IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230001442 APPLICANT REQUESTS: in effect, reversal of the U.S. Army Human Resources Command (HRC) decision denying him combat-related special compensation (CRSC) for post-traumatic stress disorder (PTSD), Dermatitis, Lumbar Intervertebral Disc Syndrome, and Lower Extremity Radiculopathy of the Sciatic Nerve. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two HRC letters * Department of Veterans Affairs (VA) Disability Rating Decision * Advice of Right to Counsel * DA Form 5893 (Soldier's Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) Counseling Checklist) * DD Form 214 (Certificate of Release or Discharge from Active Duty) with associated DD Form 215 (Correction to DD Form 214) * DD Form 2870 (Authorization for Disclosure of Medical or Dental Information) * Reconsiderations, Reviews, and Updates * Defense Finance and Accounting Service (DFAS) Summary of Retired Pay Account * Secretary of Defense Memorandum, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder * Letter from civilian law firm * DA Form 199 (Informal PEB Proceedings) * PTSD Treatment Plan FACTS: 1. The applicant states, in effect, HRC should have fully approved his request for CRSC, based on his PTSD and the other cited medical conditions; the VA has awarded him service-connection and all treatment records, which are available in the VA healthcare system, should prove his physical conditions resulted from an instrumentality of war, and his PTSD from both an armed conflict and instrumentality of war. 2. The applicant provides: * Documents from his official military personnel file and his Disability Evaluation System processing * VA's subsequent approval of service-connection for PTSD with a 70 percent disability rating, 30 percent for Dermatitis, and 20 percent for Lumbar Intervertebral Disc Syndrome and both Right and Left Lower Extremity Radiculopathy * HRC letters claiming it found no documentation establishing that the applicant's PTSD and other cited conditions were combat-related * Secretary of Defense's memorandum, dated 3 September 2014, requiring Board of Correction to consider previously unrecognized PTSD when evaluation requests for character of service upgrades 3. A review of the applicant's service record reveals the following: a. On 6 January 1989, the applicant enlisted into the U.S. Army Reserve (USAR) and, upon completion of initial entry training and the award of military occupational specialty 91D (Operating Room Specialist), orders honorably released the applicant from active duty (REFRAD) and returned him to his Troop Program Unit (TPU). Through reenlistments and extensions, the applicant continued his service in the USAR. b. On 27 December 1990, orders called the applicant to active duty, per Title 10 (Armed Forces), United States Code (USC), section 673 (subsequently renumbered 12302 (Ready Reserve)). On 13 January 1991, the applicant deployed to Southwest Asia; on 6 May 1991, he redeployed to the continental United States and orders honorably REFRAD the applicant and released him to the USAR. His DD Form 214, as amended by a DD Form 215 shows he completed 4 months and 29 days of net active duty service; item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the following: * Army Service Ribbon * National Defense Service Medal * Southwest Asia Service Medal with three bronze service stars * Kuwait Liberation Medal * Two marksmanship qualification badges c. Effective 1 September 2015, the Army promoted the applicant to master sergeant (MSG)/E-8. On 30 July 2020, a PEB determined the applicant was physically unfit to continue military service. (1) The PEB based its findings on the following medical conditions, incurred while the applicant was deployed in support of Operations Desert Storm and Desert Shield and later aggravated during annual training: * Multi-level degenerative disc disease of the lumbar spine, status-post lumbar fusion, and spinal stenosis * Right lower extremity radiculopathy * Left lower extremity radiculopathy (2) Among the medical conditions found to be not unfitting was PTSD. (3) The PEB recommended the applicant's permanent disability retirement with a combined 50 percent disability rating. (4) On 5 August 2020, the applicant indicated he concurred with the PEB's findings and recommendations and waived his right to a formal hearing; in addition, the applicant stated he did not request the VA to reconsider its ratings. d. Effective 11 September 2020, U.S. Army Physical Disability Agency orders placed the applicant on the Permanent Disability Retired List at the retired grade of MSG/E-8 and with a 50 percent disability rating. The orders additionally noted the following: * Disability is based on