IN THE CASE OF:	   

		BOARD DATE:  18 September 2012

		DOCKET NUMBER:  AR20120003118 


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 correction of his record to show that several medical conditions are combat-related.

2.  He states he has:

* severe obstructive sleep apnea
* post-traumatic stress disorder (PTSD)
* adjustment disorder
* chronic low back pain claimed as a lower back injury
* neck and shoulder pain with C5 radiculopathy in the left extremity post 
C-4 C-5 diskectomy and fusion with plate and four screws
* S-1 radiculopathy and left foot weakness and muscle atrophy
* rotator cuff tear
* headaches
* cervical fusion C-5/C-6 and C-6/C-7

3.  He states all of his injuries were "Gulf War" incurred.  While serving in Iraq in 2003, he received medical treatment from a Navy medical officer for approximately 3 weeks prior to going out on daily patrols/assignments in a prison.  When the muscles in his left arm started to atrophy the Navy medical officer called in an Army orthopedic surgeon out of Kuwait to examine him because his unit would not release him.  None of his treatment records were forwarded to Walter Reed Army Medical Center (WRAMC) to explain where and how his injuries were incurred.  He was immediately medically evacuated with only a transport check sheet noting his medications and the dosage.  
4.  He provides:

* a letter from the Combat-Related Special Compensation (CRSC) Branch, U.S. Army Human Resources Command (HRC), Fort Knox, KY
* Department of Veterans Affairs (VA) medical records
* A VA Rating Decision and related correspondence

CONSIDERATION OF EVIDENCE:

1.  On 11 March 1980, the applicant was discharged from the Regular Army after completing 6 years, 9 months, and 28 days of active military service.  On 28 January 2002, he enlisted in the New York Army National Guard.  

2.  Orders in his record show, effective 10 February 2003, he was ordered to active duty in support of Operation Enduring Freedom.   

3.  His record includes three Air Force Forms (AF) 3899 (Aeromedical Evacuation Patient Record).

	a.  The first AF 3899 shows, on 19 July 2003, he was evacuated from the 407th Air Expeditionary Group Emergency Medical Support Unit, Tallil Air Base, Iraq.  This form also shows he had been diagnosed with cervical radiculopathy.  Item 22 (Brief Narrative) shows he had neck pain, paresthesias, and weakness in his upper extremities following heavy lifting.  The condition was not resolved with conservative treatment and it was determined that he needed a magnetic resonance imaging (MRI) examination of the cervical spine and further evaluation of his persistent radiating symptoms.  

	b.  The second AF 3899 shows he was transported from Landstuhl Regional Medical Center, Germany, on 27 July 2003, and he arrived at WRAMC on         28 July 2003.  This form also shows he was diagnosed with cervical radiculopathy.  Item 23 (Assessment/Progress) shows he was sent to WRAMC to continue treatment.  

	c.  The third AF 3899 shows he was transported from WRAMC to Fort Dix, NJ, to continue physical therapy after he underwent neck surgery.  It appears he was transported to Fort Dix in early September 2003.

4.  On 14 November 2003, the Office of the Adjutant General, State of New York, Latham, NY, issued Orders 318-090 amending his mobilization orders to extend him on active duty through 17 June 2004.  

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 January 2004, shows he was seen at the 407th Combat Support Hospital in Iraq on 19 July 2003 and diagnosed with cervical radiculopathy.  This form states he was carrying standard gear when he began to feel numbness in the left arm and neck.  This form also shows he was transferred to WRAMC and he had surgery on 18 August 2003.  His commander determined the injury was incurred in the line of duty.

6.  A second DA Form 2173, dated 8 March 2004, shows he was seen at Fort Dix Mills Clinic, on 19 December 2003, for lower back pain with radicular symptoms.  The form states, while riding in a military installation van, the vehicle hit a speed bump and he bounced out of his seat and struck his head on the roof of the vehicle.  His commander determined the injury was incurred in the line of duty.

7.  On 26 May 2004, the U.S. Army Human Resources Command, Alexandria, VA, issued Orders A-05-404694 assigning him to the Medical Holding Detachment, WRAMC, effective 25 May 2004 through 19 November 2004.  The purpose was to effect his voluntary participation in the Reserve Component Medical Holdover Retention Processing Program for completion of medical care and treatment.

