IN THE CASE OF: BOARD DATE: 10 November 2022 DOCKET NUMBER: AR20220004500 APPLICANT REQUESTS: reconsideration of his previous request to show reversal of his Combat Related Special Compensation (CRSC) claim denial for allergic rhinitis, sinusitis, and sleep apnea. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * CRSC Form 12e (CRSC Reconsideration Request Form), 23 December 2021, in lieu of DD Form 149 (Application for Correction to Military Records) * Department of Veterans Affairs (VA) Rating Decision, 27 September 2018 * VA Airborne Hazards and Open Burn Pit Registry with allied documents, 1 August 2019 * VA Documents showing asthma, rhinitis, and sinusitis were added as presumptive conditions FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200004385 on 30 October 2020. 2. The applicant states, in effect, he has obtained new medical evidence which may verify the combat-related link to the following previously requested disabilities. Sinusitis, Allergic Rhinitis, and Sleep Apnea are related to the service-connected disability of sinusitis. Per new ruling by the VA in August 2021. These three conditions qualify as presumptive since he served in Iraq from 2005-2006 which is the time frame specified in the new rules that make sinusitis, allergic rhinitis, and sleep apnea presumptive conditions. Please note the presumptive service connection information is related to exposure to particulate matter under Title 38 Code of Federal Regulations 3.320. 3. On 24 April 1986, the applicant enlisted in the Regular Army and served continuously until his retirement. He served in Iraq from 22 September 2005 – 19 January 2006. 4. The applicant was honorably retired from active duty on 31 August 2006. He completed 20 years, 4 months, and 7 days of net active service. 5. On 23 May 2016, the applicant applied for CRSC through the U.S. Army Human Resources Command (HRC), Fort Knox, KY, for the condition of sinusitis. 6. On 27 December 2016, HRC denied the applicant's request stating the condition did not meet the criteria for CRSC. Specifically, the only direct connection between combat-related events and allergic rhinitis/sinusitis was exposure from ordnance disposal and smoke inhalation from the oil fires during the first Gulf War from 1990- 1991. 7. The applicant submitted a request for reconsideration of his allergic rhinitis/sinusitis CRSC claim to HRC. And on 24 January 2018, HRC again denied his claim for sinusitis citing now new evidence was submitted. 8. On 20 September 2018, HRC again denied the applicant's claim for allergic rhinitis/sinusitis stating the condition did not meet the criteria for CRSC, and only exposure from ordnance disposal and smoke inhalation from the oil fires during the first Gulf War from 1990-1991 would qualify, and no new evidence was submitted to substantiate the claim. 9. On 25 September 2018, the applicant submitted a request for reconsideration of his allergic rhinitis/sinusitis CRSC claim to HRC. 10. On 19 February 2019, HRC again denied the applicant's claim for allergic rhinitis/sinusitis stating previously requested; no new evidence provided to show a combat-related event caused the condition. 11. The applicant submitted a request for reconsideration of his allergic rhinitis/sinusitis CRSC claim to HRC. 12. On 7 May 2020, HRC issued a final disapproval which denied the applicant's claim for allergic rhinitis/sinusitis stating the condition does not meet the criteria for CRSC. It was not recognized as being caused by combat related events or environments. 13. The applicant submitted a request for reconsideration of his allergic rhinitis/sinusitis CRSC claim to HRC. 14. On 27 July 2020, HRC issued another final disapproval which denied the applicant's claim for allergic rhinitis/sinusitis stating no new medical evidence provided to show a combat related event caused the condition. 15. The applicant submitted a request for reconsideration of his allergic rhinitis/sinusitis CRSC claim to HRC. 16. On 29 July 2020, HRC informed the applicant after conducting an audit of his CRSC claim of allergic rhinitis/sinusitis; no new medical evidence was provided to show a combat related event caused the condition. 17. The applicant's records are void of any orders deploying him in support of Operation Desert Shield/Desert Storm. 18. On 30 October 2020, the ABCMR voted unanimously to deny the applicant’s request for reversal of his CRSC claim denial for allergic rhinitis/sinusitis. 19. In support of his reconsideration request, the applicant provides: a. VA rating decision dated 27 September 2018, wherein the applicant was granted service-connected disability compensation for sleep apnea with an evaluation of 50 percent effective 18 July 2018 (secondary to sinusitis); sinusitis, Gulf War, incurred, static disability changed from zero percent in 2009 to 50 percent in 2013; and allergic rhinitis changed from zero percent in 2009 to 30 percent in 2013. b. VA Airborne Hazards and Open Burn Pit Registry with allied documents dated 1 August 2019, showing in pertinent part, asthma, rhinitis, and sinusitis were added as presumptive conditions. It also shows the applicant completed the questionnaire. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the available documentation, the Board concluded there was insufficient evidence to show a combat relation to the applicant’s allergic rhinitis, sinusitis, and sleep apnea disabilities. 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: Department of Defense Financial Management Regulation, Volume 7B: a. Section 630301 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, compensation will be paid for any month after May 2003 for which all conditions of eligibility were met. b. 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 c. 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. d. 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. c. Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force, or while escaping or attempting to escape from such confinement, prisoner of war, or detained status. (2) While Engaged in Hazardous Service. Hazardous service is service that includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty. A finding that a disability is the result of such hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service. Travel to and from such service, or actions incidental to a normal duty status not considered hazardous, are not included. (3) 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. (4) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004500 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1