injury or disease received in LOD (line-of-duty) as a direct result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law: NO * Disability resulted from a combat-related injury as defined in Title 26 (Internal Revenue Service), USC, section 104 (Compensation for Injuries or Sickness): NO * Retirement is due to a disability incurred in the line of duty in a combat zone or as a result of performing combat-related operations: YES e. On 20 October 2020, HRC advised the applicant, via letter, that it was unable to process his CRSC claim because, while they had confirmed his retired status, they were unable to verify he had filed a VA waiver. On 30 October 2020, the applicant signed a VA Form 21-651, electing to receive VA compensation in lieu of his disability retired pay. f. On 7 April 2021, HRC approved the applicant request for CRSC, based on two medical conditions: Irritable Bowel Syndrome and Tinnitus; HRC advised it was unable to verify the applicant's PTSD, Dermatitis, Lumbar Intervertebral Disc Syndrome, and Lower Extremity Radiculopathy of the Sciatic Nerve were combat-related. On or about 17 May 2021, HRC issued its second disapproval of the applicant's request for CRSC based on his PTSD, and final disapprovals for Dermatitis, Lumbar Intervertebral Disc Syndrome, and Lower Extremity Radiculopathy of the Sciatic Nerve. 4. MEDICAL REVIEW: a. 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 EMR (AHLTA and/or MHS Genesis), 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: b. The applicant is applying to the ABCMR requesting reversal of the United States Army Physical Disability Agency’s and the United States Army Human Resources Command’s (USAHRC) administrative determinations that several of his VA rated disabilities were not related to combat as defined by law. He states: “9411 – PTSD - All treatment record, private treatment records and overall evidentiary records – Armed conflict and Instrumentality of war. 7806, 5243, 8520 should be review as instrumentality of war.” [Note*: The four-digit numbers are VA Schedule of Rating Disability (VASRD) diagnostic codes (DC)] c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Orders published 7 August 2020 by the United States Army Physical Disability Agency show he was permanently retired for physical disability with a 50% military disability rating effective 11 September 2020 under provisions provided in chapter 4 of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (17 January 2017). It shows none of his disabilities had been determined combat related. CRSC as described on the United States Army Human Resources Command website: “Combat-Related Special Compensation (CRSC) is a form of concurrent receipt which is paid monthly. It restores military retired pay that is offset when a Military Retiree accepts compensation from the Department of Veterans Affairs (VA) for a disability or condition that can be attributed to a combat-related event as defined by the Department of Defense (DoD) program guidance. This allows eligible Retirees to concurrently receive an amount equal to or less than their length of service retirement pay and their VA disability compensation, if the injury is combat-related.” d. The applicant’s Informal Physical Evaluation Board (PEB) Proceedings (DA 199) show the applicant was determined to have three conditions which were unfitting for continued military service: “Multi-level degenerative disc disease of the lumbar spine, status-post lumbar fusion, and spinal stenosis” (VA DC 5243); “Right lower extremity radiculopathy” (VA DC 8520); and “Left lower extremity radiculopathy” (VA DC 8520). The PEB made the administrative determination none of the disabilities was combat related: They found no evidence that one of these 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; or that he was a member of the military on or before 24 September 1975. The PEB stated the same onset in the rationale for each disability: “The Soldier reports onset in 1991 while deployed in support of Operation Desert Storm. The Soldier's Commander, CPT , indicated the Soldier was reinjured on orders for Annual Training on 17 July 2017. A memorandum from CPT , dated 7 February 2020, and DA Form 2173, Statement of Medical Examination and Duty Status, dated 20 February 2020, have been added to the casefile.” e. For the purpose of granting CRSC, combat related is defined in paragraphs 630601, 630602, 630603, and 630604 respectively of Department of Defense Financial Management Regulation 7000.14-R, Volume 78, Chapter 63: “630601. Direct Result of Armed Conflict 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. 