BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130019571 


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, revision of the U.S. Army Human Resources Command (HRC) decision denying him combat-related special compensation (CRSC) for the following conditions:

* bronchial asthma
* erectile dysfunction
* esophageal reflux
* right elbow strain 
* left elbow strain 
* right carpel tunnel syndrome
* left carpel tunnel syndrome
* thoracolumbar spine strain with spondylosis
* left and right shoulders with degenerative joint disease (DJD)

2.  The applicant states, in effect:

	a.  The HRC's final determination, dated 2 August 2012, failed to assign the label combat-related disabilities to the above conditions because they were unable to verify the conditions were combat-related.  He is a retired first sergeant with over 22 years of military service.  His military occupational specialty (MOS) was 13B (Cannon Crewmember) and he served as a field artillery (FA) Soldier.  The physical capacity or stamina and strength requirements for FA are very heavy.  His mission was to destroy, neutralize, or suppress the enemy by cannon, rocket, and missile fire.

	b.  FA Soldiers were treated by unit field medics and their medical records were not updated or turned in because the medical protection system (MEDPROS) was not used at the time.  Noncommissioned officers (NCOs) were encouraged not to seek treatment and were considered to be weak if they did.  NCOs had to suck it up and lead from the front to set the example; he was one of the best.

	c.  In the 1980s and 1990s, he worked on various howitzers.  Everything was done manually as computers were not used at the time.  His body endured extreme physical strenuous activities because of the numerous training exercises [he participated in] and the combat tours he completed that are not shown on his DD Form 214.  A five to seven man team had to lift howitzers that weighed in excess of 1000 pounds.  The artillery rounds were over 100 pounds each and had to be carried on the shoulder during firing missions.

	d.  At times, he had to run over rough terrain 24 hours a day, 7 days a week, through extreme weather conditions to make sure the equipment was in place to fire the weapon.  It was common to jump out of helicopters, howitzers, and the back of trucks.  During firing, he was exposed to loud noises and he inhaled smoke that hurt the lungs and caused severe coughing because of the fumes.  During a field training exercise in Germany, he was dragged behind an ammunition carrier during a rapid evacuation to an alternate position to return fire.  He sustained injuries to his head, shoulders, back, hips, arms, and hands that were not annotated in his medical records because MEDPROs did not exist at the time.

	e.  During Air Assault School, he sustained an injury to his right ankle while jumping over a wall on an obstacle course.  During Joint Readiness Training, he reinjured his right knee, back, hip, and right ankle after running and falling into a hole during a night mission.  During drill sergeant duty, he again reinjured his wrist, elbows, back, hips, knee, and ankles while performing training requirements for Soldiers.

	f.  In 1991, he deployed to Kuwait in support of Operation Desert Storm and was at Camp Doha.  The motor pool had exploding artillery rounds, missiles, grenades, depleted uranium, and rounds from an incident known as the "DOHA DASH."  They were exposed to nuclear, biological, and chemical hazards for hours.  He was exposed to small pieces of falling hot metal and loud noises from exploding ordnance at close range.  The toxic fumes were overwhelming.  There was mass panic in his unit to get out of the area.  Again, he reinjured his back, knees, and left ankle when he was thrown from the top of a 15 foot wall trying to get to safety because of the blast.

	g.  At Camp Doha, his unit was exposed to continuously burning oil and feces fires.  The fires were so severe the sky was grey in color.  They wore handkerchiefs over their nose and mouth to breathe.  A medical officer stated "this area we are in is contaminated and by the time most of us are in our 40s we will probably have some type of illness like cancer, a respiratory problem, skin disorder, or some other disorder because of the area."  He has asthma, allergic rhinitis, skin disorder, pleural effusion of the left lung, and joint pain which are most likely a result of this incident.

	h.  In 1994, he deployed to Haiti and his unit conducted combat operations.  He was in charge of the Quick Reactionary Force and sustained injuries to his back, shoulders, knees, and ankles from hitting the ground extremely hard during dismounting and engaging the threat.

	i.  During Operation Iraqi Freedom (OIF), he deployed to Iraq as part of the initial phase of OIF.  They fought continuously for 21 days and their mission was to capture and take over Baghdad.  His unit shot over 7,000 artillery rounds during the attack against the republican guard.  He sustained injuries to his back, hips, shoulders, and upper arms when he was blown out of his vehicle.  A large rock landed on his back after being hit by an incoming round.  He sustained more head and ear injuries from a back blast during night operations.  He was awarded the Combat Action Badge and the Bronze Star Medal.

	j.  Throughout his career in MOS 13B, he continuously received injuries to his back, hips, shoulders, knees, ankles, and head.  He is 100 percent (%) disabled from combat and training for combat.  His injuries were not properly documented because of the medical care received during that time.  There are now advances in medical technology and systems in place to track traumatic brain injuries (TBI) and other injuries sustained during combat that did not exist at the time of his service. 

