IN THE CASE OF: BOARD DATE: 13 February 2023 DOCKET NUMBER: AR20220003030 APPLICANT REQUESTS: •completion and approval of two line of duty (LOD) investigations for 2011 (left hipinjury) and 2017 (neck and low back pain, and left shoulder), and •physical disability retirement APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •medical documents •applicant self-authored letter, 2 November 2019 •2nd Battalion, 323rd Regiment (OCT) Commander Memorandum, Request forException to Policy (ETP) for Submission of LOD Determination Past 180-daysfor Applicant, 4 June 2020 •United States Medical Command, Office of Applicant's Counsel Memorandum,Informal Physical Evaluation Board (IPEB) Appeal, 6 September 2020 •U.S. Army Human Resources Command (AHRC) Memorandum, Non-DutyRelated PEB Advisory Opinion, 26 May 2021 •DA Form 199-1 (Formal PEB (FPEB) Proceedings), dated 30 August 2021 •PEB Counsel Memorandum for Record, Systemic Problems with HRC LOD,17 December 2021 FACTS: 1.The applicant states she believes HRC’s determination is wrong and unfair with thehandling of her two LODs. She submitted a DA Form 2173 (Statement of MedicalExamination and Duty Status) signed by the doctors and presented all documentationsto her unit S-1 for processing. Years later she found out that her paperwork never gotprocessed correctly and was never sent to HRC to be approved or placed in hermedical records. She believes the Board should find it in the interest of justice toconsider her application because she had no idea that her LODs were not processedcorrectly until she was deemed unfit for the Army and was trying to be medically separated. The applicant states she has two LODs, one for March 2011 and one for May 2017. 2.On 12 November 1997 the applicant enlisted in the Army National Guard of the U.S.(ARNGUS) for 8-years in the rank of private two (PV2/E-2). Her record shows: a.A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows shewas ordered to active duty on 16 February 1998 for initial active duty for training (IADT). She completed training from 16 February - 18 June 1998 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 4, and was released from active duty with an uncharacterized characterization of service. She was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist). b.Orders dated 16 March 2003 honorably discharged the applicant from the ARNGand assigned her to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 1 March 2003. c.Orders dated 15 November 2005 honorably discharged the applicant from theUSAR on 15 November 2005. d.On 29 June 2009 the applicant enlisted in the USAR for 3 years in the rank ofspecialist (SPC/E-4). e.On 3 December 2011 the applicant reenlisted in the USAR for a period of 6 yearsin the rank of sergeant (SGT/E-5). f.On 5 August 2017 the applicant reenlisted in the USAR for a period of 6 years inthe rank of staff sergeant (SSG/E-6). 3.In support of her application the applicant provides: a.Medical Documents: (1)A Sparlin Health Care report shows she was seen on 15 March 2011 for leftleg and low back pain that radiated into her left hip due to pain that started a week prior after an Army physical fitness test (APFT). She was assessed with a lumbosacral plexus disorder/sciatica. She was also seen on 16, 18, 21 and 30 March 2011 and assessed with steady and slow improvement. (2)A DA Form 2173 dated 30 March 2011 shows the applicant was seen atSparlin Health Care on 15 March 2011, after feeling constant pain in her left hip after an APFT. The injury was considered to have been incurred in the LOD and a formal LOD investigation was not required. (3)A Sparlin Health Care report shows she was seen on 6 April 2011 for lowback pain. (4)Southern Regional Medical Center notes shows she was seen on 7 May2017 for falling and obtained an abrasion on her left hand, left shoulder pain, acute strain of neck, and acute back pain. She was prescribed ibuprofen and methocarbamol, was given a work release note for the day and told to follow up with her primary care manager (PCM). (5)A DA Form 2173 dated 12 May 2017 shows the applicant was seen atSouthern Regional Medical Center on 7 May 2017, after falling at the range at Fort McClellan when she went to the latrine on 6 May 2017. The injury was considered to have been incurred in the LOD and a formal LOD investigation was not required. (6)A Cherokee Imaging Center report dated 13 July 2018 shows the applicantreceived a lumbar spine study due to chronic, increasing, constant, radiating low back pain, spasms, decreased range of motion, intermittent exacerbations, and right leg pain. Her symptoms began in the military related to overuse, repeated injury and trauma in the course of military duties. (a)A five view lumbar spine demonstrated minimal/mild scoliosis, convex left,straightening of normal lordotic curvature of spine, which could be related to muscle spasm/soft tissue injury/disc pathology with encroachment on thecal sac/exiting nerve roots, correlates with clinical history, and could be evaluated with an MRI. (b)In conclusion the lumbar spine has straightening of normal lordotic curvatureof spine, scoliosis, developmental/multilevel degenerative/discogenic changes, and no acute bony abnormality. It was recommended that she follow up with the referring physician. (7)A Well Star Paulding Imaging Center report shows the applicant was seen on29 August 2018 for: (a)An MRI for lumbar spine without IV contrast - Assuming normalsegmentation, there were five