BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004524 


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 reversal of the decision to deny him combat-related special compensation (CRSC) for his left shoulder and neck injuries.

2.  He states he applied for CRSC pertaining to these injuries he received during Filed Lanes Training at Pinon Canyon, CO in 2004.  He injured his left shoulder and sprained his neck while lifting heavy water containers to support the training mission for Soldiers deploying in support of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF).  As a result of these injuries he underwent surgery on both his left shoulder and neck in 2006.  He was denied CRSC because the evidence he provided was not enough to prove CRSC.  He believes the denial was unfair.  He was in a field training simulation of a war environment training Soldiers for deployment to the OIF/OEF theaters.  He was training in Colorado in August 1999 in 90 to 115 degree temperatures to simulate the OIF/OEF war zone conditions.

3.  He provides:

* a 2004 Line of Duty (LOD) Packet
* a 2005 DA Form 638 (Recommendation for Award) for the Meritorious Service Medal and associated certificate
* his left shoulder and neck surgeries medical packets
* an Army Superior Unit Award memorandum 
* his LOD determination memorandum, dated 15 May 2007
* his 2007 Medical Evaluation Board (MEB) Narrative Summary (NARSUM)
* 
his 2008 MEB and Physical Evaluation Board (PEB) Proceedings
* the CRSC denial letter from the CRSC Branch, Army Human Resources Command (AHRC), Fort Knox, KY, dated 8 February 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant, while serving as a member of the U.S. Army Reserve (USAR), was ordered to active duty in support of OEF.  He entered active duty on
27 January 2003.

2.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 August 2004, shows he strained his left shoulder and neck while lifting heavy water containers at Pinion Canyon during annual training on 31 July 2004.

3.  An MEB NARSUM, dated 10 December 2007, stated he injured his left shoulder in 2004 while on active duty status undergoing unit training while lifting water jugs.  He began receiving treatment for this along with the cervical spasm and neck pain.  It was recommended he be referred to the PEB for further adjudication.

4.  On 29 February 2008, an MEB convened and considered his conditions under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, for chronic neck, left shoulder, low back, and right foot pain; and Bipolar II disorder.  The MEB determined his medical conditions of chronic right shoulder pain, mild to moderate right carpal tunnel syndrome, bilateral tinnitus, sensorineural hearing loss, essential hypertension, hyperlipidemia, insomnia, and mild dysphagia met retention standards.  The MEB recommended his referral to a PEB.  The board noted the applicant did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The findings and recommendations of the MEB were approved on 3 March 2008.  

5.  On 11 March 2008, the applicant stated he did not agree with the findings and recommendation of the MEB and he was submitting an appeal.

6.  On 5 May 2008, an informal PEB convened and considered the applicant's disabilities of:

* chronic cervical pain secondary to repetitive neck strain in 2003 (physical training and ruck marching)
* chronic low and mid back pain due to repetitive strain injury of training that was unresponsive to a variety of conservative treatments including narcotic analgesia
* chronic left shoulder pain after lifting injury in Pinon Canyon while lifting water jugs
* chronic right foot pain, onset prior to mobilization in 2000, attributed to osteoarthritis of the first toe and metatarsalgia of the second metatarsal joint
* Bipolar II disorder, onset in 1992 during a prior period of active duty.  Only mildly affected duty performance but unfitting as Soldier requires lithium which would preclude field duty or deployment

7.  The PEB found that his functional limitations in maintaining the appropriate level of mobility, flexibility, and adaptability caused by the foregoing impairments made him medically unfit to perform the duties required of his rank and primary specialty.  The PEB determined that his other conditions listed as medial board diagnoses met the retention standards of the Medical Treatment Facilities.  The PEB recommended permanent disability retirement with a combined rating of 50 percent (%).

8.  The PEB also advised that since he had service-connected medical condition, he should contact a Department of Veterans Affairs (VA) counselor to learn about available benefits.  The PEB noted that the voting membership of the PEB included an officer of the Reserve Components.   

9.  On 6 May 2008, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing.

10.  On 19 August 2008, he was retired in the rank/grade of master sergeant (MSG)/E-8 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), by reason of permanent disability.

11.  In a letter, dated 8 February 2011, the CRSC Branch advised the applicant that after review of all the evidence he provided they were still unable to find justification to reverse the previous decisions made on his CRSC claim.  The final decision under CRSC verified the applicant's status post lumbar discectomy with scar, PTSD, tinnitus were verified as combat-related for a combined rating of 80%.

12.  The letter also advised the applicant that the following conditions were unable to be verified as a combat-related disability:  (1)  Bilateral Pes Planus with Achilles Tendonitis, (2)  Hypertension, (3)  Left Shoulder Condition with Scars (no new evidence provided to show combat-related event caused condition, documentation stated injury occurred while lifting heavy water containers),

(4)  Status Post Right Shoulder Surgery with Scars, (5)  Status Post Cervical Spine Fusion, (6)  Right Wrist Scar, (7)  Neck Scar (no new evidence provided to show combat-related event caused condition, documentation stated injury occurred while lifting heavy water containers), and (8)  Dysphasia Associated with Status Post Cervical Spine Fusions.  The applicant was further advised his only recourse was to appeal the decision to the Army Review Boards Agency.

13.  A VA Rating Decision, dated 15 June 2011, shows he was granted service-connected disability for (1) right radiculopathy of sciatic nerve; (2) status post lumbar discectomy with scar; (3) posttraumatic stress disorder (PTSD) and bipolar; (4) Uveitis, right eye.  It is noted that he had been granted a temporary evaluation of 100% disability effective 28 October 2010 based surgical or other treatment necessitating convalescence.  On 1 March 2011 an evaluation of 50% was assigned.

14.  In a letter, dated 15 July 2011, the CRSC Branch advised him that documentation verified the addition of the following as combat-related:
(1)  Hearing Loss and (2)  Right Radiculopathy of Sciatic Nerve for a total combat-related disability of 80%.

15.  The letter also advised the following conditions were unable to be verified as a combat related disability:  (1)  Diabetes Mellitus, (2)  Erectile Dysfunction,
(3)  Bilateral Pes Planus with Achilles Tendonitis, (4)  Hypertension, (5)  Left Shoulder Condition with Scars, (6)  Status Post Right Shoulder Surgery with Scars, (7)  Status Post Cervical Spine Fusion, (8)  Carpal Tunnel, (9)  Neck Scar, (Right Wrist Scar, and (10)  Dysphasia Associated with Status Post Cervical Spine Fusions.  

16.  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 VA for combat-related disabilities if it was 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, especially 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.

17.  The Under Secretary of Defense, 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 applicant has submitted documentation showing he was treated for injuries to his left shoulder and neck that he contends are combat-related.  However, there is no evidence of record or indication that these injuries were the result of a combat-related event.  The evidence of record confirms the injury to his left shoulder and neck occurred while he was lifting water containers during military training.

2.  As stated above, the CRSC criteria are specifically for those military retirees who have combat-related disabilities.  The military retiree must show that 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 has failed to provide documentation to show he meets any of these requirements.

3.  Although he attests to his left shoulder and neck injuries, it does not establish a direct, causal relationship to the VA rated disabilities as a result of war or the simulation of war.  Service connection for VA purposes means the VA has determined that the disability was incurred or aggravated during military service.  CRSC determinations require evidence of a direct, causal relationship to the military retiree’s VA rated disabilities to war or the simulation of war.

4.  Without evidence to establish a direct, causal relationship to his 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)                                         AR20110004524



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ABCMR Record of Proceedings (cont)                                         AR20110004524



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