IN THE CASE OF: BOARD DATE: 15 August 2023 DOCKET NUMBER: AR20220010320 APPLICANT REQUESTS: in effect, an In Line of Duty determination in order to direct her case to Integrated Disability Evaluation System (IDES) for processing. Also, a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Rebuttal to and appeal of Formal Physical Evaluation Board (FPEB), 19 April 2021 • Veterans Affairs summary of benefits, 5 November 2020 • Discharge orders • DA Form 199-1 (FPEB Proceedings), 18 March 2021 • Line of Duty (LOD) Determination, 18 October 2012 • DA Form 2173 (Statement of Medical Examination and Duty Status, 20 July 2012 • DA Form 2173, 9 June 2012 • Inactive Duty Training (IDT) attendance roster, 6 June 2012 • Medical record • Walter Reed Neurosurgery Service notification letter, 12 June 2017 • Universal Healthcare Management Services letter, 13 May 2018 • Army Reserve Medical Management Center Profile Request LOI, 17 May 2018 • Psychiatry AHRC Form 4123-10, (U.S. Army HRC Office of the Command Surgeon) FACTS: 1. The applicant states she was found unfit, and her injury was considered non-duty related (NDR). She requests a change to be made to reflect her LOD injury that was approved and has been valid since 2012. She appealed to the FPEB and submitted evidence that Army Reserve Medical Management Center (ARMMC) interference in her case was unwarranted and unauthorized by any regulation. ARMMC is not authorized to overturn or otherwise interfere with an approved LOD. Captain (CPT) R__’s memo is “advisory” and is not an LOD investigation or determination. ARMMC’s interference is the LOD process has caused confusion and misinformation which has deprived her of her due process rights. She has an In Line of Duty determination valid since 2012 and was referred by a military physician for back surgery at Walter Reed Medical Center, Bethesda, MD. 2. The applicant enlisted in the United Stated Army Reserve (USAR) on 8 August 2007. 3. She entered a period of active-duty training (ADT) on 21 August 2007. She was released from ADT on 4 February 2008, after completion of required active service. She was awarded military occupational specialty 92A (Automated Logistical Specialist). 4. She entered another period of active duty on 17 February 2009 until she was honorably released from active duty on 16 February 2010, for completion of required active service. 5. The applicant provided: a. IDT attendance roster, 6 June 2012, showing she was in attendance for training on 6 June 2012. b. DA Form 2173, showing on 8 June 2012, the applicant fell off of an obstacle onto her back on the ground. She complained of numbness in the right leg. This form was updated (typed) on 20 July 2012. c. A line of duty determination which was made on 18 October 2012, showing the applicant incurred a lumbar strain that occurred on 8 June 2012 during Battle Training Assembly. The line of duty was approved. d. Medical records from 8 March 2017, in support of her claim. e. Walter Reed Neurosurgery Service notification letter, 12 June 2017, showing she was planned for surgical procedure: excision of right sided Lumbar Lipoma on 29 June 2017. f. Psychiatry AHRC Form 4123-10, (U.S. Army HRC Office of the Command Surgeon), 11 May 2018, which shows she was diagnosed with major depressive disorder, recurrent, moderate; general anxiety disorder; and post-traumatic stress disorder. g. Universal Healthcare Management Services letter, 13 May 2018, which repeats her diagnosis and lists her medications. Also, it gives a brief synopsis of her treatment progression. h. Army Reserve Medical Management Center Profile Request LOI, showing a profile request was submitted on 17 May 2018. i. Veterans Affairs summary of benefits, 5 November 2020, showing she is rated at 100% service-connected disabilities effective 22 August 2018. 6. A Non-Duty Related (NDR) informal PEB convened on 26 September 2019 and found the applicant unfit and that her disposition be referred for case disposition under Reserve Component (RC) Regulations. a. Chronic low back pain/lumbago (non-compensable). NDR Case: Onset occurred in 2012 while the Soldier was not in a drilling status. In accordance with (IAW) Department of Defense Instruction (DoDI) 1332.18, Enclosure 3, Appendix, 2, paragraph 2a, this Soldier is unfit because DA Form 3349-SG, physical profile limitations associated with this condition make this Soldier unable to reasonably perform the duties required as a 92A. The Soldier's condition prevents them from performing DA 3349-SG, physical profile, Section 4 functional activity (e) move greater than 40 pounds, (e.g. duffle bag) while wearing usual protective gear (helmet, weapon, body armor, Load Bearing Equipment) up to 100 yards. (NDR Case Memo, DA Form 7652, DA Form 3349-SG, and Medical Records). b. Major depressive disorder (non-compensable). NDR Case: Onset occurred in 2013 while the Soldier was not in a drilling status. IAW DoDI 1332.18, Enclosure 3, Appendix 2, paragraph 2a, this Soldier is unfit because the physical limitations associated with this condition make this Soldier unable to reasonably perform duties required by an 92A. The Soldiers condition prevents them from performing DA Form 3349-SG, physical profile, Section 4 functional activity (f) live and function, without restrictions in any geographic or climatic area without worsening condition. IAW AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) 5-4, e (2) this condition is medically unacceptable and prevents worldwide deployment in a field or austere environment; therefore, the Soldier is unfit. (NDR Case Memo, DA Form 7652, DA Form 3349-SG, and Medical Records). c. On 18 March 2020, the applicant did not concur and demanded a formal hearing. Her written appeal was attached. d. Her counsel stated the attached Approved Line of Duty Memorandum (dated 18 October 2012), confirms that her unfitting chronic low back pain/lumbago was service-incurred. (1) The applicant was gathering additional evidence from her behavioral health provider to demonstrate that her unfitting behavioral health condition was caused by and is due to her duty-related chronic low back pain. (2) She non-concurred with the IPEB finding that both of her unfitting condition were NDR and requests a hearing. She will provide additional documentation before the date of the hearing. 