BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20140017160 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 the line of duty (LD) determination for aggravation of her back injury and an injury to her neck be changed from not in line of duty (NLD) to in line of duty (ILD). 2. The applicant states any analysis of the facts in her case must start with the presumption that her injury occurred or was aggravated ILD. The investigative materials are not sufficient to overcome that presumption, and do in fact support ILD. She has a permanent profile, dated 22 August 2012, for cervical spine pain. According to her DD Form 261 (Report of Investigation, LD Status) the investigative officer (IO) found "the back pain experienced by (the applicant) is attributable to an injury she could have sustained while conducting required unit training on the land navigation course at Camp Navajo." The appointing authority submitted substituted findings noting "the back pain was documented well before annual training (AT). It still remains vague at best and therefore the claim cannot be substantiated by witnesses or IO or Judge Advocate General." 3. Contrary to the appointing authority's substituted findings, the greater weight of evidence supports finding that her back injury was aggravated during AT. She had back pain prior to the incident, but the condition was significantly aggravated during AT. In the LD, dated 3 October 2011, the medical official conceded she was on active duty for operational support (ADOS) orders when she began to have back pain and also that she re-injured her back when she fell in a hole on the land navigation course during AT in 2010. In the revision of IO findings, Captain (CPT) S recommended that the appointing authority make the determination that her back injury was "service aggravated-existed prior to service ILD." Major (MAJ) S, her supervisor during AT in 2010, filled out a sworn statement concerning the incident in which she injured her back in 2010. In addition, there are other sworn statements to support the fact that she fell in a hole while conducting training. 4. She never had any issues with her neck prior to AT in 2011 when she injured it at Camp Navajo. She never had neck pain, issues wearing her Kevlar, etc. She woke up one day after several days in full gear doing the warrior tasks and weapons qualification with a stiff/sore neck. At first she thought she slept on it wrong; however, the pain continued and even increased. Upon returning from AT in 2011 her supervisor advised her to seek medical attention. A magnetic resonance imaging (MRI) was performed on 3 October 2011. A finding of cervical spondylosis with degenerative disc disease was diagnosed. The only incident that created or aggravated this condition was AT in full gear. 5. The applicant provides: * a chronological list of events concerning her case from 12 September 2012 to 19 June 2013 * service medical records * medical records from civilian doctors * a memorandum, dated 28 July 2014, from U.S. Army Human Resources Command (HRC) * a memorandum, dated 30 May 2014, from HRC * Document Archive CONSIDERATION OF EVIDENCE: 1. She previously served in the U.S. Air Force. She completed 2 years, 3 months, and 26 days of active service that was characterized as honorable. 2. On 24 February 1995, she enlisted in the Arizona Army National Guard (AZARNG) for 6 years. On 11 September 2008, she extended her enlistment for 6 years. She continuously served in the AZARNG until her transfer to the Retired Reserve. 3. In a clinic note, dated 27 November 2000, Dr. R stated her X-rays were remarkable for spondylolysis L5 with a grad 1 spondylolisthesis and foramina stenosis bilaterally. She had a disc protrusion under the nerve with visualized compression and flattening of the right L5 nerve, consistent with her right L5 radiculopathy. She additionally had significant facet arthropathy at the L4-5 level and a disc herniation centrally at L4-5. His recommendation, based on the increasing limitation from pain, was for a lumbar diskectomy with innerbody fusion at the L4-5 and L5-S1 levels based on the spondylolisthesis, disc protrusion, and L5 radiculopathy from the L5-S1 slip, and from the associated retrolisthesis and the disc herniation at the L4-5 level. 