IN THE CASE OF: BOARD DATE: 2 April 2021 DOCKET NUMBER: AR20200008879 APPLICANT REQUESTS: amendment of his Line of Duty (LOD) determination to include his right foot and personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 October 2013 * Landstuhl Regional Medical Center (LRMC) memorandum, dated 3 February 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period ending 31 October 2014 * 36 pages of service medical records * 27 pages of civilian medical records * photographs of feet * Army Review Boards Agency (ARBA) letter, dated 18 February 2020 FACTS: 1. The applicant did not file within the 3- year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He requests a revised LOD to include his right foot or a separate LOD for just his right foot. He has attempted to resolve this directly with officials at LRMC, Kaiserslautern, Germany, but was advised he must address his issues to the Board. This is his second request to the Board, as his first was returned to him because he did not complete the DD Form 149, which has now been included. b. He had and is still currently having significant problems with his feet that started while he was on active duty and resulted in an LOD with limited services provided by the Department of Veterans Affairs (VA). The provided information, documents, and photos substantiate his foot problems were not limited to just his left foot. Additionally, the neuropathy or nerve damage has started to expand beyond his feet up his ankles and to his right hand. He does not know why the LOD was written for just his left foot, other than at the time the left foot was substantially worse that his right foot. He accepts responsibility for not addressing this at the time. c. He had major surgeries on both is feet and attached photographs. The nerve problems are progressing in both his feet and ankles, expanded into his right hand and he will continue to need medical care for these conditions. Below are excerpts from medical documentation he provided which supports his contentions. The full documents have also been included for review. (1) 12 June 2013, LRMC, Dr. H____: No improvement with rest. Pain is worse. Hurts walking/running and direct pressure, mild swelling after on his feet. (2) 9 July 2013, LRMC, B____: Swelling of the feet. (3) 17 September 2013, LRMC, B____, Podiatry: foot pain, swelling of the feet, metatarsalgia. (4) 29 October 2013, LRMC, S____, Symptoms: left foot pain, foot pain, swelling of the feet. He may have a Morton's neuroma; he is also having tingling in the toes. (5) 29 October 2013, LRMC, Dr. L____: Neurology, and Patient History: Has noted a rare twitching in right great toe. (6) 3 December 2013, LRMC, Dr. L____, Neurology, Findings: Right common personal motor study showed amplitudes that were significantly larger in amplitude compared to the contralateral study; the study showed decreased conduction velocities (conduction velocity across the knee normalized when correcting for age and height-normal. (7) 26 March 2014, Walter Reed, National Military Medical Center (WRMC), Dr. S____: Symptoms: Pain Left foot, metatarsalgia, claw toe, swelling of both feet. (8) 9 April 2014, N____: Chronic problems: Claw toe, left foot pain, foot pain, hypertrophic scar, swelling of the feet. (9) 20 May 2014, Dr. F____: He has had about 1-year history of forefoot pain centrally. It began after overuse from wearing combat boots and training to fun his physical fitness test, which he has twice a year. Impression: Morton's neuromas, central metatarsalgia, and intrinsic muscle imbalance. Bilateral feet problems with pain in both feet. (10) 23 Jun 2014, LRMC, Dr. H____: Foot weight/bearing(right), Impression: 55 y/o male with right first toe tingling and pain with activity. Comment: Right great toe. (11) 1 February 2016, Dr. M____, Neurology, St Mary's Medical Group, Grand Junction, CO: The right personal motor nerve showed decreased conduction velocity {Poplt-B Fib 33m/ s). The Right sural sensory nerve showed reduced amplitude (4.8 uV). Impression: Severe chronic left peroneal neuropathy. Underlying sensory neuropathy. Summary: Bilateral medial plantar sensory responses were absent. Bilateral lateral plantar sensory responses were absent. The right tibial motor conduction velocity was slow and the F-wave was prolonged. Impression: This is an abnormal study. There is electro physiologic evidence of sensory and motor peripheral neuropathy. See page 6: addendum of report: The pain on right foot is pretty much the same as left at this point, plus the additional problem in the right heel. The pain in the mornings at home and work has gotten to the point he cannot hide it anymore from folks. Page 7: Some numbness in his right foot from sitting too long behind desk and from driving long distances. One new item is pain in his middle toe while sleeping but this is not a regular occurrence, but when it does happen it's enough