ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 13 August 2020 DOCKET NUMBER: AR20180007907 APPLICANT REQUESTS: reconsideration for eligibility for combat-related special compensation (CRSC). APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel's Request for Reconsideration of CRSC * Counsel Letter * Personal Statement * Self-authored Note * NGB Form 22 (Report of Separation and Record of Service) * Medical Records * Medical Evaluation Board (MEB) Consultation * Physical Evaluation Board (PEB) * 2 x Results of Traumatic Brain Injury (TBI) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2 x DD Forms 215 (Correction to DD Form 214) * 5 x Department of Veterans Affairs (VA) Ratings * Statement in Support of VA Claim * Application for Review by the Physical Disability Board * Counsel Brief regarding Review by Physical Disability Board * Compensation and Pension Examination * Retirement Orders * CRSC Claim * 4 x letters from CRSC Branch * Election of Compensation in lieu of Retired pay * CRSC Reconsideration Request * Entitlement Data * Review Evaluation of TBI * Army Board for Correction of Military Records (ABCMR) case AR20120013247 * Privacy Act Waiver * CRSC Personal Statement * Beneficiaries on Record * Self-Authored notes on 5 January 2012 CRSC Branch letter 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 AR20120013247 on 24 May 2013. 2. The applicant, through counsel, states: a. The applicant seeks CRSC pursuant to 10 US Code (USC) Section 1413a. The applicant served honorably in the US Army between July 1998 and March 2006. He was medically retired from the US Army due to permanent disability. The VA has ranked the applicant with five disabilities of which meet the criteria for CRSC: (1) Posttraumatic Stress Disorder (PTSD), with major depressive disorder and panic disorder with a disability rating of 100 percent. (2) Sleep apnea with a disability rating of 50 percent. (3) TBI with a disability rating of 40 percent. (4) Post TBI headaches with a disability of 30 percent. b. The applicant fulfills the requirements for CRSC, as stated in 10 USC Section 1413a(c). He is entitled to military retired pay and he incurred combat-related disabilities as the direct result of his service in Operation Iraqi Freedom (OIF). c. The applicant enlisted in the Army in July 1998. He served as a Combat Engineer on multiple deployments in OIF, Bosnia, Germany, and Kosovo. Due to his honorable service, the applicant was awarded multiple awards and medals including the Army Commendation Medal, Army Achievement Medal (3rd Award), Army Good Conduct Medal (2d Award), National Defense Service Medal, Armed Forces Expeditionary Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, and Non-Commissioned Officer Professional [Development Ribbon]. d. Two sets of requirements have been promulgated for a Veteran to qualify for CRSC: (1) the program requirements issued by the Department of Defense (DoD) and (2) the statutory requirements found under 10 USC Section 1413a. The applicant fulfills both sets of requirements. e. The DoD issued guidelines in 2004 and 2008 detailing the program qualifications for CRSC. According to these guidelines, a CRSC applicant must meet each of the following conditions to meet the program CRSC eligibility requirements: (1) The applicant has been medically retried; (2) The applicant is in military retired status; (3) The applicant is entitled to military retired pay; notwithstanding that such retired pay may be reduced due to receipt of VA disability compensation; and (4) The applicant is entitled to VA disability compensation for a disability that is rated by the VA of at least 10 percent disabling as provided under Title 38 USC. f. The applicant meets all the foregoing eligibility requirements; (1) He was permanent retired from the Army on 1 March 2006 as the result of being found unfit for continued military service due to certain of his Combat Injuries; (2) He is in military retired status; (3) He is entitled to military retired pay; and (4) He is entitled to VA disability compensation for his service-connected Combat Injuries, which each have a disability rating of 10 percent or greater. g. Title 10 USC Section 1413a states, "The secretary concerned shall pay to each eligible combat related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat-related disability of the retiree determined under subsection(b)....an eligible combat-related disabled uniformed services retiree....is a member of the uniformed service who - (1) is entitled to retired pay; and (2) has a combat-related disability." h. The applicant is permanently retired from the military due to his Combat Injuries. He was entitled to retired pay; however, he waived his retired pay to receive VA disability compensation. i. Pursuant to Title 10 USC Section 1413a(e)(2)(A), a combat-related disability includes a disability that is compensable under the laws administered by the Secretary of VA and has incurred as a direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war or by means of instrumentality of war. j. The DoD's 2004 Program Guidance defined "Direct Result of Armed Conflict" as: (i) the disability was incurred in the line of duty as the direct result of armed conflict and (ii) there must be a definite causal relationship between the armed conflict and the resulting disability. "Armed Conflict" was further defined as "a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Servicemembers are engaged with a hostile or belligerent nation, faction, force, or terrorists." k. The applicant experienced, was involved in and has had to live with the repercussions of being in "armed conflict"(as defined in Department of Defense’s 2004 Program Guidance) in OIF. He was deployed in Iraq for12 months February 2004 to February 2005. In Iraq, he served as a Combat Engineer. According to the applicant, they mostly escorted people and took care of improvised explosive devices (IED). When the explosive ordinance disposal wasn't there, they had to go out and investigate route clearance. l. A Clinical Psychologist (CP) reported the following during a Trauma Recovery Program in which the applicant participated in 2016 to obtain help for his Combat Injuries: (1) In the Combat or exposure to war zone category, the applicant reported when he was a 50 Caliber (Cal) gunner in Iraq, he was also the team leader. He was always on the 50 Cal because he tried to watch out for his Soldiers if something happened. One day they were attacked by a Rocket Propelled Grenade (RPG) and small arms fire. The driver was inexperienced and wasn't driving that long. He took off real fast and the vehicle flipped over. The applicant went flying. That's where he sustained the TBI the first time. He was about 25 years old. They were combat engineers, so basically they had to do route clearance and detonate the IEDs because the Explosive Ordinance Disposal (EOD) team always had the big missions to go to. The second time they were on a convoy, one of his Soldiers was a 50 Cal gunner. He never listened and the applicant had disciplinary problems with him. They got attacked, and it was coming from all directions. They were trying to get out of the kill zone. The applicant asked the 50 Cal gunner if he was all right and he looked at the Soldier, and all of a sudden a bunch of blood was pouring on the applicant. (2) In the Severe Human Suffering category, the applicant stated they used to always tell the Iraqi Security Forces what to do and try to get them so they could help. So they could defend stuff on their own. They were joking around and not taking stuff seriously. There was one checkpoint they came upon and saw the Iraqi Security Forces were messing around, and they heard something go off that was really loud. They came back and could hear people screaming. It was a truck that was a Vehicle Borne Explosive Device (VBED). There were body parts and all that stuff around. They had to pick it up, and there were people screaming. m. The CP's reporting has been reinforced by medical professionals who treated the applicant as well as a fellow compatriot of the applicants. (1) One doctor stated the 31 year old applicant stated he was in a Humvee in Iraq in 2004, and it was attacked by an RPG. The RPG explosion was about 50 feet away from the vehicle. The applicant was wearing body armor and his Kevlar. After the explosion, he lost consciousness for about 2 minutes. He was disoriented and confused for less than 30 minutes. The applicant states he had posttraumatic amnesia for two days. He was hospitalized in a Baghdad hospital for two days. Since then, he has developed a headache. He denied any history of headaches prior to that. (2) Another doctor stated, after being attacked with an RPG, the applicant was the gunner, the vehicle rolled over at a high speed and he was rendered unconscious. He woke up several minutes later and was taken to the Baghdad Hospital. He was diagnosed with a mild concussion and had a left leg sprain. He was on bed rest for approximately two weeks and returned to full duty to complete his deployment. (3) A sergeant first class retired, stated during a patrol in Iraq on 13 December 2004, he witnessed an accident involving the applicant. The applicant was a gunner from his platoon. The patrol proceeded at a high rate of speed. The driver lost control of the vehicle the applicant was in. The applicant was thrown from the vehicle and hit his head on the 50 Cal gunner mount causing him to be unconscious for several minutes. He was admitted to the Baghdad Hospital by helicopter. He was told he suffered from mild TBI and back injury. The applicant continues to have memory loss, headaches, and difficulty concentrating. (4) A CP states the applicant was in the gunner position when the vehicle rolled after being hit by a RPG. The applicant hit the gun mount and was sent to the hospital for 2 days. He was diagnosed with a concussion and was on profile for 2 weeks. He returned to regular duty and completed his deployment. He noticed problems with headaches and short-term memory problems but didn't want to tell anyone because he wanted to complete his deployment. When he returned from Iraq, he told the military about the headaches. n. The applicant's combat injuries have been diagnosed by VA medical professionals as residuals of the Humvee accident the applicant experienced on 13 December 2004 after being attacked by a RPG and small arms fire. (1) One doctor states the applicant