IN THE CASE OF:  	  

		BOARD DATE:  15 September 2015	  

		DOCKET NUMBER:  AR20150002524 


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, reversal of the U.S. Army Human Resources Command (HRC) decision denying him combat-related special compensation (CRSC) for headaches and post-operative residuals of a deviated nasal septum.

2.  The applicant states he disagrees with the CRSC decisions dated 2 July and 26 August 2014 denying him CRSC for Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Codes 6502 (post-operative residuals deviated nasal septum) and 8100 (headaches).

3.  The applicant provides:

* Congressional correspondence
* Medical Evaluation Board (MEB) Proceedings
* Character reference letter
* Physical Evaluation Board (PEB) Proceedings
* Retirement orders
* CRSC applications
* Denial letters from HRC

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the reversal of the decisions by HRC, dated 2 July 2014 and 26 August 2014 to deny the applicant CRSC for headaches, post-operative results of a deviated nasal septum (the bone and cartilage that divide the nasal cavity of the nose in half is significantly off center, or crooked, making breathing difficult), and onychomycosis (fungal infection of the toenail).

2.  Counsel states:

	a.  On 24 December 1970, while serving in Vietnam, the applicant struck his forehead on a table while seeking shelter upon the sounding of a siren.  His service medical records document that he was treated at the time for superficial lacerations of his forehead and returned to full duty.  Unfortunately, the resulting injuries were in fact much worse and he began suffering from frequent cluster/migraine headaches.  To control the headaches, he was prescribed various medications which caused drowsiness and interfered with the completion of his duties.  In an attempt to alleviate the headaches and his dependence on the medications, he underwent corrective surgery for a deviated septum at Walter Reed Army Medical Center on 19 March 1981.  Unfortunately, the surgery was not successful and the headaches continued.

	b.  Effective 10 November 1988, he was medically retired from the Army due to his continuing headaches.  The PEB assigned a 30 percent rating for "retro-orbital, right-sided headaches, without frequently prostrating attacks; aggravated by running and physical training."  The PEB determined  the disability "result[ed] from a combat related injury as defined in 26 U.S. Code (USC), section 104."  

	c.  In 2011, he applied for CRSC based on the service-connected ratings for his headaches, the post-operative results of his deviated nasal septum and his onychomycosis, status post removal toenails, both great toes.  On 19 October 2012, HRC awarded him CRSC payments for his headaches but continued its denial on the deviated nasal septum and onychomycosis.  No rationale was given for either decision.  On 29 June 2013, he requested reconsideration of the denial of CRSC payments for the deviated septum providing documents from his MEB proceedings.  That request was denied in a decision dated 29 July 2013.  On 26 March 2014, he again applied for reconsideration providing additional documentation from his service medical records and the relevant VA disability rating decisions showing the deviated septum condition was awarded as secondary to the already-awarded CRSC rated headaches.  That request was denied on 21 May 2014.  Although no further request for reconsideration was 
On 2 July 2014, HRC issued a decision rescinding its prior award of CRSC for his headaches and denying CRSC eligibility for his deviated septum and onychomycosis.  These actions were deemed final denials and he was instructed that further appeals would have to be filed with this Board.  That decision was clarified in 26 August 2014 letter containing the same conclusions.

	d.  To receive CRSC, the veteran must show that his injuries occurred while engaged in combat, while performing duties simulating combat conditions, or while performing specialty hazardous duties.  In this case, the applicant's head injury was clearly incurred in combat.  In addition to his description of the events, this characterization is reflected in the documents accompanying his medical retirement.  The PEB proceedings which were not previously submitted to HRC, specifically states that "disability did result from a combat related injury as defined in 26 USC 104."  Consequently, he requests that the 2 July 2014 and 
26 August 2014 HRC decisions be corrected and that his CRSC payments for headaches be reinstated.

3.  Counsel does not provide any additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show, after having had prior service in the U.S. Air Force (20 December 1968 to 7 December 1972), U.S. Air Force Reserve (8 December 1972 to 3 January 1974), and Army National Guard/Army Reserve (4 January 1974 to 8 May 1975), he enlisted in the Regular Army on 9 May 1975. 