to wake him up and keep him awake. (12) 9 September 2016, Dr. P____, Neurology, Dover & Milford Delaware: Symptoms are worse on the plantar surface of both feet. Vibration sensation is diminished in both feet worse on the left. Lower extremity deep tendon reflexes are 1+ and symmetric. Summary: Bilateral medial plantar sensory responses were absent. Bilateral lateral plantar sensory responses were absent. The right tibial motor distal conduction velocity was slow and the F-wave was prolonged. Impression: This is an abnormal study. There is electrophysiological evidence of sensory and motor peripheral neuropathy (13) 27 April 2018, Dr. F____: First time seeing this patient was May 2014. At that time, I thought he had metatarsalgia and intrinsic muscle imbalance due likely to some peripheral neuropathy. He has chronic neuropathic pain. When he stands he has clawing of his toes bilaterally, worse in the left than in the right. (14) 3 February 2020, Dr. S____, DO, Rocky Mountain Regional VA Medical Center (VAMC): EMG: The left sural sensory, the right sural sensory, and the right ulnar sensory nerves showed reduced amplitude (Ll.6, R2.5, RS.7uV7). Impression: There is evidence of symmetric, length dependent, large fiber, sensory and motor peripheral polyneuropathy. Severity is moderate to severe, with significant axonal loss affecting motor and sensory nerves in the lower extremities, and sensory fibers in the right upper extremity. NCV Findings: The right peroneal motor nerve showed reduced amplitude (0.4 mV), decreased conduction velocity (B Fib-Ankle, 36 m/s), and decreased conduction velocity (Poplt-B, 37 m/s). (15) 3 March 2020, Dr. K____, Neurologist, Denver, Colorado: Has foot problems and Morton's neuroma in his feet. Now has tingling in his fingers also. His pain has climbed up beyond his ankles. Gets throbbing pain that wakes him up. Assessment: exams are consistent with neuropathy. Electromyography (EMG) confirms that diagnosis. 3. After prior enlisted service in the U.S. Air Force, the applicant was appointed a Reserve commissioned officer of the United States Army effective 19 December 1984. 4. The applicant was ordered to active duty as a member of the U.S. Army Reserve (USAR) on 16 June 2008 and served in Germany until his honorable release from active duty due to completion of required active service after 3 years, 3 months, and 15 days, on 30 September 2011. 5. The applicant was again ordered to active duty with service in Germany on 1 October 2012. 6. The applicant provided multiple service medical records, which show he was seen at LRMC on the following dates with the following notes: * 12 June 2013 seen for left foot pain; he was originally seen in the clinic on 6 May 2013 with no improvement with rest and increased pain and mild swelling * 26 June 2013 had a magnetic resonance imaging (MRI) of the left foot without contrast for swollen left foot for 90-day duration; no evidence of stress fracture or plantar plate injury; small medial talar dome osteochondral injury; possible neural fibrosis * 9 July 2013 for feet swelling; radiology images reviewed; referred to brace shop for primary diagnosis of left foot pain * 17 September 2013 for left foot pain * 29 October 2013 for left foot pain 7. A DA Form 2173, approved by the applicant’s deputy commander on 16 October 2013, shows the following: * the applicant was seen as an outpatient at LRMC on 6 May 2013 for left foot pain/swelling he’d experienced since April 2013 * he incurred this injury while on active duty orders and the injury was not a result of negligence or misconduct * he reported the gradual onset of left foot pain/swelling since April 2013 and could not identify a specific incident that created the onset of foot pain * he was referred to Podiatry in June 2013 * a formal LOD investigation was not required * the injury was considered to have been incurred in the LOD 8. Additional service medical records show he was again seen on 3 December 2013 for a neurology consultation with nerve conduction studies due to left foot pain. The applicant noted rare twitching in his right great toe. 9. A LRMC memorandum, dated 3 February 2014, states after reviewing all appropriate documentation for completeness of the LOD determination pertaining to the applicant, with diagnoses of left foot pain/swelling since April 2013, the determination of in the LOD was approved. 10. Further service medical documents show the applicant was seen at the following locations and dates with the following notes: * 26 March 2014 at WRMC for the primary diagnosis of left foot pain; he was assessed with pain in the left foot, metatarsalgia, claw toe, and swelling of the feet * 9 April 2014, at LRMC Physical Therapy, for pain in the left foot 11. A Rocky Mountain Orthopaedic Associates medical record from Dr. F____, dated 20 May 2014, shows the applicant was seen on the date of the form for left forefoot pain. The history of present illness shows the applicant had a 1-year history of forefoot pain centrally that began after overuse from wearing combat boots and training to run his Army Physical Fitness Test. He believed he overdid the training by running 2 miles twice per day and developed forefoot pain that has not improved. The impression was of Morton’s neuromas, central metatarsalgia, and intrinsic muscle imbalance. 