IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140015774 


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:

The applicant defers evidence and arguments to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reversal of the U.S. Army Human Resources Command (HRC) decision denying the applicant combat-related special compensation (CRSC).

2.  Counsel states, in effect:  

* the applicant applied on three occasions for CRSC; after multiple denials he was granted a benefit of 50 percent for migraine headaches and 30 percent for total left knee replacement
* the applicant feels he should be granted CRSC for post-traumatic stress disorder (PTSD) and tinnitus as these injuries were incurred or aggravated as a result of his service in combat
* the applicant believes the CRSC board overlooked the substantial evidence in his record which supports his contention
* failure to correct this would constitute an injustice

3.  Counsel provides:

* a written brief outlining counsel's contentions
* four DD Forms 214 (Certificate of Release or Discharge from Active Duty) for periods ending 8 November 1985, 21 April 1991, 31 March 1995, and 29 January 2012 (Exhibit A)
* letter, dated 7 April 2011, from the U.S. Army Physical Evaluation Board (PEB), Walter Reed Medical Center (WRAMC) addressed to the Department of Veterans Affairs (VA) requesting a rating determination for seven unfitting medical conditions (Exhibit B)
* first page of a letter, dated 18 July 2011, from the Medical Evaluation Board (MEB) counsel, Womack Army Medical Center, addressed to WRAMC PEB (Exhibit C)
* DA Form 199 (PEB Proceedings), dated 29 August 2011, providing results of the applicant's formal PEB (Exhibit D)
* Orders 312-0265, dated 8 November 2011, issued by Headquarters, U. S. Army Garrison, Fort Bragg retiring the applicant for permanent physical disability includes amendment Orders 333-0253, dated 29 November 2011, issued by Headquarters, U. S. Army Garrison, Fort Bragg) 
(Exhibit E)
* VA Rating Decision, dated 21 February 2012 (Exhibit F)
* letter from HRC, dated 20 April 2012, subject:  Army CRSC Decision Letter (Claim #: 286685) (Exhibit G)
* letter from HRC, dated 18 June 2012, subject:  Army CRSC Decision Letter (Claim #: 288751) (Exhibit H)
* letter from the applicant to HRC, dated 18 July 2012, requesting reconsideration of his CRSC claim (Exhibit I)
* letter from HRC, dated 10 August 2012, subject:  Army CRSC Decision Letter (Claim #: 290374) (Exhibit J)
* letter from HRC, dated 8 November 2013, subject:  Army CRSC Decision Letter (Claim #: 305155) (Exhibit K)
* letter from HRC, dated 14 January 2014, regarding Claim #: 307439 (Exhibit L)
* medical records (Exhibits M-O, R, and V-W)
* memorandum of support (Exhibit P)
* applicant’s self-authored statement (Exhibit Q)
* eight pages from a VA Compensation and Pension (C&P) Examination for Mental Disorders, dated 18 October 2010 (Exhibit S)
* VA Audiology Examination, dated 6 October 2010 (Exhibit T)
* online article titled "A Connection between Tinnitus and Hearing Loss" (Exhibit X)
* two-page information document on tinnitus by the American Tinnitus Association (ATA) (Exhibit Y)
* Sound Pressure Levels by the ATA (Exhibit Z)
* ATA article about at-risk populations ATA (Exhibit AA)
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior enlisted service, the applicant was appointed as a Medical Services Corps second lieutenant in the Alabama Army National Guard (ALARNG).  He executed an oath of office on 20 October 1994.  He was honorably released from the ALARNG on 2 January 1996 and transferred to the U.S. Army Reserve (USAR) Control Group (Inactive Ready Reserve).  He became an active USAR officer in or around March 1996.  He served in a variety of stateside positions, and, on 30 March 2007, he was mobilized.  He was deployed to Iraq in support of Operation Iraqi Freedom from 15 July 2007 to 6 May 2008.

