BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140011901 


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 award of Combat-Related Special Compensation (CRSC) for a condition that occurred while he was serving on active duty in combat in the Republic of Vietnam (RVN).

2.  The applicant states that his skin condition is related to a chemical being sprayed from an overhead aircraft while he was patrolling a perimeter during the Tet [Counter] Offensive of 1968.  The chemical caused dry and itchy burning skin, which later turned into sores and scabs appearing all over his body in 1975.  This condition became worse over the years and is still causing itching.

3.  The applicant provides copies of his medical records and CRSC claim.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 October 1966.  Through a series of reenlistments, he continued to serve on active duty through 31 August 1988.  He served in military occupational specialty (MOS) 57F (Graves Registration Specialist) and then in MOS 76X (Subsistence Supply Specialist).  He attained the rank of sergeant first class (SFC)/pay grade E-7.


2.  A review of the applicant's DA Form 2-1 (Personnel Qualification Record), item 5 (Oversea Service), shows he served in the RVN during the following 
periods:

* 2 April 1967 through 1 April 1968
* 4 July 1969 through 4 July 1970
* 3 March 1971 through 31 January 1972

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty on 31 August 1988 based on sufficient service for retirement.  He completed 21 years, 10 months, and 15 days of total active service.

4.  On 13 January 2005, the U.S. Army Physical Disability Agency (PDA), CRSC Division, considered the applicant's claim.  He was informed of the following 
non-combat related determinations:

* limited motion of arm
* limited motion in cervical spine
* limited motion in lumbar spine

5.  On 5 June 2009, the U.S. Army Human Resources Command (HRC), CRSC Division, considered the applicant's claim.  He was informed that after reviewing all the documentation in support of his claim, they were unable to determine if his disabilities resulted from a combat-related situation.  They also determined that his eczema skin condition does not meet the criteria for CRSC.

6.  On 24 May 2010, the Department of Veterans' Affairs (VA) determined that the applicant's medical condition of eczema (previously denied as rash on back) had worsened and granted an increase in his assigned percentage to 30 percent, effective 8 July 2009.

7.  On 12 November 2010, the HRC CRSC Division reconsidered the applicant's claim.  He was informed that they were unable to verify his claimed disabilities as combat-related and, more specifically, that he provided no new evidence to show a combat-related event caused his eczema (previously denied as rash on back).

8.  On 28 February 2011, the HRC CRSC Division reconsidered the applicant's claim.  He was informed that they were unable to verify his claimed disabilities as combat-related and, more specifically, that it was the final disapproval pertaining to his eczema (previously denied as rash on back).  He was also informed that Chloracne is currently the only skin disorder recognized as related to Agent Orange by the VA.  This condition must clearly be awarded by the VA as secondary to, related to, or aggravated by exposure to Agent Orange.

9.  On 18 July 2011, the HRC CRSC Division reconsidered the applicant's claim.  
They verified that his prostate cancer was combat-related based on the Agent Orange presumptive.  He was informed that they were unable to verify his other claimed disabilities as combat-related and, more specifically, that he provided no new evidence to show a combat-related event caused his eczema.  He was also advised that it was the final disapproval.

10.  On 7 January 2014, the HRC CRSC Division reconsidered the applicant's claim.

   a.  They verified as combat-related:

* erectile dysfunction
* prostate cancer
* post-traumatic stress disorder
* suprapubic scar

   b.  He was informed that they were unable to verify his other claimed disabilities as combat-related and, more specifically, that he provided no new evidence to show a combat-related event caused his eczema.  He was again advised that it was the final disapproval.

11.  On 17 April 2014, the HRC CRSC Division reviewed all of the documentation in support of the applicant's claim.  He was informed they were unable to overturn the previous adjudications.  He was also informed that documentation he submitted failed to provide evidence to link his requested conditions to a combat-related event and the disapproval is now considered final.

12.  In support of his application the applicant provides the following documents.

   a.  A Standard Form (SF) 513 (Medical Record – Consultation Sheet), dated 17 October 1983, that shows the applicant was treated for an itchy scaly rash on his left shoulder that first appeared on 6 October 1983.

   b.  Numerous medical records, dated 17 October 1983 through 27 March 2013, that document the applicant's treatment for various skin conditions 
(i.e., neck and scalp, left foot, stomach, back, chest, abdomen).  The medical records do not show any of the skin conditions as combat-related (i.e., secondary to, related to, or aggravated by exposure to Agent Orange).
13.  Army Regulation 600-8-22 (Military Awards), Table B-1 contains a list of Vietnam Conflict campaigns.  It shows the period of the Tet Counteroffensive was from 30 January 1968 to 1 April 1968.

14.  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 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, permanent medical retiree or Temporary Early Retirement Authority retiree
* receiving military retired pay
* have a 10-percent or greater VA-rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)
* must be able to provide documentary evidence that the injury was a result of one of the following –

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

15.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals.  It states 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.

16.  The HRC Special Compensation Branch webpage shows the CRSC Division is responsible for verifying a claimant's injuries are directly connected to combat or combat-related operations as defined by Department of Defense CRSC Program Guidance, dated 15 April 2004.  It provides criteria, terms, definitions, and explanations that apply to making combat-related determinations in the CRSC program.

	a.  An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury.

	b.  Incurrence during an actual period of war is not required.  However, there must be a direct, causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.

	c.  A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded CRSC for a skin condition that occurred while he was serving on active duty in combat in the RVN as a result of a chemical being sprayed from an overhead aircraft while he was on patrol.

2.  Records show the applicant served three tours of duty in the RVN and that the Tet Counteroffensive occurred during his first tour of duty (during the period from 30 January 1968 to 1 April 1968).

	a.  The evidence of record shows the applicant sought medical treatment on 17 October 1983 for an itchy scaly rash on his left shoulder that first appeared on 6 October 1983.

   b.  There is no evidence of record that his skin condition was a result of participating in hazardous duty, training that simulated war, a combat-related event, or armed conflict.

	c.  The medical records he provides offer insufficient evidence to support a claim to CRSC.

3.  The VA granted the applicant service connection for his disability ratings.  There is no evidence to show his skin condition(s) for which he is receiving service-connected compensation is related to or was caused while participating in hazardous duty, in training that simulated war, in a combat-related event, or in armed conflict.  There is no evidence the VA determined the conditions were combat-related or that there was a causal relationship between an instrumentality of war and any of his VA-rated disability.
 
4.  The applicant submitted evidence to the HRC CRSC Division in support of his claim for CRSC on at least six occasions.  His claims to show a combat-related event caused his medical condition(s) were denied in all six instances.

5.  There is no evidence of record that shows a direct, causal relationship between an instrumentality of war being used in such service and the applicant's disability at the time of occurrence of the injury or that the disability was incurred incident to a hazard or risk of military service.

6.  The CRSC criteria are specifically for those military retirees who have combat-related disabilities.  The applicant's claim does not satisfy this requirement.

7.  Therefore, in view of all of the foregoing, there is an insufficient 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)                                         AR20140011901



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ABCMR Record of Proceedings (cont)                                         AR20140011901



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