IN THE CASE OF:  	  

		BOARD DATE:  25 November 2014	  

		DOCKET NUMBER:  AR20140006656 


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 reconsideration of his request for Combat-Related Special Compensation (CRSC).

2.  The applicant states his request is based on major depressive disorder (not bipolar disorder, which the Army Board for Correction of Military Records (ABCMR) considered and denied in his original application).  He is not bipolar and it took years of fighting with the Department of Veterans Affairs (VA) to get it corrected.  (Note:  The diagnosis by the VA was changed subsequent to the ABCMR's original decision in the applicant's case.)

   a.  In 2009, he had an altercation with a VA doctor and the doctor changed the diagnosis from major depressive disorder to bipolar disorder.  On 28 August 2013, the VA changed the diagnosis back to major depressive disorder.

   b.  The ABCMR, Record of Proceedings, for his case states in the:

    	(1)   Consideration of Evidence, paragraph 14, "I must have 20 years of service to be eligible for CRSC."  He states this is incorrect because the Fiscal Year 2008 National Defense Authorization Act (NDAA) expanded CRSC eligibility to retirees with less than 20 years of service (such as the applicant).

    	(2)  Discussion and Conclusions, paragraphs 1 and 2, "that being in the theater of operations does not warrant CRSC and that I did not prove the relationship with my disorder."  He states he has proven with his medical records that he had a bad reaction to the Pyridostigmine Bromide (PB) pills he was administered during the Gulf War and the published government report he provided establishes a direct causal relationship to his disorders.  Therefore, he has satisfied the CRSC guidelines, beyond a doubt, by providing documentation that shows a causal link between the current VA disability determination and a combat-related event. 

	 	(3)  Discussion and Conclusions, paragraph 3, "my problems may be caused from childhood events."  He asserts that the Army has already concluded that his disorders did not exist prior to service and this is documented in his Medical Evaluation Board (MEB) proceedings.

   c.  In January 2006, the Physical Evaluation Board (PEB) placed him on the Temporary Disability Retired List (TDRL).  Then, in February 2008, he was placed on the Permanent Disability Retired List (PDRL).

   d.  At the time of his PEB, Gulf War syndrome was not well known because studies were not released until November 2008.  So, the PEB did not have the information to provide a proper diagnosis in his case.

   e.  He states, "Title 10, U.S. Code, section 1413a (10 USC 1413a), As Amended Revised Program Guidance, January 2004, it states on page 6 under 'Other Combat-Related Disabilities' among others that those disabilities associated with Persian Gulf service that are presumed by the VA to be service-connected shall be presumed by the Military Department to be combat-related absent documentary information that the disability was incurred under circumstances that were not combat-related."

    	(1)  He states, in his case, the only document stating otherwise is the PEB's recommended findings that it was not combat-related.

    	(2)  He contends the board members were not aware of Gulf War syndrome being his problem because the information was not yet published.

   f.  He states the VA has determined that the diagnosis of "major depressive disorder with psychotic symptoms" is service-connected, Gulf War incurred.  This should have been enough evidence for the CRSC Branch, U.S. Army Human Resources Command (HRC) and the ABCMR to arrive at a finding of combat-incurred.


   g.  He understands how his original PEB made the mistake of not classifying his disorders as combat-related.  However, the evidence that is now available and which he has provided proves that Gulf War syndrome is the cause of his disorders.

3.  The applicant provides copies of the following documents –

* MEB Proceedings (1 page)
* PEB Proceedings (1 page)
* CRSC Program Guidance (page 6)
* My Army Benefits, CRSC article
* VA Rating Decision, 2007 (1 page)
* VA Rating Decision, 2013 (3 pages)
* two letters

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120016124, on 16 April 2013.

