IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150005266 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 U.S. Human Resources Command decision, dated 28 January 2015, denying him combat-related special compensation (CRSC) for tinnitus. 2. The applicant states if his last days of active duty were in Vietnam in April 1972 and the Department of Veterans Affairs (VA) awarded him a 10 percent (%) disability rating for tinnitus, then he should be awarded CRSC for tinnitus due to active duty. He was the security officer for the 73th Signal Battalion site and responsible for 12 key isolated signal sites. He helped prepare and test the plans for the final defensive fires. His duties, which included testing weapons and the final defensive fires for 12 key isolated signal sites, led to his tinnitus, primarily due to .50 caliber machinegun fire. 3. The applicant provides: * three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with effective dates of 10 September 1970, 13 December 1969, and 27 April 1972 * VA Appeals Management Center, Washington, DC Rating Decision, dated 13 June 2014 * HRC, CRSC Branch, letter dated 30 September 2014 * His request for reconsideration package, dated 6 October 2014, of HRC's denial for CRSC for tinnitus CONSIDERATION OF EVIDENCE: 1. He previously served in the Regular Army from 28 June 1966 - 10 September 1970 in an enlisted status. He served in the Republic of Vietnam from 11 November 1968 - June 1969. 2. On 11 September 1970, he was commissioned a second lieutenant in the U.S. Army Reserve (USAR). He entered active duty on 11 Sept 1970. He was assigned to the 73rd Signal Battalion in the Republic of Vietnam from 9 September 1971 - 21 April 1972. On 27 April 1972, he was released from active duty. 3. On 16 November 1986, the U.S. Army Reserve Personnel Center, St. Louis notified him that having completed the required years of service he would be eligible for retired pay, upon application, at age 60 (20-year letter). 4. On 9 September 1989, he was promoted to lieutenant colonel. On 13 July 2007, he was retired and placed on the Army of the U.S. Retired List. 5. A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 22 August 2007, from the Naval Health Clinic, Great Lakes, IL provided a provisional diagnosis of tinnitus and requested an evaluation for tinnitus, worse at night. 6. An SF 600 from the Ear, Nose, Throat (ENT) Clinic at Naval Hospital Great Lakes, IL, dated 18 February 2010, stated the applicant retired from the military service in 1996. During his active service he was exposed to loud noise (artillery, etc) and suffered a bilateral sensorineural hearing loss and bilateral tinnitus, worse at night, constant tinnitus becoming more severe in the last 10 years. His MRI in 2007 was within normal limits. He was there for a second opinion regarding whether his tinnitus was caused by military service. He was diagnosed with bilateral tinnitus due to hearing loss which was more likely than not caused by chronic loud noise exposure during military service. 7. On 13 June 2014, the VA Appeals Management Center, Washington, DC granted the applicant service connection for tinnitus with an evaluation of 10% effective 23 October 2007. a. The decision was based on a remand, dated 28 October 2013, from the Board of Veterans Appeals, a report of a VA medical center hearing examination conducted on 31 January 2014, and all evidence of record. b. A 10% evaluation was based on recurrent tinnitus. A single evaluation for recurrent tinnitus was assigned, whether the sound is perceived in one ear, both ears, or in the head. 8. A letter, dated 30 September 2014, from the CRSC Branch, HRC determined the applicant's claim for CRSC for tinnitus was not a combat-related disability. The reason for denial was no official documentation indicating a combat award or exposure to weapons, explosions, tanks, or aircraft in his claim. 9. On 6 October 2014, the applicant submitted a request for reconsideration to the CRSC Branch, HRC. His reconsideration package included his statement, a VA Decision letter from the Appeals Management Center, a letter from Captain (CPT) B, his Bronze Star Medal citation, a Life Magazine article, his DD Form 214, retirement orders, and progress notes from Lovell Federal Health Care Center (FHCC). a. In his statement, dated 6 October 2014, the applicant stated he spent 3 of his 6 years of military service in a combat zone. He spent his last 9 months of active duty in Vietnam as the Physical Security Officer for the 73rd Signal Battalion where he prepared, reviewed, and trained Soldiers on perimeter security and final defensive fires. He believed that his tinnitus was caused by his review of the final defensive fires at either Pr Line Mountain (Dalat) or Vung Chua Mountain (Qui Nhon). He also prepared and trained members of the 73rd Signal Battalion in the firing of 81mm mortars and .50 caliber machineguns at pre-designated targets on their portion of the perimeter at Camp McDermott. b. A letter, dated 14 January 1972, from CPT B does not mention weapons testing, defensive fires, or .50 caliber machinegun fire. He does not mention any combat event that could be determined a cause for the applicant's tinnitus. c. While his Bronze Star Medal citation describes his exceptionally meritorious service, it does not mention weapons testing, defensive fires, or .50 caliber machinegun fire. d. The Life Magazine article describes trials and tribulations of life at an Outpost during the closing months of the Vietnam War. However, the applicant was not mentioned in the article and there is no mention of actual combat during the period described. 10. A letter, dated 28 January 2015, from the CRSC Branch, HRC determined the applicant's claim for CRSC for tinnitus was not a combat-related disability. Under Justification/Comments HRC stated "Previously requested; no new evidence provided to show combat-related event caused condition." 11. Department of Defense Instruction (DODI) 1332.18 (Physical Disability Evaluation) defines armed conflict. Appendix 5 to Enclosure 3, paragraph 1b(2) defines armed conflict. The physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. The fact that a member may have incurred a disability during a period of war or 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. 12. CRSC, as established by section 1413a, Title 10, 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% 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. 13. Title 38, United States Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA does not make any determination as to whether an injury was received as a result of hostile action. DISCUSSION AND CONCLUSIONS: 1. 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 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. 2. For the purpose of CRSC, DODI 1332.18 states the fact that a member may have incurred a disability during a period of war or in an area of armed conflict, or while participating in combat operations is not sufficient to support a combat-related determination. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. 3. The SF 600's show he was diagnosed with tinnitus in 2007. However, the medical documents do not indicate his tinnitus was incurred while he was engaged in combat. The medial document do not provide a causal relationship between armed conflict and his tinnitus. 4. The statement from CPT B and the applicant's citation for the Bronze Star Medal do not provide any evidence of his testing of weapons, final defensive fires, or .50 caliber machinegun fire. 5. The VA rating decision determined that the applicant's tinnitus was incurred while in the military service during the Vietnam Era. However, this decision does not determine nor is it intended to determine whether the applicant's condition was a result of hostile action. 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) AR20150005266 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005266 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1