IN THE CASE OF: BOARD DATE: 4 February 2022 DOCKET NUMBER: AR20210008928 APPLICANT REQUESTS: in effect, the completion and approval of line of duty (LOD) determinations for his gout and back conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored medical evaluation timeline * numerous California Army National Guard (CAARNG) memoranda * Barstow Community Hospital Discharge Instructions * CAL Form 190-40 (Incident Report) * DA Form 4187 (Personnel Action) * DA Form 3349-SG (Physical Profile Record) * multiple DA Forms 3349 (Physical Profile) * Army Review Boards Agency (ARBA) memorandum * ARBA letter * DD Form 689 (Individual Sick Slip) * Disability Certificate * Occupational Medicine Independent Medical Evaluation from * Review of Medical Records from * National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement) * Department of Veterans Affairs (VA) medical documents, letters, and records in excess of 100 pages * Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) excerpts FACTS: 1. The applicant states: a. He was admitted to the emergency room (ER) on 11 March 2014, for what he later found out was gout. He initially thought he had broken his toe during his inactive duty training (IDT) from 7-9 March 2014. After a day, the pain increased to the point he could no longer bear it and he went to the ER where he was diagnosed with gout. Gout flare- ups are caused by diet, dehydration, stress, and poor circulation. While in the field, he cannot control his diet, is constantly on his feet wearing restrictive boots, and becomes dehydrated from the constant physical activity in the sun. No LOD was filed on his behalf for this condition. b. On the way to drill on 6 March 2015, he was involved in a five-car motor vehicle accident (MVA). A police report and a CAL-Form 190-40 (Incident Report Form) were filed. He was seen by the medics, but was left behind with the rear detachment with no vehicle, transportation, or supervision instead of going to the field to drill with his unit. No LOD was filed on his behalf for this incident and resulting injury. c. An LOD was never filed for either of these injuries. His unit failed to complete the proper administrative actions at the time of either incident, nor when he informally requested one be completed, resulting in him having to formally make the request with legal representation after the allotted time had elapsed. His official request was for a finding of in the LOD for gout from 2014 and his service-connected back condition worsening due to the MVA on the way to drill in 2015. Somehow, the investigating officer (IO) only focused on fibromyalgia, which was never part of his LOD request. A legal review clearly states, “remains unclear…not properly advised of rights…and most problematic, the IO’s faulty analysis.” d. A medical board cleared him for continued service in his current Military Occupational Specialty (MOS) in 2011, unless his medical condition deteriorated. His medical condition did deteriorate as evidenced by his diagnosis of gout during the 3-day drill in March 2014, triggered by military training, and the MVA in March 2015, when his prior back and joint conditions were further aggravated. e. In 2017, he requested a transfer to the U.S. Army Reserve (USAR), so he could complete his 20 years of service in a non-physical training role, but his battalion never completed the paperwork. Periodic Health Assessments documents weight gain, flagged him as medically non-deployable, and recommended an MEB, which was never completed. VA documents from 2018 onward confirm his back condition worsened and he requires extensive care. f. Army Regulation 600-8-4 states at if a Reserve Component Soldier requires follow- on care for an injury, illness, or disease incurred during a period of active duty, an expert medical opinion from an appropriate provider is required and must address when the condition was incurred, if it existed prior to the current military service (EPTS), and whether the conditions was service-aggravated. It further states service aggravation is defined as a permanent worsening of a pre-service medical condition over and above the natural progression caused by trauma or the nature of military service. A permanent worsening of a condition, as a result of the performance of military duties is required to find there is service aggravation for an in the LOD determination. His gout and MVA injuries meet the LOD criteria for service aggravation. 2. After a prior period of honorable service in the Regular Army, the applicant enlisted in the ARNG on 21 December 2000, and after a brief break in service, again enlisted in the ARNG on 22 September 2005, where he is currently still serving in the rank/grade of Sergeant First Class (SFC)/E-7 in the MOS 11B (Infantryman). 3. A DD Form 214 (Certificate of Release or Discharge from Active Duty), shows the applicant was ordered to active duty as a member of the CAARNG in the MOS 11C (Indirect Fire Infantryman) in support of Operation Iraqi Freedom on 24 June 2006, with service in Iraq from 21 September 2006 through 8 September 2007. He was honorably released from active duty after 1 year, 3 months, and 11 days of net active service on 4 October 2007, due to completion of required active service. 4. The applicant provided a partial memorandum from the Joint Force Headquarters, Office of the Adjutant General, CAARNG, dated 19 July 2011, wherein he was informed that the CAARNG MOS Administrative Retention Review (MAR2) evaluated his ability to perform the physical requirements of his MOS on 19 July 2011, and determined he should be retained in his primary MOS. It states this record of proceedings serves as a final determination of his physical deployability as an 11B and this decision will not change unless appropriate medical authorities determine his medical condition deteriorated. 