2.  The applicant enlisted in the Regular Army (RA) on 6 April 1989.  He served in both stateside and overseas assignments, including –

* Korea from 20 August 1989 to 19 August 1990
* Southwest Asia (SWA) from 21 October 1990 to 13 April 1991

3.  A DA Form 4700 (Medical Record – Supplemental Medical Data), prepared by the applicant on 15 August 1991 to assist health providers in screening Soldiers for potential disease threats associated with Operations Desert Shield/Storm, shows the applicant indicated, "Anthrax/Took about 2 PB Tablets" in January 1991.  He also indicated that he had a bad reaction (chest pains).

4.  On 5 April 1994, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).

5.  On 10 November 1993, he again enlisted in the RA.  He served through multiple reenlistments in stateside assignments and also in Korea from 
10 January 1998 to 9 January 1999.

6.  On 27 September 2005, after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of a major depressive disorder. The MEB noted a history of recurrent depression with the first episode occurring in 1989 while stationed in Korea.  The diagnosis of generalized anxiety disorder was found medically acceptable.  The MEB recommended his referral to a PEB.

7.  On 4 October 2005, a PEB determined that he was physically unfit due to major depressive disorder requiring psychotropic medication and outpatient treatment.  He was rated under the VA Schedule for Rating Disabilities (VASRD) Code 9434, granted a 30 percent (%) disability rating, and recommended for placement on the TDRL.

8.  On 17 January 2006, he was retired from the RA, assigned to the Retired Reserve, and placed on the TDRL in the rank/grade of sergeant first class/E-7.

9.  On 5 September 2007, the VA granted him service-connected disability compensation for –

* major depressive disorder with psychotic symptoms, Gulf War incurred –
70% disabling (18 January 2006), increased to 100% on 10 January 2007
* right wrist cyst excision residuals (major), Gulf War incurred – 10%
* bilateral tinnitus, peacetime incurred – 10%
* left ear hearing loss, peacetime incurred – 0%
* a review of the document failed to show any VA awards of service-connection based on presumptive conditions

10.  On 25 October 2007, a PEB for the applicant's TDRL reevaluation considered the applicant to have stabilized sufficiently for rating purposes and recommended permanent disability retirement with a combined disability rating of 50%.  The DA Form 199 (PEB Proceedings) shows, in pertinent part, in item 10 
(If retired because of disability, the Board makes the recommended finding that):

   a.  The Soldier's retirement is not 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.

   b.  The disability did not result from a combat-related injury as defined in 
26 USC 104.

   c.  On 4 December 2007, the applicant indicated he concurred with the PEB, waived a formal hearing of his case, and authenticated the findings with his signature.


   d.  The PEB proceedings were approved for the Secretary of the Army on 
12 December 2007.

11.  On 24 January 2008, the applicant was removed from the TDRL because of permanent physical disability and permanently retired with a 50% disability rating.

12.  On 7 October 2009, the VA proposed to decrease the applicant's service-connected disability for bipolar disorder, not otherwise specified (previously major depressive disorder with psychotic symptoms), rated at 100% disabling, noting some improvement in his disability.  The applicant submitted his response and, on 29 April 2010, the VA continued the 100% disabling rating.  A review of the document failed to show any VA award of service-connection based on a presumptive condition.

13.  The applicant submitted claims for CRSC on three separate occasions.  

   a.  The staff of the CRSC Branch, HRC, notified the applicant on –

* 12 June 2008, they were unable to verify his major depressive disorder was a combat-related disability based on a combat-related event
* 4 November 2011, his claim (for CRSC for bipolar disorder, not otherwise specified) was reconsidered and that he submitted no new evidence to show a combat-related event caused his condition
* 6 February 2012, his claim was previously considered and that he submitted no new evidence to show a combat-related event caused his condition

   b.  The applicant's claim for CRSC was disapproved on all three occasions.

