IN THE CASE OF:
BOARD DATE: 3 September 2009
DOCKET NUMBER: AR20080018831
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that all of his Department of Veterans Affairs (VA) rated disabilities be approved for Combat-Related Special Compensation (CRSC).
2. The applicant states, in effect, that his right foot and right arm are disabled as a result of instrumentalities of war.
3. The applicant provides a letter from the Chief, CRSC Division; a VA Rating Decision; and various medical and other with handwritten notes in support of this application.
CONSIDERATION OF EVIDENCE:
1. Combat-Related Special Compensation, as established by Title 10, U.S. Code, section 1413a, 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 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, 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-percent 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-percent disabled or who are rated at least 60-percent 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. Records show the U.S. Army Physical Disability Agency CRSC Branch verified the applicant's following conditions as being combat related:
a. Diabetes - Agent Orange Presumptive
b. Bilateral Hearing Loss - Ears
c. Parasthesias - Left Leg
d. Peripheral Neuropathy - Left Arm
e. Peripheral Neuropathy - Left Leg
f. Parathesias - Left Arm
g. Tinnitus - Ears
3. Records show the U.S. Army Physical Disability Agency CRSC Branch denied the applicants request for reconsideration of his previous CRSC request. Specifically, the VA determined the following conditions to be service-related but there is insufficient evidence to show that they were combat-related:
a. Hypertension - Arteries
b. Residuals, Cerebrovascular Accident [Stroke] with Right Hemiparesis and Seizure Disorder
c. Short Term Memory Loss
4. There is no evidence in the available record which shows that the right arm and leg injuries the applicant sustained were as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.
5. The Under Secretary of Defense for Military Personnel Policy has provided policy guidance on the processing of CRSC appeals. In that guidance it was stated 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 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.
2. The applicant's contention that his right foot and right arm are disabled as a result of instrumentalities of war was carefully considered. However, although the VA has determined these conditions to be service connected, there is no available evidence to show that they are as a result of combat related action. Rather the VA determined that this condition was as a result of a stroke.
3. The applicant has not stated that a particular action caused the disability in his right leg and arm. As stated above, the fact that a disability was incurred in a theater of operations or during training exercises is insufficient, in and of itself, to warrant approval of CRSC.
4. Without evidence to establish a direct, causal relationship to the applicants VA rated disabilities to war or the simulation of war, there is insufficient basis in which to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X__ ___X____ ____X___ 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.
_______ _ X _______ ___
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR20080018831
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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