IN THE CASE OF: BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150004152 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, reversal of the U.S. Army Human Resources Command’s (HRC) decision to deny him combat-related special compensation (CRSC). 2. The applicant states that he is qualified for CRSC. 3. He provides: * HRC letter, dated 19 May 2014 * Department of Veterans Affairs (VA) documents * Medical Record documents * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 April 2007 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Physical Disability Agency (PDA) record, dated 13 November 2008 * Three support statements * Army National Guard (ARNG) Retirement Points History Statement, dated 21 December 2007 * ARNG Current Annual Statement, dated 3 December 2007 * ARNG Retirement Points Statement Supplemental Detailed Report, dated 3 December 2007 * Physical Evaluation Board (PEB) Proceedings, dated 7 October 2008 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the ARNG on 21 October 1987. On 22 January 2006, he was ordered to active duty in support of Operation Iraqi Freedom. He served in Iraq from 26 April 2006 to 12 April 2007. 2. A DA Form 2173, dated 17 April 2007, shows the applicant was seen as an outpatient at the clinic in Iraq for a right internal knee derangement injury. The form stated the applicant aggravated his right knee injury while on active duty resulting in tendinitis. The form does not indicate whether or not the injury was considered to have been incurred in the line of duty. 3. On 23 May 2007, he was honorably released from active duty. 4. On 7 October 2008, he underwent a PEB. The board found he was physically unfit and recommended a combined disability rating of 40 percent (%) for the following conditions with the following disability ratings: * Bilateral foot pain, with tenderness to palpitation of the bilateral plantar medial arches, 20% * Chronic right knee pain due to medial meniscal tear and osteoarthritis, 10% * Chronic left knee pain secondary to osteoarthritis, 10% * Left (non-dominant) index finger pain secondary to injury falling off a five ton truck in March 2006, 10% 5. His other conditions of insomnia and intermittent low back pain listed on his Medical Evaluation Board (MEB) were not unfitting and were not rated. 6. On 14 October 2008, the applicant initialed the PEB election page indicating that he concurred with the PEB findings and waived a formal hearing of his case. 7. On 4 December 2008, he was released from duty and permanently retired due to disability. 8. On 20 March 2010, he submitted a CRSC claim for osteoarthritis, degenerative arthritis, bilateral plantar fasciitis, left knee, right knee, and left index finger. On 10 May 2010, HRC CRSC Branch stated his request for consideration for a disability for left ring finger was not service–connected by the VA. They can only review disabilities that have been found to be service-connected. Additionally, he failed to provide sufficient evidence to properly adjudicate his claim for CRSC. HRC stated to award a condition as combat-related, he must provide their office with official documentation that shows how each condition is combat-related as defined by the MEB, Line of Duty investigation, VA Rating Decision, and/or other medical documentation that show how his disabilities are combat-related as by CRSC program guidance. In reference to his traumatic arthritis right knee and traumatic arthritis left knee, HRC added that there was no evidence in his claim to show a combat-related event caused the conditions. 9. On 11 February 2011, HRC CRSC Branch stated there was no record of VA awarding his conditions of post-traumatic stress disorder (PTSD) and his left index finger as service-connected. HRC said they can only review disabilities that have been found to be service-connected. In reference to his bilateral plantar fasciitis, degenerative arthritis (right knee), and osteoarthritis (left knee), HRC stated his PEB/MEB indicated these disabilities were not combat-related. 10. On 24 March 2011, HRC CRSC Branch stated the evidence the applicant submitted did not establish a link between his conditions of PTSD, degenerative arthritis, right knee, osteoarthritis, left knee, and a combat-related event. The VA Rating decision received does state that these conditions were service connected, however, there was no proof or connection to a combat related event. HRC further stated that being in a combat zone is not, in and of itself, sufficient to award CRSC. CRSC does not accept lay testimonies made during an exam in lieu of official documentation confirming an actual combat-related event which the applicant participated in that directly caused his PTSD condition. The disability or injury must be linked to a combat-related event. To award a condition as combat-related the applicant must provide their office with complete and official documentation that shows how each condition is combat-related as defined by the CRSC program guidance. Additionally, VA documentation must state clearly that a condition is a combat-related disability. 