lumbar type vertebra with S1 completely incorporated into the sacrum. The vertebral bodies were normal in height, alignment, and signal characteristics. There was no evidence of acute fracture or subluxation. The intervertebral discs were normal in height and signal characteristics. The cord demonstrates normal morphology and signal. (b)An MRI for left shoulder without IV contrast - The supraspinatus,infraspinatus, subscapular, and teres minor were intact. There was no evidence of tendinosis or tear and no muscular atrophy or edema. The biceps tendon was normal in location and appearance. Fluid surrounds the tendon within the bicipital groove. The acromioclavicular joint was within normal limits. There was a type II acromion. There was no glenohumeral joint or sub-acromial/sub-deltoid bursal effusions and no abnormal marrow signal to suggest bony contusion or fracture. The glenoid labrum was intact. (8)A Northside Family Practice letter dated 1 January 2018, states the applicantshould be restricted to walking only, no running or jogging for 30 days due to her back, neck, and shoulder pain. (9)A Northside Family Practice report dated 13 July 2018 shows the applicantwas seen for a follow-up visit. After the examination she was assessed with: •lumbago with sciatica, right side (Primary) •other chronic pain •neck pain •pain in left shoulder •moderate episode of recurrent major depressive disorder •gastroesophageal reflux disease with esophagitis •intractable episodic tension-type headache (10)A Northside Family Practice report dated 16 August 2018 shows theapplicant was seen for a follow-up visit. After the examination she was assessed with: •neck pain (Primary) •pain, joint, left shoulder •degenerative disc disease, lumbar •gastroesophageal reflux disease with esophagitis (11)A Northside Family Practice report dated 25 September 2018 shows theapplicant was seen for a follow-up visit. She received a letter stating she should be restricted to walking only, no running or jogging from 25 September - 25 October 2018 due to her back, neck, and shoulder pain. After the examination she was assessed with: •degenerative disc disease, lumbar (Primary) •pain, joint, left shoulder •neck pain •heat exhaustion, subsequent encounter •dysthymia •gastroesophageal reflux disease with esophagitis •moderate episode of recurrent major depressive disorder •intractable episodic tension-type headache (12)A Northside Family Practice report dated 1 November 2018 shows theapplicant was seen for a follow-up visit. She received a letter stating she should be restricted to walking only, no running or jogging for 30 days due to her back, neck, and shoulder pain. After the examination she was assessed with: •degenerative disc disease, lumbar·- M51.36 (Primary) •neck pain •heat exhaustion, subsequent encounter •dysthymia •gastroesophageal reflux disease with esophagitis •moderate episode of recurrent major depressive disorder •intractable episodic tension-type headache (13)A Northside Family Practice letter dated 1 December 2018, states theapplicant should be restricted to walking only, no running or jogging for 30 days due to her back, neck, and shoulder pain. (14)A Northside Family Practice report dated 27 December 2018 shows theapplicant was seen for a follow-up visit. After the examination she was assessed with: •degenerative disc disease, lumbar (Primary) •neck pain •heat exhaustion, subsequent encounter •dysthymia •gastroesophageal reflux disease with esophagitis •moderate episode of recurrent major depressive disorder •intractable episodic tension-type headache (15)Pain Consultants of Atlanta -Macquarlum report dated 25 June 2019 showsthe applicant was seen for low back pain, low back and radiating left lower extremity pain, right lower extremity pain, neck and left radiating arm pain/numbness. After the examination she was assessed with: •lumbar disc disease with radiculopathy •lumbosacral spondylosis •chronic pain syndrome •cervical radiculitis (16)Ortho Atlanta Orthopedics and Sports Medicine reports for July - December2019 shows she was seen for her neck and back pain, and lumbar spine. She has had lumbar transforaminal epidural steroid injections. (17)VA Health Summary shows the applicant was seen for occupational therapyfor cervical disc degeneration, unspecified on 9 August 2019. Throughout the month of August, she requested a referral for physical medicine and rehabilitation, a tens unit, and additional pain management options. (18)VA Health Summary shows the applicant was seen for occupational therapyfor cervical disc degeneration, unspecified on 24 September 2019. (19)A DA Form 3349 (Physical Profile Record) shows the applicant received apermanent profile for “Breast Cancer (Bilateral)” and “S/P [Status Post] chest wall pain w/Push up’s (Bilateral)” on 9 November 2016 and a temporary profile for “Lower Back Injury/Pain” that expired on 3 December 2019. The applicant’s commander was informed on this form that the applicant should perform injury specific exercises as prescribed by the medical provider during all unit physical readiness training. b.Her self-authored letter dated 2 November 2019 states: (1)From 29 May 2009 - 1 September 2011 she was assigned to Headquartersand Headquarters Detachment, 733rd Military Police Battalion (Criminal Investigation Division). On 6 March 2011 while performing an annual APFT she injured her lower back and hip. She was running the 2-mile run when she stepped in a hole in the road where she