IN THE CASE OF: BOARD DATE: 16 January 2014 DOCKET NUMBER: AR20130009966 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 that the determination of "Not in Line of Duty - Not Due to Own Misconduct" be changed to "In Line of Duty" in order for his case to be processed by a Medical Evaluation Board (MEB). 2. The applicant states the Casualty and Mortuary Affairs Operations Center (CMAOC), Fort Knox, KY, denied him an MEB. He states he first injured his knee while serving full-time in Germany during a training mission. He has had issues with his knee since then. The next knee problem was during flood duty in Iowa. A line of duty determination was completed and submitted at that time. The problem is that the line of duty was a paper copy that was lost. He has a letter from the Active Guard Reserve (AGR) Unit Readiness Noncommissioned Officer stating he submitted the line of duty. Since the start of all this, it was necessary to have both his knees replaced. All his injuries happened while he was on duty and for that reason he is requesting an MEB and not a non-duty related physical evaluation board (PEB). 3. The applicant provides his MEB packet that includes his medical documents. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 15 March 1983 and he was honorably discharged on 2 May 1985. 2. On 8 March 1995, he enlisted in the Army National Guard (ARNG). He continues to serve in the ARNG through extensions of enlistment. The highest rank he has held is staff sergeant (SSG)/E-6. 3. An Outpatient and Emergency Room Record, dated 25 November 1994, shows he was seen in the emergency room for evaluation of pain in his right knee. It shows he was moving a lady while working at the Clarinda State Hospital Treatment Complex and she fell on top of him. His right leg popped, he had intense pain with some numbness, and he collapsed on the floor. He was seen for evaluation. There was no evidence of any medial or lateral collateral ligament disruption or anterior posterior cruciate abnormalities at that time. 4. On 16 November 1995, surgery was performed on his right knee to repair an anterior cruciate ligament tear with posterior horn lateral meniscus tear. 5. On 25 November 1996, surgery was performed to remove a right knee tibial screw. 6. A periodic medical examination, dated 6 May 2000, shows no medical defects. 7. A periodic medical examination, dated 21 February 2004, shows he had a full range of motion with no limitations regarding post-operative right anterior cruciate ligament (ACL) repair in 1998. 8. He served on active duty in support of Operation Enduring Freedom during the period 5 March 2004 through 4 July 2005. 9. A St. Francis Hospital and Health Services Operative Report, dated 19 November 2008, shows a postoperative diagnosis of left knee medial meniscal tear and chondromalacia III of the patella, medial femoral condyle, medial tibial plateau and lateral femoral condyle. It further shows he had a left knee arthroscopy. 10. He was ordered to active duty for training to serve as a full-time support (AGR) backfill during the period 1 July 2009 through 30 September 2010. He was released from active duty at the end of this period. 11. He was ordered to Full-time National Guard Duty - Operational Support for the period 1 October 2010 through 30 September 2011. 12. On 15 November 2010, he had a total right knee arthroplasty (knee replacement surgery). 13. A Clarinda Regional Health Center Initial Interview for Physical Therapy, dated 23 November 2010, stated under "Subjective" that the applicant had a history of four surgeries on his knees (three on the right and one on the left). It shows in 1983 he fell in the Alps and tore his ACL. Ten years later he had it repaired. 14. On 27 July 2011, his unit commander recommended the applicant not be retained because he was unable to continue to perform infantry duties. 15. A DA Form 3349 (Physical Profile), dated 4 August 2011, shows he was given a permanent profile due to bilateral knee pain and swelling post bilateral knee replacements. 16. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 January 2012, shows the medical opinion, based on an evaluation for medical conditions related to bilateral joint replaced knees and degenerative joint disease, found his injury was incurred in line of duty in that the applicant re-aggravated a previous injury to both of his knees. It states that due to the physical demands of everyday job requirements and the movement of equipment from the Shenandoah Armory to the Corning Armory for the closure and remodeling of the Shenandoah Army, the applicant re-aggravated a previous injury to both of his knees. This re-aggravation caused him to need surgery in both knees. All this occurred while the applicant was on active duty for operational support orders. 17. On 17 January 2012, the Iowa ARNG (IAARNG) approved a line of duty investigation for bilateral knee joint replacement. 18. A review of his record failed to reveal any additional approved line of duty determination documents related to his knee problems. 19. A document, dated 1 August 2012, with the heading "email from HRC [U.S. Army Human Resources Command]/COL Skillman. Found NILD" states a review of the applicant's medical record revealed that he sustained what appeared to be a non-duty related right knee ACL rupture and underwent reconstructive surgery in 1995 or 1996. It further states a review also showed that he underwent a left knee arthroscopy with a partial medial menisectomy on 19 November 2008. It was noted at that time that there were significant degenerative/arthritic changes in all three compartments of the knee. That also appears to have been a non-duty related injury. Based on his records review, he had significant bilateral knee arthritis prior to going on active duty for operational support. In accordance with Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 4-8e(3) "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." There was no evidence that the arthritis progressed at a faster rate than would be expected because of his active duty for operational support service. The only medical documentation in the "eLD Module" was related to his surgery. 