RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-04103
		INDEX CODE:  108.07
		COUNSEL:  NONE
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  His service-connected medical condition, back strain, be assessed as combat-related in order to qualify for compensation under the Combat Related Special Compensation (CRSC) Act. 

2.  His records be corrected to show his prostate cancer was due to Agent Orange exposure.

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APPLICANT CONTENDS THAT:

His back condition was incurred while under attack in Vietnam.

In support of his request, the applicant provided a personal statement and documentation associated with his CRSC application.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

After serving 20 years and 29 days on active duty, the applicant retired from the Air Force on 1 October 1974 in the grade of lieutenant colonel, having assumed that grade effective and with a date of rank of 16 November 1971.  He served as an Air Operations Officer, Transport/Airlift.

Available Department of Veterans Affairs (DVA) records reflect a combined compensable rating of 40% for his unfitting conditions.

His CRSC application was partially approved for impaired hearing on 14 February 2005.  He appealed the disapproved portion (back condition) and on 16 April 2007 his request was disapproved based upon the fact that his service-connected medical condition was determined not to be combat-related.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states the applicant contends his back injury incurred while pushing pallets loaded with ammunition out of an aircraft while under enemy mortar attacks.  While his service medical records note pain to his back, the cause of the pain is noted to be secondary to deer hunting, pulling some objects, off loading heavy pallets and while unloading a cargo plane.  There is no evidence of an enemy attack occurring at the time of these events.  Injuries from loading/unloading are not unique to military service or combat situations; therefore, to qualify for CRSC, some combat-related event must have occurred during the act of loading/unloading that caused or aggravated the injury.  DPPD can find nothing in the available evidence that would support approval under current CRSC criteria.  Additionally, deer hunting is not considered a combat-related activity.  Further, the applicant stated in his appeal, “At that time, I did not go to the Flight Surgeon, as I knew I would be grounded.”  His decision at the time, not to report his back injury as related to the combat-related event he described, deprives DPPD of the documentation needed to support a CRSC claim.

Although aircrew duties can be strenuous, conditions developed through the performance of normal service are not usually considered combat-related.  When considering chronic conditions, such as back strain, under the CRSC guidelines, it may be difficult to determine that armed conflict, hazardous service, instrumentality of war, or simulating war was the definitive cause.  To be eligible for compensation, clear documentation must be provided to indicate an injury occurred and was caused by a combat-related factor (such as ejection from an aircraft) rather than from routine causes or the veteran’s particular physical make-up.  While the applicant meets the DVA requirements for service-connected compensation, the evidence does not support additional compensation under CRSC.

The applicant also requested that his records show his prostate cancer is directly related to exposure Agent Orange, herbicides.  The applicant had not previously requested that DPPD review this disability and his DVA records do not show his condition has been addressed by the DVA.  To be evaluated for additional disabilities, the applicant must request an evaluation by the DVA for his prostate cancer.  If the DVA awards service-connection for his condition, he should forward a copy of the DVA Rating Decision letter to AFPC/DPPD for further consideration.

The complete DPPD evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 May 2008, the evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit D).  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.  The available evidence of record does not support a finding that the service-connected medical condition the applicant believes is combat-related was 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, does not qualify for compensation under the CRSC Act.  We agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In regard to his request to show prostate cancer was due to Agent Orange exposure, his DVA records do not show his condition has been addressed by the DVA.  To be evaluated for additional disabilities he must request an evaluation by the DVA for his prostate cancer.  If he is awarded service connection for that condition, he should forward a copy of the DVA Rating Decision to AFPC/DPPD for further consideration.  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 an error or injustice; the application was denied without a personal appearance; and 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 this application in Executive Session on 19 August 2008, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-04103 was considered:

    Exhibit A.  DD Form 149, dated 10 December 2007, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 28 April 2008, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 9 May 2008.