BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150009223 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ _x_______ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150009223 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150009223 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 award of combat-related special compensation (CRSC) for injuries/conditions not previously considered qualifying. 2. The applicant states that he disagrees with the 17 December 2014 letter showing his request for CRSC was disapproved. He further states that issues rated by the Department of Veterans Affairs (VA) should be considered for CRSC approval. 3. The applicant provides– * U.S. Army Human Resources Command (HRC) CRSC denial letters, dated 17 April 2014, 31 July 2014, and 17 December 2014 * U. S. Army Physical Disability Agency (PDA) CRSC letter * information paper entitled, "Tips [for] Preparing a CRSC Form" * Department of Veterans Affairs (VA) Rating Decision dated 8 December 2008 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant retired due to sufficient length of service effective 31 January 2008. He had 26 years of continuous active federal service in the Regular Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had deployed service in Haiti, Panama, Hungary, and twice in Bosnia. 3. An 8 December 2008 VA rating decision shows he was granted a 100 percent combined rating for the following service connected medical conditions: * obstructive sleep apnea, 50 percent * post-traumatic stress disorder (PTSD) also claimed as major depression and anger management, 50 percent * left shoulder strain (pain), 20 present * cervical strain (neck), 20 percent * degenerative joint disease of lumbar spine (chronic low back pain, back fusion surgery) 20 percent * left knee degenerative joint diseased (medial meniscus tear, arthroscopy), 10 percent * tinnitus, 10 percent * bowel incontinence (neurological defect), 10 percent * right carpal tunnel syndrome (wrist condition), 10 percent * left carpal tunnel syndrome (wrist condition), 10 percent * eczema, 10 percent * gastroesophageal reflux disease (acid reflux, heartburn), 10 percent * migraine headaches, 10 percent * abdominal scar, 10 percent * right hip degenerative joint disease (bursitis), 10 percent * sensory deficit deep peroneal nerve right thigh and leg, 10 percent * sensory deficit deep peroneal nerve left thigh and leg, 10 percent * left hip degenerative joint disease (bursitis), 10 percent * right shoulder arthroscopy (pain), 10 percent * hypertension, 0 percent * allergic rhinitis, 0 percent * onychomosis (fungus) 0 percent * erectile dysfunction, 0 percent with entitlement to special monthly compensation based on loss of creative organ * pseudofolliculitis barbae, 0 percent 4. A 17 April 2014 HRC letter shows the applicant was awarded CRSC for two conditions (bi-lateral left hip degenerative joint disease and bilateral right hip degenerative joint disease) rated at 10 percent each for a total combined combat-related disability of 20 percent. His request for CRSC included fifteen additional medical conditions that the HRC CRSC office was unable to verify as combat-related disabilities or injuries incurred while simulating war. 5. The applicant provides copies of two additional CRSC applications and subsequent denial letters from HRC. Each denial letter stated there was insufficient evidence to show the injury was the result of simulating war. 6. The applicant provided a PDA CRSC letter which provides information and instructions to VA and Military Treatment Facility (MTF) doctors on how to provide the information needed to obtain CRSC approval. The Chief, CRSC Division, stated in the letter, "The number one reason CRSC denies a claim is due to a lack of combat-related evidence supporting that injury or illness…it is our hope that as a medical professional you are able to assist by going through the veteran’s medical history and proof, to verify the how the injury or illness was incurred." 7. An information paper titled "Tips [for] Preparing a CRSC Claim" includes the section "Helpful Statements to Support your Claim," which states, in part, "When preparing your military documents to verify your claim, look for phrases that tell how." For example: "…Doctor states injury is more likely than not caused by airborne duty, [field training exercise (FTX)], [improvised explosive device], explosion, or specific instrument of war while in training." 8. A 26 January 2015 Naval Hospital Pensacola, FL, letter from a Dr. M_____ M____ V_____, Lieutenant Commander, Family Medicine Resident, indicates the applicant's medical records had been corrected to show "how" his injuries had occurred. The letter further states the applicant sustained the following injuries during simulations of war: a. The left shoulder strain was caused by pulling down on the left riser of a parachute during a tactical airborne operation with 1st Battalion, 10th Special Forces Group ( Airborne). b. The lower back injury was caused by a 2 1/2 ton truck tailgate when it unlatched while off-loading crates during a combined Special Forces training exercise (CTX) while he was deployed in Bosnia. c. Four conditions (sensory deficit deep peroneal right thigh and leg, sensory deficit deep peroneal left thigh and leg, abdominal scar, and bowel incontinence) are related to and secondary to his low back injury. d. The cervical strain was caused when his weapon, load bearing equipment, and Kevlar hit his head and neck region when the driver slammed on the brakes when leaving the training site while deployed to Hungary/Croatia. e. The left knee injury was caused by a fall while breaching a multi-level building during common task training while on an FTX in Japan. f. His tinnitus and migraine headaches were caused when an IED exploded while on guard duty in Turkey. g. His PTSD was caused when an IED exploded while on guard duty in Turkey and during other deployment periods. h. His sleep apnea is directly related to the IED incident in Turkey and is secondary to PTSD. i. His left and right wrist injuries (left and right carpal tunnel syndrome) were caused by setting up and tearing down tactical communication vehicles, sewing together and erecting camouflage nets for tactical operational areas and equipment during FTX and deployments during his many years of service. j. His right shoulder pain was caused by climbing a rope during combat confidence course and weapons training on a Marine Base camp in Fuji Japan. 