ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  27 August 2019

	DOCKET NUMBER:  AR20170016486


APPLICANT REQUESTS:  a partial reconsideration of his prior request and a new 
request for:

*	award of Combat Related Special Compensation (CRSC) for the injuries of post-
traumatic stress disorder (PTSD), residuals of traumatic brain injury (TBI), 
obstructive sleep apnea (OSA), and degenerative disc disease with herniated 
lumbar disc at L4-5 incurred during pre-deployment/mobilization training
*	correction of DA Form 18 (Revised Physical Evaluation Board (PEB) 
Proceedings) to reflect item 10C (disability did result from a combat related 
injury) was found applicable to all above-listed disabilities
*	correction of DA Form 18 to remove all references to attention deficit 
hyperactivity disorder (ADHD)
*	correction of his DA Form 18 to show the true description for each separate and 
distinct disability
*	correction of his PEB disability percentage and description for OSA to show he 
was required to use a prescribed continuous positive airway pressure (CPAP) 
machine and reevaluate his OSA rating at 50 percent, to meet the Department of 
Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) language

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	self-authored statement “CRSC Appeal and Medical Retirement Corrections”
*	self-authored statement “Disability Facts, evidence, and Comments”
*	supplemental information table of contents
*	prior Army Board for Correction of Military Records (ABCMR) Record of 
Proceedings for Docket Number AR20140016975, dated 18 February 2016
*	numerous CRSC requests, denials, and their allied supporting documents
*	multiple sets of orders
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	DD Form 215 (Correction to DD form 214)
*	PEB documentation, dated October 2008
*	Medical Evaluation Board (MEB) documentation
*	email correspondence
*	line of duty (LOD) documentation
*	sworn statements
*	service medical documents and reports
*	VA medical documents

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Number 
AR20140016975 on 18 February 2016.

2.  The applicant states:

	a.  All of his injuries were incurred during the same hand-to-hand/urban self-defense 
training as that where he received his right groin pain (VASRD code 8799 and 8730), 
which the PEB awarded a finding at item 10C on DA Form 18 that the disability resulted 
from a combat related injury.

	b.  Also note that all of his LOD documentation provided were the official LODs 
accepted and used to retire him from the military.  If there is a problem with them, then 
he asks the Board to make the correction necessary to them in order to be granted 
approval of CRSC for is injuries.

	c.  The CRSC Branch has unjustly denied his CRSC applications for his injuries of 
PTSD, residuals of TBI, OSA, and degenerative disc disease with herniated lumbar disc 
at L4-5 that were incurred directly from his pre-deployment/mobilization training that 
occurred at Camp Shelby, MS in support of Operation Iraqi Freedom (OIF).  He is 
looking for ABCMR approval of CRSC for these injuries back-dated to the date of his 
discharge on 28 October 2008.

	d.  The PEB, wherein he was granted an 80 percent disability rating, contains 
statements within the disability descriptions that are incorrect and unjust, which either 
look to be resulting in a lower percentage rating than what should actually have been 
awarded, or the statements have no merit, obscuring the true cause and what should be 
reflected in the description for the stated disabilities.

	e.  After his prior application to the ABCMR, the Board made corrections to is 
disability retirement records and retirement benefits and in his PEB corrections the 
ABCMR identified his PTSD “as resulting from injury during hand-to-hand/urban self-
defense training,” which is correct, but the Board did not correct his PEB DA Form 18 to 
show that a 10C finding was awarded for his PTSD.  Also, his PEB documentation 
shows states he has recurrent nightmares every few weeks, mild startle response, 
some irritability, and hypervigilance.  This is not accurate due to the fact that his MEB 
records show he suffers to a greater extent than just mild and a true rating of 50 percent 
for his PTSD is what he agrees with.

	f.  After his prior application, the Board made corrections to his disability retirement 
records finding his residuals of TBI are a distinct and separate disability from his PTSD, 
which is correct.  What is not correct and needs to be fixed is the disability description 
that states he had a non-compensable ADHD that is likely the major factor, which is not 
true and needs to be removed.  This has been perpetuated by the fact that he was 
prescribed Adderall to help with his memory and focus problems as well as his 
tiredness.  There has never been any testing or diagnosis of ADHD prior to the TBI he 
sustained during the hand-to-hand training.  He was prescribed the Adderall after 
sustaining the head injury and is providing medical documentation attesting to this.

	g.  Please correct this by removing any statement regarding ADHD from his 
documents and the reference that that was a major factor, as this simply isn’t true.  His 
TBI was sustained during the hand-to-hand combat training which resulted in his 
inability to remember locations and directions as well as his problems associated with 
attention and concentration.  This can be seen in the testing report from 14 and 15 April 
2008, which also stated the reasoning behind the Adderall prescription.  His PEB 
documentation should identify his residuals of TBI as resulting from injury during hand-
to-hand/urban self-defense training as well as awarding a 10C findings for his residuals 
of TBI.

	h.  After his prior application to the ABCMR, the Board made corrections to his 
disability retirement records by identifying his OSA as a separate disability, but he PEB 
states he is not using the CPAP, which is not a true statement.  He was issued and 
used a CPAP since being diagnosed with OSA in January 2008.  He simply had a 
difficult time tolerating the CPAP, but have used and continues to use a CPAP.  He was 
never not using it since it was prescribed, he simply had a hard time tolerating the head 
gear you have to wear and the forced air produced by the machine due to his previous 
nasal surgery.  This resulted in taking it off repeatedly throughout the night and since 
then he has become more and more desensitized by finding the right head gear/mask.  