4. On 24 January 2001, she was admitted to the Flagstaff Medical Center, Flagstaff, AZ. a. Her preoperative diagnoses were: * Lumbar disc herniation L4-5 * Lumbar spondylolysis L5, grade I-II * Lumbar spondylolisthesis L5-S1 * L5 radiculopathy b. Operation performed: * lumbar exploration * posterior lumbar interbody fusion * posterior fusion L4-5, L5-S1 * local bone graft * segmental fixation with Moss-Miami variable angle pedicle screws, 6 mm x 45 mm, L4; 40 mm at L5; 7 x 35 mm sacrum * lumbar laminectomy L5 * lumbar discectomy L4-5, L5-S1 5. On 4 March 2001, a DA Form 3349 (Physical Profile) placed her on a permanent profile for lumbar disc disease with fusion. Assignment limitations resulting from this physical profile were limitations in running, marching, standing of long periods. Under "L" (lower extremities) of the physical profile she was assigned the numerical designator "3." 6. A Radiology Report, dated 24 May 2001, from Northern Arizona Radiology state there were bilateral pedicle screws connected by posterior fixation rods at L4, L5, and S1. There was a laminectomy defect at L5. Bone grafts were seen at the L4-L5 and L5-S1 disc spaces. There was approximately 7 mm of anterior subluxation of L5 on S1 associated with probable bilateral spondylolysis of L5. Mild disc space narrowing was present at the L4-L5 and L5-S1 levels. Vertebral body heights and remainder of the disc spaces were maintained. The remainder of alignment was anatomic. There was minimal anterior spurring at L2-L3 and L3-L4. There was mild lower lumbar scoliosis with convexity to the right. 7. On 14 October 2001, a DA Form 3349 placed her on a permanent profile for lumbar discectomy. Assignment limitations resulting from this physical profile were limitations in running, marching, standing of long periods. Under "L" (lower extremities) of the physical profile she was assigned the numerical designator "3." The profile also stated she did not require a change to her military occupational specialty (MOS) or duty assignment. 8. In a clinic note, dated 4 September 2002, Dr. R stated new x-rays demonstrated progression of the fusion. She had what appeared to be a mature and secure fusion at the L5-S1 level. At L4-5, the upper of the two levels, there was bone in the innerspace. He thought she probably had a fibrous union or a progressive fusion that had not matured to the extent that the lower level had. His recommendation was that as long as she could continue with the modified work position she was likely to be able to continue work without particular difficulty. He recommended light activity. He recommended avoiding carrying heavy weight. Specifically, he thought that doing maneuvers with a 40-pound pack was going to stress her back and likely stir up a fair bit of pain at that time. If the L4-5 level failed to fill in securely he might address it in the future. 9. On 31 July 2003, the applicant was retained in her primary MOS 71L (Administrative Specialist) by an MOS Medical Retention Board. 10. She served on active duty in support of border security operations from 1 August 2006 - 15 August 2008. 11. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 November 2006, shows she was seen at Luke Air Force Base (AFB) by Dr. R for symptoms of vertigo. She stated while on Operation Jump Start 2007 she started having symptoms of vertigo and dizziness. She started going to Luke AFB for treatment. On 18 July 2012, her commander, MAJ H determined a formal LD was not required and that her injury was considered ILD. 12. On 22 June 2010, she was ordered to AT for the period 9 - 13 August 2010. 13. A Final Report, dated 12 May 2011, from Valley Radiologists, Phoenix, AZ was for an MRI of the lumbar spine. Postoperative changes from L4 through S1. No recurrent herniation or stenosis. No evidence for epidural fibrosis or abnormal fluid collection. L2-3: mild disk bulge and minor right facet hypertrophy. No significant stenosis. L3-4: minor right facet hypertrophy without stenosis. 14. A memorandum for the State Surgeon, dated 27 September 2011, from Joint Force Headquarters-Arizona (JFHQ-AZ), Arizona Medical Command requested a temporary profile for the applicant due to back pain. 15. A DA Form 2173, dated 3 October 2011, shows she was seen at Valley Radiologist by Dr. N for pain in thoracic spine; anomaly of spine NEC. On 10 August 2010, during AT she fell in a hole on the land navigation course and twisted her back. On 18 July 2012, her unit commander MAJ H determined a formal ILD investigation was not required and that her injury was considered to have been incurred ILD. 16. A Final Report, dated 3 October 2011, from Valley Radiologists was for five-view lumbar spine. Clinical history was pain. The findings include: Status post posterior fusion L4-S1. Stable anterolisthesis of L5 on S1. Surgical hardware intact. Partial fusion at the L4-L5 and L5-S1 disk levels. Mild degenerative changes of the remainder of the lumbar spine without perceptible change. Laminectomy defects at L5. No fracture. Impression was stable lumbosacral fusion. 