BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003698 BOARD VOTE: ___x______ ___x____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003698 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. filing the formal line of duty line investigation (i.e., the DD Form 261 and approval memorandum) in his Army Military Human Resources Record/Official Military Record (restricted folder) and b. notifying The Office of The Surgeon General to conduct a review of the medical records considered by this Board (attached to this Record of Proceedings) and ensure the appropriate medical records are filed in the applicant's electronic medical record (Armed Forces Health Longitudinal Technology Application). ___________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. BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003698 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his military service records by adding a line of duty (LD) investigation (LDI) and related documents to his electronic medical records maintained in the Armed Forces Health Longitudinal Technology Application (AHLTA). 2. The applicant states he sustained a lower back injury while performing military duties in 1997. His military medical records do not show a record of timely medical treatment pertaining to the injury. However, treatment of the injury that he received over the next 18 years is sporadically included in his medical record. a. In February 2015, a formal LDI was conducted and the investigating officer (IO) determined the injury should be found in the line of duty. The determination was based on documentation in his AHLTA medical record and records gathered by the IO. He states the documents were previously submitted for inclusion in his AHLTA record, but the documents were either lost or not properly processed, which was due to no fault of his own. He adds that errors in medical recordkeeping cannot be traced to one specific medical treatment facility. b. He attempted to include the records for consideration of his case by the physical disability evaluation system. His appeal to the National Guard Bureau (NGB) Surgeon, dated 29 May 2015, contained documentation that described the injury and the medical treatment he received since the injury occurred. However, that documentation was not considered during the appeal process. The explanation provided for not considering the documents was because they were not in the AHLTA system used by medical providers of the Department of Defense (DOD). 3. The applicant provides copies of: * the missing medical documents * Standard Form (SF) 93 (Report of Medical History), dated 1 December 1997 * two DD Forms 2697 (Reports of Medical Assessment), dated 1 December 1997 and 6 December 2005 * LD appeal, dated 29 May 2015 * radiology reports (2007 to present) * Department of Veterans Affairs (VA) Active Problem List (2014 and 2015) * AHLTA medical record (obtained from Ohio Army National Guard (ARNG)) CONSIDERATION OF EVIDENCE: 1. An SF 93, prepared by the applicant on 4 October 1994, in pertinent part, shows in: * item 10 (DO you: wear a brace or back support?), a checkmark and initials in the "Yes" block and a checkmark in the "No" block * item 25 (Physician's Summary and Elaboration of All Pertinent Data), with reference to item 10 shows: "Does not wear a brace or back support." 2. An SF 88 (Report of Medical Examination), prepared by the examining physician to document the applicant's entrance examination on 4 October 1994, in pertinent part, shows in the Clinical Evaluation section: * item 38 (Spine, Other Musculoskeletal), a checkmark in the "Normal" block * item 76A (Physical Profile): "111111" * item 77 (Examinee), the applicant was found qualified for service 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 4 October 1994 for a period of 8 years. He further enlisted in the Regular Army on 18 January 1995 for a period of 3 years. He was awarded military occupational specialty (MOS) 19D (Cavalry Scout). 4. A DD Form 2697, signed by the applicant and completed by a physician on 1 December 1997, in pertinent part, shows in: * item 15 (Do you have any conditions which currently limit your ability to work in your primary MOS or require geographic or assignment limitations?), a slanted line in the "Yes" block and the entry "Still get pain on left mid-section." * item 17 (Do you have any other questions or concern about your health?), a slanted line in the "Yes" block and the entry "discomfort in back and backs of feet" * item 22 (Purpose of Assessment), an "X" in the box for "Separation" 5. An SF 93, prepared by the applicant on 1 December 1997, in pertinent part, shows in: * item 8 (Statement of Examinee's Present Health and Medications Currently Used): "Pain on back of heels, stiffness in lower back, pain in left side by hip." * item 11 (Have you ever had or have you now: recurrent back pain?), a slanted line in the "Yes" block * item 25, with reference to item 11 shows: "Reports tight lower back [with] flexion." 6. An SF 88, prepared by the examining physician to document the applicant's separation examination on 1 December 1997, in pertinent part, shows in item 17 (Clinical Evaluation): * block W (Spine, Other Musculoskeletal), a line in the "Normal" block * item 46A (Physical Profile), "111111" * item 77 (Examinee), the applicant was found qualified for separation 7. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was honorably released from active duty on 17 January 1998 based on completion of required active service and transferred to the USAR Control Group (Reinforcement). He completed 3 years of net active service this period. 