	i.  The VA did have to order him specific head gear/mask and he has been able to 
consciously use his CPAP since before his medical retirement from the Army.  He asks 
the Board to correct the description in his PEB to state the CPAP was required and 
used by him and to adjust his disability percentage from 30 percent (CPAP not required) 
to 50 percent, which truly reflects he is “required” the use of a breathing assistance 
device such as a CPAP machine.

	j.  After his prior application to the ABCMR, the Board correctly identified his OSA as 
a separate disability, but the PEB documentation does not show or state that his 
disability of OSA is a direct result injuries sustained ruing urban self-defense training, 
which is the true reason why he acquired OSA.  It should also be awarded a 10C 
finding.  The OSA is a direct result of nasal fracture/deviated septum received during 
hand-to-hand/urban self-defense training.  Even after surgery, his deviated septum was 
not properly corrected and has issues breathing trough his nose.

	k.  Any reference to ADHD should be removed from his PEB documentation due to 
the fact that he never had any testing nor has there been any factual diagnosis of 
ADHD.  He does, on the other hand, have a doctor stating he never had a history of 
ADHD and has an actual testing report stating he does not have ADHD and that his 
problems are from his TBI.  The medication Adderall has been helpful in the treatment 
of his TBI.

	l.  There is a statement in his MEB regarding diagnoses 2,3,4,5, and 8 stating:  
“specifically the degenerative disc disease with herniated lumbar disc at L4-5 
injury...there is no evidence of their association with any reported event that occurred 
while on active duty…” and continues to state “ his training was essentially stopped 
when he had the testicular injury.”  It is true his training was stopped, but his injury was 
the result of the self-defense training.

3.  The applicant had prior enlisted service in the Regular Army, Army National Guard 
(ARNG), and the U.S. Army Reserve from 15 July 1997 through 14 July 2004.  He had 
a break in military service from 15 July 2005 through 24 July 2006.

4.  He enlisted in the Texas (TX) ARNG on 25 July 2006 for a period of 6 years.  
TXARNG Orders 110-382, dated 20 April 2007, ordered him to active duty as a member 
of his Reserve Component Unit in support of OIF for a period not to exceed 400 days.  
He was to report to the mobilization station at Camp Shelby, MS effective 17 May 2007.

5.  The applicant provided numerous sworn statements, all dated 24 May 2007, which 
all state in amalgamated summary the following:

	a.  The applicant, due to his large size, was called on to be a volunteer during the 
unarmed self-defense training at Camp Shelby, MS, that he participated in with a 
portion of his unit after mobilized.  The instructor of the training, as staff sergeant, told 
the applicant to put him in a rear bear-hug in order for him to demonstrate how to 
escape from the hold.  When the instructor could not escape from the hold, the two fell 
to the floor wrestling after which the instructor said something to the applicant and 
subdued him by grabbing his scrotum/testicles and did not adhere to the applicant’s 
repeated requests to release him using the “Code Red” call, in what was perceived as 
the instructor’s anger at his inability to break the hold.

	b.  The applicant recovered and made his way back to the formation when the 
instructor called him back up insisting he participate in another demonstration in which 
he was put in a headlock by the instructor and punched in the nose with his closed fist, 
causing it to bleed.

	c.  After the bleeding stopped and the applicant returned to his place in the 
formation, the instructor called him back up front to participate in yet another 
demonstration.  In this demonstration, the applicant was told to grab the instructor 
around the throat in a choke hold, from which the instructor would attempt to break free.  
The instructor broke free from the choke hold and proceeded to thrust the applicant’s 
head downward and knee him in the head, causing it to visibly swell.

	d.  It was agreed upon by the officer in charge of the training, the applicant’s senior 
officer, and numerous other participants that the instructor’s actions were not in keeping 
with the intent or proper execution of the instructions and the instructor apologized for 
his actions.

6.  A Standard form 600 (Chronological Record of Medical Care), dated 25 May 2007, 
shows:

	a.  The applicant was seen at the on the date of the form with testicular pain and 
complaints of multiple blows to the head, nose and testicles during combat training the 
day before.

	b.  The history of present illness states the applicant had been seen earlier in the 
week for acquired deviated nasal septum and allergic rhinitis for which he was 
prescribed Allegra and Nasonex and he now presented with complaint of nasal and right 
testicular pain combined with blood-tinged mucus after a hit in the nose and his right 
testicle was grabbed during “combatives” yesterday.

7.  A DA Form 2473 (Statement of Medical Examination and Duty Status), dated 9 June 
2007, shows:

	a.  The applicant was examined at the on 8 June 2007 with a fractured nose and 
scrotum incurred on 24 May 2007 during unarmed self-defense training.

	b.  The details of the accident state the applicant was chosen as a demonstrator by 
the instructor and when the instructor was unable to complete the demonstrations he 
got frustrated and grabbed the applicant’s groin.  During the same block of instruction, 
the instructor punched the applicant in the nose, which is now broken.

	c.  On 9 June 2007, the injuries were considered to have been incurred in the LOD.

