BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20110023800 


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).

2.  The applicant states his PTSD is manifested in his fear of hostile military or terrorist activity.  He contends he should be granted retroactive payment of CRSC based upon the fact that a court decision determined his conditions of PTSD and degenerative disc disease rendered him disabled and unemployable as defined in the Social Security Act since 18 September 2007.

3.  The applicant provides:

* extracts from his military and Department of Veterans Affairs (VA) medical records
* a VA memorandum, dated 18 March 2005, Subject:  Verification of Stressors
* an Order of Administrative Law Judge from the Social Security Administration's Office of Disability Adjudication and Review, dated 3 September 2009
* CRSC denial letter from the U.S. Army Human Resources Command, Fort Knox, KY, dated 16 May 2011
* a letter from his psychiatrist




CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 June 1974 and served until he was discharged under honorable conditions on 23 October 1985.  He served various periods of service in the Virginia Army National Guard and U.S. Army Reserve (USAR) in a variety of stateside and overseas assignments.

2.  On 31 December 2000, he was retired by reason of sufficient service for retirement.  He was placed on the Retired List in the rank/grade of sergeant/E-5 on 1 January 2001.

3.  The DD Form 214 issued to him at the time of his retirement shows he was awarded the Armed Forces Expeditionary Medal, which indicates he served a period of qualifying service in a U.S. military operation, U.S. operation in direct support of the United Nations, or a U.S. operation of assistance for a friendly foreign nation.

4.  The applicant provides a nine page Standard Form (SF) 513 (Medical Record - Consultation Sheet) rendered by a mental health social worker at the VA Medical Center located in Raleigh, NC on 28 July 2004.  This document shows the applicant underwent a mental health evaluation at the request of his primary care physician following a positive response on a PTSD screening.  The examiner noted the applicant was a 48 year-old male with no previous psychiatric diagnosis or treatment who reported retiring from the Army in 2001 after serving for 27 years.  The applicant told the examiner he:

	a.  was involved in combat missions in Honduras in 1985, which he avoids thinking about or discussing with others.  The applicant denied distressing dreams about related events, but said he was bothered by intrusive memories and often (at least 6 times per month) would have flashbacks of unpleasant events.  He also described being surrounded by mortar rounds and gunfire; and recalled witnessing a helicopter, that he just exited, get shot down, killing Soldiers he knew.

	b.  had difficulty sleeping and was easily startled awake by noises, or he would wake to conduct safety checks around his home.  He admitted to impaired concentration, hyper vigilance, exaggerated startle response, and extreme anxiety amongst crowds, which he would typically avoid.  He said he was able to watch war movies; however, he had more intense, vivid memories or flashbacks afterwards, as he did if he had a conversation about the war, which he also avoided.

	c.  received a gunshot wound to the abdomen from his first wife in 1995; however, he denied distressing dreams or memories from that incident.

5.  The examiner determined the applicant presented with signs/symptoms of PTSD and probable depression.  She diagnosed the applicant with severe PTSD, Depressive Disorder (Not otherwise specified), and past alcohol abuse/dependency.  She opined that the applicant would likely benefit from antidepressant medications for treatment of his PTSD.  The examiner referred the applicant for PTSD specific evaluation.

6.  The applicant provides a four-page SF 509 (Medical Record - Progress Notes) co-rendered by a psychologist and a clinical psychologist on 14 October 2004 following an evaluation of the applicant on 27 September 2004.  The applicant was administered numerous psychological tests and personality assessment inventories, the results of which were consistent with a diagnosis of PTSD.  His scores also indicated a strong likelihood of past or present alcohol consumption, and severe clinical depression.  During his Clinician Administered PTSD Scale (CAPS) interview, the applicant reported several military-related traumas.  For example, he recalled an instance during which a helicopter that had just dropped him off at base camp crashed shortly after it took off again.  He also reported another traumatic incident in which a fellow Soldier was injured during basic training when he shot himself by accident with his own weapon.  The applicant reported experiencing fear and helplessness from these events and indicated that they continued to cause him distress, dreams, interruption of his sleep, impaired concentration, hyper vigilance, exaggerated startle response, and extreme anxiety amongst crowds, which he would typically avoid.  He said he was able to watch war movies; however, he had more intense, vivid memories or flashbacks afterwards, as he did if he had a conversation about the war, which he also avoided.  

