RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2005 DOCKET NUMBER: AR20050001750 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. Edmund P. Mercanti Analyst The following members, a quorum, were present: Ms. Linda D. Simmons Chairperson Mr. Patrick H. McGann Jr. Member Mr. Leonard G. Hassell Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. In effect, the applicant requests that his Department of Veterans Affairs (VA) rated disabilities be approved for Combat-Related Special Compensation (CRSC). 2. The applicant states that while he was on a combat operation in South Vietnam, a mortar round landed 8 to 10 feet to his left. The explosion threw him 30 feet and resulted in the complete loss of his hearing and paralysis of his left side. He was taken to the 3rd Field Hospital in Saigon for treatment and was subsequently medically evacuated to Walter Reed Army Medical Center (AMC). His hearing returned to a limited degree and the paralysis resolved over time. However, he believes that all of his medical problems stem from that incident. 3. The applicant provides the denial of his request for reconsideration of the denial of his CRSC application. CONSIDERATION OF EVIDENCE: 1. Combat-Related Special Compensation (CRSC), as established by Section 1413a, Title 10, United States Code, as amended, states that eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling. For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war. CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat-related. 2. Concurrent Retirement and Disability Payment (CRDP), as established by the Fiscal Year (FY) 2004 National Defense Authorization Act (NDAA), provides a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50% or greater. 3. On 16 December 2004, the U.S. Army Physical Disability Agency (USAPDA) Combat Related Special Compensation (CRSC) Branch determined that the applicant’s prostate cancer was combat related and awarded him 20 percent CRSC compensation. However, the USAPDA CRSC Branch denied the applicant’s request for CRSC for impaired hearing, limited motion in lumbar spine (three disability codes), and impairment of femur. 4. In the processing of similar cases, advisory opinions were obtained from the Office of the Under Secretary of Defense (OUSD), Military Personnel Policy. The OUSD has maintained in these opinions that in order for a condition to be considered combat related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war. DISCUSSION AND CONCLUSIONS: 1. CRSC was passed into law as the first stage of an ongoing legislative initiative to eliminate the prohibition of military retirees from receiving VA disability benefits. Due to cost constraints, while all military retirees will eventually receive concurrent receipt of VA disability compensation, only those military retirees who have disabilities incurred in combat, or in conditions simulating combat (which includes hazardous duties), are eligible for CRSC. 2. As stated above, the CRSC criteria is specifically for those military retirees who have combat related disabilities. Incurring disabilities while in a theater of operations is not, in and of itself, sufficient to grant a military retiree CRSC. The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving. 3. While the applicant states that he was treated for injuries when a mortar round landed in his proximity, he has not submitted any evidence of his medical treatment for that incident or any evidence that any of his VA rated disabilities were incurred as a result of a combat related injury. 4. It would be reasonable to presume that if the applicant was treated for his injuries in a field hospital and continued his medical treatment at an AMC, records exist for that treatment. Those records should be contained in the applicant’s VA medical records. However, even if the applicant had submitted evidence of his hospitalization, that documentation would still have to show that his impaired hearing, limited motion in lumbar spine (three disability codes), and impairment of femur were caused by a mortar explosion for those conditions to be approved for CRSC. 5. The denial of the applicant’s request does not mean he will not be compensated for his service related disabilities. The denial means that he will not be compensated for his disabilities in the first group of military retirees being given this compensation. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___lds___ ___lgh __ ___phm__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _________Linda D. Simmons_____ CHAIRPERSON INDEX CASE ID AR20050001750 SUFFIX RECON YYYYMMDD DATE BOARDED 20050726 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.