IN THE CASE OF:	 

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130012595 


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 U.S. Army Human Resources Command (HRC) decision denying him combat-related special compensation (CRSC) for his right knee, lumbar strain, sciatica, and adjustment disorder. 

2.  The applicant states:

	a.  His right knee should be recognized as combat-related due to incomplete records, from parachuting/airborne operations.  The lumbar strain was a direct result of parachuting, not a prolonged kidney infection.  He should not be penalized for poor record maintenance.

	b.  Sciatica should be considered as a newly-rated Department of Veterans Affairs (VA) disability as a direct cause and secondary cause derived from his lumbar strain back trauma from airborne operations and mass tactical parachuting jumps.  It was not caused by a prolonged kidney infection.  

	c.  Adjustment disorder should also be combat-related due to injuries sustained as a result of airborne operations and parachuting per the VA's own verbiage and acknowledgment of his rating.  

3.  The applicant provides his VA rating decision(s), correspondence to and from HRC, and Congressional correspondence. 



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 6 July 1976 and he held military occupational specialties 31M (Multi-Channel Communications Equipment Operator) and 79R (Recruiter).  

2.  He was honorably discharged on 26 April 1979 and he reenlisted in the RA on 27 April 1979.  He served through multiple reenlistments, in a variety of stateside or overseas assignments, and he attained the rank/grade of sergeant first class (SFC)/E-7.  He completed airborne training in 1985.

3.  On 30 September 1997, he retired by reason of sufficient service for retirement and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 1 October 1997. 

4.  Throughout the years, the VA awarded him service-connected disability compensation for:

* Recurrent dislocation of right shoulder
* Low back strain
* Hemorrhoids with history of fistulotomy
* Chondromalacia patella of right knee
* Chondromalacia patella of left knee

5.  On 17 May 2004, he submitted a CRSC claim for multiple conditions and/or ailments or VA-rated disabilities.  He indicated he felt these conditions met the guidelines for CRSC since they were incurred as a result of executing parachute landings. 

6.  On 19 January 2006, by letter, HRC informed him that his request for CRSC consideration was approved.  The letter listed the following conditions and effective date: 

* Limited motion of arm, 1 January to 31 March 2004
* Limited motion of arm, 1 April 2004
* Knee condition, 1 November 2005

7.  The 19 January 2006 letter disapproved CRSC for the below conditions since there was no supporting evidence or documentation to show they were combat-related:  condition of skeletal system; hemorrhoids; disfigurement of head, face, or neck; superficial scars; and knee condition (apparently, the left knee).


8.  On 19 February 2009, by a letter, HRC officials notified the applicant that based on the documentation he provided with his request for reconsideration, the CRSC Office was able to adjust his previous CRSC decision, dated 19 January 2006.  The letter noted:

	a.  He requested consideration for residuals, right hand injury; however, there is no record of VA awarding this condition as service-connected.  The CRSC Office can only review disabilities that have been found service-connected.  Once determined to be service-connected, he may re-apply for CRSC. 

	b.  The conditions that are verified as CRSC are knee condition of right knee and limited motion of right shoulder.  This letter adjusts the previously-awarded rating percentage and effective date. 

	c.  The CRSC Office was unable to verify the below conditions as combat-related disabilities: 

* Hemorrhoids; this condition does not meet the criteria for CRSC
* Knee condition, left knee; there is no evidence to connect disability to parachute or airborne operations
* Lumbosacral or cervical strain of left spine; the documentation does not show accident or incident to connect disability to a combat-related event; the VA rating states his back pain is due to kidney infection
* Scars of scalp; there is no VA rating decision or medical records in claim to show how this disability occurred
* Scars of left elbow; there is no VA rating decision or medical records in claim to show how this disability occurred

9.  On 30 November 2010, by letter, HRC officials notified the applicant that the CRSC Branch reviewed his claim and made the following decisions: 

	a.  His request for CRSC did not provide the necessary documents to properly adjudicate his claim.  The documents submitted did not provide the cause of his disabilities.  If he had a copy of his physical evaluation board, medical evaluation board, VA rating decisions, and/or other medical records to show how his disabilities are combat-related as defined by law, he should submit those records with his claim.  

	b.  The conditions that are verified as CRSC are knee condition of right knee and limited motion of right shoulder.  These conditions were previously verified and awarded.  

	c.  The CRSC Office was unable to verify the below conditions as combat-related disabilities: 

* Adjustment disorder with mixed anxiety and depressed mood; there is no evidence to show a combat-related event caused this condition
* Hemorrhoids; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Irritable bowel syndrome; there is no evidence in the claim to show a combat-related event caused this condition
* Chondromalacia patella of left knee; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Lumbosacral strain; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Scar of left elbow; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Scar of right scalp; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition

10.  On 19 March 2012, by letter, HRC officials notified the applicant that the CRSC Branch reviewed his claim and made the following decisions: 

	a.  His request for reconsideration based on an inquiry from a Member of Congress was conducted.  After reviewing the documentation submitted with his claim, the CRSC Branch is still unable to award the conditions previously determined to be non-combat related.  The VA rating decisions he provided do not indicate that his lower back strain and left knee condition were caused by combat-related activities.  

	b.  The VA rating decision dated 8 March 1999 indicates that service medical records for the period 1978 to 1997 show complaints of low back pain in 1979 which was diagnosed as prostatitis and kidney infection.  The same VA decision notes an injury to the left knee but does not discuss how the injury occurred.  The Department of Defense regulations require the CRSC Branch to verify through official documentation both how the injury occurred and how it was caused by a combat-related event or activity.  

	c.  Because the VA associated the applicant's adjustment disorder with four separate conditions, each of these conditions must be verified as combat-related in order for the adjustment disorder to be classified as combat-related.  Likewise, the applicant's irritable bowel syndrome is not combat-related because the VA associated it with adjustment disorder. 

	d.  The conditions that are verified as CRSC are knee condition of right knee and limited motion of right shoulder.  These conditions were previously verified and awarded.  

	e.  The CRSC Branch was unable to verify the below conditions as combat-related disabilities: 

* Adjustment disorder with mixed anxiety and depressed mood; previously requested; there is no new evidence to show a combat-related event caused this condition; the VA associated this service-connected disability with conditions that are not combat-related
* Hemorrhoids; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Irritable bowel syndrome; previously requested; there is no new evidence in the claim to show a combat-related event caused this condition; the VA associated this service-connected disability with conditions that are not combat-related
* Chondromalacia patella of left knee; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Lumbosacral strain with degenerative spurring at L-5; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Scar of left elbow; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Scar of right scalp; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition

11.  On 22 March 2012, by letter to the applicant's Member of Congress, HRC advised that after reviewing the original evidence submitted with the applicant's claim as well as the evidence provided by the Member of Congress, the CRSC Branch is still unable to award these specific conditions as combat-related.  

	a.  The VA rating decision, dated 8 March 1999, shows the applicant's lumbar condition was diagnosed as prostatitis and as a kidney infection. 

	b.  The same VA decision notes an injury to the left knee but does not discuss how the injury occurred. 

	c.  The VA associated the applicant's adjustment disorder with four separate conditions, each of which must be verified as combat-related in order for the adjustment disorder to be classified as combat-related.  At this time, only two of the four conditions are combat-related.
	d.  The applicant's irritable bowel syndrome is not combat-related because the VA associated it with adjustment disorder. 

12.  On 26 July 2012, by a letter, HRC officials notified the applicant that the CRSC Branch reviewed all documentation in support of his claim but was unable to overturn the previous adjudication.  The documentation he submitted still did not show new evidence to link his requested conditions to a combat-related event.  This disapproval is considered final.  

	a.  The conditions that are verified as CRSC are knee condition of right knee and limited motion of right shoulder.  These conditions were previously verified and awarded.  

	b.  The CRSC Branch was unable to verify the below conditions as combat-related disabilities: 

* Adjustment disorder with mixed anxiety and depressed mood; final disapproval; there is no new evidence to show a combat-related event caused this condition
* Hemorrhoids; final disapproval; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Irritable bowel syndrome; final disapproval; previously requested; there is no new evidence in the claim to show a combat-related event caused this condition
* Chondromalacia patella of left knee; final disapproval; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Lumbosacral strain with degenerative spurring at L-5; final disapproval; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Scar of left elbow; final disapproval; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition
* Scar of right scalp; final disapproval; this condition was previously requested; there is no new evidence to show a combat-related event caused this condition

13.  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.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The CRSC criterion is 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 has submitted evidence to show his multiple conditions, specifically his right knee condition, lumbar strain, and adjustment disorder, are service-related.  However, he has not submitted any evidence that shows these conditions are combat-related.  He contends that his conditions resulted from parachute jumps but provides no evidence to support thus contention.  Nowhere in the available records or the records that he submitted, is there a confirmation that such conditions occurred during combat or under conditions simulating war. 

3.  The applicant requested CRSC for his right knee.  He has already been granted CRSC for his right knee and it is presumed he meant to request it for his left knee.

4.  The applicant requested CRSC for his back condition (and sciatica derived from his back condition).  The 8 March 1999 VA rating decision noted that his service medical records showed complaints of low back pain as early as 1979; he did not complete airborne training until 1985.  There is insufficient evidence to show any later parachute jumps contributed to his back pain.

5.  The applicant requested CRSC for his adjustment disorder.  There is insufficient evidence to relate this condition to his parachute jumps.

6.  Without evidence to establish a direct, causal relationship of the applicant’s 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 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)                                         AR20130012595



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ABCMR Record of Proceedings (cont)                                         AR20130012595



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