IN THE CASE OF: BOARD DATE: 22 July 2022 DOCKET NUMBER: AR20210015097 APPLICANT REQUESTS: reversal of the U.S. Army Human Resources Command (HRC) denial of Combat Related Special Compensation (CRSC) based upon a cardiac related condition. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * CRSC letter, dated 6 October 2018 * Rating Decision, dated 16 May 2017 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 27 September 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 August 1989 * DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 13 September 2012 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 1 June 2017 * DD Form 2860 (Claim for CRSC), dated 16 March 2018 * Orders Number D 236-40, dated 24 August 2017 * Memorandum – Subject: Permanent Physical Disability Retirement, dated 24 August 2017 * Memorandum – Subject: Notification of Eligibility for Retired Pay for Non-Regular Service (15-Years), dated 25 October 2017 * Army National Guard (ARNG) Current Annual Statement, dated 25 October 2017 * Personnel Qualification Record – Enlisted, dated 19 September 2017 * Orders Number 309-512, dated 5 November 2017 * Department of Veterans Affairs (VA), dated 18 May 2017 * DD Form 261 (Report of Investigation Line of Duty (LOD) and Misconduct Status), dated 11 July 2015 * Memorandum – Subject: LOD Determination, dated 11 August 2015 * Memorandum – Subject: LOD, dated 21 October 2015 * Memorandum – Subject: Letter of Lateness, dated 15 April 2015 * DA Form 2823 (Sworn Statement) * DA Form 2173 (Statement of Medical Examination and Duty Status) * RHC letter * Permanent Orders Number 056-035, dated 25 February 2014 * CRSC Form 12e (CRSC Reconsideration Request Form), dated 13 November 2018 * Self-authored letter, dated 13 November 2018 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 13 December 2016 * VA Form 21-0960A-4 (Heart Conditions) Disability Questionnaire, dated 6 December 2016 * Medical documents FACTS: 1. The applicant states in pertinent part that he should be entitled to CRSC based on a heart condition resulting from the performance of duty under conditions simulating war. He argues that his condition is the result of his participation in Field Training Exercises (FTX) and Live Fire Exercises (LFX). The simulated combat training exercises, include rapid and safe cannon emplacement, firing live high explosive artillery rounds, combat sling load operations, transporting and firing the artillery howitzer cannon. He was also involved in sling load aerial operations. This training was performed at an extremely fast pace, in an extremely hot, humid environment, in preparation for a possible deployment to Afghanistan. His two previous requests for CRSC were denied by the U.S. Army Human Resources Command (HRC). He notes that the initial denial received provides that the VA Rating Decision indicates that the evidence presented related to this condition does not relate the disability to Agent Orange (AO) or Herbicide. a. He agrees that his disability is not a direct result of AO or herbicide exposure, however he argues that his disability was incurred and directly caused by his participation and performance of duty under conditions simulating war. He further adds that he has documentation that his condition was incurred in the LOD. The PEB conducted provides that the condition began while performing field artillery training maneuvers. Both he and his peers believe that he had a medical emergency during the FTX/LFX on 5 May 2014. He submitted copies of their sworn statements during the conducted LOD determination. b. He further notes that there were contributing factors that occurred during this FTX that are directly related to his disability. His physician provides that he had no previous history of having a heart condition. He also notes that the hot, humid climate, the extended period of exposure to the sun, apparent dehydration with heat exhaustion, physical stress with over exertion as contributing factors to his heart condition. In his opinion, the military training that he participated in on 5 May 2014 more than likely increased the level of stress on his heart and exposed symptoms of his underlying heart condition. He contests that this condition worsened over time and in August 2016, he was hospitalized and underwent surgery for an automatic implanted cardioverter defibrillator. 