20. An HRC letter, dated 9 August 2012, addressed to the applicant stated the Center Judge Advocate for the Reserve Components Soldier Medical Support Center (RC SMSC) referred his line of duty case file for his bilateral knee joint replacement to HRC for review. HRC had reviewed the evidence and intended to overturn the finding of "In Line of Duty" to "Not in Line of Duty – Not Due to Own Misconduct." He was given 30 days from receipt of this letter to provide the CMAOC with any evidence for consideration. 21. In response to the above letter, the applicant submitted a letter, dated 6 September 2012. Therein he stated he was assigned to a unit in Germany while in the RA from 1982-1984. During a training mission conducting rappelling and skiing exercises he had an accident that tore his right knee. He was sent to a hospital where he stayed for 3 days and then he wore a brace for a couple of months. An X-ray is all that was done. He had a 10-year break in military service and refrained from physical activities because his knee would pop out of place. During this time he saw a surgeon in Omaha, NE and was informed that his right leg was two inches shorter than his left leg. The surgeon advised him that was because he had torn something in his knee and the muscles had dissolved away. The surgeon fixed his torn ACL, he went through rehabilitation, and got his leg back into shape. a. After joining the ARNG he twisted his right knee during a night training exercise at annual training where he stepped in a hole. Since that time, he had ongoing issues with his knee. Line of duty documentation was completed on paper and to his knowledge it was filed properly. During his deployment in 2004-2005 to Afghanistan he was having issues with his knees due to the equipment they had to wear and carry. His right knee started to pop out and it got harder and harder to do foot patrols and he even had difficulties getting in and out of the military vehicle. He went on sick call and was only given Tylenol for the pain and he just dealt with it until he returned home. b. During flood duty in Iowa, in the process of trying to save a levee, he was stuck in some mud and as he was being pulled out his left knee popped and tore the medial collateral ligament (MCL). Another line of duty was filed. This was also a paper copy, not an electronic submission. He observed his Readiness NCO fill out the form and send it to higher headquarters. The surgeon told him he could fix the problem so he had another surgery to fix the MCL on the left knee. Post-surgery he initially had some pain and in a year he was in a lot of pain. During the time he served on active duty the surgeon determined that knee replacement was the only thing left to do. The surgeon informed him that the abuse on his knees from physical training and weight-bearing in the military was a huge factor in the degeneration of his knees. After surgery, his doctor told him that his limitations would be no running and no weight bearing. 22. On 11 September 2012, Sergeant First Class (SFC) (Retired) JTW in a personal statement indicated that while on flood duty in the summer of 2008 and building a sandbag ring around one of the boils, the applicant got stuck in the mud, twisting and injuring his knee. By the following morning he was barely able to walk and was sent to the medics. He was placed on restricted duty and an LD was completed by the battalion personnel section, but that documentation was never placed in his medical records following flood duty. 23. On 17 October 2012, an RC SMSC MEB Prep Cell Chief stated in a memorandum to the IAARNG that the applicant's MEB Packet was being returned. The reason given was that the RC SMSC had been unable to validate the MEB packet for the applicant because "The Line of Duty determination had been reviewed by HRC and the determination had been changed to Not in Line of Duty. Therefore the case was not suitable for MEB processing on the current record and was being returned on that basis." 24. On 10 April 2013, the applicant was issued a Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years). This letter notified him that he had completed the required years of qualifying Reserve service for retired pay on application at age 60. 25. During the processing of the case, on 4 September 2013, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB). The advisory official provided the following discussion in support of the recommendation for disapproval of the applicant's request that the determination of "Not in Line of Duty - Not Due to Own Misconduct" be changed to "In Line of Duty" in order for his case to be processed by an MEB. a. The NGB official stated the applicant, after ongoing knee injuries, had bilateral knee replacement surgery in 2010. The IAARNG conducted a line of duty investigation and found the injuries to be "In Line of Duty." b. CMAOC reviewed his case and overturned the finding of "In Line of Duty" and determined it was "Not in Line of Duty - Not Due to Own Misconduct." c. The applicant appealed this decision to the CMAOC. The CMAOC denied the appeal, citing the applicant did not provide any new evidence, as required by Army Regulation 600-8-4, paragraph 4-17a(1), that states, "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." d. The NGB, Office of the Chief Surgeon was consulted and agreed with the CMAOC's findings of "Not in Line of Duty - Not Due to Own Misconduct" and that there is no substantial new evidence to change the decisions rendered by HRC and CMAOC. e. CMAOC determined that continued issues with the injuries after reentering the National Guard did not progress at a faster rate due to military service. Army Regulation 600-8-4, paragraph 