8. The applicant enlisted in the ARNG of the United States (ARNGUS) and in the Ohio ARNG (OHARNG) on 18 January 1998. He was promoted to staff sergeant (E-6) on 25 November 2006. He is currently serving in the ARNG. 9. State of Ohio, Adjutant General's Department, Columbus, OH, memorandum, dated 1 March 2017, shows a request to extend the applicant for the convenience of the Government for medical reasons was approved for a period of 12 months. 10. U.S. Army Human Resources Command (HRC), AHRC-PLO, Fort Knox, KY, Orders Number HR-7075-00033, dated 16 March 2017, as amended by Orders Number HR-7075-00033A01, dated 6 April 2017, ordered the applicant to active duty on 5 April 2017 for a period of 1 day to participate in the Reserve Component Managed Care-Evaluation/Disability Evaluation System. 11. A review of the applicant's Army Military Human Resource Record (AMHRR) and Official Military Personnel File (OMPF) failed to reveal a DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) pertaining to the matter under review. 12. In support of his application the applicant provide the following documents. a. VA memorandum, dated 7 June 2007, subject: Formal Finding on the Unavailability of Service Medical Record. It shows the VA determined the applicant's service medical records for the period 18 January 1995 to 17 January 1998 and from 30 October 2004 to 16 December 2005 are unavailable for review. It also shows the efforts made by the VA to obtain the medical records. b. A DA Form 2173 (Statement of Medical Examination and Duty Status) that was prepared on 27 May 2014 based on the applicant's outpatient visit to the Youngstown VA medical facility on 3 February 2013 for an injury that occurred on 30 March 1997. The nature of the injury is listed as disc disease not otherwise specified – lumbar; lumbosacral disc degeneration. It also shows, in pertinent part, on 17 September 2014, it was determined a formal LD was required. c. OHARNG, Adjutant General Office, Columbus, OH, memorandum, dated 27 February 2015, subject: LD Determination (pertaining to applicant) IO Findings (with 21 exhibits). It shows the IO was appointed to perform an LDI pertaining to the applicant's injuries that occurred (on 30 March 1997) while he was on active duty from 18 January 1995 to 17 January 1998. The IO concluded that, based on the documentation, there is evidence that the applicant did report (in December 1997) that he injured his back. He noted there was no record of medical treatment, profile, or LDI completed while the applicant was on active duty. Subsequent to his active duty, there was evidence that he had an injury while working at his civilian place of employment. Upon return from deployment to Kuwait/Iraq (December 2005), the applicant reported increased persistent back pain. The IO concluded that it is more likely than not that the applicant was injured while on active duty and he recommended a finding of In Line of Duty. (1) The IO prepared a DD Form 261, dated 23 February 2015, pertaining to an injury the applicant sustained while conducting ammunition operations for gunnery on 30 March 1997 at Fort Carson, CO. It shows the medical diagnosis as degeneration of lumbar or lumbosacral intervertebral disc. It also shows the: * IO recommended "In Line of Duty" on 23 February 2015 * appointing authority approved the LDI on 27 February 2015 * reviewing authority approved the LDI on 27 March 2015 * Chief, NGB's final approval of "Not In Line of Duty-Not Due To Own Misconduct" on 8 May 2015 (2) State of Ohio, Adjutant General's Department, Columbus, OH, memorandum, dated 16 March 2015, subject: Legal Review (of the LDI). It shows the Joint Staff Judge Advocate reviewed the LDI and found it legally sufficient. He found the IO's finding that "PV1 Day" (sic) was In Line of Duty is supported by credible evidence and the regulation. (3) NGB, Arlington, VA, memorandum, dated 30 April 2015, subject: Surgeon Medical Opinion (pertaining to the LDI). It shows the NGB Surgeon Administrator confirmed there is no medical documentation provided from the initial period of active service. Medical documentation notes a back injury as the result of an injury on 7 June 2002 at civilian employer. He found the injury "Not In Line of Duty, Not Due To Own Misconduct." (4) NGB, Arlington, VA, memorandum, dated 8 May 2015, subject: LD Determination (pertaining to the applicant). It shows the Chief, Personnel Division, forwarded the LD determination (Not In Line of Duty–Not Due To Own Misconduct for Lumbosacral Disc Disease) to the applicant's command. He referenced Army Regulation 600-8-4 (LD Policy, Procedures, and Investigations), paragraph 4-8e(2), "If an existed prior to service condition is not aggravated by military service, the determination will be 'not in LD – not due to own misconduct'. Per the NGB Surgeon there is no medical documentation provided from theater or from the period of active duty. There is a history of Back Injury occurring at [applicant's] civilian employer in 2003 and documentation of increased pain starting in December 2013, but there is no evidence that the Degenerative Disc Disease or Herniated Discs are directly related to the military service nine years prior to the evaluation." (5) In a letter, dated 29 May 2015, the applicant appealed the LD determination. He asserted the initial injury occurred while he was serving on active duty in March 1997. He listed his dates of medical treatment and therapy since 1997. d. The applicant provided copies of his medical records spanning the period 28 September 1994 to 15 December 2014. A detailed summary of the medical records is provided by a medical official and summarized in a medical advisory opinion. 13. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 11 April 2017. a. The ARBA senior medical advisor noted that he was asked to determine if the applicant's alleged medical condition(s) warranted separation through medical channels and/or if any medical condition(s) was/were not considered during medical separation processing. b. The opinion was based on the information provided by the Army Board for Correction of Military Records, records submitted by the applicant in his application (i.e., a 1.5 inch stack of medical and administrative documents), the applicant's records available in the interactive Personnel Electronic Records Management System, DOD electronic medical record (AHLTA), and VA records available through the Joint Legacy Viewer (JLV). c. The ARBA medical advisor noted the applicant's deployment to Kuwait and Iraq. d. He provided a summary of his review of the applicant's medical records. He noted medical examinations on 4 October 1994, 1 December 1997 (lower back pain), and 18 November 2000, found the applicant qualified for retention/ separation with no indication of a back injury. e. A review of his AHLTA records revealed no clinical encounters. He noted primary care provider evaluations, as follows: * On 19 June 2007, grossly normal lumbar spine with questionable retrolisthesis of L5 on S1 vertebra. * On 6 July 2007, a CT of lumbar spine revealed multilevel degenerative changes with central disc protrusion most marked at the L4-L5 level, which effaces the anterior central aspect of thecal sac. Less prominent central disc protrusion at the L5-S1 level. Consideration of Magnetic Resonance Imaging (MRI) for further assessment, if clinical indicated. f. A DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 7 August 2008, that shows the applicant "fully fit" and "healthy with PULHES 111111." g. He provided the following summaries: * MRI lumbar spine (20 January 2014) – disc degeneration of mild facet arthropathy at L4-5 and L5-S1. Small disc protrusions/herniation at L4-5 and L5-S1 without displacement or compression of nerve roots. Mild to moderate narrowing of the neural foramina at L4-5. Moderate narrowing of the left neural foramen and severe narrowing of the right neural foramen at L5-S1. * MRI lumbar spine (2 December 2014) for surgical planning (failed conservative treatment); degenerative disc disease of the lumbar spine, more prominent at L4-L5 and L5-S1 level: mild disc space narrowing. Mild disc-osteophytic bulging with a small central disc protrusion. Bilateral mild-to-moderate neuroforaminal narrowing. Mild central canal stenosis. At L5-S1 level: mild disc-osteophytic bulging with a central and right paracentral disc protrusion. Bilateral moderate neuroforaminal narrowing. Posterior central and right paracentral annular. h. OHARNG memorandum, dated 27 February 2015 (with 21 exhibits), subject: LD Determination, concluded the back injury the applicant sustained on 30 March 1997 was reported in December 1997. There was no record of medical treatment, physical profile, or an LDI for a back injury while he was on active duty. There is evidence (a medical examination, dated 7 June 2002) of an injury that he sustained during his civilian employment. (1) An NGB memorandum, dated 30 April 2015, noted there is no medical document provided from the theater or the period of active duty. There is evidence of a back injury occurring at his civilian employer in 2003 with increased pain starting in December 2013. There is no evidence that degenerative disc disease or herniated discs are directly related to military service nine years prior. (2) NGB memorandum, dated 8 May 2015, and DD Form 261, with a final LD determination on applicant of Not In Line of Duty–Not Due to Own Misconduct for lumbosacral disease. i. Limited review of VA records through the JLV shows 24 entered problems that include: major depression, irritable bowel syndrome, testicular hypofunction, hyperlipidemia, other obesity, spondylosis lumbar region and low back pain, post-traumatic stress disorder (PTSD), type 2 diabetes mellitus, gastroesophageal reflux, elbow pain, impotence, primary fibromyalgia, vitamin D deficiency, shoulder joint pain, and others. The applicant is VA service connected and rated at 80% (or 90% per notes) overall (depression, 50%; fibromyalgia, 40%; irritable bowel syndrome, 30%; and shoulder, 20%). j. Based on the available documentation, the senior medical advisor found: * the available record reasonably supports PTSD or another boardable behavioral health condition existed at the time of the applicant's service (major depression, though PTSD is also listed in the VA problem list) * it is unclear if the applicant met medical retention standards that were applicable to his era of service (permanent profile PULHES with S-1) k. The ARBA senior medical advisor found the applicant did not meet medical retention standards for lumbar back pain/degenerative disc disease (permanent profile, dated 8 January 2016, for PTSD and herniated lumbar disc with PULHES 113111) in accordance with (IAW) Army Regulation (AR) 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. l. He also found the applicant met medical retention standards for other physical, medical, and/or behavioral conditions IAW AR 40-501, chapter 3, and IAW AR 635-40 that were applicable to the applicant's era of service. m. The ARBA senior medical advisor concluded that the applicant's medical conditions were duly considered