8.  U.S. Army Human Resources Command (HRC) Orders A-07-716649, dated 26 July 
2007 retained the applicant on active duty and ordered him to report to the Warrior 
Transition Battalion at Fort Gordon, BA to participate in the Reserve Component 
Medical Holdover Medical Retention Processing Program for completion of medical care 
and treatment effective 23 July 2007.  HRC Orders A-08-717522, dated 10 August 2007 
further retained him on active duty effective 14 August 2007 and ordered him to report 
to the Warrior Transition Battalion at Brooke Army Medical Center (BAMC), Fort Sam 
Houston, TX, for continued medical care and treatment.

9.  A DA Form 2473, signed by the attending administrator at BAMC, Fort Sam 
Houston, TX on 19 March 2008 shows:

	a.  The applicant was examined as an outpatient at, on 12 July 2008 for a herniated 
intervertebral disc (annular tear)/degenerative disc disease 
L4-L5/L3-L4 bulge with facet hypertrophy.

	b.  The applicant stated that while at Camp Shelby, MS, on 24 May 2007, he was hit 
from behind during a self-defense demonstration and knocked forward to the ground by 
the instructor.

	c.  On 21 April 2008, the injury was considered to have been incurred in the line of 
duty.

10. A Neuropsychological Report, shows the applicant was referred for an MEB 
neuropsychological evaluation which transpired on 14 and 15 April 2008, at BAMC, Fort 
Sam Houston, TX.  The report states, in pertinent part:

	a.  The diagnostic impression was cognitive disorder, post-concussion syndrome, 
DSM IV 294.9.  A psychiatric diagnosis was deferred to psychiatry.

	b.  The applicant’s most pronounced deficit was seen in the area of memory.  His 
performance on memory testing was consistent with his own self-report and his wife’s 
report he was very forgetful.  He was able to perform adequately on most measures of 
attention and immediate memory, but he was noted to have a very short span of 
memory and forget material rapidly.

	c.  The findings on formal testing were more consistent with memory impairment 
associated with concussion than with a diagnosis of ADHD.  Further, the applicant’s 
history did not suggest ADHD.  However, concussed patients sometimes benefit from 
ADHD medications, so his psychiatrist may want to keep him on his ADHD medication.

	d.  The applicant’s performance on memory measures were so poor as to raise the 
issue of effort and several validity measures were administered wherein he performed 
below cut-off levels on some of these measures, raising issues of validity of the reported 
data, but the overall pattern of performance was similar to that seen on memory testing.

	e.  After reviewing all of the measures, the examiner concluded the performances 
obtained at the evaluation most likely represented a valid reflection of the applicant’s 
then current level of cognitive functioning.

	f.  The findings on psychological assessment indicated continuing affective distress 
and the applicant had been variously diagnosed with adjustment disorder with 
depressed mood, adjustment disorder with disturbance of emotions, and chronic PTSD.

11.  A Medical Record Report for the MEB, dated 10 April 2008, states:

	a.  The applicant underwent an MEB physical on 3 April 2008 and his chief 
complains were chronic right groin pain, low back pain, bilateral hip pain, and bilateral 
knee pain. 

	b.  This document shows the applicant was diagnosed with ADHD in 
November/December 2007 and is treated for ADHD with Adderal.  It also states he 
carries a diagnosis of OSA and is now on a CPAP and receiving desensitization therapy 
as he experiences difficulty wearing the mask due to the residual effects of a recent 
septoplasty (surgical procedure to straighten a deviated nasal septum)

	c.  He was diagnosed with:

*	PTSD
*	degenerative disc disease with chronic low back pain
*	lumbar herniated disc L4-5
*	chronic left knee pain due to medial meniscus tear
*	chronic right knee pain with history of partial meniscectomy (surgical removal of 
meniscus) with aggravation and current chondromalacia (poorly aligned muscles 
and bones around the knee joint known as “runners knee”
*	chronic right groin pain
*	OSA
*	bilateral hip pain
*	status post septoplasty for history of nasal fracture, medically acceptable
*	headache syndrome, non-incapacitating, medically acceptable
*	left inguinal hernia, asymptomatic, medically acceptable
*	ADHD, existed prior to service (EPTS), medically acceptable
*	hypercholesterolemia (high cholesterol), medically acceptable
*	chronic right shoulder pain, minimal and intermittent, medically acceptable
*	hypertension, medically acceptable

	d.  The applicant had multiple medical conditions requiring significant physical profile 
limitations and prevented Army Physical Fitness Test participation or alternate event 
testing.  It was unlikely he would resume active duty ARNG service without continued 
worsening symptoms.

	e.  Based on the above diagnoses and limitations, he was referred to the PEB in 
accordance with Army Regulation 40-501, paragraphs 3-33, 3-39e, 3-39h, 3-41c and 
3-41e(1) for the above listed conditions not deemed medically acceptable.

12.  An undated DA Form 3947 (MEB Proceedings) shows an MEB convened to 
consider the applicant’s diagnoses as listed above on the 10 April 2008 MEB report and 
the findings were as shown on above 10 April 2008 report.  The applicant was referred 
to a PEB.  Page 2 of the form is unsigned by the approving authority and the applicant 
and appears to pertain to a different Solider.  

13.  A DA Form 2473, signed by the attending administrator at BAMC, Fort Sam 
Houston, TX on 3 June 2008 shows:

	a.  The applicant was examined as an outpatient at BAMC on 18 March 2008 for 
PTSD/ADD without hyperactivity.

	b.  The details of the accident state the applicant was injured during combatives 
training on 24 May 2007.

	c.  On 23 June 2008, the injury was considered to have been incurred in the line of 
duty.