5. The applicant provided a Headquarters, 1st Battalion, 160th Infantry Regiment memorandum for record (MFR), dated 3 November 2013, which lists the 2014 yearly training guidance and includes a listing for training from 7-9 March 2014. 6. Barstow Community Hospital Discharge Instructions show the applicant was admitted to the ER on 11 March 2014, where he was diagnosed and treated by a specialist in Emergency Medical Care. The special instructions advise him to follow-up with his primary care doctor, to read through the discharge instructions on gout, follow a diet, and apply a warm compress to the site for 30 minutes, 5 times per day. 7. The applicant provided a Headquarters, 1st Battalion, 160th Infantry Regiment MFR, dated 2 August 2014, which lists the 2015 training intent and includes a listing for training from 6-8 March 2015. 8. A CAL Form 190-40, dated 6 March 2015, provides incident report information regarding a MVA the applicant was involved in on the date of the form. It shows the applicant summarized the incident stating all traffic in his driving lane had stopped, rendering him unable to stop in time and he struck a vehicle. His vehicle spun and his airbags deployed. There were approximately 4-5 vehicles involved in the accident. The California Highway Police assisted him in getting his car out of off the road, as it was inoperable. 9. The applicant’s available records do not contain a DA Form 2173 (Statement of Medical Examination and Duty Status) or a DD Form 261 (Report of Investigation LOD and Misconduct Status) pertaining to either the applicant’s gout incurred in 2014 or aggravation of a back injury related to his MVA in 2015. 10. A DA Form 3349-SG shows the applicant was given a permanent physical profile rating of “2” in the following categories, which did not pose any physical readiness training restrictions: * P (Physical capacity or stamina), effective 29 July 2017, for post-traumatic stress disorder (PTSD) * S (Psychiatric), effective 18 August 2017, for pauses in breath during sleep 11. A VA letter, dated 8 May 2018, shows the VA made the following decision regarding his claim for service-connected compensation received on 17 February 2018: a. The issue of gastroesophageal reflux disease (GERD), to include GERD secondary to PTSD was not addressed as this condition is currently on appeal. b. Service-connection was granted for the condition of tinnitus, effective 17 February 2018, with a 10 percent disability rating. c. The following conditions were determined to be not related to his military service, thus service-connection was not granted: * gout * right hip condition * lung condition d. It was determined the condition of low back spondylolisthesis at L5-S1, degenerative arthritis had worsened so they granted an increase in his assigned percentage from 10 percent to 20 percent effective 17 February 2018. e. It was determined the service-connected condition of PTSD, to include depression and substance abuse did not change and remained at 70 percent. 12. A DA Form 3349 shows the applicant was given a temporary physical profile with an expiration date of 20 April 2021, which was an extension of a prior temporary physical profile first issued on 24 December 2018. The numerical rating of the profile is unlisted, but it limited him from heavy lifting, bending, stooping with load and numerous functional activities, for the following medical conditions: * low back spondylolisthesis at L5-S1 * bilateral knee arthritis * bilateral wrist tendonitis * bilateral shoulder tendonitis * bilateral ankle tendonitis * PTSD (combat/non-combat) * Fibromyalgia Gulf-War environmental * Tinnitus * recurrent cervical strain * bilateral medical tibial stress syndrome * sleep apnea * gout * GERD 13. The applicant provided an undated printout of VA Rated Disabilities which does not list him by name, but presumably related to him, which shows a list of service- connected and not service connected conditions, with various effective dates from 5 October 2007 through 17 February 2018. Low back spondylolisthesis at L5-S1, degenerative arthritis is listed as service-connected with a 20 percent rating effective 17 February 2018. Gout is listed as not service-connected. 14. The applicant previously applied to the Board in May 2018, requesting an approved LOD for his gout and conditions related to his MVA. As an initial part of the adjudication process, ARBA requested an advisory opinion from the NGB in May 2020, as evidenced by the ARBA memorandum dated 16 May 2020, which the applicant provided with his current application. 