fell to the ground and immediately felt pain in her lower back and hip. The applicant was unable to complete the APFT that day. Upon returning to the unit, a fellow Soldier noticed her limping and advised her to file a DA Form 2173. That night she began applying heat, soaking in Epson salt and taking pain medicines for the pain. (2)On 15 March 2011 she went to see a chiropractor at Sparlin Health Care forthe pain. After about a week of chiropractic treatment, her pain decreased significantly. She experienced flare-ups every so often, mainly after completing a unit APFT. When she had flare ups, she would just take nonsteroidal anti-inflammatory drugs and bed rest. (3)From 20 October 2016 - 1 February 2018 she was assigned to 2nd Battalion,323rd Regiment (OCT). On 6 May 2017 while performing weapons qualification, she reinjured her back, injured her left shoulder, cut her left hand and strained her neck muscle. On her way to the latrine her foot got caught on a rock that was stuck in the ground causing her to fall headfirst down the hill. She had a headache and body aches and when she got home she showered and did her normal remedy of applying heat and taking pain medications and went to bed. The next morning the pain was a lot worse, so she went to the hospital. (4)On 7 May 2018 (should be 2017) she filed a DA Form 2173 and went to theSouthern Regional Medical Center emergency room. The doctor stated that nothing was broken but she had strained muscles. The doctor prescribed Motrin and Robaxin for the pain and things to do for muscle strain. After this incident, she began to experience flare ups more often than usual. She went to her PCM and an arthritis doctor to seek further treatment. MRls revealed that her injuries had gotten worse and her PCM began giving her shots for the pain. She was referred to an orthopedic doctor by the Rheumatology physician. (5)On 15 July 2019 she saw the orthopedic doctor for the first time and receivedtwo epidural steroid injections, however it did nothing for the chronic sciatic nerve pain. The orthopedic doctor then referred her to an orthopedic surgeon, who she saw on 11 October 2019. The orthopedic surgeon stated the next step would be back surgery since nothing else was working to alleviate the pain. On 31 October 2019 she called the VA for a second opinion and was waiting for an appointment date. c.A 2nd Battalion, 323rd Regiment (OCT) Commander Memorandum, Request forETP for Submission of LOD Determination Past 180-days for Applicant, dated 4 June 2020 shows this submission to process LODs already exceeded the 180-day window allowed. At this time, the applicant was at the beginning of the Medical Evaluation Board (MEB) process and required the requested LODs to move forward. d.A Office of Applicant's Counsel Memorandum, U.S. Army Medical Command,Fort Gordon, GA, IPEB Appeal, dated 6 September 2020 states: (1)The applicant disagrees with the IPEB’s finding that her back and kneedisabilities are non-duty related. She compiled evidence documenting these injuries and conditions, including a DA Form 2173 dated 2011 and 2017 describing duty-related injuries. Her commander submitted a request for an ETP to complete the processing of the DA Forms 2173 outside of the 180-day time window. (2)In addition, the applicant is receiving benefits from the Veterans Affairs (VA)for a duty-related behavioral health condition, currently diagnosed by VA as major depressive disorder. This duty related condition also causes her to be unfit for further service. Because these conditions are unfitting and duty-related, the applicant requested that the IPEB return her case to the MEB for consideration and documentation in the narrative summary and on the DA Form 3947 (MEB Proceedings). In the alternative, the applicant requested the IPEB add these conditions as additionally unfitting and refer to VA for rating. If the IPEB declined both of her requests, the applicant would request a hearing. e.An AHRC Memorandum, Non-Duty Related PEB Advisory Opinion provided byChief, Casualty and Mortuary Affairs Operations Division, dated 26 May 2021, is in regard to a LOD advisory opinion for the applicant’s lumbar degenerative disc disease with radiculopathy and bilateral knee osteoarthritis, states: (1)After a thorough review and a medical opinion obtained by the AHRCSurgeon General’s office, the applicant’s diagnoses of lumbar degenerative disc disease with radiculopathy and bilateral knee osteoarthritis were not incurred or aggravated by military service and advised the PEB to continue processing her claim as non-duty related. (2)Lumbar degenerative disc disease with radiculopathy was not serviceincurred or service aggravated. (a)The applicant reported that she first injured her back on 6 March 2011, whileperforming an annual APFT. During the run event, she stepped into a small pothole, lost her footing, and fell. She stated she felt pain in her lower back and hip. A few days later, she went to the doctor since the pain didn’t subside from heating pads and ice and was diagnosed with a back strain. (b)There are medical records in the file from a chiropractor from March 2011,but no imaging studies. There are no medical records in the file between 2011 and 2017 when she stated she re-injured her back after a fall in May 2017. After the injury in May 2017, she was seen in the emergency room and diagnosed with lumbar strain. (c)On her Periodic Health Assessments (PHA) dated 10 August and1 November 2011, 28 