FOURTH ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03725

		COUNSEL:  

		HEARING DESIRED:  YES


APPLICANT REQUESTS THAT:

His injuries he received during his active duty service be reflected as a direct result of armed conflict; caused by an instrumentality of war or combat-related and he be entitled to Combat-Related Special Compensation (CRSC).


STATEMENT OF FACTS:

The applicant submitted a similar request dated 9 Nov 07.  On 15 Apr 10, the Board recommended that his records be corrected to show that:

	a.  On 30 Jun 06, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnoses in his case were Cervical Spine Pain, VASRD Code 5242, rated at 10 percent; Lumbar Spine Pain, VASRD Code 5243, rated at 10 percent; and Ischial Bursitis, VASRD Code 5019, rated at 10 percent; that the total combined compensable percentage was 30 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

	b.  On 1 Jul 06, he declined Survivor Benefit Plan (SBP) coverage.

	c.  He was released from active duty on 1 Jul 06 and was permanently retired by reason of physical disability, with a 30 percent compensable disability rating, effective 2 Jul 06.

The Director, Air Force Review Boards Agency, agreed with the recommendation of the Board; however, he directed the applicant be granted a 60 percent compensable disability rating, rather than 30 percent, effective 2 Jul 06.

The applicant also requested reimbursement of medical expenses; however, this portion of his request was denied because the AFBCMR was empowered only to correct military records.  Determining the benefits and entitlements that are a consequence of such corrections is the responsibility of the offices of primary responsibility (in this case, TRICARE and the Defense Finance and Accounting Service (DFAS)) (See Administrative Record (AR) at Exhibit FF) and the Record of Proceedings at Exhibit GG (AR pgs. 2 - 9).

A similar appeal was considered and denied by the Board on 30 Apr 12.  For an accounting of the facts and circumstances surrounding the applicant's appeal, and, the rationale of the earlier decision by the Board, see the Addendum to Record of Proceedings at Exhibit HH (See AR pgs. 358 - 361).

On 3 Dec 12, the Board reconsidered the applicant's request and noted that while the documents were considered by the previous panel, they were inadvertently omitted from the list of Exhibits on the Addendum to the ROP dated 30 Apr 12.  Additionally, the Board denied his request that his injuries be determined to be combat-related and his request for reimbursement of his medical and dental expenses.  The Board did not find the applicant's evidence and argument persuasive on the point of establishing his disability as combat-related.  On his request for reimbursement of his medical expenses, the Board again noted for the applicant that the Board's previous grant making him a disability retiree did qualify him for medical benefits, but he would have to take steps of his own to collect on his entitlement.  See the Second Addendum to Record of Proceedings at Exhibit II (See AR pgs. 502 - 505).

By letter, dated 23 Jan 13, the applicant again requested reconsideration, contending this time that while the Board had directed that he be reimbursed for his first move, he had not been paid.  With respect to reimbursement of his medical and dental bills, and health insurance premiums, he states that the Board's first addendum to the Record of Proceedings contends that he failed to exhaust some remedy in connection with this portion of his application.  However, the second addendum to the Record of Proceedings made no mention of any failure to exhaust any remedy and he is unsure of why the Board abandoned that portion of its earlier rationale.  Further, he notes that the second addendum seems to suggest that relief was denied because he declined Medicare Part B coverage on 10 Dec 10 and 1 Jun 12, and that Part B enrollment is required to be eligible for Medicare disability benefits and feels that neither is a basis to deny relief.  

On 25 Mar 13, the AFBCMR staff examined his request and determined that it did not meet the criteria for reconsideration by the Board (Exhibit JJ) (See AR pg. 612 - 613)

On 7 May 13, the United States Court of Federal Claims (CoFC) remanded the case to the Board and directed the Board address all of the issues raised in plaintiff's request for reconsideration of the AFBCMR's Second Addendum to its Record of Proceedings.  On 2 Jul 13, the Board considered and denied all of the applicant's appeals and provided the Board decision and the rationale to the CoFC.  For an accounting of the facts and circumstances surrounding the applicant's appeal, and, the rationale of the earlier decision by the Board, see the Third Addendum to Record of Proceedings at Exhibit KK (See AR 615 - 620).

On 16 Jan 15, the CoFC remanded the case to the Board and directed the Board to (1) obtain an advisory opinion from the Director of Compensation, ODUSD/MPP, pursuant to Department of Defense Directive (DoDD) 1332.41, Boards for Correction of Military Records (BCMRs) and Discharge Review Boards (DRBs), para 3.3, Combat-Related Special Compensation (CRSC); (2) consider and address the advisory opinion and grant plaintiff any relief it determines that he is entitled to receive, if any; and (3) issue a decision explaining in detail the rationale supporting its final decision (Exhibit LL).