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Rating Decisions, dated 27 November 2012 and 2 December 2008
* a letter, dated 2 August 2012, from HRC
* memorandum, dated 6 June 2006
* Bronze Star Medal certificate, dated 3 May 2003
* Fifty-five pages of various medical records and doctor statements, dated between 4 October 2000 and 3 May 2013
* five pages titled The Camp Doha Explosion/Fires (July 1991)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 February 1985 and he held MOS 13B and later MOS 13Z (FA Senior Sergeant).  He served through several enlistments and/or extensions and was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 February 2004.

2.  He honorably retired on 28 February 2007 in the rank of MSG and he was placed on the Retired List on 1 March 2007.  He completed 22 years and 12 days of creditable active service.

3.  His Enlisted Record Brief, dated 15 December 2006, shows he served in:

* Kuwait from 5 June to 1 December 1991
* Haiti from 15 August to 3 December 1994
* Kuwait from 20 May to 15 November 2002
* Iraq from 1 January to 3 August 2003

4.  The applicant provides a VA Rating Decision, date 2 December 2008, wherein it shows he was granted service-connected disability compensation for/at:

* bronchial asthma, 30% from 22 July 2008
* TBI with residuals of post-concussion headaches, 10% from 1 March 2007
* right thumb fracture with degenerative change from first "MCP" joint, 0% was continued

5.  This rating decision stated, in part, service-connection for asthma had been established as directly related to military service.  Treatment records noted he reported having problems breathing, was treated for bronchitis, and was diagnosed with bronchial asthma in January 2008.  The VA examination report, dated 15 October 2008, noted a diagnosis of persistent asthma and the examiner opined his asthma started in the service.

6.  On 20 February 2009, he submitted a CRSC claim for:

* dementia due to head trauma
* post-traumatic stress disorder (PTSD)
* tinnitus 
* asthma
* limited flexion of the forearm (right and left elbows)
* paralysis of median nerve (right and left carpel tunnel syndrome)
* spondylolisthesis or segmental instability (spine)
* traumatic arthritis, right and left shoulders
7.  On 3 March 2009, by a letter, HRC officials notified the applicant that based on the documentation he provided:

	a.  CRSC was granted at 10% for dementia due to head trauma, as documentation verified the disability as combat-related due to being thrown from a vehicle by incoming mortar rounds; 30% for PTSD, as documentation verified disability as combat-related; and 10% for tinnitus, as acoustic trauma conceded due to combat awards.  The total CRCS was 40% effective March 2007.

	b.  CRSC was denied for asthma as the condition did not meet the criteria for CRSC and was not a condition linked to a combat-related event or activity (emphasis added).

	c.  CRSC was denied for limited flexion of the forearm (right and left elbows), paralysis of median nerve (right and left carpel tunnel syndrome), spondylolisthesis, and traumatic arthritis (left and right shoulders) as there was no evidence in his claim to show a combat-related event caused each condition.

8.  On 21 November 2011, after he resubmitted a claim for CRSC, by letter, HRC officials notified the applicant that based on the documentation he provided:

	a.  CRSC was granted at 10% for TBI with residuals of post-concussion headaches, increased to 50% for PTSD effective July 2010, and 10% for tinnitus.  The total CRSC was 60% effective July 2010.

	b.  CRSC was denied for erectile dysfunction and esophageal reflux as there was no evidence in his claim to show a combat-related event caused either condition.

	c.  CRSC was denied for the previously considered conditions of bronchial asthma, elbow strain (right and left), carpel tunnel syndrome (right and left), thoracolumbar spine strain with spondylosis, and DJD (left and right shoulders) as there was no new evidence in his claim to show a combat-related event caused each condition.

9.  On 12 January 2012, after resubmission of the same claim, HRC officials notified the applicant that after reviewing all documentation in support of his claim, the CRSC office was unable to overturn the previous adjudication.  The documentation he provided still showed no new evidence to link the requested conditions to a combat-related event and the disapproval was considered final.  The following determination was made: 

	a.  CRSC had been granted at 10% for TBI with residuals of post-concussion headaches, 50% for PTSD, and 10% for tinnitus.  The total CRSC was 60% effective July 2010.

	b.  CRSC was denied for the previously-considered condition of asthma as it was a chronic (long-term) lung disease that inflamed and narrowed the airways causing recurring periods of wheezing, chest tightness, shortness of breath, and coughing.  Currently, the only direct connection between combat-related events/activities and asthma was exposure to smoke from oil fires in Kuwait in 1991.

	c.  CRSC was denied for the previously-considered condition of esophageal reflux as the condition did not meet the Department of Defense defined definition of combat-related.  Gastro-esophageal reflux disease (GERD) was a chronic condition and there was no direct connection between combat-related events/activities and GERD.

	d.  CRSC was denied for the previously considered conditions of erectile dysfunction, elbow strain (right and left), carpel tunnel syndrome (right and left), thoracolumbar spine strain with spondylosis, and DJD (left and right shoulders) as there was no new evidence in his claim to show a combat-related event caused each condition.

