APPLICANT REQUESTS In effect, the applicant requests that the by jqu13899

VIEWS: 30 PAGES: 5

									ABCMR Memorandum of                          AC95-10160
Consideration (cont)

APPLICANT REQUESTS: In effect, the applicant requests that the line
of duty determination of 22 November 1993 for an injury to his lower
back that he sustained on 17 July 1993 be changed from, “In line
of duty for bruised right knee; in line of duty - existed prior to
service - aggravation for lower back sprain”, to reflect a new and
separate injury. Subsequent to his original application, he states
that he would like to amend his original request to have the wording
on the line of duty remain the way it is, but in addition add to
it, “and new injury to lower back”.

APPLICANT STATES: That his private physician and a medical officer
at Kimbrough Army Hospital at Fort Meade, Maryland, have told him
that his injury was new and separate from his prior existing back
problem and should not be considered pre-existing.

EVIDENCE OF RECORD: The applicant's military records are
unavailable. Information contained herein was obtained from
alternate sources.

The applicant was a member of the Pennsylvania Army National Guard,
who injured his back on 17 July 1993 while at annual training at
Fort Pickett, Virginia. The line of duty (LOD) determination was,
“Approved: In Line of Duty for Bruised Right Knee; In Line of Duty
- Existed Prior to Service (EPTS) - Aggravation for Lower Back
Sprain”.

On 6 April 1994 the applicant requested through his chain of command
that the line of duty determination be changed to show, in effect,
that the injury to his back was a new and separate injury. He stated
that after treatment at Kimbrough Army Hospital, it became apparent
to him that his military career might be in jeopardy, which would
also affect his full time employment as a service support specialist.
 He stated that he had been treated by his private physician, who
informed him that his injury was and is a new injury of an additional
problem of acute lumbar strain, along with recurrent disc herniation.
 The applicant stated that the injury to his back was new, did not
exist prior to service, and was not an aggravation for lower back
sprain of a pre-existing injury.

The applicant’s private physician stated that the applicant had a
diagnosis of acute and chronic lumbar strain, L-5,S-1 degenerative
disc disease and L4-5, S-1 spinal stenosis. That doctor stated that
the applicant’s acute lumbar strain was due to the accident that


                                 2
ABCMR Memorandum of                           AC95-10160
Consideration (cont)

occurred on 17 July 1993, when he fell off the steps of a truck,
twisted and landed on his canteen on his left lower back. The doctor
stated that the applicant did suffer from chronic lumbar strain,
however, he further injured his back when he fell, and now he
additionally suffered from acute lumbar strain.

On 2 November 1994 an official in the office of The Surgeon General
opined (COPY ATTACHED) that there was no evidence to support the
contention that the applicant sustained a separate, new injury; and
that based on reasonable probability, and the natural history of
lumbar disc disease (pre and post operative), it could be proposed
that the injury sustained on 17 July 1993 was an aggravation of
pre-existent problems. This was supported from the analysis of the
CT noted at the L5-S1 level. There was no evidence of a new, separate,
or distinct process.

On 18 November 1994 the Total Army Personnel Command (PERSCOM)
notified the Chief, Army National Guard Bureau, that administrative
and legal reviews, and a medical opinion from The Surgeon General,
concerning the applicant’s LOD and his appeal thereto, determined
that the proper findings remained in line of duty for his bruised
right knee, and in line of duty (existed prior to service, service
aggravation) for his lower back strain (COPY ATTACHED).

On 23 March 1995 the applicant requested, in a letter to his commanding
officer to be forwarded to this Board, that the denial of his appeal
be further reviewed. The applicant stated that he had a right L5-S1
hemilaminectomy and microdiscectomy performed on 9 June 1987 and
had been




                                  3
ABCMR Memorandum of                           AC95-10160
Consideration (cont)

treated since that time by his physician for chronic lumbar disc
disease. Since his accident at Fort Pickett he had experienced back
pain on his left side. A CT scan of
23 August 1993 showed recurrent disc herniation. Although he did
have an existing back condition on his right side, his back injury
to his left side was a new injury. The applicant stated that a doctor
at Kimbrough verbally affirmed that his injury was a new injury.

The applicant’s private physician stated that the CT scan of the
applicant’s spine on 23 August 1993 showed recurrent disc herniation
which was not previously present, that the applicant had exacerbation
of his chronic lumbar disease due to his accident, that the accident
resulted in an exacerbation to his prior back condition. The doctor
stated that the applicant has persistent pain over and above his
pre-existing discomfort that he had experienced in the past.
On 27 July 1995 the applicant requested that a member of congress
(MC) assist in asking this Board to expedite his request, because
the Board’s decision would determine how and the way in which his
pending separation and retirement would be based. He stated that
he had recently received a retention physical and was issued a
temporary profile, and was advised that he would be recommended for
separation. He stated that on 5 July he received notice that he
did not meet the medical standards for retention and that the National
Guard was taking action to separate him.

The applicant has since requested consideration for the temporary
early reserve retirement eligibility for disabled members of the
Army National Guard, under the national Defense Authorization Act
for FY 1995, Public Law 103-337, Section 517, which established
benefits for soldiers involuntarily separated from the Army National
Guard due to physical disability. He requested transfer to the
retired reserve.




                                  4
ABCMR Memorandum of                           AC95-10160
Consideration (cont)

Army Regulation 600-8-1 prescribes the policies and procedures
concerning line of duty determinations. Paragraph 41-8 of that
regulation, in pertinent part, states that the term “EPTS” added
to a medical diagnosis shows that there is substantial evidence that
the disease or injury, or underlying condition, existed before
military service or it happened between periods of active service.
 The doctor, during examination and treatment of the member, usually
determines an EPTS condition. He annotates the medical records as
to whether the condition existed prior to service. If an line of
duty finding is required, information from the medical records will
be used to support a finding that an EPTS condition was or was not
aggravated by military service. If an EPTS condition was aggravated
by military service, the finding will be “in line of duty”.

DISCUSSION: Considering all the evidence, allegations, and
information presented by the applicant, together with the evidence
of record, applicable law and regulations, and advisory opinion(s),
it is concluded:

1. The applicant’s injury that he sustained on 17 July 1993 was
an aggravation of his previous back condition. The line of duty
determination, in line of duty (existed prior to service, service
aggravation) for the lower back strain, is correct. The applicant
has submitted no probative medical evidence to the contrary.

2. The Board recognizes that at times there will be an honest
difference of opinion among physicians as to a diagnosis. However,
the Office of the Surgeon General has opined that there was no evidence
that the applicant sustained a separate, new injury. The applicant’s
private physician stated, in fact, that the applicant’s condition
was diagnosed as chronic lumbar disc disease exacerbated by the injury
that occurred on 17 July.

3. In order to justify correction of a military record the applicant
must show to the satisfaction of the Board, or it must otherwise
satisfactorily appear, that the record is in error or unjust. The
applicant has failed to submit evidence that would satisfy the
aforementioned requirement.

4. In view of the foregoing, there is no basis for granting the
applicant’s request.




                                  5
ABCMR Memorandum of                        AC95-10160
Consideration (cont)

DETERMINATION: The applicant has failed to submit sufficient
relevant evidence to demonstrate the existence of probable error
or injustice.

BOARD VOTE:

                       GRANT

                       GRANT FORMAL HEARING

                       DENY APPLICATION




                               Karl F. Schneider
                               Acting Director




                                 6

								
To top