RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 November 2005
      DOCKET NUMBER:   AR20050006358


      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. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 all of his disabilities have been classified
as Gulf War Syndrome by the VA.  He believes that this should be sufficient
evidence since information he obtained on the internet indicates that Gulf
War Syndrome is considered combat related for CRSC purposes.  The applicant
also states that he should have also have been considered for CRSC for his
VA rating for dermatitis or eczema.

3.  The applicant provides the denial of his request to reconsider his CRSC
application; VA medical records; a statement from the Flight Surgeon of the
3rd Battalion, 160th Special Operations Aviation Regiment (Airborne), which
details the smoke exposure the members of that unit were subjected to
during their deployment during the Persian Gulf War; a printed page of an
internet site; and a VA rating decision.  In that rating decision the
following disabilities were classified by the VA as Gulf War incurred:
residuals of moderate crush injury and surgery of his right hand with minor
scars; bilateral tinnitus; chronic obstructive pulmonary disease; eczema;
and residuals of carpal tunnel release surgery of the right wrist
associated with residuals of moderate crush injury and surgery of his right
hand with minor scars.

CONSIDERATION OF EVIDENCE:

1.  Combat-Related Special Compensation (CRSC), as established by Section
1413a, Title 10, United States Code, as amended, provides for the payment
of the amount of money a military retiree would receive from the VA for
combat related disabilities if it wasn’t 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, 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.  Military retirees who are approved
for CRSC must have waived a portion of their military retired pay since
CRSC consists of the Military Department returning a portion of the waived
retired pay to the military retiree.

2.  On 1 April 2005, the U.S. Army Physical Disability Agency (USAPDA)
Combat Related Special Compensation (CRSC) Branch denied the applicant’s
request for CRSC.

3.  Under Public Law 103-466, the “Veterans’ Benefits Improvement Act of
1994,” VA provides compensation benefits to Gulf War veterans who are
chronically disabled by undiagnosed illnesses when certain conditions are
met.  This legislation only authorizes VA to pay compensation for
disabilities that cannot be diagnosed as a specific disease or injury.
This is a unique benefit for Gulf War veterans.  VA regulations pertaining
to undiagnosed illnesses in Gulf War veterans specifies that to be eligible
for such compensation, the veteran must have “objective indications of
chronic disability” manifested by one or more signs or symptoms, provided
that such disability:

      (1) became manifest either during active military, naval, or air
space in the Southwest Asia theater of operations during the Gulf War, or
to a degree of 10 percent or more not later than December 31, 2001; and

      (2) by history, physical examination and laboratory tests cannot be
attributed to any known clinical diagnosis.

“Objective indications of chronic disability” refers to “both signs in the
medical sense of objective evidence perceptible to an examining physician
and other non-medical indicators that are capable of independent
verification.”  Signs and symptoms include, but are not limited to:

      (1) fatigue;

      (2) skin signs or symptoms, including hair loss;

      (3) headache;

      (4) muscle pain;

      (5) joint pain;

      (6) neurologic signs or symptoms;
      (7) neuropsychological signs and symptoms, including memory loss;

      (8) signs or symptoms involving the respiratory system (upper or
lower);

      (9) sleep disturbances;

      (10) gastrointestinal signs or symptoms;

      (11) cardiovascular signs and symptoms;

      (12) abnormal weight loss; and

      (13) menstrual disorders.

Disabilities are chronic if they (1) have existed for at least six months,
or (2) have exhibited intermittent episodes of improvement and worsening
over a six-month period.  The six month period is measured from the
earliest date the signs and symptoms manifested.  Compensation cannot be
granted under these special rules if there is affirmative evidence:

      (1) that the undiagnosed illness was not incurred during service in
the Gulf War;

      (2) that it was caused by a supervening condition or event after the
veteran served in the Gulf region; or

      (3) that it is the result of willful misconduct or the abuse of
alcohol or drugs by the veteran.

In a claim by a Gulf War veteran for service-connected benefits for an
undiagnosed illness, VA requires submission of evidence of:

      (1) active military, naval, or air service in the Southwest Asia
theater of operations during the Gulf War;

      (2) manifestations of one or more signs and symptoms of undiagnosed
illness;

      (3) objective indications of a chronic disability to a degree of 10
percent or more within the specified period; and

      (4) a nexus between the chronic disability and the undiagnosed
illness.
An unintended consequence with this legislation is that two Gulf War
veterans with virtually identical symptoms may experience quite different
outcomes with their claims for service-connected compensation.  Thus, one
Gulf War veteran presenting with difficult-to-diagnose symptoms could be
diagnosed with chronic fatigue syndrome, which cannot be service-connected
under this law because it is a diagnosis.  On the other hand, a second
veteran with identical symptoms could receive a diagnosis of undiagnosed
illness, which is compensable under this law.  Clearly, VA physicians
should be aware of this distinction and of the consequence this has on a
veteran’s compensation claim, since under this law, a diagnosis effectively
precludes the claimant from establishing service connection for an
undiagnosed illness.  An improper diagnosis can have unintended but
nevertheless disastrous consequences for a veteran’s disability claim.
(Department of Veterans Affairs, Veterans Health Initiative, A Guide To
Gulf War Veterans Health.)

4.  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.  The applicant has argued that since he has five disabilities the VA has
classified as Gulf War Syndrome, he is eligible for CRSC since Gulf War
Syndrome is specifically mentioned as a combat related condition.

2.  Initially, the applicant is mistaken in his statement that his five
disabilities have been classified as Gulf War Syndrome.  They were
classified as Gulf War incurred.  The mere fact that the applicant has five
diagnosed conditions precludes him from his disabilities for being
classified as Gulf War Syndrome.  As such, the CRSC presumption for Gulf
War Syndrome does not apply in the applicant’s case.

3.  The CRSC criteria is specifically for those military retirees who have
combat related disabilities.  Incurring disabilities while in a theater of
operations or in training exercises 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.

4.  While the applicant has five disabilities which have been classified as
Gulf War incurred, there is no evidence or indication that those conditions
were incurred in combat.  As stated above, the fact that a disability was
incurred in a theater of operations is insufficient, in and of itself, to
warrant approval of CRSC.

5.  Without evidence to establish a direct, causal relationship to the
applicant’s VA rated disabilities to war or the simulation of war, there is
insufficient basis in which to grant his request.

6.  If the applicant wishes the USAPDA CRSC Branch to consider additional
VA rated disabilities for CRSC, he should submit his request to that
Agency.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___lmd __  ____sk__  ___mhm_  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.





            __________Stanley Kelley____________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050006358                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051129                                |
|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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