IN THE CASE OF: BOARD DATE: 7 March 2023 DOCKET NUMBER: AR20220005237 APPLICANT REQUESTS: correction of his DA Form 199 (Physical Evaluation Board Proceedings) to show his unfitting conditions of “Dysautonomia (dysfunction of the nerves)” and “Lumbar Fusion” are combat-related. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Personal Statement * Department of Veterans Affairs Service-Connected Disability Printout * DD Form 2860 (Claim for Combat-Related Special Compensation) * Independent Medical Opinion with allied medical documents FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his physical evaluation board (PEB) reflects service connected disabilities are not combat related. CRSC claim corrected one of his disabilities to combat related due to an instrumentality of war. All his disabilities should have been corrected. Tinnitus and Dysautonomia are due to an instrumentality of war. Lumbar spine is due to either an instrumentality of war (vehicle) or hazardous duty (AH-64D pilot). At the time of my retirement, he was unaware of the definition of combat related and assumed, incorrectly, disability was only combat related if wounded in combat. The smallpox vaccine was administered to him upon deployment to Korea. He was sick and requested a delay in vaccination. The doctor at sick call violated CDC and Army guidelines and vaccinated him while sick with a fever of approximately 102 degrees F. This caused permanent neurological damage. Tinnitus is associated with dysautonomia and rated separately. Dysautonomia was due to an instrumentality of war (the smallpox vaccine; only administered due to overseas deployment, similar to anthrax). The permanent neurological damage led to a long list of symptoms, including nearly fatal instances of atrial fibrillation. Tinnitus was due to an instrumentality of war and/or hazardous duty. The combination of the smallpox vaccine, the vehicle (AH-64D Apache) and hazardous duty (flight duty) contributed to tinnitus. Tinnitus has been properly corrected to combat-related due to an instrumentality of war. Lumbar spine degeneration led to surgery and post-operative limitations. The cause was a combination of the smallpox vaccine, the vehicle (AH-64D Apache) and hazardous duty (flight duty) contributed to tinnitus. It was an error not to rate all rated disabilities as combat related due to either an instrumentality of war or hazardous duty. 3. He provides a statement detailing the situation. He states: a. Until this week, he had not been made aware of the reasoning behind the CRSC decision. He received a response that reads “Captain (Retired) [Name] submitted his initial claim for CRSC on February 4, 2022. He requested consideration for Dysautonomia, Lumbar Spine Degenerative Disc Disease and Tinnitus. There was sufficient evidence to show that Captain [Name] Tinnitus condition was due to an instrumentality of war, and he was awarded 10% CRC for the condition. We were unable to approve his Dysautonomia and Lumbar conditions. Captain [Name] stated on his application form that his Dysautonomia condition was due to receiving the smallpox vaccine. Conditions due to receiving vaccines do not meet the criteria for CRSC. Additionally, we were unable to approve Captain [Name] lumbar condition because the documentation submitted with his application did not show evidence that his condition was due to a combat related event. To award Captain [Name] Lumbar condition, he must submit official military medical documentation from the time the injury occurred and that clearly shows the condition is due to a combat related event, as required by program guidance.” b. Now that he is aware of the reasoning, he would like to provide supplemental information for the Board's consideration. (1) As to the lumbar condition: His lumbar condition was not due to a traumatic event. His medical records show the lumbar condition developed during the same service period as the tinnitus developed and was service connected. There was no injury or event that required surgery. As with the tinnitus, his records would indicate this developed during hazardous duty as an Army Aviation officer. The response for his CRSC application refers to an "injury" and requires that it be in relation to an "event". Neither is possible because there was no injury causing event, and it was diagnosed as a service connected degenerative disorder-which required further surgery after he was medically retired. (2) As to the dysautonomia: Although the condition was caused due to the smallpox vaccine, this response leaves out key facts related to that vaccination: (1) He was not an otherwise healthy adult when vaccinated, (2) he was engaged in hazardous duty when vaccinated, and (3) he was deployed to Korea when vaccinated. These facts are important because they take this out of the realm of a standard vaccination issue. He was not able to be vaccinated prior to deploying to Korea because his then wife was pregnant. He was deployed to Korea as an Army Aviation officer on flight status and engaged in hazardous duty. He fell ill on the flight to Korea and went to sick call aware of the lawful order to be vaccinated. He requested the vaccination be delayed due to his illness and his request was denied. (Note: the sick-call slip documents his illness, a prescription to be filled, and the administration of the vaccine prior to the prescription being filled). He was vaccinated despite having a fever while being vaccinated. Only later, during the MEB process, did he learn administration of a vaccine under such circumstances was in violation of both Army and CDC guidelines for administration of the smallpox vaccine. As such, he became the involuntary subject in a medical experiment that resulted in his permanent disability and medical retirement. That is another form of hazardous duty. Therefore, if the Board were not to consider the hazardous duty as a pilot or the administration of the vaccine during the deployment to Korea as hazardous duty and were not to consider the vaccine an instrumentality of war, the Board should consider the reckless disregard for his safety by Army medical personnel whose decision to make him an involuntary test subject in an unsanctioned medical experiment hazardous duty. He was given false information by an Army doctor that led him to believe he was required, under a lawful order, to be vaccinated. Had the doctor told him such vaccination was a violation of Army and CDC guidelines, he would have refused the vaccine as the entire reason for my trip to sick call was to request the vaccination be delayed. c. He would also note for the Board that he requested a statement from the doctor about the circumstances of his vaccination during the MEB process. Until that point, he assumed he was misinformed and made a mistake. His response to him was (paraphrasing) that he would have never been vaccinated if he had a fever. That was when he learned he knew it was a violation of guidelines. He responded to him by sending a scanned copy of the sick call slip he signed, and he refused to respond any further or provide any statement during the medical evaluation board. Over the years since he retired, the Army sunset access to Army email for retirees and he lost access to that email traffic. He would have to go through boxes to see if any records exist if the Board would like to review this communication. 