14.  A DA Form 2473, signed by the attending administrator at BAMC, Fort Sam 
Houston, TX on 10 July 2008 shows:

	a.  The applicant was examined as an outpatient at BAMC on 18 March 2008 for 
cognitive disorder and post-concussion syndrome

	b.  The details of the accident state the applicant was injured during combatives 
training at Camp Shelby, MS, on 24 May 2007, where the applicant states he was hit on 
the head numerous times by the instructor.

	c.  On 11 July 2008, the injury was considered to have been incurred in the line of 
duty.

15.  A DA Form 199 (PEB Proceedings), shows a PEB convened on 8 August 2008 at 
Sam Houston, TX to consider the applicant’s disabilities.  The form shows:

	a.  The PEB found the applicant physically unfit, recommended a combined disability 
rating of 30 percent, and that his disposition be permanent disability.  

	b.  VASRD codes 8045 and 9304, analogous with cognitive disorder from an event 
in 2000 when he was on active duty and fell from an aircraft and fracturing his nose and 
comorbid PTSD when he sustained testicular injury during training in May 2007, were 
rated at 30 percent.  The applicant reports he has difficulty focusing, which could be due 
to a combination of the ADD and the cognitive disorder.

	c.  VASRD codes 8799 and 8730, analogous with right groin pain was rated as 
moderate and given a 0 percent rating.  10C (the disability resulted from a combat 
related injury) was awarded for his right groin pain because this condition was incurred 
during self-defense training.

	d.  MEB diagnoses 2, 3, 4, 5, and 8 (degenerative disc disease with herniated 
lumbar disc at L4-5, chronic bilateral knee pain, and bilateral hip pain) were not found 
separately unfitting.  There was no evidence of their association with any reported event 
that occurred while on active duty and there were minimal complaints about these 
conditions during the short time he was in training.  There was no evidence they 
interfered with the performance of his duties.  His training was essentially stopped when 
he had the testicular injury.

	e.  MEB diagnoses 10, 11, 12, 14, 15 and 16 (status post septoplasty for a history of 
nasal fracture with left nostril pain, headache syndrome, hypercholesterolemia, chronic 
right shoulder pain, and hypertension) were not unfitting and were not rated.  These 
conditions met medical retention standards and did not pose significant physical profile 
restrictions.

	f.  MEB diagnosis 13 (ADD) is a condition not constituting a physical disability.

	g.  The applicant concurred with the findings and recommendations on 2 September 
2008 and waived a formal hearing of his case.

16.  US. Army Installation Management Command, Headquarters, U.S. Army Garrison, 
Fort Sam Houston Orders 253-0109, dated 9 September 2008, released the applicant 
from assignment and duty because of permanent physical disability effective 28 
November 2008 and placed him on the retired list effective 29 November 2008 with a 30 
percent disability rating.

17.  US. Army Installation Management Command, Headquarters, U.S. Army Garrison, 
Fort Sam Houston Orders 273-0113, dated 29 September 2008, amended the above 
referenced Orders 253-0109, dated 9 September 2008, by changing his effective date 
of retirement to 28 October 2008 and placement on the retirement list to 29 October 
2008.

18.  A DA Form 18 shows the results of revised PEB proceedings that convened on 
21 October 2008, after the issuance of the applicant’s above-referenced retirement 
orders.  The form shows:

	a.  The PEB found the applicant physically unfit, recommended a combined disability 
rating of 80 percent, and that his disposition be placement on the temporary disability 
retired list (TDRL) with reexamination during July 2009.  

	b.  VASRD code 9411, analogous with PTSD resulting from an injury during urban 
self-defense training was temporarily awarded a disability rating of 50 percent.

	c.  VASRD code 8045, analogous with residuals of TBI not elsewhere classified was 
rated at 40 percent.  These residuals rendered the applicant unfit because of the 
inability to remember locations and directions.  Although he also showed some 
problems with attention and concentration, his non-compensable ADHD likely was the 
major factor.  Testing showed a subtle deficit in higher level reasoning without functional 
impact.

	d.  VASRD code 6847, analogous with OSA with daytime hypersomnolence 
(excessive daytime sleepiness) was rated at 30 percent.  It was noted the applicant was 
not using the CPAP.  The requirements for rest and duty hour restrictions were 
inconsistent with the demands of his military occupational specialty (MOS).

	e.  VASRD codes 8799 and 8730, analogous to right groin pain was deemed to limit 
his ability to run and move freely, but was rated as moderate and given a 0 percent 
rating.  Physicians did not feel this was related to his right inguinal hernia.  10C (the 
disability resulted from a combat related injury) was awarded for his right groin pain 
because this condition was incurred during self-defense training.

	f.  MEB diagnoses 2, 3, 4, 5, and 8 (degenerative disc disease with herniated lumbar 
disc at L4-5, chronic bilateral knee pain, and bilateral hip pain) were not found 
separately unfitting.  There was no evidence of their association with any reported event 
that occurred while on active duty and there were minimal complaints about these 
conditions during the short time he was in training.  There was no evidence they 
interfered with the performance of his duties.  His training was essentially stopped when 
he had the testicular injury.

	g.  MEB diagnoses 10, 11, 12, 14, 15 and 16 (status post septoplasty for a history of 
nasal fracture with left nostril pain, headache syndrome, hypercholesterolemia, chronic 
right shoulder pain, and hypertension) were not unfitting and were not rated.  These 
conditions met medical retention standards and did not pose significant physical profile 
restrictions.

	f.  MEB diagnosis 13 (ADD) is a condition not constituting a physical disability.

	g.  The applicant did not sign the form or acknowledge having been advised of the 
findings and recommendations of the PEB as modified or indicate his concurrence or 
non-concurrence.

