IN THE CASE OF:
BOARD DATE: 10 April 2014
DOCKET NUMBER: AR20130011899
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, reversal of the decision to discontinue his entitlement to combat-related special compensation (CRSC) for multiple conditions.
2. The applicant states:
* the CRSC Office awarded him CRSC for multiple conditions between 2005 and 2009 but later declared him ineligible and discontinued payment
* the Notice of CRSC final reconsideration is in error because it did not follow or review or acknowledge the standards of this program
* because he is considered unemployable by the Department of Veterans Affairs (VA), he should be entitled to 100 percent CRSC compensation
* he is also determined unemployable by the Social Security Administration (SSA) which is further proof of this entitlement
* the CRSC Office attributes most of his disabilities to a fall from a ladder while building a house and landing on his buttocks and back
* the VA, however, determined most of his disabilities were service-connected and several occurred prior to his fall
* his VA records substantiate his injuries occurred during his military service under conditions simulating war which fully establishes his CRSC entitlements
3. The applicant provides:
* CRSC denial letters from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 28 May 2013 and 22 March 2013
* SSA letter, dated 4 June 2005
* VA rating decisions, dated 26 September 2001, 11 October 2005, and 27 September 2006
* Medical document, dated 15 March 1992
* Assignment orders, dated 8 March 2001
* DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the rating period September 1999 through September 2000
* VA progress notes, dated (printed) 9 January 2013
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he was born in August 1955.
2. Having had prior service in the Army National Guard (ARNG), he enlisted in the Regular Army on 31 October 1977 and he initially held military occupational specialty 11B (Infantryman). He was separated from active duty on 30 October 1980.
3. He enlisted in the ARNG on 12 December 1980 and entered active duty from the ARNG on 15 December 1982. He served through multiple extensions in the ARNG in a variety of assignments in MOS 79R (Recruiter) and MOS 79S (Career Counselor). He attained the rank/grade of master sergeant (MSG)/E-8 in September 1994.
4. He retired on 31 July 2001 and he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 August 2001.
5. On 15 February 2005, he submitted a CRSC application. He claimed bursitis and degenerative disc disease of the right shoulder and indicated he had a VA rating of 10 percent (%) effective 1 August 2001, and status post right ankle trauma with limitation of motion and he had a VA rating of 20% effective 1 August 2001. He attributed his injuries to training exercises.
6. On 9 March 2005, he was approved for CRSC-II at the rate of 10% for:
* Condition of Skeletal System (Code 5299), rated at 20% by the VA, effective 1 January 2004
* Traumatic Arthritis (Code 5010), rated at 10% by the VA, effective 1 January 2004
7. On 16 May 2005, his request for reconsideration was disapproved. The original 10% award stood.
8. On 26 May 2005 (Correction on letter, dated 9 March 2005), his request for reconsideration was approved at the rate of 30% for:
* Condition of Skeletal System (Code 5299), rated at 20% by the VA, effective 1 January 2004
* Traumatic Arthritis (Code 5010), rated at 10% by the VA, effective 1 January 2004
9. On 11 August 2005 (Correction on letter, dated 26 May 2005), his request for reconsideration was approved at the rate of 40% for:
* Condition of Skeletal System (Code 5299), rated at 20% by the VA, effective 1 January 2004
* Traumatic Arthritis (Code 5010), rated at 10% by the VA, effective 1 January 2004
* Traumatic Arthritis (Code 5010), rated at 10% by the VA, effective 1 January 2004
10. On 10 October 2005 (Correction on letter, dated 26 May 2005), his request for reconsideration was approved at the rate of 40% for:
* Condition of Skeletal System (Code 5299), rated at 20% by the VA, effective 1 January 2004
* Traumatic Arthritis (Code 5010), rated at 10% by the VA, effective 1 January 2004
* Traumatic Arthritis (Code 5010), rated at 10% by the VA, effective 1 January 2004
However, the CRSC Office was unable to approve the disability of Traumatic Arthritis (Code 5010), rated at 10% by the VA, effective 1 January 2004, due to a lack of supporting documentation.
11. On 26 January 2006 (Correction on letter, dated 16 January 2005), his request for reconsideration was approved at the rate of 40%, effective 1 January 2004, and 50%, effective 1 November 2005, for:
* Limited Motion of Ankle (Code 5271), rated at 20% by the VA, effective 1 January 2004
* Traumatic Arthritis (Code 5010), rated at 10% by the VA, from 1 January 2004 to 31 October 2005
* Limited Motion of Arm (Code 5201), rated at 10% by the VA, from 1 January 2004 to 31 October 2005
* Limited Motion of Arm (Code 5021), rated at 20% by the VA, effective 1 November 2005
* Traumatic Arthritis (Code 5010), rated at 20% by the VA, effective 1 November 2005
However, the CRSC Office was unable to approve the disability of Traumatic Arthritis (Code 5010), rated at 10% by the VA; Major Depressive Disorder (Code 9343), rated at 30% by the VA; and Intervertebral Disc Syndrome (Code 5243), rated at 20% by the VA, due to a lack of supporting documentation.
