IN THE CASE OF: BOARD DATE: 13 December 2023 DOCKET NUMBER: AR20230004199 APPLICANT REQUESTS: * approval of his Formal Line of Duty Investigation (LODI) for the Condition of Lichen Planus due to exposure to Permethrin directly on skin due to duty uniform soaked in Permethrin * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Order 202-094, dated 21 July 2007 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 August 2007 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 27 February 2019 * Department of Veterans Affairs (VA) rating decision, dated 18 December 2019 * DA Form 2823 (Sworn Statement), dated 10 September 2020 * memorandum, subjected: Investigating Officer Findings and Recommendation, dated 24 June 2021 * DD Form 261 (Line of Duty and Misconduct Status), dated 24 June 2021 * email, dated 7 July 2021 * memorandum to National Guard (NG) Surgeon, subjected: Medical support/report, dated 13 June 2022 * memorandum to Minnesota Army National Guard (MNANG) Deputy State Surgeon, subjected: Medical support/report, dated 12 August 2022 * letter to National Guard Bureau (NGB) Surgeon, dated 22 August 2022 * memorandum, subjected: Line of Duty Investigation Appeal, dated 8 December 2022 * Dr. R_ J. K_ letter of support, dated 17 December 2022 * DA Form 2823 (Sworn Statement), dated 29 December 2022 * United States Environmental Protection Agency letter, subjected: Amended Reregistration Label, dated 20 January 2015 * Department of Health and Human Services (HHS) Public Access study: Permethrin exposure from wearing fabric-treated military uniforms in high heat conditions under varying wear-time scenarios, published 6 February 2019 FACTS: 1. The applicant states he has supporting medical documents from Dr. R_ K_ providing an Expert opinion on his case. Dr. K_ is a Retired Air Force Brigade General and Medical Officer and is currently the senior medical provider at A_ Dermatology. LODI Investigating Officer, CW3 H_ B_, for the State if Minnesota Office of the State Surgeon had no medical background. All levels, from the Unit Commander thru BDE Commander, looked at the Investing Officer's report and concurred with it, all of whom also had no medical background. He feels that from the start of the LODI, it was not handled correctly. When he requested all the documents from LODI, he discovered his Sworn Statement wasn't included. He has attached the email thread to prove the Investing Officer had received his email with the Sworn Statement. He feels his statement was not accounted for, was not accurately submitted, and was disregarded at the Investigating Officer’s level. 2. The applicant enlisted in the Minnesota National Guard and as a Reserve or the United States Army on 8 April 1999. He served on active duty for initial training from 21 June 200 to 1 September 2000. 3. The applicant was mobilized in support of Operation Enduring Freedom and served on active-duty form 10 August 2003 to 8 April 2004. He was mobilized in support of Operation Iraqi Freedom from 12 October 2005 to 26 August 2007. He served as a member of the Active Reserve from 27 August 2007 to 13 December 2009. 4. The applicant provided United States Environmental Protection Agency letter subjected: Amended Reregistration Label, dated 20 January 2015, showing an acceptance for a label change for Permethrin. 5. A Statement of Medical Examination and Duty Status (provided by the applicant) shows he was treated on 27 February 2019 for Other Lichen Planus, a skin condition he claims is related to chemicals present in uniforms during deployment in 2005-2007. He requested a LODI after permanent 3 profile written for skin condition. Claims pest control chemicals in uniforms worn during Operation Iraqi Freedom (OIF) 2005-2007 caused skin condition. Diagnosis received February 2019. The applicant claims that prolonged hours of sweating while wearing uniforms treated with chemical while on OIF 2005-2007 deployment. He was not seen while on orders for skin condition or related issues. Initially treated for athlete’s foot in subsequent years, until 2019 when he was diagnosed with Lichen Planus. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 6. The applicant was notified on 3 May 2019 of his eligibility for retired pay for non- regular service (20 Year Letter). 7. The applicant provided his VA Rating Decision letter, dated 18 December 2019, showing he was granted a service-connected evaluation of 60 percent for planus dermatitis (claimed as skin condition, and skin rashes on legs, arms, hands, and feet), effective 18 October 2018. 