RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02060
		INDEX CODE:  108.07
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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MANDATORY CASE COMPLETION DATE:  3 Jan 06

APPLICANT REQUESTS THAT:

His service-connected medical conditions, degenerative arthritis and limited motion of arm 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:

His injuries were incurred when he fell off a ladder entering a B-29 aircraft.  On a cool, dark, rainy morning he was entering the cockpit by way of the outside ladder.  At the top rung, 17 feet from the tarmac, he lost his hold of the ladder and fell to the tarmac.  He landed flat on his back.  Actual damage to his back was damage to two spinal discs, L-5/S-1.  His related arthritic condition has continued to this day and worsened to an assignment of 100% disability.  Applicant believes there is no difference between falling upon entry into the aircraft and ejecting from an F-16.  From the time of pre-flights until exiting upon mission completion, the period is performed under operational conditions.  

In support of his request, applicant provided several personal statements, and documents associated with his CRSC application.  His complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Applicant entered active duty on 27 Mar 43 and was commissioned on 23 Oct 43.  He was progressively promoted to the grade of colonel.  He served as a pilot aboard a variety of aircraft including the B-29, F-80 and T-33, and in a variety of command and staff positions.  He voluntarily retired from the Air Force on 30 Jun 72, having served 29 years, 3 months, and 4 days on active duty.

Available Department of Veterans Affairs (DVA) records reflect a combined compensable rating of 90% for his unfitting conditions.  

His CRSC application was disapproved on 23 Apr 04 based upon the fact that his service-connected medical condition was determined not to be combat-related.  Upon reevaluation of his CRSC application his impaired hearing and tinnitus were approved, rated at 10% each.  

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states a review of his service and DVA medical records show his degenerative arthritis and limited motion of arm are not combat related.  Injuries sustained by falling off a ladder from a B-29 are not considered to be eligible for CRSC.  

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 6 Aug 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:

AFPC/DPPD provided an additional advisory recommending denial.  DPPD states to award compensation, the fall itself must have been the direct result of some unique combat related factor, rather than routine causes or human error on part of the applicant.  The provisions of armed conflict do not apply in this case because he was not involved in a war or any type of conflict at the time and no combat related event (such as concussion of a bomb blast) caused the fall.  Injuries related to hazardous service are considered to occur between take-off and landing the aircraft.  Injuries occurring while performing duties or training activities which mirror those performed during actual combat would warrant compensation if there was a direct causal relationship between the training and the injury itself.  Merely sustaining an injury during military training without participation in combat simulation activity is not considered combat related.  Instrumentality of war involves injuries that are the direct result of a military weapon, accidents involving a military combat vehicle, fumes, gases, or explosion of military ordinance, vehicles, or materials.  To make the determination that an injury resulted from an instrumentality of war, there must have been a malfunction in the aircraft itself that caused the injury or that he was struck by the aircraft.  By his own statement, he fell from a ladder.  Since the aircraft did not malfunction and he was not struck by the aircraft, his injury cannot be classified under instrumentality of war.  The DPPD evaluation is at Exhibit E.

The BCMR Medical Consultant recommends denial.  The Medical Consultant states his service medical records document a fall off a B-24 aircraft in November 1944 resulting in a bruise of the left shoulder blade.  One year later his records document a complaint of low back pain since that fall.  That incident is not sufficient to explain his subsequent development of his service connected conditions.  There is no primary documentation of the incident in which he claims he fell off a B-29, 17 feet to the tarmac.  A subsequent 17 Apr 51 medical appointment refers to a wrist injury incurred in a fall off a B-29 in April 1949 onto outstretched hands.  At the time of his retirement physical examination in February 1972, complaints of shoulder, elbow and back pain are attributed to the 1949 fall reported by the applicant.  The appearance of his degenerative disc disease at L5-S1 reported in 1972 is consistent with that seen in non-traumatic degenerative disc disease commonly seen in men at that age (47).  X-rays taken 23 years after the reported fall did not show radiographic evidence of a traumatic injury.  X-rays of the left shoulder and wrist likewise were without evidence of sequela of a traumatic injury.  The pattern of arthritis documented in the records is consistent with types, which develop commonly in a large number of individuals in the absence of trauma.

The Medical Consultant 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 Apr 05 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.

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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-2004-02060 in Executive Session on 26 Jul 05, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 30 Jul 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Aug 04.
    Exhibit E.  Letter, AFPC/DPPD, dated 27 Apr 05.
    Exhibit F.  Letter, BCMR Medical Consultant, dated 28 Apr 05.
    Exhibit G.  Letter, SAF/MRBC, dated 29 Apr 05.
    Exhibit H.  Congressional Inquiry, dated 8 Dec 04, w/atchs.