ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04418 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased husband’s military records be corrected to show that he was entitled to Combat-Related Special Compensation (CRSC) at a rate of 100 percent, instead of 80 percent. ________________________________________________________________ RESUME OF CASE: On 3 Aug 11, the Board considered and denied applicant’s original request to increase her deceased husband’s CRSC rating from 80 percent to 100 percent. In the initial case, she contended the Air Force should have rated her deceased husband at 100 percent for his combat related disabilities and the failure to do so, combined with her deceased husband’s dementia induced confusion over the difference between CRSC and CRDP, resulted in a $595.00 reduction in his monthly retired pay. The Board determined the evidence presented was not sufficient to demonstrate the Air Force erred when denying the decedent’s CRSC appeal. For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit E. By virtue of a 31 Oct 11 letter with attachments and correspondence provided through her congressional representative on 14 Mar 12, the applicant requests reconsideration of her request, contending that her deceased husband’s hearing loss, chronic obstructive pulmonary disease (COPD), and cysts should have been determined to be combat-related and compensable under CRSC. Her husband fought long and hard for his 100 percent disability rating from the Department of Veterans Affairs (DVA), only for the Air Force to erroneously rate him at 80 percent, resulting in his retired pay being illegally decreased by $595.00 per month from Apr 09 until his death in Oct 10. In support of her request, the applicant provides a variety of expanded statements and copies of excerpts from her deceased husband’s military personnel and medical records, and correspondence related to his CRSC determination and appeal, as well as correspondence related to the DVA’s determinations in this case. The applicant’s complete submission, with attachments, is at Exhibit F. ________________________________________________________________ STATEMENT OF FACTS: On 31 Jul 71, the deceased former member was relieved from active duty and retired for length of service (non-disability), effective 1 Aug 71; he was credited with 24 years of total active service. According to documentation provided by the applicant, the DVA later determined the deceased former member was unemployable due to his service connected disabilities and determined he was therefore entitled to an individual unemployability (IU) determination, effective 18 Feb 05. Because of this IU determination, DVA paid the deceased former member as if he were 100 percent disabled even though his actual disability rating remained at 80 percent. Law requires that whenever an individual receives VA disability compensation there be a dollar for dollar reduction (offset) in any military retired pay. However, there are two programs that partially make up for this offset. The programs are the Concurrent Retirement and Disability Payment (CRDP) program and the Combat-Related Special Compensation (CRSC) program. The CRDP program provides a restoration of military retired pay that is offset by DVA compensation. Qualified individuals are those who are retired active or reserve members who are currently entitled to retired pay and who also have a combined VA disability rating of at least 50 percent. The CRSC program provides a special monthly payment equivalent to the portion of the offset to military retired pay of DVA disability compensation attributable to combat-related disabilities. Qualified individuals include any military retired members with an offset to retired pay due to VA compensation determined to be combat-related. CRSC is not a restoration of offset retired pay, but a form of additional special compensation. Military retirees cannot receive benefits under CRDP and CRSC simultaneously. On 19 Dec 08, the Defense Finance and Accounting Service (DFAS) notified the deceased former member of his rights under the CRSC/CRDP Annual Open Season Election, that he was entitled to benefits under either program in the amount of $2,238.00, and of his right to elect to participate in either program, noting that his failure to respond would constitute an election to continue to receive CRSC. On 4 Mar 09, the DVA notified the deceased former member of their decision to increase his combined compensable disability rating to 100 percent, effective 3 Nov 08, indicating that his DVA disability compensation would not change as he was already receiving compensation at the 100 percent rate due to their previous IU determination. As a result of the increase to the deceased former member’s DVA rating, the off-set to his retired pay increased, thereby reducing his overall compensation. On 30 Jul 09, AFPC/DPSDC notified the deceased former member of their decision to partially approve his request for an increase to his CRSC rating, resulting in an overall CRSC rating of 80 percent. On 6 October 2010, the late former member passed away. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSDC recommends denial of the applicant’s request for an increase in her deceased husband’s CRSC rating to 100 percent, indicating there is no evidence of an error or injustice. The CRSC program was established to provide compensation to certain retirees with combat-related disabilities that qualify under the criteria set forth in Title 10 USC, Section 1413a. While the DVA awards service connection based on their standards and can resolve doubt in the interest of the veteran, an affirmative CRSC determination requires documentation to support a qualifying combat-related event was the direct cause of the disability. The deceased former member’s COPD was rated as not service connected by the DVA; thus rendering him ineligible for CRSC for this condition. As for his impaired hearing diagnosis, the CRSC Board considers the veteran’s occupation and the continual or direct exposure to combat-related noise hazards he/she was subjected to during his/her career. Many specialties have occasional or indirect exposure to flight line noise due to the proximity of their duty sections to the flight line or requirements to