CRSC Pact Act Presumptive for Asthma

S

shimaze

PEB Forum Regular Member
Registered Member
The Golden Question of the Day.

When claiming a PACT Act presumptive for CRSC, which category in section (g) Combat Related Code in the 2860 form do PACT Act presumptives fall under? I am applying for CRSC because of asthma that I was rated at 60% by the VA because it is a PACT Act presumptive. Just to be 100% clear and avoid getting sidetracked, the ONLY reason the VA gave me a 60% rating for asthma was because of the PACT Act and I can and will prove that when applying for CRSC.

I can’t decide between (AC) Armed Conflict or (HS) Hazardous Service. But I can generally rule out (PH) Purple Heart, (AO) Agent Orange, (RE) Radiation as obviously not good choices. And (SW) Simulation War, (IN) Instrument of War, and (GW or MG) Gulf War or Mustard Gas are not good choices either. Unfortunately, there is no standalone specific category for (PA) Pact Act Presumptives.

The question of PACT Act presumptives for CRSC has been answered many times over, but the glaringly obvious question of the correct 2860 (g) category has never been answered.

Thanks, Shimaze
 
Does Section IV on my 2860 look correct?

2860 Section IV.jpg

Or should I explain more than “Applying for CRSC based on a 60% disability rating for Asthma as a presumptive disability under the PACT Act because of toxic exposure to burn pits in Somalia during Operation Restore Hope”

Thanks, Shimaze
 
Yeah, good question.

The long answer would probably take you more time than you have on this earth so far for me to write it and for you to read it. So, here's my short take. I tend to think burn pits and the like are an "instrumentality of war." My guess is that you won't have a hard time with this issue. However, there are others in less clear situations that may run into problems, so I am sharing these thoughts with you and them. I think others might need it more.

They use that "best describes" language question on the form. I think that is complete BS. There can be multiple theories of the award, and they should analyze CRSC under every theory. And, if the application is handled well, they have to....but it might take going to court to push that specific issue. I have come across this "problem" many times, most often with pilots (though Operators and Tier-1 units could likely fall into the same logic.) For the pilot example, take a C5 pilot who was departing for a mission in support of a combat operation, mortar fire comes in on far part of the runway, the pilot has to hit the breaks, and the result was a a short runway for the heavy aircraft to take off on and the aircraft caught fire because of the hard breaking. Many folks are burned during the evacuation of the C5...the pilot has PTSD as a result of the fire and seeing crew and passengers get burned. We have many theories here. The C5, being so heavy, is a uniquely military aircraft. So, that would qualify under Instrumentality of War. But, it was also plausible that the problem was the mortar fire, so that should qualify under Armed Conflict. However, flight duties are also available as a basis under Extra-Hazardous Duty.

So, how to address this? I don't take a lot of cases at the application level because most folks don't need the help, and it would be, in many instances, a "rip off" to charge for a result that should be clear.(Most times, where I deal with CRSC issues are on reconsideration or before BCMR or in Federal Court after a denial). But, occasionally, a client is just not equipped to file on their own or the issues are murky, etc. In the cases where I deal with this at the CRSC board level (or in later appeals), I attach a memo arguing each basis for the category of CRSC and ask them to analyze for any basis that qualifies for the award.

I hope this was helpful and you get the full award you are due.
 
If I wasn't clear, I think burn pits are "instrumentalities of war."
 
Also, getting through the "pipeline" for getting to a Tier-1 unit, you probably have a bunch of years of service. Did you apply for other conditions that are likely "gimmies" based on your service? Tinnitus? A gimme. PTSD/TBI, likely gimmies. I don't know your total years of service, but I think that while Asthma may be "low-hanging fruit," what about the rest of your conditions?
 
I hope you just asked about Asthma because.....nope, actually I am not hopeful....I suspect you will be able to max out your CRSC on that condition or others. But, on reflection, I wonder why that is the only issue you are asking about? I want to make sure you are tracking all of the bases for CRSC, but I also want to ensure that if you are missing out on claims, you get the right result. Still, on reflection, I am concerned that if a Tier-1 guy is not claiming or getting everything you are due, maybe the Admin Clerks, Finance guys, Corpsmen, truck drivers, Ordnance techs, MP/SP, etc, are missing what they can claim.

Is Asthma the only condition you are claiming for CRSC?
 
One more comment.

I can't recount or share the number of times that I have come across folks from all walks of military service (or life) who don't understand the CRSC entitlement. So, this message isn't at all for you, @shimaze . This one is for all who might read this post.

Despite many mandated retirement or separation briefings, the message about entitlements is ineffective. Here is a personal story of mine.

My wife has a friend whose husband served 20 years plus as an artilleryman. He retired as an E8, and this was about 5 years after his retirement for length of service. So, we are grilling some steaks, and my work comes up, and somehow, he mentioned his 100% VA rating. I reply, with something like, "Yeah, and you get to double dip tax-free from CRSC." He looked at me and asked, "What do you mean?" I said, "Yeah, your CRSC from PTSD, and I am guessing tinnitus from being around all the blasts...you got your CRSC, right?' It turns out he never applied (because he never heard of CRSC), and I explained it to him and told him what he needed to do. A few months later, he maxed out his CRSC and got a retro CRSC payment of many tens of thousands of dollars. (I think it was like $40-60k, and, in addition to his lifetime compensation, the full award was HUGE.

