IN THE CASE OF: BOARD DATE: 4 January 2021 DOCKET NUMBER: AR20170015310 APPLICANT REQUESTS: amendment of her line of duty (LOD) investigation appeal to show a finding of in the LOD – not due to own misconduct APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored memorandum * Standard Form 93 (Report of Medical History) * Standard Form 88 (Report of Medical Examination) * DD Form 4 (Enlistment/Reenlistment Document) * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * U.S. Army Diploma, Medical Specialist Course * Standard Form 600 (Chronological Record of Medical Care) * three DA Forms 3349 (Physical Profile) * Procedure Worksheet - Radiology * Standard Form 588 (Emergency Care and Treatment) * two DA Forms 2173 (Statement of Medical Examination and Duty Status) * five Joint Force Headquarters Virgin Islands National Guard Physician’s Statements * Acute Alternative Medical Group document * doctor visit notes * ST. Croix MRI Request * VI Orthopaedics and Sports Medicine Active Physical Therapy note * National Guard Bureau (NGB) memorandum regarding Line of Duty (LOD) determination * DD Form 261 (Report of Investigation LOD and Misconduct Status) * DA From 2823 (Sworn Statement) * U.S. Army Human Resources Command (AHRC) memorandum regarding LOD investigation determination FACTS: 1. The applicant states: a. On 23 September 2015, she received notification of a not in the LOD – not due to own misconduct determination. More than 1 1/2 years later on 27 March 2017, she was finally able to obtain the relevant service treatment records from the Department of Veterans Affairs (VA) Records Management Center in St. Louis, MO. These records were requested to provide supporting evidence and documentation about the status of her health when she entered Army Basic Combat Training (BCT) on 12 January 1989 and to support her claim that the underlying rotator cuff tendinosis did not exist prior to service. She is entitled to a determination of in the LOD – not due to own misconduct. b. These documents will also show she was being truthful when she said she sustained a shoulder injury during BCT at Fort Dix, NJ, back in 1989. After the injury and many weeks of physical therapy for what a doctor said was a torn trapezius muscle, she was “recycled” from her original company (Delta) to Alpha Company and could not graduate with her class. While in Alpha Company, she was constantly harassed about her inability to take part in any physical activities, to include the Army Physical Fitness Test (APFT), due to her injury. c. Additionally, on more than one occasion, she was encouraged to sign paperwork discharging her from active duty with disability payments for her injury, which she did not do. She was made to feel ashamed and degraded for not being able to participate 100 percent. Subsequently, she spent 12 weeks in BCT versus the required 8 weeks before she could take and pass her APFT and move on to Advanced Individual Training (AIT) at Fort Sam Houston, TX. She provides a chronological list of medical records she included with her application. The Standard Form 93 she provided demonstrates she did not have any medical issues with her shoulder upon entry into military service. d. Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), paragraph 4-8f (1), states that a Soldier of the Army National Guard (ARNG) is presumed to have been in sound physical and mental condition upon entering active duty, while performing active duty for a period of 30 days or less, or while performing inactive duty training. To overcome this, it must be shown by substantial evidence that the injury was sustained while neither on active duty nor on authorized training. Furthermore, paragraph 2-6 states that an injury is presumed to be in the LOD unless refuted by substantial evidence contained in the investigation. She has consistently stated that her injury occurred during BCT, causing her to be “recycled.” e. Any physical condition having its inception in the LOD during one period of authorized training that recurs or is aggravated during a later authorized training, regardless of the time in between, should be found in the LOD, per paragraph 4-8f (3). She injured her shoulder during BCT in 1989, reinjured it in 1992, and then reinjured it again in 1998 and in 2014 while on authorized training. The documents she provided as evidence support her assertion that she was injured in the LOD. Her injury was service-connected and further aggravated by military service. f. Based on the documents submitted with this appeal, she respectfully requests that her LOD determination be reversed and it be determined that her injury was incurred in the LOD – not due to own misconduct. 2. The applicant provided a Standard Form 93 and a Standard Form 88, both dated 21 December 1988, that show she underwent medical examination on the date of the forms for the purpose of ARNG enlistment. Neither form indicates a shoulder injury. She was found qualified for service with a physical profile rating of “1” in all categories. 3. The applicant subsequently enlisted in the ARNG on 21 December 1988. 4. A DD Form 214 shows she entered a period of active duty for training (ADT) on 12 January 1989 and was released from active duty on 23 June 1989 after completion of her ADT with the culmination of her graduation from the Army Medical Specialist Course and the awarding of the military occupational specialty (MOS) 91A (Medical Specialist). 