IN THE CASE OF: BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150012595 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150012595 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. IN THE CASE OF: BOARD DATE: 10 January 2017 DOCKET NUMBER: AR20150012595 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: * reconsideration of the line of duty (LOD) determination of "not in LOD – due to own misconduct (NLOD-DOM)" dated 19 March 2014 * a personal appearance before the Board 2. The applicant states: a. She received a final LOD determination of NLOD-DOM for hepatic poisoning secondary to Tylenol use on 19 March 2014. The memorandum contains the following statement, "After review of all the medical evidence the [National Guard Bureau (NGB)] Surgeon determined the proximate cause of the Soldier's medical condition was the ingestion of 24 500 milligram tablets in an eight hour period." This was determined to be "willful negligence." Her counsel appealed the determination on 29 April 2014 and the finding was upheld. She was notified of this decision on 30 June 2014. b. She was on orders attending the Primary Leadership Development Course (PLDC) in Pennsylvania on 30 March 2003. As she was crossing an icy parking lot carrying her duffle bag to her car, she slipped and experienced immediate pain all over her body. She was hopeful that the pain would soon pass and began her drive home to Maryland. The pain worsened on her way home and she stopped to take some over-the-counter pain medicine. At that point, the pain was localized in her head, back, and stomach. Upon arrival in Baltimore, MD, she was experiencing so much pain that she went to Union Memorial Hospital where she was diagnosed with pulled muscles and a punctured liver. Over the next few months, she continued to experience headaches and digestive issues, so she went to Fort Meade, MD, for follow-up treatment. She was transferred from Fort Meade to Walter Reed Medical Center via ambulance in order to be diagnosed by neurology and gastrointestinal specialists. c. An informal LOD investigation was conducted, and on 20 May 2003 the incident was found to be in the LOD. Her symptoms persisted and she continued to require medical care. On 8 August 2003, an Army medical provider determined her headaches were a result of post-concussive syndrome stemming from the fall. Essentially, her brain bounced inside her skull when she fell on the ice. A second LOD investigation conducted in spring 2004 also resulted in a finding of LOD. d. Over the next few years she continued to suffer from post-concussive syndrome. During a flare-up of symptoms she would be unable to drive. There was no way for her to tell when these flare-ups would occur. She was seen by Dr. Mxxt on 13 May 2005, and he concluded that the headaches were due to the brain injury she received when she fell on the ice in 2003. At the time, she held a civilian job with Baltimore City Parking Enforcement. During a particularly severe flare-up, she was unable to perform her civilian job. She applied for incapacitation pay (INCAP). Despite the clear facts of her case, the INCAP application was denied because there was no LOD. e. The Maryland Army National Guard (MDARNG) found it necessary to complete a second LOD investigation that would treat the flare-ups as a separate event from the initial 2003 fall. An LOD was prepared by Lieutenant Colonel Mcxx on 21 January 2007 with a finding of in the LOD. For some reason, additional LOD investigating officers were appointed, all of whom determined her to be in the LOD. The 2012 and 2014 NLOD findings were improper because they were based on the bifurcation of the 2003 fall and the 2005 flare-ups. The simple fact that she was not literally on duty when the flare-ups occurred does not warrant a finding of NLOD. f. The proper issue to examine here is the proximate cause of her injuries. The proximate cause is the March 2003 fall, because absent the head injury she sustained she would not have post-concussive syndrome. A determination that the injury was due to her own misconduct is improper. There is absolutely no evidence of misconduct in this case. She suffered a head injury and has reoccurring headaches as a result of a medically diagnosed condition of post-concussive syndrome. Her records should be corrected to reflect the proper finding of in the LOD. g. The finding should be reconsidered because her use of Tylenol is not the proximate cause of her injury. Furthermore, the time between the initial incident and the experience of symptoms does not prove she did not suffer the injury in the LOD. 3. The applicant provides copies of: * two DA Forms 2173 (Statement of Medical Examination and Duty Status) * Union Memorial Hospital Discharge Orders and Instructions and medical documentation * LOD Determination memoranda * LOD Appeal memoranda CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the MDARNG on 14 April 1997 and she held military occupational specialty 88M (Motor Transport Operator). 