October 2012, 27 December 2013, and 1 July 2015, she denied symptoms of or being seen for any back or knee pain symptoms. (d)According to the records, in 2018, she was referred for an x-ray by herprimary care provider with complaints of radiating low back pain, decreased range of motion, spasms, and intermittent exacerbations of pain. X-ray findings indicated she had multi-level degenerative changes. (e)A lumbar magnetic resonance imaging (MRI) on 30 April 2019 showed milddegenerative disc disease at L4-L5. Her diagnosis after the 2011 and 2017 incidents were lumbar/back strain. Strain and pain are nonspecific and are not of lasting significance. Degenerative disc changes are part of the normal aging process. It is not possible to connect two lumbar/back strain episodes that occurred while on orders with degenerative changes. (3)Bilateral knee osteoarthritis was not service incurred or service aggravated. (a)On 27 November 2018, the applicant was referred to rheumatology forevaluation of right knee pain. The evaluation documented that the knee pain allegedly started in 2009 when she twisted her right knee, but it had worsened in the previous two months. (b)On her PHAs dated 10 August and 1 November 2011, 28 October 2012,27 December 2013, and 1 July 2015, she denied symptoms of or being seen for any back or knee pain symptoms and there were no medical records in the file or in Armed Forces Health Longitudinal Technology Application (AHLTA) that documented a knee condition. The applicant continued with follow-up visits for right knee pain from 2018 through 2020. (c)X-rays obtained on 26 August 2019 did not reveal any acute or significantlocal findings. An evaluation on 21 February 2020 indicated that she Cannon was diagnosed with knee osteoarthritis. There is no medical documentation from 2009 noting that she was seen for a knee injury while on orders nor was a knee injury reported from a fall in March 2017. (d)The applicant denied knee pain in her PHAs from 2011 to 2015. There is nomedical documentation of a knee injury in 2009 or that there is a connection between that alleged injury with the development of knee osteoarthritis approximately ten years later. f.A DA Form 199-1 shows a FPEB convened on 20 August 2021 and found theapplicant physically unfit and that her disposition be referred under Reserve Component (RC) regulations. (1)The applicant’s unfitting conditions is listed as: (a)Lumbar degenerative disc disease with radiculopathy (non-compensable)and non-duty related. The onset of this condition is 13 June 2018 when the applicant was referred for an X-ray by her PCM with complaints of radiating low back pain, decreased range of motion, spasms, and intermittent exasperations of pain. X-ray findings indicated she had multilevel degenerative changes. On 29 August 2018 and 20 April 2019, a lumbar MRI was obtained, impression was mild degenerative disc disease at L4/L5. The applicant participated in all conservative forms of therapy including: NSAIDS, muscle relaxants, oral steroids, home exercise, physical therapy, chiropractic management and steroid injections. On 20 June 2020 the USAR, Army Reserve Medical Management Center indicated this condition did not meet medical retention standards to live and function without restrictions in any geographical or climate areas without worsening the medical condition, this condition was not compensable, because there was a thorough review of the military and civilian and military records that ascertained this condition was not started or permanently aggravated in the LOD. (b)Bilateral knee osteoarthritis (non-compensable) and non-duty related. Theonset of this condition is 27 November 2018, when the applicant was referred to rheumatology for an evaluation of right knee pain and swelling of bilateral lower extremities. The evaluation documented that her knee pain started in 2009 when she twisted her right knee, but it had worsened in the past 2 months. She was treated for inflammatory arthritis and was given a right knee injection. The applicant’s most recent evaluation in February 2020 indicates that she was diagnosed with osteoarthritis. The applicant was also given a repeat knee injection and was prescribed gabapentin for pain. On 22 June 2020, the USAR, Army Reserve Medical Management Center indicated this condition did not meet medical retention standards, to live and function without restrictions in any geographical or climate areas without worsening the medical condition. This condition was not compensable, because there was a total review of the military and civilian medical records that ascertained this condition was not started or permanently aggravated in the LOD. (c)Reasonable performance in the applicant’s primary MOS (92Y, unit supplySPC) requires her to perform certain activities. Both conditions are medically unacceptable and prevents worldwide deployment in a field or austere environment. Therefore, in accordance with AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation), paragraph 5-4 e(2) the applicant is unfit. (2)The applicant’s neck and shoulder pain were not found to be unfitting basedupon: (a)A review of all available evidence of record, including the applicant’stestimony during the FPEB proceedings and reasonable performance of duties required by rank and military specialty, in full consideration of Department of Defense Instructions (DODI) 1332.18 (Disability Evaluation System (DES)), Enclosure 3, Appendix 2, to include combined