Pursuant to the Board's request, In Accordance With (IAW) guidance found in Directive Type Memorandum Revised Guidance on Combat-Related Special Compensation (CRSC), dated 27 Apr 04 and Supplemental Guidance on Combat-Related Special Compensation (CRSC), dated 3 Jun 08, the member completed an application for CRSC, DD Form 2860, Claim For Combat-Related Special Compensation (CRSC) (Exhibit MM).

On 15 Apr 15, AFPC/DPFDC partially approved the applicant's entitlement to CRSC, with a rating of 10 percent for tinnitus and 0 percent for fibromyalgia with a combined compensable disability rating of 10 percent.  DPFDC denied the applicant's request for CRSC entitlement for:  

        Intervertebral Disc Syndrome (cervical); Paralysis of all Radicular Nerve Groups (cervical radiculopathy involving the left upper extremity); 
        Lumbosacral or Cervical Strain (thoracolumbar); 
        Condition of the Skeletal System (bilateral ischial tuberosity)/bursitis);
        Paralysis of Sciatic Nerve (radiculopathy involving the left lower) (Exhibit NN).

Examiner's Note:  

On 29 Jul 15, after the panel decision, AFPC/DPFDC modified the applicant's entitlement to CRSC, by awarding 10 percent for tinnitus and 10 percent for fibromyalgia with a combined compensable disability rating of 20 percent, effective 1 May 09.  This was based on their determination the applicant was initially rated by the DVA at 10 percent for fibromyalgia, effective May 09.  However, the DVA decreased its rating for fibromyalgia to 0 percent in Oct 09.  The 29 Jul 15 memo made no changes to the previously denied CRSC entitlement for the remaining conditions.  In addition, on 24 Aug 15, counsel emailed the Board a copy of the Board of Veterans Appeals (BVA) decision, dated Aug 15; awarding the applicant total disability based on individual unemployability, from Jul 06 to Jul 08.  The BVA decision made no changes that affected the period of service the applicant claimed for CRSC entitlement.  As the Board had already deliberated the matter remanded to it by the Court, and the issues described in these additional submissions were outside the scope of the remand, neither submission was presented to the panel; however, copies were retained as part of the administrative record. 


AIR FORCE EVALUATION:

AFPC/DPFDC recommends denial of the applicant's request for CRSC entitlement for his degenerative disc disease cervical spine, cervical radiculopathy of the left upper extremity, thoracolumbar sprain, bilateral ischial tuberosity/bursitis, and radiculopathy involving the left lower extremity.  DPFDC found that these conditions did not meet the mandatory criteria for compensation under the CRSC program as outlined under the provisions of Title 10 U.S.C., Section 1413a, and Office of the Under Secretary of Defense Guidance.  Documentation provided did not confirm a specific combat related event as the direct cause of these disabilities.

DPFDC notes that no evidence was provided to confirm the applicant's aforementioned conditions were the direct result of armed conflict, hazardous service, instrumentality of war, or simulating war.

In accordance with DD Form 2860, the fact that a member incurred a·disability in an area of armed conflict, while participating in combat operations, during a period of simulating war, in an area of simulated armed conflict, while participating in simulated combat operations, or during a period of hazardous service is not sufficient by itself to support a combat-related determination.  There must be a definite; documented, causal relationship between the armed conflict, simulated armed conflict, or hazardous service and the resulting disability. While sitting/flying in an aircraft for extended periods may be considered "a period of hazardous service" as stated above, this is not sufficient in and of itself for a combat-related determination.  Some examples of potentially approvable combat-related events while flying are a hard landing or aircraft crash, taking on enemy fire, evasive maneuvers to avoid enemy fire, and extreme drop in altitude due to malfunction or weather.  When making combat-related determinations, the board looks for confirmation of direct exposure to a specific combat-related event and the resulting injury, for example: in service medical records from the time of the injury reflecting "Member is complaining of back pain today after a hard landing yesterday.  X-rays reveal a cervical fracture."

The complete DPFDC evaluation is at Exhibit OO.

The Director of Military Compensation, Office of the Deputy Assistant Secretary of Defense, Military Personnel Policy (OASD/MPP) opines that the AF CRSC board reached proper conclusions in its determination for partial relief.

MPP notes the AFBCMR previously denied the applicant CRSC benefits on 21 May 12.  Subsequently, the applicant filed a CRSC application on 18 Feb 15, which the AF CRSC Board decided on 15 Apr 15.  The AF CRSC Board denied the applicant's request for his degenerative disc disease cervical spine, cervical radiculopathy of his left upper extremity, thoracolumbar sprain, bilateral ischial tuberosity/bursitis, and radiculopathy involving his left lower extremity.  However, the Air Force granted CRSC benefits for tinnitus and fibromyalgia.

