IN THE CASE OF:	 

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140020974


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, correction of his Physical Evaluation Board (PEB) Proceedings to include post-traumatic stress disorder (PTSD) as an unfitting condition for the purpose of qualifying for Combat Related Special Compensation (CRSC).

2.  The applicant states his PTSD is combat-related as determined by competent medical authority.  The VA determined his PTSD is service-connected and Gulf War incurred and his active duty medical records note his PTSD as chronic, with symptoms including unobtrusive [sic] thoughts about traumatic events in the combat zone causing physical arousal.

3.  The applicant provides the following documents arranged chronologically:

* VA Form 21-4138 (Statement in Support of Claim), dated 24 November 2014
* a letter from the Case Management Division of the Army Review Boards Agency (ARBA), dated 31 October 2014, with the following allied documents:

* a letter from the Division of Veterans Affairs, Department of Administration, State of North Carolina, dated 4 September 2014
* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated             3 September 2014
* VA Form 21-4138, dated 6 May 2014
* a letter from a clinical psychologist from the Department of Veterans Affairs (VA), Charles George Medical Center in Asheville, North Carolina, dated 30 April 2014
* an extract of his VA rating decision, dated 31 October 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 February 2012
* Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care), dated 29 June 2010
  
* a letter from the CRSC Program Office of the U.S. Army Human Resources Command (HRC), dated 10 June 2014, subject: Army CRSC Decision Letter, (Claim #: 312836)
* HRC CRSC Form 12e (CRSC Reconsideration Request Form), dated 
6 May 2014
* a letter from the CRSC Program Office of HRC, dated 22 April 2014, subject: Army CRSC Decision Letter, (Claim #: 309648)

CONSIDERATION OF EVIDENCE:

1.  The applicant had previous enlisted active and Reserve service in the Army National Guard (ARNG), U.S. Army Reserve (USAR), and U.S. Naval Reserve.  He entered military service on 28 November 1978, held numerous military occupational specialties and served through numerous periods of reenlistment and/or extension, and attained the rank/grade of staff sergeant (SSG)/E-6.  His record shows he deployed to Southwest Asia in support of Operations Desert Shield and Desert Storm.

2.  On 29 September 2008, he was discharged from the USAR for the purpose of accepting an appointment as a warrant officer.  On 30 September 2008, he was appointed as a warrant officer one in the USAR.

3.  On 16 April 2009, he entered active duty in support of Operation Iraqi Freedom.  His record contains a DD Form 214 that shows he deployed to Iraq in April 2009; however, his record also contains conflicting medical documentation that shows his deployment to Iraq did not occur until approximately August 2009.  Despite this discrepancy, his record shows he redeployed to the continental U.S. (CONUS) in January 2010.

4.  On 29 June 2010, he underwent a neurology examination at Fort Gordon, Georgia.  The SF 600 that documents this examination notes "chronic post-traumatic stress disorder."  His available record is otherwise void of documentation that diagnoses PTSD as a possible mental health issue.

5.  On 13 September 2010, he was promoted to chief warrant officer two (CW2).

6.  On 10 March, 17 March, and 19 April 2011, he underwent a psychiatric examination at Fort Jackson, South Carolina, for the purpose of evaluation by a medical evaluation board (MEB).  As a result of these examinations, he was diagnosed with "anxiety disorder, not otherwise specified."  Although his MEB Narrative Summary (NARSUM) documents combat stressors he was exposed to in March 1991, it does not contain a diagnosis of PTSD.

7.  Although his DA Form 3947 (MEB Proceedings) is not available for review, his NARSUM specifies that as a result of his diagnosed condition, he did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

8.  His record is void of the MEB Proceedings or NARSUM related to other medical conditions for which he was referred to a PEB.

9.  On 27 September 2011, an informal PEB convened at Fort Jackson, South Carolina to consider his case.  The PEB determined he was unfit for continued military service by reason of:

* anxiety disorder, not otherwise specified
* lumbar degenerative disease
* cervical degenerative disease
* right knee arthropathy
* left knee arthropathy

As a result, it recommended a combined 80 percent (%) disability rating and permanent disability retirement.  On 25 October 2011, he concurred with the PEB's findings and recommendation and waived a formal hearing of his case.  On 14 November 2011, his PEB was approved by the U.S. Army Physical Disability Agency (USAPDA) for the Secretary of the Army.

10.  On 12 February 2012, he was retired from active duty by reason of permanent disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (1).  His DD Form 214 shows he was credited with completing 5 years, 7 months, and    20 days of active Federal service and 27 years, 6 months, and 25 days of inactive service.