2.  He served in a variety of stateside or overseas assignments and he attained the rank of staff sergeant.  He was honorably discharged from active duty on 17 January 1980 to accept a commission.

3.  His records also show he was appointed as a Reserve commissioned officer of the Army and entered active duty on 18 January 1980.  He served in a variety of assignments and he attained the rank of captain (CPT). 

4.  His MEB narrative summary, dictated on 16 June 1988, shows/reads: 

	a.  His initial enlistment began in 1968 and ran through December 1972.  He was stationed in Vietnam from July 1969 through August 1971.  He saw enlisted Reserve service from December 1972 through May 1975, re-entered active duty in May 1975 through the present.  He completed Officer Candidate
School and was commissioned in January 1980.  He was well until 1970 when he suffered a closed head injury while on combat duty in Vietnam.  The details concerning this injury are sketchy at present.  He states that he received a blow to the forehead and was briefly unconscious.  He has several hours of amnesia following the injury.  Subsequent to that, he began to complain of severe, often incapacitating, headaches which seemed to worsen by exertion. 
Concurrent with this, he was diagnosed as having high frequency sensorineural hearing loss.  Because of the difficulties with the headaches, he left active duty in December 1972.  He states that he was not medically retired but that he simply left active duty and he was told he could seek further evaluation, treatment and compensation for his service-connected disability through the VA.

	b.  While on Reserve service from December 1972 to May 1975, he felt his headaches decreased in severity to a sufficient extent to allow re-entry on active duty to be practical.  Since re-entering active duty, he has continued to have difficulty with recurrent headaches.  In 1980, he was seen by the Ear, Nose and Throat and Neurology Services at Walter Reed Army Medical Center.  At that time, a diagnosis of mixed migraine/sinus obstruction headaches was made. He underwent a septoplasty in 1980 which had little impact on the frequency or severity of his headaches.  Following surgery, he was treated with Inderal, beginning in 1980 and continuing to the present.  He has had recurrent, severe, incapacitating, throbbing, hemicranial headaches which are usually precipitated by exercise.  As a consequence , he has been unable to pass the physical training (PT) test and has been on profile intermittently since 1980 for this problem. Symptomatically, the headaches respond incompletely to treatment with oral and injected ergots.  When severe, they necessitate the patient lie down in a cool, dark place and attempt to sleep.

	c.  He continues to suffer from frequent, severe, incapacitating headaches and as a result is unable to perform PT and unable to perform in a manner consistent with his current military specialty and duties.  His diagnosis is as follows: status post-closed head injury; recurrent migraines, refractory to therapy; and high frequency sensorineural hearing loss.

	d.  He is currently unable to perform full duty under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  Therefore, his case was referred to the PEB for disposition.  In addition, he has findings on CT scan in the region of the pineal gland which are of undetermined significance.  It is recommended that he undergo CT scan, with and without contrast, in six months for follow-up evaluation of this finding.

5.  On 28 July 1988, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had the medically unacceptable conditions of:

* recurrent migraines, refractory to therapy
* status post-closed head injury
* high frequency sensorineural hearing loss
* old tear, proximal medial collateral ligament, right with calcification (not permanently aggravated by service)

The MEB recommended his referral to a PEB.  The applicant was counseled and indicated he did not desire to remain on active duty.  After submitting a rebuttal, his MEB Proceedings were approved. 

6.  On 18 August 1988, an informal PEB convened and found the applicant's condition of migraine, secondary to closed-head injury to the forehead in 1970, aggravated by running and PT, prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.  The PEB rated him under VASRD Code 8100 at 10 percent.  The informal PEB considered his other condition of high frequency sensorineural hearing loss but did not find this condition unfitting and therefore was not rated.  The PEB recommended his separation with entitlement to severance pay if otherwise qualified.  He was counseled but did not concur and demanded a formal hearing. 