10.  The applicant provides a letter, dated 2 August 2012, from HRC, wherein he was notified he was not eligible for reconsideration of his CRSC claim as a final determination had been made on 12 January 2012.  His only recourse was to appeal the decision to the Army Review Boards Agency.

11.  The applicant provides a VA Rating Decision, dated 27 November 2012, wherein it shows he had a combined 100% disability rating and he was granted service-connected, Gulf War incurred disability compensation for/at:

* PTSD, 50% from 3 June 2010
* bronchial asthma, 30% from 22 July 2008
* eczema, 30% from 2 May 2012  
* thoracolumbar spine strain with spondylosis, 20% from 1 March 2007
* left ankle strain with DJD, 10% from 1 March 2007
* right and left knee with DJD, 10% each from 1 March 2007
* right and left shoulder with DJD, 10% each from 1 March 2007
* right and left elbow strain, 10% each from 1 March 2007
* status post left wrist fracture with residual strain, 10% from 1 March 2007
* right and left hip strain, 10% each from 1 March 2007
* tinnitus, 10% from 1 March 2007
* esophageal reflux, 10% from 1 March 2007
* right and left carpal tunnel syndrome, 10% each from 1 March 2007
* TBI with residuals of post-concussion headaches, 10% from 1 March 2007

12.  The 27 November 2012 Rating Decision also shows he was granted 0% disability from 1 March 2007 for service-connected, Gulf War incurred disabilities of:

* right thumb fracture with degenerative change from "MCP" joint
* status post-fracture distal portion of the left foot
* bilateral pes planovalgus
* heel spur left foot
* corneal scar left eye
* allergic rhinitis
* erectile dysfunction
* scar left ankle post ganglion cyst excision
* scar on left calf post dog bite
* pseudofolliculitis barbae

13.  Additionally, the 27 November 2012 Rating Decision shows he was denied compensation for the following disabilities as they were found not to be service-connected, Gulf War:

* arthritis right thumb
* osteoarthritis right hand
* left ring finger strain
* chronic fatigue syndrome
* cubital tunnel syndrome right and left elbows

14.  The applicant provides:

   a.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 1 June 2006, wherein it shows he was treated at Reynolds Army Community Hospital (RACH), Fort Sill, OK, on that date for a complaint of stiffness and some left hip pain that he stated had been ongoing intermittently for the past couple of years.  He reported that while in Iraq about 2 years earlier he took cover secondary to an incoming improvised explosive device and a large rock hit him on the left side of his body.  He also reported he had some numbness/ tenderness in his hands (bilateral) on occasion.  The examining physician's provisional diagnosis was lumbar sprain.  

   b.  An SF 600, dated 15 August 2006, wherein it shows he was treated at the Physical Therapy Clinic, RACH, Fort Sill, on that date for a complaint of left and right shoulder pain for the past 10 years.  He reported that one time he injured his left shoulder with repetitive lifting/carrying of 100 pound rounds and equipment.  His left shoulder pain had increased in the past 3 years and the pain was throbbing, it was aggravated with activity and dull when at rest.  He also complained of bilateral intermittent hand numbness.  He was released him with duty limitations and for follow-up in the Physical Therapy clinic for 3 weeks.

   c.  An SF 600, dated 11 October 2006, wherein it shows he was treated at the Orthopedic Clinic, RACH, Fort Sill, on that date for a complaint of bilateral shoulder pain for several years.  About 3 years prior, he had increased shoulder pain that interfered with his activity and he was unable to sleep on his sides due to the pain in his shoulders.  No major incidents of trauma were noted but he reported that while in Iraq his vehicle was struck by incoming rounds and he was thrown from the vehicle.  He also complained of numbness of both hands, the pain was controlled by rest but not medication, and the right shoulder was worse than the left.  The examining physician diagnosed him with osteoarthritis of the shoulders.

15.  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.  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 applicant contends, in effect, he should be entitled to CRSC for bronchial asthma, erectile dysfunction, esophageal reflux, right and left elbow strain, right and left carpel tunnel syndrome, thoracolumbar spine strain with spondylosis, and right and left shoulder DJD.

2.  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.

3.  His arguments are understood.  Unfortunately, although he has submitted evidence to show that the conditions listed in paragraph 1 above are service related and may have progressed over time he has not submitted any evidence that shows these conditions were combat-related or were caused by specific incidents that occurred during combat or under conditions simulating war.  In addition, esophageal reflux does not meet the criteria for a combat-related condition and he was not granted 10% VA compensation for erectile dysfunction.

4.  Without conclusive evidence to establish a direct, causal relationship of the applicant's conditions of bronchial asthma, right and left elbow strain, right and left carpel tunnel syndrome, thoracolumbar spine strain with spondylosis, and right and left shoulder DJD, to war or the simulation of war, regrettably, 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)                                         AR20130019571



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ABCMR Record of Proceedings (cont)                                         AR20130019571



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