7.  The results of this evaluation determined the applicant experienced these symptoms at an intensity and frequency that met the diagnostic criteria for PTSD, chronic and a secondary diagnosis of major depressive disorder, recurrent, severe.  It was also determined these symptoms, "which are the result of the veteran's traumatic experiences in the military, are chronic."  It was further determined they had caused him moderate social and occupational impairment and it was recommended that he continue individual psychotherapy.

8.  On 23 November 2004, the Chief, Combat Analysis Branch, Combat-Related Special Compensation Division, U.S. Army Physical Disability Agency (USAPDA) considered his petition for award of CRSC for three medical conditions and determined they were all non combat-related; as a result, his request was disapproved.  The VA Disability Codes, VA Narrative Descriptions, and corresponding VA Disability Percentages for the evaluated conditions were as follows:

* 5242, Degenerative Arthritis of Spine, 20 percent
* 7525, Epididymal Infection, 10 percent
* 7804, Superficial Scars, 10 percent

9.  On 18 March 2005, an internal VA memorandum was rendered and forwarded to the VA Rating Board in response to a request for verification of the applicant's claimed stressors for PTSD; specifically, that he had witnessed a helicopter crash in February 1984 while deployed to Honduras.  This memorandum shows research confirmed that on 11 January 1984, a helicopter was forced to land after sustaining small arms fire over Nicaraguan airspace following its departure from a location in Honduras.  Upon landing, the pilot sought cover in a culvert where he was subsequently shot.  Given the date, location, and circumstances of the forced landing, it was unlikely that the applicant witnessed the shooting of the pilot; however, if he was in Honduras at the time, it is possible that he did see the aircraft go down in the distance.  His service records showed he was at Fort Eustis, VA at this time, but there is a Certificate of Achievement showing he conducted operations in Honduras during February 1984.   A National War College Strategic study indicates Joint Readiness Exercise AHUAS TARA II lasted from August 1983 through February 1984, so it remains possible that the applicant arrived in Honduras prior to the period for which he received the Achievement certificate.  It was noted that a Personnel Information Exchange System Morning Report should be requested to search for evidence that the applicant was in Honduras in January 1984.

10.  The applicant provides a memorandum, dated 23 April 2007, which shows he submitted a notice of disagreement for the denial of PTSD and individual unemployability.  The basis of his disagreement was his acknowledgement that he had listed the incorrect date of 5 February 1984 for his stressor and was now attesting the crash he had witnessed was in January 1984, which had been verified by the VA.  He provided a self-authored statement as evidence in support of his claim.  In response, the applicant was notified that although research verified the fact that a helicopter had crash landed, no evidence had been found which showed he was in Honduras at the time of the incident.

11.  The applicant provides an Order of Administrative Law Judge from the Social Security Administration's Office of Disability Adjudication and Review, dated 3 September 2009.  This document shows a court decision determined his conditions of PTSD and degenerative disc disease rendered him disabled and unemployable as defined in the Social Security Act since 18 September 2007.

12.  On 4 January 2011, a certifying officer from the Combat-Related Special Compensation Branch, U.S. Army Human Resources Command, Fort Knox, KY informed the applicant they had received his claim for CRSC and made the following decision in accordance with current program guidance.

	a.  If he was receiving Concurrent Retirement and Disability Pay (CRDP), he could not receive both CRDP and CRSC payments per Public Laws 107-314 and 108-136.  If CRSC was more beneficial than CRDP, the Defense Finance and Accounting Service would make that election for him and CRSC payments would be made in the same manner as his retired pay.

	b.  A review had been conducted of the request and supporting documentation he sent for CRSC for condition 9411.  Although the documents received did state this condition was service related, they did not state or establish a combat-related event as the cause.  He was advised that in order to award a condition as combat-related he must provide official documentation/evidence that shows how each condition is combat-related as defined by CRSC program guidance.  VA documentation must clearly state that a condition is a combat-related disability.  He was also provided a link to an internet website where he could obtain additional information on what is considered to be a combat-related condition.

13.  On 14 February 2011, the applicant submitted a CRSC Reconsideration Request, wherein he requested reconsideration of his claim for PTSD.  As evidence in support of his claim he provided a VA Disability Rating, dated 26 November 2010, which showed  the VA awarded him service connection for VA Disability Code 9411, PTSD, with a VA Disability Rating of 50 percent and a letter from his psychiatrist.  