7. PEB ARMMC Return Memo shows the following: a. In coordination with the Office of Casualty and Mortuary Affairs, Human Resources Command (HRC), the Physical Evaluation Board (PEB) proceedings pertaining to the applicant have been returned for further evaluation, documentation, and/or information required for adjudication. b. The Soldier has submitted an appeal to the informal NDR PEB proceedings contending that her unfitting chronic low back pain and major depressive disorder should be found to have been incurred in the line of duty and her case referred to the Integrated Disability Evaluation System for further processing. (1) Regarding the chronic low back pain: The AR-MMC has already determined that this condition fails medical retention standards. The Soldier has presented an approved Informal Line of Duty Investigation cover letter dated 18 October 2012 stating that this condition was incurred in the line of duty. (2) Regarding the major depressive disorder: The AR-MMC has already determined that this condition fails medical retention standards. The Soldier contends that this condition was directly caused by her low back pain and therefore should be found to have been incurred in the line of duty. The Soldier has presented no new evidence in support of her contention. c. The PEB thinks the case can be referred to IDES with the LOD cover memo. Please advise the PEB so that the PEB can determine to continue processing the case or administratively terminate if it is referred to IDES. Should AR-MMC determine that neither condition was incurred in the line of duty, please provide an updated NDR Case Memo, DA 3349, and the associated treatment notes. 8. On 17 April 2020, AR-MMC determined subsequent to a thorough review of the applicant’s case, the AR-MMC Provider Dr. L__, Nurse Case Manager (NCM) Ms. S__, and LOD Liaison CPT R__ have determined the applicant’s claim does not meet LOD Criteria due to the following reasons: a. The Soldier cannot provide LOD eligible incident(s) or circumstances where military duty caused a condition or aggravated a condition beyond normal progression and permanently worsened the condition. b. Service member (SM) did not have a valid diagnosis c. LOD Case# 064-12-22027, this case was erroneously approved ILD on 18 October 2012 for lumbar strain. The applicant’s condition was back pain and this LOD did not consider medical imaging evidence that clearly showed no injury of lasting significance. It would not be valid for MEB submission. d. Regarding the applicant’s onset of back pain, the condition is claimed to be due to incident during Battle Assembly (BA) on 8 June 2012 per the eMMPS Digital 2173 “sm fell off bars while doing obstacle course landing on her back” the SM was seen at ER, x-ray concluded no abnormalities “No acute fracture or dislocation. If symptomatology persists MRI should be considered” and SM was discharged with “Back Pain & Injury” at this time all medical documentation did not provide a valid diagnosis and the LOD that was approved for lumbar strain on 18 October 2012 should have never been processed/approved and cannot be used for MEB submission. e. Regarding the BH condition, SM was initially evaluated 12 February 2013 and diagnosed with Depression and Adjustment disorder, there is no documentation to support SM has been exposed to any contributing factors while serving in the military. SM is linking symptoms due to “being on personal leave without pay from her work at UPS since June 2012, having lost her apartment, having no income or disability pay, and having a very limited social support.” SM eventually stating all this is because back pain onset from the 8 June 2012 incident, however per analysis of back pain condition it is considered NDR and does not meet LOD Criteria therefore any BH condition linked to back pain would be determined NDR. 9. PEB AHRC LOD Determination Request, 4 May 2020, shows the PEB requested an in-line of duty determination for the applicant regarding her chronic low back pain and major depressive disorder. On 17 April 2020, the United States AR-MMC affirmed their 6 September 2019 decision that these conditions were NDR because there was insufficient evidence that the military caused or permanently aggravated these conditions. The Soldier presented a signed and approved line of duty investigation stating that her low back condition was incurred in the line of duty. The Soldier is contending that her behavioral health condition is a direct result of the injury to her back. Therefore, these conditions should be found to have been incurred in the line of duty. 10. ARHC LOD Response, 5 May 2020, shows the following: a. AHRC received an advisory opinion request from the Joint Base San Antonio (JBSA) NDR PEB challenging a finding