left forearm; and superficial injury – abrasion of neck on left side and he was later diagnosed with a condition later referred to by the MEB as carpi radialis brevis and the PEB as left elbow epicondylitis and mild TBI.

2.  On 4 January 2009, medical officials conducted MACE testing for Mild TBI, and other than the ringing in his ears, no other TBI symptoms were reported or found noted.  His medical records do not contain any evidence and the applicant has not provided any evidence to show he suffered from a concussion or that his condition (later classified as mild TBI) resulted in either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function.  In fact, the day following his MACE testing his doctor stated that five minutes of physical exertion produced no positive signs of mild TBI and that the applicant's hearing loss had completely resolved overnight and he no longer complained of ringing or noticeable hearing loss.  

3.  His medical records also indicated he had neck pain that felt like a mild stinging sunburn sensation on the posterior left side of his neck, and left forearm and elbow pain mainly with flexion and palpitation (a condition later referred to by the MEB as carpi radialis brevis and the PEB as left elbow epicondylitis) and an area of minor abrasion on the posterior, lateral, and distal of his left elbow.  However, on 5 January 2009, his doctor stated that the pain from the minor abrasions he received to his neck and forearm had also improved.  

4.  Army Regulation 600-8-22, paragraph 2-8h specifically states the applicant's below injuries suffered by the applicant are examples of injuries or wounds which clearly do not justify award of the Purple Heart: 

	a.  The applicant was diagnosed with tinnitus or ringing in the ears.  However, this condition resolved itself within 24 hours of the EFP incident.  Paragraph 2-8h(12) states hearing loss and tinnitus (for example: ringing in the ears) do not justify award of the Purple Heart.

	b.  On 4 January 2009, medical officials conducted MACE testing for mild TBI, and other than the ringing in his ears, no other TBI symptoms were reported or found noted.  His medical records do not contain any evidence and the applicant has not provided any evidence to show he suffered from a concussion or that his condition (later classified as mild TBI) resulted in either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function.  In fact, the day following his MACE testing his doctor stated that 5 minutes of physical exertion produced no positive signs of mild TBI and that the applicant's hearing loss had completely resolved overnight and he no longer complained of ringing or noticeable hearing loss.  Paragraph 2-8h(13) states that Mild traumatic brain injury or concussions that do not either result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function is an injury that does not justify award of the Purple Heart.

	c.  The applicant was diagnosed with "superficial injury- abrasion of left forearm; and superficial injury – abrasion of neck on left side" following the EFP incident.  Paragraph 2-8h(14) states abrasions and lacerations (unless of a severity to be incapacitating) do not justify award of the Purple Heart.

	d.  Lateral epicondylitis or tennis elbow is a soft tissue injury that involves inflammation of the tendons that join the forearm muscles on the outside of the elbow and can results in the forearm muscles and tendons become damaged from overuse (repeating the same motions again and again).   Paragraph 2-8h(16) states soft tissue injuries (for example, ligament, tendon or muscle strains, sprains, and so forth do not justify award of the Purple Heart.

5.  There is no evidence of record, and the applicant has provided insufficient evidence to show the injuries he suffered meet the criteria for award of the Purple Heart.  Based on the foregoing, there is insufficient evidence to grant 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.



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