IN THE CASE OF:	  

		BOARD DATE:  6 November 2012

		DOCKET NUMBER:  AR20120006572 


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 records to show his disabilities are combat-related and he is entitled to Combat-Related Special Compensation (CRSC).

2.  The applicant states he has highlighted the areas on the Army letter, dated 7 March 2012, that should be considered combat-related.  The degenerative joint disease is from carrying heavy rucksacks during combat-related training.  The status post left anterior cruciate ligament reconstruction is a result of right knee strain caused by a left knee injury incurred during combat training of University of North Alabama ROTC (Reserve Officers’ Training Corps) students at Fort Lewis, WA, in 1994, which shortened his left leg by 3/4 inch.  His post-traumatic stress disorder (PTSD) is related to his service in a combat area during Desert Shield/Storm in 1990.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* eight letters with attachments
* nine pages of military medical records, dated between 26 August 1994 and 12 January 1996
* ten pages of civilian medical records, dated between 3 July 2008 and 12 January 2009
* two Department of Veterans Affairs (VA) Rating Decisions, dated 11 December 2001 and 15 November 2011
* VA Form 21-0820 (Report of General Information)
* two memoranda
* a certificate

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 4 June 1976 and he held military occupational specialty 11B (Infantryman).  He served in Southwest Asia from on or about 9 December 1990 to 11  January 1991.

2.  He served in a variety of assignments and was promoted to the rank of master sergeant (MSG) on 1 November 1992.

3.  He was honorably retired from active duty on 30 June 1996 in the rank of MSG.  He completed 20 years and 27 days of net active service.

4.  The applicant provides a letter, dated 18 October 2010, from the VA Regional Office, Phoenix, AZ, wherein an official with the regional office stated that VA records showed the applicant had a service-connected disability rating of 20 percent.  The applicant's disabilities were "status post left anterior cruciate ligament reconstruction - 10 percent, hiatal hernia with gastroesophageal reflux [disorder] (GERD) - 10 percent, and chronic sinusitis with headaches - 0 percent."

5.  On 3 November 2010, he submitted a claim for CRSC.  On 11 April 2011, he was notified by the U.S. Army Human Resources Command (HRC) that his claim was denied as his condition of:

* status post left anterior cruciate ligament reconstruction - documentation did not show an accident or incident to connect disability to a combat-related event
* hiatal hernia with GERD - did not meet the criteria for CRSC
* chronic sinusitis with headaches - did not meet the criteria for CRSC

6.  The applicant provides 15 pages of a 27-page VA Rating Decision, dated 15 November 2011, wherein it stated, in pertinent part:

	a.  The applicant was granted service-connection for PTSD with an evaluation of 30 percent, effective 25 October 2010.  A VA examination on 3 October 2011 noted he was alert and oriented, his mood was described as "usually real quiet," and his affect was mildly blunted but appropriate.  The applicant reported being depressed; worried about his finances, children, and step children; and had a history of panic attacks for about 6 months.  The examiner stated his diagnosis of PTSD was most likely caused by or was a result of military stressors, which are related to fear of hostile military or terrorist activity.  His evaluation of 30 percent was assigned because there was evidence of occupational and social impairment.

	b.  X-rays of his spine revealed mild degenerative disc disease of the lumbosacral spine.  He examiner diagnosed degenerative disc disease and stated there was a 50/50 probability that it was caused by or as a result of service-connected status post left anterior cruciate ligament reconstruction.  The rating he received from degenerative disc disease is not shown in the portions of the rating decision the applicant provided.

	c.  Service connection for right knee strain was established as secondary to the service-connected disability of status post left anterior cruciate ligament reconstruction was granted with an evaluation of 10 percent effective 25 October 2010.

	d.  Service connection for trochanteric bursitis of right hip was established as secondary to the service-connected disability of status post left anterior cruciate ligament reconstruction with an evaluation of 10 percent effective 25 October 2010.