7.  On 30 August 1988, a formal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.  The PEB rated him under the VASRD Codes 8199/8100, retro-orbital, right-sided headaches without frequent completely prostrating attacks, aggravated by running and PT, and rated this condition at 30 percent.  The formal PEB recommended his permanent retirement from the service with a combined disability rating of 30 percent.  He concurred.  His DA Form 199 (PEB Proceedings) contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* the member's retirement is not based on disability resulting 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 incurred in the line of duty during a period of war as defined by law
* the evidence of record reflects the individual was a member or obligated to become a member of an Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration (NOAA) or the U.S. Public Health Service (USPS) on 24 September 1975
* the disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104

8.  On 30 July 1982, his PEB was approved by an official at the U.S. Army Physical Disability Agency (USAPDA) on behalf of the Secretary of the Army.  Accordingly, on 20 October 1988, the U.S. Army Military Personnel Center, Alexandria, VA published:

	a.  Orders D202-18 retiring him effective 10 November 1988 and placing him on the retired list in his retired rank of CPT effective 11 November 1988 at a combined rating of 30 percent.

	b.  Prepared and submitted a DA Form 2173 (Data for Retired Pay) listing the applicant's retirement at the rate of 30 percent, effective 10 November 1988, in accordance with Title 10, U.S. Code, section 1201.  The "Remarks" block of this form states "Excluded from provisions of Public Law 94-106" and "His disability was not caused by a combat-related injury."

9.  On 10 November 1988, the applicant retired and on 11 November 1988, he was placed on the retired list in his retired rank of  CPT in accordance with chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of permanent disability (no indication of combat- related).  Item 26 (Separation Code) of his DD Form 214 shows the entry "SFJ."

10.  On 28 September 2011, he submitted his first CRSC application.  HRC reviewed his application and on 11 October 2011, by letter, informed him that there was no evidence in his claim to show that a combat-related event caused his conditions.  He was asked to provide evidence on how these conditions occurred, such as a line of duty investigation, medical documentation, and/or VA rating decision: 

* VASRD Code 9413, Anxiety Disorder, Not otherwise specified, with symptoms of anxiety and depression; No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 7005, Coronary Artery Disease, No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 7806, Onychomycosis, status post removal toenails in both toes; No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 6100, Bilateral hearing loss; No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 5261, Right knee status post torn ligament; No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 8100, headaches, secondary to head trauma; No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 6502, Post-operative residuals deviated nasal septum, No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 6260, Tinnitus, No evidence in his claim to show that a combat-related event caused this condition
11.  On 1 December 2011, the Army reconsidered his claim for CRSC and partially approved his claim.  By letter, HRC informed him he was awarded CRSC at a combined rate of 30 percent beginning in June 2008, as follows:  

	a.  Verified as combat-related: VASRD Code 7005, Coronary Artery Disease (Agent Orange Presumption) at 30 percent beginning in June 2008 and 10 percent from January to May 2008.

	b.  Unable to verify as combat-related disabilities: 

* VASRD Code 9413, Anxiety Disorder, Not otherwise specified, with symptoms of anxiety and depression; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 7806, Onychomycosis, status post removal toenails in both toes; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6100, Bilateral hearing loss; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 5261, Right knee status post torn ligament; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 8100, Headaches, secondary to head trauma; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6502, Post-operative residuals deviated nasal septum, previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6260, Tinnitus, previously requested, no new evidence provided to show combat-related event caused condition

12.  On 19 October 2012, the Army reconsidered his claim for CRSC and partially approved his claim.  By letter, HRC informed him he was awarded CRSC at a combined rate of 70 percent beginning in June 2008, as follows:

a. Verified as combat-related:

* VASRD Code 7005, Coronary Artery Disease (Agent Orange Presumption), previously awarded at 30 percent beginning in June 2008 and 10 percent from January to May 2008.
* VASRD Code 5261, Right knee status post torn ligament at 40 percent; documentation supported evidence of injury while simulating war
* VASRD Code 8100, Headaches, secondary to head trauma at 30 percent, documentation supported evidence of injury while simulating war

	b.  Unable to verify as combat-related disabilities: 

* VASRD Code 9413, Anxiety Disorder, Not otherwise specified, with symptoms of anxiety and depression; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 7806, Onychomycosis, status post removal toenails in both toes; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6100, Bilateral hearing loss; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6502, Post-operative residuals deviated nasal septum, previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6260, Tinnitus, previously requested, no new evidence provided to show combat-related event caused condition