periodically spend time on the flight line itself. Based on input from functional experts, the CRSC Board determined the deceased former member’s career fields (clerk typist, military training instructor, and first sergeant) have only occasional or indirect exposure to qualifying combat- related noise; therefore, to award CRSC, there must be clear documentation of an acoustic trauma occurring due to a combat- related event; however, no such documentation was provided as part of the deceased former member’s CRSC appeal. A complete copy of the AFPC/DPSDC evaluation is at Exhibit G. Defense Finance and Accounting Service (DFAS) indicates the deceased former member was entitled to both CRSC and CRDP prior to the matter under review. He was receiving IU from the DVA, meaning that he was rated at 80 percent by the DVA, but was paid at the 100 percent rate. He was also rated at 80 percent for the purposes of CRSC. As such, both his CRSC and CRDP entitlements were the same. As CRSC is tax-free, DFAS switched him to CRSC and he received his first payment in Nov 08. However, the DVA subsequently rated him at 100 percent [thereby increasing the offset to his military retired pay], resulting in a reduction to his overall compensation as of Apr 09 because his CRSC rating was only 80 percent. Each year, DFAS sends an open election form which allows members such as the deceased former member to keep their entitlement or switch to the other program for the upcoming calendar year if he/she so chooses. Since the deceased former member was receiving CRSC in 2008 and did not return the open season election form to DFAS, he was kept in the CRSC program for 2009 when the DVA subsequently increased his disability rating resulting in the decrease to his overall compensation. Once the cutoff date for the open season (31 Jan) passes, the member is locked into that program for the rest of the year until the following open season, regardless of any changes that are made to their pay. The deceased former member was sent another open season election form for 2010 showing CRSC at the lower amount; however, he never returned the form, so he remained in the CRSC program. The deceased former member passively elected to remain in CRSC for both 2009 and 2010, rather than elect CRDP when he had an opportunity to do so. A complete copy of the DFAS evaluation is at Exhibit H. ________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS: The applicant reiterates that her husband had dementia; he was a proud man and wanted to take care of his military business himself, but she doubts that he even understood the difference between CRSC and CRDP or that he even “passively elected” to neglect sending in the paperwork for 2009 and 2010. His Air Force Pension was $2238.00, but dropped to $1643.00 and she does not believe anyone had the right to reduce his hard earned Air Force pension by $595.00 under any circumstances, regardless of his CRSC or CRDP election. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request for an increase of her deceased husband’s combat-related special compensation (CRSC) rating to include his hearing loss, chronic obstructive pulmonary disease, and cysts. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the AFPC/DPSDC and adopt their rationale as the basis for our conclusion the deceased former member’s hearing loss and COPD should not have been rated under CRSC. As for her request related to his cysts, we also do not find the evidence she has presented sufficient to conclude that his CRSC rating should be increased based on this condition. In this respect, we note that a CRSC determination is predicated on a finding by the DVA that a particular condition is service related; however, the documentation provided by the applicant does not reflect such a finding by the DVA. Therefore, absent said finding, this condition is not eligible for CRSC consideration. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought related to CRSC. 2. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an injustice with respect to the dramatic reduction in the deceased former member’s retired pay during the last several months of his life. We note the comments of DFAS indicating that all appropriate procedures were followed in notifying the former member of his rights and obligations under the CRSC/CRDP annual open enrollment period; however, we are not persuaded the steps taken were sufficient to allow him to make a well-reasoned decision regarding the impact of the DVA’s decision to increase his disability rating on his overall compensation. In this respect, we do not believe it reasonable to assume the deceased former member would have knowingly elected to remain in CRSC had he been made aware that the DVA’s decision to increase his disability rating to 100 percent, thereby increasing the off-set to his retired pay, would have actually resulted in the noted reduction to his overall compensation. While there is some question regarding the Air Force’s role in this action, after considering the total circumstances of this case, we find the evidence sufficient to find it in the interest of justice to provide a measure of relief. Therefore, we recommend the deceased former member’s record be corrected to reflect that he elected to participate in CRDP, rather than CRSC, during the 2008 open enrollment period. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force related to the DECEASED FORMER MEMBER be corrected to show that on 20 December 2008, he elected Concurrent Retirement and Disability Pay (CRDP), in lieu of Combat Related Special Compensation (CRSC), during the CRDP/CRSC Annual Open Season Election. ________________________________________________________________ The following members of the Board considered the applicant’s request for reconsideration of AFBCMR Docket Number BC-2010-04418 in Executive Session on 26 Mar 13, under the provisions of AFI 36-2603: The following additional documentary evidence was considered: Exhibit E. Record of Proceedings, dated 25 Aug 11, w/atchs. Exhibit F. Letter, Applicant, dated 31 Oct 11, w/atchs. Exhibit G. Letter, AFPC/DPSDC, dated 17 Dec 12. Exhibit H. Letter, DFAS, dated 26 Dec 12, w/atch. Exhibit I. Letter, AFBCMR, dated 2 Jan 13. Exhibit J. Letter, Applicant, dated 25 Jan 13, w/atch.