IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220007105 APPLICANT REQUESTS: reconsideration of his previous request for Combat-Related Special Compensation (CRSC). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Infantry AIT (Advanced Individual Training) Certificate, 21 October 1976 * DD Form 214 (Report of Separation from Active Duty), 19 July 1976 * Narrative Summary (NARSUM), 16 May 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 21 February 1980 * Memorandum, Placement on TDRL (Temporary Disability Retired List), 23 February 1980 * DA Form 199 (PEB Proceedings), 20 October 1981 * Doctor's Progress Notes * Chronological Record of Medical Care, 30 October 1995 * Consultation Sheet, 12 July 1996 * Psychiatry Outpatient Progress Note, 9 October 1996 * Exercise Reforger (return of forces to Germany) article * page 2 of CRSC denial * medical documents 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 AR20100001026 on 22 July 2010. 2. The applicant states he has dysthymia from exercise Reforger and degenerative arthritis left and right knee and right femur. 3. The applicant enlisted in the U.S. Army Reserve on 30 June 1975, for a period of three years. He entered active-duty training (ADT) on 11 January 1976 and was awarded the military occupational specialty (MOS) 11B (Infantryman). He also held MOS 52B (Power Generator Equipment Operator). He was honorably released from ADT on 19 July 1976. 4. He enlisted in the Regular Army on 21 September 1976, for a period of three years. He served in Germany from 16 November 1976 – 12 November 1978. 5. The applicant provided medical records to support his claim. His NARSUM, dated 16 May 1979, shows his chief complaint as pain in the right thigh. a. His diagnoses were: * bone infarct, distal right femur, cured; LOD Yes * wound infection secondary to surgery; LOD: Yes * fracture, right femur, distal one third, closed, secondary to surgery, healing; LOD: Yes * DJD (degenerative joint disease), both knees, moderate, right greater than left; LOD: Yes * stiffness, right knee (passive motion 0-60°) secondary to diagnosis #2, 3, 4; LOD: Yes b. It was recommended that he be presented to the physical evaluation board (PEB) for disposition under the provisions (UP) of paragraph 3-13d (2), Army Regulation (AR) 40-501 (Standards of Medical Fitness), joint range of motion, knees; 3-14a (2), arthritis due to trauma. 6. A DA Form 3947 (Medical Board Proceedings) shows a medical evaluation board (MEB) convened on 8 January 1980, and determined the applicant was medically unfit for further military service. a. The applicant had the following medical conditions and/or physical defects: * bone infarct, distal right femur, cured * wound infection secondary to surgery * fracture, right femur, dis ta 1 one third, closed, secondary to surgery, healing * DJD, both knees, moderate, right greater than left * stiffness, right knee (passive motion 0-60°) secondary to Dg. #2, 3, 4; (paragraph 3-14a (2), AR 40-501) b. He was referred to a PEB; the applicant did not desire to continue active duty. 7. A DA Form 199 shows a PEB convened on 11 January 1980. The PEB found the applicant unfit and recommended his placement on the TDRL with a combined rating of 70% and a reexamination in July 1981. a. The following conditions were found unfitting: * fracture right femur, nonunion, without loose motion weight bearing preserved by cast and crutches rated at 60% * traumatic arthritis, both knees, full range of motion left knee and 0-60 right knee rated at 11% b. MEB diagnosis 1 and 2 were found non-ratable. c. The PEB also made the following administrative determinations: * retirement was not based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law * the disability did result from a combat related injury as defined in 26 U.S.C. 104 8. Orders D32-2, issued by U.S. Army Military Personnel Center, Alexandria, VA, on 14 February 1980, shows the applicant was relieved from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions which permits his placement on the TDRL effective 21 February 1980. His disability percentage was 70%. 9. Accordingly, he was honorably retired from active duty on 21 February 1980, for physical disability, temporary. He completed 3 years, 5 months, and 1 day of net active service this period. 10. The applicant provided a DA Form 199 showing his reevaluation PEB convened on 20 October 1981. a. The board found the current evaluation indicated the fracture of his right femur had healed with some shortening (malunion); there was bilateral traumatic arthritis of the knees. He remained unfit and permanent retirement was indicated. b. Accordingly, the PEB found the applicant unfit with a 30% rating and that he be permanently retired from the service. 11. Orders D224-8, issued by U.S. Army Military Personnel Center, Alexandria, VA, on 20 November 1981, shows the applicant was removed from the TDRL on 31 December 1981, because of permanent physical disability. He was rated 30% disability. 12. The applicant provided an article for Exercise Reforger to show he was a part of Reforger 77 and 78. 13. On 1 December 2009, the U.S. Army Human Resources Command, Alexandria, VA, CRSC Branch determined that the applicant's degenerative arthritis (left knee), dysthymic disorder, impairment of femur (right knee and leg), and scars (right thigh) were not combat related and denied his request for CRSC. 14. In his previous request (AR20100001026) on 22 July 2010, the Board considered his application under procedures established by the Secretary of the Army and determined that the evidence presented does not demonstrate the existence of a probable error or injustice. The Board denied his request. 15. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR appearing to request his mental health condition be determined an additional unfitting condition for military service with a subsequent increase in his military disability rating; and a reversal of the U.S Army Human Resources Command’s (USA HRC) determinations that he is not eligible for Combat Related Special Compensation (CSRC). b. On his DD Form 149, the applicant states in block 5 for “I request the following error or injustice in the record be corrected: “Dysthymia Exercise REFORGER {Return of Forces to Germany EXERCISE}. For block 6 “I believe the record to be in error or unjust for the following reasons” he states “Degenerative arthritis left and right knee, right femur.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The DD 214 for the period under consideration shows he regular Army on 21 September 1976 and was placed on the with Temporary Disability Retirement List (TDRL) on 21 February 1980 under Title 10 USC 1202. Discharge orders show that following a TDRL reevaluation, he was removed from the TDRL and permanently retired for physical disability on 31 December 1981 with a 30% disability rating. d. From the 16 May 1979 medical evaluation board (MEB) narrative summary: “PAST MEDICAL HISTORY: The patient had a history of degenerative joint disease in both knees, right greater than left since 1977, which had been treated with some success with aspirin, and physical therapy. The remainder of the medical history is noncontributory. HISTORY OF PRESENT ILLNESS: This 31-year-old, black male, first noted pain in his right thigh in March 1979 which was exacerbated by activities and standing and not necessarily relieved by rest. Pain progressed in frequency and in intensity over the next several months and on evaluation at Martin Army Hospital a blastic lesion was noted in the right distal one third of the femur. The patient was subsequently sent to Walter Reed Army Medical Center on 16 May 1979 for further evaluation and possible biopsy. HOSPITAL COURSE: The patient was admitted for work-up of the lesion in his distal right femur and on 25 June 1979 the patient underwent an excisional biopsy with pathology report returning findings consistent with bone infarct.” e. The applicant was treated with a long leg hinged walking cast. The biopsy site was noted to be infected on 2 July 1979 which was treated with irrigation and debridement, and he was place back in a long leg walking cast and place on convalescent leave. On 12 October 1979, he fell and fractured through the biopsy site. He was continued in long leg cast with intermittent traction. He did undergo a second irrigation and debridement for the wound infection. “PRESENT CONDITION: The member has stiffness of the knee which will improve only slightly with time. His femur fracture is proceeding to union without complication. His wound infection continues to drain. He is ambulatory on crutches, able to perform all functions of daily living. His status will improve with time but not to the point of making him eventually fit for duty. Permanent medical retirement at this time is advised.” f. On 11 January 1980, a physical evaluation board determined the applicant’s “Fracture right femur, nonunion, with loose motion” and his bilateral knee traumatic arthritis were unfitting conditions for continued service. They determined that these conditions were “not based on disability from injury or disease received in the 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 war as defined by law;” or had resulted from a combat related injury as defined in 26 U.S.C 104. The femur condition was deemed not stable for final rating purposes and he was placed on the TDRL with a disability rating of 70%. g. His 5 August 1981 narrative summary for his TDRL reevaluation states: “INTERVAL HISTORY: Since being placed on the TDRL, the patient has enrolled in school and at the present time is studying drafting. He takes from 6-8 aspirin tablets a day … He requires treatment about once every six weeks, primarily because of {right} knee pain … He has no drainage from the operative site since April of this year, and except for some early morning stiffness and pain with movement, seems to be doing fairly well. He does develop some pain in the right knee after walking approximately two city blocks and is wearing a shoe with a built-up heel and sole of one inch on the right foot.” h. After his TDRL reevaluation, the applicant non-concurred with the informal PEB’s findings and requested a formal PEB. Form his on 20 October 1981 formal PEB: “Member was placed on TDRL 22 Feb 80 with 70% disability for impairment of lower extremity function. Current evaluation indicates fracture of right femur has healed with some shortening (malunion). There is bilateral traumatic arthritis of the knees. He remains unfit and permanent retirement is indicated. Formal presentation was considered. The PEB adheres to its findings of 28 Sep 81.” i. He was permanently retired for physical disability with a 30% military disability rating. j. Submitted documentation contains a 9 October 1996 physiatry outpatient progress note: “Patient reports doing well with no adverse effects to Pamelor. He has not increased the dose above 25 mg daily. He reports that his mood is moderately improved and that he has only had one crying spell since our hist meeting. He has been sleeping well but is somewhat tired during the day.” k. JLV shows the applicant has a VA service-connected disability rating for dysthymic disorder of 50% effective 23 December 1997. l. There is no evidence the applicant had a mental health condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his placement on the TDRL in 1980. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. m. Documentation from the USA HRC’s CRSC office shows he has received their final denial decisions for “Degenerative Arthritis of the Left Knee”, “Dysthymic Disorder”. Impairment of Femur, Right knee/Leg, and Scars on Right Thigh.” n. Combat-related disability for CRSC is defined in 10 U.S.C. § 1413a(e) as a disability that is "attributable to an injury for which the member was awarded the Purple Heart" or was incurred "as a direct result of armed conflict," ''through an instrumentality of war," "while engaged in hazardous service," or "in the performance of duty under conditions simulating war." o. Paragraph 630601A of Department of Defense Financial Management Regulation 7000.14-R, Volume 78, Chapter 63: “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, or 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 liability.” p. Paragraph 631001A of Department of Defense Financial Management Regulation 7000.14-R Volume 7B Chapter 63 “Combat-Related Special Compensation (CRSC)” defines the basis for determining combat related for the purposes of awarding CRSC: “Determinations of whether a disability is combat-related will be based on the preponderance of available documentary information where quality of information is more important than quantity. All relevant documentary information is to be weighed in relation to known facts and circumstances, and determinations will be made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture.” q. It is the opinion of the ARBA medical advisor there is no evidence to reverse U.S Army Human Resources Command’s findings that the applicant’s conditions are not combat related under Department of Defense Financial Management Regulation 7000.14-R, Volume 78, Chapter 63; and that neither an increase in his military disability rating nor a referral of his case to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records, Human Resources Command (HRC) CRSC branch and the medical review the Board, concurred with the advising official finding no evidence to reverse U.S Army Human Resources Command’s findings that the applicant’s conditions are not combat related. The Board determined that an increase in his military disability rating nor a referral of his case to the DES is warranted. Evidence shows the applicant's degenerative arthritis (left knee), dysthymic disorder, impairment of femur (right knee and leg), and scars (right thigh) were determined not to be combat related and his request for CRSC was denied by human resources command in 2009. Furthermore, the record reflects there was no established definite causal relationship between the armed conflict and the resulting liability. Based on the preponderance of evidence the Board determined there was insufficient evidence for reversal of the U.S. Army Human Resources Command decision to deny him combat related special compensation (CRSC). Therefore, relief was denied. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20100001026 on 22 July 2010. 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 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that is incurred as a direct result of armed conflict; while engaged in extra hazardous service, under conditions simulating war; or which is caused by an instrumentality of war. 2. Title 10, U.S. Code, section 1413a, as amended, established Combat-Related Special Compensation (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 a physical disability retirement with less than 20 years’ service for injuries 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.) 3. The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals. It states that in order for a condition to be considered combat-related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war. An instrumentality of war is a vehicle, vessel, or device designated primarily for Military Service and intended for use in such Service at the time of the occurrence or injury. It may include such instrumentalities not designated 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. 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 military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material. 4. On 27 January 2022, the Office of the Undersecretary of Defense published guidance rescinding the requirement in paragraph 3.3 of DoD Directive 1332.41 (Boards for Correction of Military Records (BCMRs) and Discharge Review Boards (DRBs)), for Boards for Correction of Military/Naval Records (BCM/NRs) to obtain advisory opinions concerning CRSC applications from the Director, Military Compensation Policy within Office of the Under Secretary of Defense for Personnel and Readiness. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007105 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1