BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160002376 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: 19 October 2017 DOCKET NUMBER: AR20160002376 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: 19 October 2017 DOCKET NUMBER: AR20160002376 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 reversal of the decision by U.S. Army Human Resources Command (HRC) to deny him combat-related special compensation (CRSC) for generalized anxiety with major depressive disorder. 2. The applicant states he is appealing HRC's decision based on evidence the Department of Veterans Affairs (VA) has awarded him service connection for his mental condition. a. He states the VA diagnosed him with post-traumatic stress disorder (PTSD). On 27 February 1991, the day his friend, PDM, was killed in action, he was on a mission to return four scouts who were killed in action. In less than 24 hours he had seen death in the face five times. He always felt that this was part of war and he dealt with it. However, his doctors told him his coping skills were not normal and that he was dealing with PTSD. b. A part of his claim for CRSC was based on his migraine headaches. The HRC denial did not mention anything concerning his migraine headaches. c. In 2003, he was mobilized and sent through the process like any other Soldier. Shortly after his vaccinations he began to get migraine headaches on a regular basis. He never had migraines like this before. While still on orders he had to visit the local medical clinic due to the migraines. After his mobilization he continued getting treatment for migraines, and in 2006 doctors found 2 small tumors on his brain. After battling the migraines, while continuing to do his active duty job, his medical issues were affecting his performance. He was forced to medically retire with 17.5 years of service. He read that an instrument of war can mean many things. He believes the vaccinations he received played a role in his migraine headaches. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 29 July 1991 * Military Department of Indiana Orders 096-421, dated 6 April 2003 * record of immunizations, given in April and May 2003 * records of treatment, dated from 1 May 2003 - 4 June 2003 * DD Form 214 with a separation date of 7 July 2003 * a letter, dated 27 September 2005, from the Office of the Assistant Secretary of Defense * an initial evaluation, dated 18 September 2012, by CLS, Licensed Clinical Social Worker (LCSW), Licensed Clinical Addiction Counselor (LCAC) * VA Compensation and Pension (C&P) Examination Report, Initial Evaluation for PTSD, dated 21 February 2013 * VA C&P Examination Report, General Medical Examination, dated 28 February 2013 Clinical note, dated 1 March 2013, from Ireland Army Clinical Hospital (ACH), Fort Knox, KY * U.S. Army Installation Management Command, Fort Knox, KY Orders 338-0159, dated 4 December 2013 * DD Form 214 with a separation date of 21 January 2014 * VA Rating Decision of 18 February 2014 * a letter, dated 22 June 2015, from HRC, Combat Related Special Compensation Branch * a letter, 8 October 2015, from HRC, Combat Related Special Compensation CONSIDERATION OF EVIDENCE: 1. On 14 October 1986, he enlisted in the Regular Army for 3 years. He completed basic combat and advanced individual training and was awarded military occupation specialty (MOS) 88M (Motor Transport Operator). 2. On 3 March 1989, he was assigned to the 122nd Support Battalion in Germany. He deployed on temporary duty to Southwest Asia from 18 December 1990 - 22 May 1991. On 29 July 1991, he was released from active duty due to the expiration of his term of service. 3. On 10 March 1995, he enlisted in the U. S. Army Reserve (USAR) for 1 year. He served in the Indiana Army National Guard (INARNG) from 7 December 1996 - 6 December 1997. 4. On 7 February 2003, he enlisted in the INARNG and served until his retirement. 5. On 6 April 2003, the applicant was ordered to active duty for mobilization for Operation Enduring Freedom. The period of active duty was not to exceed 365 days. On 7 July 2003, he was released from active duty by reason of completion of required active service. 6. The applicant received the following immunizations: * anthrax series 1 on 12 April 2003 * anthrax series 2 on 27 April 2003 * anthrax series 3 on 12 May 2003 7. Individual Sick Slips show he was treated for migraines on 1 May 2003. On 4 June 2003, he complained of headache, earache, and sore throat. He was treated and returned to duty. The assessment/diagnosis was sinus congestion. 8. On 26 January 2004, he was ordered to full time National Guard duty in an Active guard/Reserve (AGR) status. He was extended in an AGR status until 27 January 2014. 9. On 18 September 2012, CLS, LCSW, LCAC, did an initial evaluation on the applicant. The examiner stated: a. The applicant appeared to perceive his job and superiors as a threat to his well-being that manifested in agitated behavior, restlessness, racing thoughts, and irritability that was often repressed. He endorsed sensitivity to noise and being jittery that also manifested into poor concentration and focusing. b. The examiner diagnosed the applicant chronic PTSD and recurrent major depression. 10. On 21 February 2013, the applicant received a VA C&P Examination, Initial Evaluation for PTSD. The examiner determined the applicant did not meet the diagnostic criteria for PTSD. Although he had significant anxiety, his presentation was subclinical with regards to intrusive symptoms and avoidance symptoms. However, his other two current mental health conditions, major depressive disorder and generalized anxiety disorder were likely contributing significantly to his symptoms and functional deficits. The examiner diagnosed the applicant with generalized anxiety disorder and recurrent, moderate major depressive disorder. 11. On 1 March 2013, a clinical note shows the applicant received treatment for a migraine at Ireland ACH, Fort Knox. 12. On 5 September 2013, a Physical Evaluation Board (PEB) found him unfit for duty for the following conditions: * Posterior intraparenchymal left parietal lobe 2 centimeter (cm) cystic lesion with severe prostrating migraine headaches referred as cluster headaches with a 60 percent (%) disability rating * Radiculopathy of the right upper extremity with a 20% disability rating * Radiculopathy of the left upper extremity with a 20% disability rating * Right should degenerative disease of acromioclavicular joint with a 10% disability rating * Left shoulder acromioclavicular arthroplasty with a 10% disability rating * Lumbar spine multilevel spondylosis with a 10% disability rating * Cervical spine degenerative disc disease with a 10% disability rating 13. The PEB recommended a combine disability rating of 90%. The PEB found his generalized anxiety disorder and major depressive disorder did not render him unable to reasonably perform the duties of his rank and MOS. 14. On 21 January 2014, the applicant was retired and placed on the Retired List on 22 January 2014. His percentage of disability was 90%. 