RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01998

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His application for Combat-Related Special Compensation (CRSC) for the injury to his right hand be approved.

APPLICANT CONTENDS THAT:

He suffered an injury to his right hand on 30 January 2004 while completing the pre-deployment course, Close Quarters Combat (CQB)/Advanced Urban Warfare and Unassisted Asset Recovery, at Little Rock AFB, AR.  The training was conducted in full combat gear and during live-fire operations.  He deployed to Afghanistan shortly after completing this course and was awarded the Bronze Star Medal with Valor (BSM w/V).  

The CRSC board denied his claim stating his injury was caused by slipping and falling on ice and was not considered a training occurrence.  The fall happened during a training event in which he was making entry into a “shoot house.”  He was the first person through the door and stepped on ice and fell.  He fell backwards, placing his hand out to break the fall.  He immediately heard a crunching sound and felt pain.  His hand started to swell to the point he could not close his hand.  He went to the emergency room and his hand was X-rayed and placed in a splint.  He was instructed to follow-up with his doctor upon return to Hurlburt Field, FL.  

The pain and weakness in his hand increased during deployment and upon his return home.  It affected his ability to manipulate his rifle and pistol.  He was forced to undergo seven surgeries to correct the injury.  These procedures included a bone graft, screws, plates and K-wires.  None of the surgeries were successful and it made him unable to deploy and forced him to be medically retired.  He is in constant pain and his hand looks mangled.  It is seriously scarred at the incision sites and is a half glove size bigger than his left hand.  

In his first CRSC application, he claimed his injury was incurred during combat diver training.  He assumed naively that his seven surgeries would be proof enough that his injury was combat-related.  He was not informed of the CRSC process prior to his forced retirement.  He has made multiple requests to the CRSC board.  

In support of his request, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; training certificate, memorandum to the USAF Disability Division (CRSC) dated 31 March 2014, memorandums from AFPC/DPFD dated 27 May 2014 and 28 May 2013, medical documentation and other various documents associated with his request.  

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

STATEMENT OF FACTS:

On 28 August 2007, the applicant was retired in the grade of Technical Sergeant (TSgt, E-6), with a narrative reason for separation of “Disability, Permanent.”  He was credited with 8 years, 5 months and 13 days of active duty service this period.  He was also credited with 7 years, 9 months and 19 days of prior active duty service.  

AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 7 June 2007, reflects the Informal Physical Evaluation Board (IPEB) recommended the applicant be retired with compensable percentage of 40 percent for unfitting conditions of arthrodesis of index and middle carpal-metacarpal joints, right wrist instability, status-post fracture and repair, with limited dorsiflexion and chronic low back pain, status-post bilateral radiofrequency lumbar facet neurotomy for L2 level to sacrum.  

In a letter dated 10 July 2007, the applicant requested he be permitted to waive his earlier election to demand a formal hearing and concurred with the findings of the IPEB.   

Per Special Order ACD-01498 dated 18 July 2007, the applicant was retired effective 28 August 2007 with compensable percentage for physical disability of 40 percent.

According to a memorandum dated 21 August 2015, AFPC/DPFDC denied the applicant’s CRSC appeal for his condition of limited motion of wrist (right hand/right wrist injury/fracture with sensory neuropathy of the right radial finger) rated at 10 percent for service connected disability compensation.  The applicant’s request for CRSC for his condition of Post-Traumatic Stress Disorder (PTSD) was approved effective 1 June 2015.  His conditions of degenerative arthritis of the spine (lumbar) and tinnitus were determined combat-related effective 1 January 2008.  The applicant was assigned a combined combat-related disability rating of 50 percent.  

Public Law 107-314 established the CRSC program which provides compensation to certain retirees with combat-related disabilities that qualify under established criteria.

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and E.      

AIR FORCE EVALUATION:

AFPC/DPFDC recommends denial.  This condition does not meet the mandatory criteria for compensation under the CRSC program as outlined under the provisions of 10 U.S.C. § 1413a and the Office of the Under Secretary of Defense (OUSD) Guidance.  

