ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS SAMR-RBA IN THE CASE OF: BOARD DATE: 2 April 2019 DOCKET NUMBER: AR20170018538 APPLICANT REQUESTS: * the determination of not in Line of Duty (ILOD) - Not due to Own Misconduct (NDOM) be changed to ILOD for the incident occurring in Djibouti, Africa on 27 June 2010 * that his hand and finger injury be added to the LOD APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form 600 (Chronological Record of Medical Care), 28 June 2010 * a Hearing Loss and Tinnitus Disability Benefits Questionnaire, 8 September 2015 * a study of a magnetic resonance imaging (MRI) for his right hand and wrist, 4 February 2016 * DA Form 2173 (Statement of Medical Examination and Duty Status), 22 February 2016 * a Legal Review from the Administrative Law Division, National Guard Bureau (NGB), Arlington, VA, 18 August 2016 * an independent medical examination from the Ellis Clinic, Oklahoma City, OK, 14 December 2016 * a Hearing Loss and Tinnitus Disability Benefits Questionnaire from the Department of Veterans Affairs (VA), 30 December 2016 * a VA Form 21-0960M-7 (Hand and Finger Conditions Disability Benefits Questionnaire), 24 January 2017 * a record of outpatient evaluation and education for his right hand, 22 May 2017 * U.S. Army Human Resources Command (HRC) letter, 7 September 2017 * two VA related documents FACTS: 1. A Physical Evaluation Board (PEB), convened on 10 October 2018, and was administratively corrected on 17 October 2018, found the applicant physically unfit for duty for three medical conditions which included right hand and fingers regional pain syndrome, rated at 10 percent disabling. In order for this condition be included on his PEB and rated there would have had to have been a determination the condition was ILOD. In view of this, the applicant's issue of adding his right hand and finger injury to his LOD will not be discussed further in these Proceedings. 2. The applicant states the decision for not ILOD - NDOM was not supported by the facts, medical documentation or any other member of the decision-making process. The investigating officer (IO), State Surgeon, State Judge Advocate General (JAG), two independent audiologists, the VA and the NGB JAG all disagree with the decision. 3. The applicant previously served in the Kansas Army National Guard (ARNG), the Kansas Air National Guard, and the Oklahoma ARNG (OKARNG), from 13 June 1997 - 6 March 2008 in an enlisted status. 4. On 6 June 2002, the applicant received a medical examination for the purpose of a commission. His hearing is shown on the examination as: Hertz (HZ) 500 1000 2000 3000 4000 6000 Right 00 00 00 00 15 45 Left 00 00 00 00 00 15 5. On 7 March 2008, the applicant was appointed a Reserve commissioned officer in the grade of second lieutenant and in the OKARNG. 6. On 16 March 2010, the applicant was ordered to active duty to report on 7 May 2010 for Operation Enduring Freedom for a period not to exceed 400 days. 7. A DD Form 2173, shows the applicant received treatment for tinnitus, right ear and conductive hearing loss on 28 June 2010 for an incident that occurred on 27 June 2010 in Djibouti, Africa. The applicant was in an office when a fellow Soldier found a training grenade and pulled the pin. The applicant took the grenade from the Soldier and it exploded in his hand. The attending physician indicated the applicant was not under the influence of alcohol or drugs, was mentally sound, and was likely to result in a claim against the Government for future medical care. 8. On 28 June 2010, the applicant received treatment for hearing loss in his right ear, earache in his right ear and tinnitus occurring in his right ear only. The record states he was in office when a fellow Soldier found a grenade and pulled the pin. The applicant took the grenade from the other Soldier and it exploded in his hand. The applicant complained of ringing in his ear last night and noted a decrease in hearing today. 9. On 9 May 2011, the applicant was released from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he served in Djibouti from 16 June 2010 - 9 October 2010, in Kenya from 9 October 2010 - 15 October 2010 and again in Djibouti from 15 October 2010 - 17 April 2011. 10. The applicant served an additional period of active duty from 7 March 2014 - 24 October 2014 to attend a military course of instruction in Information Systems Management. 11. On 8 September 2015, the applicant received an examination for hearing loss and tinnitus. a. His puretone thresholds in decibels (air conduction) are shown as: HZ 500 1000 2000 3000 4000 6000 8000 Right 10 10 35 15 30 55 35 Left 5 5 10 10 5 25 15 b. He was diagnosed with sensorineural hearing loss in the frequency range of 500-4000 Hz and sensorineural hearing loss in the frequency range of 6000 Hz or higher frequencies in his right ear. c. He had a diagnosis of clinical hearing loss, and his tinnitus is at least as likely as not (50% probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. 