13.  On 29 October 2013, the Army reconsidered his claim for CRSC and partially approved his claim.  By letter, HRC informed him he was awarded CRSC at a combined rate of 80 percent beginning in March 2012, as follows: 

b. Verified as combat-related:

* VASRD Code 9413, Anxiety Disorder, o percent, documentation verified this disability as combat-related
* VASRD Code 7005, Coronary Artery Disease (Agent Orange Presumption), at 30 percent beginning in June 2008 and 10 percent from January to May 2008; previously awarded, verified percentage and effective date
* VASRD Code 6100, Bilateral hearing loss, documentation verified this disability as combat-related, at 0 percent from January 2008 to February 2012 and at 10 percent beginning in March 2012 
* VASRD Code 5261, Right knee status post torn ligament at 40 percent; previously awarded; verified percentage and effective date 
* VASRD Code 8100, Headaches, secondary to head trauma at 30 percent, previously awarded; verified percentage and effective date
* VASRD Code 6260, Tinnitus, 10 percent, documentation verifies disability as combat-related

	b.  Unable to verify as combat-related disabilities: 
* VASRD Code 7806, Onychomycosis, status post removal toenails in both toes; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6502, Post-operative residuals deviated nasal septum, previously requested, no new evidence provided to show combat-related event caused condition

14.  On 2 May 2014, the Army reconsidered his claim for CRSC and partially approved his claim.  By letter, HRC notified that that he was awarded CRSC at a combined rating of 80 percent beginning in March 2012 as follows:

c. Verified as combat-related:

* VASRD Code 9413, Anxiety Disorder, 0 percent, previously awarded, verified percentage and effective date
* VASRD Code 7005, Coronary Artery Disease (Agent Orange Presumption), at 30 percent, previously awarded, verified percentage and effective date
* VASRD Code 6100, Bilateral hearing loss, 10 percent, previously awarded, verified percentage and effective date
* VASRD Code 5261, Right knee status post torn ligament, 40 percent; previously awarded; verified percentage and effective date 
* VASRD Code 8100, Headaches, secondary to head trauma at 30 percent, previously awarded; verified percentage and effective date
* VASRD Code 6260, Tinnitus, 10 percent, previously awarded; verified percentage and effective date

	b.  Unable to verify as combat-related disabilities: 

* VASRD Code 7806, Onychomycosis, status post removal toenails in both toes; previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6502, Post-operative residuals deviated nasal septum, previously requested, no new evidence provided to show combat-related event caused condition

15.  On 2 July 2014, in response to his request for reconsideration, by letter, HRC notified him that: 

	a.  Based on the documentation he provided (a medical document, dated 1935 hours on 24 December 1970) stating he sustained a "superficial laceration to the forehead when he struck his head on a table in the barracks," HRC determined that VASRD Code 8100, headaches, secondary to head trauma is NOT combat-related and is hereby rescinded.

	b.  Additionally, HRC was unable to overturn the previous denials of his claim based upon a thorough review of all available medical and military documentation in support of his application.  Specifically, VASRD Codes 6502 (Post-operative residuals deviated nasal septum) and VASRD Code 7806 (Onychomycosis, status post removal toenails in both toes) are NOT combat-related and are disapproved.  The disapproval of VASRD Codes 7806 and 6502 and VASRD Code 8100 are now considered final and any appeal should be directed to this Board. 

16.  On 26 August 2014, by letter, HRC wrote to him to clarify the previous letter in relation to his "Headaches."  The letter states: 

	a.  Based on the documentation he provided (a medical document, dated 1935 hours on 24 December 1970) stating he sustained a "superficial laceration to the forehead when he struck his head on a table in the barracks," HRC determined that VASRD Code 8100, headaches, secondary to head trauma is NOT combat-related and is hereby rescinded.  CRSC will be paid from the date of this decision letter through 30 November 2014.  Due to this change of status his total CRSC rating will be reduced from 80 percent to 70 percent effective 
1 December 2014.  This determination will not cause a debt to him as the determination was not his fault.  

	b.  Additionally, HRC was unable to overturn the previous denials of his claim based upon a thorough review of all available medical and military documentation in support of his application.  Specifically, VASRD Codes 6502 (Post-operative residuals deviated nasal septum) and VASRD Code 7806 (Onychomycosis, status post removal toenails in both toes) are NOT combat-related and are disapproved.  The disapproval of VASRD Codes 7806 and 6502 and VASRD Code 8100 are now considered final and any appeal should be directed to this Board. 

