IN THE CASE OF:	 

		BOARD DATE:	31December 2013

		DOCKET NUMBER:  AR20130007201


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 that his hearing loss, which he sustained as early as 1975, was caused by years of flying helicopters, training in tanks, and qualifying annually with small arms.  Therefore, in accordance with Department of Veterans Affairs (VA) guidelines, it was combat-related and service-connected for the purpose of qualifying for Combat-Related Special Compensation (CRSC).

2.  The applicant states:

* he has a valid hearing loss certified by the VA due to armor training, annual weapons qualification, and over 1900 hours of flight time in various helicopters from 1969 until 1988
* his aviation training started in 1969 and he earned his senior army aviator badge
* due to military flight training, he failed many hearing tests from 1975 and 1976, that date forward, and was granted a waiver from 1976 through 1989, in order to pass a flight physical
* he is requesting his hearing disability be corrected to show it was combat-related and service-connected
* for many years he was the safety officer for weapons training in various units he commanded
* his physical examinations show a sharp decline in hearing starting in the mid-1970s, which was due to military training
* the extreme noise, even with the inadequate hearing protection offered by the Army in the early 1970s, caused his hearing disability
* it appears that Department of the Army and the U.S. Army Human Resources Command (HRC) agree he suffers from tinnitus, but they refute the cause was related to combat training
* firing tanks and small arms on gunnery ranges is without question related to combat training
* operating tanks and flying helicopters is combat-related training
* his tinnitus cannot be related to any one incident, but was caused by years of simulated combat or related exposures

3.  The applicant provides the following in support of his request:

* memoranda from the CRSC Branch at HRC, Alexandria, VA, dated 
24 February 2009 and 18 February 2010
* a memorandum from the CRSC Branch at HRC, Fort Knox, KY, dated    25 April 2012 
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 18 June 1970
* Orders 40-3, issued by the Office of the Adjutant General, Iowa Army National Guard (IAARNG) on 29 February 1988
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), for the period ending 31 March 1988
* Orders C-05-718683, issued by U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO on 13 May 1997
* Orders P04-784541, issued by HRC, St. Louis, MO on 18 April 2007
* a memorandum from Headquarters, U.S. Army Aeromedical Center, Fort Rucker, AL, dated 19 August 1986, subject: Recommendation for Waiver, with corresponding DA Form 4186 (Medical Recommendation for Flying Duty) and 1st endorsement 
* DA Form 759 (Individual Flight Record and Flight Clearance – Army), with corresponding DA Forms 759-1 (Individual Flight Record and Flight Clearance – Army (Part II))
* NGB Form 23 (ARNG – Retirement Credits Record)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* test results pertaining to his Compensation and Pension Examination – Audio, administered by the VA Medical Center, Madison, WI

CONSIDERATION OF EVIDENCE:

1.  On or about 22 August 1969, after prior enlisted service in the IAARNG, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1 in the aviation branch, with concurrent appointment in the IAARNG.    

2.  On 31 March 1988, he was discharged from the IAARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

3.  On 6 May 1992, he was promoted to the rank/grade of lieutenant colonel (LTC)/O-5.

4.  On 1 September 1997, he was transferred to the USAR Control Group (Retired Reserve).

5.  On 29 May 2007, upon reaching age 60, he was placed on the Army of the United States (AUS) Retired List, in the rank/grade of LTC/O-5.

6.  His medical records are unavailable for review with this case; however, his available record contains documentation that shows he suffered from high frequency hearing loss during his period of military service, and as a result of his hearing loss, on at least one occasion, he required a waiver to remain on flight status.  

7.  In February 2009, he submitted an initial claim for CRSC based on impaired hearing in his left ear and tinnitus in both ears.  The CRSC branch determined that in both instances, there was no official evidence of acoustic trauma or combat noise exposure in his claim that shows a combat-related event caused his condition.  On 24 February 2009, by letter, an official at HRC notified him that his claim for CRSC was denied due to their inability to verify his injury as combat-related.

8.  He submitted a request for reconsideration, and on 18 February 2010, by letter, an official at HRC notified him that his request for reconsideration of his CRSC claim and all of the evidence he submitted was reviewed, but there was no justification to reverse the previous decision.  

9.  He submitted a second request for reconsideration, and on 25 April 2012, by letter, an official at HRC notified him that his request for reconsideration of his CRSC claim and all of the evidence he submitted was reviewed, but there was no justification to reverse the previous decision.  This was his final denial letter.

10.  He provides documentation that shows he requested and was granted a waiver for his hearing loss to remain on flight status.  Additionally, he provides test results pertaining to his Compensation and Pension Examination – Audio, administered by the VA Medical Center, Madison, WI.  These exam results determined it was probable his hearing loss and tinnitus resulted from his military service; however, the exam results fail to make a correlation between his hearing loss and tinnitus and a combat-related event.
11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states: 

   a. A combat-related injury is defined 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.

   b. Conditions simulating war are defined 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."

   c. Paragraph 4-19, sub-paragraph l of the regulation currently in effect, provides that conditions simulating war include, but are not limited to, the following activities:  performance of tactical exercises such as a squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses.

12.  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.  

   a. 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.  

   b. Such disabilities must be compensated by the VA and rated at least 10% 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 his records should be corrected to show his hearing loss and tinnitus were caused by years of flying helicopters, training in tanks, and qualifying annually with small arms; therefore, in accordance with VA guidelines, they were combat-related and service-connected for the purpose of qualifying for CRSC.  

2.  The applicant's service medical records, including the complete facts and circumstances surrounding his claimed hearing loss and tinnitus, are unavailable for review with this case.  The documents he provides show he required a waiver for his hearing loss to remain on flight status.

3.  The available evidence supports that the applicant clearly has a service connected disability for hearing loss that became progressively worse over time. However, the evidence does not support that it was combat related.

4.  He submitted evidence to show his tinnitus and hearing loss are service related and work related, but he has not submitted any evidence that shows these conditions are combat related.  

5.  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 that 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.

6.  His flight time and general flight duties, including his exposure to military aircraft, are noted.  However, there is no evidence to support that he experienced hearing loss during a combat-related flight or a tactical exercise flight.  As stated above, the fact that a disability was incurred in a theater of operations or during routine training exercises is insufficient, in and of itself, to warrant approval of CRSC.

7.  Without evidence to establish a direct, causal relationship to the applicant’s rated disabilities to war or the simulation of war, there is 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 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)                                         AR20100007330



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ABCMR Record of Proceedings (cont)                                         AR20130007201



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