sustained a head injury while deployed to Iraq and has been complaining of problems with memory, attention, concentration, and executive functioning specifically speed of information processing, judgment, and decision making. Testing was completed in 2009, but the results were determined to be inconclusive due to inconsistent effort and complaints of headaches during testing. The applicant is continuing to complain of frequent headaches, along with impairment in attention, concentration, short-term and long-term memory, and executive functioning, including slow processing speed, poor comprehension, word finding problems, and poor judgement and decision making. He was referred for neuropsychological testing, and results indicated the applicant's cognitive functioning is ranging from mildly to severely impaired as a result of a combination of severe PTSD symptoms and cognitive residuals from TBI. (2) Another doctor stated, the applicant's current TBI symptoms were etiologically related at as likely as not to the in-service motor vehicle accident. The applicant denies any history of headache prior to the accident. He had developed headache after the accident. TBI may cause the headache. (3) A final doctor stated, the applicant suffered a TBI. The diagnosis was based on examination of post traumatic headaches, dizziness, sleep disturbances, fatigue, malaise, memory impairment, decreased attention, difficulty concentrating, difficulty with executive functions, mood swings, anxiety, depression, anger management problems, suicidal thought without actions, sexual dysfunction, tingling of the hands with anxiety attacks and hyperventilation, intermittent tinnitus, light hypersensitivity, irritability, and restlessness. All diagnoses above are secondary to the TBO. o. The applicant initially applied for CRSC in April 2011. His application was denied. He applied for reconsideration for CRSC in 2012 and 2013 and was denied each time. The denial stated: Although the three year period for requesting a correction to the applicant's medical records for CRSC [has passed], in the interest of justice, the applicant's CRSC application should be reconsidered and CRSC should ultimately be granted. p. The applicant meets both the program and statutory requirements for CRSC. Each of his combat injuries were incurred in the line of duty as a direct result of armed conflict; therefore he qualifies for CRSC. 3. The applicant's available service record contains the following documents for the Board's consideration: a. A letter from the Army Review Boards Agency, dated 15 February 2011, which states the recommendation of the Department of Defense Physical Disability Board of Review was approved. The applicant would be placed on the Temporary Disability Retired List (TDRL) at 50 percent disability for 6 months effective the date of the medical separation with severance pay and then the following 6 month period recharacterize the applicant's separation as a permanent disability retirement with the disability rating of 30 percent. b. Orders D063-28, published by US Army Physical Disability Agency, dated 4 March 2011, which remove him from the TDRL and permanently retire him due to disability with 30 percent disability. c. A letter from the US Army Physical Disability Agency, dated 8 March 2011 explaining the applicant's change from the TDRL and placement on the permanent retirement list due to disability. d. A letter from HRC, CRSC Branch, dated 16 Mar 2011, which states his clam cannot be processed due to his records showing he did not have a VA waiver. e. A letter from HRC, CRSC Branch, dated 6 May 2011, which states, the applicant did not meet the eligibility requirements for CRSC. There was no evidence that PTSD was caused by combat-related event. No official evidence for Tinnitus indicating a combat award or exposure to weapons, explosions, tanks or aircraft in his claim. Lastly, his TBI with headaches had no evidence in his claim to show that a combat-related event caused the condition. f. A letter from HRC, CRSC Branch, dated 5 January 2012, which states they were unable to verify his disabilities were combat related, and there were no new evidence provided to show combat-related events caused by his PTSD, Tinnitus, and TBI with headaches. g. A letter from HRC, CRSC Branch, dated 6 February 2012, which states they were unable to overturn their previous adjudications. The documentation submitted showed no new evidence to link his requested conditions to a combat-related event. The disapproval was considered final, and he could apply to the Board for correction. h. A letter from HRC, CRSC Branch, dated 31 March 2020, which states the applicant received a final CRSC determination letter on 6 February 2012. His military file also contained the denial of his previous ABCMR case. There was no further action for the CRSC Branch to take. 4. The applicant provides the following documents for the Board's consideration: a. A letter from his legal counsel, dated 15 May 2018, which states their firm represents the applicant and in the course of their representation, they researched and evaluated his records for eligibility for CRSC. They determined the applicant qualifies for CRSC and provided documents