Allison R. Weber, Esq., for Tully Rinckey, PLLC
Getting injured in the military is a normal and accepted consequence of choosing to serve. In fact, finding a veteran who did not suffer any injuries during his or her service is next to impossible. The question, however, is how do you ensure that you are covered for future treatment for these injuries and disability compensation, where appropriate, when you are done serving? The answer: a line of duty (LOD) determination.
Asking for an LOD determination does not mean that you think you are medically unqualified to keep serving or that you are requesting modified duties, it is just to document for you and the military that this condition will be covered for treatment and compensation (if appropriate) at present and in the future. You are also not “blaming” your unit or the military.
Blame has no bearing on an LOD unless you cause your own injury as a result of engaging in misconduct. Aside from that instance, the LOD determination is solely about your military status at the time of the injury. For instance, if you get into a car accident on your way to drill, you can be found in the line of duty (ILOD) because getting to drill is a requirement of your service.
Active Duty Personnel are not required to obtain LOD determinations unless there is a question as to whether the injury was caused by misconduct, the service member was AWOL at the time, or the injury/illness is suspected as existing prior to their military service. The first two disqualifiers are pretty straightforward, but pre-existing conditions can be found to have been aggravated by military service, which is where an individual may need assistance to prove their case. For personnel with eight (8) years of service, 10 U.S.C. §1207(a) indicates that the pre-existing condition will be declared in the line of duty. This is commonly referred to as the 8-year rule for presumption of aggravation. For personnel with less than 8 years of active service, to obtain an ILOD finding, one must show that the injury or illness worsened during service beyond the normal progression of the condition. This may require expert medical opinions.
Reserve Personnel and National Guardsmen
LOD investigations are essential for Reservists and Guardsmen who are injured while serving in a qualified duty status, as this is the way for them to obtain treatment and/or compensation for treatment for the immediate and any continuing issues related to the injury. The problem for many Reservists is the inability to seek medical treatment while at drill or annual training, thereby eliminating any documentation in support of the cause of their injury. Given the frequency of injuries occurring within these units, one might think they are well versed in processing LOD investigations. Unfortunately, the opposite is often true.
Service members don’t enter the military knowing what they need to document, how they need to do it, and so forth. In fact, most young soldiers believe that seeking medical care makes them look weak and asking for a line of duty will get them in trouble. This is a relatively common misconception based upon drill sergeants and other leaders mocking those reporting to sick call, and briefing personnel that having an injury will cause them to be “recycled”, thus extending the duration of their training. As a result, the trainee hides their injury and tries to ride it out until they return home.
What do you do?
First, when you get injured or begin experiencing symptoms of a chronic condition, tell someone—whether it’s your buddy, your first-line leader, or the Commander. Next, if you can get to medical at drill or during training, go. Get the injury/symptoms documented. If you’re downrange, see if the doctor will provide you with a memo before you leave theater. Often times, aid stations don’t keep detailed records and they don’t make it into the individual’s military medical file. You don’t want to be in a position where you’re trying to track down the doctor to see if he remembers you when you’re 1 of 10,000 patients he’s seen. If you’re still on active duty (orders greater than 30 days) and you believe that your injury or illness has not resolved enough to allow you to fully perform your duties, meet with medical and discuss options for retaining you on active duty for treatment (MEDCON order), agree to be released with a request for incapacitation pay (INCAP), etc.
Most importantly, reach out to your leadership and request an LOD investigation. You want to ask for this as soon as possible from the injury/illness. Asking for this while still on orders is preferred, but if you miss this opportunity, ask them as soon thereafter as you can. Also, if you have been released from active duty, don’t wait six months to follow-up with a provider. Reach out to the VA or your civilian provider immediately so that they can ensure you receive a proper diagnosis, treatment, and a prognosis on the likelihood you can return to duty. DoDI 1241.01 states that absent exceptional circumstances, this must be requested within 180-days of your release from the qualified duty status.
Keep pestering your unit about getting an LOD investigation as well because getting service connection from the VA is not a substitute for an ILOD determination. You don’t want your LOD investigation to fall through the cracks, and documenting your efforts to obtain the LOD may help you in the event that you miss the required time period and you need to get an exception to policy as a result. This is one time where no news is NOT good news. You need to have that form completed to ensure that you are protected in the event that your injury/condition worsens to the point of being unfit for service.
If you don’t realize you have a problem until more than 180-days after your release, don’t give up hope just yet. For chronic conditions or those with latent-onset symptoms (i.e. PTSD, Multiple Sclerosis (MS), cancer, etc.), you may be able to request an LOD investigation well after your release, but you will have to do so by requesting that it be investigated pursuant to an exception to policy. This is an intricate process, but if you have one of these conditions, it is worth pursuing.
Having that piece of paper will change your separation from the military to either a medical disability retirement or a medical discharge with severance, as opposed to an administrative discharge as the result of a non-duty-related medical condition. If you’re separated with the latter and you had yet to file your claim for VA benefits, this may also cause you headaches with getting the service connection since your record now shows that your condition was NILOD. Now, you’re not just losing out on the potential retirement, but you’re also losing disability compensation for your condition, all because you didn’t get a piece of paper. Don’t let this happen to you.
If you end up in one of the situations described above, seek help to appeal the findings (NILOD by military and/or not service connected by VA). If that doesn’t work, you’ll want to consider applying for a correction to your records. These processes are neither easy or expedient, which is why you want to get your records right the first time, but just know that if you have the fight in you, you can continue to assert your right to request the outcome that should have happened in the first place. Don’t give up!
Allison R. Weber is a Senior Associate at Tully Rinckey PLLC’s Buffalo, NY office. Weber is an experienced military law attorney, having spent seven years in the United States Army Judge Advocate General’s (JAG) Corps. She focuses her practice primarily on military law and represents clients at all levels of military criminal law from investigations to court appearances. She can be reached at (716)439-4700 or firstname.lastname@example.org.