IN THE CASE OF:	  

		BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120010150 


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 he is entitled to Combat-Related Special Compensation (CRSC).

2.  The applicant states, in effect, he should receive CRSC.  He was awarded the Flight Surgeon Badge, was authorized hazardous duty/imminent danger pay (HD/IDP), and he treated combat wounded.  

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* five letters
* Department of Veterans Affairs (VA) Rating Decision
* DD Form 2880 (Claim for CRSC)
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* two CRSC Forms 12e (CRSC Reconsideration Request Form)
* two orders
* Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter)
* DA Form 4187 (Personnel Action)
* a memorandum




CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and he executed an oath of office on 11 September 1981.  He held specialty 62B (Field Surgeon).  He served in staff and leadership positions and he attained the rank/grade of lieutenant colonel (LTC)/O-5 on 30 October 1996. 

2.  He was ordered to active duty as a member of his USAR unit in support of Operation Joint Endeavor/Guard and he entered active duty on 11 September 1997.  He served in Hungary, Bosnia, and Croatia from 30 September 1997 to 28 April 1998 while assigned to the 94th General Hospital.

3.  He was honorably released from active duty on 12 May 1998 and assigned to Detachment 1, 94th General Hospital, USAR, Seagoville, TX.  He completed 8 months and 2 days of net active service.

4.  On 9 November 1999, he attained the rank of colonel (COL) in the USAR.

5.  On 11 November 2005, he was discharged from the USAR and assigned to the Retired Reserve.  He completed 24 years, 2 months, and 1 day of Reserve service.

6.  The applicant provides a VA Rating Decision, dated 23 April 2011, wherein it stated, in pertinent part, effective 27 August 2012, he was granted service-connection for:

	a.  Chronic bronchitis (previously denied as service-connection), with an evaluation of 30 percent.  Service treatment records reviewed showed complaints of or treatment for chronic bronchitis in December 1997.  During a VA exam in February 2011, the applicant reported a chronic cough since 1997, ever since he had been exposed to lots of chemicals and gases in the military.  The examiner reported the applicant's chronic bronchitis was at least as likely as not caused by or the result of his military service.

	b.  Invertebral disc syndrome (IVDS) (previously denied as service-connection), previously evaluated as a low back condition, with an evaluation of 20 percent.  Records showed the applicant had a back disability which pre-existed his service.  Records reviewed also showed the applicant was on active duty from September 1997 through May 1998 and during his deployment he was a flight surgeon whose duties included treating the wounded, and lifting and manipulating patients in the course of treatment.  The applicant reported these actions aggravated his back disability.  In the opinion of the examiner, his lumbar spine condition was at least likely as not associated/related to his pre-service condition and would possibly be aggravated by his time in service.  The evidence did not conclusively show or establish the level of aggravation attributable to service.  A 20 percent evaluation was assigned because the evidence of record showed his forward flexion of his lumbar spine was limited to 45 degrees for his diagnosed IVDS.  Service-connection was established because there was a medical opinion indicating his disability was due to his military service.

	c.  Tinnitus, with an evaluation of 10 percent.  Service-connection was warranted because, although no tinnitus was demonstrated in-service, the applicant's specialty of flight surgeon was consistent with acoustic trauma and his tinnitus had been linked to that acoustic trauma.  His VA examiner opined that it was as likely as not that his bilateral tinnitus was due to military noise exposure.

	d.  Radiculopathy, left lower extremity, with an evaluation of 10 percent, as secondary to the applicant's service-connected disability of IVDS.  He did not receive treatment from the VA for his claimed disabilities.  However, the examiner confirmed a diagnosis of radiculopathy - left, lower extremity, as related to his service-connected disability of IVDS.

	e.  Bilateral hearing loss, with an evaluation of 0 percent.  Service-connection was warranted because, although no hearing loss was demonstrated in-service, the applicant's specialty of flight surgeon was consistent with acoustic trauma and his hearing loss had been linked to that acoustic trauma.  His VA examiner opined that it was as likely as not that his hearing loss was due to military noise exposure.

	f.  An evaluation of a flexor tendon entrapment - left, 4th finger, currently 0 percent disabling, was continued and a decision on entitlement to compensation for sinusitis was deferred.

7.  On 13 October 2011, he submitted a claim for CRSC.  On 7 November 2011, he was notified by the U.S. Army Human Resources Command (HRC) that his claim was denied as his condition of:

* chronic bronchitis - no evidence to show a combat-related event caused the condition
* IVDS, previously evaluated as low back condition - no evidence to show a combat-related event caused the condition
* radiculopathy, left lower extremity - condition was secondary to a disability that was not combat-related
* tinnitus - no evidence of combat noise exposure in the claim
8.  On 15 December 2011, he filed a request for reconsideration of his claim for CRSC.  On 11 January 2012, HRC notified him his claim was denied and stated the documentation he submitted contained no new evidence to show a combat-related event caused his conditions of chronic bronchitis, IVDS, radiculopathy, or tinnitus.

9.  On 29 March 2012, he filed a second request for reconsideration of his claim for CRSC.  He stated he continued to assert that his conditions were combat-related due to hazardous service while performing flight surgeon duties, lifting combat wounded for transport, and exposure to hazardous environmental conditions.

10.  On 19 April 2012, HRC notified him his claim was denied, final disapproval, and stated there was no new evidence provided to show a combat-related event caused his conditions of chronic bronchitis, IVDS, radiculopathy, or tinnitus.

11.  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 chronic bronchitis, IVDS, radiculopathy, or tinnitus.

2.  The CRSC is specifically for those military retirees who have combat-related disabilities.  Incurring disabilities or aggravating medical conditions 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 chronic bronchitis was related to a specific event that was incurred while engaged in combat or while performing especially hazardous duties.  A VA Rating Decision showed that during a VA exam in February 2011 the applicant reported he had been exposed to chemicals and gases in the military and had a chronic cough since 1997.  However, there is no evidence in his records that supports this contention.  

4.  The applicant claims his IVDS was a result of lifting and manipulating patients during treatment when he was deployed as a flight surgeon.  The evidence of record does not contain any evidence and he did not provide any evidence to show a specific combat-related event caused this condition.  In addition, the VA examiner determined he had a back disability which existed prior to his service.

5.  He claims his condition of radiculopathy as combat-related.  However, the VA examiner stated he did not receive treatment from the VA for this claimed condition.  The examiner confirmed the diagnosis of radiculopathy as secondary to his service-connected disability of IVDS.  As his condition of IVDS was not determined to be combat-related, his condition of radiculopathy does not fit the criteria for CRSC.

6.  There is no evidence and he did not provide any evidence that shows a specific combat-related event caused his tinnitus.  In addition, the VA examiner found the applicant had not demonstrated tinnitus while in the service.  They granted service-connection for tinnitus as his specialty of flight surgeon was consistent with acoustic trauma and his tinnitus had been linked to acoustic trauma.  There is no evidence and he did not provide any evidence that shows a specific combat-related event caused his tinnitus.

7.  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.

8.  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)                                         AR20120010150





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ABCMR Record of Proceedings (cont)                                         AR20120010150



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