BOARD DATE: 27 June 2017 DOCKET NUMBER: AR20160001496 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: 27 June 2017 DOCKET NUMBER: AR20160001496 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: 27 June 2017 DOCKET NUMBER: AR20160001496 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 U.S. Army Human Resources Command (HRC) decision to deny him Combat-Related Special Compensation (CRSC) for all of his disabilities. 2. He states each of his disabilities were incurred during the performance of his duties while in military service as an infantryman, ranger, and special forces (SF) operator. All of his disabilities were caused "under conditions simulating war." The information his Veterans Service Officer (VSO) provided to HRC in his request for reconsideration of his claim states his injuries were all incurred during training for war. He argues HRC's determination that his injuries were not combat-related was based on the Department of Veterans Affairs (VA) determination that his disabilities were incurred during peacetime, which is inaccurate. He further states: * as an SF operator and infantryman, he was required to attend, graduate, and perform military parachuting duties * his injuries of right shoulder rotator cuff strain, right and left knee chronic sprains, right ankle chronic sprain, left ankle fracture, and chronic lumbar strain with degenerative changes are the result of serving in his military occupational specialties (MOS) infantryman and SF * he served with numerous ranger and infantry battalions and SF groups from 1975 until his retirement * his right shoulder injury and subsequent surgery in 1981 occurred while attending the SF Qualification Course in 1980 * his knee and ankle injuries resulted from military parachuting * his lower back injuries occurred while training for wartime and military parachuting * all his conditions worsened during his final combat deployment as an SF operator 3. He provides: * self-authored statement * Airborne Course Diploma, dated 25 March 1976 * Pathfinder Course Diploma, dated 18 February 1977 * SF Qualification Course Certificate, dated 22 July 1980 * Malaysia Airborne Wings Certificate, dated 16 August 2002 * British Parachute Wings Certificate, dated 22 January 2003 * Noncommissioned Officer Evaluation Report (NCOER) * Honorary Airborne Diplomas from Brazil and Germany * CRSC applications to HRC with attachments CONSIDERATION OF EVIDENCE: 1.  Having prior service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG) on 10 September 1985. On 7 September 2002, he was ordered to active duty in support of Operation Desert Spring in Kuwait from 20 March to 20 May 2003 and Operation Iraqi Freedom from 21 May to 27 August 2003. He was released from active duty on 27 August 2003. 2.  On 3 February 2005, he was notified of his eligibility to receive retired pay at age 60 (20-year letter). 3.  On 29 January 2005, he was discharged from the ARNG and transferred to the U.S. Army Reserve Retired Reserve. 4.  The applicant's records are void of a line-of-duty (LOD) determination or any medical documents or evidence to show his claimed conditions were the direct result of combat-related events. 5.  A VA Rating Decision, dated 17 January 2013, shows the applicant received a combined disability rating of 60 percent on 3 November 2005 and 80 percent on 3 August 2012 as follows: * post-traumatic stress disorder (PTSD), service connected, Gulf War incurred, 50 percent * right shoulder rotator cuff strain with scar, service connected, peacetime incurred, 10 percent * left knee chronic sprain, service-connected, Gulf War incurred, 10 percent * right knee, chronic sprain, service-connected, Gulf War incurred, 10 percent * status post left ankle fracture, service-connected, peacetime incurred,10 percent * chronic sprain right ankle service-connected, peacetime incurred, 10 percent * tinnitus, service-connected, Gulf War incurred, 10 percent * chronic lumbar strain with degenerative changes, service-connected, Gulf War incurred, 10 percent * chronic wrist sprains, left, service-connected, Gulf War incurred, 0 percent 6.  The below listed disabilities were not service connected and not subject to compensation: * right elbow condition * concussion with left eye pain * left ear hearing loss * varicose veins, left lower extremity * gallstones * gastrointestinal problems * urinary tract infection * left renal cyst 7.  On 6 May 2013, he submitted a CRSC claim for PTSD, right shoulder rotator cuff strain with scar, tinnitus, chronic lumbar strain with degenerative changes, status post-left ankle fracture, chronic sprain right ankle, left knee chronic sprain, and right knee chronic sprain. On 7 June 2013, the HRC CRSC Branch stated his claim could not be processed because he was not in a retired status. 8.  