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. Armed conflict may also include incidents involving a member while interned as a prisoner of war, while detained against his or her will in the custody of a hostile or belligerent force, or while escaping or attempting to escape from such confinement, prisoner of war, or detained status. 630602. 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 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.” 630603. 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.” 630604. Instrumentality of War 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. 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. 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.” f. CRSC combat related requirements for determining a condition combat related are defined in Chapter 63, Volume 7B of DoD 7000.14R, Financial Management Regulation, is titled “Combat-Related Special Compensation (CSRC)”. 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.” g. No medical documentation was submitted with the application and the applicant’s DA Form 199 does not lists a mechanism of injury(s). The applicant’s CRSC application was not submitted with the application nor uploaded into iPERMS. From the DA 2173 referenced by the PEB: “AHL TA medical records, dated 17 July 2017, indicate SM experienced a flare up of back pain with radicular symptoms down his right/left leg. SM received intramuscular injection for pain and placed on quarters for 48 hours.” “Certified orders confirm SM's participation in AT [Annual Training] at time of incident. SM stated he was walking upstairs when his feet felt weak and he tripped, falling to the ground. SM stated he immediately felt pain in his lower back and sought medical treatment for relief.” h. The applicant was evaluated for low back pain at a clinic on Shaw Air Force Base on 17 July 2017. The provider wrote: “47-year-old male presents with a 10+ year history of lower back pain. Pt [patient] states current flare up of back pain with radicular symptoms down right/left leg. Pt does not have numbness/tingling in extremities. Pain is worse by bending, twisting, walking, activity and running. Patient is taking gabapentin 600 mg 1 tablet orally three times a day without good relief. Patient has 4 bulging discs in lower back and sees a pain psychologist and pain management at the VA in Atlanta, GA. Patient is under a pain management contract with is Pain doctor. Patient is states he is at a 7/10 pain & his tens [transcutaneous electrical nerve stimulation] unit is not helping and would like muscle relaxes to aid the spasms.” i. From his 8 October 2019 medical evaluation board narrative summary: “Onset. MSG [Applicant] is an Army Reserve Soldier. AHLTA record review reveals he was seen on August 18, 2016, for his back pain getting worse. At this visit, he reported a 10-year history of lower back pain without known trauma. Orthopedic evaluation dated March 18, 2016, indicated he injured his back from a MVA accident without specifics of where and when. There is no available record of this.” j. In his 26 July 2019 IDES Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (aka “VA C&P”): “The condition started 1991. The condition began with having leg cramps and low back pain. When the condition began the symptoms where he was in 251st hospital in Desert storm. He was a surgical tech and got anthrax and some pills and got real hot, sweating, vomiting, muscle weakness at age 18.” k. To award CRSC for PTSD under the category of armed conflict, the claimant must submit official documentation that shows how the condition is combat related as defined by CRSC program guidance. Official documentation includes wartime chain of command endorsements which confirms exposure to armed conflict (Wartime chain of command must be First Sergeant and/or Company Commander or higher), copies of combat decorations (certificates, combat badges, and DA Form 638s), and evaluation reports which support exposure to armed conflict. l. From his 22 July 2019 Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire: “Claimant has had several C and P exams. He has also been seen multiple times by the Trauma Recovery Team [TRP]. All exams were negative for PTSD. It was documented that claimant did not meet the DSM dx criteria for PTSD based on multiple factors including his continued work as a surgical technician for 12 years after his active duty ended. It is documented that claimant appeared to be exaggerating his symptoms while being seen at the VA for his evaluation with the TRP. He was seen as exaggerating his trauma exposure and some of the details were inconsistent.” m. The other VA DC referenced by the applicant is 7806 – Dermatitis. No reason for a combat related determination for this condition was given or identified. n. 