rendered by the AR-MMC for the applicant. b. After a thorough review and a medical opinion obtained by the AHRC Surgeon General’s office, the applicant’s low back pain does meet criteria for a Line of Duty. The AR-MMC makes the point that the Soldier did not have a valid diagnosis for her back pain and therefore her DA Form 2173 is invalid in accordance with Army Regulation (AR) 600-8-4 (Line of Duty Policy, Procedures, and Investigations). Pain is a symptom not a medical diagnosis. c. The applicant’s behavioral health diagnosis was not diagnosed while in an authorized duty status. She has several contributing factors for her depression. However, since she was not diagnosed with depression or any other behavioral health condition while in an authorized duty status and the number of contributing factors associated with the diagnosis there is not clear evidence her depression was incurred or aggravated by military service. d. It is the opinion of AHRC that the case of the applicant continues to be processed as an NDR-PEB. 11. On 7 May 2020, the PEB determined the applicant’s appeal was carefully considered and her case reviewed. Following the review of her case, the Board adheres to the original findings and recommendations of the Informal proceedings. a. Regarding her chronic low back pain: She stated that this condition should be compensable because the New York Army National Guard Office of the State Surgeon found this condition to have been incurred in the line of duty. She presented an approved line of duty investigation as evidence in support of her contention as well as medical records indicating that she was treated for a right sided lipoma in 2017. In response to her appeal, the PEB requested that the ARMMC re-evaluate their decision that this condition was not compensable. On 21 April 2020, the ARMMC responded with no change. The PEB subsequently referred her case to HRC to determine whether or not a formal line of duty investigation was warranted or if this condition should be considered to have been incurred in the line of duty. On 5 May 2020, HRC completed a thorough review of her case and determined that her back condition was NDR because there was no specific diagnosis other than pain when she initially complained of a lumbar strain that occurred during a period of inactive duty training in June 2012. Therefore, the PEB upholds the findings of the informal proceedings and finds that she was unfit and that this condition is not compensable. b. Regarding her major depressive disorder: She stated that this condition should be compensable because this condition is directly related to her lower back condition. However, since the HRC has determined that her lower back condition is not duty related, her major depressive disorder is also found to be not duty related as there is no evidence of a cause for this condition other than her lower back condition. Therefore, the PEB upholds the findings of the informal proceedings and finds that she is unfit and that this condition is not compensable. c. Her appeal will be included in her case file for consideration during her formal PEB which is scheduled for 1 October 2020. 12. FPEB Proceedings convened on 18 March 2021. The board found the applicant physically unfit and that her disposition be referred for case disposition under RC regulations. The (2) medical conditions determined to be unfitting were: a. Chronic low back pain/lumbago (non-compensable). NDR Case: Onset occurred in 2012 while the Soldier was not in a drilling status. In accordance with (IAW) Department of Defense Instruction (DoDI) 1332.18, Enclosure 3, Appendix, 2, paragraph 2a, this Soldier is unfit because DA Form 3349-SG, physical profile limitations associated with this condition make this Soldier unable to reasonably perform the duties required as a 92A. The Soldier's condition prevents them from performing DA 3349-SG, physical profile, Section 4 functional activity (e) move greater than 40 pounds, (e.g. duffle bag) while wearing usual protective gear (helmet, weapon, body armor, Load Bearing Equipment) up to 100 yards. b. Major depressive disorder (non-compensable). NDR Case: Onset occurred in 2013 while the Soldier was not in a drilling status. IAW DoDI 1332.18, Enclosure 3, Appendix 2, paragraph 2a, this Soldier is unfit because the physical limitations associated with this condition make this Soldier unable to reasonably perform duties required by an 92A. The Soldiers condition prevents them from performing DA Form 3349-SG, physical profile, Section 4 functional activity (f) live and function, without restrictions in any geographic or climatic area without worsening condition. IAW AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) 5-4, e (2) this condition is medically unacceptable and prevents worldwide deployment in a field or austere environment; therefore, the Soldier is unfit. c. During formal proceedings, the PEB reevaluated all available medical and performance records to include sworn testimony and exhibits provided by the Soldier. d. This case was adjudicated as a non-duty related case. DODI 1332.18, 3d. e. FORMAL: Regarding the Soldiers contention that she be found unfit for chronic low back pain and major depressive disorder and that these conditions be found to be duty related: based upon a review of the objective evidence of record, including the Soldier's testimony, and records reviewed during formal board proceedings, and considering the requirements for reasonable performance of duties required by rank and military specialty, the PEB finds the Soldiers conditions unfitting. At formal board, the results of the informal board were upheld regarding the Soldiers lower back and behavioral health conditions. The formal board also heard testimony from the Soldier that her back pain from a fall off an obstacle course, while entitled to base pay, had not been resolved. The Soldier also testified that after losing her civilian job after not being cleared to return to work had caused significant financial and emotional hardship which resulted in her behavioral health condition. Testimony and the case file reflect that a previous finding of in the line-of-duty was overturned by HRC on determination from AR-MMC that it was not ILOD and therefore this case remains (NDR). f. The applicant did not concur. She provided a written appeal. 