IN THE CASE OF: BOARD DATE: 27 October 2021 DOCKET NUMBER: AR20210012164 APPLICANT’S COUNSEL REQUESTS: * correction of the DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show the applicant’s disability disposition was based on disease or disability incurred in the performance of duty under conditions simulating war and/or caused by an instrumentality of war * make a determination regarding his Combat Related Special Compensation (CRSC) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Power of Attorney * Counsel’s Petition * Personal Affidavit * DA Form 199 dated 4 December 2018 * Medical Evaluation Board (MEB) Narrative Summary (NARSUM) * Two DA Forms 1307 (Individual Jump Record) * 1995 Training Injury Medical Records * 1999 Training Injury Medical Records * 2003 Back Pain Medical Records * 2011 Neck Pain Medical Records * Officer Record Brief (ORB) * Bradley Fighting Vehicle Information Sheet * Orders 002-0001 dated 2 January 2019 FACTS: 1. The applicant’s counsel provides a power of attorney for representation of the applicant and states on his behalf that they are seeking a correction to the applicant’s DA Form 199 to reflect that his disability disposition is based on disease or disability incurred in the performance of duty under conditions simulating war and caused by an instrumentality of war. a. The applicant was medically retired after 32 years of combined service on 21 March 2019. He participated in over 65 jumps as an airborne Soldier during his distinguished career. In addition to his jumps, the applicant was injured in 1995 during a field training exercise at Fort Carson, CO. The hatch retention pin on the door hatch failed while he was directing maneuvers from the commander’s hatch, and the door hatch hit the applicant in the back, injuring his neck and back. In 1999, during the Special Forces Qualification Course (SFQC), the applicant fell off a 6-10 foot embankment and further injured his back. The two injuries, along with the aggregate effect of his 65+ jumps, were contributing factors in the applicant developing neck and back pain which led to his finding of being medically unfit. b. On 4 December 2018, an informal PEB convened and found the applicant unfit for service for two conditions, lumbar spondylosis and cervical degenerative arthritis. The PEB further found that the lumbar spondylosis occurred in 2003 while the applicant was stationed in the Continental United States (CONUS). In both cases, the applicant was found unfit to perform his physical duties associated with his military occupational specialty (MOS) due to the limiting factors associated with the two conditions. The PEB also found that the unfitting conditions did not occur in the line of duty in combat with an enemy and/or caused by an instrumentality of war. The applicant disagreed with the PEB’s findings with respect to the combat relatedness of his injuries. Nevertheless, the applicant chose not to appeal the finding due to receiving legal advice that his ratings could be negatively affected by an appeal. He honorably petitions the Board for relief. c. Counsel contends the unfitting injuries were caused by three primary categories of combat-related events: (I) 65+ jumps completed over the course of 20 years; (2) the 1995 Bradley Fighting Vehicle accident; and (3) the 1999 SFQC accident. All three of the categories of events are related to preparation for combat, as defined by 10 USC 1413e. Additionally, the Bradley Fighting vehicle is an instrumentality of war. As such, the PEB erred by not considering his disabilities to be combat-related disabilities as defined by 10 USC 1413e. The term "conditions simulating war” is well-defined by multiple deferral authorities. Counsel refers to definitions from the CRSC statute and the Financial Management Regulation. He believes sufficient evidence has been provided from a medical provider connecting his multiple unfitting injuries to multiple training events simulating war. He further requests that the Board use the proper statutory and regulatory guidelines to make a determination concerning his CRSC determination. 2. Counsel and the applicant provide: a. The below listed documents to referenced in the service record: * DA Form 199 dated 4 December 2018 * Orders 002-0001 dated 2 January 2019 * ORB b. A personal affidavit from the applicant, dated 3 November 2020, which provides a brief overview of the applicant’s service history to include his 32 years of combined service, with 5 reserves and 27 active. He has served as Infantry, Special Forces, and as a Special Operations Acquisition Officer. He briefly describes the injuries as outlined by counsel and further noted despite his injuries, he continued to support the mission. The PEB found him unfit for the conditions listed above and he was placed on the Permanent Disability Retired List (PDRL). He disagrees with the PEB findings with respect to the combat-relatedness of his injuries. His injuries were caused by three primary events, previously noted by counsel. All three of the categories of events were related to preparation for combat. Additionally, the Bradley Fighting Vehicle is an instrumentality of war. Despite his disagreement with the PEB findings, he did not appeal the decision based on legal advice that he received which indicated the appeal could result in a decreased disability rating. Based on the advice received