overall effect. (b)During formal board testimony, the applicant testified that she first injured herneck and back on 6 May 2017 after a trip and fall incident, landing on her head while attending drill with her unit at a small arms range at Fort McClellan, GA. She testified that she did not fired that day and was not wearing combat gear at the time of injury. She testified that she initially self-treated her injury with Epson salts and ibuprofen. She further testified that the next day she filled out a DA Form 2173 at her unit and then went to the emergency room for acute back pain and an acute strain of the neck muscle. She was prescribed ibuprofen, and methocarbamol (Robaxin) and recommended to follow up with her PCM. (c)She testified that she was later treated through the Veterans Administrationin 2019 and given an epidural cortisone shot, home exercises and portable traction. She testified that her pain has increased since her initial injury in 2017 that includes pain in her back, neck and shoulders. Although she noted continuing pain and discomfort, the records available to the PEB in the case file indicate there is not a nexus to connect the onset of injury to the current neck and shoulder condition. There are no X-rays of the cervical spine in the board file and the pain is most likely part of the normal aging process. The MRI performed in April 2021 was of the right shoulder and the presumed injury was the left shoulder. There are minimal, conservative treatment records until November 2018, 18 months from the initial injury. There are no temporary or permanent profiles for her neck or shoulders. Additionally, there are no recent PHA, with her last PHA being completed in October 2017. Her most recent imaging of her shoulder dated 8 April 2021 shows that mild acromioclavicular joint degeneration, no muscle atrophy and a possible impingement in her right shoulder. (d)During her testimony, when asked if she had any lost work hours due to hercondition, she cited lost work time due to migraines, and could not attribute any loss of hours to her neck or shoulder condition. The available records also show that during a review of her conditions, while being treated by her rheumatologist for her knee conditions in November 2018, her head, neck and shoulder conditions were noted as normal. There is no preponderance of evidence, minimal medical treatment records for these conditions, and no new objective evidence in the testimony. (e)The board also does not find sufficient evidence to send this case to the HRCfor a final determination. In the HRC LOD Determination Response memorandum dated 26 May 2021, it was determined that the applicant’s lumbar degenerative disc disease with radiculopathy and bilateral knee osteoarthritis conditions were not incurred or aggravated by military service. Therefore, the findings of the informal board regarding these conditions are upheld. (3)The FPEB made the following administrative findings: (a)The disability disposition is not based on disease or injury incurred in theLOD in combat with an enemy of the U.S. and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303). (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) (b)Evidence of record reflects the Soldier was not a member or obligated tobecome a member of an armed force or Reserve thereof, or the National Oceanic and Atmospheric Administration or the United States Public Health Commissioned Corps on 24 September 1975. (c)The disability did not result from a combat-related injury under the provisionsof 26 USC 104 or 10 USC 10216. (4)On 30 August 2021, the applicant did not concur with the findings andrecommendations of the FPEB, and did not provide an appeal with the understanding that failure to submit a written appeal may result in final processing of her case without review by the U.S. Army Physical Disability Agency. 4.The applicant’s service record contained the FPEB proceedings authentication pagewhich shows it was approved for the Secretary of the Army on 31 August 2021. 5.The Non-Duty Related Referral memorandum, dated 22 June 2020, narrativesummary, DA Form 7652 (DES Commander’s Performance and Functional Statement),and the applicant’s service treatment records were relied upon by the PEB in making itsdetermination. These documents and the MEB and informal PEB proceedings are not inthe applicant’s available records for review by the Board. 6.In support of her application the applicant also provides a PEB CounselMemorandum for Record, Systemic Problems with HRC LOD, dated 17 December 2021that states they have concerns with the issuance and handling of LOD advisory opinionsissued by the HRC, Casualty and Mortuary Affairs Operations Division. a.Many of the advisory opinions that have been issued in 2021 are poorly reasonedand deeply flawed because the opinions are not following the legal standards set forth in AR 600-8-4 (LOD Policy, Procedures, and Investigations (12 November 2020)) and related DOD instructions and regulations. These cases usually lack an approved formal or informal LOD determination (DD Form 261 (Report of Investigation LOD and Misconduct Status)) because of the referring unit’s failure to conduct the required investigation or HRC’s denial of an exception to policy for them to do so. b.In general, the common problems with HRC advisory opinions is that there is a: (1)Disregard of Legal Standards. When a Soldier is injured or hurt during aperiod of active duty and receives medical