13. The applicant provided a rebuttal to and appeal of FPEB, 19 April 2021. In her appeal she and counsel states if the rebuttal does not result in any changes to the FPEB decision, this memorandum shall then serve as the Soldier's appeal for the United States Army Physical Disability Agency (USAPDA) to review the FPEB decision IAW AR 635-40. Counsel provides case history. Counsel argues ARMMC is not authorized to overturn or otherwise interfere with an approved LOD. Counsel’s argument also states the ARMMC memo states that a LOD investigation should not be initiated, a determination that ARMMC is not authorized to make, and a determination that is moot in the case because the LOD was completed and approved in 2012. ARMMC’s interference in the LOD process has cause confusion and misinformation which has deprived the Soldier of her due process rights. Counsel states the PEB can and should course-correct this case IAW their authority under AR 635-40, chapter 4-34 (d), the PEB has the authority to direct the case to be referred under the duty-related process. Counsel closes by stating it is very important to reiterate here that there is no "not in LOD determination made in accordance with AR 600-8-4.'' CPT R__d's memo is "advisory" and is not an LOD investigation or determination. Likewise, HRC did not initiate or complete a LOD, nor did HRC issue a "not in LOD" determination. Thus, it is not only appropriate, but essential that the PEB directs the return of the case for re-referral under the IDES process. (The entire appeal is available in documents for review). 14. On 4 May 2021, USAPDA requested an LOD determination for the applicant regarding her referred NDR physical disability condition of Chronic Low Back Pain/Lumbago. An LOD determination is necessary to establish whether or not the Soldier’s condition was incurred during Army Reserve training on 8 June 2012 while at Fort A.P. Hill, VA, and for proper case adjudication. It was requested that HRC validate the 18 October 2012 ILOD determination for the Soldier’s back condition and to also make an LOD determination for her related mental health condition. 15. On 11 May 2021, AHRC responded to the advisory opinion request from the USAPDA. It was determined: a. In regard to the back pain: (1). AHRC rendered an advisory opinion on the applicant’s back condition and mental health condition on 5 May 2020 for the United States Army Physical Evaluation Board NDR Physical Evaluation Board. In that memorandum, AHRC advised the DA Form 2173s, Statement of Medical Examination and Duty Status, were invalid IAW AR 600-8-4. Pain is a symptom not a medical diagnosis and has no lasting significance, thus there cannot be a LOD initiated for that condition. (2) As far as the current request, the applicant did not have any evidence of back pain prior to service in 2012, based on the records provided. She continues to have problems with her back, and now she no longer meets retention standards. The AR-MMC makes the point that the Soldier did not have a valid diagnosis for her back pain, and therefore her DA Form 2173 from 8 June 2012 was invalid, with which AHRC agrees. On the DA Form 2173, no diagnosis was listed. On a handwritten DA From 2173 dated 8 June 2012, the diagnosis was listed as low back pain and numbness right leg. She was seen in the emergency room on 8 June 2012 with a diagnosis of back pain and a negative lumbar x-ray. The applicant continued to be seen by a provider for back pain. However, her lumbar x-rays and lumbar MRI (8 August 2014) were negative for any pathology. (3) On 6 February 2017, a palpable mass was identified on her right lower back, which the physician stated was the cause of her pain. This mass turned out to be a lipoma, a benign fatty tumor that is not secondary to her back trauma in 2012. A lipoma is a benign finding, and its removal is not of any significant clinical significance. As of today, she does not have a pathologic diagnosis for her back pain and all of her imaging studies have been negative. (4) Pain/strain are not diagnoses of lasting significance and do not meet criteria for a LOD IAW AR 600-8-4. b. In regard to her depression: (1) Clearly, the applicant was not diagnosed with depression while on orders. She has several contributing factors for her depression and some of these factors possibly arose from circumstances arising from her back pain. However, she was not diagnosed with depression or any other behavioral health condition while in a duty status and so it was not incurred or aggravated by her military service. (2) In an initial Veterans Affairs behavioral health note dated 12 February 2013, the Soldier reported moderate-severe depressive symptoms in the context of being on personal leave without pay from her work at UPS since June 2012, having lost her apartment, having no income or disability pay, and having a very limited social support. There is no mention of back pain being the cause of her depression. It is understood that she claims that she could not be cleared to return to her job until she was cleared medically because of her back pain, and that was the cause of her depression, but there are no records to support that. (3) Besides the diagnosis of pain, the mental health condition must be supported by evidence according to AR 600-8-4 which states: Findings must be supported by a greater weight of evidence (more likely than not) than supports any different conclusion. 