17. A second Final Report, dated 3 October 2011, from Valley Radiologists, Phoenix, AZ was for cervical spine complete 5 views. The findings included: mild straightening of the cervical lordosis. Moderate multilevel marginal osteophytosis and disc space narrowing throughout the cervical spine spanning C3 through C7. This included neural foraminal encroachment at these levels most severe at C3 through C6. Fragmentation of the anterior marginal osteophyte of a remote anterior fracture at C3. No subluxation. Carotid vascular calcifications. Impressions were moderate multilevel degenerative changes of the cervical spine as above and carotid vascular calcifications. 18. A Final Report, dated 3 October 2011, from Valley Radiologists was for 3 views thoracic spine. The findings include mild curvature of the lower thoracic spine convex left. Small multilevel marginal osteophytosis. No acute fracture or dislocation. Impression was mild degenerative changes thoracic spine. 19. A DA Form 2173, dated 3 October 2011, shows she was seen at Valley Radiologists by Dr. N for spondylolisthesis, back. Dr. N indicated she had back surgery prior to the incident. She could not provide medical documentation at the time of injury. She was on ADOS orders in 2006 when she began to have back pain. While on AT orders in 2010 she re-injured her back when she fell in a hole on the land navigation course on 10 August 2010. On 5 January 2013, her unit commander, MAJ K, determined a formal LD investigation was required and her injury was considered to have not been incurred ILD. 20. A record of treatment, dated 11 November 2011, by Dr. S shows she was seen by the doctor for complaints of neck pain. She had been having pain since August 2011. She did not recall any specific injury. She had arthritis in multiple areas of her body. She complained of a constant, sharp pain rated 8/10 with grinding, stiffness, and icing. Most of the pain remained localized in her neck and shoulder region. She was taking Percocet chronically for her back problem. The doctor indicated an MRI was to be performed. 21. A final report, dated 7 December 2011, from Valley Radiologists, Phoenix, AZ was for a multiplanar, multisequence MRI of the cervical spine. The impression was multilevel cervical spondylosis with degenerative disc disease causing various degrees of spinal canal stenosis and foraminal stenosis from C3-C4 through C6-C7. 22. A DA Form 2173, dated 7 December 2011, from Valley Radiologists shows she was treated as an outpatient at Valley Radiologists for disc disorder - cervical. She injured her neck during AT. She was on the firing range with load bearing equipment and Kevlar 2 days prior to the onset of pain and stiffness. Dr. S determined that the applicant's injury to be ILD. On 20 March 2012, her unit commander indicated a formal LD investigation was not required and that the injury was considered to be incurred in line of duty. 23. On 20 December 2011, she returned to Dr. S for a follow-up for her neck pain. The MRI scan showed moderate bulging disc at C3-4 and C5-6 and there was mild stenosis in the foramen most noted at C5 and 6. Impression was cervical spondylosis with facet arthropathy. 24. A DA Form 3349, dated 27 April 2012, shows Dr. S placed her on temporary profile to expire on 25 May 2012, for vertigo and low back pain. The profile stated she was going through an LD investigation. The profile does not contain the signature of the approving authority. She was assigned the following numerical designators under PULHES: * under "P" (physical capacity or stamina) - "3" * under "U" (upper extremities) - "3" * under "L" (lower extremities) - "3" * under "H" (hearing and ears) - "2" * under "E" (eyes) - "2" * under "S" (psychiatric) - "1" 25. A DA Form 3349, dated 9 August 2012, shows Dr. K placed her on temporary profile, to expire on 10 August 2012, for ongoing multilevel spondylosis of cervical spine with spinal canal stenosis. The member had been under care for cervical spine pain. The last evaluation, dated 3 April 2012, documented the member's assessment of function at 40 percent (%). It was noted that the therapist reported it was her impression that the applicant had significant difficulty completing her duties as a technician. This