IN THE CASE OF:	  

		BOARD DATE:	    30 August 2011

		DOCKET NUMBER:  AR20110000521 


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, correction of his records to show approval for Combat-Related Special Compensation (CRSC) benefits.

2.  The applicant states:

* U.S. Army Human Resources Command (HRC) CRSC Branch unjustly denied his CRSC application for a fourth time
* HRC deemed his numeric assigned rated physical disabilities were not relevant to combat and/or combat-training related
* the Department of Veterans Affairs (VA) Nashville Regional Office's Rating Decision supports his claim
* the VA grossly failed to give due process to the various and multiple musculoskeletal diseases and injuries caused by his military service thus entitling him to CRSC benefits
* the VA representative responsible for rating his disabilities expedited its requirement by adjudicating his disability to the higher 50-percent disability for sleep apnea with constant positive air pressure
* HRC failed to give due process in its interpretation of the VA report
* he suffers every day from the numerous musculoskeletal defects caused by injuries and constant rigors of his military service
* the VA clearly identifies his musculoskeletal pains as being due to degenerative joint disease and degenerative disc disease

3.  The applicant describes his assignments, duties, training, and responsibilities over his 26 years of Army service.  He describes injuries he contends were incurred while he was in the Army and he questions the approval of CRSC benefits for someone whom he identifies as a friend with similar career and musculoskeletal issues, but who had no sleep apnea.  He states he is prepared to stand in front of the Army Review Boards Agency (ARBA) as well as undergo a complete physical by the VA or a physical review board recommended by ARBA if required.

4.  The applicant provides:

* VA Compensation and Pension Examination Report, dated 7 April 1999
* VA Rating Decision, dated 1 September 1999
* doctor's recommendation for award of CRSC benefits, dated 14 July 2010
* HRC CRSC final disapproval, dated 9 November 2010
* Army medical records (compact disc)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's Compensation and Pension Examination Report was completed on 7 April 1999 and shows he was diagnosed with the following conditions:

* degenerative joint disease S1 joints bilaterally
* degenerative disc disease L4-5 and L5-S1
* degenerative right knee
* plantar fasciitis, chronic, bilateral
* trigger point pain, right trapezius, chronic
* right shoulder bursitis
* right elbow lateral epicondylitis
* leg length discrepancy, left greater than right, requiring orthotics
* chronic sinusitis
* 
sleep apnea status post uvuloplasty with persistent symptoms
* psoriasis
* medical history of tinea cruris
* hemorrhoids
* GERD with medical history of duodental ulcer disease
* Status post donor nephrectomy, left
* tinnitus with sensorineural hearing loss
* venous stasis, mild, bilateral

3.  He was honorably retired on 31 August 1999 and placed on the Retired List in the rank/grade of command sergeant major/E-9 on 1 September 1999.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 26 years, 2 months, and 3 days of creditable active service.

4.  On 1 September 1999, the applicant was granted service-connected disability ratings for the following conditions:

* degenerative joint disease, bilateral sacroiliac joints, degenerative disc disease, L4-L5-S1 – 10 percent
* bursitis, right shoulder – 10 percent
* tinnitus – 10 percent
* obstructive sleep apnea, status post uvulopalatoplasty and uvulopalatopharyngoplasty – 30 percent
* degenerative joint disease, right knee – 0 percent
* bilateral plantar fasciitis – 0 percent
* right elbow epicondylitis – 0 percent
* leg length discrepancy, left greater than right – 0 percent
* sinusitis – 0 percent
* psoriasis, tinea cruris – 0 percent
* hemorrhoids – 0 percent
* hiatal hernia, duodenal ulcer – 0 percent
* venous stasis, bilateral lower extremities – 0 percent, venous stasis, left lower extremity – 0 percent, venous stasis, right lower extremity – 0 percent
* scar, right hand laceration – 0 percent
* left foot fracture – 0 percent

5.  The VA denied him service connection for:

* status post donor nephrectomy, left
* right foot fracture
* astigmatism/presbyopia

6.  He submits a letter from a U.S. Army Medical Department Activity Medical Corps doctor who states the applicant's VA disability findings and subsequent rating as determined by a physical examination by the VA identifies several findings that support his claim that his training and subsequent deployments (1990-1991 Gulf War and 1993 Operation Restore Hope-Somalia) are contributing factors to his disabilities.  The doctor states he reviewed the applicant's medical records, as well as his military assignment history, which demonstrate his participation in numerous training exercises including aerial and ground gunneries in preparation for operational deployments.  The requirements included rigorous training, full combat-load foot marches over unimproved terrains, battle drills, alerts, tactical exercises, air assault actions, leadership reaction courses, small arms live-fire exercises, bayonet and hand-to-hand combat, rappelling, combat confidence (obstacle) courses, and assembly area (bivouac) setup.  Also included were duties related to vehicle recovery operations such as march unit and convoy charge.  The compilation of activities required extensive, prolonged, and recurrent strenuous exertion and strength.

7.  The doctor cites the applicant's combat or combat-service assignments tours of duty with:

* 548th Supply and Service Battalion (1973-1975)
* 11th Signal Group (1975)
* 5th Squadron, 6th Cavalry, 12th Aviation Brigade, Operations Desert Shield/Desert Storm, V Corps (1988-1992)
* Kilo Company, 159th Aviation, XVIII Corps, Operations Hurricane Andrew and Restore Hope-Somalia (1992-1995)

8.  The doctor also cited the applicant's tours of duty with:

* III Corps (1987-1988)
* 2nd Infantry (1996-1997)
* 24th Infantry (1992-1995)
* 101st Airborne Division (1995-1996 and 1997-1999)

9.  The doctor states the applicant's conditions are relative to his many years of training as well as participation in combat operations and operations other than war.  He states he believes the applicant meets the spirit of intent of CRSC.

10.  HRC CRSC Branch denied the applicant’s request for reconsideration of his previous CRSC request.  Specifically, the determination was that the following conditions are unable to be verified as combat-related disabilities:
* 
bursitis rated at 10 percent
* sleep apnea syndromes rated at 50 percent
* tinnitus rated at 10 percent
* traumatic arthritis rated at 10 percent

11.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, states that eligible members are retired veterans with combat-related injuries who meet all of the following criteria:

* Active, Reserve, or National Guard members with 20 years of creditable service, or permanent medical retiree, or Temporary Early Retirement Authority retiree
* receiving military retired pay
* having 10 percent or greater VA-rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)

12.  Eligible members must be able to provide documentary evidence their injury was a result of one of the following:

* training that simulates war (e.g., exercises, field training)
* hazardous duty (e.g., flight, diving, parachute duty)
* an instrumentality of war (e.g., combat vehicles, weapons, Agent Orange)
* armed conflict (e.g., gunshot wounds (Purple Heart), punji stick injuries)

11.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for the processing of CRSC appeals.  The guidance states 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 submitted documentation showing he was treated for disabilities that he contends are combat-related.  The documents submitted by the applicant show he has service-connected conditions; however, the available evidence does not show his medical conditions were the result of combat-related events.

2.  As stated above, CRSC criteria are 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 the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.  The applicant failed to provide documentation to show he meets this requirement.

3.  The doctor's letter he submitted was considered.  However, without evidence to establish a direct, causal relationship of the applicant’s 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 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)                                         AR20110000521



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ABCMR Record of Proceedings (cont)                                         AR20110000521



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