7.  He subsequently he filed a request for reconsideration of his claim for CRSC.  On 7 March 2012, HRC notified him his claim was denied and stated the documentation he submitted still showed no new evidence to link the requested conditions to a combat-related event.  The notification letter stated they were unable to verify as a combat-related disability his condition of:

* degenerative disc disease, 20 percent VA rating - was secondary to another disability that was not combat-related
* hiatal hernia with GERD, 10 percent VA rating - did not meet the criteria for CRSC
* right hip limitation of extension, 0 percent VA rating - was secondary to another disability that was not combat-related
* status post left anterior cruciate ligament reconstruction, 10 percent VA rating - no new evidence provided to show a combat-related event caused the condition
* right knee strain, 10 percent VA rating - was secondary to another disability that was not combat-related
* trochanteric bursitis of left hip,10 percent VA rating - was secondary to another disability that was not combat-related
* trochanteric bursitis of right hip, 10 percent VA rating - was secondary to another disability that was not combat-related
* PTSD, 30 percent VA rating - no evidence in claim to show a combat-related event caused the condition
* sinusitis with headaches, 0 percent VA rating - did not meet the criteria for CRSC
* left hip limitation of abduction, 0 percent VA rating - was secondary to another disability that was not combat-related
* right hip limitation of abduction, 0 percent VA rating - was secondary to another disability that was not combat-related

8.  The applicant provides:

	a.  A Standard Form 513 (Consultation Sheet), dated 26 August 1994, wherein a physical therapist at the Physical Therapy Clinic, Redstone Arsenal, AL, requested the applicant be seen by the Orthopedic/Podiatry Clinic, Maxwell, Air Force Base (AFB), AL.  The therapist stated the applicant suffered a "valgus stress" to his left knee about 1 month previously at Fort Lewis, WA.  

	b.  A narrative summary, dated 12 January 1995, wherein it shows he underwent surgery at the Air Force hospital, Maxwell, AFB, AL, on 10 January 1995.  His physician stated the applicant had a 7-month history of knee pain instability after a valgus injury with swelling about 1 1/2 hours later.  He was admitted for anterior cruciate ligament reconstruction (ACL).

9.  There is no line of duty report or other documentation in the applicant's records that shows whether this injury was incurred during duty hours, the circumstances surrounding the injury, the date of the injury, or if it was incurred in the line of duty.

10.  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, especially 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-percent 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 applicant contends he is entitled to CRSC for degenerative disc disease, status post left anterior cruciate ligament reconstruction, and PTSD.

2.  The CRSC 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 especially hazardous duties.

3.  The evidence of record does not show and the applicant has not provided any evidence that shows his degenerative disc disease was related to a specific event that was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties.  Therefore, it does not meet the criteria for CRSC.  A VA Rating Decision showed he was diagnosed with mild degenerative disc disease and the examiner stated there was a 50/50 probability that it was a result of service-connected status post left anterior cruciate ligament reconstruction. 

4.  The applicant claims his "status post left anterior cruciate ligament reconstruction" was a result of right knee strain caused by a left knee injury incurred during combat training.  He provided a medical treatment record that stated an injury occurred to his left knee at Fort Lewis, WA, in mid-1994, and he eventually underwent knee surgery, presumably as a result of this injury.  The evidence of record does not contain any evidence and he did not provide any conclusive evidence that confirms how this injury incurred.  He contends it was incurred while training ROTC students; however, even if this was the case, this type of training does not constitute performing duties simulating combat conditions.

5.  He has also submitted evidence that confirms his depressive disorder and PTSD are service related.  The VA examiner stated PTSD was most likely caused by or was a result of military stressors, which were related to fear of hostile military or terrorist activity.  His evaluation of 30 percent was assigned because there was evidence of occupational and social impairment.  

6.  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.

7.  In view of the foregoing, he is not entitled to the requested relief.

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)                                         AR20120006572





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ABCMR Record of Proceedings (cont)                                         AR20120006572



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