IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20110023266 


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 his Department of Veterans Affairs (VA) rated disabilities for genu varum with degenerative joint disease (DJD), left and right knees; and degenerative arthritis, left shoulder be approved for Combat-Related Special Compensation (CRSC).

2.  He states the disability was incurred in the line of duty as a result of an instrumentality of war.  He disagrees with the final decision that denied him CRSC.  His symptoms were not merely wear and tear.  The morning stiffness lasting long periods was causing him to hobble in a war zone, not to mention the pain after sleeping in combat vehicles (trucks).  This accelerated the disease which ultimately cut his military career short.  He further states he erred by not showing his repeated attempts to seek medical attention for the pain he was forced to endure.

3.  He provides:

* a copy of the U.S. Army Human Resources Command (HRC) CRSC Branch letter denying him CRSC, dated 26 September 2011
* an Evans Army Community Hospital letter
* a Fort Carson Medical Department Activity letter
* numerous correspondence documents related to his attempt to gain approval for CRSC
* a copy of the HRC CRSC Branch letter denying him CRSC, dated 26 July 2011
* DD Form 2860 (Claim for CRSC)
* VA Rating Decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* an extract from his DA Form 2-1 (Personnel Qualification Record)
* Headquarters, 4th Infantry Division (Mechanized) Orders 061-0038
* Headquarters, 4th Infantry Division (Mechanized) Orders 061-0040

CONSIDERATION OF EVIDENCE:

1.  His military records show he enlisted in the Regular Army on 9 April 1979.  He continued to serve as a motor transport operator through reenlistments until he was voluntarily retired for sufficient service for early retirement. 

2.  A DA Form 2-1 contained in his records shows he performed duties as a heavy vehicle driver while serving in Saudi Arabia during the period 12 December 1990 to 28 April 1991.

3.  His records contain a Standard Form 93 (Report of Medical History) completed for the purpose of retirement.  Item 8 (Statement of the Examinee's Present Health and Medications Currently Used) indicates his health was "good."  There is no documentation that shows he had an injury or disability which may have been combat-related or caused by an instrumentality of war.

4.  The physical profile serial entries on a DA Form 3349 (Physical Profile), completed on 9 March 1995, were all 1's with the exception of a permanent rating of 3 for his lower extremity.  The medical condition annotated on this form for which he was given assignment limitations was arthritis in both knees.  His complete medical records are not available for review.

5.  On 30 June 1995, he was granted a voluntary early retirement after completing over 16 years total active service.

6.  He provided a memorandum for record from a doctor at the Evans Army Community Hospital, U.S. Army Medical Department Activity, dated 22 July 2011.  The doctor indicated the applicant suffered from degenerative arthritis of the shoulders and knees.

	a.  A review of the applicant's medical records indicated problems with knee and shoulder pain were first addressed following his deployment in the Persian Gulf War (1991-1992).  He related that the pain began during the deployment during fast-paced transportation activity climbing in and out of vehicles and during the actual combat phase jumping between vehicles and defensive positions.  He sought temporary relief from field medics (never officially documented in his medical record) when occasion would allow.
	b.  In light of the chronology of his knee and shoulder pain, his deployment in a combat zone, and his subsequent diagnoses/treatments while on active duty and retired, it is highly likely that his degenerative arthritis either began during or was significantly aggravated to the point of becoming debilitating by his combat service in the Gulf War.

7.  He provided a letter from his wife and a fellow Soldier describing how he was at times moving slowly, displaying a look of pain and discomfort while he was deployed and following his deployment to Desert Shield/Desert Storm. 

8.  On 26 September 2011, the U.S. Army Human Resources Command CRSC Branch determined the applicant's VA rated disabilities of genu varum with DJD in both knees and degenerative arthritis in his left shoulder were not the result of a combat-related event and denied his request for CRSC.

9.  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 with 20 years of creditable service, or permanent medical retiree, or Temporary Early Retirement Authority retiree
* receiving military retired pay
* have 10 percent or greater VA-rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)

10.  The military retiree must be able to provide documentary evidence that 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.  There must be a direct causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.  An instrumentality of war is a vehicle, vessel, or device designed primarily for Military Service and intended for use in such Service at the time of the occurrence or injury.  It may also include such instrumentalities not designed primarily for Military Service if use of or occurrence involving such instrumentality 


subjects the individual to a hazard peculiar to Military Service.  Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. 

12.  A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material. 

13.  The Under Secretary of Defense for Military Personnel Policy 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.  His contentions that the disabilities were incurred in the line of duty as a result of an instrumentality of war and that his symptoms were not merely wear and tear are noted. 

2.  A memorandum for record from a doctor at the Evans Army Community Hospital U.S. Army Medical Department Activity indicated it was highly likely that his degenerative arthritis either began during or was significantly aggravated to the point of becoming debilitating by his combat service in the Gulf War.

3.  However, the 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 that the disability was incurred from an instrumentality of war, combat, performing training simulating combat conditions, or performing especially hazardous duties such as parachuting or scuba diving.

4.  There is no evidence showing the type of truck the applicant drove, so it cannot be determined if it met the definition of an instrumentality of war, or if it wasn't designed primarily for military service, how its use subjected him to a hazard peculiar to military service.  As such, there is an insufficient basis on 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)                                         AR20110023266



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ABCMR Record of Proceedings (cont)                                         AR20110023266



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