11.  On 31 October 2013, the VA rendered a decision regarding his percentage of service-connected disability.  Based on a review of his VA Rating Decision, it appears his numerous service-connected conditions, including PTSD, were given a combined rating of 90%.

12.  On or about 9 January 2014, the applicant submitted a CRSC claim for multiple conditions, ailments, or VA-rated disabilities.  On 11 February 2014, HRC partially granted his request for CRSC by verifying as combat-related two conditions, which equated to a combined rating of 50% total combat-related disability, effective 1 March 2012.  Numerous other conditions, including PTSD, were not verified as combat-related disabilities; specifically, his PTSD was not verified as combat-related because his MEB/PEB documentation did not support that conclusion.

13.  On 22 April 2014, the CRSC Branch denied his request for reconsideration of his CRSC claim.  The CRSC Branch reviewed the existing and newly-submitted documentation and determined they could not establish a link between the claimed conditions, including PTSD, and a combat-related event.

14.  On 10 June 2014, the CRSC Branch again denied his request for reconsideration of his CRSC claim.  The CRSC Branch determined they still could not establish a link between the claimed conditions, including PTSD, and a combat-related event, they were unable to overturn the previous adjudications, and they considered this current disapproval to be final.

15.  He provides a letter from a clinical psychologist from the Charles George VA Medical Center in Asheville, North Carolina, dated 30 April 2014, who states:

* the applicant is being seen at the Charles George VA Medical Center, where he has been diagnosed with combat-related PTSD
* the applicant is currently rated with service-connected disability at 90%, including 50% for PTSD
* he has received mental health treatment since 1994, and has been cared for at the Charles George VA Medical Center since February 2012
* he had multiple combat deployments and it is impossible to determine which deployment caused his PTSD – it is highly likely that all of his combat deployments contributed to the symptoms that led to his PTSD diagnosis
* based on his documented combat exposure, his PTSD symptoms today, and his clinical presentation, it is the examining psychologist's opinion that the applicant is accurately diagnosed with combat-related PTSD and he continues to experience PTSD symptoms despite ongoing treatment

16.  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.  CRSC eligibility includes disabilities incurred as a direct result of:

* armed conflict (gunshot wounds, Purple Heart, etc.)
* training that simulates war (exercises, field training, etc.)
* hazardous duty (flight, diving, parachute duty)
* an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.)

17.  The Office of the Under Secretary of Defense for Military Personnel Policy provided guidance for the processing CRSC appeals.  This guidance stipulated 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 or caused by an instrumentality of war (emphasis added).

18.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB and PEB in 2011.  He agreed with the findings and recommendation of the PEB, despite the absence of PTSD as a documented unfitting condition.  There is no evidence that confirms he was diagnosed with or was unable to perform his duties due to PTSD at the time of either his MEB or PEB.

2.  The applicant's PEB found him unfit for military service by reason of multiple conditions, including anxiety disorder, not otherwise specified, and recommended an 80% combined disability rating.  As a result, he was permanently retired under the provisions of Army Regulation 635-40, paragraph 4-24b (1), by reason of permanent disability.  He concurred with the findings and recommendation and waived his right to a formal PEB hearing.  The evidence of record does not indicate the applicant’s disability processing was in error or unjust or that his medical conditions were improperly evaluated by the PEB.

3.  Although the applicant was granted service-connection (90%) for numerous conditions including PTSD, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.

4.  The CRSC criteria are specific to those military retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations is not, in and of itself, sufficient to grant a military retiree CRSC.  In order to qualify for CRSC, the applicant must show that his disability met the established criteria and was incurred while engaged in combat, while performing duties simulating combat conditions, while performing especially hazardous duties, or was caused by an instrumentality of war.

5.  The VA diagnosed the applicant with service-connected PTSD; however, the Army diagnosed the same conditions the VA attributed to PTSD to "anxiety disorder, not otherwise specified."  Neither the applicant's MEB nor PEB Proceedings contain a diagnosis of PTSD.  He appears to believe that since he served in Southwest Asia and Iraq, and the VA later diagnosed him with PTSD, his condition must have occurred there.  However, neither the evidence of record nor his provided evidence definitively establishes that link.  The fact that he was in a theater of operations is insufficient, in and of itself, to warrant approval of CRSC.

6.  Without evidence to establish a direct, causal relationship between his rated disability and a combat event, there is 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 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)                                         AR20100007330



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ABCMR Record of Proceedings (cont)                                         AR20140020974



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