IN THE CASE OF: BOARD DATE: 25 February 2021 DOCKET NUMBER: AR20200001393 APPLICANT REQUESTS: correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show his degenerative disc disease of the cervical spine: * was based on injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law * resulted from a combat related injury APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * two pages of radiology records, dated between February and June 2015 * Standard form 600 (Chronological Record of Medical Care), dated 1 February 2016 * four memoranda for record * DA Form 199, dated 20 May 2016 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the 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: a. As it pertains to his Medical Evaluation Board (MEB)/PEB, his MEB shows his unfitting condition of degenerative disc disease of the cervical spine does not qualify as a combat related injury under Title 26, USC, section 104, as it states the specific method if injury is unknown. He would like this changed. His cervical condition does qualify for benefits associated with Title 26, USC, section 104. b. On 1 February 2016, as seen in his medical records, he reported the date, time, and place of the original injury to his cervical spine, yet this information was not correctly reported on his MEB/PEB. He clearly stated to the doctors on this 1 February 2016 visit when and where his injury happened. Why was this not correctly transferred to his future records? Furthermore, he provided a memorandum for record (MFR), dated 29 February 2016, with more specific information regarding the injury and the simulated combat activities. He also annotated this on pages 6 and 7 of his MEB worksheet as well as told the doctors; nonetheless his MEB/PEB shows the specific method of his injury is unknown, when it is known. c. In November 2009, while in the performance of duty under conditions simulating war with the 4th Infantry Division, 3rd Brigade Combat Team, 1st Battalion, 8th Infantry Regiment, he suffered a career-ending injury as a maintenance platoon squad leader/truck commander during a simulated war-time convoy training exercise at Fort Irwin National Training Center (NTC) in California. d. Between the hours of 2200 and 0600, their unit was conducting convoy operations while in performance of duty under conditions simulating war. His vehicle, a Heavy Expanded Mobility Tactical Truck Palletized Loading System (HEMTT PLS), while pulling a fully loaded tool trailer, started to fall behind the convoy because it was extremely dark, dusty, and bumpy. His Soldier was driving and he was the sergeant in the passenger seat, or the truck commander. They were wearing seatbelts, Kevlar helmets, Improved Outer Tactical Vests, knee and elbow pads, gloves, and eye protection. As his Soldier was trying to use the 5 mile per hour (mph) catch up speed (20-25 mph), he hit a huge ditch in the road causing the applicant to be thrown upwards from his seat, hitting his head on the ceiling of the truck, twisting his neck, seeing stars, and crashing back down into the seat. He did not see a medic at the time due to the high operational tempo of what they were doing and they had just started their wartime training as it was the beginning of their exercise. As a sergeant in the Army, you always put your Soldiers first and by the time they arrived, it was mass chaos with downloading and accounting for people and equipment. e. He suffered a severe neck injury with lasting issues and has been victim to two to three non-epileptic seizures in 2 years after being medically retired from the Army in August 2016. When he was seen at Virginia Commonwealth University (VCU) in 2015, they recommended surgery in the future. He has had two or three steroid epidural shots from Maple Leaf Orthopedic in his neck area immediately after his medical retirement, early in 2016 and has not felt any relief. f. Since this war-time training accident happened in November 2009, he continued his active duty service with another deployment to Iraq, received a Soldier's Medal for heroism, was promoted to staff sergeant, made the sergeant first class list 1 month after he received his retirement certificate, taught mechanics as an instructor/writer at Fort Lee, VA, all while going through physical therapy and then finally being discharged with his neck being one of the major injuries requiring surgery. g. This injury causes him pain every day. Sometimes he can’t even type his homework for college or write a paragraph because he loses feeling in his right hand. This is one of the reasons he no longer attends college in the classroom; he feels embarrassed. His sex life has also been affected by this. This injury causes him to lose sleep at night because he tosses and turns and can’t get comfortable. He has wasted so much money on pillows, creams, steroid shots, heat pads, cold pads, over the counter pain medication, over the counter sleep medication, prescribed medication, and taking his vehicle to a mechanic because he can no longer do the work he used to do. This injury has caused him to not be able to play with his dogs or drive, or if he does drive he has to take frequent breaks. He has crepitus (a grating sound produced by friction between bone and cartilage) in his neck and can feel the bones moving and crunching every day, especially if he turns a certain way. He has also experienced two to three non-epileptic seizures, which he never previously had in his life. h. His injury falls under Title 10, USC, section 1413a, as amended, allowing for Combat Related Special Compensation (CRSC) because he was injured at the NTC at Fort Irwin, CA, in November 2009 while he was performing his duties 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, repelling, 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 sport activities. His statement is true and he knows CRSC will help improve his life. 3. After just under 9 months of prior active and inactive service, the applicant enlisted in the Regular Army on 4 August 2005. 