during his medical separation processing. He noted the applicant is currently undergoing Reserve Component Disability Evaluation System (Enhanced) processing and pending physical disability determination. His review of the available documentation found some evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 14. On 11 April 2017, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 600-8-4 prescribes the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provides standards and considerations used in determining LD status. It also provides the reasons for conducting LDIs, which include extension of enlistment, longevity and retirement multiplier, forfeiture of pay, disability retirement and severance pay, medical and dental care for Soldiers on duty other than active duty for a period of more than 30 days, and benefits administered by the VA. a. Chapter 2 (LD Determinations), paragraph 2-6 (Standards applicable to LD determinations), shows that decisions on LD determinations will be made IAW the standards set forth in this regulation. b. Chapter 4 (Special Considerations and Other Matters Affecting LDIs), paragraph 4-8 (Medical treatment), in pertinent part, shows injury or disease prior to service. (1) The term "EPTS" [Existed Prior To Service] is added to a medical diagnosis if 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. (2) 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 EPTS. 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." (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. 2. AR 40-66 (Medical Record Administration and Health Care Documentation) prescribes policies for preparing and using medical reports and records. a. Chapter 2 (Confidentiality of Protected Health Information (PHI)), paragraph 2-4 (Disclosure without consent of patient), shows that medical records may be released based on requests from personnel within the DOD. It also provides examples of regulatory programs that do not require a Soldier's authorization for PHI disclosure and, in pertinent part, includes to initiate LD determinations and to assist IOs according to AR 600-8-4 and also to conduct medical evaluation boards and administer physical evaluation board findings according to AR 635-40 and similar requirements. b. Chapter 3 (Preparation of Medical Records) shows the forms authorized for use in medical and dental records are listed in various chapters and figures throughout the regulation. Section II (Medical Record Entries), paragraph 3-4 (General), shows that entries will be made in all inpatient, outpatient, service treatment, dental, Army Substance Abuse Program, and occupational health records by the healthcare provider who observes, treats, or cares for the patient at the time of observation, treatment, or care. This documentation requirement applies to both electronic and paper records. 3. AR 600-8-104 (AMHRR) provides policies, operating tasks, and steps governing the AMHRR/OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. a. Table B-1 (Authorized Documents) provides guidance for filing records and documents in the AMHRR/OMPF. It shows the DD Form 261 will be filed in the Service folder of the OMPF only for LDs for injuries found "In Line of Duty". File the DD Form 261 and accompanying memorandum; do not file medical treatment documents. All injury LDs found "Not In Line of Duty" and LDs for death are forwarded to U.S. Army HRC for final approval. For ARNG Soldiers, file the final DD Form 261 only. b. The restricted folder of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this folder is controlled. It may not be released without written approval from the Commander, U.S. Army HRC or the Department of the Army selection board proponent. Documents in the restricted folder of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the U.S. Army. DISCUSSION: 1. The applicant contends, in effect, that his military service records should be corrected by adding the approved LDI and related medical records. 2. Records show the applicant served on active duty from 18 January 1995 to 17 January 1998. Records also show he first reported a lumbar strain during his separation physical examination on 1 December 1997. There is no record of an LDI being conducted during the period of active duty under review. 3. The evidence of record shows an informal LD was initiated on 27 May 2014 based on an injury the applicant was seen for at a VA medical facility on that date that was reported to have occurred on 30 March 1997. This resulted in the appointment of an IO to conduct a formal LDI into the circumstances surrounding the applicant's injury. a. The DD Form 261 shows a medical diagnosis of degeneration of lumbar or lumbosacral intervertebral disc. It also shows, on 8 May 2015, the Chief, NGB, found the injury was "Not In Line of Duty-Not Due To Own Misconduct." b. On 29 May 2015, the applicant appealed the LD determination. A copy of the appeal authority's decision is not available. However, based on the evidence of record, it is reasonable to conclude that the applicant's appeal was denied. 4. The evidence of record shows: a. the formal LDI (i.e., DD Form 261 and NGB memorandum, dated 8 May 2015) are not filed in the applicant's AMHRR/OMPF; and b. the pertinent medical records that under review (for the period 18 January 1995 to 17 January 1998 and 30 October 2004 to 16 December 2005) are not filed in the applicant's electronic medical record (AHLTA). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003698 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003698 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2