19.  U.S. Army Physical Disability Agency (APDA) memorandum, dated 21 October 
2008, informed the applicant that a revision of his original PEB results was required and 
the attached DA form 18 described in detail what changes were made.  The applicant 
was requested to indicate his agreement or disagreement by signing the form by 
31 October 2008 and failure to submit an election by the suspense date would be 
treated as concurrence.

20.  His DD Form 214 shows he was honorably retired on 28 October 2008, due to 
permanent physical disability after 1 year, 5 months, and 15 days net active service this 
period.

21.  Subsequent email correspondence from APDA indicates the applicant never 
received the FEDEX packet containing his modified PEB proceedings and the packet 
was returned to the agency on 30 October 2008.

22.  Email correspondence from an official at the APDA with the applicant, dated 
7 November 2008, clarifying the confusion surrounding the applicant’s situation.  
Believing he was still in the Army, which he was not due to amended orders, the APDA 
made a change to his disability findings, but because he was no longer in the Army they 
could not implement the changes.  He was advised that one of his options was to apply 
to the ABCMR to request his rating be changed to 80 percent with placement on the 
TDRL (in accordance with the revised PEB), should he choose to do so.

23.  A VA Rating Decision, dated 3 February 2009, shows the applicant was awarded 
the following service-connected disability ratings for the following conditions:

*	major depressive disorder, severe and anxiety disorder, not otherwise specified, 
70 percent
*	OSA, 50 percent
*	right knee injury status post medial meniscus release, 20 percent
*	right hip osteoarthrosis, 10 percent
*	left hip osteoarthrosis, 10 percent
*	traumatic arthritis of the lumbar spine with intervertebral disc disease, 10 percent
*	let knee horizontal/posterior horn tear, with extension to superior surface only, 10 
percent
*	post traumatic headaches, 10 percent
*	allergic rhinitis and deviated nasal septum, status post-surgical correction with 
residual mucositis, 0 percent
*	hypertension with hypercholesterolemia, 0 percent
*	small bilateral inguinal hernia, 0 percent
*	erectile dysfunction, 0 percent
*	hydrocele and varicocele, right testicle (claimed a crunch injury external genitalia 
testis), 0 percent
*	post concussive syndrome, 0 percent
*	neuralgia (pain along a nerve), right inguinal nerve, 0 percent

24.  A DA Form 2860 (Claim for CRSC), dated 14 February 2014, shows the applicant 
submitted a claim for CRSC for the following disabilities incurred while simulating war at 
Camp Shelby, MS, when he was physically assaulted during training for deployment in 
support of OIF:

*	traumatic arthritis of the lumbar spine with intervertebral disc disease
*	post traumatic headaches
*	right hip osteoarthrosis
*	left hip osteoarthrosis
*	right knee injury status post medical meniscus release
*	left knee horizontal/posterior horn tear with extension to superior surface only
*	OSA

25.  A letter from HRC, CRSC office, dated 17 June 2014, informed the applicant his 
claim for CRSC for the following disabilities was denied for the following reasons:

*	traumatic arthritis of the lumbar spine with intervertebral disc disease, no 
documentation in claim to show that a combat-related event caused condition
*	post traumatic headaches, no documentation in claim to show that a combat-
related event caused condition
*	right hip osteoarthrosis, no documentation in claim to show that a combat-related 
event caused condition
*	left hip osteoarthrosis, no documentation in claim to show that a combat-related 
event caused condition
*	right knee injury status post medical meniscus release, documentation does not 
show accident or incident to connect disability to a combat-related event
*	left knee horizontal/posterior horn tear with extension to superior surface only, 
documentation does not show accident or incident to connect disability to a 
combat-related event
*	OSA, currently there is no connection between combat and sleep apnea noted by 
the VA

26.  On 25 June 2014, the applicant requested reconsideration of his CRSC claim, 
providing copies of his LOD and PEB documentation.

27.  A letter from HRC, CRSC office, dated 28 August 2014, informed the applicant his 
request for CRSC for the following disabilities was denied for the following disabilities 
for the following reasons:

*	traumatic arthritis of the lumbar spine with intervertebral disc disease, previously 
requested; no new evidence provided to show combat-related event caused 
condition
*	post traumatic headaches, previously requested; no new evidence provided to 
show combat-related event caused condition
*	right hip osteoarthrosis, previously requested; no new evidence provided to show 
combat-related event caused condition
*	left hip osteoarthrosis, previously requested; no new evidence provided to show 
combat-related event caused condition
*	right knee injury status post medical meniscus release, previously requested; no 
new evidence provided to show combat-related event caused condition
*	left knee horizontal/posterior horn tear with extension to superior surface only, 
previously requested; no new evidence provided to show combat-related event 
caused condition
*	OSA, previously requested; no new evidence provided to show combat-related 
event caused condition
*	erectile dysfunction, this condition is mentioned due to the special monthly 
compensation (SMC)that is addressed on your VA Rating Decision; SMC-01 is 
not combat related and is not payable under CRSC; VA associated this SMC to a 
disability that was found not combat-related
*	major depressive disorder, severe and anxiety disorder, not otherwise specified, 
no official evidence indicating a combat award or exposure to weapons, 
explosions, tanks or aircraft in your claim

28.  On 16 September 2014, the applicant’s Representative in Congress submitted an 
inquiry into the applicant’s PEB ratings and CRSC denials.