The applicant submitted an initial claim for CRSC for degenerative arthritis of the spine (lumbar), tinnitus and limited motion of wrist (right) in March 2011.  The applicant’s request was partially approved on 1 April 2011.  He submitted subsequent requests for his limited motion of wrist in May 2013 and April 2014 which were denied on 28 May 2013 and 27 May 2014, respectively.  The applicant provided no evidence to confirm the disability was the direct result of armed conflict, hazardous service, instrumentality of war, or simulating war.  The applicant submitted an additional claim in August 2015 for PTSD disability which was awarded by the Department of Veterans Affairs (DVA) effective 20 May 2015.  The CRSC board approved this claim on 21 August 2015. 

AFPC/DPFDC agrees the applicant was in training at the time of the incident and an emergency room document shows he was present for a right wrist injury.  However, there is no evidence the injury occurred during training as there is no Line of Duty (LOD) determination at the time of the injury.  The applicant has only indicated “under combat conditions.”  Per the OUSD Guidance, determinations of whether a disability is combat-related will be based on the preponderance of the available documentary information.  All relevant documentary information is to be weighed in relation to known facts and circumstances and determinations will be made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation or conjecture.  Additionally, in accordance with DD Form 2860, Claim for Combat-Related Special Compensation (CRSC), the fact that a member incurred a disability simulating war is not sufficient by itself to support a combat-related determination.  There must be a definite, documented, causal relationship between the simulation and the resulting disability.   Medical documentation dated 9 October 2006 reflects the applicant injured his right hand while boxing.  There is also a LOD dated 26 April 2007 which states the applicant fell at home and landed on his right hand.  When making combat-related determinations for injuries, the board looks for in-service documents from the time of the injury, confirming medical treatment was sought at the time of the injury, and confirming the injury scenario (such as a medical record from the time of the event stating “member complains of right hand pain when falling on ice during training.”  Documentation reviewed does not confirm any confirmation of the wrist/hand injury.    

The DVA awards service-connected disabilities based on their standards.  They resolve doubt in the interest of the veteran and grant service connection for injuries or diseases incurred while in service.  While service connection for disabilities is required for initial eligibility for CRSC consideration, CRSC criteria is more stringent.  CRSC guidance requires objective documentary evidence in order to support a combat-related determination. Military Departments will determine whether a disability is combat-related using the definitions and criteria set forth in DD Form 2860.  

A complete copy of the AFPC/DPFDC evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 12 November 2015 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

ADDITIONAL BCMR MEDICAL CONSULTANT’S EVALUATION:

The BCMR Medical Consultant recommends consideration of granting the applicant relief noting the distinct possibility that the origin of the applicant’s hand/wrist impairment, at least as likely as not, originated in January 2004 while embarking upon combat-related training; and was further aggravated by the failed attempts at surgical relief.  

An emergency nurse’s triage record dated 30 January 2004 shows the applicant was evaluated with a chief complaint of right hand injury.  Onset 29 January 2004.  The evaluating triage nurse documented swelling to posterior side of right hand and that the patient reported he had fallen.  Under past medical history, the provider noted a history of previous fracture of the right hand.  On examination, it was noted a zone of swelling and tenderness over the dorsum of the hand.  The diagnostic clinical impression was “contusion, right hand.”  The applicant’s hand was placed in an ace wrap and he was prescribed an anti-inflammatory for pain relief and a narcotic analgesic for more severe pain, with instructions to apply ice and elevate extremity and to follow-up with a physician in one week or return to the emergency room for worsening symptoms or concerns.  

The applicant presents a scenario of immediate proximity to and imminent participation in active training, but not for falling on ice.  The documentation does confirm that an injury occurred on or about 29 January 2004.  Thus, the BCMR Medical Consultant opines if it is determined the applicant slipped on ice and sustained a permanent injury while entering into a “shoot house” for the purpose of engaging in combat training with full battle gear in tow, then the BCMR Medical Consultant has difficulty denying the applicant’s petition. However, the evidence shows the applicant’s pain and reason for pain varied throughout the supplied treatment records.  Moreover, a permanent injury was not suspected by the evaluating provider who first evaluated the applicant on 30 January 2004, the day following the reported acute injury, as there was no evidence of a fracture on X-ray and he was discharged with a diagnosis of a contusion.  