17.  On 27 October 2014, the Army again reviewed his claim for CRSC and partially approved his claim.  By letter, HRC notified that that he was awarded CRSC at a combined rating of 80 percent beginning in December 2014 as follows:  

d. Verified as combat-related:

* VASRD Code 9413, Anxiety Disorder, at 30 percent from June 2008, previously awarded, verified percentage and effective date
* VASRD Code 7005, Coronary Artery Disease (Agent Orange Presumption), at 30 percent from June 2008, previously awarded, verified percentage and effective date
* VASRD Code 7913, Type 2 Diabetes with Erectile Dysfunction, at 20 percent from May 2014 (Agent Orange Presumptive)
* VASRD Code 6100, Bilateral hearing loss, at 10 percent from March 2012, previously awarded, verified percentage and effective date
* VASRD Code 5261, Right knee status post torn ligament, at 40 percent from January 2008; previously awarded; verified percentage and effective date 
* VASRD Code 8100, Headaches, secondary to head trauma at 30 percent from January 2008 to November 2014, previously awarded; verified percentage and changed effective date
* VASRD Code 6260, Tinnitus, 10 percent from January 2008, previously awarded; verified percentage and effective date

	B.  Unable to verify as combat-related disabilities: 

* VASRD Code 7806, Onychomycosis, status post removal toenails in both toes; final disapproval, previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 6502, Post-operative residuals deviated nasal septum, previously requested, final disapproval, no new evidence provided to show combat-related event caused condition
* VASRD Code 8045, Traumatic Brain Injury, 0 percent, no documentation to show that a combat-related event caused this condition 

18.  On 19 March 2015, HRC again reviewed his claim for CRSC and partially approved his claim.  By letter, HRC notified that that he was awarded CRSC at a combined rating of 100 percent beginning in May 2014 as follows:

e. Verified as combat-related:

* VASRD Code 9413, Anxiety Disorder, at 30 percent from June 2008, previously awarded, verified percentage and effective date
* VASRD Code 7005, Coronary Artery Disease (Agent Orange Presumption), at 30 percent from June 2008, increased to 210 percent effective September 2012, previously awarded, verified percentage and changed effective date
* VASRD Code 7913, Type 2 Diabetes with Erectile Dysfunction, at 20 percent from May 2014 (Agent Orange Presumptive), previously awarded, verified percentage and effective date
* VASRD Code 5261, Bilateral right knee, status post torn ligament, at 40 percent from January 2008; previously awarded; verified percentage and effective date 
* VASRD Code 8526, Bilateral, peripheral neuropathy (femoral nerve), right lower extremity to include the feet, associated with Type 2 Diabetes with Erectile Dysfunction; at 30 percent from May 2014; documentation confirms condition as secondary to Type 2 Diabetes
* VASRD Code 8526, Bilateral, peripheral neuropathy (femoral nerve), left lower extremity to include the feet, associated with Type 2 Diabetes with Erectile Dysfunction; at 20 percent from May 2014; documentation confirms condition as secondary to Type 2 Diabetes
* VASRD Code 8520, Bilateral, peripheral neuropathy (sciatic nerve), left lower extremity to include the feet, associated with Type 2 Diabetes with Erectile Dysfunction; at 20 percent from May 2014; documentation confirms condition as secondary to Type 2 Diabetes
* VASRD Code 8520, Bilateral, peripheral neuropathy (sciatic nerve), right lower extremity to include the feet, associated with Type 2 Diabetes with Erectile Dysfunction; at 20 percent from May 2014; documentation confirms condition as secondary to Type 2 Diabetes
* VASRD Code 6260, Tinnitus, 10 percent from January 2008, previously awarded; verified percentage and effective date

	b.  Unable to verify as combat-related disabilities:  VASRD Code 8100, Headaches, secondary to head trauma, condition deemed non-combat related effective November 2014. 