2. A review of the applicant's available service records reflects the following: a. On 16 February 1983, the applicant enlisted in the Regular Army for 8 years to serve as a 93C (Air Traffic Control Operator). b. On 25 August 1989, the applicant was discharged due to misconduct (abuse of illegal drugs). DD Form 214, item 24. (Character of Service) reflects: General, Under Honorable Conditions. c. On 9 March 2009, the applicant enlisted in the ARNG to serve as a 13B (Cannon Crewmember). d. On 1 June 2017, a PEB was conducted finding the applicant physically unfit for continued military service with a recommendation that he be medically retired. DA Form 199, Section III (Medical Conditions Determined to be Unfitting) provides that the applicant's cardiac condition (Cardiomyopathy with Paroxysmal Atrial Fibrillation - Status Post Implanted Defibrillation) was permanent and incurred or was aggravated in the line of duty. Section V (Administrative Determinations) provides that the disability disposition is not based on disease or injury incurred in the LOD in combat with an enemy of the U.S. and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war. Section IX (Soldiers Election) reflects that the applicant concurred with the findings/recommendations and waived his right to a formal hearing. Further, the applicant did not request a reconsideration of the rating (100 percent) that he received. e. On 24 August 2017, the U.S. Army Physical Disability Agency issued Orders Number D 236-40 releasing the applicant from assignment and duty because of a physical disability incurred while entitled to basic pay. f. On 27 September 2017, the applicant was discharged from the ARNG due to a permanent physical disability and placed on the Retired List, effective 28 September 2017. 3. The applicant provides the following a: a. CRSC letter, dated 6 October 2018, reflective of the applicant being advised that HRC was unable to verify that his 2 submitted conditions, one of which was Cardiomyopathy (w/ Paroxysmal Atrial Fibrillation), were combat related conditions. Regarding the Cardiopathy, HRC noted that the VA Rating Condition provided evidence of this condition, but the evidence did not relate the condition to herbicide or AO exposure. The condition is only awarded by CRSC as an AO presumptive. b. Rating Decision, dated 16 May 2017, reflective of the applicant's rated conditions currently being compensated by the VA. c. DD Form 215 dated 13 September 2012, reflective of the applicant's DD Form 214 being corrected to reflect the addition of the Army Reserve Components Achievement Medal and the Basic Aviator Badge. d. DD Form 2860 dated 16 March 2018, reflective of the applicant's request for CRSC based on his Cardiomyopathy with Paroxysmal Atrial Fibrillation - Status Post Implanted Defibrillation condition. The applicant notes that the condition is caused by actions simulating war, specifically the FTX that he participated in on 5 May 2014. e. Memorandum – Subject: Permanent Physical Disability Retirement, dated 24 August 2017, reflective of the applicant being advised of the PEB findings wherein he was found to have a disability and would therefore be permanently retired with a disability rating of 100 percent. f. Memorandum – Subject: Notification of Eligibility for Retired Pay for Non-Regular Service (15-Years), dated 25 October 2017, reflective of the applicant's completion of at least 15 but less than 20 years of qualifying service and would therefore be eligible for retired pay upon reaching age 60. g. ARNG Current Annual Statement, dated 25 October 2017, reflective of the applicant's completion of 14 years, 6 months, and 10 days of creditable service for retired pay. h. Personnel Qualification Record – Enlisted, dated 19 September 2017, reflective of the applicant's pertinent personnel information. i. Orders Number 309-512 dated 5 November 2017, reflective of the applicant being discharged from the ARNG and assigned to the Retired Reserve, effective 27 September 2017. j. VA letter dated 18 May 2017, reflective of the applicant being advised of his VA compensation entitlement amount adjustments based upon his rating adjustment. k. DD Form 261 dated 11 July 2015, reflective of the applicant becoming dehydrated, experiencing nausea and dizziness after a training exercise conducted on 5 May 2014 at . The applicant was subsequently diagnosed with Cardiomyopathy; During a Physical Health Assessment (PHA) conducted on 12 July 2014, the applicant was determined to have an abnormal heart problem. The applicant's condition was therefore deemed to have occurred in LOD. l. Memorandum – Subject: LOD Determination, dated 11 August 2015, reflective of the findings associated with the LOD determination conducted in relation to the 5 May 2014, FTX wherein the applicant suffered from dyspnea, presyncope, nausea, headache, heat exhaustion and dehydration. On 12 July 2014, the applicant underwent a PHA wherein it was determined that he had an abnormal condition as depicted in the Electrocardiogram (EKG) results. On 9 October 2014, the applicant underwent a stress test however, the test was stopped prematurely due to the applicant experiencing ventricular contractions. The applicant was subsequently seen by a cardiologist who determined that he needed a cardiac catheter. Following the completion of the outpatient surgery, the applicant was required to wear a defibrillator and placed on medication. On 12 February 2015, the applicant was reevaluated and no longer required to wear the defibrillator based upon his response to the medication. On 25 March 2015, the applicants attending physician noted that the applicant did not have a previous history of heart problems prior to the FTX and that it was his opinion that the military training on 5 May 2014 