On 16 June 2013, he was honorably retired and placed on the Retired List. 9.  On 26 August 2014, he submitted a CRSC claim citing the same disabilities as stated above. He described the disabilities as follows: a.  PTSD – SF operator, SF sniper (El Salvador), and light weapons sergeant (Iraq). Exposed to numerous incidents of combat trauma including the death of fellow SF operators, enemy combatants and civilians, roadside bombs and improvised explosive devices (IED) in 1984 and 2003. b.  Right shoulder rotator cuff strain with scar – caused by numerous airborne training operations in preparation for war while carrying full combat loads, weapons, ammunition, and landing on hard surfaces. This includes making jumps for airborne qualification in Great Britain, Malaysia, Germany, and Brazil during the years 1975-2003. c.  Left knee chronic sprain – SF operator, SF sniper (El Salvador), and light weapons sergeant (Iraq). Injury caused by carrying extremely heavy combat loads in jungle and desert terrains. In addition, this injury was probably originally caused by numerous airborne operations in preparation for war during the years 1975-2002. d.  Right knee chronic sprain – SF operator, SF sniper (El Salvador), and light weapons sergeant (Iraq). Injury caused by carrying extremely heavy combat loads in jungle and desert terrains. In addition, this injury was probably originally caused by numerous airborne operations in preparation for war during the years 1975-2002. e.  Tinnitus – As a ranger and SF operator, he was constantly exposed to gun fire from numerous weapons systems, artillery, mortar fire, and fixed and rotary wing aircrafts. Most of the time, especially during combat operations in El Salvador and Iraq, he did not use hearing protection due to the nature of the missions. f.  Chronic lumbar strain with degenerative changes – SF operator, SF sniper (El Salvador), and light weapons sergeant (Iraq). Injury caused by carrying extremely heavy combat loads in the jungle and desert terrains. This injury was probably originally caused by numerous airborne operations in preparation for war during the years 1975-2002. g.  Status post-left ankle fracture – airborne training 1975. h.  Chronic sprain right ankle – parachuting during airborne training operations while carrying full combat loads during the years 1975-2002. 10.  On 16 December 2014, the HRC CRSC Branch approved the applicant's claim for PTSD rated at 50 percent and tinnitus rated at 10 percent. His total combined combat-rated disability was 60 percent. The other heath conditions noted in his 2014 CRSC application were denied. He was informed his record did not show an accident or incident to connect the disabilities to a combat-related event. 11.  On 28 January 2015, the applicant's VSO requested HRC reconsider his application for CRSC. The VSO stated, in effect: a.  Upon his review of the initial decision, there are a multitude of oversights regarding the applicant's CRSC application. The fact that several of the VA ratings are noted as "Peacetime incurred," is meaningless when they are considered in light of the indisputable fact that the applicant's entire military career either involved direct combat (El Salvador and Iraq), or training for combat. As an infantryman, Army ranger and SF Soldier, all of his injuries not directly related to combat are related to his training. If the applicant was not in combat, he was performing all his duties under conditions simulating war, or engaged in sensitive missions unique to SF of a classified nature. b.  In the rating decisions he provided, it was clearly noted that the VA had reviewed the applicant's military personnel and medical records. These records show he broke his right ankle during military parachuting school in 1976 and it got worse during ranger training. The injury did not heal properly and his medical records show his ankle was put into a cast. He suffered continuously over the duration of his military career because of this injury. Additionally, the letter from the applicant's SF commander during Operation Iraqi Freedom, noted the applicant had made a significant number of military parachute jumps as a member of the SF community. This injury clearly occurred during the "performance of duties under conditions simulating war" and is indeed "training for war." c.  When the applicant was in the SF Qualification Course in 1980, he broke his right shoulder. The injury sheared the right tip of the shoulder. He was not aware of this injury until approximately a year later when he was attending language school. Medical records from Fort Devens, MA, while he was assigned to the10th SF Group, show treatment for this injury as do records from Fort Ord, CA. After x-rays were done at Fort Ord, the break was discovered, followed by surgery and 30 days of convalescent leave. All of these records are in the applicant's military medical file and copies, no doubt, are in his VA medical records. This injury occurred during the "performance of duties under conditions simulating war" and "training for war." d.  