Although the rationale for granting CRSC for tinnitus and fibromyalgia is not specifically mentioned, the AF CRSC board's decision should be upheld.  The tinnitus and fibromyalgia are arguably a direct result from engaging in the performance of duty under conditions simulating war, while engaged in hazardous service, or as a direct result of armed conflict (i.e., serving in Iraq in the Persian Gulf).  Although CRSC should be granted for tinnitus and fibromyalgia, the applicant's request for other CRSC benefits should be denied.  The evidence shows the applicant's other health issues were incurred as a result of being hit by a car while riding a bicycle in 1997 and falling in a bathroom in 2004.  

Although the applicant's condition appears to have deteriorated over time, the evidence does not show that the applicant's other health issues were incurred while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war. In addition, the evidence does not show the applicant's other health issues were incurred as a direct result of armed conflict.  The fact that the applicant deployed numerous times and flew numerous missions does not demonstrate that his other health issues were incurred in the requisite manner to qualify for CRSC benefits under 10 USC § 141 3a.

The complete OASD/MPP evaluation is at Exhibit QQ.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel refutes virtually every point made by the OPR and argues the applicant's primary and secondary injuries stemmed from a vehicular accident where he injured his back while riding his bike to work.  However, he contends it was his combat flying duties which aggravated his back and neck pain and contributed to his unfitness.

In addition, counsel explains the circumstances surrounding his duties and specific instances where the applicant's conditions were aggravated during combat-related events and led to his unfitness and that the preponderance of evidence overwhelmingly reflects his combat-related condition.

In his brief, counsel notes the background and previous Board decision and the decision of the court which resulted in the current remand to the Board.

Further, counsel notes following the Court's consent remand, three additional agency submissions were generated.  They are all wide of the mark.  The CRSC Board decision got it all wrong. It took a stab at deciding the CRSC claim without an advisory opinion from DoD, even though that was the reason for the Court's remand.

The AFBCMR never indicated that the CRSC issue was even being submitted to a CRSC Board.  The CRSC Board granted partial relief, recognizing only tinnitus and fibromyalgia, for a combined rating of 10 percent, effective 1 May 09.  The memorandum repeats precisely the same incorrect reading of the statute and regulation that was explained in our previous filings with the service.  What is more, we cannot even determine what materials the CRSC Board reviewed, since it fails to cite any particular documents, despite the wealth of documentation in the AR and the detailed memorandum submitted to the AFBCMR on 21 Feb 15.  Even the effective date is incorrect since it seems to treat the minor CRSC it did approve as time-barred in part (prior to May 2009), obviously overlooking the fact that (1) the applicant's retirement was retroactive and (2) he long ago asserted his CRSC claim before both the AFBCMR and the Court of Federal Claims.  No part of that claim is time-barred.  

The DPFDC advisory opinion fares no better.  It begins inauspiciously with an effort to put out the applicant's lights by claiming he had failed to exhaust his administrative remedies - a position directly counter to the AFBCMR's earlier determination that he had exhausted such remedies.  This contention is especially preposterous given the fact that had he not stumbled across the requirement for an advisory opinion from DoD and alerted the Court and the Department of Justice that he planned to refer to that DoDD 1332.41 requirement at the Court's scheduled hearing on the parties' dispositive motions, it would very likely have gone unnoticed despite the mountain of evidence assembled by the applicant in his 21 Feb 15 submission, the April 15 advisory opinion cites not a single specific medical record.  It also persists in improperly demanding that there be "a specific combat-related event as the direct cause" of the main conditions for which he seeks CRSC treatment.  However, counsel notes, "As already explained in Point I, that is not the law."

Finally, the OASD/MPP advisory opinion recommends denial of CRSC treatment for anything other than tinnitus and fibromyalgia.  In doing so, it relies not on the language of the statute or the governing DoD Directive, but on "guidance found in Directive Type Memorandum Revised Guidance on Combat-Related Special Compensation (CRSC), dated 27 Apr 04 and Supplemental Guidance on Combat-Related Special Compensation (CRSC), dated 3 Jun 08." We've found these "guidance" documents online they are not regulations.  If DoD wanted to change DoDI 1332.38 in the 18 plus years since DoDI 1332.38 was issued, nothing prevented it from doing so.  It never did.  These documents do not purport to amend the DODI.  Indeed, neither of them even cites the regulation.  Nor -- obviously -- can they trump an Act of Congress such as§ 1413a.  This is elementary.