12. On 16 May 2006 (Correction on letter, dated 26 January 2005), his request for reconsideration was approved at the rate of 40%, effective 1 January 2004, and 60%, effective 1 November 2005, for:
* Limited Motion of Ankle (Code 5271), rated at 20% by the VA, effective 1 January 2004
* Intervertebral Disc Syndrome (Code 5243), rated at 20% by the VA, effective 1 November 2005
* Limited Motion of Arm (Code 5201), rated at 10% by the VA, from
1 January 2004 to 31 October 2005;
* Intervertebral Disc Syndrome (Code 5243), rated at 10% by the VA, between 1 October 2004 and 31 October 2005
* Limited Motion of Arm (Code 5021), rated at 20% by the VA, effective 1 November 2005
* Major Depressive Disorder (Code 9343), rated at 30% by the VA, effective 1 November 2005
However, the CRSC Office was unable to approve the disability of Traumatic Arthritis (Code 5010), rated at 10% by the VA.
13. On 16 January 2007 (Upgrade and correction to decision, dated 16 May 2006), his request for reconsideration was approved at the rate of 60% (1 June 2003 to 30 November 2004), 70% (1 January 2005 to 30 January 2005), and 80% (1 February 2005 to present), for:
* Limited Motion of Ankle, Right Ankle (Codes 5299-5271), rated at 20% by the VA, effective 1 June 2003
* Intervertebral Disc Syndrome (Lumbar) (Code 5243), rated at 40% by the VA, effective 1 June 2003
* Traumatic Arthritis, Right Shoulder (Codes 5010-5201), rated at 20% by the VA from 1 June 2003 to 30 December 2004 (increased)
* Traumatic Arthritis, Right Shoulder (Codes 5010-5201), rated at 30% by the VA, from 1 January 2005
* Major Depressive Disorder (Code 9343), rated at 30% by the VA, effective 1 February 2005
However, the CRSC Office was unable to approve the disability of Traumatic Arthritis, Left Ankle (Codes 5010-5271), rated at 10% by the VA; and Traumatic Arthritis, Left Foot (Code 5010), rated at 0% by the VA.
14. On 2 June 2009, by letter, an official at HRC notified him that his claim for CRSC was previously approved at the rate of 60% (June 2003 to December 2004), 70% (January 2005 to January 2005), and 80% (February 2005 to present), for:
* 5243, Intervertebral Disc Syndrome, left spine, 40%, June 2003, previously awarded; verified percentage and effective date
* 5271, Limited Motion of Ankle, Right Ankle, 20%, June 2003, previously awarded; verified percentage and effective date
* 5201, Limited Motion of Arm, Right Shoulder, 20%, June 2003 to December 2004, previously awarded; verified percentage and effective date
* 5201, Limited Motion of Arm, Right Shoulder, 30%, January 2005, previously awarded; verified percentage and effective date
* 9434, Major Depressive Disorder, 30%, February 2005, previously awarded; verified percentage and effective date
* 5271, Limited Motion of Ankle, Left Ankle, 10%, no evidence in claim to show that a combat-related event caused condition
* 5010, Traumatic Arthritis, Left Foot, 0%, no evidence in claim to show that a combat-related event caused condition
* Post-Traumatic Stress Disorder (PTSD) with cognitive disorder, no evidence in claim to show that a combat-related event caused the condition
* Right knee strain and tendinitis, no evidence in claim to show that a combat-related event caused condition
* Left knee strain and tendinitis, no evidence in claim to show that a combat-related event caused condition
15. On 11 June 2009, by letter, an official at HRC notified him that his claim for CRSC was previously approved at the rate of 60% (June 2003 to December 2004), 70% (January 2005 to January 2005), and 80% (February 2005 to present), for:
* 5243, Intervertebral Disc Syndrome, left spine, 40%, June 2003, previously awarded; verified percentage and effective date
* 5271, Limited Motion of Ankle, Right Ankle, 20%, June 2003, previously awarded; verified percentage and effective date
* 5201, Limited Motion of Arm, Right Shoulder, 20%, June 2003 to December 2004, previously awarded; verified percentage and effective date
* 5201, Limited Motion of Arm, Right Shoulder, 30%, January 2005, previously awarded; verified percentage and effective date
* 9434, Major Depressive Disorder, 30%, February 2005, previously awarded; verified percentage and effective date
* 5271, Limited Motion of Ankle, Left Ankle, 10%, no evidence in claim to show that a combat-related event caused condition
* 5010, Traumatic Arthritis, Left Foot, 0%, no evidence in claim to show that a combat-related event caused condition
16. On 21 March 2013, by letter, an official at HRC notified him that his claim for CRSC was previously approved at the rate of 60% (June 2003 to December 2004), 70% (January 2005 to January 2005), and 80% (February 2005 to June 2013), for:
* 5243, Intervertebral Disc Syndrome, left spine, 40%, June 2003 to June 2013, previously awarded; verified percentage and adjusted effective date
* 5271, Status Post Right Ankle Trauma with Limitation of Motion, 20%, June 2003 to June 2013, previously awarded; verified percentage and effective date
* 5201, Right Shoulder, Bursitis and Degenerative Joint Disease, 30%, January 2005 to June 2013, previously awarded; verified percentage and effective date
* 5201, Right Shoulder, Bursitis and Degenerative Joint Disease, 20%, June 2003 to December 2004, previously awarded; verified percentage and effective date
* 9434, Pain Disorder, Major Depressive Disorder, 30%, February 2005 to June 2013, previously awarded; verified percentage and adjusted effective date