12. Service medical records show the applicant was again seen on 23 June 2014 at LRMC for big toe nerve pain. His chief complaint was right toe numbness and he presented with right toe tingling and pain for 7-8 months. The numbness occurs with physical activity and he had no known trauma; nerve entrapment was expected. 13. The applicant was honorably released from active duty due to the completion of required active service on 31 October 2014, after 2 years and 1 month of net active service this period. 14. U.S. Army Human Resources Command Orders C07-596491, dated 27 July 2015, placed the applicant on the retired list effective 4 April 2015. 15. The applicant provided multiple additional civilian medical records, among them reports showing the following: a. He was seen on 1 February 2016 at St. Mary’s Neurology Clinic for bilateral foot pain. Evaluation of the left peroneal motor nerve showed no response and the right peroneal motor neve showed decreased conduction velocity. The impression was of severe chronic left peroneal neuropathy; underlying sensory neuropathy. As an addendum to the notes from this visit, the applicant called the clinic’s office following the visit stating the pain in his right foot was pretty much the same as his left foot at this point and he had the additional problem of the right heel. He also had some numbness in his right foot from sitting too long and driving long distances. b. An Aspen Valley Hospital clinic note, dated 27 April 2018, shows the applicant was seen for bilateral forefoot pain which had progressed since his last visit in May 2014. He has chronic neuropathic pain and has had EMGs consistent with peripheral neuropathy that manifests as nighttime pain as well as activity-related pain, worse on the left than on the right. c. A VA Eastern Colorado Healthcare System report, dated 29 January 2020, shows the applicant had right peroneal motor nerve with reduced amplitude, decreased conduction velocity, and decreased conduction velocity. His right tibial motor nerve showed reduced amplitude and decreased conduction velocity. The left sural sensory, the right sural sensory, and the right ulnar sensory nerves showed reduced amplitude. There was evidence of symmetric, length dependent, large fiber, sensory and motor peripheral polyneuropathy. Severity was moderate to severe, with significant axonal loss affecting motor and sensory nerves in the lower extremities and sensory fibers in the right upper extremities. d. A Colorado Neurodiagnostics neurology consultations shows he was evaluated on 3 March 2020 for neuropathy. He has foot problems and Morton’s neuroma in his feet. He also now has tingling in his fingers and pain that wakes him up. 16. On 9 February 2021, the Chief, Casualty and Mortuary Affairs Operations Division, U.S. Army Human Resources Command provided an advisory opinion, stating the following: a. The applicant’s right foot neuropathy was not service-incurred or service aggravated. He complained of a few episodes of right foot pain while on orders during 2012 – 2014, but pain is not a condition of lasting significance. He was also seen for occasional episodes of tingling in his right big toe and rare right big toe twitching in October 2013, but these conditions were never associated with a specific diagnosis. Therefore, these conditions cannot be considered of lasting significance. b. The applicant was eventually diagnosed with right lower extremity neuropathy in 2016 with subsequent surgery. However, this cannot be connected to rare episodes of tingling and twitching of his right toe 3 years earlier while on orders. 17. On 5 March 2021, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief partial relief was warranted. The Board reviewed and carefully considered the medical advisory regarding the determination that the applicant’s right foot neuropathy was not service-incurred. Notwithstanding the HRC advisory opinion, the Board found sufficient evidence, specifically, the applicant’s subsequent diagnosis of right foot neuropathy and eventual diagnosis of right lower extremity neuropathy, to warrant partial relief. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: That in accordance with Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), the applicant be referred to AHRC to conduct a formal LOD investigation. . 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: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008879 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1