2. She provided: a. A DA Form 2173 showing she was admitted to Union Memorial Hospital on 1 April 2003. The form stated she had a slip and fall injury to her back and head after falling on the ice while carrying her luggage to her car; she then over medicated herself for pain control which caused Tylenol toxicity. The form also indicated a formal LOD investigation was required and the injury was considered to have occurred in the LOD. b. Union Memorial Hospital Discharge Orders and Instructions, dated 4 April 2003, showing she was diagnosed with hepatitis, Tylenol toxicity, and back pain. c. A DA Form 2173 showing she was seen at a military hospital on 8 May 2003 for a possible fall-related injury. The form stated she was on orders to PLDC at Fort Indiantown Gap, PA, and slipped and fell down on ice on 30 March 2003. The form also indicated a formal LOD investigation was required and the injury was considered to have occurred in the LOD. d. A Response to LOD Determination memorandum, dated 23 October 2012, wherein the applicant's counsel advised of her appointment in the matter of the applicant's LOD determination for an incident occurring on 30 March 2003. She was requesting reconsideration of the determination. e. An LOD Determination memorandum, dated 19 March 2014, wherein the Chief, Personnel Division, NGB, stated after review of all of the medical evidence the NGB Surgeon determined the proximate cause of the applicant's medical condition was the ingestion of 24 500mg tablets in an 8 hour period. The applicant was willfully negligent in disregarding the label directions for consumption of Tylenol tablets when self-medicating. Also, the applicant failed to act and receive professional medical treatment for back pain prior to using over-the-counter medication. She advised the applicant of her rights. f. An LOD Determination memorandum, dated 21 March 2014, wherein a Health Systems Specialist, MDARNG, forwarded the applicant her official NLOD-DOM notification. She advised the applicants of her rights. g. An Appeal of LOD Determination memorandum, dated 29 April 2014, wherein the applicant's counsel submitted an appeal of the 19 March 2014 memorandum. Counsel stated: (1) The applicant's records indicated there were multiple injuries related to the 2003 fall. The applicant did not commit misconduct, i.e., drug abuse. The applicant recalled taking 8 to 10 250mg Tylenol tablets. She did not recall reporting to the emergency room doctor that she took 24 500mg Tylenol tablets over a 24 hour period. (2) Rule 1 was clear that when making a LOD determination, whether the injury was due to own misconduct must be asked. Rule 2 read that simple negligence was not misconduct. (3) Clearly, the applicant's Tylenol use, which she contended was normal, was not the cause of her injuries. Rather it was a reaction of her injuries. The Tylenol ingestion was after the fall. It did not cause the fall. The subsequent injuries that the applicant was now complaining of were related to the fall, not the Tylenol. h. An LOD Investigation Appeal memorandum, dated 30 June 2014, wherein the Director, Casualty and Mortuary Affairs Operations Center, U.S. Army Human Resource Command (HRC), advised the applicant of the following: (1) After a thorough administrative review of her LOD Investigation, HRC determined the finding of NLOD-DOM would stand. (2) Within the investigation it was unclear how many Tylenol tablets were taken in an 8 hour period. By the applicant's own admission, she took 8-10 250mg tablets over the course of 4 hours. That totaled between 2.00 to 2.58 grams, which was in excess of the recommended dosage, but less than what would be considered a toxic dose that could cause liver failure. (3) Evidence pointing to a lower dose of medication was borne out by her acetaminophen level of less than 10 micrograms/milliliter (mcg/ml) while she was in the emergency room. Either way, she knew or reasonably should have known that whatever amount she took, she was exceeding the manufacture's recommended amount. Taking the amount of acetaminophen within the period shown was the proximate cause of the illness and was evidence of gross misconduct. He advised the applicant of her rights. 3. On 13 March 2015, an informal Physical Evaluation Board (PEB) convened and considered and rated her medical conditions of major depressive disorder, migraines including migraine variants, and diabetes mellitus. The PEB found her physically unfit for the aforementioned conditions and recommended her permanent disability retirement with a combined rating of 70 percent. The PEB found her fit for the following conditions: lumbar strain, allergic rhinitis, bilateral sensorineural hearing loss, and cognitive disorder. She concurred with the findings of the PEB and waived her right to a formal hearing on 19 March 2015. The PEB was approved on 21 April 2015. 4. She was medically retired from the MDARNG on 22 May 2015, by reason of permanent disability. She completed 15 years of service. 5. In an advisory opinion, dated 19 May 2016, the Deputy Chief, Personnel Policy Division, NGB, reiterated the applicant's request for reconsideration of the 19 March 2014 LOD determination of NLOD-DOM and recommended disapproval. The NGB official stated: a. On 30 March 2003, while on active duty orders for PLDC in Fort Indiantown, PA, the applicant stated she slipped and fell in a parking lot carrying a heavy duffle bag and injured her back and head. The applicant stated her back pain worsened once arriving home. She went to the Union Memorial Hospital Emergency Room on 1 April 2003 due to the increasing pain. She was admitted to the emergency room with a chief complaint of a burning sensation in her stomach and back. The medical records noted that the applicant stated she took 24 tablets of extra-strength Tylenol over an 8 hour period. She was treated and discharged on 4 April 2003 with a final diagnosis of drug-induced hepatitis, thyroid toxicity, and back pain, as noted in the discharge order and instructions from Union Memorial Hospital. b. An informal LOD investigation was conducted which resulted in a finding of "NLOD-DOM" on 30 June 2014. The DD Form 261 (Report of Investigation – LOD and Misconduct Status) noted the original LOD investigation was conducted without the emergency room documentation. c. An LOD determination is essential for protecting both the individual concerned and the U.S. Government where service is interrupted by injury, disease, or death (AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 2-1). Although the applicant contends