IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130003774 


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) for coronary artery disease, thoracic spine osteoarthritis to include lumbar spine degenerative disc disease, migraine headaches, tinnitus, and obstructive sleep apnea.

2.  He states:

	a.  the physical evaluation board (PEB) determined he was 100 percent disabled and medically retired him;

	b.  his retirement is 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 incurring in line of duty during a period of war as defined by law;

	c.  the disability did result from a combat-related injury as defined by Title 26, U.S. Code, section 104, and for the purpose of Title 10, U.S. Code, section 110216(G); and

	d.  as a result he should be awarded CRSC.

3.  He provides:

* a self-authored statement, dated 13 February 2013
* his DA Form 199 (PEB Proceedings), convened on 2 March 2010
* his Department of Veterans Affairs (VA) Rating Decision, dated 8 December 2011
* a letter from U.S. Army human Resources Command (HRC) CRSC Branch, dated 13 December 2012
* two letters of support, dated 12 July and 27 August 2012

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the Regular Army and Army National Guard, he was commissioned as an officer in the U.S. Army Reserve and ordered to active duty on 2 June 2007 in support of Operation Iraqi Freedom (OIF).  

2.  On 2 March 2010, a PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and specialty.

VASRD*
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
9411
PTSD condition is a battle injury and was caused by an instrumentality of war.  He was deployed in 2007 to OIF and experienced daily mortar rounds, rocket attacks and indirect small arms fire.  
70
He is unable to perform as a social worker due to his inability to establish and maintain effective relationships.  Rated for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment and mood.
7006
Myocardial infarction listed as coronary artery disease, resulting in two myocardial infarctions and recurrent chest pain.
60
Condition is unfitting as he cannot carry and fire an individual weapon, cannot move with a fighting load 2 miles and cannot perform his duties as a social worker.
9326
Dementia due to other medical conditions.  This is not a battle injury and was not caused by an instrumentality of war.
50
Condition is unfitting because of significantly impaired ability to follow conversations, forgets what is said, and inability to communicate effectively.
5242
Degenerative arthritis listed as chronic lower back pain due to degenerative disc disease.  This injury occurred in OIF in 2007.  He stepped off an airplane with his combat gear and fell and twisted his back.   
40
Condition is unfitting because he cannot carry and fire individual weapon, cannot move with a fighting load 2 miles, cannot construct a fighting position, or do 3-5 second rushes under fire.
8100
Migraine headaches  developed after his myocardial infarctions.
30
Rated for headaches which occur more than once a month but not productive of severe economic inadaptability.
*VASRD:  VA Schedule for Rating Disabilities

3.  On 3 March 2010, the PEB concluded:

	a.  the applicant was physically unfit and recommended a combined disability rating of 100 percent duty and permanent disability retirement.

	b.  his retirement is 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 incurring in line of duty during a period of war as defined by law; and

	c.  his disability did result from a combat-related injury as defined in Title 26, U.S. Code. section 104, and for the purpose of Title 10, U.S. Code, section 110216(G).

4.  On 6 June 2010, he was retired under the provisions of Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), by reason of permanent disability.  He completed a total of 4 years, 2 months, and 24 days of creditable active service.

5.  He submitted his VA Rating Decision, dated 8 December 2011, that shows the following decisions regarding his claim, effective 7 June 2010:

* service connection for –

* coronary artery disease (arteriosclerotic heart disease) status post myocardial infarction, 60 percent
* obstructive sleep apnea, 50 percent
* PTSD to include dementia, insomnia, and major depressive disorder (PTSD-Combat/Other Stressor Verification), 50 percent
* thoracic spine osteoarthritis to include lumbar spine degenerative disease, 40 percent
* migraine headaches, 30 percent,
* diabetes mellitus type II, 20 percent
* cervical spine strain (claimed as cervicalgia), 10 percent
* tinnitus, 10 percent
* gastroesophageal reflux disease, 10 percent;

* service-connected, but 0 percent for –

* left wrist ganglion cyst
* left shin splints
* right shin splints
* left ear hearing loss
* allergic rhinitis
* hypertension to include chronic systolic hypertension
* erectile dysfunction 
* tinea pedis

* combined evaluation for compensation, 100 percent
* special monthly compensation for loss of a creative organ 

* service-connection was denied for –

* muscle spasm
* bilateral eye chalazions
* right eye stye
* conjunctivitis

6.  On 1 February 2012, the HRC CRSC Branch informed the applicant that they were able to award the conditions listed below as combat-related in accordance to their program guidance.  The VA evaluated the following conditions that were determined not to be verified as combat-related conditions and are shown as VA Disability Codes, VA Narrative Descriptions, and corresponding VA Disability Percentages:

* 7005, coronary artery disease, 60 percent
* 5242, thoracic spine osteoarthritis, 40 percent
* 7913, diabetes mellitus, type II, 20 percent
* 7522, erectile dysfunction, 0 percent
* 7346, gastroesophageal reflux disease, 10 percent
* 5237, cervical spine strain, 10 percent
* 8100, migraine headaches, 30 percent
* 9411, PTSD, 50 percent
* 6947, obstructive sleep apnea, 50 percent
* 6260, tinnitus, 10 percent

7.  On 5 April 2012, the HRC CRSC Branch reviewed the applicant's claim for CRSC and he was again informed they were unable to verify his erectile dysfunction and hypertension as combat-related.

8.  On 6 August 2012, the HRC CRSC Branch reviewed the applicant's claim for CRSC and informed him that they verified his PTSD as combat-related.

9.  On 13 December 2012, 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.  He was further advised to apply to this Board.

10.  He submitted:

	a.  a letter from his physician at Columbia Heart, dated 12 July 2012, that indicates he treated the applicant for a history of coronary atherosclerosis, hypertension, hyperlipidemia deep vein thrombosis, and a pulmonary embolism in 2009, that he believed were stress-related due to the deployment.

	b.  a letter from the Chiropractic Clinic, Moncrief Army Community Hospital, Fort Jackson, SC, dated 27 August 2012, that indicates the applicant underwent treatment for his chronic lower back pain beginning in 10 April 2009 due to an injury he received while exiting a plane in full gear.

11.  CRSC, as established by Title 10, U.S. Code, section 1413a, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it were not 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) or are retired due to a combat-related disability, 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.

12.  The Under Secretary of Defense, Military Personnel Policy has provided policy guidance on the processing of CRSC appeals.  In that guidance it was stated that in order for a condition to be considered combat-related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war.

DISCUSSION AND CONCLUSIONS:

1.  The CRSC criteria are 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 the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.

2.  Although the evidence shows the applicant was diagnosed with coronary artery disease, thoracic spine osteoarthritis, migraine headaches, tinnitus, and obstructive sleep apnea, there is no evidence in the available record that shows these conditions were sustained as a direct result of armed conflict, especially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.

3.  Without evidence to establish a direct, causal relationship to his VA-rated disabilities to war or the simulation of war, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20130003774



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ABCMR Record of Proceedings (cont)                                         AR20130003774



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