16. On 14 May 2021, the USAPDA Deputy Commander, noted- the applicant's disagreement with the findings of the PEB and have reviewed the entire case, wherein the applicant non-concurred with the PEB findings, contending that her back pain and behavioral health conditions are duty related. USAPDA requested a AHRC LOD determination for these conditions which was accomplished on 11 May 2021. The AHRC LOD determination for both of these conditions affirms the PEB findings. The conclusion is that this case was properly adjudicated by the PEB, which correctly applied the rules that govern the Physical Disability Evaluation System in making its determination. The findings and recommendations of the PEB are supported by a preponderance of evidence and are therefore affirmed. The issues raised in your 19 April 2021 appeal were adequately addressed by the PEB in its Formal Board proceedings and USAPDA concur with the findings the PEB. The USAPDA Deputy Commander, authenticated the determination of the FPEB. A final PEB determination was made in a NDR case memo. It was determined that the applicant was unfit for duty. 17. Orders 21-200-00011, issued by Headquarters, 99th Readiness Division (USAR), Joint Base McGuire-Dix-Lakehurst, NJ, on 19 July 2021, shows the applicant was honorably discharged from the USAR on 20 August 2021. Additional instructions show the applicant was found unfit for retention IAW Army Regulation 40-501 (Standards of Medical Fitness). Medically disqualified – not result of Soldier’s own misconduct. 18. Title 38, U.S. Code, 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. 19. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 20. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS), the VA's Joint Legacy Viewer (JLV), and the electronic Physical Evaluation Board (ePEB). The applicant requests for her unfitting conditions Chronic Low Back Pain/Lumbago and Major Depressive Disorder (MDD) to be determined to be in Line of Duty. She has a LOD for the Lumbar Strain that was approved in 2012 but it was overturned in 2020. The MDD condition was claimed to have developed due to the back condition. The applicant also indicated that PTSD and Other Mental Health conditions were related to her request. b. A summary of the applicant’s military record and case highlights was contained in the ABCMR ROP which included but was not limited to the following: The 18Oct2012 Line of Duty Determination; the 17Apr2020 AR-MMC memorandum for the ND-PEB (non duty [related] PEB), the 05May2020 AHRC NDR PEB Advisory Opinion, the 18Mar2021 NDR Formal PEB proceedings, the applicant’s 19Apr2021 Rebuttal to and Appeal of FPEB Findings, the 04May2021 Line of Duty Determination memo from the USAPDA, the 11May2021 Line of Duty Determination memo from USAHRC, and the 14May2021 USAPDA acknowledgment of the applicant’s Rebuttal to the PEB Findings. Of note, the applicant had a period of active duty training from 20070821 to 20080204 and a period of active service from 20090217 to 20100216. The Statement of Medical Examination and Duty Status (DA Form 2173) indicated that during a period of inactive duty training from 20120608 to 20120610, on 08Jun2012, the applicant fell off the obstacle course onto her back. She was reportedly seen the same day at Spotsylvania Medical Center emergency room. The emergency room note, and lumbar x-ray report were not available for this review. In the Spotsylvania Medical Center emergency room, she was reportedly diagnosed with Back Pain and the lumbar x-ray was normal (per 11May2021 Line of Duty Determination memo from USAHRC). The approved In Line of Duty listed Lumbar Strain as the diagnosis for the injury sustained during Battle Training Assembly on 08Jun2012. However, clinical records showed that Lumbar Back Pain or Lumbago (a symptom, and not considered a valid diagnosis) was listed in her treatment records as her diagnosis—a more definitive diagnosis was not used because lumbar film, CTs and MRIs did not reveal pathology. The applicant underwent the ND (non duty)-PEB on 26Sep2019 and was found unfit for Chronic Low Back Pain/Lumbago and MDD. Both were determined by the PEB to have not had onset while she was in a drilling status. The applicant did not concur with the PEB findings. c. Lumbar Condition onset and treatment • 24Nov2009 during Part 2 of the physical for a periodic health assessment, the applicant reported a 2-3 week of LBP without report of injury. Approximately two and a half years later, she was seen in follow up, after an emergency room visit after having fallen off an obstacle course bar onto her back (13Jun2012 ). She complained of back pain and numbness. The treatment after this injury included Back Class in October 2012; 8 sessions total of physical therapy from January to July 2013; pain management using Neurontin (due to complaints of radiation of pain to