he determined the risk was not worth it. c. A physician completed an MEB NARSUM on 25 July 2018. The MEB listed 39 conditions that were determined to be medically acceptable and two conditions that did not meet medical retention standards, degenerative arthritis of the cervical spine and degenerative arthritis of the thoracolumbar spine. The applicant acknowledged the recommendation to continue regular care of chronic conditions and to pursue primary care provider evaluation of conditions not already under treatment. It was further recommended the applicant continue in the MEB process and for his information to be presented to the PEB for adjudication. d. Two DA Forms 1307 documented the applicant’s 65 jumps as a parachutist, senior parachutist, and master parachutist from 4 April 1994 through 11 September 2013. e. His medical records from the 1995 training injury noted the applicant hit his spine getting into the tank and injured his shoulder. The notes indicated his back was swollen and bruised, but the x-rays were normal. Diagnosis was a mild sprain in the left shoulder. f. Medical records for his 1999 training injury noted the applicant was rucking 10 months prior and fell 6-10 feet. X-rays were benign and the recommendation was for back stretches, heat/ice, and return to clinic if problems persists. g. Medical records, dated 19 March 2003, show the applicant was seen for chronic lower back pain. He had previously been seen by a chiropractor. h. Medical records for his 2011 neck pain which indicate the records were printed in 2011; however, the transcription date is 29 August 2005. The findings show no evidence of fracture, subluxation, jumped facet, alignment abnormality, arthritis, or malignant neoplasm. The intervertebral disc spaces are normal. The vertebral bodies are of normal height. No cervical ribs are seen. The prevertebral soft tissues are normal i. An information sheet on “Bradley Fighting Vehicle System Upgrade A-3,” outlines the enhancements to the Bradley Fighting Vehicle. 3. A review of the applicant’s service record shows: a. Having had prior service in the Army National Guard (ARNG) He was appointed as a Reserve commissioned officer and executed an oath of office on 18 July 1990. b. Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) show he served on two periods of active duty: * 22 June 1988 to 9 September 1988 (2 months and 18 days) * 22 February 1992 to 12 June 1992 (3 months and 21 days) c. Orders A-08-300094, dated 2 August 1993, ordered the applicant to active duty with a report date of no later than 4 October 1993. He entered active duty on 28 September 1993. d. His ORB shows he served in Iraq from 22 March 2008 to 26 September 2008. e. A DA Form 199 showed on 4 December 2018 an informal PEB convened and found the applicant physically unfit. The PEB recommended a combined rating of 50% and that the applicant’s disposition be permanent disability retirement. His disabling conditions were identified as lumbar spondylosis, thoracic osteophytes with degenerative arthritis (VASRD Codes 5242-5237) with a 40% rating, and cervical degenerative arthritis (VASRD Codes 5242-5237) with a 10% rating. The onset was noted to have occurred in 2003 and 2005, respectively, while the Soldier was in CONUS. On 13 December 2018, the applicant concurred with the findings and recommendations and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. Additionally, the PEB made the following findings in Section V (Administrative Determinations): * disability disposition was not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law * disability did not result from a combat related injury as defined under the provision of 26 USC 104 or 10 USC 10216 f. Orders 002-0001, dated 2 January 2019, released the applicant from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his retirement for permanent physical disability with a 50% disability rating effective 21 March 2019. g. He was honorably retired from active duty on 21 March 2019. His DD Form 214 shows he completed 25 years, 5 months, and 24 days of active service. He was assigned separation code SEJ and the narrative reason for separation listed as “Disability, Permanent (Enhanced).” 4. The applicant’s service record is void of evidence which indicates he applied for CRSC benefits from U.S. Army Human Resources Command (HRC). The Board will not consider any application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. The Board will not consider the applicant’s CRSC eligibility; however, the Board will consider correction of his DA Form 199. 5. By regulation (AR 15-185): a. An applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. b. Paragraph 2-5 states that the Board will not consider any application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. 6. By regulation (AR 635-40), the Army disability system sets forth policies, responsibilities, and procedures that apply 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. a. Armed Conflict. The fact that a Soldier may have incurred a medical impairment during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support a finding that the disability resulted from armed conflict. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. b. Combat related. Covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability will be considered combat related if it causes the Soldier to be unfit or contributes to unfitness and was incurred under any of the following circumstances: * As a direct result following armed conflict. * While engaged in hazardous service. * Under conditions simulating war. * Caused by an instrumentality of war 7. By law (Title 26, USC, section 104), authorizes special rules for combat-related injuries for compensation for injuries or sickness. For purposes of this subsection, the term "combat-related injury" means personal injury or sickness (A) which is incurred (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war. 8. The law (Title 10, USC, section 1413a) defines the term "combat-related disability" means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that (1) is attributable to an injury for which the member was awarded the Purple Heart; or (2) was incurred (as determined under criteria prescribed by the Secretary of Defense) (A) as a direct result of armed conflict; (B) while engaged in hazardous service; (C) in the performance of duty under conditions simulating war; or (D) through an instrumentality of war. 9. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant through Counsel, requests correction of his DA Form 199 to reflect disability disposition was based on disease or injury incurred in the performance of duty under conditions simulating war and caused by an instrumentality of war. b. The PEB convened 04Dec2018 found the Lumbar Spondylosis, Thoracic Osteophytes with Degenerative Arthritis; and Cervical Degenerative Arthritis conditions were not fitting for continued military service. The PEB found that the disability disposition was not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the fine of duty during a period of war. The PEB also found that the disability did not result from a combat-related injury. The PEB narrative detailed that the lumbar (lower back) condition had its onset in 2003 while the applicant was in CONUS. The PEB narrative also detailed that the cervical (neck) condition had its onset in 2005 while the applicant was in CONUS. On 13Dec2013, the applicant concurred with the PEB findings and waived a formal hearing of his case. It should be noted that on 08Aug2018, the applicant appealed concerning the MEB’s statement of origin for the lumbar condition. In the MEB’s 09Aug2018 Rebuttal Response, the onset of the Degenerative Arthritis of the Thoracolumbar Spine was changes to June 1998. c. Lumbar Spondylosis, Thoracic Osteophytes with Degenerative Arthritis. 08Apr1999, he stated that he suffered a back injury after falling 6-10 feet off of an embankment while negotiating the Long-Range Officers Land Navigation exercise, a portion of the Special Forces Qualification Course while stationed at Fort Bragg, North Carolina. He stated that he received injections in his lower back to continue walking and running. He stated that this was the beginning of his lifelong back pain which continues to this day. (1) 08Apr1999 Chronological Record of Medical Care (Ft Bragg). Went to sick call with complaint of low back pain for 10 months. He was rucking 10 months ago and fell 6-10 ft. He tried ibuprofen, ice/heat and stretching without success. He had not done physical therapy. He requested x-rays. The pain was constant but sometimes radiated to the hips and sometimes down the buttocks. The exam showed no deformity, muscle spasm, or tenderness to palpation. The x-ray was benign. Diagnosis: Mild Low Back Pain. Back stretching exercises handout was given. He was advised to return basically as needed. There was no follow up. (2) 19Mar2003 Womack AMC. Right shoulder pain with normal ROM. Shoulder x- ray was ordered. Having low back pain for several years. He was referred to chiropractor for the low back pain. (3) 19Mar2003 Womack AMC. PA notes: He complained of “chronic” lower back pain for months. He stated that he had seen a chiropractor in the past. (4) 31Mar2003 Womack AMC Lumbosacral spine series was normal. The series was ordered because of a 3 month history of insidious onset of low back pain and intermittent right posterior thigh pain. (5) 23May2007WRNMMC for “low back pain” lumbosacral spine film showed minimal disk space narrowing at L5-S1. (6) 23May2007Ft Belvoir Community Hospital. c/o lower back pain for many years. Awoke this morning with a flare-up of the pain. C/o occasional numbness to right great toe. No c/o radiating pain or tingling. Spent many years in the Special Forces. (7) 20Oct2008 WRNMMC lumbosacral spine film for “known chronic low back pain/degenerative disc disease with recurrent radicular left lower extremity symptoms. Showed mild disc height loss at L1-L2 with very small osteophytes. Findings are also unchanged from May 2007 exam. (8) 18Nov2008 Multilevel degenerative disc and joint disease, worst at L5-S1 with neuroimpingement where there was a circumferential disc bulge and a moderate degree of inferior neural. Foraminal narrowing was present bilaterally. (9) 21Oct2009 MRI lumbosacral spine Degenerative changes as described above. In comparison with the previous examination there's been no to minimal progression (10) 25Jul2018 MEB NARSUM annotated “Officer reports onset of symptoms is years”. The NARSUM preparer opined “the approximate onset of the condition was May 2007 when the Officer was seen by family practice when he had a flare- up of pain”. (11) 10Jun2019 Birmingham VAMC MRI of low back show degenerative disease and narrowing