RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 September 2005
      DOCKET NUMBER:   AR20050002104


      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 N. Slone                 |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 all of his Department of Veterans Affairs
(VA) rated disabilities be approved for Combat-Related Special Compensation
(CRSC).

2.  The applicant states that apparently an error was made in the
assignment of Veterans Administration Schedule for Rating Disabilities
(VASRD) codes which do not reflect that his disabilities were incurred
while simulating war.  He believes that the codes should be corrected to
codes which would reflect that his disabilities were incurred while
simulating war so they may be approved for CRSC.

3.  The applicant provides the denial of his CRSC application and the
denial of his request for reconsideration of his CRSC application, his VA
disability rating, and selected excerpts from his military medical records.

4.  The excerpts from the applicant’s military medical records show, in
pertinent part and in chronological order:

      a.  28 May 1975 – Lower back pain for 1 month (no injury noted);

      b.  6 January 1977 – Applicant stated that he had problems with both
knees since he was 12 years old;

      c.  25 January 1977 – Diagnosed as having chronic Osgood Schlatter
Disease;

      d.  4 March 1977 – Bilateral knee pain due to Osgood Schlatter
Disease;

      e.  25 September 1979 – Permanent physical profile restrictions due
to Osgood Schlatter Disease lifted;

      f.  11 August 1980 – Twisted left ankle doing parachute landing fall
(PLF).  No defects noted on x-ray evaluation;

      g.  12 September 1983 – Back pain documented since 1977.  This
episode since 3 weeks ago.  Constant pain, but cannot recall specific
injury;

      h.  5 April 1984 – Had motor vehicle accident yesterday in which he
injured his lower back;

      i.  16 January 1985 – Pain in right ankle since the night before.
Applicant stated that he was forced to step on the brakes in his car at a
hard angle to avoid a collision.  Applicant stated that he had no previous
history of right ankle injury;

      j.  12 August 1989 – The applicant was carrying his son around who
had a cast on both legs.  When he sat in a chair his back popped;

      k.  17 October 1989 – Lower back pain following a parachute injury
that day.  Applicant landed on a run way;

      l.  10 May 1990 – Chronic right knee pain with acute aggravation from
over 24 miles of road marching over 2 days;

      m.  23 May 1990 – Knee pain for 10 days following running;

      n.  29 January 1992 – Lower back pain for 24 hours following
exercise;

      o.  24 November 1992 – Ankle pain for 2 weeks with no history of
blunt trauma.  Diagnosed as overuse syndrome;

      p.  30 July 1993 – Right ankle injury (inverted ankle) when landing
from a parachute jump;

      q.  10 January 1994 – Lower back pain.  The applicant stated that he
didn’t know what he did to injure his back;

      r.  23 May 1994 – Previously aggravated stress fractures diagnosed
which were incurred during triathlon training;

      s.  7 November 1994 – Left shoulder pain for 3 weeks.  The applicant
stated that he believed the pain began after doing weight lifting; and

      t.  3 April 1995 – Applicant hurt his back when bending over.

5.  The applicant’s VA records show that he was given compensatable ratings
for chondromalacia of his left knee (10 percent); bicipital tendonitis of
his left shoulder (10 percent); tinnitus (10 percent); and chronic
lumbosacral strain (10 percent).




CONSIDERATION OF EVIDENCE:

1.  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.

2.  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.

4.  Osgood-Schlatter disease is a painful swelling of the bump on the front
of the upper tibia (lower leg bone) in an area called the anterior tibial
tubercle.  This disease is probably caused by micro trauma (small, usually
unnoticed injuries caused by repetitive overuse) that occurs before the
complete maturity of the anterior tibial tubercle attachment.  The disorder
is typified by a painful swelling just below the knee on the front
(anterior) surface of the lower leg bone.  The area is tender to pressure,
and swelling ranges from minimal to very severe.  Running, jumping, and
climbing stairs cause discomfort.  Symptoms occur on one or both legs.  The
disorder is seen most often in active, athletic adolescents, with boys more
frequently affected than girls.  Symptoms include leg pain or knee pain in
one or both knees, worse with activity, especially running, jumping, or
climbing (MEDLINE PLUS).

