IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20170019789 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20170019789 APPLICANT'S REQUEST AND STATEMENT: 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 his lower back and both knee injuries. 2. The applicant states: a. The CRSC decision has his lower back and left and right knee injuries rated as non-combat-related when they were incurred in hostile areas, during training for combat, and during combat missions performing convoy security. b. He feels the CRSC decision was incorrect because of his Department of Veterans Affairs (VA) rating stating that the injuries were service-connected, but not combat-connected. The 20 January 2004 version of Title 10, U.S. Code (USC), section 1413a, states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule for Rating Disabilities (VASRD) that was incurred: * as a direct result of armed conflict * while engaged in hazardous service * in the performance of duty under conditions simulating war, or * through an instrumentality of war c. Title 10 also states that the Military Departments shall record for each disability determined to be combat-related which of the aforementioned circumstances qualified the disability as combat-related, A determination of combat-relatedness will be made with respect to each separate disability with an assigned medical diagnosis from the VASRD. A retiree may have disabilities that are not combat-related. Such disabilities will not be considered in determining eligibility for CRSC or the amount of CRSC payable. d. Doctors from the Camp Atterbury Medical Center stated that the applicant's back injuries were the result of a jackhammer effect while on combat duty and hazardous duty in war. His right knee was injured at a qualification range while zeroing. It is very important for an infantry Soldier to qualify with their weapon to ensure they remain alive in combat. His left knee was injured while he was on a training mission in Egypt, which is considered a hazardous zone since he received hazardous duty pay on assaulting a trench line, which once again is used or could be used in armed conflict or a hazardous duty zone. e. He has served both in the Army and Army National Guard (ARNG) as an infantry Soldier for a combination of 21 years, 10 months, and 6 days, which also meets the requirement for CRSC. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * Standard Form (SF) 558 (Emergency Care and Treatment) * DD Form 689 (Individual Sick Slip) * two SFs 600 (Medical Record – Chronological Record of Medical Care) * Diagnostic Imaging Report * DA Form 2173 (Statement of Medical Examination and Duty Status) * Line of Duty Determination memorandum * five Advanced Pain Management Addendums * Physical Restriction and Limitation Form * DA Form 3349 (Physical Profile) * National Guard Bureau (NGB) Line of Duty Determination memorandum * DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement) * Medical Evaluation Board (MEB) Tracking Office Request Form * Annex A (MEB Document Checklist) * Permanent Physical Disability Retirement memorandum * March 2016 CRCS decision letter 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * five DD Forms 214 (Certificate of Release or Discharge from Active Duty) * MEB Narrative Summary * August 2014 VA Rating Decision * PEB Proceedings * Retirement Orders * NGB Form 22 (Report of Separation and Record of Service) * six Army CRSC decision letters * Army Review Boards Agency (ARBA) Medical Advisory Opinion REFERENCES: 1. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating. The regulation states: a. A combat-related injury is a personal injury or sickness that a Soldier incurs under one of the following conditions: as a direct result of armed conflict while engaged in extra hazardous service, under conditions simulating war, or which is caused by an instrumentality of war. b. An instrumentality of war is a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury. It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service. This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service. 2. CRSC, as established by Title 10, U.S. Code (USC), 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% disabling. Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return a portion of the waived retired pay to the military retiree. 3. Title 10, USC, section 104, also defines a "combat-related injury" as a personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra-hazardous service, under conditions simulating war; or which is caused by an instrumentality of war. 4. The HRC, Special Compensation Branch webpage, shows the CRSC Division is responsible for verifying a claimant’s injuries are directly connected to combat or combat-related operations as defined by Department of Defense CRSC Program Guidance, dated 15 April 2004. It provides the following criteria, terms, definitions, and explanations that apply to making combat-related determinations in the CRSC program: a. An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury. b. Incurrence during an actual period of war is not required. However, there must be a direct, causal relationship between the instrumentality of war and the disability. The disability must be incurred incident to a hazard or risk of the service. c. A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service because of such diverse causes as wounds sustained from a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordnance, vehicles, or material. 5. With respect to VA awards of service-connection for presumptive conditions under Title 38, USC, section 1112(a) and post-traumatic stress disorder (PTSD) (PTSD VASRD Code 9411), the Military Department must independently determine the relationship between that disability and the qualifying criteria. Military Departments are not bound by any presumption if there is documentary information that the disability is not combat-related. The Military Departments shall base their determinations on such information. An uncorroborated statement in a record that a disability is combat-related will not, in and of itself, be considered determinative for purposes of meeting the combat-related standards for CRSC prescribed herein. CRSC determinations must be made on the basis of the program criteria. DISCUSSION: 1. Having prior Regular Army enlisted service, the applicant enlisted in the Michigan ARNG (MIARNG) on 25 May 1996 and he held military occupational specialty 11B (Infantryman). 2. He entered active duty on 9 October 2001, in support of Operation Noble Eagle. He was honorably released from active duty (REFRAD) on 30 May 2002 and was transferred to a MIARNG unit. 3. He entered active duty on 29 October 2003, in support of Operation Enduring Freedom (OEF). 