and some pressure on the nerve on the left. Primary treatment is physical therapy and epidural injections. (12) Rationale: He was not seen for the original low back injury that reportedly occurred 10 months prior (approximately in June 1998) per the April 1999 note. He was already trying self-treatment which supports that the injury had a history prior to that point. The March 2003 notes bolster an origin of the back pain prior to March 2003. The earlier x-ray was normal, but degenerative changes started showing up in 2007. When he was seen for a flare in May 2007, he reported lower back pain for many years. So although the ARBA reviewer is convinced the origin of the injury was June 1998, the original note indicated that he was rucking, and sustained injury to the back due to a fall. At the time, he was stationed at Ft Bragg. (13) Recommend: Not based on disease or injury incurred in the performance of duty under conditions simulating war and not caused by an instrumentality of war. d. Cervical Degenerative Arthritis. Applicant in his statement indicated that on 23Jan1995 while directing Bradley Fighting Vehicle maneuvers from the commanders’ hatch, the hatch retention pin failed and the hatch hit him in the back, injuring his left shoulder. He stated that he reported the injury to command and received medical care at the local medical treatment facility. He said that since that day, he has had constant neck pain. He stated that he sought private chiropractic care since the Army did not provide that support at the time. (1) 23Jan1995 Screening Note of Acute Medical Care showed injury to the left scapular area. An abrasion in the area was noted during examination. When pressure was applied, he felt pain in the scapular area. The back was also swollen and bruised on the posterior right side. The scapular area was also swollen. Diagnosis: Dislocation (DA Form 5181-R). (2) 23Jan1995 Chronological Record of Medical Care (Ft Carson). Note documented small bruising at the base of the scapula. Diagnosis: Mild Sprain, Left Shoulder. Left shoulder series was ordered to rule out dislocation. (3) 29Aug2005 WRNMMC cervical spine exam was normal. The film was ordered due to 9 year history thoracic pain and neck pain. Thoracic spine showed dextroscoliosis. (4) 28Oct2008 WRNMMC cervical spine film for “left upper extremity weakness” was normal. (5) 18Nov2008 WRNMMC cervical MRI showed minimal circumferential disc bulge C6-C7 with questionable annular tear. (6) 18Jan2012 cervical spine film for continued pain after accident showed Mild degenerative changes, without acute bony deformity seen. (7) 25Jul2018 MEB NARSUM annotated “Officer reports onset of symptoms in 2012. He reported neck pain for many years”…there was “no record of any treatment until 13Jan2012 at which time it was reported he was restrained driver of a vehicle that was rear ended yesterday morning. X-ray done reported mild degenerative changes”. The NARSUM preparer opined the approximate onset of the condition was 2012. (8) 10Jun2019 Birmingham VAMC MRI of neck - shows degenerative disease, primary treatment is physical therapy and epidural injections. (9) Rationale: Although the record showed prior cervical spine films (29Aug2005, 28Oct2008, 18Nov2008), the first treatment notes for neck pain occurred in January 2012 after a motor vehicle accident (he was seen at Walter Reed). The 23Jan1995 note did not show injury to the neck, or a report of neck pain associated with the event. Of note, the first cervical spine film was ordered 10 years after the hatch injury—no nexus was established between the hatch injury and the Cervical Degenerative Arthritis. (10) Recommend: Not based on disease or injury incurred in the performance of duty under conditions simulating war and not caused by an instrumentality of war. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and regulatory guidance. The Board considered the applicant and his counsel’s statement, his record of service, documents provided by both the applicant, his counsel and the review and conclusions of the advising officials. They found no evidence that any one of his disabilities was the direct result of armed combat; was related to the use of combat devices (instrumentalities of war); the result of combat training; incurred while performing extra hazardous service though not engaged in combat; incurred while performing activities or training in preparation for armed conflict in conditions simulating war. The Board agreed with the medical advisory opinion finding insufficient evidence to mitigate correction of the applicant’s DA Form 199. Therefore, the Board denied relief. 2. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XX XXX 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. c. Paragraph 2-5 states that the Board will not consider any application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 4. Title 38, United States Code, Section 1110 (General - Basic Entitlement) sates for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any Veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38, United States Code, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any Veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 6. 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.) //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012164 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1