IN THE CASE OF:	  

		BOARD DATE:	 31 January 2012 

		DOCKET NUMBER:  AR20110015133 


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, reversal of the decision to deny him combat-related special compensation (CRSC) for post-traumatic stress disorder (PTSD) and an ankle injury. 

2.  The applicant states:

* His PTSD is a direct result of a combat conflict in 2003 (Operation Iraqi Freedom); however, PTSD had not been established as a direct link to the war on 2003
* His ankles were injured during a tactical march in February 1994
* The reviewer failed to see his initial ankle injury and instead, made note of the follow-up treatment about an ankle injury from sport
* He is currently receiving a 30-percent (%) service-connected disability compensation from the Department of Veterans Affairs (VA)

3.  The applicant provides:

* An article about another Soldier who received the Medal of Honor
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Selected medical documents, dated in 1994
* Letter from an independent doctor to the VA
* Letter from the VA to the applicant
* CRSC denial letter from the U.S. Army Human Resources Command, Fort Knox, KY (HRC-KNX), dated 27 April 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 January 1994 and held military occupational specialties 42A (Human Resources Specialist) and 79S (Career Counselor).  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Kuwait/Iraq from 25 January to 17 July 2003 and attained the rank/grade of staff sergeant (SSG)/E-6.

2.  He underwent a physical examination on 12 September 2005 that determined he did not meet retention standards according to Army Regulation 40-501 (Standards of Medical Fitness) due to his inability to do his Soldiering activities.  He was diagnosed with:

* Chronic low back pain
* Synocopal episodes (vasovagal)
* Left knee pain (met retention standards)
* Acid reflux (met retention standards)
* Hypertension (met retention standards)

3.  On 24 October 2005, a medical evaluation board (MEB) convened at Winn Army Community Center, Fort Stewart, GA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found that the applicant had the medically unacceptable conditions of low back pain and synocopal episodes (vasovagal).  He also had the medically acceptable conditions of low knee pain, acid reflux, and hypertension.  The MEB recommended the applicant be referred to a physical evaluation board (PEB).  He agreed with the MEB’s findings and recommendation and indicated he desired not to continue on active duty.

4.  On 27 October 2005, an informal PEB convened at Fort Sam Houston, TX, and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) and, as shown in item 8 (Disability Description, VA Code, and Percentage), he was granted the following:

* Codes 5299/5242, 10%; chronic back pain; incurred while entitled to basic pay; incurred or aggravated in line of duty at a time of national emergency after 14 September 1978
* Codes 8299/8210, 0%; incurred while entitled to basic pay; also incurred or aggravated in line of duty at a time of national emergency after 14 September 1978

5.  The PEB also considered his other conditions of low knee pain, acid reflux, and hypertension but did not find them unfitting and therefore they were not rated.  The PEB recommended the applicant be separated with entitlement to severance pay, if otherwise qualified.  The applicant concurred with the PEB's findings and recommendations and waived his right to formal hearing of his case. 

6.  The applicant's DA Form 199 (PEB Proceedings) contains the following entries in Item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* The member's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law
* The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 

7.  On 9 November 205, his PEB was approved by an official at the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.

8.  On 10 December 2005, the applicant was honorably discharged in accordance with paragraph 42-4B(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of physical disability with entitlement to severance pay.  

9.  On 10 June 2009, a review by the Physical Disability Board of Review (PDBR) determined the recommendation for coding syncope had changed over time but the VASRD coding had remained the same.  Accordingly, the PDBR recommended the prior 0% rating for syncope be modified to reflect 20%.  The PDBR noted that there was no PTSD symptoms - or other additional conditions claimed by the applicant - that might have been part of the PEB's unfitting determination.  His combined rating was increased to 30% and qualified him for permanent retirement.

10.  Accordingly, the applicant's records were corrected by voiding his existing DD Form 214 and reissuing him one that reflects the applicant was honorably retired in accordance with paragraph 42-4B(1) of Army Regulation 635-40 by reason of physical disability.

11.  His complete service and/or VA medical records are not available for review with this case.  He provides:

	a.  Multiple medical records and chronological records of medical care, dated in 1994, and related to a foot pain incurred during a road march. 

	b.  An opinion, dated 16 March 2011, from a civilian independent medical expert, who opines that there is at least a 50% probability that the applicant's current and knee and bilateral ankle problems were due to tactical experiences/trauma that he had during his military service.  He also opined that there is at least a 50% probability that the applicant's PTSD was due to combat experiences/trauma that he had during his military service.

	c.  A letter, dated 18 April 2011, from the VA summarizing his benefits as 90% service-connected disability compensation, effective 1 August 2010.

	d.  Letter, dated 27 April 2011, from HRC-KNX informing him of lack of justification to reverse the previous decision to deny his CRSC claim.  The denial letter states:

* Degenerative joint disease of left knee; no evidence to show combat-related event caused condition
* Degenerative joint disease of thoracolumbar spine, no evidence to show combat-related event caused condition
* Acid reflux, no direct connection between combat-related event and condition
* Hemorrhoids, no direct connection between combat-related event and condition
* Hypertension, does not meet CRSC criteria unless it is a secondary condition to diabetes mellitus caused by Agent Orange exposure or secondary to another combat-related condition
* PTSD, no evidence to link this condition to a combat-related event
* Syncope, no evidence to show combat-related event caused condition
* Sleep apnea syndrome, no connection between condition and combat
* Residual of right ankle strain, no evidence to show combat-related event caused condition
* Residuals of let ankle sprain, no evidence to show combat-related event caused condition

12.  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 would receive from the VA for combat related disabilities if it wasn’t 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% 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.

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 has submitted evidence to show that his PTSD and foot injuries were service related.  However, he has not submitted any evidence which would show that these conditions are combat related.  He refers to his VA evaluation report wherein he related to the examiner that his stressors were combat related; however, he did not prove such relationship.  The fact that he was in a theater of operations is insufficient, in and of itself, to warrant approval of CRSC.

3.  The applicant appears to confuse service connection for VA purposes with CRSC eligibility.  These are not necessarily the same.  If they were the same, CRSC would be automatic for those military retirees with VA disability pensions.  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 the applicant’s 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)                                         AR20110015133



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ABCMR Record of Proceedings (cont)                                         AR20110015133



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