14.  The Gulf War Illness and the Health of Gulf War Veterans, Findings in Brief, that the applicant provided in his original application was reviewed.  The Executive Summary shows on:

   a.  page 1 – "Gulf War illness is a serious condition that affects at least one fourth of the 697,000 U.S. veterans who served in the 1990-1991 Gulf War.  This complex of multiple concurrent symptoms typically includes persistent memory and concentration problems, chronic headaches, widespread pain, gastrointestinal problems, and other chronic abnormalities not explained by well-established diagnoses."

   b.  page 8 – "Widespread use of PB as a protective measure in the event of nerve gas exposure was unique to the 1990-1991 Gulf War.  PB is one of only two exposures consistently identified by Gulf War epidemiologic studies to be significantly associated with Gulf War illness.  About half of Gulf War personnel are believed to have taken PB tablets during deployment, with greatest use among ground troops and those in forward locations.  Several studies have identified dose-response effects, indicating that veterans who took PB for longer periods of time have higher illness rates than veterans who took less PB.  In addition, clinical studies have identified significant association between PB use during the Gulf War and neurocognitive and neuroendocrine alteration identified many years after the war.  Taken together, these diverse types and sources of evidence provide a consistent and persuasive case that use of PB during the Gulf War is causally associated with Gulf War illness.

15.  In support of his request for reconsideration the applicant provides the following:

   a.  CRSC, Attachment 1 (Program Guidance), Other Combat-Related Disabilities (page 6), dated 15 April 2004.

    	(1)  It states that the Military Departments will determine whether a disability is combat-related using the definitions and criteria set forth in Attachment 1-1 and the memorandum.

    	(2)  The applicant draws attention to one particular paragraph with the topic sentence, "With respect to VA awards of service-connection based on presumptive conditions under the provisions of sections 1112(b)-(c), 1116, 1117, and 1118 of Title 38, USC, and of 38 CFR 3.316, CRSC determinations will presume such disability to also be combat-related if the VA Initial Rating Form (or other substantiating documentary information) indicates that the VA rating for disability is based on such presumption."

   b.  My Army Benefits, CRSC article, reviewed on 24 June 2013.

    	(1)  The document is a Benefit Fact Sheet that provides a summary of CRSC, the eligibility criteria, benefit highlights, special rules regarding chapter 61 retirees (10 USC), and the application process.

    	(2)  The applicant draws attention to one particular paragraph that states, "In addition, the 2008 NDAA expands CRSC eligibility to cover those who were medically retired under Chapter 61, Temporary Early Retirement Act (TERA) and TDRL retirees with less than 20 years of service.  Medical and TERA retirees must still provide documentation that shows a causal link between a current VA disability and combat-related event."

   c.  Two VA letters, dated 20 August (1 page) and 28 August 2013 (2 pages), that show the VA awarded him service-connected disability compensation for major depressive disorder (previously bipolar disorder, not otherwise specified) with a 100% disabling rating.  A review of the documents failed to show any VA award of service-connection based on a presumptive condition.

   d.  A letter written by Doctor Leo W----, Vernon, Florida, dated 19 February 2014, that states, in pertinent part, "This is comprised in response to (the applicant's) request for me to evaluate and comment on his current medical condition.  After a close analysis of (the applicant's) records and symptoms, I am left with the impression that Gulf War Syndrome is a very real possibility and should be the leading diagnosis as an explanation to most of his symptoms."

   e.  A letter written by Theron M. C----, Doctor of Education, Licensed Professional Counselor, Licensed Marriage and Family Therapist, American Board of Medical Psychotherapists and Psychodiagnostian, dated 5 March 2014, that states, in pertinent part, "I evaluated (the applicant) at this [sic] request.  It is at least as likely as not that his major depressive disorder aggravates his Gulf War Syndrome, symptoms of which include but are not limited to the following medical conditions:  memory problems, muscle joint pain, fatique [sic], indigestion, chronic gas, neurological problems, skin conditions, arthritiis [sic], breathing problems."