15. A VA Rating Decision, dated 18 February 2014, awarded the applicant a combined disability rating of 100%. His disabilities that were determined to be service connected included: * Posterior intraparenchymal left parietal lobe 2 cm cystic lesion with severe prostrating migraine headaches referred as cluster headaches with a 60% disability rating * generalized anxiety with major depressive disorder (recurrent and moderate) (claimed as PTSD and anxiety) with a 50% disability rating 16. On 17 March 2014, the applicant filed a claim for CRSC. His DD Form 2860 (Application for CRSC) lists PTSD and anxiety and generalized anxiety with major depressive disorder and posterior intraparenchymal left parietal lobe 2 cm cystic lesion with severe prostrating migraine headaches referred as cluster headaches. However, the claim for migraine headaches is crossed out on the form. 17. On 14 May 2014, the CRSC Branch, HRC, denied his claim for CRSC. HRC was unable to verify his generalized anxiety with major depressive disorder as a combat-related disability. A Physical Disability Information Report indicated that this disability was not combat-related. The decision did not address the applicant's migraine headaches. 18. On 22 June 2015, the CRSC Branch, HRC, again denied the applicant's claim for CRSC. HRC was unable to verify his generalized anxiety with major depressive disorder as a combat-related disability. HRC noted his claim was previously requested and no new evidence was provided to show a combat-related event caused the condition. The decision did not address the applicant's migraine headaches. 19. On 20 August 2015, the applicant filed a request for reconsideration for CRSC and he indicated the VA had awarded him service connection for PTSD. There is no evidence the VA awarded him compensation for PTSD. The applicant stated: a. He believed he was entitled to CRSC because of his chronic cluster migraines that began during his mobilization/pre-deployment in 2003. He is rated by the VA at 60% for migraines. b. He stated his major depressive disorder and anxiety were incurred from the first Gulf War and his experiences he explained during his retirement physical. His retirement physical was not available for review. He is rated 50% by the VA for this condition. 20. On 8 October 2015, the CRSC Branch, HRC, again denied the applicant's claim for CRSC. The applicant had provided no new evidence to show a combat-related event caused his condition. HRC advised the applicant this disapproval was now final and he could appeal to the Army Board for Correction of Military Records (ABCMR). This decision did not address the applicant's claim for migraine headaches. REFERENCES: 1. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) defines armed conflict. a. The disease or injury was incurred in the line of duty as a direct result of armed conflict. The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. b. Armed conflict is defined as a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorist. Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in the custody of a hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner-of-war, or detained status. c. An instrumentality of war is defined as 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. 2. CRSC, as established by section 1413a, Title 10, United States Code (USC), 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 was not 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 percent disabling. Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree. 3. The Fiscal Year 2008 National Defense Authorization Act expanded eligibility to cover those who were medically retired under Chapter 61, Temporary Early Retirement Act (TERA, and Temporary Disability Retired List (TDRL) with less than 20 years of service. Documentation must still be provided that shows a causal link between a current VA disability and a combat related event. 4. A listing of Gulf War casualties does show PDM was killed on 28 February 1991 as the result of an accident and was listed as a non-hostile death. 5. 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.  6. Title 38, USC, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA determines whether or not the injuries were incurred during a period of war or during peace time. However, the VA does not make any determination as to whether an injury was a result of combat. DISCUSSION: 1. The applicant states his friend, PDM, was killed in action on 27 February 1991. A listing of Gulf War casualties does show PDM was killed on 28 February 1991 as the result of an accident and was listed as a non-hostile death. 2. The applicant describes his mission to recover four scouts who were killed in action on the same day his friend was killed. However, he has not provided any corroborating evidence in support of his statement. 3. The applicant mentions he is suffering from PTSD. However, in his VA C&P Examination Initial Evaluation for PTSD, the examiner determined he did not meet the diagnostic criteria for PTSD. He was not diagnosed with PTSD by the VA. 4. The CRSC Branch, HRC, denied his claim for CRSC based on his generalized anxiety with major depressive disorder because there was no evidence to show a combat-related event caused this condition. PTSD was not listed in the HRC decision because there was no VA disability for this condition. 5. There is no evidence that HRC made a determination for CRSC for the applicant's migraine headaches. 6. The CRSC criteria are 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 that 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. 7. The available evidence does not show a direct causal link between a combat event and the disabilities he is claiming. 8. Title 38, USC, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service. The VA determines whether or not the injuries were incurred during a period of war or during peace time. However, the VA does not make any determination as to whether an injury was a result of combat. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002376 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002376 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2