* 5271, Left Ankle, Degenerative Changes and Spurs, 10%, previously considered, no evidence in claim to show that a combat-related event caused condition
* 5010, Degenerative Changes to Left Foot, 0%, previously considered, no evidence in claim to show that a combat-related event caused condition
Important notice: Due to CRSC guidance, previously-awarded CRSC conditions that were improperly awarded will now be determined disapproved. After a review of the previously-submitted documentation, the CRSC Office could not verify that his codes 5243, 5271, 5201, and 9434, were combat related. The conditions were related to falling off a ladder while building a house. These conditions do not meet the criteria for a continued award of CRSC. However, they remain awarded for 3 additional months from the date of this decision letter. This would allow him to prepare for the financial adjustment. If he had additional supporting documentation confirming that these conditions are related to combat, he must submit on the CRSC Reconsideration Form to the CRSC Office.
17. On 28 May 2013, by letter, HRC notified the applicant that after a review of the documentation he provided, their office was unable to overturn the previous adjudication. He did not provide new evidence to link his requested condition to a combat event. This disapproval is considered his final disapproval.
* 7336, Internal Hemorrhoids, final disapproval, this condition does not meet the criteria for CRSC
* 5243, Lumbosacral Spine, Degenerative Joint Disease, Strain, final disapproval, previously requested, degenerative condition with no accident or incident to connect disability to a combat-related event
* 5271, Left Ankle, Degenerative Changes and Spur, final disapproval, previously requested, degenerative condition with no accident or incident to connect disability to a combat-related event
* 5271, Status Post Right Ankle Trauma with Limitation of Motion, final disapproval, previously requested, degenerative condition with no accident or incident to connect disability to a combat-related event
* 5201, Right Shoulder, Bursitis and Degenerative Joint Disease, final disapproval, previously requested, degenerative condition with no accident or incident to connect disability to a combat-related event
* 5224, Degenerative Joint Disease of the Thumb, Right Hand, final disapproval, previously requested, degenerative condition with no accident or incident to connect disability to a combat-related event
* 5010, Degenerative Changes to Left Foot, final disapproval, previously requested, degenerative condition with no accident or incident to connect disability to a combat-related event
18. The applicant provides:
a. Letter, dated 1 May 2013, to the CRSC office indicating his disagreement to discontinue his CRSC and submitting an argument very similar to the one he enclosed with this application.
b. Letter, dated 4 June 2005, from the SSA entitling him to monthly SSA disability benefits.
c. VA rating decisions, dated 26 September 2001, 29 January 2003,
11 October 2005, and 27 September 2006, awarding (or adjusting)
service-connected disability ratings for various conditions.
d. Medical documents, dated 13 August 1986 and 15 March 1992, showing he sustained back pain.
e. Reassignment orders, dated 8 March 2001, showing he was reassigned from his duties as Training Sergeant to perform duties as an Instructor, effective 1 March 2001 until retirement in /July 2001, due to being excess.
f. DA Form 2166-7 for the rating period September 1999 through September 2000, showing he performed duties of Small Group Leader.
19. 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 was 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) 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% 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 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. The applicant was awarded CRSC in 2005 for what appears to be service-connected conditions and not necessarily combat-related conditions. In fact, there is zero evidence he was involved in combat or performed duties of such hazardous nature as to simulate combat. Nevertheless, for unknown reasons, he was awarded CRSC and his rate was adjusted each time the VA made a new rating decision.
3. Ultimately, his records were re-reviewed and at that time not only was it learned that none of his conditions were combat-related, but it was also learned that most of his conditions were in fact related to a fall from a ladder while building a house. The CRSC Office allowed him to keep the erroneous payments and he was also given 3 months to produce the evidence of combat incident or accident to connect his disabilities to combat-related event. He failed to do so.
4. He argues that he is declared unemployable. This argument is moot because he has not produced a specific incident or accident to connect his disabilities to a combat-related event. The fact that he had performed the duties of a training sergeant is insufficient to warrant approval of CRSC.
5. CRSC determinations require evidence of a direct, causal relationship between the military retirees VA rated disabilities and war or the simulation of war. Without this direct causal relationship there is insufficient evidence to grant his request.
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) AR20130011899
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ABCMR Record of Proceedings (cont) AR20130011899
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