29.  On 22 September 2014, the applicant applied to the ABCMR, requesting a 
correction of his records to show he was permanently retired from the Army with a 
physical disability rating of 80 percent.

30.  HRC, Special Compensation Branch responded to the applicant’s Representative in 
Congress via letter dated 1 October 2014, stating their office completed a 
comprehensive review of the applicant’s CRSC claim and supporting documentation.  
They determined that although the applicant was physically assaulted by a training 
instructor during a training event at Camp Shelby, MS, the attack itself does not qualify 
as a combat-related event nor was it part of pre-deployment training.  They found no 
evidence to support any of the previously disapproved conditions being combat-related; 
therefore, the earlier denials of his application were upheld.

31.  A letter from HRC, CRSC Branch, dated 1 October 2014, informed the applicant 
that after reviewing all documentation in support of his CRSC claim, they were unable to 
overturn the previous adjudications.  He was advised to apply to the ABCMR if he chose 
to appeal this decision.

32.  A VA Rating Decision, dated 14 October 2015, shows the applicant received a 
combined service-connected disability rating of 100 percent effective 9 June 2014 for 
his claimed disabilities.

33.  On 18 February 2016, the Board determined the evidence presented was sufficient 
to warrant a recommendation for relief.  As a result, the Board recommended correction 
of the applicant’s records by:

	a.  releasing him from active duty on 28 October 2008 based on physical disability 
and placing him on the TDRL with a disability rating of 80 percent effective 20 October 
2008, 

	b.  removing him from the TDRL on 28 October 2013 and transferring him to the 
PDRL with a disability rating of 80 percent, effective 29 October 2013, and

	c.  paying him any pay and allowance he may be due as a result of these 
corrections.

34.  An APDA letter to the applicant, dated 5 May 2016, informed him about corrections 
to his disability retirement records and retirement benefits as directed by the ABCMR.  

	a.  He was informed his original retirement order was revoked, an order placing him 
on the TDDRL with an 80 rating was published and made retroactive to the date he 
retired from the Army.  A DD Form 215 was issued, correcting his original DD Form 214 
to reflect his placement on the TDRL effective 28 October 2008 in lieu of placement on 
the PDRL.

	b.  A subsequent order removing him from the TDRL and permanently retiring him 
effective 29 October 2013 was published.  He was informed his retired pay and 
allowances would be changed accordingly based on these changes.

35.  The applicant requested reconsideration of his prior CRSC claim on 23 May 2016.   
On 11 January 2017, HRC, CRSC office informed the applicant via letter that he 
received a final CRSC determination letter dated 1 October 2014.  That decision was 
final and CRSC cannot process his request for reconsideration.  His only recourse was 
to apply to the ABCMR.

36.  On 8 January 2018, the Army Review Boards Agency (ARBA) senior medical 
advisor provided an advisory opinion, which states:

	a.  The applicant’s clinical records and medical history support severe major 
depressive disorder and anxiety disorder existed at the time of his military service, also 
as rated by the VA Compensation and Pension Exam for disability compensation 
purposes.  PTSD is listed by the MEB and rated by the PEB and he failed medical 
retention standards for these conditions.

	b.  He did not meet medical retention standards in accordance with chapter 3, Army 
Regulation 40-501 (Standards of Medical Fitness) for PTSD, degenerative disc disease 
which chronic low back pain, lumbar herniated disc L4-5, chronic left knee pain due to 
medical meniscus tear, chronic right knee pain with a history of partial meniscectomy 
with aggravation and current chondromalacia, chronic right groin pain due to testicular 
trauma, OSA not tolerating CPAP, bilateral hip pain, and cognitive disorder.

	c.  The PEB found the following conditions not meeting medical retention standards, 
as unfitting:

*	PTSD
*	residuals of TBI not elsewhere classified
*	OSA with daytime hypersomnolence
*	right groin pain

	d.  The PEB found the following conditions, not meeting retention standards per the 
MEB, as not separately unfitting:

*	degenerative disc disease with herniated lumbar disc at L4-5
*	chronic bilateral knee pain
*	bilateral hip pain

	e.  The PEB’s determination of unfitting and not unfitting are congruent with the 
medical history and documentation.  The applicant’s military/Department of Defense 
diagnosis of PTSD did not meet the Diagnostic and Statistical Manual (DSM) IV criteria 
at the time of physical disability evaluation system processing.  The applicant’s 
concurrent VA diagnoses for purposes of disability compensation is severe major 
depressive disorder and anxiety disorder; it is NOT PTSD.

	f.  The applicant met medical retention standards for status post septoplasty for 
history of nasal fracture with left nostril pain, headache syndrome non-incapacitating, 
right inguinal hernia, ADHD EPTS, hypercholesterolemia, chronic right shoulder pain 
minimal and intermittent, and hypertension and other physical, medical, dental and/or 
behavioral conditions in accordance with Army Regulation 40-501.  