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.” o. The applicant is not in receipt of a Purple Heart, Combat Action Badge, and no corroborating documentation was found. A note in paragraph 630502 of DoD FMR 7000.14-R Volume 7B Chapter 63 CRSC notes the requirement for documentation, stating in part: “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 based on the program criteria.” p. That these conditions were incurred in the line of duty during his service to his country is unquestioned. However, it is the opinion of the ARBA medical advisor there is insufficient probative evidence upon which to reverse the previous non-combat related determinations of the United States Army Human Resources Command. 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 insufficient probative evidence upon which to reverse the previous non-combat related determinations of the United States Army Human Resources Command. Evidence in the record show the no causal relationship between the armed conflict and a resulting liability. Furthermore, the Board noted there were notes that the applicant appeared to be exaggerating his symptoms while being seen at the VA for his evaluation with the TRP. He was seen as exaggerating his trauma exposure and some of the details were inconsistent.” 2. The Board agreed, based on U.S. Army Human Resources Command (HRC) decision denying him combat-related special compensation (CRSC) for post-traumatic stress disorder (PTSD), Dermatitis, Lumbar Intervertebral Disc Syndrome, and Lower Extremity Radiculopathy of the Sciatic Nerve, regulatory guidance and medical review the Board agreed that a reversal on the previous non-combat related determinations for correction is not warranted. Therefore, relief was denied. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, 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 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. ADMINISTRATIVE NOTE(S): 1. Army Regulation (AR) 635-8 (Separation Processing and Documents), currently in effect, states the DD Form 214 will list all Federally recognized awards and decorations for all periods of service. 2. AR 600-8-22 (Military Awards), currently in effect, states: a. The Army authorized Soldiers to be awarded the Kuwait Liberation Medal, awarded by the Kingdom of Saudi Arabia; eligibility included Soldiers who had participated in the Gulf War between 17 January 1991 and 28 February 1991. b. The Army additionally authorized Soldiers to receive the Kuwait Liberation Medal awarded by the Government of Kuwait; the Soldiers had to have participated in the Gulf War between 2 August 1990 and 31 August 1993. c. The Armed Forces Reserve Medal is awarded for qualifying service, on or after 1 August 1990 to Reserve Component Soldiers called to active duty and who served under Sections 12301(a), 12302, 12304, 12406, of Title 10, USC. The “M” Device is worn on the Armed Forces Reserve Medal to denote service by Reserve Component personnel who volunteered or were called to active duty during a mobilization or a contingency designated by the Secretary of Defense. 3. Based on the foregoing, amend as follows the applicant's DD Form 214, ending 25 May 1991, and as amended by a DD Form 215, issued on 22 January 1993: a. Delete the Kuwait Liberation Medal. b. Add the Kuwait Liberation Medal – Saudi Arabia, Kuwait Liberation Medal – Government of Kuwait, and the Armed Forces Reserve Medal with "M" Device. REFERENCES: Title 10, USC: a. Section 1413a (CRSC) provides for the payment of money a military retiree would be receiving VA for combat-related disabilities if not for the statutory prohibitions. The military department, not VA, pays the retiree and the money is tax-free. (1) Eligibility requirements: * The retiree must have completed 20 years of active-duty service, or 20 years of qualifying service for a non-regular retirement * VA has awarded the retiree a disability rating of at least 10 percent * The retiree has had his military retired pay reduced by the amount of VA's disability compensation (2) Combat-related disability is defined as medical conditions incurred: * as a direct result of an armed conflict * while engaged in hazardous service, such as aerial flight, parachute duty, demolition duty, or diving duty * because of an instrumentality of war, i.e., tanks, armored personnel carriers, and other armored vehicles designed primarily for military service; military air and watercraft; weapons, ammunition, and explosive devices * during the performance of duty under conditions simulating war, due to military training exercises, war games, leader reaction courses, and/or obstacle courses b. Section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001442 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1