The MPP's advisory opinion also observes that "the evidence does not show that the applicant's other health issues were incurred as a direct result of armed conflict."  This despite the fact, as explained in the 21 Feb 15 submission (at 17-18) that the "direct result" requirement appears in the "armed conflict" clause of § 1413a(e)(2)(A), but not in the while engaged in hazardous service" clause, § 1413a(e)(2)(B).  It is unfortunately clear that DoD never read our submission and those responsible for the advisory opinion have never studied the precise language used by Congress.  This remand was not worth the wait.  Despite the generous time available to them, the individuals who signed these three submissions did not do their homework.  They have forfeited any claim they might have to deference.

Counsel's complete response, with attachments, is at Exhibit SS.


THE BOARD CONCLUDES THAT:

Pursuant to the remand order of the United States District Court for the District of Columbia, the court directed the following: 

      (1) obtain an advisory opinion from the Director of Compensation, ODUSD/MPP, pursuant to Department of Defense Directive (DoDD) 1332.41, Boards for Correction of Military Records (BCMRs) and Discharge Review Boards (DRBs), para 3.3, Combat-Related Special Compensation (CRSC); 

      (2) consider and address the advisory opinion and grant plaintiff any relief it determines that he is entitled to receive, if any; 
      
      (3) issue a decision explaining in detail the rationale supporting its final decision.
      
Subsequent to the remand, it was determined that while the applicant had previously requested his medical conditions be deemed as combat-related, he had not submitted a formal request for CRSC to the Air Force.  The Board requested the applicant submit an application by completing the DD Form 2860 as required by the governing directive for every military member.  Upon receipt of the applicant's formal request for CRSC, the Air Force partially approved his application, awarding him CRSC entitlement for tinnitus and fibromyalgia with a compensable disability rating of 10 percent.  On 15 Apr 15, an advisory opinion from DPFDC was provided to the Board.  On 1 Jun 15, an advisory opinion from OSD/MPP was provided to the Board. 

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting correction of the applicant's request for CRSC entitlement for his degenerative disc disease cervical spine, cervical radiculopathy of the left upper extremity, thoracolumbar sprain, bilateral ischial tuberosity/bursitis, and radiculopathy involving the left lower extremity.  The Board took notice of the applicant's complete submission in judging the merits of the case; however, in our view, the Air Force CRSC office and the Office of the Assistant Secretary of Defense, Military Personnel Policy has adequately addressed the issues presented by the applicant and we are in agreement with their opinions and recommendations.  While the applicant and counsel contend the Directive Type Memorandum Revised Guidance on Combat-Related Special Compensation (CRSC) and Supplemental Guidance on Combat-Related Special Compensation (CRSC) are not the governing authority and are in conflict with the law and DODI, the Board finds the DTM in question provides specific instructions on procedures and criteria for members to apply for CRSC.  While counsel may disagree, it also directs military departments to use the specific criteria listed in the DTM to determine a member's eligibility for CRSC in accordance with law and DoD policy.  Consequently, the Board agrees with the determination of the Air Force the applicant is entitled to tinnitus as a combat-related condition and fibromyalgia as a Gulf War presumptive condition as listed by the Department of Veterans Affairs (DVA).  Further, the Board notes the effective dates assigned to the applicant's administrative corrections were in compliance with the laws governing the DVA (38 CFR 3.31.) and DFAS, 31 U.S.C., Section 3702(b).  Therefore, in view of the above and in the absence of evidence to the contrary, the Board finds that relief beyond that granted administratively is not warranted.

The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.


THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice for which the Board is able to grant relief beyond that already given; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.


The following members of the Board considered AFBCMR Docket Number BC-2007-03725 in Executive Session on 16 Jul 15, under the provisions of AFI 36-2603:

	, Panel Chair
      , Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-03725 was considered:

	Exhibit FF.  Administrative Record (AR).
	Exhibit GG.  Record of Proceedings, dated 10 Jun 10, w/atchs.
	Exhibit HH.  Addendum to Record of Proceedings, dated 21 May 12.
	Exhibit II.  Second Addendum to Record of Proceedings, 
	             dated 28 Dec 12, w/atchs.
	Exhibit JJ.  Letter, AFBCMR, dated 25 Mar 13, w/atch.
	Exhibit KK.  Third Addendum to Record of Proceedings, 
	             dated 1 Aug 13, w/atchs.  
	Exhibit LL.  Remand from CoFC, dated 16 Jan 15.  
	Exhibit MM.  CRSC Application, dated 18 Feb 15, w/atchs.
	Exhibit NN.  Letter, AFPC/DPFDC, dated 15 Apr 15, w/atchs.
	Exhibit OO.  Letter, AFPC/DPFDC, dated 15 Apr 15, w/atchs.
	Exhibit PP.  Remand from CoFC, dated 4 May 15.
	Exhibit QQ,  Letter, OASD/MPP, dated 1 Jun 15.
	Exhibit RR.  Letter, SAF/MRBR, dated 2 Jun 15.
	Exhibit SS.  Letter, Counsel, dated 9 Jun 15.