treatment for that injury or illness, there is a presumption that the injury is in LOD. DODI 1332.18 (DES), Appendix 3 to Enclosure 3, paragraph 7c (1); AR 600-8-4, paragraph 2-4a. This presumption is routinely ignored by HRC and it appears, from the character of the opinions being issued, that the decision maker is presuming that the injuries are not in LOD. In multiple cases, despite ample evidence of treatment for a condition while on active duty, HRC will disingenuously claim that the injury on active was “not of lasting significance,” even though that same injury has progressed to the finding of unfitness. (2)Lack of mandatory written legal review which is required for informal andformal investigations mandated by AR 600-8-4, paragraph 1-15 b (3) and d. (3)Lack of Meaningful Appeal. There is no meaningful mechanism offered forthe Soldier to challenge these opinions. The PDA will not act on an appeal that argues that the HRC erred in its advisory opinion because PDA policy is that it must defer to the HRC decision. (4)Unwarranted Speculation. The HRC opinions, in the complete absence ofany supporting evidence, contain unwarranted speculation about existed prior to service factors, intervening events, wear and tear caused by of aging, and “natural progression,” while disregarding evidence the conditions were incurred or aggravated by military service. 7.HRC Memorandum dated 31 January 2022 notified the applicant that due to beingmedically disqualified from further service she was not eligible for retention in theSelected Reserve. She had 15 years but less than 20 years of qualifying service whichmade her eligible to apply for retired pay and benefits at age 60. As a result, sherequested to be transferred to the Retired Reserve. 8.Orders dated 7 February 2022, shows the applicant received an early retirement forcompleting less than 20 years of qualifying service and assigned her to the RetiredReserve in the rank/grade of sergeant first class (SFC/E-7) effective 11 March 2022. 9.A review of the applicant's record shows she was called to active duty for training on16 February 1998, successfully completed training and awarded an MOS. Although herDD Form 214 for the period ending 18 June 1998 properly reflects her characterization ofservice as “uncharacterized,” according to regulatory guidance in effect at the time ofseparation. Effective 1 March 2014, regulatory guidance changed stating entry levelSoldiers who completed IADT and were awarded an MOS were to be given anhonorable discharge, unless otherwise directed by the separation authority; based onthis and in the interest of equity, the characterization of service for her DD Form 214with separation end date 18 June 1998, should read as honorable. 10.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, 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 United StatesArmy Human Resources Command’s (USA HRC) determinations that neither her lumbar degenerative disc disease with radiculopathy nor bilateral knee osteoarthritis is related to or was caused by her military Service. She states: “I did my part in getting DA FORM 2173 {Statement of Medical Examination and Duty Status, the document which initiates a line of duty investigation} completed and signed by the doctors. I then presented all documentations to my unit S-1 for processing. Years later I found out that my paperwork never got processed correctly. My paperwork was never sent up to HRC to be approved or placed in my medical records.” b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case. Orders published by the 81st Readiness Division (USAR) show the applicant was transferred to the Retired Reserve effective 11 March 2022. c.While a drilling Soldier in the USAR, the applicant was placed on a duty limitingpermanent physical profile effective 27 March 2020 for “Lower Back Injury/Pain” and “Knee Pain/Injury (Bilateral).” She was informed in an 8 April 2020 memorandum that she no longer met the medial retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness. The applicant elected for a non-duty related physical evaluation board. d.Reserve Component (RC) Service Members who are not on a call to active duty ofmore than 30 days and who are pending separation for non-duty related medical conditions may enter the Disability Evaluation System (DES) for a determination of fitness. A non-duty related physical evaluation board (NDR PEB) affords these Soldiers the opportunity to have fitness determined under the standards that apply to Soldiers who have the statutory right to be referred to the DES for a duty related medical condition. After 2014, these boards would also look to see if the referred condition(s) were duty related, and if so, return them to the sending organization for entrance into the duty related processes of the DES. e.On 26 August 2020, her informal NDR PEB determined these two conditionswere unfitting condition for continued military service and that there was insufficient evidence that either of these chronic degenerative conditions was related to or caused by her military service as a drilling Soldier. The Board referred her for appropriate disposition under reserve component regulations. On 19 September 2020, after being counseled by her PEB liaison officer on the PEB’s findings and recommendation, the applicant non-concurred with their findings and requested a formal hearing with regularly appointed counsel and she submitted a written appeal. f.In her written appeal, she