IN THE CASE OF:	  

		BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120011662 


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 retirement orders to show his disability did (instead of did not) result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

2.  The applicant states:

* His disability was combat related; he was conducting a tactical road march, in full gear, when he was injured during the last obstacle of the Expert Field Medical Badge (EFMB) training
* This training was a simulation of war, in preparation to act as an expert field medic in combat situations
* The injury that resulted in a disability warranted a medical evaluation board (MEB), a physical evaluation board (PEB), and ultimate retirement by reason of physical disability
* He also received a Department of Veterans Affairs (VA) rating of             30 percent (30%) for this disability

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 274-0361 (retirement orders)
* Line of Duty determination memorandum
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* MEDCOM Form 69-R (Test) (Medical Record – Patient Release/Discharge Instructions)
* DA Form 199 (PEB Proceedings)
* VA rating decision
* Two statements of support

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a Reserve commissioned officer, Medical Services Corps, and executed an oath of office on 9 July 2005 and entered active duty on 17 July 2005.  

2.  On 23 May 2008, while undergoing the 12-mile road march of the EFMB competition in Korea, he collapsed at the 11.5 mile mark.  He was admitted to Brian Allgood Community Hospital for a heat stroke and exertional rhabdomyolysis.  

3.  According to the according the U.S. Department of Health and Human Services, National Institutes of Health, exertional rhabdomyolysis is the degeneration of skeletal muscle caused by excessive, unaccustomed exercise.  Symptoms of rhabdomyolysis include muscle pain, weakness and swelling; myoglobinuira (presence of myoglobin in the urine); and increased levels of muscle enzymes and other muscle constituents in the blood.

4.  He was promoted to captain (CPT) on 1 November 2008.

5.  According to his DA Form 2173, created on 1 April 2009, he was treated with intra-venous fluids and conservative measures.  He recovered and he was discharged from the hospital on 25 May 2008.  He was given a temporary physical profile with no running or exertional exercise.  He was referred to the MEB process.  

6.  His narrative summary shows:

	a.  In May 2008, he had almost completed the 12-mile road march, the final phase of the EFMB qualification course, when he passed out.  He was evacuated to the 121st Hospital in Yongsan, Korea where he was treated for a heat stroke.  He recovered satisfactorily and gradually resumed regular activity.  He was given a permanent profile and referred to an MEB.  

	b.  He experienced two episodes of heat exhaustion in August and October 2008.  He then proceeded to Fort Polk, LA, where he was preoccupied with taking command.  In February 2009, he discovered that his MEB had not been started.  He submitted his profile to medical authorities and he subsequently had extensive evaluations culminating in a muscle biopsy.  Specialists concluded that he had chronic exertional rhabdomyolysis, etiology unknown, and he should restrict all strenuous activity.

7.  On 16 July 2010, an MEB convened.  After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of exertional rhabdomyolysis, irritable bowel syndrome, narcolepsy and cataplexy, and chronic right ankle instability.  He also had multiple conditions that met retention standards (migraine headaches, dry eyes, mykymia, and bilateral inguinal hernias).  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendation and indicated he did not desire to continue serving on active duty.

8.  On 18 August 2010, he was evaluated by the VA as part of the Pilot Disability Evaluation System (PDES).  This disability evaluation was prepared to assign evaluation to his unfit conditions for use by the Army in determining his final disposition as well as VA benefits.  The VA awarded him service-connected disability compensation for and at the rate of:

* 40% for narcolepsy and cataplexy (chronic neurological disorder caused by the brain's inability to regulate sleep-wake cycles)
* 30% for exertional rhabdomyolysis (claimed as heat/exercise intolerance)
* 10% for irritable bowel syndrome
* 10% for migraines
* 0% for right ankle instability
* 0% for bilateral inguinal hernias

9.  On 13 September 2010, an informal PEB convened at Fort Sam Houston, TX. The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage) of the DA Form 199, he was granted the following:

* Codes 8018/8914 – narcolepsy and cataplexy (high propensity to fall asleep), 40%
* Codes 8045/8103 – exertional rhabdomyolysis (unable to perform strenuous activities), 30%
* Code 7319 – irritable bowel syndrome, 10%
* Code 5271 – right ankle instability, 0%

10.  With respect to the service-connection for exertional rhabdomyolysis the VA determined that based on the applicant's medical record, he had two major episodes of heat stroke while performing exercises or running the 12-mile EFMB course.  The records showed that even during his last Army Physical Fitness Test (APFT), which was modified by walking, he had to be taken to the hospital and given intravenous fluids.  A muscle biopsy confirmed he had rhabdomyolysis.  Further genetic testing showed he was a carrier of the condition.  His commander's evaluation noted that due to the number of physical defects that hindered his ability to meet minimum standards and be deployable he was not recommended for retention.  

	a.  During the VA examination, he reported he still got muscle cramps during prolonged exertions even indoors.  He reported he was on a physical profile and did not exercise outdoors.  Muscle and neurological examination was normal showing no sensory or muscle deficiencies. 

	b.  He was granted service connection as the evidence showed exertional rhabdomyolysis started (although it may have been present prior to service as is a genetic condition) in service and he continued to have residuals.  