12. On 12 February 2016, the unit advisor signed the DD Form 2173 and indicated the applicant was present for duty and was on active duty. The advisor indicated that a formal LOD investigation was required and that the injury was considered to have been incurred ILOD. 13. On 18 August 2016, a legal review conducted by the NGB stated: a. The Investigating Officer (I0), Approval Authority (AA) and Reviewing Authority (RA) determined that the injury was in the line of duty (ILOD). The NGB Surgeon determined that it was not ILOD-not due to own misconduct (NDOM). The legal review disagreed with the NGB Surgeon and concluded that any injuries arising from the subject incident should be considered ILOD. b. The NGB Surgeon on the basis of pre- and post-deployment audiograms opined that because there was no objective significant hearing loss detected on pre- and post-deployment audiograms and no diagnosis of tinnitus in the medical records, the case should be characterized as not ILOD-NDOM. c. This is an incorrect conclusion to draw. No judgment was made on whether that was an accurate medical opinion, it is separate from the determination of whether any injuries arising from the incident are ILD. The characterization no ILOD-NDOM would be appropriate if the applicant was diagnosed with a preexisting injury that was not aggravated by military service. There is no evidence in the case file that the applicant had a preexisting injury related to his hearing or his right hand/wrist/elbow. d. The correct analysis is IF there is an injury consistent with the mechanism of injury, THEN that injury should be considered ILD. Whether the applicant actually has any injury arising from that incident, and if so what care is required, would be issues for the medical community to address. e. There is no evidence highlighted by the IO or present within the file to indicate that either the training grenade incident did not occur in Djibouti or that the applicant acted with intentional misconduct or willful negligence. There was no evidence to overcome the presumption that any injuries sustained where ILOD. 14. AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations) states an injury, disease, or death is presumed to be ILOD 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. 15. On 30 December 2016, the applicant received an examination by the VA for hearing loss and tinnitus. a. His puretone thresholds in decibels (air conduction) is shown as: HZ 500 1000 2000 3000 4000 6000 8000 Right 0 10 20 15 25 45 30 Left 0 5 0 5 0 30 15 b. He was diagnosed with sensorineural hearing loss in the range of 6000 Hz or higher frequencies in his right ear and in his left ear. c. His tinnitus is at least as likely as not (50% probability or greater) caused by or a result of military noise exposure. 16. On 7 September 2017, U.S. Army Human Resources Command (HRC) determined the finding of not ILOD - NDOM would stand. 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)), HRC determined the applicant's diagnosis of tinnitus of the right ear was not service-connected or service aggravated. While there is no question the incident occurred, there is no evidence the applicant sustained hearing loss as the pre-deployment and post-deployment audiograms did not show a significant threshold shift. 17. What appears to be a VA document with no date indicated shows the applicant was granted service-connection for tinnitus as related to the service-connected disability of bilateral hearing loss with a 10% disability rating effective 8 February 2015. The document also shows he was granted service-connection for bilateral hearing loss with a zero percent disability rating effective 8 February 2015. 18. On 12 July 2018, an advisory was received from the Chief, Special Actions Branch, NGB that stated in accordance with AR 600-8-4 an injury is presumed to be ILOD 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. Ringing in the ears is difficult to diagnose, especially if there is no significant change in audiograms and could help explain the applicant's present situation and the result of the 2016 LOD. Regarding the Soldier’s request for adjustment of the 2016 LOD, NGB recommend for administrative arbitration be done with the input of the Army Review Board Agency’s medical professionals using all available information regarding the LOD as well as his ongoing medical evaluations in order to render a comprehensive and final decision on this matter. 19. On 13 July 2018, a copy of the Advisory Opinion was provided to the applicant and he was given an opportunity to submit a rebuttal or additional statements. The applicant has not provided any additional statements. 20. On 10 October 2018, a PEB found the applicant physically unfit, recommended a disability rating of 80% and that he be permanently retired for disability. He was found unfit for: * Asthma - 60% * Rotator cuff tendonitis, right - 40% * Right hand and fingers regional pain syndrome - 10% 21. The applicant's DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) dated 17 October 2018, was an administrative correction made due to a VA Rating Decision of 15 October 2018. The DA Form 199 dated 29 August 2018 was superseded. 22. On 26 November 2018, the applicant was retired due to permanent physical disability and on 27 November 2018, placed on the Retired List with a disability percentage of 80%. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the totality of the circumstances, to include the reversal of the NGB in their provided advisory opinion, the Board found sufficient evidence to warrant changing the finding of the line of duty ILOD BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X 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 changing the LOD determination of 2016 concerning the incident occurring on 27 June 2010, in Djibouti, Africa to ILOD. 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: AR 600--8-4 prescribes policies, procedures, and mandated tasks governing LOD determinations. a. An injury, disease, or death is presumed to be ILOD unless refuted by substantial evidence containing in the investigation. LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. b. An injury, disease, or death is presumed to be ILOD 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. ABCMR Record of Proceedings (cont) AR20170018538 6 1