8.  On 23 September 2004, a Physical Evaluation Board (PEB) convened to consider his fitness for continued service based on nine diagnoses made by a Medical Evaluation Board (MEB).  The complete list of MEB diagnoses is not available in his record.  The PEB found he was unfit based on two MEB diagnoses:   

   a.  neck and shoulder pain with C5 radiculopathy in the left upper extremity post C4/C5 discectomy and fusion with plate and four screws (rated 20 percent (%)); and 

   b.  chronic low back pain at an intensity of 6/10 associated with left lateral leg and foot numbness (rated at 10%).

9.  The PEB found his condition had not stabilized to the point that a permanent degree of severity could be determined and recommended he be placed on the Temporary Disability Retired List (TDRL) with a 30% disability rating.  The PEB made the recommended findings that:

   a.  his retirement was not based on disability for injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war; and
   
   b.  his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, Section 104 (26 USC 104).

10.  On 23 September 2004, he concurred with the PEB findings and recommendations.

11.  On 19 November 2004, he was retired and placed on the TDRL effective 20 November 2004.  

12.  On 30 October 2008 and 14 January 2009, the CRSC Division, U.S. Army Human Resources Command, Alexandria, VA, informed him his application for CRSC was denied based on a list of 12 conditions, which were found to be non-combat related.  

13.  On 24 November 2009, a PEB convened to consider his condition.  The PEB found he was unfit based on four diagnoses:

* neuritis of the upper radicular group listed as shoulder pain with C5 radiculopathy in the left upper extremity (rated at 20%)
* spinal fusion listed as neck and shoulder pain with C5 radiculopathy in the left upper extremity post C4/C5 discectomy and fusion (rated at 10%)
* lumbosacral strain listed as chronic low back pain with mild spondyloarthropathy (rated at 10%)
* neuritis, sciatic nerve listed as left lateral leg and foot numbness (rated at 10%)

14.  The PEB stated the MEB diagnosis of personality disorder was a condition not constituting a physical disability and was not compensable.  The PEB stated the MEB diagnosis of severe obstructive sleep apnea was not unfitting at the time he was placed on the TDRL.  Four remaining MEB diagnoses were found to be medically acceptable.

15.  The PEB recommended a combined disability rating of 40% and that he be permanently retired for disability.  On 15 December 2009, he concurred and waived a formal hearing of his case.  On the same date, the PEB findings and recommendations were approved.  

16.  On 16 December 2009, the U.S. Army Physical Disability Agency, WRAMC, Washington, DC, issued Orders D350-08, which removed him from the TDRL effective 19 November 2009, and permanently retired him.


17.  On 4 January 2012, the CRSC Branch informed him they were unable to overturn their previous adjudications.  He was informed that the documentation he had submitted showed no new evidence linking his medical conditions to a combat-related event.  He was informed that the disapproval was final and he could apply to this Board to appeal the decision.

18.  He provides a summary of the CRSC Branch's final decision.  The summary lists 12 conditions and the service-connected disability rating the VA assigned him.  The justification for the CRSC disapproval was each condition was "Final disapproval – Previously requested; no new evidence to show combat-related event caused condition."  The listed conditions and associated VA ratings were:

* mild to moderate aortic regurgitation – 0%
* erectile dysfunction – 0%
* avascular necrosis of the left hip – 0%
* rotator cuff tendonitis with degenerative joint disease (DJD) at AC joint, left shoulder – 30%
* chronic low back strain – 40%
* headaches – 10%
* chronic low back sprain with S1 radiculopathy and left foot weakness – 40%
* neck and shoulder pain with C5 radiculopathy in the left upper extremity post C4-C5 diskectomy and fusion with plate and four screws – 40%
* post-traumatic stress disorder (PTSD) and adjustment disorder – 50%
* sleep apnea syndromes – 50%
* cervical fusion C5-C6 and C6-C7 – 0%
* tinnitus – 10%

19.  He provides a VA Rating Decision, dated 3 October 2011, showing he received service-connected ratings for the following conditions that were deemed Gulf War incurred:

* severe obstructive sleep apnea – 50% from 20 November 2004
* PTSD and adjustment disorder with anxiety – 

* 30% from 20 November 2004
* 50% from 31 January 2011

* chronic low back sprain now claimed as lower back injury – 

* 20% from 20 November 2004
* 40% from 14 December 2010
* neck and shoulder pain with C5 radiculopathy in the left upper extremity post C4-C5 diskectomy and fusion with plate and four screws also claimed as left side partially paralyzed with muscle atrophy and neck injury – 