   c.  Special Monthly Compensation (SMC) Entitlement: SMC-48 was found to be combat-related effective September 2012 to the present and SMC-49 was found to be combat-related effective September 2014 to the present

19.  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. 
20.  Some military service retirees receive additional CRSC funds if entitled to a SMC from the VA.  CRSC evaluates whether a military retiree's SMC is awarded as combat-related.  The CRSC legislation stipulates that only combat-related disabilities will be considered when re-evaluating military service retirees' CRSC rates.  The gross monthly amount of CRSC cannot exceed the gross monthly amount of retired pay, regardless of SMC determination.  For instance, if the military service retiree's current CRSC payment is already equal to the applicant's gross monthly amount of retired pay, no additional money is due.

21.  Army Regulation 635-40 establishes the physical disability system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating.  The regulation in effect at the time stated:

	a.  Armed conflict and instrumentality of war.  A member whose retirement or separation from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict, or caused by an instrumentality of war and incurred in line of duty during a period of war will have the block "is" checked in item 10 of the DA Form 199.  

		(1)  Armed conflicts.  A disability may be considered a direct result of armed conflict (Appendix A) if (a) It was incurred while the member was engaged in armed conflict or an operation or incident involving armed conflict or the likelihood of armed conflict, or while interned as a prisoner-of-war or detained against his will in the custody of a hostile or belligerent force or while escaping or attempting to escape from such prisoner-of war or detained status, and (b) A direct causal relationship exists between the armed conflict or the incident or operation and the disability.  A determination that a disability resulted from injury or disease received in line of duty as a direct result of armed conflict will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit.

		(2)  Instrumentality of war.  A determination that a disability was caused by an instrumentality of war (Appendix A) and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law, i.e., (World War II, 7 December 1941 to 31 December 1946); any period of continuous service performed after 31 December 1946 and before 26 July 1974, if such period began before 1 January 1947; Korean War (27 June 1950 to 31 January 1955); and Vietnam Era (5 August 1964, and ending on such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress.

	b.  Appendix A makes further definitions as follows: 

		(1)  Instrumentality of war.  A device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury or a device not designed primarily for military service, but the use of or occurrence involving such device subjects the individual to a hazard peculiar to military service as distinguished from such use or occurrence under similar circumstances in civilian pursuits. 

		(2)  Armed conflict.  An armed conflict may include a war, expedition, occupation, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action or insurgency, etc., in which American military personnel are engaged with a hostile or belligerent nation, faction or force.

22.  Title 26 USC, section 104, states for purposes of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  CRSC is a form of concurrent receipt which is paid monthly.  It restores military retired pay that is offset when a military retiree accepts compensation from the VA for a disability or condition that can be attributed to a combat-related event as defined by the Department of Defense program guidance.  This allows eligible retirees to concurrently receive an amount equal to or less than their length of service retirement pay and their VA disability compensation, if the injury is combat-related.

2.  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.  The available evidence shows the applicant has submitted multiple applications claiming CRSC for at least 10 conditions that may be subject to compensation.  Seven conditions were approved as combat-related including anxiety disorder; coronary artery disease; bilateral hearing loss; right knee, status post torn ligament; tinnitus; Type 2 diabetes with erectile dysfunction; and headaches secondary to head trauma.  

4.  His previously-approved condition of headaches, secondary to head trauma was determined not to be combat-related and was withdrawn.  This determination was based on a document that the applicant provided.  It is a medical treatment document, dated 24 December 1970, that shows he sustained a superficial laceration to the head when he struck his head on a table in the barracks.  Although this occurred while in a theater of operations (Vietnam), it was not incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.  As a result, it was considered not combat-related.

5.  As for the onychomycosis and post-operative residuals deviated nasal septum, there was evidence submitted by the applicant to show that these conditions are service-related.  However, he has not submitted any evidence that shows these conditions are combat-related.  Nowhere in his available records is there confirmation that they were incurred during combat or under conditions simulating war.  Without evidence to establish a direct, causal relationship between his VA-rated disabilities and war or the simulation of war, 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.


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