RECORD OF PROCEEDINGS


	IN THE CASE OF:     
	     

	BOARD DATE:           14 June 2005                  
	DOCKET NUMBER:   AR20050001222


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Mr. Carl W. S. Chun

Director

Mr. Edmund P. Mercanti

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. Hubert O. Fry, Jr. 

Member

Ms. Linda D. Simmons 

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his Department of Veterans Affairs (VA) rated disability for hearing loss be approved for Combat-Related Special Compensation (CRSC).

2.  The applicant states that when he enlisted he had normal hearing.  However, he was subjected to the noise of small weapons fire throughout his career.  This noise was due to his own weapons qualification, and when he was providing marksmanship training to others.  When he was retired he was diagnosed as having suffered an acoustic trauma which caused hearing loss.  

3.  The applicant cites studies which show the decibel intensity and duration required to cause hearing damage, and the decibel level of a military rifle and pistol being fired.

4.  The applicant concludes that his years of exposure to the noise of weapons fire caused his hearing loss, and weapons fire is combat related.

5.  The applicant provides the partial denial of his CRSC application, excerpts from his military and civilian medical records, and printed copies of internet resources on acoustic trauma and types of noise..

CONSIDERATION OF EVIDENCE: 

1.  The applicant entered active duty in March 1971, was awarded the military occupational specialty (MOS) of utility helicopter repairman, served in Vietnam from 8 September 1971 to 9 August 1972, and was promoted to pay grade E-4.  He was honorably released from active duty in May 1973.  

2.  He enlisted as prior service on 15 July 1973.  At that time he was given a physical examination and was found to have normal hearing.  He was then awarded the MOS of medical specialist.  When he immediately reenlisted in 1976, he was given another physical examination.  In that examination he was determined to have defective hearing and was given a physical profile for that defect.  He remained on active duty and was promoted to Command Sergeant Major.  He was honorably released from active duty on 30 April 2001 and placed on the Retired List the following day for years of service.




3.  On 3 December 2004, the US Army Physical Disability Agency (USAPDA) CRSC Branch approved the applicant for a total combat related disability of 60 percent.  That was based on a 50 percent CRSC rating for Post-Traumatic Stress Disorder and a 10 percent CRSC rating for tinnitus.  The PDA CRSC Branch denied the applicant’s request for a 50 percent rating for sleep apnea syndrome, a 20 percent rating for impaired hearing, a 10 percent rating for condition of the skeletal system, and a 10 percent rating for diplopia.

4.  Combat-Related Special Compensation (CRSC), as established by Section 1413a, Title 10, United States Code, as amended, states that 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, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling.  For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.  CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat-related.

5.  Concurrent Retirement and Disability Payment (CRDP), as established by the Fiscal Year (FY) 2004 National Defense Authorization Act (NDAA), provides a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50% or greater.

3.  In the processing of similar cases, advisory opinions were obtained from the Office of the Under Secretary of Defense (OUSD), Military Personnel Policy.  The OUSD has maintained in these opinions 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.  

DISCUSSION AND CONCLUSIONS:

1.  CRSC was passed into law as the first stage of an ongoing legislative initiative to eliminate the prohibition of military retirees from receiving VA disability benefits.  Due to cost constraints, while all military retirees will eventually receive 


concurrent receipt of VA disability compensation, only those military retirees who have disabilities incurred in combat, or in conditions simulating combat (which includes hazardous duties), are eligible for CRSC.

2.  As stated above, the CRSC criteria is specifically for those military retirees who have combat related disabilities.  Incurring disabilities while in a theater of operations is not, in and of itself, sufficient to grant a military retiree CRSC.  The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving.

3.  If the applicant could show that he was treated for a gunshot noise trauma while in combat or during operations simulating war, his hearing loss would be considered combat related.  However, he has not submitted any such evidence.  

4.  The applicant’s physical examination after his tour in Vietnam show him as having normal hearing.  It was three years later when his hearing loss was first documented.  Many things could have caused that hearing loss.  

5.  The denial of the applicant’s request does not mean he will not be compensated for his service related disabilities.  The denial means that he will not be compensated for his hearing loss (and other service related disabilities not approved for CRSC) in the first group of military retirees being given this compensation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__  JS   _  __HOF __  __LDS___  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





		____    John Slone_____
		        CHAIRPERSON





INDEX

CASE ID
AR20050001222
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050614
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.