stated that both these conditions were duty related. Shestated that in March 2011, she injured her lower back and hip when she stepped in a hole during an Army physical fitness test. It was treated conservatively, to include chiropractic care, and “After about a week of chiropractic treatment, my pain decreased significantly.” She stated she reinjured her back along with injuring her left shoulder, hand, and neck when she tripped and “fell headfirst down a hill ... It took me a couple seconds to get up … I got up and dusted myself off. I head a headache and body aches.” She was evaluated the following day and treated conservatively for “strained muscles.” g.Her appeal contained a DA 2173 related to her injury in 2011 on which it stated“After PT test run, I felt consistent pain in my left hip area.” There is no mention of a hole or other mechanism of injury. Medical documentation associated with this injury consists of six chiropractic encounters from 15 March 2011 thru 6 April 2011 showing she was treated for lumbar paraspinal muscle spasm with the final encounter documenting “steady improvement.” h.A second DA 2173 confirms the injury in May 2017: “While walking back to thevan from a latrine break at the range my foot got caught on a rock stuck in the ground. I fell headfirst down the hill.” It does not identify a specific injury of injured body part. Medical documentation associated with this claim shows she was evaluated at the Southern Regional Medical Center after which she was diagnosed with “Abrasion of left hand, Left shoulder pain, Acute strain of neck muscle, and Acute back pain.” i.An MRI of the lumbar spine obtained 16 July 2019 revealed diffuse degenerativedisc changes “predominately involving the L4-L5 and L5-S1 levels as described and progressed form prior {study}. j.After reviewing the applicant’s appeal, the PEB’s findings that these conditionswere non-duty related were sustained, and the applicant was scheduled for a formal PEB. k.Prior to the formal PEB, the PEB quested an advisory opinion from USA HRC asUSAHRC has the 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.” l.In the 26 May 2021 advisory opinion from the U.S. Army Human RecoursesCommand (USAHRC), both conditions were found to be unrelated to her military service: “Lumbar degenerative disc disease with radiculopathy was not service incurred or service aggravated. SFC {Applicant} reported that she first injured her back on 6 March2011, while performing an annual Army Physical Fitness Test. During the run event, she stepped into a small pothole, lost her footing, and fell. She stated she felt pain in her lower back and hip. A few days later, she went to the doctor since the pain didn’t subside from heating pads and ice and was diagnosed with a back strain. There are medical records in the file from a chiropractor from March 2011, but no imaging studies. There are no medical records in the file between 2011 and 2017 when she stated she re-injured her back after a fall in May 2017. After the injury in May 2017, she was seen in the emergency room and diagnosed with lumbar strain. On her Periodic Health Assessments (PHA) dated 10 August 2011, 1 November 2011, 28 October 2012, 27 December 2013, and 1 July 2015, she denied symptoms of or being seen for any back or knee pain symptoms. According to the records, in 2018, SFC {Applicant} was referred for an x-ray by her Primary Care Provider with complaints of radiating low back pain, decreased range of motion, spasms, and intermittent exacerbations of pain. X-ray findings indicated she had multi-level degenerative changes. A lumbar MRI on 30 April 2019 showed mild degenerative disc disease at L4-L5. SFC {Applicant}’s diagnosis after the 2011 and 2017 incidents were lumbar/back strain. Strain and pain are nonspecific and are not of lasting significance. Degenerative disc changes are part of the normal aging process. It is not possible to connect two lumbar/back strain episodes that occurred while on orders with degenerative changes.” Bilateral knee osteoarthritis was not service incurred or service aggravated. On 27 November 2018, SFC {Applicant} was referred to rheumatology for evaluation of right knee pain. The evaluation documented that the knee pain allegedly started in 2009 when she twisted her right knee, but it had worsened in the previous two months. On her PHAs dated 10 August 2011, 1 November 2011, 28 October 2012, 27 December 2013, and 1 July 2015, she denied symptoms of or being seen for any back or knee pain symptoms and there were no medical records in the file or in Armed Forces Health Longitudinal Technology Application (AHLTA) that documented a knee condition. SFC {Applicant} continued with follow-up visits for right knee pain from 2018 through 2020. X-rays obtained on 26 August 2019 did not reveal any acute or significant local findings. An evaluation on 21 February 2020 indicated that SFC {Applicant} was diagnosed with knee osteoarthritis. There is no medical documentation from 2009 noting that she was seen for a knee injury while on orders nor was a knee injury reported from a fall in March 2017. SFC {Applicant} denied knee pain in her PHAs from 2011 to 2015. There is no medical documentation of a knee injury in 2009 or that there is a connection between that alleged injury with the development of knee osteoarthritis approximately ten years later.” m.The applicant was present for and represented by regularly appointed counsel ather 20 August 2021 formal PEB. Following