4. The applicant deployed to the following locations on the following occasions: * Iraq, from 27 September 2005 through 23 August 2006 * Afghanistan, form 8 January 2008 through 15 December 2008 5. The applicant’s available service records do not contain documentation from his training exercise at the NTC at Fort Irwin, CA in November 2009. 6. The applicant again deployed to Iraq from 13 March 2010 through 1 February 2011. 7. He provided multiple radiology reports that show the following: a. A 25 February 2015 image of his right shoulder and left tibia-fibula shows: * he was previously evaluated by physical therapy with questionable bursitis and possible overuse symptoms to his right shoulder * the applicant stated he had a previous fracture of the left tibia and denied any recent trauma to the area, but it hurts more with the cold * the left tibia-fibula demonstrated an old healed mid shaft fibular fracture with no other significant findings * the right shoulder demonstrated mild hypertrophic degenerative changes of the AC joint b. The 25 February 2015 report of the MRI of the L-Spine without contrast is incomplete and does not contain the results, but shows he reason for the order was the applicant's complains of low back pain with radicular symptoms. c. A 21 May 2015 report of the image of his cervical spine is incomplete. It shows these images were ordered due to chronic neck pain with increased discomfort with range of motion; no specific inciting trauma; C6-C7 is the most prominent locale of pain. No evidence for prevertebral soft tissue swelling was noted. Reversal of the cervical lordosis was noted. Moderate narrowing involving the intervertebral disc spaces was most pronounced at C5-C6 and less pronounced at C6-C7, with minimal degenerative retrolisthesis at these levels. Anterior and small posterior spondylotic spurring was most pronounced at C5-C6. Multilevel changes of degenerative osteoarthrosis of the fact joins were noted; essentially stable. d. A 26 June 2015 image of his left foot was normal. 8. The applicant also provided a partially illegible Standard Form 600, dated 1 February 2016, which shows: * the applicant wrote on the Medical Retention Determination Point Scratch Sheet that his referring conditions were his neck and lower back * he indicated his back pain began in Afghanistan 2008 – 2009 during work and missions * he indicated his neck pain began in November 2009 at NTC when he hit his head during night operations, seated in the passenger seat of a PLS wearing full battle rattle 9. The applicant provided two MFRs dated February 2016: a. The first is from Captain B____, dated 5 February 2016, wherein he states he was writing on behalf of the applicant regarding his neck and back injuries that occurred over the years while serving in the military. They served together at Fort Carson and there were some concerns about the applicant being the maintenance sergeant with his neck and back injuries, but as a great noncommissioned officer, he always managed to work through the pain to get the mission done. He strongly recommended the applicant be granted the opportunity to be released from the Army through an MEB. b. The second MFR is from the applicant, dated 29 February 2016. Among his statements, the applicant states he injured his back in Afghanistan in 2008-2009 working on a HEMTT Fueler. He also stated while training for his third deployment in November 2009 at NTC, CA, he sustained another injury to his neck while in the passenger seat of a PLS and the vehicle hit a huge dip in the ground, causing him to hit his head on the ceiling of the vehicle. He had imaging done in 2015 and was waiting on a referral to physical therapy. This injury causes him to lose feeling in his three fingers on his right hand and prevents him from doing any heavy lifting or working with tools as this hurts both his shoulder and neck. 10. The applicant’s DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), Medical Evaluation Board (MEB) Narrative Summary (NARSUM), DA Form 3947 (MEB Proceedings), and Department of Veterans Affairs (VA) Compensation and Pension Examination are not in his available records for review and have not been provided by the applicant, although records indicate these documents were available to the PEB at the time of adjudication. 