14.  On 11 March 2011, a certifying officer from the Combat-Related Special Compensation Branch, U.S. Army Human Resources Command, Fort Knox, KY informed the applicant they had received his claim for CRSC and made the following decision in accordance with current program guidance.

	a.  If he was receiving Concurrent Retirement and disability Pay (CRDP), he could not receive both CRDP and CRSC payments per Public Laws 107-314 and 108-136.  If CRSC was more beneficial than CRDP, the Defense Finance and Accounting Services would make that election for him and CRSC payments would be made in the same manner as his retired pay.



	b.  A review had been conducted of the request and supporting documentation he sent for CRSC for four conditions.  It was noted the applicant had previously requested CRSC for each of these conditions, but no new evidence was provided to show a combat-related event caused any of the conditions.  The VA Disability Codes, VA Narrative Descriptions, and corresponding VA Disability Percentages for the evaluated conditions were as follows:

* 7525, Epididymitis, 10 percent
* 5243, Status post operative lumbar hemilanectomy and diskectomy with degenerative disc disease (previously 5242), 40 percent
* 9411, PTSD, 50 percent
* 7804, Status post gunshot wound of abdomen and status post ventral hernia repair with residual pain, 10 percent

	c.  It was acknowledged that the VA had conceded a stressor that his PTSD was due to a combat event.  However, after reviewing his record and the supporting documentation he provided with his claim, it was determined there was no way to verify a specific combat-related event which supported the VA's determination.  CRSC does not accept lay testimonies made during an exam in lieu of official documentation confirming an actual combat-related event which he participated in directly causing his PTSD condition.  As a result his request for reconsideration was disapproved.

15.  On 16 May 2011, a certifying officer from the Combat-Related Special Compensation Branch, U.S. Army Human Resources Command, Fort Knox, KY informed the applicant they had reviewed all the evidence that he provided with his claim for CRSC and were still unable to find justification to reverse the previous decisions made on his CRSC claim.  The applicant was advised that this was a final decision and his only recourse was to appeal the decision to this Board.  He was further advised that in order to submit an appeal he needed to provide specific documents and copies of all of the evidence he has that supports how his disabilities are combat-related.  The VA Disability Codes, VA Narrative Descriptions, and corresponding VA Disability Percentages for the evaluated conditions were as follows:

* 7525, Epididymitis, 10 percent
* 5243, Status post operative lumbar hemilanectomy and diskectomy with degenerative disc disease (previously 5242), 40 percent
* 9411, PTSD, 50 percent
* 7804, Status post gunshot wound of abdomen and status post ventral hernia repair with residual pain, 10 percent

16.  In a letter rendered by his treating psychiatrist at the VA Medical Center located in Durham, NC, on 16 September 2011, the psychiatrist stated the applicant has been diagnosed with PTSD due to traumatic combat experiences by him and other mental health professionals in the VA system.  He cited a PTSD Evaluation report rendered on 14 October 2004 and concluded the applicant's PTSD was the result of traumatic experiences during a military combat event.  The direct quote he cited is as follows:

	"Results of this evaluation support a primary diagnosis of PTSD, chronic, and a secondary diagnosis of major depressive disorder, recurrent, severe.  These symptoms, which are the result of the veteran's traumatic experiences in the military, are chronic."

17.  The applicant provides a letter rendered by his treating psychiatrist at the VA Medical Center located in Durham, NC, dated 16 September 2011, which is an exact duplicate of the previously-mentioned letter dated 11 February 2011.

18.  Title 10, U.S. Code, section 1413a, as amended, established CRSC that 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, 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.  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 fact that the applicant served an undetermined period of time in Honduras is not in question.

2.  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 while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving.

3.  The applicant has submitted evidence to show that the VA determined his PTSD was service-related.  That is why the VA awarded him compensation for this service-connected condition.  However, he has not submitted any evidence that shows this condition is 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.  There is no evidence showing he was in Honduras at the time of the helicopter crash or that he personally witnessed the event.  Even if the applicant could provide evidence showing he was in Honduras at the time of the helicopter crash, the fact that he was in a theater of operations is insufficient, in and of itself, to warrant approval of CRSC.

4.  CRSC determinations require evidence of a direct, causal relationship to the military retiree's VA rated disabilities to war or the simulation of war.  There is no evidence of record and the applicant did not provide any evidence that establishes a direct, causal relationship of his VA-rated PTSD to war or the simulation of war.  In fact, the applicant cited two other traumatic events from his past which may have been the catalyst(s) for his condition:  when a fellow Soldier shot himself during basic training and when his wife shot him in the stomach.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

6.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20110023800



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ABCMR Record of Proceedings (cont)                                         AR20110023800



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