was an auto-generated temporary profile tied to a permanent profile. She was assigned the following numerical designators under PULHES: * under "P" - "3" * under "U" - "3" * under "L" - "1" * under "H" - "2" * under "E" - "2" * under "S" - "1" 26. A DA Form 3349, dated 15 August 2012, shows Dr. K placed her on temporary profile for ongoing multilevel spondylosis of cervical spine with spinal canal stenosis causing neurologic deficits. The member had been under care for cervical spine pain. The last evaluation, dated 3 April 2012, documented the member's assessment of function at 40 percent (%). It was noted that the therapist reported it was her impression that the applicant had significant difficulty completing her duties as a technician. The Soldier was not qualified for retention per Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39c. This was an auto-generated temporary profile tied to a permanent profile. She was assigned the following numerical designators under PULHES: * under "P" - "3" * under "U" - "3" * under "L" - "1" * under "H" - "2" * under "E" - "2" * under "S" - "1" 27. On 22 August 2012, the above profile was approved by Dr. L as a permanent profile. 28. On 20 February 2013, Departments of the Army and the Air Force, JFHQ-AZ notified her the Qualitative Retention Board (QRB) was approved and she was not selected for continued unit participation. She was to be separated and transferred to the U.S. Army Reserve (USAR) Control Group according to her selection on the QRB worksheet. The action was effective 30 September 2013, unless she elected an earlier date. 29. On 1 March 2013, the JFHQ-AZ notified her she had completed the required years of service and was eligible for retired pay upon her application at age 60 (20-year letter). 30. On 7 March 2013, a DD Form 261 was initiated for spondylolisthesis, back. She was conducting land navigation and stepped in a hole and injured her back. a. On 16 July 2013, the IO, CPT S, indicated the applicant had stepped in a hole and injured her back while conducting land navigation. The IO found the back pain experienced by the applicant was attributable to an injury she could have sustained while conducting required unit training on the land navigation course at Camp Navajo. The IO's finding was ILD. b. On 3 August 2013, the appointing authority approved the findings of the IO. The appointing authority stated that after legal review and the IO's further follow-up he was of the agreement that back pain was documented well before annual training. It still remained vague at best and therefore the claim could not be substantiated by witnesses, the IO, or legal. c. On 17 January 2014, the IO submitted a memorandum to Headquarters and Headquarters Detachment, JFHQ, subj: LD Determination Revision to IO findings, dated 29 October 2013, in the case of (the applicant). The IO received additional evidence from MAJ K for the LD investigation on the applicant for an injury she alleges was sustained to her neck while conducting land navigation training on 10 August 2010. The additional evidence included sworn statements from Sergeant First Class (SFC) G, dated 7 November 2013, and from SFC S, dated 21 November 2013. (1) SFC G stated she was present when the applicant stepped into a hole during land navigation training and that she did fall down. The applicant had stated upon returning from the training that her back hurt and took pain killers for the injury. Due to her pain she was assigned to the supply section and removed from further training. (2) SFC S stated he was not present when the applicant stepped into a hole but he was working in the supply section the following day. The applicant was assigned to work in the supply section because she had injured herself on the previous day. SFC S witnessed the applicant behaving in a manner consistent with someone in "a lot of pain by the way she was walking and moving." d. After requesting an MRI, her civilian doctor, Dr. S, made a determination of moderate bulging discs at C3-C4 and C5-C6 and mild stenosis at C5-C6. Most importantly, during his initial examination, Dr. S recorded that the applicant "did not recall any specific injury" that was causing her neck pain and that she had arthritis in multiple areas of her body. e. After reviewing the direct evidence from SFC G's statement and the indirect evidence provided by SFC S's observations in his witness statement and based on a preponderance of the evidence the IO found the applicant's medical condition was worsened or was aggravated as a result of her military service when she stepped into a hole in the ground. The IO recommended that the appointing authority make the determination "SERVICE AGGRAVATED - EXISTED PRIOR TO SERVICE IN THE LINE OF DUTY." f. On 30 January 2014, the reviewing authority disapproved the findings and stated her back pain was not ILD. On 30 January 2014, Army National Guard Bureau (NGB) disapproved the findings and found she was not ILD-not due to own misconduct for spondylolistheses. 