more than likely increased the level of stress on the applicant's heart and exposed symptoms of his underlying heart condition. Therefore, the investigative officer determined that the applicant's heart problems occurred in the LOD. m. Memorandum – Subject: LOD, dated 21 October 2015, reflective of a legal review of the LOD investigation being conducted. Based upon the information provided, the attorney concurred with the investigating officer's findings in that by a greater weight of evidence that the applicant's medical condition occurred in the LOD. n. Memorandum – Subject: Letter of Lateness, dated 15 April 2015, reflective of the applicant's LOD being submitted late due to later complications with his health requiring that the incident occurring during the 2014 annual training be revisited. o. DA Form 2823 reflective of the applicant's account of events occurring on 5 May 2014. In pertinent part that applicant describes the austere conditions (heat and exercise tempo) as prompting conditions leading to the onset of his dizziness, nausea, fatigue etc. He notes being in receipt of medical care but being able to continue his participation in the training exercise without further incident. This document is provided within the supporting documents for the Boards review in its entirety. p. DA Form 2823 reflective of Staff Sergeant (SSG) account of the events occurring during the Fiscal Year 2014 Annual Training (AT). SSG served as the Section Chief while the applicant served as his gunner. He notes that shortly after a training event, the applicant did not appear to be himself; he was advised to rest and drink water. After being assessed by a medic for a potential heat injury, SSG was advised to monitor the applicant just in case his condition worsened. He notes that the applicant remained for the duration of the training but appeared drained. q. DA Form 2823 reflective of Second Lieutenant (2LT) account of the events occurring during the FY14 AT. 2LT provides that he recalls the temperature was approximately 90 degrees with 95 percent humidity during the exercise. He notes that they were required to sit in the heat for several hours on the day of the incident, the applicant informed him that he was not feeling well, specifically that he was winded and lethargic. The applicant sought medical assistance and after 48 hours he felt better. r. DA Form 2173 dated 1 August 2015, reflective of the applicant's commander directing that a formal LOD be conducted regarding the events occurring on 5 May 2014, involving the applicant. Item 10. (Nature and Extent) reflects: Cardiomyopathy. The applicant's condition was determined to have occurred in LOD. s. DA Form 2173 dated 2 April 2015, reflective of the applicant's commander directing that a formal LOD be conducted regarding the events occurring on 5 May 2014, involving the applicant. Item 10. (Nature and Extent) reflects: Heart Condition – Non-Ischemic Cardiomyopathy. The applicant's condition was determined to have occurred in LOD. t. RHC letter dated 23 March 2015, reflective of information pertaining to the applicant's heart condition. The attending physician notes in pertinent part that it is his opinion that the military training occurring on 5 May 2014, more than likely, increased the level of stress on the applicant's heart and exposed symptoms of his underlying heart condition. The symptoms that the applicant described where inherent of such a condition, however, asymptomatic and undiagnosed up to that point. Further medical evaluation reveals relevant cardiac dysrhythmias after the fact. u. Permanent Orders Number 056-035 dated 25 February 2014, reflective of the applicant's unit being ordered to AT from 3 – 17 May 2014 at . v. CRSC Form 12e dated 13 November 2018, reflective of the applicant providing a statement of clarity regarding his request for CRSC along with additional documentation of support. w. Self-authored letter dated 13 November 2018, reflective of the applicant's cited contention with the initial denial of his CRSC request. The applicant highlights the information contained within Title 10 United States Code, section 1413 (Combat Related Special Compensation) and how his heart condition meets these criteria. This information is further provided in its entirety for the Boards review within the supporting documents. x. DA Form 3947 dated 13 December 2016, reflective of the applicant being referred to a PEB for his heart condition. y. VA Form 21-0960A-4 (Heart Conditions) Disability Questionnaire dated 6 December 2016, reflective of information presented by the applicant during an in- person examination. The applicant notes that the onset of the condition occurred following his participation in the May 2014 AT that he participated in. z. Medical documents reflective of care that the applicant received associated with his heart condition to include the documentation of the outpatient surgery occurring on 9 October 2014, wherein he received a cardiac catheter, and the performance limiting profile that he was placed on 17 February 2015, indicating that he needed to go before a PEB due to cardiac insufficiency. 