anterior right thigh area); an emergency room visit for intramuscular injection of non-steroidal anti-inflammatory (19Apr2015 Washington DC VAMC); muscle relaxant and quarters (20May2015 Ft McCoy Support Clinic); and a permanent profile L2 (12Jun2015 Periodic HA). • 24Jun2015 Back Conditions DBQ, currently, she reported that when walking or standing for long periods, she would get sharp throbbing pains. She also had tingling down the right posterior leg just above the knee. The following back ROMs were recorded: Forward flexion to 70 degrees (normal 90); and extension to 25 degrees (normal 30). The examiner noted pain during the exam but endorsed there was no objective evidence of localized tenderness or pain on palpation, and no evidence of pain with weight bearing. There was no guarding or muscle spasm. The MRI showed no abnormalities; however, the VA examiner diagnosed Lumbar Strain. • On 29Jun2017, the applicant underwent surgical excision of a painful right flank subcutaneous lipoma by neurosurgery and her back pain (and radiation of pain) temporarily resolved. She was returned to full time full duty status. Then on 20Mar2018 (note) she stated that her symptoms had been aggravated by doing drill PT. On 26Sep2018 (Emergency Department note), she was seen for 10/10 left side back pain. A year later she underwent a ND-PEB on 26Sep2019 d. Lumbar condition studies. The studies below, were completed at Walter Reed National Military Medical Center. • 28Sep2012 lumbar film was normal—no traumatic abnormality. • Lumbar MRIs on 07Aug2014, 29Apr2017 26Mar2018, 25Apr2019 showed no lumbar disc herniation, and no significant central canal compromise or neural foraminal encroachment. • 20Jun2018 lumbar CT lumbar revealed no acute or chronic abnormalities. e. BH (behavioral health conditions): PTSD (self report—due to back injury), MDD • 12Feb2013 Washington VAMC. During this visit she reported no prior BH history or treatment. She reported injuring her back while in military training in June 2012. She “reported moderate-severe depressive symptoms in the context of being on personal leave without pay from her work at UPS since June 2012, having lost her apartment, having no income or disability pay, and having a very limited social support” in the area. It was noted that she did NOT endorse chronic back pain during this initial visit BH visit. She reported 0/10 pain. • On 14Apr2014, the applicant was seen at Kimbrough ACC, Ft Meade. She had symptoms of depression since June 2012 and was reporting current thoughts of suicide. She stated that she fell on a bar during an obstacle course event and injured her back. She had lost her job with UPS because of sick time. She was currently unemployed and homeless living in a shelter. She was receiving BH medication management from the VA. • 01Apr2015 VAMC Mental Health Consult. The applicant described symptoms of major depression that had gone on for the prior 2 months, largely related to social stressors. She also confessed having had homicidal ideations toward her Access Housing case manager. She reported the following work history: DC police department prior to enlistment in the Army; a warehousing service after that; and had not worked since joining the Reserves last year. • 20Jun2015 Mental Disorders DBQ. VA notes indicated the applicant was service connected for Major Depressive Disorder with a 30% rating in 2014. • She voluntarily reenlisted 31Jan2016. • 03May2016 VAMC Mental Health Note. She had worked as a security guard and police officer. The time frame of her civilian employment was unclear. • 27May2016 Psychiatry note summarized that she had been excused from drill due to worsening depression symptoms since March 2016. She called the clinic and stated she had experienced improvement on her current medication and was requesting to return to drilling status which was granted effective the 2nd week in June 2016. Afterwards, she was not seen by BH services for almost 1.5 years. • 15Sep2017 VAMC Mental Health Note. She was unemployed and disabled due to back pain, but she also reported working one weekend per month for the Reserves. Otherwise, she spent most of her time on the couch or in bed. She wanted to restart previous psych meds. Diagnosis: MDD, Recurrent, Moderate. • 07Feb2019 Psychology Outpatient Consult. She endorsed continued poor functioning- rarely leaving her home except for weekend military drills. • 17-22 March 2019 she was psychiatrically admitted to VAMC with primary diagnoses: MDD, Recurrent; Alcohol Use Disorder; and Rule Out Adjustment Disorder. She reported suicide ideation and a suicide attempt in 2016. She was awaiting a medical board—she was in the Reserves and had recently been ordered to active duty which had led to the suicide ideation with the plan to cut herself and psychiatric admission. She also mentioned worsening back pain. • 18Mar2019 Psychiatry Inpatient Note. Psychiatrist obtained the following corroborative history from the applicant’s friend: The applicant had been suffering from a variety of stressors in the past 6 years which had all been building: The primary stressor was her current situation with the military (she had recently been called to active duty for one year); she had little support in the area and wanted to relocate to be near family; she had also been talking more of searching for her birth parents; and there was ongoing conflict with adoptive parents over her sexual orientation. f. Rationale (1) Per AR 600-8-4 para 2–4a, for standards applicable to line of duty determinations, a