RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02548 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Combat-Related Special Compensation (CRSC) be increased from 60 to 70 percent due to his diagnosis of Traumatic Brain Injury (TBI). _________________________________________________________________ APPLICANT CONTENDS THAT: 1. He has deployed nine times to the desert which includes multiple trips to Saudi Arabia, Kuwait, United Arab Emirates, and two tours in Iraq which lasted almost a year and a half. 2. On 1 Mar 09, the Department of Veterans Affairs (DVA) approved disability compensation at 60 percent and subsequently raised it to 70 percent on 20 Jul 09 due to his diagnosis of TBI. 3. On 22 Oct 09, he was approved for CRSC at the 60 percent level. On 19 Feb 11, he applied for CRSC at the 70 percent level; however, it was disapproved by AFPC, who stated “documentation received did not confirm a combat related event as the cause of your condition.” His medical records confirm he was a highly functioning chief master sergeant (E-9) in the United States Air Force (USAF) and had no problems with memory, executive thinking or headaches. 4. He was not assigned traditional Air Force duties while deployed to Iraq but instead he did “in lieu of missions” replacing United States Army (USA) personnel and doing Army duties while attached to Army units. During his last tour, he was assigned to the 101st Airborne Division in charge of oil and electrical infrastructure. His daily duties included conveying to outlying sites, inspecting facilities and working with local contractors at remote sites to rebuild the infrastructure and get the national security team’s number two objective “infrastructure” completed.” 5. During his daily convoys, improvised explosive devices (IEDs) became second nature along with multiple rocket attacks, mortars and constant jarring of his back and neck as his team traveled across dirt roads and pot holes for hours at a time, sometimes as long as 18 hours. In addition, this was done while wearing a heavy helmet and 50 pounds of gear. No matter what the challenge, he did his duties with a smile and dedication. 6. He could provide a long list of events he believes contributed to his TBI and excruciating/persistent headaches but he would like to focus on two: a. On 16 Nov 05, while convoying to Darbandikan Hydro Dam, Iraq, his convoy was involved in a vehicle accident when a truck collided head on with his vehicle. b. On 26 Nov 06, while on another convoy from Kirkuk an explosion caused him to slam forward hitting his head on the dashboard. In support of his request, the applicant provides a personal statement, copies of articles from various periodicals, his DVA rating decision and CRSC approval letter, and other documentation related to his request. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant served active duty in the Regular Air Force from 19 Sep 78 to 31 Jan 09. On 1 Feb 09, he retired from the Air Force, having served 30 years, 4 months and 12 days on active duty. On 22 Oct 09, the applicant was approved for CRSC for post- traumatic stress disorder (PTSD), impaired hearing and tinnitus. He submitted a claim for TBI and his application was denied on 5 Oct 10. He provided additional documentation but his request was again denied on 7 Jan 11 and 19 Feb 11. His application was disapproved based on the fact that no evidence was provided to confirm his disability was the direct result of armed conflict, hazardous service, instrumentality of war, or simulating war. The CRSC program was established to provide compensation to certain retirees with Combat-Related disabilities that qualify under the criteria set forth in Title 10, United States Code, (10 USC) Section 1413a. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSDC recommends denial. The applicant’s conditions do not meet the mandatory criteria for compensation under the CRSC program as outlined under the provisions of 10 U.S.C., Section 1413a. By law, determinations of whether a disability is combat-related will be based on the preponderance of 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. The applicant contends there were two incidents which contributed to his TBI. He states he was involved in a vehicle accident while on a convoy in Iraq when a truck collided head on with their vehicle. Also, on another convoy from Kirkuk an explosion caused him to slam forward hitting his head on the dashboard. A review of the applicant’s documentation revealed the following: 1) The VA rating decision, dated 12 Apr 10, reflects “you reported at examination that headaches developed after blast experiences in Iraq.” 2) Medical Record, progress notes, dated 3 Nov 09, reflect the applicant said “he has had several different incidents where he has been damaged. When he was in the service he was an avid bike rider and when he was in Hawaii he was hit by a car in the year 2000 and fell across the curb.” 3) “He was in a motor vehicle accident in 2005 in Iraq. He was in a humvee and his driver ran into another truck head on and he was thrown forward against the radio console.” He stated “an IED went off right next to his humvee. It killed his driver and left him dazed and spacey. It was after a week or two that his head started hurting.” His DA Form 4187, Personnel Action, confirms, in November 2005 his convoy came under attack when an IED detonated under the back end of the vehicle. However, documentation reflects the applicant “was not injured in the accident” and the vehicle only sustained minor cosmetic damage. The applicant’s VA rating decision reflects the condition is more likely than not thought to be due to his motor vehicle accident and exposure to an IED in Iraq; however, there is no evidence of a vehicle accident provided, nor is there confirmation he was injured in the IED incident. Documentation provided clearly reflects he was not injured in the IED accident. In his own statement to a medical examiner, regarding his TBI, the applicant stated he was also injured when he was hit by a car while riding his bike in Hawaii. It is just as likely he sustained the TBI at that time. DPSDC states that based on the documentation provided they were unable to confirm the applicant sustained an injury or incurred the condition from a combat-related event. The complete DPSDC evaluation, with attachments, is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states he understands the examiner’s perspective; however, he disagrees with their rationale and findings. He reiterates his contentions that he received several injuries, two of which were the cause of his TBI. His headaches are documented in 2005; prior to that no headaches existed. None of his injuries occurred as a result of his bike accident in 2000. During his accident, he was wearing a helmet and did not suffer a head injury; he only sustained an injury to his shoulder and hip from hitting the curb. The applicant states that his examinations are riddled with statements from licensed and very experienced doctors who have voiced their opinion that “this was most likely due to motor vehicle accident and IED,” based on a lack of any other possible cause. Statements made by the doctors at the time point-out those documents from previous medical records were used to decide his case. In addition, documents from 30 years of medical records, including his bike accident, were reviewed and no evidence was found linking any head injuries to any previous events. This was all well-documented by a doctor at Tripler Regional Hospital, one of the best in the world. If there would have been any head trauma it would have been documented. Furthermore, there is no history whatsoever of any head trauma in his past; this is why the statement was made that it was most likely caused by the IED and accident. Up until his tour in Iraq he had no headaches; however, after Iraq he has had severe headaches that continue to this day. He has repeatedly asked for copies of the IED and accident reports but there is nothing documented. The applicant states that he was a highly functioning E-9 at the top of his game when it came to executive thinking and memory; after the Iraq events, he was rated as “severe to moderate” loss of memory, attention and executive thinking skills. His diagnosis is by several doctors and experts that all agree it happened after the 2005 IED and vehicle accident. He has persistent headaches that are painful 24 hours a day. He is a 31 year Air Force veteran with a high level of integrity and is being honest about the events that have caused his medical conditions. The applicant’s complete submission is at Exhibit E. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. . 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The evidence of record does not support a finding that the service- connected medical condition he believes is combat-related was incurred as the direct result of armed conflict, while engaged in hazardous service; and, therefore, does not qualify for compensation under the CRSC Act. We reviewed the applicant’s response to the Air Force advisory opinion; however, we do not find his contentions sufficiently persuasive to override the rationale provided by the Air Force office of primary responsibility. Accordingly, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-02548 in Executive Session on 5 Mar 12, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Jun 11, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. HQ AFPC/DPSDC, Letter, dated 19 Jul 11, w/atchs. Exhibit D. SAF/MRBR, Letter, dated 13 Sep 11. Exhibit E. Applicant’s Letter, dated 12 Oct 11. Panel Chair