8. A DA Form 2823 (Sworn Statement), dated 10 September 2020, provided by the applicant, stating: This is his statement for his request for LODI for his Skin Condition "Lichen Planus ". When he deployed to Iraq in support of Operation Iraqi Freedom on 12 October 2005, he never had any skin issues or any skin conditions nor does anyone in his family. During the 22 months being deployed (12 October 2005 to 26 August 2007) he started to notice rashes on his feet, ankles, chest, wrists, and legs. At the time he thought it was due to the desert conditions that cause it by sweating and prolong hours in uniform/body armor before changing when off duty, athlete's powder was working so he didn't think anything of it. While in Iraq people only went to sick call if they were dying. After returning the rashes acted like athlete's foot and when using the over-the-counter powder and creams again, it seemed to help. Through the next ten years he thought it was the new him and nothing to worry about. That was until December 2017 he noticed that the athlete's medication was not helping anymore, and he was having problems walking from the pain in his feet. He started with seeing his local doctor and was referred to Podiatrist. He went the Podiatrist and who had no clue what was going on his feet. The Podiatrist prescribed him a steroid pack and also referred him to a Dermatologist at the A_ Medical group in Sioux Falls, SD in February. At his first visit, the Dermatologist stated that she had never seen a case like his and asked for another Dermatologist to come due to not knowing what was going on with his skin on his feet and it is spreading again over his whole body. Two skin samples were taken at that appointment, and they were sent to [University of Minnesota] in Minneapolis for results. The results came back as a severe case of Lichen Planus. Since then, he has been seen by VA Dermatologist and A_ Dermatologist and have been working together on his treatment plans due to the medications that he had been put on and UV light therapy was not making the condition better. He has been put on eight plus medications throughout his treatments and they are documented on his VA and A_ records that the MNARNG has. He has signed a Release of Information for both health care agencies due to receiving a profile. In December 2019 the VA has granted service connection on the basis of presumption of Golf War syndrome for his skin condition. "The Skin - Dermatitis or Eczema- Lichen Planus 60 percent, the highest rating by federal law due to sever case and the treatments/medications used to treat his skin condition. When he returned from Iraq Deployment and had a Full Time Staff AGR position waiting on his return, the condition was stable. He wasn't going to bring up anything that would or could disqualify him from excepting the position and later in his military career excepting a Federal Technician position until July 2018 when leaving the Full Time Staff (FTS). The Chemicals that they soaked their uniforms in for pest treatments and environmental hazards while being exposed in these conditions for almost 18 months in county along with being the longest deployment since WWII. He has met some Battle Buddies that also suffer the same or like skin condition and they are the same way, it started while in Iraq while on 22 Month Deployment. In order to have a fully develop LOD it is required to have definitive diagnosis; he didn't receive the diagnosis at the time and or treatment. He does have definitive diagnosis "Lichen Planus" now. Please process his request for LODI. 9. The applicant emailed the Investigating Officer on 23 June 2021, to provide him with his statement. The Investigating Officer replied the same day he had received it. 10. A memorandum, subjected: Investigating Officer Findings and Recommendation, dated 24 June 2021, stating: Upon completion of the Line of Duty investigation for the applicant, the investigator does not recommend this injury be found in the Line of Duty. The investigator does not suspect misconduct or pretense by the applicant. Due to time elapsed, lack of factual documentation, or military medical history regarding this disease the investigator cannot beyond a doubt say this disease can be attributed the applicant's mobilization duties. Sworn statements are the only evidence directly relating to his LOD and cannot be corroborated with medical history, civil or military that directly relates to his mobilization. 11. The associated DD Form 261 states in Remarks: Exact date for the circumstance cannot reasonably be determined by the Investigating Officer so the date used for the circumstance is arbitrary due to the nature of the illness. The form is endorsed in its entirety with final approval stating not in line of duty – not due to own misconduct for Lichen Planus. 12. The Investigating Officer emailed the applicant on 7 July 2021, advising him the following: a. The Investigating Officer just wanted to inform the applicant that with the current information and documents he has, he cannot find sufficient evidence to link the applicant’s LOD back to his Iraq deployment, therefore, has no choice but to submit the memorandum as such (see attached). b. During their phone conversation 21 June 2021, the Investigation Officer had stated that he needed more information, be it sick call slips or having seen a civilian provider after deployment. Nothing in the historical medical document reviews that he has completed can be directly tied back to the timeframe that the LOD took place. The applicant did provide the additional statement, but this is not sufficient to connect the issue back to the deployment considering there is no historical medical documentation for corroboration and review to this point. c. As the Investigating Officer is not a medical professional, he cannot diagnose and can only go by what he has been provided for the LODI. If the applicant has additional official information/documentation to assist in connecting his issue to the timeframe of deployment, please send it otherwise the attached memo will be finalized for submission. 