IN THE CASE OF: NELOMS, HENRY L.
BOARD DATE: 17 March 2009
DOCKET NUMBER: AR20090002403
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 his records be corrected to show his malignant schwannoma [nerve sheath tumor] was determined to have been incurred as a direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war and that this disability is eligible for award of Combat-Related Special Compensation (CRSC).
2. The applicant states, in effect, that he developed malignant schwannoma while on active duty. The applicant further states that his left leg and half of his pelvis was amputated due to the malignant schwannoma. The applicant contends, in effect, that his exposure to "Agent Orange" resulted in the malignant schwannoma.
3. The applicant provides a CRSC Reconsideration Decision, dated 10 June 2008 and medical documentation in support of this application.
CONSIDERATION OF EVIDENCE:
1. CRSC, 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 Department of Veterans Affairs (VA) for combat-related disabilities if it wasnt 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.
2. On 16 September 2008, the U.S. Army Physical Disability Agency (USAPDA) CRSC Branch informed the applicant that his duodenal ulcer, loss of leg and left hip, and traumatic arthritis to his right knee were not qualifying conditions because there was no evidence to show that a combat-related event caused the condition.
3. Additionally, evidence shows that the applicant lost his leg and hip due to cancer; however, the type of cancer which caused the loss of his hip and leg was not presumptive to Agent Orange exposure and as a result was service-connected but was not qualifying as combat-related for CRSC benefits.
4. Evidence of records shows that the applicant received compensation from the Agent Orange Veteran Payment Program for his exposure to Agent Orange.
5. The Under Secretary of Defense (OUSD), 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 stated that his malignant schwannoma was incurred while he was deployed. Notwithstanding the applicant's contention, there is no evidence in the available records and the applicant has not provided sufficient evidence which shows that his medical condition was sustained during combat action or simulation of war. The fact that a disability was incurred in a theater of operations or during a training exercise is insufficient, in and of itself, to warrant approval of CRSC.
3. Although evidence shows that the applicant lost his leg and hip due to cancer, the type of cancer which caused the loss of his hip and leg was not presumptive to Agent Orange exposure and as a result was service-connected but was not qualifying as combat-related for CRSC benefits.
4. Unfortunately without evidence to establish a direct, causal relationship between the applicants VA rated disabilities and 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) AR20090002403
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