5. A Standard Form 600 contains a note, dated 13 January 1991, which shows she stated she suffered an injury to her left shoulder during hand-to hand combat practice in 1989. She was seen at the dispensary, treated, and profiled. She currently experienced pain when lifting heavy objects or reaching overhead. 6. A DA Form 3349 shows she was given a temporary physical profile rating of “2” for upper extremities on 13 January 1991 due to recurring myositis (muscle inflammation) of the left shoulder. The physical profile limited her to no heavy lifting over 15 pounds until 12 May 1991. 7. A Procedure Worksheet – Radiology dated 28 September 1992, shows the applicant was ordered to radiology for an X-ray of her left shoulder due to chronic shoulder pain lasting 2 years after trauma. 8. A Standard Form 558, shows: * the applicant was seen for emergency care and treatment of her left shoulder on 29 September 1992 as an ARNG Soldier on active duty for a Reforger exercise due to end in 3 days * her chief complaint was a history of shoulder pain lasting 2 years after an apparent contusion * there were signs of impingement and tenderness in the upper trapezius area and myofascial pain and she would receive an X-ray to confirm * the assessment and diagnosis was myofascial pain in upper trapezius with no injury * she was to use moist heat, take Motrin, and was placed on a physical profile for what appears to be 2 weeks 9. A DA Form 2173 dated 22 March 1998, shows: * the applicant bruised her left forearm and strained her left shoulder on 22 March 1998 while on inactive duty training (IDT) * she was examined on 22 March 1998 and the details of the accident state she was assisting in the APFT when she tried to keep a Soldier from falling; the falling Soldier grabbed the applicant on the left arm and pulled her to the ground * the remarks state she had an old shoulder injury to her left shoulder from BCT with a torn muscle and sudden weight jerk caused her discomfort * a formal LOD investigation was not required and the injury was considered to have been incurred in the LOD 10. A medical record from Acute Alternative Medical Group, dated 14 April 2014, shows: * the applicant was seen on the date of the form for upper back, left shoulder, and thoracic back pain, reporting this was a chronic issue for her after injuring her left shoulder and back during BCT approximately 20 years earlier * her acute episode for which she was being seen started a few days ago after lifting a bag * her upper extremity was deemed abnormal due to trapezius muscle tightness and the area being tender to the touch * the assessment was trapezius sprain * she was advised to apply heat, do stretching exercises and her prescriptions for Percocet and Flexeril were refilled 11. A Joint Forces Headquarters, Virgin Islands National Guard Physician’s Statement, dated 14 April 2014, shows: * the applicant was seen on the date of the form for an injury that occurred while on duty for which a DA Form 2173 was initiated and approved * the date and place of its occurrence was 1989 in BCT * she had been seen by this doctor since October 2012 * her diagnoses were strain of trapezius muscle, chronic left arm pain, and chronic pain * she was restricted to limited lifting with her bilateral upper extremities * her restrictions were permanent * her treatment included pain medication and manual therapy 12. A second DA Form 2173, dated 16 May 2014, shows: * she was examined on 10 April 2014 at Acute Alternative Medical Group for acute trapezius strain that she incurred on 10 April 2014 as well as known chronic trapezius strain incurred in BCT in 1989 * she was on IDT on 10 April 2014 * the details of the accident show on the date of the injury she was lifting her duffle bag from her car when she felt a terrible pain in her left shoulder and was unable to lift the bag and had to be assisted with everything she did that day * a formal LOD investigation was not required and the injury was considered to have been incurred in the LOD 13. The applicant provided documents showing she was seen for preventive care treatment with C____ for a sprain in shoulder or upper arm, painful shoulder joint, partial tear of rotator cuff, bursitis and tendonitis of shoulder, sprained back, and neck problems on 15 occasions between 14 April 2014 and 10 July 2014. 14. A Joint Forces Headquarters, Virgin Islands National Guard Physician’s Statement, dated 4 February 2015, shows: * the applicant was seen on the date of the form for an injury that occurred while on duty for which a DA Form 2173 was initiated and approved * she had been seen by this orthopedist since 23 December 2014 * her diagnosis was strain of trapezius muscle * she was limited to no upper body activities until her next evaluation on 18 March 2015 * her treatment included injections and acupuncture 15. A St. Croix MRI Request shows an MRI of her left shoulder was requested on 13 May 2015, for persistent and recurring left shoulder pain and weakness. The MRI results are not in the applicant’s available records for review. 