	g.  The PEB determined the following conditions were not unfitting:  status post 
septoplasty for history of nasal fracture with left nostril pain, headache syndrome, 
hypercholesterolemia, chronic right shoulder pain, and hypertension.  The diagnosis of 
ADHD is a condition (developmental, EPTS) not constituting a physical disability and is 
NOT a ratable condition for disability determination purposes.  The PEB’s determination 
of not unfitting or not a physical disability are congruent with the medical history and 
documentation.

	h.  The applicant’s medical conditions were duly considered during medical 
separation processing.  A review of the available documentation found no evidence of a 
medical disability or condition which would support a change to the character, reason, 
rated conditions, disability determination, disability rating, and/or CRSC determination 
for the discharge in this case.

	i.  CRSC:  A review of the medical history and medical records does not support the 
applicant’s request that his conditions (PTSD, residuals of TBI, OSA, and degenerative 
disc disease with herniated disc at L4-5) meet the eligibility required for CRSC.  The 
ARBA senior medical advisor recommended denial of the applicant’s request to 
designate some or all of his conditions as combat-related for the purposes of CRSC.

	j.  PEB corrected to reflect a 10 percent finding awarded to all disabilities (PTSD, 
residuals of TBI, OSA, and degenerative disc disease with herniated lumbar disc as L4-
5, as resulting from a combat related injury:  The PEB findings do not require correction.  
The conditions were found by the PEB to be a result of a combat related injury as 
defined in Title 26, U.S. Code, section 104.  The ARBA senior medical advisor 
recommended denial of the applicant’s request.

	k.  ADHD:  The applicant was diagnosed with ADHD in the fall of 2007 and stared 
initially on Ritalin (methylphenidate) therapy later changed to Adderall 
(dextroamphetamine).  The applicant continues treatment for ADHD as documented in 
the VA system through the end of 2017.  DHD is a “clinical” diagnosis; there is no 
diagnostic test.  The applicant was/is taking stimulant medication for de facto treatment 
of chronic attention and concentration problems.  His childhood academic history 
(repeating 3rd grade, “C” average, and lack of interest in school work over sports is 
consistent behavioral evidence supporting a childhood and now adult diagnosis of 
ADHD.  There is no medical rationale for the applicant’s request.  The ARBA senior 
medical advisor recommends denial of the applicant’s request to remove all references 
to ADHD in his military disability documentation.

	l.  Correct the PEB to show the true description for each separate and distinct 
disability:    The purpose of the PEB documents, i.e. the DA Form 199, is administrative 
tracking and documentation of disability determinations.  Exact or detailed descriptions 
of each condition are not required nor desired.  It is not a medical record used for 
treatment purposes.  The ARBA senior medical advisor recommends denial of the 
applicant’s request for administrative changes to the document.

	m.  Correct the PEB “percentage and description” for OSA to show he was 
prescribed a CPAP machine and required to use it and to reevaluate his OSA at a 50 
percent rating, to meet the VASRD description for a Soldier “required” to use the CPAP:  
It is unclear why the applicant’s OSA was found in the LOD after he had a nasal/facial 
injury that was surgically corrected in September 2007 with clearly documented patent 
and unobstructed upper airway.  The applicant’s OSA is a lower airway problem, not 
affected by his 24 May 2007 injury.  This condition should not have been found in the 
LOD and should not have been rated.  The condition existed before the applicant’s 
injury on 24 May 2007 and was not a result of the injury.  Contributing factors to his 
OSA symptoms include his 40 pound weight gain in the months following the 24 May 
2007 injury.  

	n.  Regardless, the PEB rated the applicant’s militarily significant symptom, i.e. 
daytime hypersomnolence (secondary to OSA) at 30 percent.  The applicant had a 
CPAP machine but was not using it every night and/or all night due to numerous 
problems with the face mask fitting related to his 24 May 2007 nasal fracture (and 
secondarily due to an EPTS dental appliance/bridge with maxillary sinus pain from a 
childhood injury).  As a ‘separately’ unfitting condition, OSA with CPAP options include 
MOS reclassification.  Having a CPAP machine and requiring a CPAP machine for OSA 
symptoms are not the same thing.  Failure to comply with prescribed treatment (weight 
loss, stop smoking/tobacco use, and consistent device usage) also factor into the rating 
calculation.  The applicant’s rating was appropriate for the diagnosis, severity, and 
treatment compliance at the time of this condition.  The ARBA senior medical advisor 
recommended denial of the applicant’s request for an increase in the PEB’s rating for 
OSA with hypersomnolence from 30 percent to 50 percent.  A copy of the complete 
medical advisory was provided to the Board for their review and consideration.

37.  The applicant was provided a copy of the advisory opinion on 11 January 2018 and 
given an opportunity to submit comments, but he did not respond.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and a medical advisory opinion.  The Board considered the 
applicant’s statement, his medical conditions, his Disability Evaluation System 
processing and outcomes, previous ABCMR decisions and the conclusions of the 
medical advising official.  The Board reviewed the applicant’s description and the 
circumstances of his injuries and determined that they were not the direct result of 
armed conflict, especially hazardous military duty, training exercises that simulate war, 
or caused by an instrumentality of war.