13. The applicant provide the following pertinent items: a. A memorandum from Dr. R_ J. K_ to NG Surgeon, subjected: Medical support/report, dated 13 June 2022, stating: (1) He has had the privilege of seeing this individual as a patient in the Dermatology Clinic at A_ healthcare in Sioux Falls. The applicant has requested that he provide the additional information as requested and documentation the applicant provided to him. (2) By way of background, he is a retired United States Air Force medical officer, now providing dermatology care here in Sioux Falls. In his former professional responsibilities, he is not only had responsibility for medical care of military and their dependence, but as Command Surgeon, HQ Air Education and Training Command, was frequently responsible for overseeing significant portions of medical determinations reference military service. Please understand, he does not have access to the applicant's military records, no access to any medical documentation other than what exists at his clinic here. He is also not attempting to direct any administrative determination, but simply to provide accurate information. (3) The applicant was first seen in the dermatology clinic at A_ on 26 February 2019. The applicant had been previously treated by both primary care and podiatry, and that treatment had included topical permethrin for presumptive diagnosis of scabies, though this was certainly not likely the diagnosis. (4) The applicant saw their nurse practitioner, H_ F_, with oversight evaluation by Dr. J_ J_. The applicant had an eruption which then and now involve primarily his lower legs and feet and was intensely itchy. Biopsies done at that time unequivocally showed lichen planus. Work-up for underlying conditions was negative. (5) Therapeutic maneuvers from February 2019 to now include multiple topical steroids, including triamcinolone, clobetasol, and halobetasol, ultraviolet Blight therapy Otezla (apremilast), and more frequently a combination of Humira (adalimumab and acitretin. The applicant has also had multiple courses of systemic steroids, either oral prednisone, or injected triamcinolone. Over the last approximately 3 1/2 years, control of the condition, and in particular the itching, has been acceptable but not complete. (6) The applicant was also kind enough to provide him with instruction sheets that he was given directing him to treat his BDUs with insect/arthropod repellent. This includes permethrin, petroleum distillates, and a variety of other ingredients. The applicant informs him that he was in compliance. (7) Within the scope of information and documentation available to him, he thinks there is no evidence that this condition ever manifested, and certainly was not symptomatic, prior to early 2019. (8) Lichen planus is in the broad category of papulosquamous diseases, and is likely a disorder of cutaneous immunity, and though it has no specific identified etiology, can certainly be aggravated by number of stressors. This could include not only topical chemical exposure, but airborne exposures, and other otherwise unidentified exposures in a combat environment. As with many medical conditions, stress can also be a contributor. (9) As of now, Dr. J_, who is been the applicant’s primary provider, has continued to be settled in on the combination of Humira, isotretinoin, and topical halobetasol, and it appears that both she and the applicant had been in agreement with acceptability of this control. (10) Although he would presume that the answer is no, it certainly lies within the realm of military medical authority to determine this individual's continued suitability for military service in light of both the condition and the continue treatment. (11) Certainly, from his limited perspective, this condition did not exist, or had certainly not been identified, prior to early 2019, so is at least coincident to military service, perhaps to a significantly degree caused by the applicant’s military service, and unequivocally has been aggravated by the same. (12) They will certainly be pleased to continue to provide his care, and hope that an administrative disposition can be achieved that meets the needs of the Minnesota guard, that is also fair and just to the individual. b. A memorandum from Dr. R_ J. K_ to MNANG Deputy State Surgeon, subjected: Medical support/report, dated 12 August 2022, stating: (1) He first met the applicant on 25 April 2022. The applicant had been followed in the dermatology clinic at A_ for quite some time before then and has been on multiple medications for an established diagnosis of hypertrophic lichen planus. The documentation at the clinic here is since at least 2019, though it has perhaps been longer. (2) The applicant has been on treated with both Humira, and isotretinoin, as well as topical high potency steroids, with variable success and control. (3) When he met the applicant, he had been off his Humira for a while, with some significant breakthrough, and they, as of this writing, has been able to reestablish the Humira with gradual improvement. (4) It is manifested as sores in the applicant’s mouth, as well as hypertrophic lesions, primarily on his lower legs. (5) Although the