IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110012162 


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 that his tuberculosis be approved for Combat Related Special Compensation (CRSC).

2.  The applicant states his medical records prove conclusively that his tuberculosis was caused, or aggravated, by his participation in armed conflict in Vietnam.

3.  The applicant provides two exhibits which he lists and his CRSC application packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant was ordered to active duty from the U.S. Army Reserve (USAR) as an officer on 3 October 1963, served as an Air Defense Missile Unit Commander, and was promoted to the rank of captain.  He served in Southeast Asia for approximately 16 months

2.  On 25 May 1969, he was hospitalized.

3.  On 24 November 1969, a Narrative Summary (NARSUM) was prepared on the applicant for a medical evaluation board (MEB).  In the NARSUM it was stated that the applicant had been in Vietnam for 16 months prior to his admission to the hospital.  He reported that approximately 8 weeks prior to admission (while he was in Vietnam) he noted the sudden onset of generalized malaise, coughing, expectoration of yellowish mucus without hemoptysis (the expectoration (coughing up) of blood or of blood-stained sputum from the bronchi, larynx, trachea, or lungs), night sweats, anorexia, and a 20-pound weight loss.  An x-ray showed an infiltration in the right lower lung.  When standard treatment did not resolve the infiltration, he was transferred from Vietnam to the United States, where he was diagnosed with tuberculosis.

4.  The applicant then was medically boarded and, when determined to be medically disqualified for retention, was considered by a physical evaluation board (PEB).  The PEB found him physically unfit to perform his duties and recommended that he be placed on the Temporary Disability Retired List (TDRL), rated 100 percent disabled.

5.  Accordingly, on 30 January 1970 he was retired and placed on the TDRL.

6.  The applicant reentered the military when he was commissioned in the USAR on 19 February 1977.  He served continuously, was promoted to major general,  and was transferred to the Retired Reserve on 18 February 1997.

7.  Combat-Related Special Compensation (CRSC), as established by Section 1413a, Title 10, U.S. Code, as amended, provides for the payment of the amount of money a military retiree receives from the VA for combat related disabilities.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are retirees 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.

8.  On 16 May 2007, the U.S. Army Human Resources Command (HRC) approved the applicant’s diabetes (10%), impaired hearing (0%), and tinnitus (10%), as combat related for CRSC purposes.  HRC denied the applicant’s request for CRSC for impairment of toes (10%) and inactive pulmonary tuberculosis (10%).  On 17 May 2011, HRC denied the applicant's appeal to approve his tuberculosis as CRSC.

9.  The Under Secretary of Defense (OUSD), Military Personnel Policy has provided policy guidance on the processing of CRSC appeals.  In that guidance it 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.  

10.  By law, only certain conditions are awarded as presumptive for Agent Orange exposure.  To qualify for CRSC under an Agent orange presumptive condition, Department of Veterans Affairs (VA) documentation must specifically indicate in the narrative summary that the disability was incurred by "Agent Orange" or "Herbicide Exposure," or "Nehmer" granted.  Current conditions considered presumptive to exposure to Agent Orange are:

   a.  Chloracne or other acneform disease consistent with chloracne (a skin eruption resembling acne and resulting from exposure to chlorine or its compounds). 
   
   b.  Hodgkin's disease (a neoplastic disease that is characterized by progressive enlargement of lymph nodes, spleen, and liver and by progressive anemia).
   
   c.  Multiple myeloma (a disease of bone marrow that is characterized by the presence of numerous myelomas in various bones of the body).
   
   d.  Non-Hodgkin's lymphoma (any of the numerous malignant lymphomas (as Burkitt's lymphoma) that are not classified as Hodgkin's disease and that usually have malignant cells derived from B cells or T cells).

   e.  Acute and subacute peripheral neuropathy (a disease or degenerative state [as polyneuropathy] of the peripheral nerves in which motor, sensory, or vasomotor nerve fibers may be affected and which is marked by muscle weakness and atrophy, pain, and numbness).
   
   f.  Porphyria cutanea tarda (a common porphyria that is marked by an excess of uroporphyrin caused by an enzyme deficiency chiefly of the liver and that is characterized especially by skin lesions produced by exposure to light, scarring, hyperpigmentation, and hypertrichosis).

   g.  Prostate cancer.
   
   h.  Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea).
   
   i.  Soft-tissue sarcoma (a malignant neoplasm arising in tissue of mesodermal origin [as connective tissue, bone, cartilage, or striated muscle] that spreads by extension into neighboring tissue or by way of the bloodstream).
DISCUSSION AND CONCLUSIONS:

1.  It is irrefutable that the applicant came down with symptoms of tuberculosis while he was in Vietnam.  However, the CRSC criteria is specifically for those military retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations 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.  In other words, eligibility for CRSC is based on how a retiree received the disability, not on where he sustained the disability.

2.  A retiree who has a disability incurred from a military parachute jump at Fort Bragg, NC would be entitled to CRSC (specifically hazardous duty).  A retiree who has a disability incurred because he fell and broke his leg while attacking a convoy in a simulated ambush at Fort Dix, NJ would be entitled to CRSC (simulation of war).  A retiree who has a disability incurred from falling while going to the mess hall in Vietnam would not be entitled to CRSC (it was not incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving).  

3.  Since tuberculosis is not a presumptive CRSC condition for Agent Orange, and it obviously was not incurred while engaged as a result of combat, as a result of performing duties simulating combat conditions, or as a result of performing specially hazardous duties such as parachuting or scuba diving, there is no basis for approving it for CRSC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      ______________________
               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)                                         AR20110012162





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ABCMR Record of Proceedings (cont)                                         AR20110012162



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