Addressing the opinion by AFPC/DPFDC that there was no LOD initiated in January 2004.  If it can be determined that the applicant was in fact in a military duty status, that he was not absent from duty without authority and was not injured as a result of misconduct, the evidence of injury, as alleged by the applicant and confirmed by supplied medical documents supports a finding of in the LOD.  The remaining dilemma is whether the applicant sustained a CRSC qualifying injury or whether his chronic recurring wrist/hand pain thereafter was due to other injuries that had nothing do with combat, a fall at home and an injury reported occurring during boxing.  What is certain is the evidence the applicant did sustain a documented injury to his right hand in January 2004.  Additionally, one must determine whether or not the multiple surgical procedures endured by the applicant were reflective of the nature of his injury sustained in January 2004; noting varied reasons for the surgical intervention thereafter was aimed at correction or removal of misaligned or offending hardware, a suspected fracture and osteophytes or performing an arthrodesis to correct a ligamentous deficiency and removal of a bone structure.  In any case, the age of any possible fracture (albeit with characteristic osteophyte formation) was found to be indeterminate, to mean there was no radiographic way to determine when the fracture actually occurred.  The Medical Consultant also notes the vast differences between the applicant’s clinical assessment of 19 July 2005 and 5 July 2006, the former indicating pain and swelling had markedly improved after carpometacarpal boss and osteophyte removal, and the latter when there was unstable rubbery motion of middle fingers leading to a recommendation for arthrodesis on 5 July 2006 during which a 15 year history of multiple injuries to his right hand was also documented.  

In considering a recommendation to grant relief, the Medical Consultant found it troubling that the applicant submitted a claim for CRSC in 2011 and thereafter for hand/wrist pain, which may have been exacerbated by or made worse by an injury sustained while boxing and after experiencing a fall at home; as disclosed in the recommendation to deny by AFPC/DPFDC.  Thus, the fact that the DVA has elected to grant the applicant service connection for his hand/wrist ailment is not automatically a determinate that it is the predominant or the primary cause at the time of the DVA examination was found to be the result of his combat-related experiences.  However, the disclosure of AFPC/DPFDC indicating the applicant also sustained injury to the wrist while boxing and after experiencing a fall in a non-military environment raises concern for the aggravation of the applicant’s symptoms which resulted in the MEB was due to incidents that were not combat-related.  

A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit E.  

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant on 16 February 2016 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice.  While we note the Air Force OPR recommends relief should be denied stating the applicant’s service connected disability condition for the injury to his right hand/wrist does not meet the mandatory criteria for compensation under CRSC, we believe the evidence substantiates that corrective action is warranted.  In this respect, we agree with the BCMR Medical Consultant that it is at least as likely as not that the applicant’s right wrist injury originated in January 2004 while he was participating in a combat-related training course simulating war and his injury was further aggravated by the failed attempts at surgical relief.  Moreover, the evidence provided by the applicant substantiates he was treated in the emergency room on 30 January 2004 as a result of an injury sustained to his right hand/wrist while participating in the Advanced Urban Warfare course, a pre-deployment course simulating war in preparation for his deployment to Afghanistan as a combat controller.  In our judgment, the evidence supports the causal relationship between the training simulating war and the resultant disability.  Therefore, it is our opinion the applicant’s right hand/wrist injury was the direct result of duty under conditions simulating war and qualifies for compensation under the CRSC Act. Accordingly, we recommend the applicant’s records be corrected as indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that his condition of limited motion of wrist (right hand/right wrist injury/fracture with sensory neuropathy of the radial finger, Veterans Administration Schedule for Rating Disabilities code 5215, with disability compensation rating of 10 percent was found combat-related effective 1 January 2008.  

The following members of the Board considered AFBCMR Docket Number BC-2015-01998 in Executive Session on 5 April 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 8 May 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDC, dated 16 October 2015, 
		       w/atchs. 
	Exhibit D.  Letter, AFBCMR, dated 12 November 2015.
	Exhibit E.  Memorandum, BCMR Medical Consultant, 1 February 
			  2016.