IN THE CASE OF:	  

		BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120018589 


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 award of Combat-Related Special Compensation (CRSC).

2.  The applicant states he has been denied CRSC three times despite his injures being found to be combat-related by a medical evaluation board (MEB).

3.  The applicant provides:

* Department of Veterans Affairs (VA) Rating Decision
* Progress Notes
* three letters from the CRSC Branch
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Regular Army, the applicant enlisted in the Virginia Army National Guard (VAARNG), on 7 November 2002.

2.  On 8 June 2007, he was ordered to active duty in support of Operation Iraqi Freedom.  

3.  The applicant submitted 4 pages of progress notes from the Hampton VA Medical Center, which show he sought help for his problems on 30 July 2008.  His progress notes state he served in Iraq from 18 October 2005 to February 2007 (during a previous active duty tour).  
4.  On 29 October 2009, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB diagnosed the applicant as having the medically-unacceptable conditions of:

* osteoarthrosis, right shoulder
* lumbago
* bilateral patellofemoral syndrome
* chronic post-traumatic stress disorder (PTSD)

5.  The MEB recommended referral to a PEB.  The findings and recommendation of the MEB were approved.  The applicant was informed of and agreed with the findings and recommendations of the board and he authenticated the document with his signature. 

6.  On 23 December 2009, a PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and specialty.  
His DA Form 199 shows the applicant's physical disabilities, as described below, were considered and determined to have been a battle injury or caused by an instrumentality of war.  The PEB was approved by the Secretary of the Army on 
8 January 2010.

VASRD*
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
9411
PTSD condition occurred in a combat theater during exposure to rocket and mortar fire and exposure to human remains to which he reacted to with horror, revulsion.  
50
Condition is unfitting Soldier shows impairment in occupational and social functioning, cannot return to duties of his MOS due to his symptoms, and cannot carry and fire a weapon.
5099
5003
degenerative arthritis listed as bilateral patellofemoral syndrome.  Injury occurred while climbing up and down trucks and marching over uneven terrain during deployment.
20
Condition is unfitting for his MOS 19D (scout) because it interferes with ruck marching, climbing vehicles, kneeling and squatting that is involved in the handling of heavy weapons.
5010
Traumatic arthritis listed as right shoulder slap lesion and osteoarthritis.   Repeated microtrauma of mounting and dismounting a 50 caliber Browning off the gun turret of a vehicle off a truck during deployment.
10
Condition is unfitting because of significantly impaired ability to handle heavy weapons and communication gear.
5237
Lumbago.   Injury to his lower back occurred from the stress and strain of activities while deployed.  
10
Condition is unfitting because the duties of his MOS require repeated bending with IBA and associated military gear, and lifting, caring, manipulating heavy weapons.
*VASRD:  VA Schedule for Rating Disabilities

7.  Item 10c of the DA Form 199 states "disability did result from a combat related injury as defines in Title 26, U.S. Code 104 and for the purpose of Title 10, U.S. Code 110216(G)." 

8.  On 27 March 2010, the applicant was released from assignment and duty due to a physical disability incurred while entitled to basic pay and retired due to temporary physical disability with a 70 percent disability rating.

9.  His record contains a VA Rating Decision, dated 18 April 2011, made the following decisions regarding his claim:

	a.  service connection for degenerative arthritis of the lumbar spine, 
0 percent, effective 28 March 2010;

	b.  service connection for status post right shoulder arthroscopy with scar, 
0 percent, effective 28 March 2010; 

	c.  service connection for patellofemoral syndrome, right knee, 0 percent, effective 28 March 2010; 

	d.  service connection for patellofemoral syndrome, left knee, 0 percent, effective 28 March 2010;

	e.  a clear and unmistakable error is found in the effective date of service connection for PTSD with insomnia and adjustment disorder with mixed anxiety and depressed mood.  Service connection is established as 28 March 2010;

	f.  a clear and unmistakable error is found in the effective date of service connection for tinnitus, left ear (claimed as bilateral tinnitus).  Service connection is established 28 March 2010;
	g.  Service connection for left shoulder strain and headaches was denied; and

	h.  Entitlement to individual unemployability was deferred.

10.  His VA Rating Decision, dated 25 July 2011, indicates his service-connected disability ratings were for:

* PTSD with insomnia, 70 percent, service-connected, Gulf War, Combat 
* degenerative arthritis of the lumbar spine, 10 percent, service-connected, Gulf War, incurred
* tinnitus, left ear, 10 percent, service-connected, Gulf War, incurred
* status post right shoulder arthroscopy with scar, 0 percent, service-connected, Gulf War, incurred
* patellofemoral syndrome, left knee, 0 percent, service-connected, Gulf War, incurred

11.  On 13 July 2011, the U.S. Army Human Resources Command (HRC) CRSC Branch informed the applicant that they were unable to award the conditions listed below as combat-related in accordance to their program guidance.  The CRSC Branch stated the VA narrative they received, dated 18 April 2011, stated in pertinent part, the conditions were service-connected, but did not state or establish a combat related event as the cause.  Being in a combat zone is not sufficient to award CRSC.  The VA conceded a stressor for his PTSD was based on the applicant's lay testimony, which does not qualify for award under CRSC.  Evidence can be a PEB, MED, or a completed updated VA Rating Decision and Narrative defining the condition as combat related.