In terms of the applicant's rating for his lower back, this injury is the sum total of 27 years of carrying extremely heavy military back packs, forced marches, multiple parachute landings, carrying assigned weapon systems for great distances over rough terrain (90 millimeter recoilless rifle and the M-60 light machine gun), and falling down on numerous occasions during patrol, raids, ambush operations, mountain climbing, and rappelling. All of these things were directly related to the applicant's chosen MOSs as an Army ranger, infantryman, and SF Soldier and were, therefore, all in the "performance of duties under conditions simulating war" and/or "training for war." e.  The applicant broke his left ankle while assigned to 12th SF Group during his SF recertification in the late 1980s. He does not remember the exact date, but the treatment for this condition is contained in his military medical records. He stepped in a chuckhole during a land navigation course, wore a cast, and underwent 5 months of rehabilitation. This injury was during training/preparation for war. In terms of the injuries to the applicant's knees, all of the details noted above apply to these injuries, particularly military parachuting operations and the rigors of being an infantryman/ranger/SF Soldier. These injuries, like all of the rest, occurred during training and/or preparing for war. 12.  On 10 July 2015, HRC again denied the applicant's claim, stating there was no new evidence provided to show specific combat-related events caused the health conditions identified in his CRSC application. The conditions of PTSD and tinnitus were verified and his total combat-related disability was 60 percent. The denial letter stated, "All the evidence [the applicant] submitted has been reviewed. It clearly establishes you have the service connected disabilities you claim. However, it does not establish a direct, documented causal relationship between the disabilities claimed and a combat related event as required by law." REFERENCES: 1.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals. This guidance stated 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. 2.  CRSC, as established by Title 10, U.S. Code, 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. 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. DISCUSSION: 1.  The evidence of record shows the applicant submitted evidence to the HRC CRSC Branch in support of his claim for CRSC on several occasions. With the exception of PTSD and tinnitus, his requests failed to show a combat-related event or similar causal relationship between his various medical conditions noted in his CRSC application. 2.  By law, CRSC is specifically for those military retirees who have combat-related disabilities. Incurring disabilities while in a combat 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. 3.  The applicant's service medical records, including the complete facts and circumstances surrounding his claim for right shoulder rotator cuff strain with scar, chronic lumbar strain with degenerative changes, status post-left ankle fracture, chronic sprain right ankle, left knee chronic sprain, and right knee chronic sprain are unavailable for review with this case. Additionally, his records are void of any LOD determinations. 4.  The evidence of record shows the VA awarded the applicant a 10-percent disability rating for each of the following conditions: right shoulder rotator cuff strain with scar, service connected, peacetime incurred; left knee chronic sprain, service connected, Gulf War incurred; right knee chronic sprain, service connected, Gulf War incurred; status post left ankle fracture, service-connected, peacetime incurred; chronic sprain right ankle service connected, peacetime incurred; and chronic lumbar strain with degenerative changes, service connected, Gulf War incurred. The available evidence does not show a combat-related event caused the aforementioned medical conditions. The fact that he was in a combat theater of operations and that he trained and performed various hazardous MOS and Soldier tasks prior to serving in a combat theater of operations is acknowledged. However, there must be a direct causal relationship between the medical conditions claimed and a military operation or training event (simulation of war) that directly caused the medical conditions' existence, not the passage of time as he and his VSO purport through their various applications. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001496 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001496 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2