IN THE CASE OF: BOARD DATE: 25 February 2022 DOCKET NUMBER: AR20210009368 APPLICANT REQUESTS: * Reversal of the U.S. Army Human Resources Command (HRC) decision to deny an increase of the Combat Related Special Compensation (CRSC) percentage for: * Lumbosacral strain with degenerative arthritis – 20 percent * Post-Traumatic Stress Disorder (PTSD) with unspecified depressive disorder – 100 percent * Tinnitus – 10 percent * Left knee tendonitis – 10 percent * Left wrist, tenosynovitis – 10 percent * personal appearance before the Board via video or telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) service ending 20 January 2012 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceeding * U.S. Army Physical Disability Agency (USAPDA) Orders Number D 204-18 * DA Form 5016 (Chronological Statement of Retirement Points) * Department of Veterans Affairs (VA) letter, dated 1 December 2020 * HRC letter, dated 31 March 2021 denial of appeal * DD Form 2860 (Claim for CRSC, dated 21 April 2021 * VA letter, dated 7 September 2021 FACTS: 1. The applicant states in effect, she requests the Board overturn the HRC decision to award her 10 percent compensation for Tinnitus and grant her claim for all her service connected disabilities of: * Lumbosacral strain with degenerative arthritis – 20 percent * PTSD with unspecified depressive disorder – 100 percent * Tinnitus – 10 percent * Left knee tendonitis – 10 percent * Left wrist, tenosynovitis – 10 percent 2. A review of the applicant's service record shows: a. The applicant enlisted in the United States Army Reserve (USAR) on 22 May 2009. b. The applicant's service record is void of evidence of an order that ordered her to active duty. The applicant was honorably released from active duty on 20 January 2012. DD Form 214 shows the applicant completed 1-year, 1-month, and 12-days of active service. It also shows the applicant served in Afghanistan during the period of 20 January through 6 December 2011 in military occupational specialty 88M (Motor Transport Operator) and was awarded the Afghanistan Campaign Medal with two campaign stars. c. On 8 July 2019, the informal PEB found the applicant physically unfit for retention due to PTSD citing she was involved in an attack by indirect and direct fire. The PEB recommended the applicant be placed on the Permanent Disability Retired List (PDRL) with 100 percent disability. d. On 23 July 2019, Orders Number D 204-18, issued by the USAPDA, the applicant was placed on the PDRL effective 27 August 2019 with 100 percent disability and 3-years and 3-days disability retirement. The order states the disability resulted from a combat related injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. e. On 18 December 2019, HRC denied the applicant's CRSC claim for PTSD. The applicant must show a documented direct causal relationship between the disability claimed and the CRSC event. The PEB proceeding did not include supporting documentation to verify combat exposure or any other CRSC qualifying criteria. The USAPDA determinations are in reference to other laws that CRSC. f. On 11 February 2020, HRC denied the applicant's claim for CRSC of PTSD. The applicant's claimed was thoroughly reviewed and it was found that she did not provide new evidence to show a combat related event caused her disability. There was no evidence the applicant was engaged with a hostile enemy and was not awarded the Combat Action Badge. The letter provided by Doctor did not provide details how the PTSD occurred as a result of a combat related event. Though the Veterans Administration may approve a disability as service connected, the approval does not automatically qualify the condition as a combat related disability per CRSC guidelines. g. On 17 April 2020, HRC partly approved the applicant's claim for CRSC. The applicant was awarded 10 percent disability for Tinnitus as combat related due to an instrumentality of war. The applicant's claim for CRSC of PTSD with unspecified depressive disorder was denied. Documentation the applicant provided did not mention a combat related event in relationship to her disabilities. The applicant exhausted all levels of reconsideration and appeal, and this claim was considered a final determination, any further appeals would have to be applied to the Army Review Boards Agency (ARBA). h. On 31 March 2021, HRC, responded to the applicant's claim for CRSC, stating her final determination was made on 17 April 2020 and her appeal rights had been exhausted. Any further appeals needed to be applied to the ARBA. 3. The applicant provides: a. DA Form 5016, dated 3 December 2019, showing the applicant completed 7- years of qualifying service for retirement. b. VA letter, dated 1 December 2020, for a statement verifying the applicant's service-connected disabilities shows a combined rating of 100 percent for: * Lumbosacral strain with degenerative arthritis – 20 percent * PTSD with unspecified depressive disorder – 100 percent * Tinnitus – 10 percent * Left knee tendonitis – 10 percent * Left wrist, tenosynovitis – 10 percent * Right ear hearing loss – 0 percent c. DD Form 2860, dated 21 April 2021, shows the applicant applied for a CRSC claim for PTSD with unspecified depressive disorder (anxiety with depressed mood) with a current VA rating of 100 percent. The applicant states she was deployed to Afghanistan during the period of 20 January through 6 December 2011. She was subjected to enemy indirect fire consisting of rocket attacks on a nightly basis. Additionally, during the deployment the applicant assisted with riot control outside the observation post. f. VA letter, dated 7 September 2021, provided a summary of the applicant's benefits from the VA, which shows she currently received 100 percent service- connected disability which is a total permanent disability 4. On 26 May 2021, the ARBA security specialist determined the 22 pages of documents that were provided by the applicant marked Confidential were for medical privacy reason. 