4. On 9 May 2022, HRC, Chief, Special Compensation Branch, provided an advisory opinion concerning the applicant's request citing that the applicant's conditions as described and as available documentation reflects, does not meet the criteria for award of CRSC. The fact that a condition presents in the field is not, in and of itself, sufficient to award CRSC. The disability or injury must be directly linked to a specific combat- related event. Diseases by nature, such as heart disease, are not considered combat related unless the VA has determined the condition is presumptive to a specific type of service. Certain heart conditions do meet the criteria for the award of CRSC, but only if the VA has recognized the condition as a Vietnam Agent Orange Presumptive condition. The applicant's records do not reflect evidence of service in Vietnam. Additionally, the statement provided by Dr.cannot be considered as evidence. Statements based on opinion cannot be used to verify a condition is combat-related. 5. On 13 May 2022, the applicant was provided with a copy of the advisory opinion and afforded 15 days to provide comments. 6. On 13 May 2022, the applicant responded to the advisory opinion again noting that the onset of his condition first occurred in May 2014 while he was participating in an LFX. He notes that he believes he suffered a heart attack due to the lack of water and the high level of stress/heat endured during this exercise. He argues that this incident caused an abnormal heart rhythm, a heart attack and it has seriously affected his overall health. He further provides that he experienced a heart attack in August 2016 which required that he be hospitalized; an automatic Implanted Cardioverter Defibrillator was provided. He notes being out in the heat on this day as well. This information is further provided in its entirety for the Boards review within the supporting documents. BOARD DISCUSSION: 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, an advisory opinion, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board agreed with the advising official’s findings and determined the contested condition did not meet the CRSC criteria 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. Department of Defense (DOD) Financial Management Regulation 7000.14-R Volume 7B (Military Pay Policy – Retired Pay) provides in Chapter 63 (Combat Related Special Compensation (CRSC)) that CRSC is special compensation to members of the Uniformed Services who have retired pay reduced because of receiving U.S. Department of Veterans Affairs (VA) disability compensation where a portion of such VA disability compensation is the result of disabilities that are combat-related as determined by the Military Department. The CRSC program became effective 31 May 2003. Payments are made on the first day of the first month following the month in which the compensation accrued, provided the member is receiving VA disability compensation for a disability that has been determined to be combat-related by the Military Department. a. CRSC is a monthly entitlement. A retiree is entitled to CRSC for each month during which, for the entire month, the member has applied for and elected CRSC under these provisions, meets preliminary CRSC criteria, and meets final CRSC criteria. b. With regard to the effective date, payments are made on the first day of the first month following the month in which the compensation accrued, provided the member is receiving VA disability compensation for a disability that has been determined to be combat-related by the Military Department. A member may submit an application for CRSC at any time and, if otherwise qualified for CRSC, compensation will be paid for any month after May 2003 for which all conditions of eligibility were met. c. Disability ratings by the Secretary of the Military Department concerned (or designee), as of the date on which the member retired, may be used to help make determinations of whether the member meets preliminary CRSC criteria. The actual computation of the amount of CRSC payable to an eligible retiree is based solely on VA disability determinations and the amount of VA compensation paid, without regard to any disability that is not combat-related. d. When the VA makes a retroactive increase in a member's VA disability compensation pertinent to a member's combat-related disabilities under CRSC, DFAS and VA will exchange data to determine the additional retroactive amount that the member is entitled to receive as the result of CRSC. DFAS will compute the additional entitlement and advise VA in order for VA to pay the member the appropriate additional authorized VA disability compensation. Any increase affecting CRSC qualified disabilities in the current month requires that CRSC be re-computed. e. 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 f. 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. g. 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015097 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1