IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110018798 


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 record to show the following conditions are combat-related disabilities that qualify him to receive combat related special compensation (CRSC):  right shoulder rotator cuff tear with degenerative joint disease, left knee patellofemoral syndrome, left wrist-status post fracture, lumbosacral strain with radiculopathy of the lower extremities. 

2.  The applicant states the above conditions were incurred and/or aggravated while serving as the gunner on a vehicle in Iraq where, on three different occasions, he was exposed to explosions from improvised explosive devices (IEDs) and rocket propelled grenades.

3.  The applicant provides copies of his DD Form 2860 (Claim for CRSC), Department of Veterans Affairs (VA) Rating Summary, DA Form 199 (Physical Evaluation Board (PEB) Proceedings), and VA medical records.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a medically retired Regular Army specialist/E-4 with approximately 6 years, 6 months, and 10 days of active service.  During the period of service under review he served in an active duty status from 30 January 2006 through 19 August 2010.

2.  Records show the applicant served in Iraq from February 2007 to May 2008.  He was involved in incidents where his vehicles were damaged by explosive devices. 
3.  A 13 May 2010 PEB rated him 70 percent disabled due to traumatic brain injury and a 10 percent disability rating each for lumbosacral strain and limited range of motion in the left shoulder due to rotator cuff tear.  He was given a combined rating of 80 percent.  He was permanently retired on 19 August 2010.

4.  On 14 March 2011, 7 April 2011, 24 May 2011, and 2 August 2011 the applicant applied to the U.S. Army Human Resources Command (HRC) for CRSC.  Each application was fundamentally a copy of the previous one.  Each DD Form 2860 differed from the others only in the medical condition claimed, for example, obstructive sleep apnea appeared on one and post-traumatic stress disorder (PTSD) on another.

5.  All four requests were supported by copies of VA evaluations.  The VA process started with a complete review of the applicant's medical records for all of the conditions he claimed were service connected.  These included a left wrist injury which was sustained during physical training.  However, there was no claim of combat aggravation.

6.  The most recent HRC CRSC decision, dated 2 August 2011, indicates the following conditions are certified as combat-related disabilities:

VASRD*
DESCRIPTION
Rated 
   at 
JUSTIFICATION/COMMENTS
6100


Bilateral Hearing
Loss
 10%
Previously awarded – effective date September 2010
5237
Cervical Strain
  30%
Previously awarded – effective date September 2010
8100
Migraine Headaches
   0%
Previously awarded – effective date September 2010
9411
PTSD
  70%
Previously awarded – effective date September 2010
6260
Tinnitus
  10%
Previously awarded – effective date September 2010
8045
Traumatic Brain Disease
  40%
Previously awarded – effective date September 2010


7.  The 2 August 2011 HRC CRSC decision also indicates the certifying officer was unable to verify the following conditions as combat-related disabilities:

VASRD*
DESCRIPTION
   %
JUSTIFICATION/COMMENTS
5252
Degenerative Joint Disease, Right Hip 
  10%
Final disapproval – Previously requested : No new evidence to show combat-related event caused condition
5242
Lumbosacral Strain with Radic-ulopathy of Lower Extremities 
  10%
Final disapproval – Previously requested : No new evidence to show combat-related event caused condition
6847
Obstructive Sleep Apnea 
  50%
Final disapproval – Previously requested : No new evidence to show combat-related event caused condition
5024
Right Ankle Joint Laxity
  10%
Final disapproval – Previously requested : No new evidence to show combat-related event caused condition
5024
Left Wrist, Status Post Fracture
  10%
Final disapproval – Previously requested : No new evidence to show combat-related event caused condition
5024
Left Knee Patellofemoral Syndrome 
  10%
Final disapproval – Previously requested : No new evidence to show combat-related event caused condition
  5010
Right Shoulder Rotator Cuff Tear with Degenerative Joint Disease 
0%
Final disapproval – Previously requested : No new evidence to show combat-related event caused condition
8.  The 2 August 2011 HRC CRSC decision shows the applicant had a total combat-related disability of 90 percent as of September 2010.


9.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance on 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.

10.  The applicant's service medical records are not available for this review.

11.  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 were not for the statutory prohibition for a military retiree to receive a VA disability pension.

	a.  Payment is made by the Military Department, not the VA, and is tax-free.

	b.  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.

	c.  Qualified disabilities must be compensated by the VA and rated at least 10-percent disabling.

	d.  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, especially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.

	e.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return to the military retiree a portion of the waived retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he is eligible for CRSC for several conditions that have been repeatedly considered and denied by HRC.

2.  The available evidence clearly shows the applicant has been rated for those conditions as service connected by the VA.  However, there is no available evidence to show that they were the direct result of armed conflict, especially hazardous duty, training exercises that simulated war, or was caused by an instrumentality of war.

3.  The origin of the applicant's conditions are based on information reported by the applicant at that time.  Thus far the applicant has provided no additional evidence to overcome HRC's denial of CRSC.

4.  CRSC is specifically for those military retirees who have combat-related disabilities.  Incurring disabilities in connection with military service is not 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.  

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20110018798



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ABCMR Record of Proceedings (cont)                                         AR20110018798



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