11. A DA Form 199 shows the following: a. An informal PEB convened on 20 May 2016 as part of the Integrated Disability Evaluation System (IDES) and found the applicant physical unfit, with a recommended rating of 50 percent and that his disposition be permanent disability retirement for the following conditions: * degenerative disc disease and degenerative arthritis of the lumbar spine; (MEB diagnosis 1); 20 percent; onset occurred in 2011 while the applicant was stationed in the Continental United States (CONUS); specific method of injury unknown * degenerative disc disease and degenerative joint disease of the cervical spine (MEB diagnosis 2); 20 percent; onset occurred in 2012 while stationed CONUS; specific method of injury unknown * right (major) upper extremity radiculopathy (MEB diagnosis 3); 10 percent; onset occurred in 2012 while stationed CONUS; specific method of injury unknown * right lower extremity radiculopathy and restless leg syndrome (MEB diagnosis 1); onset occurred in 2011 while stationed CONUS; specific method of injury unknown b. He was found fit for MEB diagnoses 4 through 19 because these conditions met retention standards and there was no indication any of these conditions caused physical profile limitations to functional activities or performance issues. c. The PEB found the disability disposition was not based on disease or injury incurred in the LOD in combat with an enemy of the United States 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. The disability did not result from a combat-related injury under the provisions of Title 26 USC, section 104 or Title 10 USC, section 10216 d. On 24 May 2016, the applicant concurred with the findings and recommendations of the IPEB and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. 12. U.S. Army Combined Arms Support Command Orders 155-0501, dated 3 June 2016, released the applicant from assignment and duty because of physical disability that permitted his retirement for permanent physical disability. His effective date of retirement was 30 August 2016 with a permanent physical disability rating of 50 percent. His disability was not based on injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war. His disability did nor result from a combat-related injury as defined in Title 26, USC, section 104. 13. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired in the rank/grade of staff sergeant/E-6 for permanent disability effective 30 August 2016, after 11 years and 27 days of net active service this period. It also reflects he was awarded the Soldier's Medal. 14. The applicant provided two additional MFRs: a. The first MFR, dated 24 September 2019, was written by B_____ who states he served with the applicant when their unit conducted training at NTC in November 2009. He remembers the applicant’s incident. Their platoon was conducting a logistics convoy between the hours of 11 pm and 12 am to drop off a tool trailer and other supplies while wearing full battle gear. The applicant was the truck commander of an HEMTT PLS and the driver was a Soldier. This was in the middle of the desert where dust in a factor while convoying and it was easy to fall behind. He remembers the applicant and the driver were falling behind and needed to catch up while driving between 20-25 mph. When they finally caught up, the applicant told him they had hit a ditch in the road, causing both in the vehicle to hit their heads and necks and be thrown around. While conducting training there was no time to see or even talk with a medic, so neither the applicant nor the driver could get checked out. They were also told by their chain of command it they weren’t bleeding to keep going and suck it up. Therefore, the applicant kept pushing through is injury and completed NTC without a complaint. b. The second MFR, dated 5 November 2019, was written by Lieutenant Colonel (then Captain) F_____ who served as the applicant’s company commander at the time of their deployment to NTC at Fort Irwin, CA from late October into November 2009, where the applicant actively participated in the field training that simulated combat operations. The training included convoys conducting resupply operations and simulated direct engagements with enemy forces, activities requiring prolonged wear of protective gear, extended hours of operation with reduced sleep and vehicle movements at night with limited visibility. While he stated he could not stipulate to the specific incident leading to the applicant’s injury, he can confidently attest to the applicant’s integrity and mission-first attitude, which are qualities that would lead him to selflessly ignore his own injury and discomfort to focus on the care of subordinates and mission accomplishment. 15. There is no evidence of record the applicant applied to the U.S. Army Human Resources Command for CRSC approval. 16. Based on the applicant’s condition the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: 2. The applicant is applying to the ABCMR requesting they determine one of the unfitting disabilities which led to his disability retirement as being combat related for having incurred during simulated combat activities. He states: “I suffered a career ending injury on or around November 2009 while in the performance of duty under conditions simulating war with 4th ID, 3BCT, 1-8 IN BN, FSC, as a Maintenance Platoon Squad Leader/Truck Commander during a simulated war time convoy training exercise at Fort Irwin National Training Center in California.” My soldier was driving and I was the Sergeant in the passenger seat or truck commander. We were wearing seatbelts, Kevlar helmets, Improved Outer Tactical Outer Vests, knee and elbow pads, gloves and eye-pro. As my soldier was trying to use the five mile per hour catch up speed (20-25mph), he hit a huge ditch in the road causing me to be thrown upwards from my seat, hitting my head on the ceiling of the truck, twisting my neck, seeing stars, and come crashing back down into the seat. I did not see a medic at that time do to the high op- tempo of what we were doing and we had just started our war time training as it was the very beginning of our exercise. Since this war time training accident happened in November of 2009, I continued my Active Duty service with another deployment to Iraq OIF 10-11, received a Soldiers Medal for heroism, was promoted to Staff Sergeant…” 3. The Record of Proceedings details the applicant’s service and the circumstances of the case. His DD 214 shows he entered the regular Army on 4 August 2005 and was permanently retired for physical disability on 30 August 2016 under provisions provided in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). It also shows three periods of service in a designated imminent danger pay area; Iraq from 27 September 2005 thru 23 August 2006; Afghanistan from 8 January 2008 thru 15 December 2008; and Iraq from 13 March 2010 thru 1 February 2011. 