her testimony and presentation of evidence, the Board reaffirmed the previous findings that both conditions were unfitting for continued military service and were not duty related. The applicant non-concurred with the findings but did not provide a written appeal. Thus, her case was forwarded to the United States Army Physical Disability Agency for finalization and was approved for the Secretary of the Army on 31 August 2021. n.Because she had more than 15 but less than 20 years of service for retirement,the applicant received a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter) on 31 January 2022 under 10 U.S. Code § 12731b, Special rule for members with physical disabilities not incurred in line of duty (15-year notice of eligibility). Passed in 1999, this statute authorizes the Secretary concerned to treat a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit due to physical disability not incurred in the line of duty as having met the service requirements for years of service computed under 10 U.S. Code § 12732. The Secretary can then provide the member with a notification that the member has completed at least 15, and less than 20 of service. This “15-year Notice of Eligibility” authorizes a non-regular retirement. o.Given no evidence of error or injustice, it is the opinion of the ARBA MedicalAdvisor that a reversal of USA HRC’s determination that neither her lumbar nor knee conditions were related to her military service is not warranted. BOARD DISCUSSION: 1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board determined that relief was not warranted. TheBoard carefully considered applicant’s contentions, military record, and regulatoryguidance. Based on the documentation available for review, the Board determined thatthe applicant had not met the burden of proof sufficient to warrant a reversal of the USAHRC determination. Therefore, the Board determined the evidence presentedinsufficient to warrant a recommendation for the requested relief.2.Prior to closing the case, the Board noted the analyst of record administrative notesbelow and recommends those changes be completed to more accurately reflect themilitary service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : GRANT FULL RELIEF : : GRANT PARTIAL RELIEF : : GRANT FORMAL HEARING : :: :X:X:XDENY 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows she is authorized an honorable character of service on her DD Form 214 for period ending 18 June 1998. REFERENCES: 1.Army Regulation (AR) 600-8-4 (LOD Policy, Procedures, and Investigations),prescribes policies and procedures for investigating the circumstances of injury, illness,disease, or death of a Soldier providing standards and considerations used in makingLOD determinations. a.A formal LOD investigation is a detailed investigation that normally begins withDA 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 LOD (reserved for HRC), which can only be determined with a formal LOD investigation. c. An injury, illness, disease, or death is presumed to be in LOD unless rebutted by 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. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical DES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. AR 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in AR 635-40 with the following caveats: a. USAR or ARNG Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. RC Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with AR 40-400 (Patient Administration) and AR 635-40. c. Normally, RC Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per AR 140–10 or discharged from the RC per AR 135–175 (Separation of Officers), AR 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable RC regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. RC Soldiers who do not meet medical retention standards may request continuance in active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. RC Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 4. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army DES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 5. AR 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system. It states a DD Form 214 will be prepared for RC Soldiers awarded an MOS even if active duty is less than 90 days. RC Soldiers completing active duty that results in the award of a MOS, even when the active duty period was less than 90 days (for example, completion of the Advanced Individual Training (AIT) component of the ARNG of the U.S. Alternate Training Program or USAR Split Training Program). When a RC Soldier successfully completes IADT the character of service is honorable unless directed otherwise by the separation approval authority. 6. AR 635-200 (Personnel Separations - Enlisted Personnel) states a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status, except under specific circumstances. For ARNG and USAR Soldiers, entry level status begins upon enlistment in the ARNG or USAR and terminates for Soldiers ordered to IADT for one continuous period-180 days after beginning training or Soldiers ordered to IADT for the split or alternate training option-90 days after beginning Phase II (AIT). (Soldiers completing Phase I (basic training or basic combat training) remain in entry level status until 90 days after beginning Phase II. 7. Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. 8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 9. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//