11.  The PEB also considered his other medical condition(s) as listed on the MEB (migraine headaches, dry eyes, myokymia, and bilateral inguinal hernias); however, these conditions met retention standards and were not found to be unfitting and therefore they were not rated.  The PEB recommended the applicant's permanent retirement at a combined rating of 60%.  He concurred and waived his right to a formal hearing of his case.

12.  The applicant's DA Form 199 contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

	a.  Item 10a – The Soldier's retirement is not based on disability from 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 as defined by law.

	b.  Item 10b – Evidence of record reflects the Soldier was not a member or obligated to become a member of the Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration (NOAA) or the U.S. Public Health Service (USPS) on 24 September 1975.

	c.  Item 10c – The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

13.  On 1 October 2010, Headquarters, Joint Readiness Training Center and Fort Polk, Fort Polk, LA, published Orders 274-0316 releasing him from active duty on 27 December 2010 by reason of physical disability and placing him on the permanent disability retired list in his retired grade of CPT effective 28 December 2010.  The orders stated "Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104: NO." 

14.  On 27 December 2010, the applicant was retired in accordance with chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of permanent disability.  Item 26 (Separation Code) of his DD Form 214 shows the entry "SEJ."

15.  On 1 June 2012, the U.S. Army Human Resources Command approved his claim for Combat-Related Special Compensation (CRSC) for codes 8045/8103 – exertional rhabdomyolysis at the rate of 30% and justified the decision by stating that sufficient documentation existed to verify disability as combat-related.  

16.  He provides two statements from eye-witnesses who were present at the time of injury.  The authors provide a similar summary of the injury as that provided by the applicant. 

17.  Army Regulation 635-40 establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states a disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

18.  Paragraph 4-19 (PEB decisions – common criteria) states in:

	a.  Paragraph 4-19j (Armed Conflict – Instrumentality of War) certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service system (Title 5, U.S. Code, section 3501).  One of those situations is when the disability is unfitting, was caused by an instrumentality of war, and was incurred in Line of Duty during a period of war as defined by law. 

	b.  Paragraph 4-19k disability pay is awarded by reason of a combat-related injury.  Within the meaning of Title 26, U.S. Code, section 104, combat related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.

	c.  Paragraph 4-19l a Soldier may be performing extra hazardous service even if not directly engaged in combat.  Extra hazardous service includes but is not limited to the following activities: Aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.  Conditions simulating war include, but are not limited to, the following activities: performance of tactical exercises such as the squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; repelling; and negotiation of combat confidence and obstacle courses.  In block 10c of the DA Form 199, the board will record its determination of whether the injury was combat-related as defined by Title 26, U.S. Code, section 104. 

	d.  Section II of the Glossary defines 

		(1)  Combat-related injury as a personal injury or sickness that a Soldier incurs under one of the following conditions: as a direct result of armed conflict; while engaged in extra hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.

		(2)  Conditions simulating war as those circumstances of training so simulating conditions of war that a special personal risk attends the situation. The mere fact that training (calisthenics) was required, or that training (football) is sponsored by the military, does not equate with "conditions simulating war."

		(3)  Instrumentality of war is a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.

19.  Title 26 U.S. Code, section 104, states for purposes of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was involved in a 12-mile road march during EFMB testing when he collapsed and was taken to the hospital on 23 May 2008.  Months after his discharge from the hospital, it appears he had multiple defects that his commander deemed had affected his duty performance.  An MEB appears to have listed several conditions that were not medically acceptable for retention.  

2.  He was evaluated by the VA as part of the PDES.  The VA determined that based on his medical record, he had two major episodes of heat stroke while performing exercises or running the 12-mile EFMB course.  He was previously taken to the hospital and given fluids during a modified APFT.  He was granted service connection as the evidence shows exertional rhabdomyolysis started - although it may have been present prior to service is a genetic condition - in service and he continued to have residuals.  

3.  The applicant does not meet the criteria to have this condition listed as combat-related.  Conditions simulating war are those circumstances of training so simulating conditions of war that a special personal risk attends the situation. The mere fact that training – in the applicant's case a tactical road march - was required, or that training such as the APFT is required by the Army, does not equate with "conditions simulating war."  The fact that his condition may have been aggravated in the line of duty in a time of war during an EFMB test is not sufficient to change item 10c of his PEB or the resultant retirement orders. 

4.  There is no error or injustice in this case.  In view of the circumstances in this case, there is insufficient evidence to grant him 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)                                         AR20120011662



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ABCMR Record of Proceedings (cont)                                         AR20120011662



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