exact date of onset is not established, it is fairly clear that there was deployment in 2005, has multiple years in a GI status, and then as a technician, that this condition is unquestionably service aggravated. As he understands, this is already been denied as a service-connected condition, he would offer no additional comment regarding that, however he would certainly assert that uniform wear, and field responsibilities, clearly make this service aggravated. (6) There is also no question based on the provision of the applicant’s care not only by him but multiple other dermatologic providers at A_ Dermatology, that significant and aggressive ongoing dermatologic care with systemic medications has been and will continue to be necessary. (7) His own experience as a former US Air Force medical officer has included lots of responsibilities in administrative medicine, though he would not presume that he understands the full scope of the rules and regulations. He can state with confidence, however that this is an ongoing condition, and warrants association with the applicant’s long history of deployment, technician status, and severe employment in [the Army]. c. A letter from the applicant to NGB Surgeon, dated 22 August 2022, stating: (1) The applicant is writing this letter due to the decision that his Formal LOD involving Lichen Planus was found to be not in the line of duty and he is appealing the decision. (2) When he joined the Minnesota National Guard on 8 April 1999 at the Sioux Falls MEPS location and completion of the entry physical, nothing was documented of any skin condition or problem by the MEPS Doctor. As he has stated in sworn statement, he didn't have any issues until late 2005 early 2006, then he soaked his uniforms in permethrin using the Individual Dynamic Absorption (IDA) Kit, this was a mandatory requirement. About a week later anywhere the uniform was in contact with his skin he had irritation, including itching, swelling, or redness with mild burning, stinging, tingling, and something was aggerating his skin. He felt that it wasn't nothing to have to see a medic and he wasn't going to take a chance of being let go from the deployment so he didn't seek treatment from the Medic's or Battalion PA. While in Iraq his feet had the worst rashes and issues, he was able to control the issues with his feet by applying athletes foot powder and spray from the PX. (3) At DEMOB station at Fort McCoy, WI he wasn't going to say anything about his skin issues due to having a AGR position when he returned off of deployment and causing any issues transferring from Tittle 10 to directly to 32 AGR. He was AGR day after being released from tittle 10 until late 2009 before excepting a position within the Minnesota National Guard as Federal Technician until 2018 August. (4) Since 2007 when he was released from Title 10 on 26 August 2007 his jobs have been Human Recourses I Readiness from 2007 to 2018 and after leaving the Federal Technician he has been Veteran Service Officer to the present time conducting HR duties. In early 2019 when the applying of the athlete's foot powder and spray wasn't working any more, he saw a Dermatologist to find out what this skin issue was. (5) He is asking that the NGB Surgeon to review the evidence provided and look at factor of "aggregation" to the skin from the Individual Dynamic Absorption (IDA) Kit as grounds grant favorable for the approval of the Formal LOD. It is possible, or at least as likely than not (50 percent or greater probability) that this condition Lichen Planus is associated with his time or service while in serving the military. (6) He is also adding the United States Environmental Protection Agency’s 20 January 2015 Amended Reregistration Label and acute toxicity and product chemistry reviews completed for the product. 9 years later after he had to use this toxic chemical on his uniform the United States Environmental Protection Agency puts out Amended Reregistration Label. d. Dr. R_ J. K_ letter of support, dated 17 December 2022, stating: (1) Of note, this is his third communication to support SFC in this appeal process. He is a practicing contract dermatologist at A_ Dermatology in Sioux Falls, South Dakota. Devious documentation has been provided dated 19 June 2022 to the National Guard surgeon, followed by an additional memorandum dated 12 August 2022 sent to Lieutenant Colonel B_ S_, Deputy State surgeon Minnesota Army National Guard. (2) Also, to reiterate for his first letter on 22 June, the capacity in which he is providing this information is both as the applicant’s clinical dermatologist, but also based on past experience has a senior US Air Force Medical Officer. As his previous correspondence outlined, he is a retired General, with leadership experience in multiple positions with responsibility for medical evaluation boards, etc. Although his understanding of the relationship between the Minnesota Army National Guard, the National Guard Bureau, and is now US Army Human Resources Command is limited, and preparing this memo, he has been provided by the applicant with all previous correspondence to help him understand. He will also hope to provide a little bit more explanation of the medical details and the previous memo. (3) He has known the applicant since 25 April 