Soldier’s injury, illness, disease, or death is presumed to have occurred ILD (in line of duty) unless rebutted by the evidence. In the ARBA Medical Reviewer’s opinion, the evidence supports that it is at least as likely as not that the applicant’s low back pain is related to the fall during the obstacle course that occurred during inactive duty training in June 2012: Documentation was completed in a timely manner (a DA Form 2173 was completed the day after, and an In LOD was completed and approved in just over 4 months); she was seen in the emergency room on the day of the event; she reported symptoms off and on since onset; she has been evaluated by various specialties and received treatment from them (medications, injections, physical therapy, profiles); there were physical exam findings (decreased ROM, tenderness to palpation); no provider has indicated that the applicant was malingering or that a mental health condition (e.g. Somatization Disorder) was suspected as the etiology. It was also noted that for the 3 years before the event, she was not being seen for any physical complaints. Moreover, the applicant regularly reported that the fall onto her back during the obstacle course was the source of her chronic back pain. And finally, although the applicant reported a history of working as a UPS Manager, working in DC Police Department etc., there was no clear documentation that she had been injured in any of her civilian job(s). (2) It is true that all service studies were negative for pathology—the cause for the applicant’s chronic, intermittent low back pain was not found by MRIs, CT, or x-ray; however, according to UpToDate: “The vast majority of patients seen in primary care (>85 percent) will have nonspecific low back pain, meaning that the patient has back pain in the absence of a specific underlying condition that can be reliably identified. Many of these patients may have musculoskeletal pain” (Evaluation of Low Back Pain in Adults, UpToDate). This applicant’s low back pain was managed largely by primary care. Per regulation, the following conditions without definitive diagnoses were considered minor injuries that would not be expected to result in permanent disability: Pain, strains, contusions, bruises, minor cuts, and abrasions (AR 600-8-4 para 2-2(3)d). However, the applicant’s back pain condition did require ‘follow-on care’. It was also noted that the VA listed a valid diagnosis for the applicant’s back condition: Lumbar Strain (VA C&P Back Conditions) which notably was the same as presumed on the original In-LOD document. g. Conclusion. In the ARBA Medical Reviewer’s opinion, a clear nexus was established from June 2012 through May 2015, between the obstacle course event in June 2012 and the applicant’s back pain, as manifested subjectively by her report of back pain and objectively by decreased ROM and decreased functioning; and as reflected in the investment of time and attention of medical specialties in various treatment modalities and rehabilitation for the condition starting immediately after the incident and continuing throughout this period. Recommendation: Chronic Lumbar Strain, In Line of Duty. h. Concerning the BH condition, the applicant contends that the BH condition is due to the back injury from the fall from the obstacle course. Based on review of available records, the BH condition appears to be multifactorial in origin. The condition was not diagnosed while the applicant was on active orders. There were no BH treatment records while the applicant was on active orders. The applicant did not have a combat deployment. Recommendation: Major Depressive Disorder, Not In Line of Duty-Not Due to Own Misconduct. BOARD DISCUSSION: 1. The Board determined 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. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. Chronic low back pain: The applicant contends that this condition should be compensable because the NYARNG Office of the State Surgeon found this condition to have been incurred in the line of duty. She presented an approved line of duty investigation as evidence in support of her contention as well as medical records indicating that she was treated for a right sided lipoma in 2017. In response to her appeal, the PEB requested that the ARMMC re-evaluate their decision that this condition was not compensable. The ARMMC responded with no change. The PEB subsequently referred her case to HRC to determine whether a formal line of duty investigation was warranted or if this condition should be considered to have been incurred in the line of duty. HRC thoroughly reviewed her case and determined that her back condition was NDR because there was no specific diagnosis other than pain when she initially complained of a lumbar strain that occurred during a period of inactive duty training in June 2012. Therefore, the PEB upheld the findings of the informal proceedings and finds that she was unfit and that this condition is not compensable. The Board reviewed and was persuaded by the medical official’s finding a nexus was established from June 2012 through May 2015, between the obstacle course event in June 2012 and the applicant’s back pain, as manifested subjectively by her report of back pain and objectively by decreased range of motion and decreased functioning; and as reflected in the investment of time and attention of medical specialties in various treatment modalities and rehabilitation for the condition starting immediately after the incident and continuing throughout this period. Based on the