4. On 20 May 2016, a physical evaluation board (PEB) determined the applicant had four medical conditions which were unfitting for continued service: “Degenerative Disc Disease and Degenerative Arthritis of the Lumbar Spine (20%):” “Degenerative Disc Disease and Degenerative Joint Disease of the Cervical Spine (20%);” and “Right (Major) Upper Extremity Radiculopathy (20%); and “Right Lower Extremity adiculopathy and Restless Leg Syndrome (10%). 5. The PEB determined none of the disabilities were combat related: They found no evidence any of the disabilities was the direct result of armed combat; was related to the use of combat devices (instrumentalities of war); was the result of combat training; was incurred while performing extra hazardous service though not engaged in combat; was 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. 6. On 24 May 2016, after being counseled on the PEB’s findings by his PEB liaison officer (PEBLO), the applicant concurred the PEB’s findings, waiving his right to a formal hearing and declining a VA reconsideration of his ratings. 7. Review of his clinical encounters in AHLTA show he first presented for neck pain on 21 May 2015. The provider wrote the applicant has a 2 to 3 month history of neck pain and that the “service member is unsure where pain is coming from.” At his initial physical therapy appointment on 8 June 2015, the provider wrote: “37-year-old active duty male with a chief complaint of neck pain for a period of several years intermittently. Present medical history associated no known trauma.” 8. There is no probative evidence the applicant sustained a significant neck injury in 2009. AHLTA documentation shows no evidence to support the claim, revealing the applicant first presented with neck pain more than 5 years after the claimed injury and without a claimed mechanism of injury or trauma. 9. Given no evidence of error or injustice, it is the opinion of the ARBA Medical Advisor that the awarding of a combat related designation for his cervical disability is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that there is insufficient evidence to support the applicant's claim that his disabling spinal condition is combat related as defined in U.S. Code and Department of Defense Instruction 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2 (Combat-Related). Based on a preponderance of evidence, the Board determined the PEB's conclusion that his disabling conditions were not combat related was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 26, U.S. Code, section104 (Compensation for injuries or sickness) states gross income (for income tax purposes) does not include amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity. The term "combat-related injury" means personal injury or sickness which is incurred- * as a direct result of armed conflict * while engaged in extra hazardous service, or * under conditions simulating war; or which is caused by an instrumentality of war 3. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2 (Combat-Related), 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 shall be considered combat related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 4. DODI 1332.38, paragraph E3.P5.2.2.3 (Under Conditions Simulating War), in general, 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, 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. 5. Appendix 5 (Administrative Determinations) to enclosure 3 of DODI 1332.18 (Disability Evaluation System) (DES) currently in effect, defines armed conflict and instrumentality of war. a. Incurred in Combat with an Enemy of the United States. The disease or injury was incurred in the LOD in combat with an enemy of the United States. b. Armed Conflict. The disease or injury was incurred in the LOD as a direct result of armed conflict (see Glossary) in accordance with sections 3501 and 6303 of Reference (d). The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. c. 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. d. Under Conditions Simulating War. In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat 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. e. Caused by an Instrumentality of War. Occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of 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, the criteria are met. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall. 6. Title 10, U.S. Code, section 1413a, as amended, established CRSC. CRSC provides for the payment of the amount of money a military retiree would receive from the Department of Veterans Affairs (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 disabilities 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.) 7. The Office of the Under Secretary of Defense for Military Personnel Policy provided guidance for processing CRSC appeals. This guidance stipulated 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 or caused by an instrumentality of war. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001393 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1