3.  As a result of injuries sustained and/or aggravated during deployment, the applicant was redeployed in or around April 2008 and assigned to the Warrior Transition Unit at Fort Bragg, NC.  He was referred into the Army's Physical Disability Evaluation System (PDES) and a MEB was conducted on 17 November 2010.  Based upon the results of the MEB and its own evaluation of the applicant's medical conditions, an informal PEB:

	a.  Determined fourteen medical conditions were not unfitting when considered either independently or combined.  Included among these not unfitting conditions were PTSD and tinnitus.

	b.  Referred, on 7 April 2011, the following conditions to the VA for a rating determination under the Integrated Disability Evaluation System (IDES):

* left knee osteoarthritis
* right ankle traumatic arthritis and subtalar arthrosis
* cervical spine degenerative disc disease and spinal stenosis
* lumbar degenerative disc disease and spinal stenosis
* chronic radicular pain in lumbar spine
* chronic radicular pain in cervical spine
* migraine headaches

4.  On 29 August 2011, a formal PEB was conducted.  The applicant had requested a formal PEB because he contended his condition of migraine headaches was incurred in the line of duty as a direct result of armed conflict.  He also asserted his condition shown as status post left knee replacement was a combat-related injury occurring as a result of participation in live-fire convoy training.  The PEB agreed with the applicant, recognizing both conditions as being combat-related.  Additionally, his medical conditions of PTSD and tinnitus were affirmed as being not unfitting.  He was recommended for permanent disability retirement and the applicant concurred on 31 August 2011.  

5.  On 29 January 2012, the applicant was honorably retired and placed on the permanent disability retired list effective 30 January 2012.  His DD Form 214 shows he completed 4 years, 10 months, and 10 days of net active service for that period, with 4 years, 6 months, and 15 days of prior active service and 17 years, 5 months, and 17 days of prior inactive service.  The rank/grade held at retirement was major/O-4.

6.  On 4 March 2012, the applicant submitted his first claim for CRSC, requesting compensation for 27 conditions, including PTSD and tinnitus.  On 20 April 2012, HRC approved one condition as combat-related, but denied the remaining 26 conditions claimed.  Regarding PTSD, it was noted the applicant had provided no evidence the PTSD was caused by a combat-related event, and he was told for the awarding of CRSC compensation there must be a direct and causal link between the PTSD and a documented combat-related event (emphasis added).  As to the tinnitus, HRC wrote the basis for denial was that there was no official evidence indicating a combat award or exposure to weapons, explosions, tanks, or aircraft in his claim.

7.  On 30 May 2012, the applicant requested reconsideration of his CRSC claim and, on 18 June 2012, HRC affirmed its earlier decision.  In the response, it stated no new evidence was provided to show how either PTSD or tinnitus were combat-related conditions.

8.  On 20 July 2012, the applicant again requested reconsideration of his CRSC claim.  He added a self-authored statement wherein he pointed out the findings of the formal PEB regarding migraine headaches and left knee replacement.  He also cited the VA Rating Decision as evidence his PTSD resulted from witnessing casualties who were killed in a vehicle explosion.  He further stated he had reported having tinnitus since 1985 but it was exacerbated during his deployment to Iraq.  On 10 August 2012, HRC added one condition (migraine headaches) but denied the addition of the remaining conditions.  The letter again noted no new evidence had been provided regarding PTSD and tinnitus.

9.  On 8 November 2013, the applicant was informed by HRC of its revised decision to award CRSC compensation for status post left total knee replacement in addition to the two previously identified conditions.  The response did not address either PTSD or tinnitus.