medical review, the Board determined the applicant’s Chronic Lumbar Strain was In Line of Duty. b. Major depressive Disorder: The applicant contends that this condition should be compensable because this condition is directly related to her lower back condition. However, since the HRC has determined that her lower back condition is not duty related, her major depressive disorder is also found to be not duty related as there is no evidence of a cause for this condition other than her lower back condition. Therefore, the PEB upheld the findings of the informal proceedings and found that she is unfit and that this condition is not compensable. The Board reviewed and was persuaded by the medical official’s finding that the condition was not diagnosed while the applicant was on active orders. There were no behavioral health treatment records while the applicant was on active orders. The applicant did not have a combat deployment. Based on the medical review, the Board determined the applicant’s Major Depressive Disorder, Not In Line of Duty-Not Due to Own Misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF xx: xx: xx: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant’s chronic low back pain condition was found in line of duty and directing the applicant be entered into the Disability Evaluation System (DES) and a Medical Evaluation Board (MEB) convened to determine whether the applicant’s chronic low back pain condition, met medical retention standards at the time of service separation. a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue her the appropriate separation retroactive to her original separation date, with entitlement to back pay and allowances and/or retired pay, less any entitlements already received 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. 8/15/2023 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. Non–duty related impairments are impairments of members of the Reserve Component (RC) that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Soldiers with nonduty related impairments are referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits. b. Paragraph 4-2a (1) states the non-duty related process applies to RC Soldiers who are not on active duty and who do not meet medical retention standards because of non-duty related impairments. c. Paragraph 4-27c (7) states disposition for Reserve Component determined unfit under the non-duty related process. The disposition will be, “Unfit -- referred for case disposition under RC regulations.” d. Paragraph 4-34 (RC non-duty related process) states the RC non-duty related process is established by policy. It affords RC Soldiers not on call to active duty of more than 30 days and who are pending separation by the RC for non-duty related medical conditions to enter the DES for a determination of fitness and whether the condition is duty-related. A LOD investigation resulting in a finding of not in LOD is not required when it is clear that the disqualifying disability is non-duty related. For example, RC Soldier’s disqualifying condition is an amputation that was incurred when the Soldier was not in a duty status. e. In the absence of a not in LOD determination made in accordance with AR 600–8–4 for the non-duty related medical condition, the PEB president has the authority to direct the return of the cause for re-referral under the IDES process. Such action is warranted when the PEB has evidence that the condition was incurred or aggravated in the LOD. For example, the Soldier’s military medical records reflect that the condition was incurred or aggravated when the Soldier was in a duty status. In this situation, the PEB terminates the non-duty related case adjudication. 3. AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies, procedures, and mandated tasks governing line of duty determinations of soldiers who die or sustain certain injuries, diseases, or illnesses. Paragraph 4–18 (Revision or correction of line of duty determinations) states the commanding general, USA HRC, acting for the SA, may at any time change a determination made under this regulation. The correct conclusion based on the facts must be shown. However, if the change is from "in line of duty" to "not in line of duty," or, if other evidence is considered which supports a “not in line of duty” determination, the soldier must be informed of the proposed change, its basis, and his or her rights under paragraph 3–3b, and be given a chance to respond in writing in accordance with paragraph 3–8f (6). Any statement or evidence that the soldier submits must be considered before taking corrective action. When a determination is changed after final action has been taken to award statutory benefits (such as entitlement to physical disability pay), it does not necessarily change the determination on the statutory award. Final statutory determinations, which are otherwise regular and approved by competent authority, may not normally be reopened or revoked. Exceptions may be made under one of the following conditions: a. In cases of fraud, mistake of law, mathematical miscalculations, or substantial new evidence that could not have been discovered at the same time or shortly after the determination. b. When reopening or revocation is permitted by the law granting the authority for the statutory determination in question. 4. Title 38 U.S. Code 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. 5. Title 38 U.S. Code 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. 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//