16.  CRSC, as established by 10 USC 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 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 retired veterans with combat-related injuries who meet all of the following criteria –

* Active, Reserve or National Guard with 20 years of creditable service, or permanent medical retiree, or TERA retiree
* receiving military retired pay
* have 10% or greater VA rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)
* an individual must be able to provide documentary evidence that their injury was a result of one of the following –

* training that simulates war (e.g., exercises, field training)
* hazardous duty (e.g., flight, diving, parachute duty)
* an instrumentality of war (e.g., combat vehicles, weapons, etc.)
* armed conflict (e.g., award of the Purple Heart)

17.  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 applicant's request for reconsideration of his request for CRSC for major depressive disorder was carefully considered.

2.  The applicant's contention that the ABCMR denied his original application for CRSC for bipolar disorder is valid.  However, the evidence of record shows and the applicant indicates that his application to the ABCMR was submitted based on a 7 October 2009, VA rating decision of service-connected disability for bipolar disorder rated at 100%.  The ABCMR decision that denied his request occurred on 16 April 2013.  On 28 August 2013, the VA changed the diagnosis back to major depressive disorder.  Thus, the ABCMR decision was properly based on the (then) current medical diagnosis and the evidence of record at that time.

3.  It is acknowledged that the ABCMR Record of Proceedings, Consideration of Evidence, paragraph 14, does not accurately describe the CRSC eligibility as including retirees with less than 20 years of service.  However, the Discussion and Conclusions, paragraph 1, states "The CSRC criteria is specifically for those military retirees who have combat-related disabilities (emphasis added)."

   a.  Records show the applicant is a military retiree who was retired based on a permanent physical disability.

   b.  The evidence of record shows the applicant requested correction of his records to show his disabilities are combat-related and his application was considered by the Board.

   c.  Included in his application was evidence that the applicant submitted his claim for CRSC on three separate occasions to the HRC CRSC Branch.  In all three instances, his requests failed to show a combat-related event caused his injuries or medical conditions.
   
   d.  The evidence of record shows his application was not denied by the ABCMR because he was not eligible for consideration for CRSC.  His application was denied because the applicant failed to establish a direct, causal relationship to his Army/VA rated disabilities to war or the simulation of war.
4.  The applicant's contention that the evidence he provided establishes a direct causal relationship to his disorders and he has satisfied the CRSC guidelines concerning a combat-related event was considered.

   a.  The evidence of record shows the applicant took 2 PB tablets in January 1991 while serving in SWA.  His identified dose-response effect was chest pains.

   b.  There is no evidence of record that he was diagnosed (emphasis added) with Gulf War illness (commonly referred to as Gulf War syndrome).

   c.  The two letters the applicant provides offer evidence that a medical doctor and a professional counselor opine that Gulf War syndrome "is a possibility" and that "it is at least as likely as not" in the applicant's case.  However, these two documents offer insufficient evidence to establish a diagnosis of Gulf War illness/syndrome.

5.  The evidence of record shows the VA granted the applicant service-connected disability compensation for –

* major depressive disorder
* right wrist cyst excision residuals (major)
* bilateral tinnitus
* left ear hearing loss

   a.  The fact that the VA has determined that his major depressive disorder is service-connected, Gulf War incurred, is acknowledged.  However, it does not satisfy the criteria of direct causal relationship (emphasis added) to war or the simulation of war, specifically of:

* hazardous duty (e.g., flight, diving, parachute duty)
* an instrumentality of war (e.g., combat vehicles, weapons, etc.)
* armed conflict (e.g., award of the Purple Heart)

   b.  There is no evidence of record that shows the applicant was diagnosed with any condition(s) presumed (emphasis added) by the VA to be service-connected.  Thus, there is no basis for the Department of the Army to presume (emphasis added) the applicant's disabilities to be combat-related.

   c.  Thus, the evidence of record does not support the applicant's contention that he has satisfied the CRSC guidelines concerning a combat-related event.

6.  The policy guidance on the processing of CRSC appeals is clear.  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.  
The applicant has failed to satisfy this criteria.

7.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for granting the 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 to amend the decision of the ABCMR set forth in Docket Number AR20120016124, dated 16 April 2013.




      _______ _   _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)                                         AR20140006656



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ABCMR Record of Proceedings (cont)                                         AR20140006656



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