9. In the processing of this case an advisory opinion was received from the Chief, Army Personnel Records Division, HRC, on 25 July 2016. The advising official indicated administrative relief was not warranted and noted: a. The applicant claims 20 additional disabilities should be considered for award of CRSC, but was only awarded CRSC for two medical conditions. His medical evidence contains numerous "he states, he reports" verbiage with no diagnoses to support the denied disabilities. b. The required changes and a new CRSC certification have been forwarded to the Defense Finance and Accounting Service (DFAS) for payment/processing. Any inquiries regarding payment should be directed to DFAS. c. The number one reason CRSC denies claims is due to the lack of combat-related evidence supporting the injury or illness. The official documentation that explains "how" the applicant received his illness or injury is not available to the CRSC staff. 10. The advisory opinion was forwarded to the applicant for his review and rebuttal. He provided a response dated 12 August 2016 wherein he resubmitted the medical doctor’s memorandum dated 26 January 2015 which corrected his medical record. His doctor tells the "how" of when his injuries were incurred in this memorandum. The medical doctor wrote the memorandum in accordance with the criteria listed in the CRSC information paper. For each medical diagnosis, the medical doctor explained how he incurred the injury. He believes he has now provided sufficient evidence to show how his injuries were incurred, thus he should be awarded CRSC. REFERENCES: 1. CRSC, established by Title 10, U.S. Code (USC), section 1413a, 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 weren't for the statutory prohibition for a military retiree to receive a VA disability pension. a. Payment is made by the Military Department, not the VA, and is tax free. b. 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. c. Qualified disabilities must be compensated by the VA and rated at least 10-percent disabling. d. Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return a portion of the waived retired pay to the military retiree. 2. HRC's Special Compensation Branch webpage shows the CRSC Division is responsible for verifying a claimant's injuries are directly connected to combat or combat-related operations as defined by Department of Defense CRSC Program Guidance, dated 15 April 2004. It provides criteria, terms, definitions, and explanations that apply to making combat-related determinations in the CRSC program. a. An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury. b. Incurrence during an actual period of war is not required. However, there must be a direct, causal relationship between the instrumentality of war and the disability. The disability must be incurred incident to a hazard or risk of the service. c. A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service because of such diverse causes as wounds sustained from a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordnance, vehicles, or material. d. With respect to VA awards of service-connection for presumptive conditions under Title 38, USC, section 1112(a) and PTSD (PTSD – VA Schedule for Rating Disabilities (VASRD) Code 9411), the Military Department must independently determine the relationship between that disability and the qualifying criteria. e. Military Departments are not bound by any presumption if there is documentary information that the disability is not combat-related. The Military Departments shall base their determinations on such information. An uncorroborated statement in a record that a disability is combat-related will not, in and of itself, be considered determinative for purposes of meeting the combat-related standards for CRSC prescribed herein. CRSC determinations must be made on the basis of the program criteria. DISCUSSION: 1. The applicant requests award of combat-related special compensation (CRSC) for injuries/conditions not previously considered qualifying. He states that medical conditions rated by the VA as service connected should be considered for CRSC approval. The CRSC office was unable to verify the additional conditions as combat-related disabilities. The HRC CRSC staff independently reviewed his three applications and also considered a fourth application when rending their advisory opinion based on the evidence the applicant presented with his ABCMR application. 2. The medical doctor at the Naval Hospital Pensacola provided a memorandum written more than 6 years after the VA rating decision stating that more likely than not that the various medical conditions that the applicant claims for CRSC were caused by especially hazardous military duty (parachuting), FTX or other simulation of war. However, the memorandum does not identify the pertinent facts such as the date and time of an incident or if the applicant sought medical treatment for the medical condition based on an injury or illness. Nor did the applicant provide line of duty reports, unit duty journals, after action reports or similar documents that could be used to corroborate the details of his medical injuries as occurring during simulations of war. 3. The advisory official reported the applicant was awarded CRSC for two of the disabilities included in his CRSC application. She also advised relief was not warranted for the other medical conditions because "Medical evidence contains numerous ?he states, he reports? verbiage with no evidence to support the denied disabilities." The CRSC guidance states Military Departments are not bound by the VA presumption that a medical condition is service connected. CRSC administrators and this Board must determine if each medical condition claimed in a CRSC application is a direct result of an instrumentality of war or simulation of war based on the evidence of record. The guidance is clear that an uncorroborated statement in a record that a disability is combat-related will not, in and of itself, be considered determinative for meeting the combat-related standard for award of CRSC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009223 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009223 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2