4-8e(3) states, "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." (1) In the Soldier's statement he provided with the case submission, he stated that he originally injured his right knee while serving on active duty (1982-1984) during a training mission. He states he went to the hospital, X-rays were taken, and he was given a knee brace. However, he did not provide any documentation of this injury in his medical records. During a 10-year break in service (5 May 1985 through 7 March 1995), he sustained a right knee ACL rupture at his civilian job. Documents show he went to the emergency room for this injury on 25 November 1994. At that time he had no affiliation with a military unit. He had surgery on the knee on 16 November 1995. Notes written by a doctor, dated 16 November 1995, state "He [applicant] does not remember a specific episode of injury. He was skiing approximately 10 years ago…" Doctor's notes from 3 November 1995 state the applicant injured his knee while playing volleyball the previous weekend. (2) The applicant reports injuring his left knee while performing duties when his unit was activated due to flooding in 2008. This statement is supported by a letter written by SFC (Retired) JTW, stating the applicant did indeed injure his knee at that time. However, the applicant provided no documentation showing the diagnosis of the left knee injury he stated happened while on duty in 2008. An examination of his left knee in November 2008 showed degenerative/ arthritic changes that were indicative of an existing injury; therefore, CMAOC determined it was an injury "Not in Line of Duty - Not Due to Own Misconduct." f. The IAARNG does not concur with this recommendation and stands by its finding. A memorandum from a physician assistant, dated 23 August 2013, states the determination should be in line of duty; however, the documents provided with it contain no additional support for the determination that the injuries occurred in line of duty. 26. On 5 September 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 27. 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. Paragraph 4-8(3) states that 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. 28. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Under the laws governing the PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement or severance pay benefits. a. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the PDES. b. Chapter 4 contains guidance on processing through the PDES that includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. 29. Department of Defense Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with Service-incurred or Service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty. Paragraph E2.P2.3 states members of the Ready Reserve with non-duty related impairments, and who are otherwise eligible, will be referred into the PDES upon the request of the member or when directed under service regulations. Referral will be solely for a determination of fitness for duty. 30. U.S. Army Physical Disability Agency (USAPDA) Policy Guidance/ Memorandum Number 4 (Processing Reserve Component (RC) Nonduty Related Cases), dated 28 February 2005, states, in pertinent part, that DODI 1332.38, definition E.1.20 (page 9), defines non-duty-reported (sic) impairments as: "Impairments of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Members with non-duty related impairments are eligible to be referred to the PEB for solely a fitness determination but not a determination of eligibility for disability benefits." 31. USAPDA Policy/Guidance Memorandum Number 4 also states, in pertinent part, that the determination of whether a case is forwarded to the PEB as a nonduty-related case (as opposed to a duty-related case) rests with the RC. The Soldier may not challenge this determination before the PEB. As a nonduty-related case, only the issue of fitness will be adjudicated by the PEB. Issue relating to line-of-duty, permanent service aggravation, and entitlement to disability compensation will not be considered. Whether a case comes into the PDES as a duty-related or nonduty-related case is the decision of the RC chain of command. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his medical documentation should be reentered into the PDES process for review by an MEB because his knee problems were initially incurred, aggravated, and re-aggravated while on duty was carefully considered. 2. The available evidence shows the applicant was found physically unfit for further service based on a medical condition. His medical condition (knee replacement) was found by the IAARNG to be in line of duty. However, HRC overturned that finding and found his medical condition to be "Not in Line of Duty - Not Due to Own Misconduct." 3. The applicant rebutted HRC's findings. He states he first tore the ACL in his right knee in 1983 during a training mission in the RA while conducting rappelling and skiing exercises. However, there appears to be no evidence in his service medical records of this 1983 injury. He contends he further injured his knees during flood duty with the IAARNG, while moving heavy items during an armory move, and during a night training exercise at annual training. 4. The NGB Surgeon's Office agreed with HRC's conclusion that his double knee replacement appeared to be non-duty related. 5. CMAOC determined that continued issues with the injuries after reentering the ARNG did not progress at a faster rate due to military service. 6. Notwithstanding the IAARNG's approved line of duty, absent documentary evidence confirming his knee condition was incurred or aggravated while on duty, there is an insufficient evidentiary basis to grant the requested relief. The applicant has not shown error, injustice, or inequity that would warrant the relief he requests. 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) AR20130009966 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130009966 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1