10.  Counsel provides the following in his written brief, in effect stating:

* the applicant filed an application for CRSC; after multiple decisions, HRC partially granted his request, but denied compensation for PTSD and tinnitus
* the applicant served honorably in the Army, citing the four DD Forms 214
* he was referred into the Army's PDES and, on 29 August 2011, a formal PEB found his left knee injury and migraine headaches to be combat-related; he was medically retired on 29 January 2012
* on 21 February 2012, VA determined his PTSD and tinnitus were service-connected with ratings of 30 percent and 10 percent, respectively

11.  Counsel continues:

	a.  The applicant meets the preliminary Department of Defense guidelines, issued in 2004 and 2008, for CRSC by being:

* medically retired
* in a military retired status
* entitled to military retired pay, notwithstanding that such retired pay may be reduced due to receipt of VA disability compensation
* entitled to VA disability compensation for conditions which have at least a 10 percent disability rating from VA

	b.  Title 10, U.S. Code, section 1413a defines a disability as being combat-related when it has been incurred as the direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or as a result of an instrumentality of war.  The applicant's conditions of PTSD and tinnitus fit within these definitions.

	c.  As to PTSD, upon his redeployment in 2008, the applicant began experiencing panic attacks, hot and cold flashes, persistent fear of death, difficulty breathing, poor sleep, and nightmares.  He did not immediately report these symptoms, waiting until two years later when they worsened.  On 8 June 2010, he was diagnosed with PTSD by a psychiatrist.  A second psychiatrist began treating the applicant in July 2010 and the applicant was evaluated by a psychologist in a VA C&P examination on 14 October 2010.  Four events were identified as root causes for his PTSD:

* in November 2007, the applicant witnessed a grotesque scene when a mine resistant ambush protected (MRAP) vehicle was hit by an explosive device and its occupants were killed; he was exposed to mutilated bodies
* during deployment he made at least four visits to the mortuary unit and both the quantity of bodies and the manner in which they were processed affected him
* he came under fire by enemy rockets and mortars on many occasions, during which, in one such event, he sustained a serious head injury (later resulting in migraine headaches)
* he experienced fear for his life as a result of four possible abduction attempts

	d.  Regarding tinnitus, the applicant had suffered from this condition since 1985.  The condition became more pronounced, however, in the past decade due to continued exposure to damaging loud noises from weapons and explosives.  On 10 October 2010, an audiologist concluded the etiology of the tinnitus is at least as likely as not associated with military noise exposure.  

* Counsel affirms there are no objective tests available to confirm the presence of tinnitus and the Board must rely upon the applicant's statements when determining if, in fact, he suffers from tinnitus and when it developed
* over a 25-year period the applicant participated in numerous live-fire exercises; while deployed, the applicant was exposed to frequent mortar and rocket attacks
* the applicant's records therefore show the tinnitus was incurred while serving in the line of duty and either in conditions simulating war or actual combat

12.  Counsel provides a letter of support from a lieutenant colonel (LTC) who served with the applicant in Iraq.  

	a.  He essentially confirms an incident in which he and the applicant were required to undertake evasive actions and seek shelter during indirect mortar fire.  The applicant was on crutches and they both headed toward a concrete bunker.  He states he made it inside the bunker and the applicant, thrown off balance due to indirect fire attack, hit his head against the concrete bunker wall.  His resultant head injury later led to a diagnosis of chronic migraine headaches.  
	b.  He stated the applicant related stories of his exposure to bodies of Soldiers killed in an MRAP.  The applicant also shared what he witnessed, on four occasions, at the Grave Registration Unit.  

	c.  The applicant's injuries required the LTC and others to bring him food on a daily basis as he was not able to go to the dining facility.  

	d.  The applicant was a dedicated Soldier who exhibited extraordinary heroism, leadership, patriotism, and selflessness.

