BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180013147 APPLICANT REQUESTS: that his records be corrected to show his shoulder conditions were determined to have been incurred as a direct result of armed conflict, specially hazardous military duty, or caused by an instrumentality of war and that this disability is eligible for award of Combat-Related Special Compensation (CRSC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) * series of emails FACTS: 1. The applicant states: a. The Army CRSC, at the time of the original award of the other disabilities, denied him the award of 10 percent per shoulder, for recognized disabilities as awarded by the VA, due to what was termed as the lack of proof of the direct relationship to being injured/wounded in combat, or combat training, or in support of combat. Even though he was seen by the battalion medical staff upon cessation of hostilities, and treated for the injuries when the Persian Gulf War ended and after being redeployed back to Germany. b. He was seen at the Troop Medical Clinic in Kitzingen, Germany and treated at the 3rd Infantry Division Army Hospital in Wuerzburg, Germany and has had 10 shoulder surgeries since 2001 as they remain unserviceable with only minimal functionality and no ability to use his arms individually away from his body. c. His copies of his initial referral in Iraq, and the subsequent treatment records for the 3rd Infantry Division Army Hospital in Wuerzburg, Germany, were lost to flooding while being stored at a relatives' house when he was in transition from one residence to another in 1995, previous to even knowing about Army CRSC. Since being denied the recognition, he submitted two Freedom of Information Act requests for information regarding the location of the records of the treatment clinics and the Army hospital records. The first request referred him to the permanent records facility in St. Louis, MO, who in turn stated they had nothing. The second one stated the records must have been irretrievably lost. However, even though the pieces of paper cannot be found, he is still qualifies for the award of the shoulder-related compensation due to having served his entire career in a combat military occupational specialty, Infantryman/Ranger then Infantry Officer. d. He enlisted for and served in the 2nd Ranger Battalion, graduated Ranger School as a private/E-2 with less than a year in the Army, was an infantry Soldier in C/3-47 Infantry, a Presidential Firing Party Commander (squad leader) in Honor Guard Company in the 3rd U.S. Infantry, The Old Guard, a Ranger instructor at the Fort Benning 3rd Ranger Company/4th Ranger Training Battalion, a Mechanized Infantry Platoon Leader, twice, a Mechanized Heavy Mortar Platoon Leader, twice, an Infantry Battalion S-4, and mobilized with 1st Brigade (Battle Command Staff Training), 91st Division (Training Support) in support of Operation Enduring Freedom (OEF). He suffered multiple injuries throughout his career due to serving in the infantry and always performing hazardous duties. e. His shoulders physically failed while he was mobilized in support of OEF, at Camp Parks Reserve Forces Training Area, while taking the Army Physical Fitness Test in February 2003. He was seen by many orthopedic doctors but the Army policy was to not take an MRI until after going through a "prescribed" physical therapy shoulder routine for six months. The Army, meaning the medical system, refused to give him a permanent profile, as they did not want it on record; their policy at the time. Their only answer for two and a half years was physical therapy and reevaluation in six months. He was made to do this although he was mobilized from January 2003 to September 2005. During his demobilization in January 2005, he did not let the doctors just send him home. They were not going to fix the shoulders. He called upon the hospital commander with the MRIs in hand demonstrating that his shoulders had to be operated in order to fix them, as the most recent injury happened while mobilized. f. The head civilian orthopedic doctor also recommend surgery. The result was the hospital commander putting him into the "Community-Based Home Health Care Organization." He was effectively kicked down the road to be someone else's problem. He finally got the care he desperately needed as he could not sleep when he got assigned to Fort Leavenworth, KS in October 2005 and immediately saw the orthopedic surgeon. He looked at the MRIs that were taken at the demobilization station at Fort Lewis, WA and asked him when he wanted to schedule surgery for both shoulders. He had reconstructive shoulder surgery on his right shoulder in December 2005 followed by his left shoulder in May of 2006. At the time, the doctor told him that it was going to take a number of surgeries to fix his shoulders. To date, he has had 10 shoulder surgeries. He is hoping that there is only one more procedure for each shoulder. He has been in constant pain ever since the injury during the Persian Gulf War. The shoulder surgeries would abate the pain for a while, then it would set in again in a different manner, as well as having minimal independent arm functionality ever since. g. He has submitted CRSC requests four times since he received his initial VA ratings decision. However, the one thing the VA saw as a clear-cut disability were his shoulders. The only reason he is submitting this application to the Board is that he was directed to no longer submit requests pertaining to his shoulders as the Army CRSC official was not going to allow the service-connection of 20 percent for his shoulders even though he can prove, without a doubt, using statements from the individual whom witnessed the injury. He has exhausted every means of finding the official copies of the missing treatment records. To further complicate the matter, the 3rd Infantry Division hospital was closed when the division was relocated to Fort Stewart and no one can find the previous treatment records. He can provide witnesses and statements, and offered it, but was told by Army CRSC officials at the time that Army CRSC did not recognize those; that was for the VA. It has taken this long to exhaust the possibility of finding any copies of the original referral and subsequent treatment records. When he was denied the last time and told to submit this application to the Board, he was also told that he had 10 years from the original date of submission to find the evidence required. He has exhausted all means of further investigation. He is at the mercy of the Board. He begs the Board to award the requested benefits to him in order to at least ease some of the suffering he has endured and continues to endure. 2. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows was retired by reason of sufficient service for retirement on 30 September 2007. His record shows he was deployed to Southwest Asia during Operation Desert Storm. His record also shows he was mobilized as a member of the U.S. Army Reserve in support of OEF with duty in Dublin, California and Fort Lewis, Washington. 3. A VA Rating Decision, dated 20 June 2008, shows the applicant was granted service-connected disability compensation for, among other conditions, right and left shoulders rotator cuff tendinopathy. The decision document shows the entry "Service Connected, Gulf War, Incurred. 4. The applicant's initial CRSC application is dated 18 November 2008. He claimed that his diagnoses of tinnitus and right and left shoulders rotator cuff tendinopathy were combat-incurred. 5. In a CRSC decision letter, dated 1 December 2008, the U.S. Army Human Resources Command (HRC) CRSC Division granted the applicant CRSC for impaired hearing and tinnitus. However, HRC denied CRSC for his shoulders condition due to the absence of evidence showing that a combat-related event caused the condition. 6. The applicant's first application for reconsideration is dated 17 June 2010. He based his request on his VA rating decision which states that his shoulder condition was Gulf War incurred. 7. On 12 November 2010, HRC denied the applicant's request for reconsideration because he did not provide new evidence showing that a combat-related event caused the condition. The denial letter to the applicant contains the following statement: You requested consideration for your rotator cuff tendinopathy, right and left shoulder. Please provide evidence on how your right and left shoulder injuries happened. To award a condition as combat-related you must provide this office with official documentation that shows how each condition is combat-related as defined by CRSC program guidance. Evidence can be a Line of Duty Investigation (LOD), medical documents, and/or a letter from your military health care provider or VA physician. For more information on what is considered to be a combat-related condition, visit the CRSC website at www.crsc.army.mil. Your VA rating decision is inconclusive on how the injury took place. Being in a combat zone is not, in and of itself, sufficient to award CRSC. The disability or injury must be linked to a combat- related event. 8. On 7 February 2011, the applicant submitted a second request for reconsideration and added his ankles condition to his request. 9. On 22 February 2011, HRC denied the applicant request based on the absence of evidence showing that his ankles and/or shoulders conditions were caused by a combat-related event. The denial letter to the applicant contains the following statement: We are requesting more information to verify combat-related events which support your claim. The fact that you may have incurred the disability during a period of hazardous service is not sufficient by itself to support a combat-related determination. There must be a definite, documented, causal relationship between the hazardous service and the resulting disability. Evidence can be a Line of Duty Investigation (LOD), or medical documentation. To award a condition as combat- related you must provide this office with evidence that shows how each condition is combat-related as defined by CRSC program guidance. 10. On an unspecified date, the applicant submitted a third request for reconsideration. He again based his request on his VA service-connected disabilities rating decisions. He also provided documentation indicating he sought assistance from his Representative in Congress. 11. On 1 August 2011, HRC denied the applicant's third request for reconsideration. The denial letter to the applicant contains the following statement: We have reconsidered your claim for CRSC based on an inquiry from the office of Senator Jerry Moran. We are still unable to determine your shoulder and ankle conditions to be combat-related. The fact that you may have incurred the conditions during a period of hazardous service is not sufficient by itself to support a combat- related determination. There must be a definite, documented, causal relationship between the hazardous service and the resulting disability. The CRSC Branch is unable to consider self-narratives or first person accounts and also cannot consider conjecture from a physician or medical examiner without reviewing the records used as a basis for the medical opinion. Because this is your fourth claim for your shoulder conditions, this is the final decision on those conditions unless you can provide official documentation that we have not yet considered. 12. The applicant submitted a fourth request for reconsideration and provided new medical evidence pertaining to his ankles condition. 13. On 8 September 2011, HRC granted the applicant CRSC for his ankles condition but again denied CRSC for the shoulders condition because the applicant did not provide new medical evidence. 14. The applicant submitted a fifth request for reconsideration regarding his shoulders condition. On 25 January 2013, HRC denied the applicant's request based on the absence of new evidence. 