* 20% from 20 November 2004 
* 100% from 10 May 2005
* 20% from 1 July 2005
* 40% from 14 December 2010

* chronic low back sprain with S1 radiculopathy and left foot weakness also claimed as left side partially paralyzed with muscle atrophy –

* 10% from 20 November 2004
* 40% from 14 December 2010

* DJD at AC joint, left shoulder (clamed as rotator cuff tear, left shoulder) – 10% from 20 November 2004
* bilateral tinnitus – 10% from 20 November 2004
* headaches associated with chronic low back sprain with S1 radiculopathy and left foot weakness also claimed as left side partially paralyzed with muscle atrophy – 10% from 10 November 2005
* cervical fusion C5-C6 and C6-C7 – 0% from 20 November 2004
* mild to moderate aortic regurgitation (also claimed as heart palpitations) – 0% from 20 November 2004

20.  The VA determined two secondary conditions were service-connected for peacetime service:  erectile dysfunction (rated at 0% from 27 July 2007) and avascular necrosis of the left hip (rated at 0% from 27 July 2007).  Two conditions were determined not to be service connected:  right hip condition and right leg condition.  

21.  The VA Rating Decision shows his combined evaluations for compensation were:

* 80% from 20 November 2004
* 100% from 10 May 2005
* 80% from 1 July 2005
* 90% from 10 November 2005
* 100% from 14 December 2010

22.  Title 10, U.S. Code, Section 1413a provides the statutory authority for CRSC.

	a.  It states that the Secretary of Defense shall prescribe procedures and criteria under which a disabled uniformed services retiree may apply to the Secretary of a military department to be considered to be an eligible combat-related disabled uniformed services retiree.

	b.  It defines a combat-related disability as a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that is attributable to an injury for which the member was awarded the Purple Heart; or was incurred (as determined under the criteria prescribed by the Secretary of Defense):

		(1)  as a direct result of armed conflict;

		(2)  while engaged in hazardous service;

		(3)  in the performance of duty under conditions simulating war; or

		(4)  through an instrumentality of war.

23.  Department of Defense (DOD) guidance on CRSC states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule for Rating Disabilities that was incurred:

	a.  as a direct result of armed conflict;

	b.  while engaged in hazardous service;

	c.  in the performance of duty under conditions simulating war; or

	d.  through an instrumentality of war.

24.  The DOD guidance states the burden of proof that a disability is combat-related rests with the applicant and members will be required to provide copies of documents in their possession to the best of their ability.  The Military Departments will determine whether a disability is combat-related under a, b, c, or d, above, using the definitions and criteria set forth in Attachment 1-1.  



25.  Attachment 1-1 states the following criteria, terms, definitions, and explanations will apply to making combat-related determinations in the CRSC program. 

	a.  Direct Result of Armed Conflict - The disability is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that a member incurred the disability during a period of war or an area of armed conflict or while participating in combat operations is not sufficient to support a combat-related determination.  There must be a definite causal relationship between the armed conflict and the resulting disability. 

		(1)  Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorists. 

		(2)  Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner of war, or detained status. 

	b.  While Engaged in Hazardous Service - Such service includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty.  A finding that a disability is the result of such hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service.  Travel to and from such service, or actions incidental to a normal duty status not considered hazardous are not included.

	c.  In the Performance of Duty Under Conditions Simulating War - In general this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and negotiation of combat confidence and obstacle courses.  It does not include physical training activities such as calisthenics and jogging or formation running and supervised sport activities. 

	d.  Instrumentality of War - Incurrence during an actual period of war is not required.  However, 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.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show nor has the applicant provided evidence showing any of his VA-rated disabilities were combat-related.  

2.  The fact that the VA determined that several of his disabling conditions were Gulf War incurred has no bearing on the CRSC Branch's denial of his claim.  Both law and DOD guidance require that disabilities eligible for CRSC be incurred as a direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war.  The DOD guidance for CRSC requires documentary evidence confirming the conditions under which a disability was incurred.  

3.  The evidence of record does not show, nor has the applicant provided evidence, showing any of his VA-rated conditions were combat related.  In the absence of such evidence, there is no basis for granting the relief he requests.

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)                                         AR20120003118



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ABCMR Record of Proceedings (cont)                                         AR20120003118



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