13.  Counsel provides a self-authored statement by the applicant, in which he writes, in effect:

* he graduated from Tuskegee University and worked in a hospital as a Medical Technologist for 35 years, of which 21 years were for the Veterans Hospital in Birmingham, AL
* he joined the ALARNG in March 1985 and ultimately served in the ALARNG for 11 and 1/2 years
* during the Gulf War, in 1991, his unit was activated and sent to Fort Hood, TX
* he received a direct commission as a Medical Service Corps officer
* he was exposed to high levels of noise from various ordnances and while participating in numerous live-fire exercises
* he has since been diagnosed with tinnitus and wears a hearing aid in his right ear
* in 1996 he served as a Medical Lab Officer, then in 1998 he was assigned first as a Training Officer, then Executive Officer, and finally as a Company Commander; he was again exposed to noise during various training exercises
* in March 2007, he was assigned to a unit at Fort Bragg were he severely injured his left knee; this later required a total knee replacement
* in July 2007, he deployed with his unit to Logistical Support Area (LSA) Anaconda, Iraq; while there he was frequently exposed to indirect fire
* as part of his duties as Commander of Relief for tower guards, he was required to review videos of Soldiers who were shot in the head during insurgent attacks
* in November 2007, he was medically evacuated to Landstuhl Regional Medical Center to receive an injection in his left knee; he was given the choice to redeploy or return to theater and he chose to return to theater
* in December 2007, a convoy arrived at the entry control point for the LSA and an MRAP was being towed which contained the bodies of Soldiers killed by an explosive device, the memories of which greatly affected him and contributed to his PTSD
* in April 2008, the incident occurred during which he injured his head by hitting the concrete bunker wall
* while serving as part of a Joint Staff Integrated Vulnerability Assessment Team, he visited a Grave Registration Unit on four occasions; each time he saw the bodies of over 300 Soldiers and seeing this greatly affected him
* while at LSA Anaconda, there was a risk of being kidnapped by insurgents during sandstorms; he believed someone tried to kidnap him on four occasions
* he was abruptly sent back to the continental U.S. after a general officer saw him performing his duties while on crutches
* he did not receive all of the awards he believes he earned during his deployment, nor did he receive a copy of his officer evaluation report (OER) for that period; he felt his last OER, with Major General Sxxxxxxxxxx as his senior rater, reflected his worth as a Soldier
* he came from a military family and enjoyed his military career; by requesting relief from the Board, he wishes to right the wrong that occurred

14.  Counsel provides articles and fact sheets about tinnitus which essentially describe causes, symptoms, treatments, and resources available for those afflicted with tinnitus.

15.  CRSC, as established by Title 10, USC, section 1413a, and 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% disabling.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return a portion of the waived retired pay to the military retiree.

16.  In program guidance provided by DOD on 15 April 2004, a combat-related disability is defined as having been incurred:

	a.  as a direct result of armed conflict;

	b.  while engaged in hazardous service, such as aerial flight, parachute duty, demolition duty, or diving duty;

	c.  from an instrumentality of war, such as an armored vehicle designed primarily for military service; or

	d.  in the performance of duty under conditions simulating war; where the injury resulted from military training such as war games, practice alerts, tactical exercises, leader-reaction courses, and obstacle courses.  It does not include physical training activities.

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 during training exercises is not, in and of itself, sufficient to grant a military retiree CRSC.  The military retiree must show a direct causal link between the disability and an officially documented (emphasis added) event.  The disability must have been incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting.

2.  The applicant has submitted evidence, in the form of a VA Rating Decision, to show that his PTSD and tinnitus are service-connected (emphasis added).  

	a.  Regarding PTSD, he also provides proof in the form of diagnoses by behavioral health specialists.  These diagnoses, however, are entirely based on his own recounting of events.  Absent are official sources or documentation, such as reports by commanders in the applicant's chain of command, operational reports, staff duty logs or investigations under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).

	b.  As to tinnitus, counsel affirms there are no objective tests available which might confirm a diagnosis of tinnitus.  The Board is therefore required to accept what the applicant describes.  Even if the applicant's descriptions are accepted, however, there is still insufficient evidence provided for the Board to draw a clear and direct causal link (emphasis added) between combat and this disability.

3.  Without substantive evidence to establish a direct causal relationship to the applicant’s VA rated disabilities of PTSD and tinnitus to war or the simulation of war, there is insufficient basis upon which 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)                                         AR20140015774



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ABCMR Record of Proceedings (cont)                                         AR20140015774



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