15. The applicant provided with his current application a memorandum signed by a Judge Advocate in the CAARNG, dated 10 June 2020, giving a legal review of his LOD, which has been provided in full to the Board for review, and stating in pertinent part the following: a. She reviewed the applicant’s LOD investigation and determination for legal sufficiency to determine wither legal requirements were in compliance, if any error exists, whether the findings of the investigation are supported by the substantial evidence. b. She determined that while the investigating officer’s finding of Not in the Line of Duty (NLD) for fibromyalgia is supported by substantial evidence, the Due to Own Misconduct (DOM) basis for the NLD finding is not supported by substantial evidence. c. She concurred with the State Surgeon’s Office (SSO) medical opinion and recommended a substituted finding of NLD: EPTS: Not Service Aggravated (NSA) on the basis of lack of sufficient evidence to support service aggravation. d. It remains unclear if this LOD investigation was for both fibromyalgia and back issues in relation to the 2015 MVA that is the subject of this LOD investigation. She focused her legal review on the fibromyalgia, but her analysis and recommended findings would be appropriate for back issues in relation to the 2015 MVA. e. The applicant’s stated lack of sleep prior to the MVA and his use of over the counter medications constitute no more than simple negligence and would not amount to misconduct or have any bearing on the NLD determination. It is the absence of evidence of service aggravation that warrants the NLD determination. Most problematic to her was the investigating officer’s faulty analysis, on which he based the misconduct determination in that he did not allow the applicant an opportunity to focus his rebuttal on the question of service aggravation (which there is still a lack of sufficient evidence to support. The applicant should be afforded an opportunity to furnish additional evidence to support that this fibromyalgia (and back issues?) were aggravated by his 2015 MVA. f. She recommended the evidence was likely not significant enough to warrant a finding of misconduct. Nonetheless, the findings did show a lack of evidence to support service aggravation of the fibromyalgia, which was EPTS. The absence of evidence of service aggravation is also present in the SSO medical opinion. Absent additional evidence, she recommended an LOD finding of Not in the Line of Duty (NLD): Not Due to Own Misconduct (NDOM) or NLD: EPTS: Not Service Aggravated (NSA) for fibromyalgia. 16. It is of note that the above-referenced LOD investigation and determination documentation referenced in the legal review are not in the applicant’s available records for review by the Board. 17. The applicant provided a letter from the Rheumatology Department at Loma Linda VA Medical Center, dated 11 June 2020, stating the applicant has been seen in their Rheumatology clinic for a diagnosis of gout. Gout flares can be exacerbated by diet, stress, dehydration, and exertion. Gout flares can be extremely painful at onset and at times patients can be unable to wear boots/shoes, bear weight, or even ambulate. 18. As evidenced by a second ARBA letter provided by the applicant with his current application, the applicant was informed by ARBA on 17 July 2020, that his application to the Board wherein he requested an approved LOD was premature in that there was no evidence he first applied to the NGB. His application was therefore returned without action and prejudice, until such time that he could provide a denial letter from his State Adjutant General. 19. A Joint Force Headquarters, CAARNG memorandum, dated 25 August 2020, informed the applicant of his LOD determination. His LOD was determined to be Not in the Line of Duty-Existed Prior to Service-Not Service Aggravated for fibromyalgia and lumbar spondylosis. He was advised of his right to appeal this decision in writing within 30 days of receipt of this memorandum. 20. An Occupational Medicine Independent Medical Evaluation, provided by Dr. on 18 December 2020, shows he disagreed with the Department of the Army determination that the applicant’s injuries (lower back injury from a MVA in 2015 and gout from a training exercise in 2014) did not occur in the LOD and he determined the applicant was not capable of continuing to perform his essential job duties while serving the ARNG, due to the permanent and chronic nature of his conditions. 21. The applicant provided numerous additional sick slips and letters from various medical doctors showing the following: * he required the use of a continuous positive airway pressure (CPAP) machine for his sleep apnea * he had multiple musculoskeletal service-related injuries and conditions causing him chronic pain and rendering him unable to perform his duties in the ARNG * he was being treated for gout, causing severe pain and swelling to the joints, the factors of provocation being dehydration, fatty foods and other dietary triggers, trauma, starvation and surgeries * he should be restricted from heavy lifting, walking, bending, and stooping due to his spondylolisthesis L5-S1 22. A Joint Force Headquarters, CAARNG memorandum, dated 25 February 2021, informed the applicant of his LOD appeal determination. It advised the applicant that a copy of the final U.S. Army Human Resources Command (AHRC) LOD appeal determination they received on 25 February 2021 was enclosed. After a thorough administrative review of his LOD investigation, AHRC determined the findings of “Not in the Line of Duty – Existed Prior to Service-Not Service Aggravated” will stand. The applicant was advised of his right to appeal this decision to ARBA. 23. Of note, the applicant’s above-referenced LOD appeal and AHRC LOD appeal determination are not in his available service records nor have they been provided by the applicant for review. 24. The applicant additionally provided a CAARNG memorandum, dated 11 March 2021, notifying him of the intent to separate him for failure to meet medical retention standards for non-duty related medical disqualifying conditions. He also provided a blank copy of the accompanying acknowledgment of medical disqualification and election memorandum, requiring his completion. 25. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 26. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 27. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 28. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a reversal of the “Not in Line of Duty – Not due to own Misconduct” findings for his gout and low back pain. He states: (1) “On 11-MAR-2014, I was admitted to the ER for what I later found out was Gout. I had initially thought I had broken/injured my toe during IDT training 7-9 March 2014. After a day, the pain increased to a point I could no longer bare and went to the ER. Being diagnosed with Gout, flare-ups are caused by diet, dehydration, stress, and poor circulation. While in the field I cannot control my diet, am on my feet constantly wearing restrictive boots in the infantry and become dehydrated from constant physical activity in the sun. No LOD was filed on my behalf. (2) On 6-MAR-2015, on the way to drill I was involved in a five car vehicle accident. A police report and CAL-Form 190-40 was filed. I was seen by the medics but left behind on Rear-D with no vehicle, transportation, or supervision instead of going to the field. No LOD was filed on my behalf. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s Army National Retirement Points History Statement (NGB Form 23B) for the period of Service under consideration shows he was still an active member of the California Army National Guard (CAARNG) as of 21 September 2021, his retirement year ending (RYE) date. It shows the applicant has 23 years of creditable service for retired pay. c. A Personnel Action (DA for 4187) shows that on 5 December 2020, the applicant elected transfer/reassignment to the retired reserve (if qualified) in the event he was not selected for retention. d. The applicant was notified in a 26 April 2021 memorandum from the California National Guard’s Adjutant General that he was a non-select for continued unit participation: “Accordingly, not later than 8 October 2021, you will be discharged from the California Army National Guard and transferred as a Reserve of the Army to Control Group (Reinforcement) in the Individual Ready Reserve, or transferred to the Retired Reserve, of the U.S. Army Reserve, according to the option you selected by endorsement.” e. While there are no discharge orders with the application or in iPERMS, it is standard for non-select Soldiers to be separated from the service within 6 months of the applicable board. f. While a drilling Guardsman, the applicant was placed on a non-duty limiting permanent physical profile on 10 June 2013 for sleep apnea (as required by AR 40-501, Standards of Medical Fitness) and PTSD. There were no functional limitations on the applicant. From the comments block (block 8) of his Physical Profile (DA form 3349): (1) “Requires regular access to electricity. Soldier is taking medication that should not be combined with alcoholic beverages. (2) SM on mood stabilizing medication and quetiapine for sleep. Will require CENTCOM surgeon medical deployment waiver for assignment to CENTCOM AOR. SM on CPAP for mild sleep apnea. RETAINED IN CURRENT DMOS ON MAR-2 REVIEW.” g. This profile was renewed without change on 28 August 2017 as part of the periodic review process and conversion to the new DA 3349. h. Submitted documentation shows the applicant was evaluated at the Barstow Community Hospital on 11 March 2014 (a Tuesday) at which time he was diagnosed with gout. Though the applicant may have first experienced his gout symptoms during the preceding drill weekend of 7-9 March 2014, this would not make it an in line of duty condition as his service during this drill period neither caused nor permanently aggravated this recurring condition/disease. Hence, it would be deemed to have existed prior to service. i. The condition was correctly determined to not have been incurred in the line of duty was referred for a formal line of duty investigation as noted on the Statement of Medical Examination (DA form 2173 completed on 11 January 2020. Because the likelihood of a short period of service causing a disease (versus an injury), paragraph 2- 3c(8) requires a formal line of duty investigation “When a USAR or ARNG soldier serving on an AD tour of 30 days or less is disabled due to disease.” The formal line of duty was initiated but not completed for an unknown reason. However, the reviewing provider had correctly determined the condition had existed prior to service. j. Paragraph 4-8e(1) of AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (15 April 2004) states: “(1) The term "EPTS" {existed prior to service} 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 during short tours of authorized training or duty.” k. The AR 600-8-4 glossary definition of existed prior to service: “Any injury, disease, or illness, to include the underlying causative condition, which was sustained or contracted prior to the present period of AD or authorized training, or had its inception between prior and present periods of AD or training is considered to have existed prior to service. A medical condition may in fact be present or developing for some time prior to the point when it is either diagnosed or manifests symptoms. Consequently, the time at which a medical condition "exists" or is "incurred" is not dependent on the date of diagnosis or when the condition becomes symptomatic. (Examples of some conditions which may be pre-existing are slow-growing cancers, heart disease, diabetes, or mental conditions, which can all be present well before they manifest themselves by becoming symptomatic.)” l. While the applicant may have had