4. Review of the applicant’s service records shows: a. He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 15 December 2001. He initially held an infantry specialty. b. He completed the Rotary Wing Aviator and the AH-64 Helicopter Aviator Qualification Courses in 2006. c. He served in Korea from on or about 3 May 2006 to on or about 24 April 2007. d. His DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) is not available for review. Evidence shows the MEB referred him to a physical evaluation board (PEB). e. On 8 July 2008, an informal PEB convened and found two of his condition unfitting, as stated below. The PEB recommended a combined disability rating at 60% with his disposition as permanent disability retirement. (1) Dysautonomia with a multitude of symptoms which can be attributed to this condition. The predominant impairment is the lightheadedness and dizziness with a positive tilt table test. Although he has improved somewhat with Florinef, he still is impaired and unable to perform excessive physical exertion. He has additional symptoms which limit his ability to function as an Army officer. These include bowel instability, excessive fatigue, and joint pains. This is rated by analogy to vagal nerve dysfunction because of the primary complains of dizziness with positive tilt test. Rated at 50%. (2) Lumbar Fusion L3-4 and L5-S1 with persistent pain which interferes with the performance of impact activities. There are no motor neurologic deficits. rated at 20% f. Block 10 (If retired because of disability, the PEB makes the following finding that) of his DA Form 199 shows: * The Soldier’s retirement is not based on disability from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of was as defines by law. * The disability did NOT result from a combat related injury as defines in Title 26, U.S. Code, section 104 g. The applicant retired on 29 September 2008, and he was placed on the retired list in his retired grade of captain on 30 September 2008. His DD Form 214 shows he completed 6 years, 9 months, and 15 days of active service. He was assigned Separation Code SFJ (Not Combat Related) 5. On 24 January 2022, he submitted a CRSC claim for three conditions: Dysautonomia w/Symptoms: Lightheaded; Dizzy; Bowel Instability; Fatigue; Joint Pain; Lumbar Spine Degenerative Disc Disease, Post-Operative; and Tinnitus. 6. On 18 March 2022, the CRSC Program Office reviewed his case and awarded him partial relief: a. Verified as Combat-Related: Tinnitus, 10%, effective Marc 2016. Condition is considered Combat-related due to an Instrumentality of War, under CRSC Program Guidance. b. Unable to Verify as a Combat-Related Disability: (1) Dysautonomia w/Symptoms: Lightheaded; Dizzy; Bowel Instability; Fatigue; Joint Pain. Justification/Comments: His PEB states that this disability is not combat related. (2) Lumbar Spine Degenerative Disc Disease, Post-Operative. Justification/Comment: His PEB states that this disability is not combat related. 7. The CRSC Program Office informed him of his right to apply for reconsideration of a previously unverified/changed condition, with new supporting documentation. There is no evidence he requested reconsideration or appealed the denial of CRSC. 8. 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. 9. By regulation (AR 635-40), combat related standard 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: (1) As a direct result following armed conflict; (2) While engaged in hazardous service; (3) Under conditions simulating war; or (4) Caused by an instrumentality of war. 10. Instrumentality of war. Occurrence during a period of war is not required. A favorable determination is made if the disability was incurred during 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 material. However, there must be a direct causal relationship between the instrumentality of war and the disability (the instrumentality itself must be the cause of the disability). 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, and regulatory guidance were carefully considered. The evidence of record shows the applicant was found medically unfit due to Dysautonomia and Lumbar Fusion, at a combined rating of 60% with his disposition as permanent disability retirement. He applied for CRSC for these two conditions (and other VA service-connected condition(s)). A physical disability will be considered combat related if it causes the Soldier to be unfit or contributes to unfitness and was incurred as a direct result following armed conflict; or while engaged in hazardous service; or under conditions simulating war; or caused by an instrumentality of war. For the disability to be combat related as a result of the instrumentality of war, there must be a direct causal relationship between the instrumentality of war and the disability. Based on the evidence in the service record and the evidence provided by the applicant, the Board found insufficient evidence that an instrumentality itself was the cause of the disability. 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. Army Regulation 635–40, Personnel Separations - Disability Evaluation for Retention, Retirement, or Separation, prescribes Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. Chapter 5 defines “Combat related.” This standard 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: a. As a direct result following 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. While engaged in hazardous service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. c. Under conditions simulating war. In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training (combatives training), rappelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. d. Caused by an instrumentality of war. Occurrence during a period of war is not required. A favorable determination is made if the disability was incurred during 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 material. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, if a Soldier is on a field exercise and is engaged in a sporting activity and falls and strikes an armored vehicle, the injury will not be considered to result from the instrumentality of war (the 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 Soldier, the injury would be considered the result of an instrumentality of war (the armored vehicle). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005237 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1