16. A Joint Forces Headquarters, Virgin Islands National Guard Physician’s Statement, dated 5 August 2015, shows: * she had been seen by this orthopedist since 23 December 2014 * her diagnosis was rotator cuff shoulder syndrome * the condition was not considered permanent * she was limited to no weight bearing activities/keeping her arm in a sling until her follow-up in 3 months for physical therapy reevaluation 17. A Joint Forces Headquarters, Virgin Islands National Guard Physician’s Statement, dated 28 October 2015, shows: * the applicant was seen on the date of the form for an injury that occurred while on duty * she underwent surgery on 3 August 2015 * she had been seen by this orthopedist since June 2014 * her diagnosis was coded as M66.211 (spontaneous rupture of extensor tendons, right shoulder) * she was limited to a lifting restriction of 5 pounds until her next evaluation on 1 December 2015 * her treatment included physical therapy 18. A VI Orthopaedics and Sports Medicine Active Physical Therapy note shows the applicant was seen in that office on 28 October 2015 and was deemed able to return to work until 4 November 2015 with the restriction of no lifting over 5 pounds with her upper extremity. 19. A Joint Forces Headquarters, Virgin Islands National Guard Physician’s Statement, dated 27 April 2016, shows: * the applicant was seen on the date of the form for an injury that occurred while on duty for which a DA Form 2173 was initiated and approved * she had been seen by this orthopedist since June 2014 * her diagnosis was rotator cuff tear * she was limited to a lifting restriction of 5 pounds for an unspecified period * her treatment included surgery and pain medication 20. A DD Form 261, dated 8 January 2015 shows an investigation of the applicant’s injury found the following: a. The investigating officer found the applicant aggravated a pre-existing (1989) chronic trapezius strain while on IDT on 9 April 2014. Upon arriving to the IDT reporting location, the applicant lifted and puller her duffle bag out of her car. When she performed this action, she presumably injured the area around her left shoulder. The investigating officer found this injury was incurred in the LOD. b. The appointing authority concurred with the investigating officer’s finding and approved the action on 15 January 2015 c. The reviewing authority concurred with the investigating officer’s finding. d. The approving authority, the Chief, NGB, did not concur with the investigating officer’s finding. On 26 May 2016, the approving authority determined the injury supraspinatus and infraspinatus tendonisis was not incurred in the LOD – not due to own misconduct. The reasons and substituted findings state in accordance with Army Regulation 600-8-4, paragraph 4-8e(2), if an existed prior to service condition (EPTS) is not aggravated by military service, the determination will be “not in LOD – not due to own misconduct.” Per the NGB Surgeon, there is no evidence of acute aggravation affecting the underlying condition of rotator cuff tendinosis which EPTS. The applicant had a 20-year history of chronic shoulder pain prior to a period of IDT with exacerbation 1-2 times per month. 21. An NGB memorandum, dated 26 May 2015, shows: a. The enclosed copy of DD Form 261 shows the final LOD determination for the applicant’s injury of supraspinatus and infraspinatus tendonisis was not in the LOD – not due to own misconduct. b. In accordance with Army Regulation 600-8-4, paragraph 4-8e (2), if an EPTS condition is not aggravated by military service, the determination with be not in LOD – not due to own misconduct. Per the NGB Surgeon, there is no evidence of acute aggravation affecting the underlying condition of rotator cuff tendinosis which EPTS. The applicant had a 20-year history of chronic shoulder pain prior to a period of IDT with exacerbation 1-2 times per month. c. The applicant was provided with a copy of the final LOD determination and informed of the appeal process. 22. A DA Form 2823, dated 18 June 2015, shows: a. Captain W____ made a sworn statement, as the commander of the unit at the time the unit was scheduled to perform individual weapons qualification at Camp Salinas, Puerto Rico in an IDT status from 10 - 12 April 2014. b. She states the applicant injured her shoulder as the unit was preparing to move out to the airlift earlier that day. The applicant’s posture and nonverbal gestures made it obvious she was in pain. After coordination, the applicant returned early from the IDT and was instructed that an LOD would be initiated and she needed to complete the medical portion with her medical provider. c. A DA Form 2173 was completed by her medical doctor on 14 April 2014, and CPT W____ signed the form on 16 May 2014. Since then, the applicant was in and out of a shoulder sling due to the injury. 23. An AHRC memorandum, dated 23 September 2015, shows: a. After a thorough administrative review of the applicant’s LOD appeal, they determined the finding of not in the LOD – not due to own misconduct would stand. Army Regulation 600-8-4, paragraph 4-8e (2), states if an EPTS condition was not aggravated by military service, the determination will be not in the LOD – 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 Department of Defense (Armed Forces Health Longitudinal Technology Application (AHLTA)), it was determined her diagnosis of supraspinatus infraspinatus tendonisis with partial thickness tearing was not service-connected or service aggravated. c. According to her LOD appeal, she initially injured her shoulder during BCT in 1989 and stated the injury to her shoulder occurred in the LOD in 1989. She aggravated her shoulder again in an incident while on active duty in 1992. She then re- aggravated the shoulder injury while on orders during an APFT in 1998. There are no medical records provided by her documenting treatment for these injuries