to substantiate their determination. b. An undated letter from a retired Sergeant First Class, which reiterates the accident the applicant was in where the vehicle rolled and the applicant was hospitalized. c. An undated self-authored note informing the Board he was approved for 100 percent disability from the VA and indicating he added documentation to his application. d. An NGB Form 22 which shows the applicant was discharged from the Army National Guard effective 14 July 1998. He had 3 years, 5 months, and 20 days of service. He was discharged for enlistment in the Armed Forces. e. Medical Records from 15 December 2004, regarding the Humvee roll over. f. An MEB Consultation, dated 12 October 2005, which states the applicant was going through a medical board for multiple psychiatric disorders. It further states he has service connection for TBI. He had Post-Combat Stress Disorder. He reported hearing loss and tinnitus since 3 IEDs exploded near him during military service. g. A DA Form 199 (PEB Proceedings), which shows the applicant had Major Depressive Disorder and a recommendation of 10 percent disability. h. A DD Form 214, which shows the applicant was discharged from the Army without a transfer to a US Army Reserve (USAR) Control Group on 1 March 2006. He had 7 years, 7 months, and 17 days of service. His discharge was for disability with severance pay. On 8 March 2011, two DD Forms 215 were issued. The first one deleted the disability severance pay. The second one deleted the disability severance pay, and added retirement, temporary disability. i. A VA Rating, dated 8 August 2006, which shows the applicant received 100 percent disability for PTSD with major depressive disorder and 50 percent for sleep apnea. j. A statement in support of his VA Claim, dated 6 August 2009, which reiterates the Humvee accident he was in. k. A DD Form 294 (Application for a Review by the Physical Disability Board of Review), which states under the VA schedule for rating of disabilities, the Army should have rated the applicant with a disability of 50 percent or more at date of discharge from the army. l. A brief from his counsel to the Physical Disability Board of Review (PDBR)), dated 20 August 2009, asking the PDBR to look at the applicant's case and award him at least 50 percent disability so he could be retired. m. A document entitled Compensation and Pension Examination, dated 15 October 2009, which shows the diagnosis as mild TBI, residuals with headache. The opinion of the doctor was the applicant's current TBI symptoms were etiologically related at least as likely as not to the in-service motor vehicle accident. n. A VA Rating, dated 31 December 2009 which states his 100 percent disability for PTSD continued, he received a 10 percent rating for TBI with headaches effective 15 June 2009. o. Orders 0063-28, published by Army Physical Disability Agency, dated 4 March 2011, which removed him from the TDRL and placed on permanent disability retired with a rating of 30 percent. The order was effective 1 September 2006. p. A form entitled Cognitive and Psychiatric Residuals of TBI, dated 7 March 2011, which shows his diagnosis was PTSD, chronic, severe; Cognitive Disorder not otherwise specified, and mental disorder symptoms that require continuous medication. q. A Claim for CRSC, dated 11 March 2011, which reiterates the applicant's claim for CRSC. He states how he lost two of his soldiers to horrible deaths while deployed. Another solider was shot by the insurgent in his left arm. He was traumatized by the events causing PTSD and Major Depression in theatre. He then lists Tinnitus and TBI with Headaches as secondary conditions to the primary disability. r. A letter from HRC, CRSC Branch, dated 16 March 2011, which was present in the applicant's service record. s. A VA Form entitled Election of Compensation in lieu of Retired Pay, signed and dated by the applicant on 14 April 2011. t. A CRSC reconsideration request, dated 15 April 2011. u. A document entitled Member Entitlement Data, dated 15 April 2011, which shows his retirement date as 1 March 2006, his pay start date as 1 April 2011, and his base amount as $2,292.23. v. A leave and earnings statement from 1 April 2011 through 2 May 2011, which shows his gross pay as $1,274.00. w. A letter from HRC, CRSC Branch, dated 6 May 2011, which was present in the applicant's service record. x. A letter from HRC, CRSC Branch, dated 5 January 2012, which was present in the applicant's service record. y. A letter from HRC, CRSC Branch, dated 6 February 2012, which was present in the applicant's service record. z. A form entitled Review Evaluation of Residuals of TBI, dated 19 December 2012, which shows the diagnosis was the applicant had TBI. He had mild impairment of memory, attention, concentration, and executive functions resulting in mild functional impairment. His social actions were occasionally inappropriate. His Visual and Spatial Orientation was mildly impaired by occasionally getting lost in unfamiliar surroundings, had a difficulty reading maps or following directions. He had one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. He had a mental disorder. His TBI did not impact his ability to work. aa. A letter from