11. On 28 April 2014, HRC CRSC Branch stated his claim for CRSC was reviewed and the following determination was made: * Bilateral Plantar Fasciitis – 0%, Final Disapproval; previously requested and no new evidence provided to show combat-related event caused condition * Headache Disorder – 50%, this condition is secondary to a condition which is not combat-related * PTSD – 50%, previously requested; no new evidence provided to show combat-related event caused condition * Degenerative Arthritis, Right Knee – 10%, Final Disapproval; previously requested and no new evidence provided to show combat-related event caused condition * Osteoarthritis, Left Knee – 10%, Final Disapproval; previously requested and no new evidence provided to show combat-related event caused condition 12. On 19 May 2014, HRC CRSC Branch stated that after reviewing all documentation in support of the applicant's claim, they were unable to overturn the previously adjudication. The documentation the applicant submitted still shows no new evidence to link his requested conditions to a combat-related event. This disapproval is now considered final. 13. The applicant provided: a. A Surgical Information sheet that shows on 28 November 2011, he underwent a right knee arthroscopy with shaving chondroplasty in medial compartment and partial lateral meniscectomy. His Progress Notes show several months after his surgery, he was scheduled and attended physical therapy on a regular basis. b. His VA Rating Decision document, dated 21 February 2014, that shows he was granted a 50% disability rating for service connection headache disorder, effective 14 December 2009. His combined disability rating was listed as a 100%. c. His VA Rating Decision document, dated 8 December 2014, that shows he was assigned a temporary evaluation of 100% effective 12 March 2014, because of hospitalization over 21 days. An evaluation of 50% was assigned from 13 June 2014. Additionally, an entitlement to individual unemployability was granted effective 14 December 2009. d. Three supporting statements from two witnesses and a friend. One witness recalled a time when the applicant was on guard duty and a fellow Soldier shot another Soldier. He also states that on another incident the mortar attacks were so severe that it caused the applicant to reinjure his feet and knees one night while trying to take cover. Another witness stated he and the applicant worked together on his civilian job. He offered that every time the drill popped in their job of drilling holes at a quarry, the applicant would jump. Upon questioning the applicant's reaction, he stated that he could not help it because the noise sounded like a bomb. He also maintains that the applicant had a major problem with headaches and arthritis in his feet and knees. The applicant's friend recalled the applicant constantly dreaming about his accidents and attacks. She states the applicant has an intense anger problem that he did not have prior to his deployment to Iraq. 14. CRSC, as established by section 1413a, Title 10, U.S. Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it wasn’t for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax- free. 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, especially 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant submitted evidence to the HRC CRSC Branch in support of his claim for CRSC on several occasions. In all instances, his requests failed to show a combat-related event caused his injuries or medical conditions. 2. The CRSC criteria is specifically for those military retirees who have combat related disabilities. Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC. The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving. 3. The applicant's service medical records, including the complete facts and circumstances surrounding his claimed bilateral plantar fasciitis, headache disorder, PTSD, degenerative arthritis, right knee, and osteoarthritis, left knee are unavailable for review with this case. The available evidence supports that the applicant has a service-connected disability for headache disorder, PTSD, degenerative arthritis, right knee, and osteoarthritis, left knee. However, there is insufficient evidence to support that these conditions were combat-related. 4. Additionally, the HRC explained, in effect, that CRSC does not accept lay testimonies in lieu of official documentation confirming an actual combat-related event which the applicant participated in that directly caused his PTSD condition. Therefore, his witnesses/friend statements indicating that they either witnessed a tragic event or recalling the applicant reliving the event in a dream are not sufficient evidence to conclude that he is entitled to CRSC. 5. Without conclusive evidence to establish a direct, causal relationship of the applicant's conditions to war or the simulation of war, regrettably, there appears to be insufficient evidentiary basis for granting his requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ 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. _______ _ X______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150004152 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004152 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1