and there are not any medical notes in AHLTA. BY her own admission, the condition is chronic and has been for the past 20 years. She also stated the condition exacerbates 1 – 2 times per month. d. There is no medical information provided that documents her shoulder re-injury occurred during IDT status on 10 April 2014. The sworn statement that was provided did not mention her lifting a duffle bag or any type of shoulder pain. Medical documentation shows she has had a history of acute exacerbations of shoulder pain over the past 20 years and by her own admission she was taking opiate pain medication for this issue. e. Without any medical documentation or corroborating witnesses to the shoulder injury on 10 April 2014, and given the chronic nature of her shoulder issues, as evidenced by her history and MRI results, there is no evidence that her shoulder pain was aggravated or worsened by military service. 24. A DA Form 3349, dated 3 March 2016, shows the applicant was given a temporary physical profile rating of “3” for physical capacity or stamina, upper extremities, and lower extremities due to a left shoulder rotator cuff injury. She was limited to no heavy lifting greater than 5 pounds until 2 May 2016. 25. A DA Form 3349, dated 27 September 2016, shows she was given a temporary physical profile rating of “2” for physical capacity or stamina due to chronic headache, “3” for upper extremities due to left shoulder injury/pain, and “2” for lower extremities due to ankle/foot injury/pain. 26. An NGB Form 22 (National Guard Report of Separation and Record of Service) shows the applicant was honorably discharged and transferred to the Retired Reserve effective 29 September 2019, after 30 years, 9 months, and 9 days of net service this period. 27. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor reviewed the supporting documents provided and the VA's Joint Legacy Viewer (JLV). 2. The applicant underwent her entrance physical examination on 21 December 1988 to enlist in the ARNG. There was no evidence of any shoulder injury past or present at the time of this exam. She was allowed to enter BCT on 12 January 1989, completed AIT on 23 June 1989, and was awarded the MOS 91A (Medical Specialist). She was released from ADT and returned to ARNG status. Medical documentation dated 13 January 1991 indicated that the applicant had injured her left shoulder while training in BCT in 1989 although there is no documentation submitted from the time of the original reported injury. Based on this documentation it appears clear that the applicant did sustain the shoulder injury at some point in time while she was in a duty status, and the condition did not exist prior to service. Therefore, based on the available information, it is the opinion of the ARBA Medical Advisor that sufficient evidence exists to warrant a change in the applicant’s LOD to reflect that the applicant’s shoulder injury occurred in the line of duty and was not due to her own misconduct. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the available records do not show that the applicant had an EPTS shoulder condition and that the evidence indicates she did, in fact, injure her shoulder during BCT and subsequently aggravated that injury on multiple occasions while performing military duties as a member of the ARNG. Based on a preponderance of evidence, the Board determined the applicant's record should be corrected to show the outcome of her line of duty determination appeal was a finding of in the line of duty. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 showing the determination on her line of duty appeal, dated 23 September 2015, was in the line of duty. 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. REFERENCES: Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier providing standards and considerations used in determining LOD status. a. A formal LOD investigation is a detailed investigation that normally begins with DA Form 2173 (Statement of Medical Examination and Duty Status) completed by the medical treatment facility and annotated by the unit commander as requiring a formal LOD investigation. The appointing authority, on receipt of the DA Form 2173, appoints an investigating officer who completes the DD Form 261 and appends appropriate statements and other documentation to support the determination, which is submitted to the General Court Martial Convening Authority for approval. b. The worsening of a pre-existing medical condition over and above the natural progression of the condition as a direct result of military duty is considered an aggravated condition. Commanders must initiate and complete LOD investigations, despite a presumption of Not In the Line of Duty, which can only be determined with a formal LOD investigation. c. An injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation. LOD 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. d. Paragraph 4-8e (Injury or disease prior to service) in the version of the regulation in effect at the time, states: (1) The term existed prior to service (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 ruing 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 LOD 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 the LOD. If an EPTS condition is not aggravated by military service, the determination with be not in the LOD – not due to own misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015310 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1