ABCMR, dated 24 May 2013, informing the applicant his claim for CRSC had been denied. The board stated regrettably, without evidence to establish a direct, causal relationship to the applicant's VA rated disabilities to war or the simulation of war, there was insufficient basis in which to grant his request. bb. A Document entitled Primary Care Nursing Walk-In Note, dated 16 August 2016, which shows the applicant had received treatment from his Primary Care Provide since 2014. He also received care from other departments such as Mental Health and Transitional Care Social Work. He received medication for mental health issues and supplies related to health issues in January/March 2016. His rated disabilities were: * PTSD 100 percent * Migraine Headaches 30 percent * Sleep Apnea 50 percent * TBI 40 percent cc. A dental exam report, dated 26 August 2016, which shows he had poor oral hygiene. dd. A VA Rating decision dated 20 January 2017, which shows his TBI disability was continued at 30 percent. Entitlement to special monthly compensation for residuals of TBI was denied. The VA reviewed the evidence received and determined his service-connected condition hadn't increased in severity sufficiently to warrant a higher evaluation. ee. A privacy act waiver giving permission to access his records, dated 15 November 2017. ff. A self-authored personal statement for CRSC, dated 28 February 2018, which reiterates the accident with the Humvee and the injuries he sustained. gg. A VA rating decision, dated 12 July 2018, which states as the reduction in the disability rating from 100 percent to 40 percent for the service-connected TBI was not proper, restoration of the 100 percent disability rating was granted effective 18 December 2012. hh. A letter from the VA, dated 16 October 2018, stating they provided the records the applicant requested, which was a letter from the VA, dated 18 July 2018, which updated his monthly entitlement amounts. ii. A document entitled Beneficiaries on record, which shows the applicant had waived his retired pay because his VA pay was higher than his retired pay. jj. The CRSC denial letter dated, 5 January 2012 with handwritten notes. 5. The applicant's previous ABCMR case number AR20120013247 is available for the Board's consideration and was provided by the applicant. 6. See applicable references below. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief and amend the prior ABCMR decision set forth in Docket Number AR20120013247 on 24 May 2013. 1. The preponderance of the contemporaneous official and medical documentation in the evidentiary record indicate that the applicant received medical treatment for knee and ankle sprain, two days after a vehicle accident in Iraq. There is insufficient official, documentary evidence that might corroborate that the applicant was hospitalized in a Baghdad hospital or was on bed rest for two weeks after a vehicle accident in Iraq. 2. According to the PEB results dated 2 February 2006 the applicant’s MDD was not combat-related. In its decisions, on 6 May 2011 and 5 January 2012, HRC found insufficient evidence that a combat-related event caused the applicant’s PTSD with MDD, tinnitus, and TBI with headaches. 3. According to the DoD Financial Management Regulation, Vol 7B, Chapter 630204, and Title 26, U.S. Code, section 104, to be considered combat-related, the proximal cause of the injury must be 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. There is insufficient official documentation, including contemporaneous medical or operational records, that the applicant’s PTSD with Major Depressive Disorder, Tinnitus, or TBI with Headaches were directly caused by a combat-related event. 4. The Board agreed that the proximate cause of the applicant’s service-connected conditions is not evident in the record. Therefore, the Board found no basis on which to grant relief and award the applicant CRSC. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. REFERENCES: 1. 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 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. Eligible members are retired veterans with combat-related injuries who meet all of the following criteria – * Active, Reserve or National Guard with 20 years of creditable service, or permanent medical retiree, or Temporary Early Retirement Authority retiree * receiving military retired pay * have 10% or greater VA rated injury * military retired pay is reduced by VA disability payments (VA Waiver) * an individual must be able to provide documentary evidence that their injury was a result of one of the following – * training that simulates war (e.g., exercises, field training) * hazardous duty (e.g., flight, diving, parachute duty) * an instrumentality of war (e.g., combat vehicles, weapons, etc.) * armed conflict (e.g., award of the Purple Heart) 2. The Under Secretary of Defense, Military Personnel Policy has provided policy guidance on the processing of CRSC appeals. This guidance states 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 or caused by an instrumentality of war. 3. Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that 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. ABCMR Record of Proceedings (cont) AR20180007907 12