BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150014230 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: 7 February 2017 DOCKET NUMBER: AR20150014230 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: 7 February 2017 DOCKET NUMBER: AR20150014230 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 decision to deny him combat-related special compensation (CRSC) for post-traumatic stress disorder (PTSD) and cervical degenerative disc and joint disease. 2. The applicant defers his statement and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, reversal of the decision to deny the applicant CRSC for PTSD and cervical degenerative disc and joint disease. 2. Counsel states the applicant's PTSD and cervical degenerative disc and joint disease are both combat related. He gives a procedural history and summary of the applicant's service, explains why the statute of limitations should be waived, and argues that the applicant's application is procedurally proper and satisfies the preliminary requirements for CRSC eligibility issued by DOD and that the applicant incurred combat-related disabilities as a direct result of armed conflict and through an instrumentality of war. 3. Counsel provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical Evaluation Board (MEB) Narrative Summary (NARSUM) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * July 2010 compensation and pension examination with letters * 2011 CRSC application and request for reconsideration forms * August 2012 PTSD Questionnaire * CRSC denial letters from the U.S. Army Human Resources Command, Fort Knox, KY (HRC-KNX), dated 2 November 2011, 27 December 2011, and 16 February 2012 * August 2012 Department of Veterans Affairs (VA) rating decision * April 2014 review examination for PTSD * 2014 retirement orders 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 enlisted in the Regular Army on 11 January 2001. He held military occupational specialty (MOS) 42A (Human Resources Specialist). He served in a variety of stateside or overseas assignments, including: * Iraq, 16 January 2004 to 16 December 2004 * Iraq, 7 September 2006 to 15 June 2007 3. Around 2007, he began complaining of neck pain. He denied any specific trauma at the time, but felt carrying the 249 SAW Machine Gun and ammunition was the likely cause. He was initially diagnosed with a muscle strain, but the pain persisted over the next several months. Plain films of the cervical spine on 26 November 2007 revealed multilevel spondylosis which was confirmed by MRI shortly after. In addition to cervical spine pain, he developed left arm numbness. He began a course of physical therapy including traction and several epidural steroid injections, all of which provided little benefit. In August 2009 he underwent a disc replacement surgery at C6-C7 which was complicated by a pulmonary embolus postoperatively for which he was placed on Coumadin for 6 months. His left arm numbness had resolved but he persisted in having neck pain. In terms of his MOS duties he was unable to lift any objects greater than approximately 20 pounds. He was unable to perform the Army Physical Fitness Test run and was unable to wear his protective gear. This condition fell below medical retention standards per Army Regulation (AR) 40-501 (Standards of Medical Fitness). 4. Although his MEB Proceedings are not available, it appears in June 2011 an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed as having the medically-unacceptable condition of PTSD and cervical spine degenerative disc disease, as well several other medically-acceptable conditions. It appears the MEB recommended his referral to a PEB. 5. On 25 May 2011, the VA proposed a rating for his military unfitting conditions as well as his service-connected disability as part of a pilot disability evaluation system program. For disability, the VA proposed a 50 percent rating for PTSD and obsessive compulsive disorder and a 20 percent rating for cervical degenerative and joint disease. 6. On 16 June 2011, an informal PEB convened. a. The PEB found the applicant's condition of PTSD related to his first deployment to Iraq in 2004 unfitting. He was under treatment and actively taking medications. His commander noted occasional decrease in work efficiency and his profile prevented handling weapons and ammunition. The condition was unfitting because of the risk of decompensation in a stressful/combat environment. The PEB rated this condition at 50 percent. b. The PEB found the applicant's condition of cervical spine degenerative disc disease with an onset since deployment. This condition worsened with disc replacement in August 2009 resolving arms numbness and extremity pain but not the neck pain. He remains unfit because he could not wear his Kevlar and IBA or lift heavy object. The PEB rated this condition at 20 percent. c. The PEB recommended a combined disability rating of 60 percent and placing the applicant on the temporary disability retired list (TDRL). He concurred. 7. He retired on 26 September 2011 and he was placed on the TDRL in his retired rank/grade of sergeant/E-5 on 27 September 2011, in accordance with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 8. On 17 October 2011, he applied for CRSC for his PTSD, obsessive compulsive disorder, and cervical degenerative and joint disease. 9. On 2 November 2011, by letter, an HRC official notified the applicant that HRC was unable to verify his conditions as combat-related disabilities. The CRSC Office requested he provide evidence of how these conditions were incurred. Such evidence could be a Line of Duty Investigation (LOD), medical documentation, or VA Rating Decision(s). The VA rating decision he provided was inconclusive as to how the injuries took place. a. As for the cervical degenerative disc and joint disease, there was no evidence in his claim to show that a combat related event caused this condition. b. As for his PTSD, the documents he provided showed no evidence to link this condition to combat-related event. The VA had not conceded a stressor caused by a specific combat-related event, simulating war, or instrumentality of war event. 10. On 27 December 2011, HRC dispatched a second letter to the applicant in response to his request for reconsideration dated 30 November 2011. The HRC letter stated the CRSC Office was still unable to verify his disabilities as combat-related. The documentation he provided did not show a relationship between an injury and a combat event. Stringent standards required clear details "how" an injury occurred. * CRSC for his cervical degenerative disc and joint disease was previously requested but there was no new evidence to show a combat-related event caused this condition * CRSC for PTSD was also previously requested but there was no new evidence to show combat-related event caused this condition 11. On 16 February 2012, HRC again reviewed all documentation in support of his request for reconsideration dated 1 February 2012, but was unable to overturn the previous adjudication. The documentation he submitted still did not contain evidence to link his conditions to a combat-related event. This disapproval was final. 12. On 11 April 2014, a TDRL PEB convened and found, upon re-evaluation, although some change in his medical condition may be anticipated, for the purpose of adjudicating his disability compensation his conditions were considered to have stabilized. The TDRL PEB indicated that: a. The applicant continued to suffer from symptoms of PTSD from a deployment to Iraq in 2004. Although found by the examiner to have reduced reliability and productivity, he had been employed since 2011, was a full time student, and experienced good relationships. Re-examination showed he had occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to manifestation and symptoms, but generally satisfactory functioning. His condition was stable for final rating and continued to be unfitting as it limited his ability to accomplish military specific tasks and missions. The TDRL PEB assigned a 30 percent rating. b. As for his cervical spine degenerative disc disease, his neck pain was considered stable and was not reconsidered by the PEB. The rating of 20 percent was carried forward for the purposes of a final rating. c. He was physically unfit and the TDRL PEB recommended a 40 percent combined disability rating with permanent retirement. 13. He was removed from the TDRL on 24 April 2014 and permanently retired on 25 April 2014. REFERENCE: 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 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. DISCUSSION: 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. The HRC CRSC Office reviewed his claims and all of the evidence he submitted on three separate occasions. In each case there was no evidence to show a combat-related event caused his conditions. Being in a combat zone is not, in and of itself, sufficient to award CRSC. The disability must be linked to a specific combat-related event. 3. The applicant has submitted evidence to show that his PTSD is service related. The available evidence does not show a combat-related event caused his PTSD or cervical degenerative disc and joint disease. The fact that he was in a theater of operations is insufficient, in and of itself, to warrant approval 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) AR20150014230 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014230 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2