RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02870
		INDEX CODE:  108.07
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His service-connected medical conditions, adult onset diabetes, degenerative lumbar spine disease, and right knee, be assessed as combat related in order to qualify for compensation under the Combat Related Special Compensation (CRSC) Act.

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APPLICANT CONTENDS THAT:

He has the required 60% combined disability rating to qualify for monetary benefits authorized under the CRSC program.  

In support of his request, applicant provided documentation associated with his denial of request for CRSC benefits.  His complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 13 Feb 57.  He was progressively promoted to the grade of technical sergeant, having assumed that grade effective and with a date of rank of 1 Sep 73.  He served in Vietnam between December 1969 and December 1970.  He voluntary retired from the Air Force on 1 Mar 77, having served 20 years and 18 days on active duty.

Current Department of Veterans Affairs (DVA) records reflect a compensable disability rating of 40% for post operative lumbar laminectomy with degenerative changes, 10% for right knee degenerative changes, and 10% for diabetes mellitus for a combined compensable rating of 50% for his unfitting conditions.  

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states none of his conditions are considered combat-related with the exception of his diabetes due to exposure of Agent Orange.  Percentages are not added to determine an overall rating.  A combined rating table is used.  The fact that a member may incur a medical condition during a period of war or while performing combat operations is not sufficient evidence to support a combat-related determination.  Military records must show a definite causal relationship between the armed conflict and the medical condition.  A review of the limited records made available failed to show a combat-related connection for two of his service-connected conditions.  The preponderance of evidence made available appears to show normal duties performed during the completion of his military responsibilities as a crewmember and does not show a direct correlation to combat participation.  The DPPD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 19 Dec 03 for review and comment within 30 days.  As of this date, this office has received no response.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant states the applicant's back and knee problems do not qualify for the CRSC program; however, his diabetes, presumed under Title 38 to be service-connected due to Agent Orange, does qualify him for CRSC.  There is no evidence the applicant incurred his knee and back conditions as a direct result of combat, hazardous service, or as the direct result of performance of duties under conditions simulating war.  Title 38, Section 1116, provides for the DVA to grant service connected disability benefits for certain diseases that develop after service that may have been the result of exposure to herbicides (Agent Orange) during service in Vietnam.  Veterans do not have to prove that Agent Orange caused their medical problems to be eligible for compensation under this law and the VA makes the presumption of exposure to Agent Orange for all Vietnam veterans.  Provisions of Title 38 that presume service connection for certain diseases developing in Vietnam veterans apply to CRSC unless there is evidence to refute the presumption. According to the March 22, 2002, DVA rating decision, he has been diagnosed with adult onset diabetes and has been granted presumptive service-connection based on his service in Vietnam under the provisions of Title 38 and rated at 10 percent.  This diagnosis in turn presumptively qualifies as a condition incurred due to an instrumentality of war under the CRSC program.  Under the provisions of the NDAA 2004 the applicant would likely be granted payments under CRSC for his service-connected diabetes presumed to be due to the instrumentality of war, Agent Orange.

The Medical Consultant Evaluation is at Exhibit E.

ODUSD(MPP)/Comp reviewed the applicant's request and concurs with the findings and recommendation of the BCMR Medical Consultant.  The ODUSD evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Copies of the additional Air Force evaluations were forwarded to the applicant on 29 Jul 04 for review and comment within 30 days.  As of this date, this office has received no response.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We have been made aware that the portion of his request regarding his diabetes mellitus, Vietnam era (Agent Orange) presumptive has been granted by the CRSC board and will be administratively corrected.  Therefore, the only issue to be decided is whether or not his post-operative lumbar laminectomy with degenerative changes and degenerative changes, right knee, qualifies for compensation.  After a thorough review of the available evidence of record, it is our opinion that the post operative lumbar laminectomy with degenerative changes and degenerative changes, right knee were not incurred as the direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war, and therefore, do not qualify for compensation under the CRSC Act.  We agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice with respect to these conditions.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting that portion of the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2003-02870 in Executive Session on 6 Oct 04, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Aug 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 1 Dec 03.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Dec 03.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 20 Feb 04.
    Exhibit F.  Letter, ODUSD(MPP)/Comp, dated 21 Jul 04.
    Exhibit G.  Letter, SAF/MRBC, dated 29 Jul 04.