RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03642
		INDEX CODE:  108.07
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His service-connected medical conditions, degenerative arthritis of the right knee, left knee, right hand, left hand, right ankle, lumbar spine and thoracic spine, 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 was in one battle in Northern France during World War II, which was the origin of his problems.  

In support of his request, applicant provided a personal statement and documentation associated with denial of his request for CRSC benefits.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 11 Feb 43.  He was progressively promoted to the grade of chief master sergeant, having assumed that grade effective and with a date of rank of 1 Apr 65.  He served in Europe from 27 Jul 41 through 22 Jul 45 with a tour in Northern France from July 1944 through September 1944.  He voluntarily retired from the Air Force on 1 Jul 73, having served 30 years, 4 months, and 20 days on active duty.

The 27 Feb 02, Department of Veterans Affairs (DVA) ratings decision reflects a compensable disability rating of 60% for arthritis, right knee, post total knee arthroplasty.

His CRSC application was disapproved on 8 Sep 03 based upon the fact that although his DVA service-connected medical condition met the mandatory 60% rating, his condition was determined to be non-combat related.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states the applicant's records do not reflect he was treated for the listed disabilities although his disabilities are determined to be non-combat related.  His arthritic conditions were not the result of combat related acts, instrumentality of war, or due to hazardous service.  According to his medical records, he claimed that on 26 Dec 66, he slipped on ice, falling back against a weapons carrier truck, but sought no medical attention until three or four weeks later.  Injuries sustained by either falling, slipping off or working on a military device where the injury was not caused by the device itself, but instead, error/misjudgment are not considered to be eligible for CRSC.  His retirement physical does not list his degenerative joint disease or arthritis.  He was considered to be qualified for worldwide duty.   The fact a member may have incurred a medical condition during a period of war, or while participating in combat operation/training exercises is not sufficient to support a combat-related determination.  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 30 Jan 04 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 recommends denial.  The Medical Consultant states there is no evidence of an injury or condition that is a direct result of combat, of injury incurred a result of conditions simulating war, and he was not engaged in hazardous service.  He injured his knee in 1961 when a gasoline drum fell.  This is not an instrumentality of war.  He reported neck pain three to four weeks following an incident when he slipped on ice and fell against a weapons carrier truck.  This does not qualify as an injury as a direct result from an instrumentality of war.  The applicant struck the vehicle, the vehicle did not strike the applicant.  The delayed onset of symptoms does not indicate a trauma of enough force to cause his cervical spondylosis, rather it more likely aggravated his preexisting condition.  Evidence of the record documents the development of generalized degenerative arthritis of multiple joints and the spine, a common condition that occurs in the absence of trauma.  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 28 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.  After a thorough review of the available evidence of record, it is our opinion that the service-connected medical conditions the applicant believes are combat-related 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.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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-2003-03642 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 29 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 15 Jan 04.
    Exhibit D.  Letter, SAF/MRBR, dated 30 Jan 04.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 17 Feb 04.
    Exhibit F.  Letter, ODUSD(MPP)/Comp, dated 21 Jul 04.
    Exhibit G.  Letter, SAF/MRBC, dated 28 Jul 04.