31. On 16 May 2013, the JFHQ-AZ notified her the QRB was approved and she was not selected for continued service. She was to be separated and transferred to the USAR Control Group according to her selection on the QRB worksheet. Because she elected to pursue a Medical Evaluation Board/Physical Evaluation Board this action was suspended until the Physical Disability Evaluation System results was finalized. 32. On 9 November 2013, MAJ S submitted a sworn statement. The applicant was MAJ S's administrative assistant and in August 2011 came back to work after her annual training. She was complaining of a stiff neck and how she woke up one morning during AT and it was bothering her. She had thought she had just slept wrong but did admit to a fall on the land navigation course. After a week the pain and discomfort was increasing and MAJ S told her she needed to see a doctor. She saw a doctor in October 2011 and the doctor gave her an MRI and other tests. MAJ S and a few other Soldiers from JFHQ tried to get the applicant to see the doctor but she didn't want to cause problems. She was given physical therapy treatments and treated for her neck but it continued to cause her pain and discomfort. 33. A memorandum, dated 11 February 2014, from NGB forwarded the DD Form 261 with the final LD determination to JFHQ-AZ. a. The applicant was determined not ILD-not due to own misconduct for spondylolisthesis. There was no medical documentation from this period of active duty provided to support the Soldier's claim. b. The NGB Surgeon determined her condition to be pre-existing with no evidence to support service aggravation. She had a prior history of chronic back pain with multiple evaluations and surgery in 2001 with radiologic evidence of discectomy and laminectomy at L4-5 and L5-S1. 34. On 5 March 2014, the applicant appealed the LD determinations regarding the incident that occurred in August 2010 and the incident on her neck in August 2011. She included the DD Form 261 on which the IO and her commander determined the injury on her back was ILD. a. She provided a statement, dated 14 January 2014, from MAJ S, her supervisor. After the applicant's return from AT in August 2010, MAJ S overheard her stating her back was "hurting like crazy" and had been since she fell in a hole during the Land Navigation Course in Camp Navajo. MAJ S asked her if she filed for an LD or went to the Troop Medical Clinic. She stated she had not since she did have a plate in her back and thought she just aggravated it a little. When she moved around it was obvious she was in a lot of pain. She was already on pain medications so MAJ S recommended she follow up with her doctor. She was still seeing her back doctor for checkups and check on her medications. b. She provided an incomplete DA Form 2173, dated 18 February 2014, indicating she was seen as an outpatient by Dr. L, a civilian doctor, for back and neck injury 2010 -2011, arthritis, hypotension, chronic pain, and hypothyroidism. c. She provided an incomplete DA Form 2173, dated 19 February 2014, indicating she was seen as an outpatient by Dr. M, a civilian doctor, for back re-injury in August 2010 while performing military duties resulting in two bulging disks. She injured her neck in August 2011 and remains under a doctor's care. d. She provided a statement, dated 19 February 2014, from Dr. R. Dr. R stated the applicant had been his patient since 20 May 2013. She suffers from chronic back and neck pain, as well as vertigo. She had a lumbar fusion of L4-L5 and L5-S1 in the year 2001. She continues to receive treatment for these conditions. The applicant stated these conditions were related to an incident while on AT and her current symptoms are service aggravated. e. She provided a record of treatment, dated 30 August 2011, showing treatment for her neck. f. She stated the IO, CPT S, found her back to be in LD with all the evidence and statements that were provided to him in accordance with paragraph 2-6(2) of Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations). g. She