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
5242
Degenerative Arthritis of the Lumbar Spine
10
Degenerative condition with no accident or incident to connect disability to a combat-related event.
5261
Patellofemoral Syndrome, Left Knee (5299-5261)
0
No evidence in claim to show that a combat-related event caused condition
5261
Patellofemoral Syndrome, right Knee (5299-5261)
0
No evidence in claim to show that a combat-related event caused condition
5201
Status Post Right Shoulder Arthroscopy with Scar
0
No evidence in claim to show that a combat-related event caused condition
5241
PTSD with Insomnia
50
No evidence to show PTSD was caused by a combat-related event.
12.  On 4 August 2011, the HRC, CRSC Branch reviewed the applicant's claim for CRSC and he was again informed they were unable to verify his conditions were combat-related.  The psychologist or examiner needs to review the applicant's service treatment records or other official military documents and link his PTSD condition with a combat-related event.  

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
5242
Degenerative Arthritis of the Lumbar Spine
10
Previously requested requested.  No new evidence to show combat-related event caused condition.  Your medical record indicates your work up in 2006 with lower back pain, you deny any specific injury, but attribute the onset to rough riding in Humvee.
5261
Patellofemoral Syndrome, Left Knee (5299-5261)
0
Previously requested.  No evidence in claim to show that a combat-related event caused condition
5261
Patellofemoral Syndrome, right Knee (5299-5261)
0
Previously requested.  No evidence in claim to show that a combat-related event caused condition
5201
Status Post Right Shoulder Arthroscopy with Scar
0
Previously requested.  No evidence in claim to show that a combat-related event caused condition
5241
PTSD with Insomnia
70
Previously requested.  No evidence to show PTSD was caused by a combat-related event.
13.  On 16 November 2011, the HRC CRSC Branch informed the applicant that they were unable to overturn the previous adjudications because the documents he submitted still showed no new evidence to link his requested conditions to a combat-related event and he was advised to apply to this Board.  

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
5242
Degenerative Arthritis of the Lumbar Spine
10
Final disapproval - Previously requested: Degenerative condition with no accident or incident to connect disability  to a combat-related event.
5261
Patellofemoral Syndrome, Left Knee (5299-5261)
0
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
5261
Patellofemoral Syndrome, right Knee (5299-5261)
0
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
5201
Status Post Right Shoulder Arthroscopy with Scar
0
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
5241
PTSD with Insomnia
70
Final disapproval - Previously requested:  No evidence to verify PTSD was caused by a combat-related event.  The VA conceded a stressor based upon your lay testimony alone, which does not qualify for award under CRSC program guidance and causal link between disability and a documented combat-related event
14.  CRSC, as established by Title 10, U.S. Code, section 1413a, 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 weren't for the statutory prohibition for a military retiree to receive a VA disability pension.

	a.  Payment is made by the Military Department, not the VA, and is tax free.

	b.  Eligible members are those retirees who are entitled to retired pay (other than by reason of section 12731b of this title and have a combat-related disability that is the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.

	c.  Qualified disabilities must be compensated by the VA and rated at least 10-percent disabling.

	d.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return to the military retiree a portion of the waived retired pay.

DISCUSSION AND CONCLUSIONS:
1.  The applicant contends that his military records should be corrected to show his injuries were combat related and qualifies for CRSC.

2.  The available evidence clearly shows that the applicant had applied three times to HRC for CRSC.  All three times he was denied on the basis that the evidence he provided was not sufficient to show his injuries were the result of a combat-related event.

3.  However, further examination of the applicant's Army Military Human Resource Record shows that during the time of his injury, he was deployed to a combat theater.  The applicant's subsequent PEB, as approved by the Secretary of the Army, clearly connects his injuries to the combat theater and clearly identifies his injuries as having occurred during battle and by an instrumentality of war.  This documentation is a matter of official record and is more than sufficient to establish that the applicant's injuries occurred during a combat-related event.

4.  In view of the above, it would be appropriate to grant the applicant's request.

BOARD VOTE:

____x___  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_________  ________  ______ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing his claim for Combat-Related Special Compensation was approved; and

	b.  if otherwise eligible, paying him any monies due as a result of this correction.



      _______ _   _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)                                         AR20120018589



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ABCMR Record of Proceedings (cont)                                         AR20120018589



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