2022 and followed the applicant as his patient. He has been seen in the A_ Dermatology practice since at least 2019, with the providers in their practice. (4) The applicant has a history is that in the approximate time frame of 2005- 2007 as he was deployed to Iraq, the applicant treated his BDUs with the standard permethrin impregnation procedure for insect protection. He developed an apparent contact dermatitis. This aspect of his condition and care, primarily from him by the applicant himself, persisted and was primarily treated with topical medications. (5) In addition, at some point after the initial contact dermatitis the applicant developed progressive eruptions on arms legs and on the mucous membranes of his mouth that was diagnosed appropriately as lichen planus. This is confirmed both clinically and by biopsies. Although he found nothing in the literature that specifically identifies contact dermatitis as a trigger for lichen planus, lichen planus in terms of its pathophysiology is idiopathic, that is the exact cause or causes is undetermined. The fact that it is listed under the broad category of papulosquamous diseases, the other therapeutic approaches have been selected by other providers. What is clear, however, is that in the applicant's case the condition developed during that timeframe. (6) It is his understanding that the applicant remains on "M day" status with the Minnesota National Guard, but has also been treated aggressively and with multiple treatments for the lichen planus. This has included Humira, a medication in the broad group identified as Biologics, which is an immunomodulator that also suppresses the immune system. The applicant has also received Otezla, which is another biologic, acetiretin, which is an aromatic retinoid, and ultraviolet B therapy. In addition, the applicant has had multiple courses of systemic steroid, both via parenteral injection of triamcinolone, and via oral prednisone. The problem clearly persists. (7) As stated in his previous communications, he remains committed to participating in the applicant’s care. It is appropriate to assert that this condition itself limits deployability, and even more certainly the combination of the applicant’s current therapies should certainly be regarded as rendering him non-deployable, and probably not medically qualified for continued military service. This is both due to the immunosuppression and to required laboratory monitoring. He again notes and asserts that he is providing that perspective based on his clinical expertise, and his prior similar responsibilities during his own Air Force career. He will obviously defer to the position and therapy of the Army Review Boards Agency, but respectfully suggest that reconsideration is very appropriate. 13. A memorandum, subjected: Line of Duty Investigation Appeal, dated 8 December 2022, shows the applicant did not submit new evidence for consideration and that the finding of Not in Line of Duty – Not Due to Own Misconduct will stand. 14. A DA Form 2823 (Sworn Statement), dated 29 December 2022, stating: After reading the Memorandum dated 8 December 2022 from Department of the Army AHRC-PDC in Paragraph 3 it is stating that the incident date of 10 February 2007 and the LOD was submitted on 1 June 2021 with a 14-year, 3-month, and 21-day time lapse. Here is his reason of the time gap. Before he was deployed to Iraq, he had zero skin issues or conditions nor any of his family members. As stated in his other Sworn statements after soaking his uniforms in the permethrin and wearing them he started to have red and sore skin were his uniform directly toughed his skin. While on deployment in Iraq he used athlete's spray and cream from the PX and that seemed to help his skin. They were told that unless you had a serious problem you didn't go to sick call. A few months before redeploying back to US he was offered an AGR position in the Minnesota National Guard and was told that he would have to complete an entrance Chapter II physical into the AGR Program. Due to not wanting any possible issues he said nothing about the rashes on his body nor was it a concern for the medical provider that completed his DEMOB/AGR physical. He was discharged from Title 10 orders on 26 August 2007 and started his AGR tour on 27 August 2007 until 13 December 2009. It was stated, from his Chain of Command, that while in the AGR and have any medical issues all LODs are completed at the exit physical. He excepted a GS level 8 position as Federal Technician in Minnesota National Guard working as DET Readiness NCO and HR NCO from 14 December 2009 until August 2018. He worked directly for the MNARNG directly from 2007 to 2018 whether AGR or Federal Employee, wearing the uniform during his duty hours as AGR and as Federal Employee. Once he felt that his employment wasn't in jeopardy, after leaving the Federal Employee program he went to A_ Dermatologist to find out what the rashes were due to not going away over the years. As per the regulation he needed a Diagnosis for a LOD. Due to the Veteran Affairs and A_ Dermatology treating his Lichen Planus, once diagnosed he had no reason at that time to put in a LOD due to the VA service connecting him in October 2018 with the highest rating set by Congress of 60 percent due to the