4. He provides: * SF 558 showing he received medical care for right knee pain on 20 November 2003, as a result of slipping off of a bus * DD Form 689 showing he was placed on sick call from 20 to 25 November 2003, for his right knee * Two SF's 600 showing he was seen in the Physical Therapy Clinic and received medical care for left knee pain from 21 to 28 June 2004, as a result of hitting his knee on the ground 5. He served in Egypt from 7 January to 21 July 2004. He was honorably REFRAD on 10 August 2004 and was reverted to the MIARNG. 6. He entered active duty on 5 January 2008, in support of Operation Iraqi Freedom. He served in Iraq/Kuwait from 1 April to 16 December 2008. He was honorably REFRAD on 11 February 2009 and was transferred to a MIARNG unit. 7. He entered active duty on 23 March 2009, in support of OEF. 8. He also provides: * SF 600 showing he received medical care at Camp Atterbury Medical Clinic for lower pack pain on 11 August 2009 * DA Form 2173 showing he received medical care for chronic lower back pain on 14 August 2009. * An undated Line of Duty Determination memorandum stating his lumbar spinal stenosis that occurred during OEF was approved as "In Line Of Duty" * Diagnostic Imaging Service Report showing he underwent a Magnetic resonance imaging (MRI) of the lumbar spine on 19 August 2009, and the impression revealed a mild disc bulge * Advanced Pain Management Addendum showing he underwent a MRI of the lumbar spine on 19 January 2010 * SF 600 showing he received follow-up care for lower back pain on 22 February 2010 * Five Advanced Pain Management Addendums, dated 13 April, 29 June, 22 September, 15 November, and 21 December 2010, which provided homecare discharge instructions for his Epidural Steroid Injections * Two Physical Restrictions and Limitations Forms, dated 20 January 2011, showing he was diagnosed with lumbar spine stenosis and was dispositioned to full duty on the same date * DA Form 3349, dated 25 February 2011 showing he was issued a permanent profile for spinal stenosis 9. He was honorably REFRAD on 22 March 2011 and was transferred to a MIARNG unit. 10. He further provides: * Line of Duty Determination memorandum, dated 31 March 2013, stating his right knee strain that occurred during OEF was approved as "In Line Of Duty" * DA Form 7552 and MEB Tracking Office Request Form, dated 17 December 2013, showing he was pending separation under the PDES 11. The applicant's MEB Proceedings is not available; however, his records contain an MEB Narrative Summary showing he was referred to a MEB for PTSD, left carpal tunnel syndrome, lumbar spinal stenosis with the following claimed conditions: ganglion cyst left shoulder, rash (groin area), sleep apnea, and sinusitis. It was determined his diagnosis of PTSD did not meet medical retention standards and the other medical diagnoses met medical retention standard. 12. A VA Rating Decision, dated 29 August 2014, shows he was granted service-connected compensation for PTSD, carpal tunnel, and sinusitis. 13. A PEB convened on 10 September 2014, and determined his diagnosis of PTSD was attributed to combat stress while deployed to Iraq. The PEB determined the other medical conditions met medial retention standards. The PEB found him physically unfit and recommended his permanent disability retirement with a rating of 50 percent. He waived his right to a formal hearing and concurred with the PEB. 14. He was honorably retired from the MIARNG on 8 December 2014, by reason of physical disability. His NGB Form 22 shows he completed over 21 years of service for retired pay. 15. His records contain four CRSC decision letters, dated 11 February, 24 March, 14 May, and 17 June 2015, wherein he was advised that he was found that he did not currently meet eligibility requirements and he must meet the following criteria: * receiving military retired pay for one of the following: 20 year Retiree, Medical chapter 61, Temporary Early Retirement Act, and Temporary Disabled Retirement List Retiree * have a 10 percent or greater VA rated injury that was combat-related * VA waiver off-setting retired pay 16. His records contain and he also provides a copy of a letter, dated 1 March 2016, wherein HRC, CRSC Branch, approved his CRSC claim for PTSD. HRC denied his claim for left and right knee condition/injury and back conditions, carpal tunnel syndrome, and chronic sinusitis and stated no evidence was found in the claim to show that a combat-related event caused the conditions. In a letter, dated 12 December 2016, he was again advised of the same. 17. In an advisory opinion, dated 5 March 2018, the ARBA Senior Medical Advisor, reviewed the applicant's records to determine if there were medical conditions not considered during medical separation processing. The ARBA medical advisor reiterated the applicant's military service and stated: a. A review of the applicant's electronic medical record (AHLTA) revealed clinical encounters from January 2008 through March 2011 and clinical notes from December 2010 to March 2014. There were no AHLTA radiology reports. The applicant's paper Service Treatment Record was not available for review and his Interactive Personnel Electronic Records Management System records were reviewed. b. The applicant did not meet medical retention standards for PTSD in accordance with chapter 3, AR 40-501 (Standards of Medical Fitness) and following the provisions set forth in AR 635-40 that were applicable to his era of service. c. The applicant met medical retention standards for his medical conditions to include mild to moderate lumbar strain, lumbar spinal stenosis, and left and/or right knee strain/pain in accordance with chapter 3, AR 40-501, and the provisions of AR 635-40 that were applicable to his period of service. His medical conditions were duly considered during the medical separation processing. d. A review of the available documentation found no evidence of a medical disability or condition that would support a change in his disability determinations and ratings and/or CRSC determination(s). 18. The advisory opinion was forwarded to the applicant for his review and rebuttal on 6 March 2018. He did not respond. 19. The applicant’s contentions and the documentation he submitted were carefully considered. 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 operations, or while performing especially hazardous duties such as parachuting or scuba diving. 20. HRC denied his claim for CRSC for his left and right knees and lower back injuries based on no documentation showing an accident or incident connecting the disability to a combat-related event. 21. There is no available evidence linking the identified conditions to a combat- related event or that these conditions are combat-related. The evidence must show or connect his lower back and left and right knees injuries to a combat- related event to support the reversal of the decision to deny him CRSC. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170019789 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2