subsequent and even worsening episodes of gout while on orders following the diagnosis in March 2014, this would not equate to permanent service aggravation. Paragraph 4-8e(3) of AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (15 April 2004) states: “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.” m. An Incident Report Form (CAL Form 190-6) shows the applicant was in a motor vehicle accident (MVA) on 6 March 2015 (a Friday) at 0525. The applicant stated: “On the highway in moderate traffic approximately 60 mph. All traffic in my lane stopped. Unable to stop in time and struck vehicle. Airbags deployed and spun. There were approximately 4-5 vehicles involved. CHP was on sited and assisted me getting my car out of the road. Vehicle is non-op and CHP took all information from those involved. n. No medical documentation associated with this MVA was submitted with the application. o. Though the date and time are known, the location of the accident was not annotated. The applicant stated he was on his way to drill at the time of the accident. Paragraph 2-3c(7) requires a formal line of duty investigation for “Injury or death of a USAR or ARNG Soldier while traveling to or from authorized training or duty.” His “Lumbar Spondylosis” was determined to have not been incurred in the line of duty in August 2015 following an informal line of duty investigation. p. The required formal line of duty was completed on 25 August 2020 and concluded the condition had not been incurred in the line of duty. From the Report of Investigation Line of Duty and Misconduct Status (DD form 261): “Not in Line of Duty - Not Due to Own Misconduct - Existed Prior to Service - Not Service Aggravated for Fibromyalgia and Lumbar Spondylosis.” q. The applicant appealed this finding to the United States Army Human Resources Command (USA HRC). USAHRC has functional responsibility for the Army’s line of duty processes. Paragraph 1-6a of AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (15 April 2004: “The Commanding General (CG), U.S. Army Human Resources Command (USA HRC) will have functional responsibility for LD determinations and act for the SA on all LD determinations and appeals referred to Headquarters, Department of the Army (HQDA) and all exceptions to procedures described in this regulation.” r. USA HRC confirmed the prior finding on 22 February 2021: “After a thorough administrative review, we have determined the finding of ‘Not in Line of Duty-Existed Prior to Service - Not Service Aggravated’ will stand.” s. Submitted documentation shows his lumbar condition pre-dated his 2015 MVA and so had existed prior to service. Lumbar spine radiographs obtained at the Loma Linda, VA VAMC in December 2007 showed “Mild spondylosis at L1.” Spondylosis is the medical term applied to osteoarthritis of the spine, and the term is often used more generally for degenerative changes of the spine. Follow-up radiographs obtained in May 2011 now showed “Minimal degenerative joint disease of lumbar spine with minimal dextroscoliosis and anterior compression of T11, T12, L1 vertebrae.” t. There are no radiographs associated with the immediate time after his MVA in March 2015. The next set of follow-up radiographs were obtained in September 2017, and revealed “Mild degenerative disc disease at L1-L2.” This set of films, now with degenerative disc disease, demonstrate the progression of his spondylosis. Radiographs obtained in August 2020 show continued progression: “Scattered degenerative disease of the spine with osteophytes, facet arthroses, and endplate sclerosis or disc pace narrowing. Mild S-shaped scoliosis.” u. “Lower Back/Tailbone Injury/Pain” and “Pain sensitization syndrome” were duty limiting conditions added to his permanent physical profile in January and February 2021. The profile stated “Medical separation recommend for chronic pain syndrome.” Because he was/is a drilling Guardsman and there is no evidence these new conditions were incurred in the line of duty, this medical separation would take the form of a medical disqualification as provided for in of paragraph 6-35l(8) of NGR 600-200, Enlisted Personnel Management (31 July 2009): Medically unfit for retention per AR 40- 501, Standards of Medical Fitness. v. The applicant stated he was referred to a medical evaluation board. Submitted documentation included only the last page of his 2018 Periodic Health Assessment (PHA). The provider noted at the bottom of the applicant’s 8 December 2017 PHA “Multiple medical issues, already under VA care – consider med board?” A new permanent profile was not issued following this PHA and so there was not a referral to the Disability Evaluation System (DES). w. There is no probative evidence the applicant had or now has a service incurred medical condition which would fail the medical retention standards of AR 40-501 and so would be a cause for referral to the DES. x. It is the opinion of the ARBA Medical Advisor that neither a reversal of either of the not in line of duty determinations nor a referral to the DES is warranted. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding and determined there is insufficient evidence that shows amending the line of duty determination or a further referral for DES consideration is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 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 (Report of Investigation LOD and Misconduct Status) 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. 3. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008928 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1