severity of his condition and all the treatments that have failed. He misunderstood and thought that his Service Connection was the same as LOD since the Army can pull the VA Records. Three months after leaving the full-time guard position he had the Lichen Planus diagnosed. It wasn't until his Physical Health Assessment (PHA) in 2021 that the BN PA during his annual PHA screening realized that he was prescribed Humira and explained that he couldn't be in the military and be on Humira. It was in May of 2021 that he was given the choice of voluntary Medical Discharge or LOD. This is why the LOD was started on 1 June 2021 not back in 2007. He has pulled his military medical file to include the current LOD documents and realized that the Investigating Officer CW3 H_ B_ didn't submit his Sworn Statement that he completed back on 23 June 2021 as rebuttal, he saw that the email that shows there was an attachment was put in his LODI file for record but there is not the Sworn Statement for his rebuttal. He is not able to reproduce this statement due to no longer having that email available nor the statement. His other concern is that the Investigating Officer had no medical background to decide and the Chain of Command follows whatever the IO says, even with the medical letters from his Dermatologist Dr. R_ K_ giving his explanation through his medical knowledge along with his Military knowledge due to being retired Brigadier General in Medical field and being on Medical Boards for the United States Air Force. There is an article on the HHS Public Access site labeled "Permethrin exposure from wearing fabric- treated uniforms in high heat conditions under varying wear-time scenarios " They tested Soldiers wearing the uniforms treated with Permethrin had significantly higher urinary biomarkers due to the Permethrin being resorbed though the skin pores with only wearing the uniform treated with Permethrin for 8 hours for 3 days. While in Iraq form March 2006 to July 2007 due to laundry service and his duties the uniform would be worn 15 plus hours for sometimes 5 to 6 days strait before being able to get the uniform washed and also due to the high OPTEMP due to enemy indirect fire at any time. Also in the Article it states "whether there are long- term health effects related to routine wear of permethrin treated clothing remains an unknown and could not be evaluated in the present investigation as it fell outside of the scope of Project: In the discussion paragraph of this article the first paragraph states the following "High heat conditions significantly affected permethrin exposure through the wearing of permethrin-treated clothing , resulting in 60-360 percent higher urinary biomarker concentration and significantly higher estimated daily doses compared to ambient condition". He personally finds it hard for the Army to state that his exposure to Permethrin-treated uniforms that he had to wear every duty day from December 2005 through August 2018 due to being a Full-time employee for the Department of Defense. He finds it hard to believe it is as likely not, then 50 percent greater probability that his skin condition/aggravation is associated with his deployment from 10 October 2005 to 26 August 2007, longest deployment since World War II. The purpose of an Investigating Officer's duties is to gather evidence and make findings of fact and appropriate recommendations to the appointing authority. In his LODI case the Investing Officer states that his decision was only based on "due to lack of factual documentation, or military medical history" he states he cannot beyond a doubt state that his skin condition was caused or aggravated by his Deployment in 2005-2007. Not once in the Investigating Officer's findings Memorandum dated 24 June 2021 that he's unqualified in medical field and reached out to a Medical Officer for medical opinion in his LODI case, ensuring that all findings of fact were made before making his appropriate recommendation to the appointing authority. 15. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows: a. An Informal PEB convened on 30 March 2023, wherein the applicant was found physically unfit that his disposition be referred for case disposition under Reserve Component Regulations. b. The applicant was found unfit for Lichen planus (non-compensable). Non-Duty Related (NDR) He was diagnosed with this condition in February 2019. The condition is not compensable because at the time the applicant was diagnosed with this condition he was not in an Active -Duty status for more than 30 days or entitled to base pay, and there is not Line of Duty investigation for this condition. Additionally, there is no evidence within the applicant’s available case file that indicates that military service has aggravated the condition. In accordance with Army Regulation (AR) 635-40 (Personnel Separations-Disability Evaluation for Retention, Retirement, or Separation), he is unfit because the DA Form 3349 (Physical Profile) section 4, functional activity limitations associated with this condition make him unable to reasonably perform required duties. (Non-Duty Related Referral Memorandum 9 March 2022, DA Form 7652, DA form 3349, medical documentation). c. The PEB made the following administrative determinations: (1) The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States 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 as defined by law. (2) Evidence of record reflects the individual was a member or obligated to become a member of an Armed Force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. (3) The disability did not result from a combat-related injury under in 26 USC 104. d. The applicant concurred and waived a formal hearing of his case on 5 April 2023. e. The proceedings were finalized on 11 April 2023. 