that the proximate injury was back pain which subsequently led her to take the Tylenol, it would have been negligent of the applicant's command to disregard the diagnosis of hepatic poisoning based on the newly submitted medical documentation from Union Memorial Hospital. d. The applicant and her counsel referred to a consultation, dated 4 April 2003, which stated the applicant's acetaminophen level was less than 10 mcg/ml in the emergency room. His office requested the applicant submit additional medical documentation from the emergency room visit, admission, and discharge from Union Memorial Hospital. The documents provided by the applicant were reviewed by the ARNG, Office of the Chief Surgeon. The Chief Surgeon noted that the applicant's Tylenol level was 18.42 mcg/ml. The specimen was collected on 1 April 2003 at 17:44 hours. The applicant's original statement in the emergency room was consistent with the lab results. e. The Union Memorial Hospital listed diagnoses of drug-induced hepatitis, thyroid toxicity, and back pain in the discharge summary. The proximate cause of the applicant's back pain was the fall incurred on active duty. Additionally, the proximate cause of the applicant's stomach pain was the ingestion of excessive amounts of Tylenol which led to drug induced hepatitis. Lab results at the time of admission confirm that finding. Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct (AR 600-8-4, Appendix B, Rule 3). The new finding of "NLOD-DOM" is valid. f. The advisory opinion was coordinated the ARNG, Office of the Chief Surgeon. The MDARNG concurred with the recommendation. 5. The advisory opinion was provided to the applicant on 20 May 2016 for acknowledgement/rebuttal. She did not respond. REFERENCES: 1. AR 600-8-4 prescribes procedures for investigating the circumstances of disease, injury, or death of a Soldier and standards and considerations used in determining LOD status. The regulation states in: a. Appendix B: (1) Rule 1 – Injury, disease, or death directly caused by the individual’s misconduct or willful negligence is not in the LOD. It is due to misconduct. This is a general rule and must be considered in every case where there might have been misconduct or willful negligence. Generally, two issues must be resolved when a Soldier is injured, becomes ill, contracts a disease, or dies – (1) whether the injury, disease, or death was incurred or aggravated in the LOD; and (2) whether it was due to misconduct. (2) Rule 2 – Mere violation of military regulation, orders, or instructions, or of civil or criminal laws, if there is no further sign of misconduct, is no more than simple negligence. Simple negligence is not misconduct. Therefore, a violation under this rule alone is not enough to determine that the injury, disease, or death resulted from misconduct. However, the violation is one circumstance to be examined and weighed with the other circumstances. (3) Rule 3 – Injury, disease, or death that results in incapacitation because of the abuse of alcohol and other drugs is not in the LOD. It is due to misconduct. This rule applies to the effect of the drug on the Soldier’s conduct, as well as to the physical effect on the Soldier’s body. Any wrongfully drug-induced actions that cause injury, disease, or death are misconduct. That the Soldier may have had a pre-existing physical condition that caused increased susceptibility to the effects of the drug does not excuse the misconduct. b. Paragraph 3-6a – The LOD appointing authority must review all informal LOD investigations to determine the proper action to be taken. After the informal LOD investigation had been reviewed, the approving authority would take action. Commanders must initiate and complete LOD investigations, despite a presumption of NLOD. An NLOD determination can only be made with a formal LOD investigation. 2. AR 135-381 (ARNG and of the U.S. and Army Reserve – Incapacitation of Reserve Component (RC) Soldiers) prescribes policies and implements statutory authorities regarding INCAP and allowances and reviews requirements on those entitlements for RC Soldiers. Paragraph 1-6 of the regulation states a member of the RC incurring or aggravating any injury, illness, or disease in the line of duty was entitled to medical and dental care, INCAP, and travel and transportation incident to medical and/or dental care. INCAP would be paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation. 3. AR 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION: 1. The evidence shows the applicant sustained an injury while attending PLDC in March 2003. The incident was initially determined to be in the LOD. She was subsequently admitted to a civilian hospital for back pain as a result of the fall. Upon her discharge, she was diagnosed with hepatitis, Tylenol toxicity, and back pain. An LOD investigation resulted in a finding of "NLOD-DOM." She appealed, and after review of her emergency room documentation, a second LOD investigation determined her actions were the result of misconduct due to her ingestion of more than the normal amount of Tylenol. HRC upheld the original "NLOD-DOM" determination. 2. The evidence shows the LOD investigation and determination were accomplished in compliance with applicable regulations then in effect with no indication of procedural errors which would have jeopardized her rights. The Deputy Chief, Personnel Policy Division, NGB, after coordination with the Office of the Chief Surgeon, ARNG, recommended disapproval of the applicant's request. 3. With respect to her request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant was sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012595 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012595 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2