stated both of the DA Forms 2173, signed by the doctors, stated that the injuries were service aggravated while performing military duties. In accordance paragraph 4-8e(2) with Army Regulation 600-8-4 the determination should be in LD. 35. On 30 May 2014, HRC, after a thorough administrative review of her LD investigation, determined the finding of "NOT ILD - NOT DUE TO OWN MISCONDUCT" would stand. a. Paragraph 4-8(e)(2) of Army Regulation 600-8-4 states if an EPTS condition was not aggravated by military service, the determination will be Not ILD - Not Due to Own Misconduct. b. After reviewing provided documentation and medical records from the electronic medical record system used by medical providers of the U.S. Department of Defense Armed Forces Health Longitudinal Technology Application (AHLTA), it was determined her diagnosis of spondylolisthesis in her back was not service-connected or service-aggravated. c. She claimed an injury to her back after accidentally stepping into a pothole during a land navigation exercise on 10 August 2010. Medical records from AHLTA indicated she was seen throughout the timeframe of 2006 - 2008 for low and mid-back pain that did not originate from a specific injury, but from a previous surgery in 2001. Records show a lumbar spine MRI from 12 May 2011 that revealed postoperative changes from L4 through S1 from previous laminectomy without recurrent herniation or stenosis. In essence, there was no objective evidence that any new lumbar spine condition occurred or worsened since her 2001 surgery. 36. On 28 July 2014, HRC, after a thorough administrative review of her LD investigation, determined the finding of "ILD (THIS EPISODE ONLY)" be changed to read NOT ILD - NOT DUE TO OWN MISCONDUCT. a. Paragraph 4-8(e)(2) of Army Regulation 600-804 (Line of Duty Policy, Procedures, and Investigations) states if an EPTS (existed prior to service) condition was not aggravated by military service, the determination will be not ILD - Not due to Own Misconduct. b. The Army National Guard Bureau (NGB) issued a finding of ILD for "THIS EPISODE ONLY", meaning the Army would take care of this incident until care was complete. She appealed this finding and wants care for this incident for a long period of time. c. She claimed an injury to her neck after the wear and use of the Army combat helmet while on orders in August 2011. The HRC Surgeon General's office provided a medical opinion for the diagnosis of cervical spondylolistheses with myelopathy is not service-connected or service-aggravated for long term care. The medical opinion concluded she did not claim any specific injury to her neck while on orders in August 2011. More importantly cervical spondylosis (degenerative disc disease of the cervical spine) is a chronic, long-standing condition and by that fact, her condition existed prior to service. Given the insidious nature of this chronic condition, it was not possible to tell exactly when the condition began or when the cervical stenosis occurred. 37. JFHQ-AZ Orders 246-637, dated 3 September 2014, transferred her to the Retired Reserve effective 2 December 2014. 38. Army Regulation 40-501, in Chapter 7 (physical profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of a Soldier and is used to assist commanders and personnel officers in their determination of what duty assignments the Soldier is capable of performing and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors: P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric (PULHES). a. Numerical designator 1 under all factors indicates that a Soldier is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. b. Numerical designators 2 and 3 indicate that a Soldier has a medical condition or physical defect which requires certain restrictions in assignment within which the Soldier is physically capable of performing military duty. The Soldier should receive assignments commensurate with his or her functional capacity. c. Numerical designator 4 indicates that a Soldier has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. The numerical designator 4 does not necessarily mean that the Soldier is unfit because of physical disability as defined in Army Regulation 635-40. 