16. A memorandum, subjected: Physical Evaluation Board Recommendation for Non- Duty Related Case, dated 30 March 2023, was provided to the applicant advising him of the results of the PEB. 17. The applicant submitted a memorandum, subjected: Retirement Request, dated 21 April 2023, requesting he be transferred to the Retired Reserve pending the outcome of his medical board. 18. The applicant’s NGB Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably retired on 30 June 2023 for completion of 20 years of service. He was credited 24 years 2 months 23 days total service for pay and 24 years total service for retired pay. 19. The applicant provided Department of Health and Human Services (HHS) Public Access study: Permethrin exposure from wearing fabric-treated military uniforms in high heat conditions under varying wear-time scenarios, published 30 May 2020, demonstrating the effects of high-temperature conditions and uniform wear time durations on permethrin exposure, assessed by urinary permethrin biomarkers, from wearing post-tailored, factory-treated military uniforms. 20. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 21. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting a reversal of the Army National Guard’s determination that his lichen planus was not “Not in Line of Duty – Not due to own Misconduct.” He states: “Requesting Approval of Formal LODI [Line of Duty Investigation] in the Line of Duty for the Condition of Lichen Planus due to exposure to Permethrin directly on skin due to duty uniform soaked in Permethrin.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s National Guard Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows he entered the Army National Guard on 8 April 1999 and was honorably discharged after completing 20 years of Service from the Minnesota Alabama Army National Guard (MNARNG) as of 30 June 2023. d. Lichen planus as described on the Johns Hopkins Medicine website: “Lichen planus is a common disease that causes inflammation (swelling and irritation) on your skin or inside your mouth. On your skin, lichen planus causes a rash that is usually itchy. Inside your mouth, it may cause burning or soreness. The cause of lichen planus is usually not known, although possible causes include: * Hepatitis C, a virus that attacks your liver * Certain medicines, including some drugs used to treat high blood pressure, diabetes, heart disease, and malaria * Reactions to metal fillings in your teeth * An autoimmune reaction, meaning the body's own defense system, the immune system, attacks your mouth and skin cells by mistake e. Symptoms of lichen planus depend on the part or parts of your body affected. Common symptoms include: * Skin: The most common symptoms are shiny red or purple bumps. These bumps are firm and may itch a little or a lot. * Mouth: Lichen planus inside your mouth looks like lacy patches of tiny white dots. These patches may occur on the inside of your cheeks or on your tongue * Nails: Lichen planus may appear on a few, or all, of your fingernails and toenails.” * (https://www.hopkinsmedicine.org/health/conditions-and-diseases/lichen-planus) f. The applicant was diagnosed with lichen planus in 2019. He relates this condition to permethrin treated uniforms during his service from 2005 - 2007 g. A 2021 review of Lichen Planus published by the National Library of Medicine containing a list of 81 medications and other substances associated with lichen planus does not list permethrin. (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8591129/) h. From the conclusion on the potential dermal toxicity of permethrin in military uniforms form the National Research Council (US) Subcommittee to Review Permethrin Toxicity from Military Uniforms. Health Effects of Permethrin-Impregnated Army Battle- Dress Uniforms. Washington (DC): National Academies Press (US); 1994. Summary. (https://www.ncbi.nlm.nih.gov/books/NBK231561/): “The weight of evidence shows that permethrin is unlikely to be a skin irritant or skin sensitizer for military personnel who are exposed to it dermally from wearing permethrin-impregnated BDUs or for garment workers who sew permethrin- impregnated BDUs. A few persons, however, might be hypersensitive to permethrin-treated BDUs and thus develop skin sensitization. Therefore, the subcommittee recommends that the Army should monitor for hypersensitivity when it begins to use permethrin-treated BDUs on a regular basis.” i. On 30 March 2023, an informal physical evaluation board (PEB) determined the former drilling National Guard Soldier’s lichen planus was his sole unfitting condition for continued military Service. Because the Army National Guard had previously completed (20 July 2022) a formal line of duty investigation which determined the condition had not