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DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JRE
Docket No. 10316-07
18 April 2008
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
FPeORRECTION OF. NAVAL RECORD
Ref: (a) 10 U.S.C. 1552
Encl: (1). DD Form 149
(2) Subject's naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that the applicable naval record be corrected to show
that he is entitled to combat-related special compensation
(CRSC) for conditions of the lumbar spine, rated by the
Department of Veterans Affairs (VA) at 20% under VA code 5293,
and left and right bilateral, each rated at 10% under VA code
5003
2. The agers. consisting of Ms. <@@#MM and Messrs. abate.
and @ reviewed Petitioner's allegations of error and
injustice on 20 March 2008, and pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and injustice,
finds as follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies which were available under existing law
and regulations within the Department of the Navy.
b. Enclosure (1) was filed ina timely manner.
c. Petitioner contends, in effect, that his lumbar spine
was injured on 4 February 1985 when a structural malfunction
caused the fin of a MK-15 Mod 2A bomb to come loose as he was
hand loading the bomb on an aircraft, which caused him to twist
his body to one side and drop down under the weight of the 500
pound bomb, while trying to prevent the bomb from falling to the
ground. He believes that the 1985 injury, together with his
subsequent work on carrier flight decks, resulted in the
development of bursitis in his hips. Available records indicate
that Petitioner complained of lower back pain with radiation to
his left hip during February 1985, which was attributed to
trauma he sustained while loading a weapon on naval aircraft.
d. Petitioner submitted an application for CRSC to the CRSC
Branch, Secretary of the Navy Council of Review Boards, on 20
December 2004. He contended that the lumbar spine condition was
incurred on 4 February 1985 while he was loading a weapon ion a
naval aircraft, and that the bursitis of his hips occurred on 27
March 1999 during “high tempo flight deck operations while
deployed to the Gulf region in support of the No Fly Zone”. The
CRSC Branch denied his request on 27 December 2004, noting that
“instrumentality of war combat-related determinations” require a
direct causal relationship between the instrumentality and the
disability. Falling off, slipping on, running into, tripping
over, or attempting to lift an instrumentality of war do not
meet CRSC program criteria. In the opinion of the CRSB Branch,
he had not demonstrated that the condition of his lumbar spine
resulted from the “operation or mishap” of an instrumentality of
war. With regard to the bursitis of his hips, the CRSC Branch
concluded that he failed to demonstrate that the condition was
caused by specific combat-related events.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that the condition of Petitioner’s lumbar spine
should be classified as combat-related. In this regard, it
finds that the condition occurred on 4 February 1985 when a
defect in an instrumentality of war, an MK-15 Mod 2A bomb,
caused a “mishap of” the instrumentality, which injured
Petitioner as it fell towards the deck. The Board was not
persuaded, however, that the bursitis in Petitioner’s hips can
be attributed to a specific combat-related event.
In view of the foregoing, the Board recommends the following
corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
the condition of his lumbar spine, which has been rated by the
Department of Veterans Affairs (VA) under VA code 5293, is
combat-related, and that he is entitled to combat-related
special compensation for that condition.
b. That so much of Petitioner’s request for correction of
his naval record as exceeds the foregoing be denied.
c. That a copy of this Report of Proceedings be filed at an
appropriate location in Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.
ROBERT D. ZSALMAN JAMES R.° EXNICIOS
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.
W. DEAN PFE
v
Reviewed and Approved: ws
S-1-o0s
Robert T. Cali
istant General Counsel
Manpower and Hoserve Aftairs)
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