5. Medical Review: there is no documentary evidence to support her claim the conditions are combat related. The combat related evidentiary requirements used in the disability process are different from those for awarding CRSC, and these determinations come under different sections of US Code. Physical Disability Agency (PDA) determinations are in reference to other laws than CRSC, and while a physical evaluation board (PEB) may determine disabilities are combat related under 26 USC 104 or 10 USC 10216, they do not automatically qualify for CRSC. The evidentiary requirements are also different, with those for CRSC higher / more rigorous. To award CRSC for PTSD under the category of armed conflict, the claimant must submit official documentation that shows how the condition is combat related as defined by CRSC program guidance. Official documentation includes wartime chain of command endorsements which confirms exposure to armed conflict (Wartime chain of command must be First Sergeant and/or Company Commander or higher), copies of combat decorations (certificates, combat badges, and DA Form 638s), and evaluation reports which support exposure to armed conflict. In addition, there is a note in paragraph 630502 of DoD 7000.14R: “An uncorroborated statement in a record that a disability is combat-related will not, by itself, be considered determinative for purposes of meeting the combat-related standards for CRSC prescribed herein. CRSC determinations must be made based on the program criteria.” BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant's contentions, the military record, a medical review, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows the contested diagnosis were the result of a combat-related event that would qualify for 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. Title 10, United States Code (USC), section 1413a, "Combat-Related Special Compensation" (CRSC), states, in pertinent part, that 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. The monthly amount to be paid to an eligible retiree is the amount of compensation to which the retiree is entitled under Title 38 for that month, determined without regard to any disability of the retiree that is not a combat-related disability. The amount paid to an eligible combat-related disabled uniformed services retiree for any month may not exceed the amount of the reduction in retired pay that is applicable to the retiree for that month under sections 5304 and 5305 of Title 38. 2. Title 10, USC, section 1414, "Members eligible for retired pay who are also eligible for veterans' disability compensation for disabilities rated 50 percent or higher: concurrent payment of retired pay and veterans' disability compensation" states, in pertinent part, a member or former member of the uniformed services who is entitled for any month to retired pay and who is also entitled for that month to veterans' disability compensation for a qualifying service-connected disability is entitled to be paid both for that month without regard to sections 5304 and 5305 of Title 38. A person who is a qualified retiree under this section and is also an eligible combat-related disabled uniformed services retiree under section 1413a of this Title may receive special compensation in accordance with that section or retired pay in accordance with this section, but not both. The Secretary concerned shall provide for an annual period (referred to as an open season) during which a qualified retiree shall have the right to make an election to change from receipt of special compensation in accordance with section 1413a of this Title to receipt of retired pay in accordance with this section or the reverse, as the case may be. Any such election shall be made under regulations prescribed by the Secretary concerned subject to approval by the Secretary of Defense. 3. The Department of Defense Financial Management Regulation, Volume 7B, Chapter 63: Combat-Related Special Compensation (CRSC), paragraph 6303 states, a member may not be paid CRSC unless he or she has applied for and elected to receive compensation under the CRSC program by filing an application on DD Form 2860, (Claim for CRSC), with the Military Department from which he or she retired. A member may submit an application for CRSC at any time and, if otherwise qualified for CRSC. The law states that a member eligible for both CRSC, under Title 10, United States Code (USC), section 1413a, and Concurrent Retirement Disability Pay, under Title 10, USC, section 1414, may not receive both, but must elect which compensation to receive. a. Section 630502 states, a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule Rating of Disabilities (VASRD). The Military Departments will determine whether a disability is combat-related based on the following criteria: * 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 b. The Department will record for each disability determined to be combat-related which of the circumstances provided qualifies the disability as combat-related. A determination of combat-relatedness (see section 6306) will be made with respect to each separate disability with an assigned medical diagnosis code 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. An uncorroborated statement in a record that a disability is combat-related will not, by 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. c. Section 6306 (Determinations of Combat Relatedness) (1) Direct Result of Armed Conflict: a. The disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. To support a combat-related determination, it is not sufficient to only state the fact that a member incurred the disability during a period of war, in an area of armed conflict, or while participating in combat operations. There must be a definite causal relationship between the armed conflict and the resulting disability. b. Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or with terrorists. (2) In the Performance of Duty Under Conditions Simulating War. In general, performance of duty under conditions simulating war covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapon practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities such as calisthenics, jogging, formation running, or supervised sport activities. (3) Instrumentality of War: a. There must be a direct causal relationship between the instrumentality of war and the disability. It is not required that a member's disability be incurred during an actual period of war. The disability must be incurred incident to a hazard or risk of the service. b. 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. It may also include such instrumentality not designed primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service. Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. 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 as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or materiel. d. For example, if a member is on a field exercise, and is engaged in a sporting activity and falls and strikes an armored vehicle, then the injury will not be considered to result from the instrumentality of war (armored vehicle) because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the member, then the injury would be considered the result of an instrumentality of war. 4. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 5. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2- 11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//