been incurred in the line of duty or related to his military service, i.e., “Not in Line of Duty – Not due to own Misconduct”, the PEB determined the condition was non-compensable. They recommended his case be referred for final disposition under Reserve Component regulations. On 5 April 2023, after being counseled on the Board’s findings and recommendation by his PEB liaison officer, he concurred with the PEB and waived his right to a formal hearing. j. On 21 April 2023, the applicant requested to be transferred to the Retired Reserve. k. The applicant notes and JLV shows he has a VA service-connected disability rating of 60% for “eczema”. The 18 December 2019 VA rating decision states: “Service connection may be granted for specific diseases or conditions which are presumed to have been caused by service if manifested to a compensable degree following military discharge. Although not shown in service, service connection for lichen planus dermatitis has been granted on the basis of presumption. (38 CFR 3.307, 38 CFR 3.309)” l. The requirements for an affirmative Army line of duty determination versus a Veterans Benefits Administration (VBA) service connection, though similar, are different in several respects and neither entity is required to observe the findings of the other, this being one of those. The VBA presumptively service connects conditions related to a period of Service in a given geographic region and/or exposures which has been linked to environmental contaminants / factors associated the with the potential to develop one or more associated conditions. m. Vietnam with possible exposure to agent orange is the best-known example of this policy. While there is typically no direct cause and effect for a given individuals development of a covered presumptive medical condition as required for an affirmative line of duty determination, giving this benefit to the Veteran with a period of service in one of these regions provides health care and other benefits to Veterans with diseases which may be due to such service incurred exposures. n. It is the opinion of the ARBA Medical Advisor there is insufficient probative evidence the applicant’s lichen planus was incurred in the line of duty and thus a reversal of the Army National Guard’s determination the condition was "Not in Line of Duty - Not Due to Own Misconduct" is not warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient probative evidence the applicant’s lichen planus was incurred in the line of duty and thus a reversal of the Army National Guard’s determination the condition was "Not in Line of Duty - Not Due to Own Misconduct" is not warranted. Evidence in the record show the applicant concurred with the PEB and waived his right to a formal hearing. In addition, the Board determined there is insufficient evidence based on the preponderance of evidence in the record that support the applicant’s contentions for approval of his Formal Line of Duty Investigation (LODI) for the Condition of Lichen Planus due to exposure to Permethrin directly on skin due to duty uniform soaked in Permethrin. Based on this, the Board denied relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx xx xx DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation (AR) 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 600-8-4 (Line of Duty (LOD) Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier providing standards and considerations used in determining LOD status. a. A formal LOD investigation is a detailed investigation that normally begins with DA Form 2173 (Statement of Medical Examination and Duty Status) completed by the medical treatment facility and annotated by the unit commander as requiring a formal LOD investigation. The appointing authority, on receipt of the DA Form 2173, appoints an investigating officer who completes the DD Form 261 (Report of Investigation LOD and Misconduct Status) and appends appropriate statements and other documentation to support the determination, which is submitted to the General Court Martial Convening Authority for approval. b. The worsening of a pre-existing medical condition over and above the natural progression of the condition as a direct result of military duty is considered an aggravated condition. Commanders must initiate and complete LOD investigations, despite a presumption of Not In the Line of Duty, which can only be determined with a formal LOD investigation. c. An injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation. LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact. 3. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 4. 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. 5. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 6. Title 10, USC, 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 disability evaluation system 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 Army Regulation 635-40 (Physical 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 Army Regulation 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. 7. Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 9. AR 635-40 (Personnel Separations-Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 10. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004199 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1