15. On 15 October 2015, HRC CRSC Division informed the applicant that based upon his email of 9 September 2015, they conducted an audit of his claim for CRSC. After reviewing all documentation in support of him claim, HRC was unable to overturn the previous adjudication(s). The documentation which he submitted still showed no new evidence to link his requested conditions to a combat-related event. HRC also informed the applicant that the disapproval was considered final. If he obtained new evidence or desired appeal their decision, he must submit his notice of disagreement to the Army Review Boards Agency. 16. The applicant provided VA Form 21-4138 in which he described to the VA the nature and origin of his service-connected injuries and requested to the VA the validation and certification of his statement of injury and subsequent medical treatment in Germany as true and correct. 17. The applicant also provided a series of emails showing the actions he has taken in resolving his CRSC issues. 18. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant enlisted in the Army 24 May 1989 and retired after acquiring the minimum number of years required on 30 September 2007 IAW AR 600-8-24, Paragraph 6-13C91). He served in the Gulf War in the MOS 11B (Infantry). He is requesting he be awarded a 10% disability rating for each shoulder (total of 20% combined rating) for injuries he sustained during his deployment during the Gulf War (Desert Shield/Deseret Storm). Various medical documents assert the reasons for his shoulder injuries including injuries from taking the APFT while in Germany. In another document he asserts his injuries to his shoulders occurred while closing the hatch on the turret in the vehicle he was occupying, and a third document indicates the applicant injured his shoulder while playing “frisbee football”. On 9 September 2015 the applicant asserts that pertinent records related to his medical injuries to his shoulders and the various treatments employed were lost when a flood destroyed the records while he was storing them at a relative’s home. However, in an email sent to Mr. Charles Burr, Program Manager, CRSC dated on that same date the applicants asserts that the records had been “lost/misplaced/etc. by the Army/DOD.” There is no indication that the applicant attempted to recreate his medical file from any treating providers or facilities where he received care. Regardless, none of the records or statement submitted by the applicant met the criteria to receive Combat Related Special Compensation (CRSC) for either shoulder injury. His requests for reconsideration were denied on 12 November 2010 and 22 February 2011. His initial formal appeal dated 1 August 2011 was also denied. The second appeal for shoulder related CRSC was also disapproved on 1 August 2011. The initial application for CRSC states that the applicant asserts the injuries occurred while he was still in Iraq, although the specific dates of the injuries is not provided, and there is no evidence that the applicant sought medical care at time of the injuries. The applicant further states that he has undergone 10 surgeries on his shoulders for what the Orthopedic Surgeon has diagnosed as impingement syndrome and rotator cuff tendonopathy. There is no indication that applicant sustained any tears in any of the rotator cuff tendons. Based on the available information there is no documentation to support that any shoulder injury sustained by the applicant met the criteria to receive CRSC IAW Section 1413 or 1413a, Title 10, United States Code. It is also important to note that the VA ratings for a particular illness or injury do not necessarily correlate to Army ratings for the same condition(s) applied by the Army’s Physical Evaluation Board (PEB). The VA rules, laws, and regulations assign disability percentages based on the applicant’s unsuitability while the Department of Defense (DoD) assigns percentages for conditions determined to be unfitting. Therefore, a rating of 10% for the right shoulder and 10% for the left shoulder would not necessarily equate to a total combined rating of 20%. Additionally, the VA ratings are determined to. Therefore, it is the opinion of the Agency Medical Advisor, based on the available documentation, that CRSC for shoulder injuries asserted by the applicant do not meet the criteria for CRSC, and no further action should be taken at this time. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The applicant’s contentions, his military record, and regulatory guidance were carefully considered. The Board concurred with the advisory opinion which found there is no indication that applicant sustained any tears in any of the rotator cuff tendons. Based on the available information there is no documentation to support that any shoulder injury sustained by the applicant met the criteria to receive CRSC IAW Section 1413 or 1413a, Title 10, United States Code. The Board found insufficient medical evidence to meet the regulatory standard for combat related injuries and thus recommended denying the request. 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, 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 were not for the statutory prohibition for a military retiree to receive a VA disability pension. a. Payment is made by the Military Department, not the VA, and is tax free. b. Eligible members are those retirees who are entitled to retired pay, other than by reason of section 12731b of this title and have a combat-related disability that is the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. c. Qualified disabilities must be compensated by the VA and rated at least 10 percent disabling. d. 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 to the military retiree a portion of the waived retired pay. 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 evidence of the condition having a direct, causal relationship to war or the simulation of war or caused by an instrumentality of war. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013147 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1