2.  The Board considered the multiple reviews thru the disability evaluation system, his 
VA ratings, the previous grants of relief by the ABCMR, the statement and documents 
provided by the applicant and the conclusions of the advising official.  The Board 
concurred with the conclusions of the medical advising official and found insufficient 
evidence: to warrant a change to item 10C of the most recent PEB proceedings; to 
remove references of ADHD (EPTS) from his PEB proceedings or; to change the 
current percentage and description of disability conditions, to include OSA, reflected on 
the PEB proceedings effective at the time of his medical retirement.   

3.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:		:	:	GRANT FULL RELIEF

:		:	:	GRANT PARTIAL RELIEF

:		:	:	GRANT FORMAL HEARING

:		:	:	DENY APPLICATION


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.


		  
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.


ADMINISTRATIVE NOTE(S):

Not Applicable




REFERENCES:

1.  Title 10, U.S. Code, section 1413a, as amended, established CRSC.  CRSC 
provides for the payment of the amount of money a military retiree would receive from 
the VA for combat-related disabilities if it were 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.  CRSC eligibility includes disabilities incurred as 
a direct result of:

*	armed conflict (gunshot wounds, Purple Heart, etc.)
*	training that simulates war (exercises, field training, etc.)
*	hazardous duty (flight, diving, parachute duty)
*	an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.)

2.  The Office of the Under Secretary of Defense for Military Personnel Policy provided 
guidance for processing CRSC appeals.  This guidance stipulated that in order for a 
condition to be considered combat-related, there must be official military evidence of the 
condition having a direct, verifiable, causal relationship to war or the simulation of war or 
caused by an instrumentality of war.  

3.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) sets forth policies, responsibilities, and procedures in determining whether 
a Soldier is unfit because of physical disability to reasonably perform the duties of his or 
her office, grade, rank, or rating.  In each case, it is necessary to compare the nature 
and degree of physical disability present with the requirements of the duties the Soldier 
may reasonably be expected to perform because of his or her office, grade, rank, or 
rating.  Separation by reason of disability requires processing through the DES.

	a.  Chapter 3 (Policies), paragraph 3-5 (Use of the VASRD), shows that only the 
unfitting conditions or defects and those which contribute to unfitness will be considered 
in arriving at the rated degree of incapacity warranting retirement or separation for 
disability.  Any non-ratable defects or conditions will be listed on the DA Form 199, but 
will be annotated as non-ratable.

   b.  Chapter 4 (Procedures), section V (Review and Confirmation of Physical 
Evaluation Board Action), paragraph 4-22 (Review by the USAPDA), shows in pertinent 
part:
   
    	(1)  Based upon review of the PEB proceedings, USAPDA may issue revised 
findings providing for a change in disposition of the Soldier or change in the Soldier's 
disability rating.

    	(2)  USAPDA will take the following actions when modifying PEB findings and 
recommendations.

    	      (a)  Furnish the Soldier (next-of-kin or legal guardian) a copy of the revision 
by certified mail, return receipt requested.  The letter of transmittal will state the reason 
for the change.  Information copies will be provided to the PEBLO and to the Soldier's 
counsel.

    	      (b)  Advise the Soldier (next-of-kin or legal guardian) that his or her election 
or rebuttal to the revision must be received by USAPDA within 10 days from the 
Soldier's receipt of the revised findings unless a request for extension is received and 
approved within the same timeframe.

    	     (c)  Return the case records to the PEB if the Soldier is eligible for and 
requests a formal hearing.

    	      (d)  Record the revised findings on DA Form 199-2 (USAPDA Revised PEB 
Proceedings).

    	(3)  If the Soldier fails to submit an election within the allotted time, USAPDA will 
deem that the Soldier has waived his or her right to file a rebuttal and take final action 
on the case.

   c.  Chapter 7 (TDRL) provides in:

    	(1)  paragraph 7-2 (Reasons for placement on the TDRL) that a Soldier's name 
may be placed on the TDRL when it is determined that the Soldier is qualified for 
disability retirement under Title 10, U.S. Code, section 1201, but for the fact that his or 
her disability is determined not to be of a permanent nature and stable.

    	(2)  paragraph 7-6 (Prompt processing), to prevent the Soldier suffering severe 
financial and other hardships, processing delays will be avoided.  All portions of the 
medical examination will be conducted on a priority basis.  All involved agencies and 
personnel will ensure that cases of Soldiers nearing expiration of 5-year TDRL tenure 
are identified and given priority processing.

    	(3)  paragraph 7-11 (Disposition of the TDRL Soldier), the USAPDA will remove a 
Soldier from the TDRL on the fifth anniversary of the date the Soldier's name was 
placed on the list, or sooner on an approved recommendation of a PEB.

4.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has a disability rated at least 30 percent.

5.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation 
for disabilities that were incurred in or aggravated by active military service.  However, 
the award of a VA rating or a comparatively higher VA rating does not establish error or 
injustice on the part of the Army.  The Army only rates conditions determined to be 
physically unfitting at the time of discharge that disqualify the Soldier from further 
military service.  The VA does not have the authority or responsibility for determining 
physical fitness for military service.  The VA awards disability ratings to veterans for 
service-connected conditions, including those conditions detected after discharge, to 
compensate the individual for loss of civilian employability.  These two government 
agencies operate under different policies.  Unlike the Army, the VA can evaluate a 
veteran throughout his or her lifetime, adjusting the percentage of disability based upon 
that agency's examinations and findings.


ABCMR Record of Proceedings (cont)	AR20170016486

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