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 a disability
while in a theater of operations or while on a training exercise 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.  The applicant appears to erroneously believe that VASRD codes determine
whether a condition is combat related (which includes simulation of war).
This is not true.  The documented circumstances surrounding the medical
condition which was rated is the deciding factor in CRSC cases, regardless
of the VASRD code assigned to the condition.

4.  In the applicant’s case the Board must consider whether the VA ratings
for the applicant’s ankles, knees and back are combat related.  The
following facts are reviewed in this regard:

      a.  The first evidence of the applicant injuring his ankle was on 11
August 1980 when he twisted his left ankle on a PLF.  However, no defects
were noted on x-ray evaluation at that time.  On 16 January 1985 he
reported having pain in his right ankle which started when he was forced to
step on the brakes in his car at a hard angle to avoid a collision.  On 24
November 1992 he reported having ankle pain for 2 weeks with no history of
blunt trauma and was diagnosed as having overuse syndrome at that time.  On
30 July 1993 he reported incurring a right ankle injury (inverted ankle)
when landing from a parachute jump.  On 23 May 1994 previously aggravated
stress fractures incurred during triathlon training was diagnosed.  There
are no other treatment records for the applicant’s ankle.

      b.  The first reference to the applicant having back problems was
12 September 1983 when he reported having back pain.  At that time it was
stated that the applicant’s back pain had been documented since 1977.
During that examination the applicant stated that he couldn’t recall any
specific injury.  The next instance of recorded back pain was on 5 April
1984.  At that time he reported that he had injured his lower back in a
motor vehicle accident.  On 12 August 1989 the applicant reported his back
popping when he sat in a chair when he was carrying his son who had a cast
on both legs.  On 17 October 1989 the applicant reported having lower back
pain following a parachute injury.  On 29 January 1992 the applicant
reported having lower back pain for 24 hours following exercise.  On 10
January 1994 the applicant reported having lower back pain of unknown
origin.  On 3 April 1995 the applicant reporting having hurt his back when
bending over.

      c.  The first entry concerning the applicant’s knees was on 6 January
1977 wherein it was reported that the applicant stated that he had problems
with both knees since he was 12 years old.  On 25 January 1977 the
applicant was diagnosed as having chronic Osgood Schlatter Disease.  On 10
May 1990 the applicant was diagnosed as having chronic right knee pain with
acute aggravation from over 24 miles of road marching over 2 days.  On 23
May 1990 the applicant reported having knee pain for 10 days following
running.

      d.  The only reference to shoulder pain was on 7 November 1994 when
the applicant reported having left shoulder pain for 3 weeks.  The
applicant stated that he believed the pain began after lifting weights.

5.  Based on this chronological review of the treatment the applicant
received for his VA rated disabilities, it is evident that the applicant
submitted insufficient evidence to show:

      a.  that his shoulder pain should be approved for CRSC.  Weight
lifting is not combat related;

      b.  the disability ratings for his knees are combat related.  His
knee problems existed since he was 12 years old.  While the applicant
aggravated his knee problems on a 24 mile road march, he aggravated his
knees 3 days later while running.  As such, the road march does not appear
to have permanently aggravated the applicant’s pre-existing knee problem;

      c.  the disability rating for his back is combat related.  Since the
applicant submitted selected excerpts of his medical records, the initial
history of his back problem is not discernable.  Subsequently, he injured
his back while lifting his son and when he was involved in a motor vehicle
accident.  While the applicant reported injuring his back in a PLF after
these instances, he was later documented as exercising.  To summarize, the
applicant has a non-combat related history of back pain and there is no
indication that he sustained permanent damage as a result of his
parachuting injury; and

      d.  that his ankle ratings are combat related.  While the applicant
was treated for ankle injuries following two PLFs, he was diagnosed as
suffering from overuse syndrome and stress fractures, neither of which
would be caused by a PLF injury.  Specific evidence to show that his
current ankle disabilities are due to his PLF injuries would be required to
show this bilateral condition is combat related.

6.  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 disabilities in the first group of military
retirees being given this compensation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___cak__  ____ena _  ___jns___  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 N. Slone________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002104                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |






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