39. Army Regulation 600-8-4 provides that a line of duty investigation must be conducted in all cases of injury not as a result of enemy action. It also provides it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an investigation may or may not be required to make this determination. It provides that any physical condition having its inception in line of duty during one period of service or authorized training in any of the Armed Forces which recurs or is aggravated during later service or authorized training, regardless of the time between, should be in line of duty. Paragraph 2-6 (Standards applicable to LD determinations) of Army Regulation 600-8-4 states decisions on LD determinations will be made in accordance with the standards set forth in this regulation. a. Injury, disease, or death proximately caused by the Soldier’s intentional misconduct or willful negligence is "not in LD-due to own misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct. b. An injury, disease, or death is presumed to be in LD unless refuted by substantial evidence contained in the investigation. c. LD 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: (1) All direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or (2) 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. d. No distinction will be made between the relative value of direct and indirect evidence. In some cases, direct evidence may be more convincing than indirect evidence. In other cases, indirect evidence may be more convincing than the statement of an eyewitness. The weight of the evidence is not determined by the number of witnesses or exhibits but by the IO and higher authorities accomplishing the following actions: (1) Considering all the evidence. (2) Evaluating factors such as a witness’s behavior, opportunity for knowledge, information possessed, ability to recall and relate events, and relationship to the matter to be decided. (3) Considering other signs of truth. 40. Paragraph 4-8 (Medical treatment) of Army Regulation 600-8-4 addresses venereal disease, pregnancies and abortions, hernias, surgical operations and treatments, conditions that existed prior to service, and presumptions concerning injuries and diseases. Paragraph 8e (Injury or disease prior to service) states: a. The term "EPTS" is added to a medical diagnosis. It shows that there is substantial evidence that the disease or injury, or underlying condition existed before military service or it happened between periods of active service. Included in this category are chronic diseases with an incubation period that clearly precludes a determination that it started during short tours of authorized training or duty. b. The doctor, during examination and treatment of the Soldier, usually determines an EPTS condition. The doctor annotates the Soldier’s medical records as to whether the condition existed prior to service. If an LD determination is required, 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 LD." If an EPTS condition is not aggravated by military service, the determination will be "not in LD-not due to own misconduct." c. 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. DISCUSSION AND CONCLUSIONS: 1. Her preoperative diagnoses on 24 January 2001 were lumbar disc herniation L4-5, lumbar spondylolysis L5, grade I-II, Lumbar spondylolistheses L5-S1, and L5 radiculopathy. The radiological report of 24 May 2001 also noted probable bilateral spondylolysis of L5. 2. The evidence shows that she did fall in a hole during AT on 10 August 2010. 3. The medical evidence shows on 3 October 2011 she was seen for spondylolisthesis, back. The doctor noted she had back surgery prior to the incident on 10 August 2010. The doctor did not indicate her previously diagnosed spondylolisthesis was aggravated by the incident on 10 August 2010. 4. The lumbar MRI from 12 May 2011 showed postoperative changes from L4 through S1 from previous laminectomy without recurrent herniation or stenosis. There is no objective evidence that any new lumbar spine condition occurred or worsened since her surgery in 2001. 5. On 20 December 2011, Dr. S saw her for a follow-up for her neck pain. The MRI scan showed moderate bulging disc at C3-4 and C5-6 and there was mild stenosis in the foramen most noted at C5 and 6. Impression was cervical spondylosis with facet arthropathy. Cervical spondylolisthesis (degenerative disc disease of the cervical spine) is a chronic, long-standing condition and by that fact the condition existed prior to service. Due to the insidious nature of this chronic condition, it is not possible to tell exactly when the condition began or when the cervical stenosis occurred. 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) AR20140017160 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140017160 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1