Now, how does a First Sergeant not get the brief or information that CRSC exists?


Sorry, two comments. If in doubt, apply for CRSC.
 
Thank you for all the information. I would have never thought that asthma would fall under IN, instrumentalities of war. But I will trust your expertise over my inexperience.

Asthma is the only condition that I am applying for because I max out CRSC at 55%. Claiming anything else does not increase my CRSC. I don’t know anything about a "pipeline" for getting to a Tier-1 unit, but I am an E4 with 10 years of service. I medically retired in 1998 with a 30% DOD disability rating. When I retired, CRSC was not even invented yet. I was rated at 60% for asthma by the VA August of 2022. I have several more years before the six-year statute of limitations becomes an issue. When I was rated for asthma, the 60% brought me to 100% P&T schedular after 20 years at 80% VA.

I am going to submit my 2860 application for CRSC using (IN) instrumentalities of war and with the same explanation in section (j) “Applying for CRSC based on a 60% disability rating for Asthma as a presumptive disability under the PACT Act because of toxic exposure to burn pits in Somalia during Operation Restore Hope”. Before sending the application, I will correct the other false information.

That is not my SSN and I was not a SEAL in the Navy, but I was in the Navy and boots on the ground in Somalia in 1992~93.
 
shimaze said:
Thank you for all the information. I would have never thought that asthma would fall under IN, instrumentalities of war. But I will trust your expertise over my inexperience.

Asthma is the only condition that I am applying for because I max out CRSC at 55%. Claiming anything else does not increase my CRSC. I don’t know anything about a "pipeline" for getting to a Tier-1 unit, but I am an E4 with 10 years of service. I medically retired in 1998 with a 30% DOD disability rating. When I retired, CRSC was not even invented yet. I was rated at 60% for asthma by the VA August of 2022. I have several more years before the six-year statute of limitations becomes an issue. When I was rated for asthma, the 60% brought me to 100% P&T schedular after 20 years at 80% VA.

I am going to submit my 2860 application for CRSC using (IN) instrumentalities of war and with the same explanation in section (j) “Applying for CRSC based on a 60% disability rating for Asthma as a presumptive disability under the PACT Act because of toxic exposure to burn pits in Somalia during Operation Restore Hope”. Before sending the application, I will correct the other false information.

That is not my SSN and I was not a SEAL in the Navy, but I was in the Navy and boots on the ground in Somalia in 1992~93.
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Whelp 6 years limit is dead, read Soto v US.
 
scottymotech said:
Whelp 6 years limit is dead, read Soto v US.
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Never heard of Soto v. US, but I don’t think it applies anyways. I became eligible for CRSC in 2022 when I got a 60% rating for asthma. Before that, I didn’t have any combat related disabilities. Would Soto prevent me from getting back pay from ’22?
 
Did you have a VA rating for tinnitus? That would be a likely "gimme."
I don't know your full situation, but the worry is that you might be assuming something isn't combat-related and therefore end up missing out on compensation you are due.

Before the Soto decision, CRSC was limited to six years of retroactive pay. Soto took that limitation away. You can read about the case here: SOTO
 
Yes, I am rated for 10% tinnitus. But I wasn't rated until 2022 for tinnitus. For many years, 20 to be exact, I was at 75% and rounded up to 80%. My tinnitus caused by Mefloquine and a grenade exploding in our camp in 1993 while being deployed to Somalia. But I never complained of tinnitus until 2014. But I never applied for tinnitus compensation with the VA until 2022 because the 10%er would have increased me to 78% and still well below moving the 80% needle. When I filed my last claim that got me to 100, I finally added tinnitus in with some other things I was applying to get increased. For most disability compensation, the clock starts to tick when rated for a disability, not when the disability started. I just don't think I can get CRSC to pay before the PACT Act 60% asthma.

I may be able to use your paid for legal services. When I went to PEB in 1998, I was never rated by the Navy for MDD. I was only rated 30% for back & neck injuries from a MVA. My MH issues were never considered. I believe my MDD is misdiagnosed PTSD from combat duty in Somalia. I don’t think I can reach back almost 3 decades and fix a flawed PEB. Until CRSC came along, it never mattered to me what Chapter 61 pay I was eligible for because, except for a few short years, my VA disability compensation was ALWAYS more than anything DFAS had to offer.

But, If I could get the VA to change my MDD to PTSD and get the Navy to correct my PEB, in theory, I could get CRSC all the way back to when CRSC was created and I could get CRSC pay for more than my 60% asthma would get. But getting the VA rating changed from MDD to PTSD and then correcting a very old PEB is a heavy ball to roll up a steep hill.

I was an E-4 when I medically retired in 1998 and I am not sure of my exact CRSC pay. DFAS says I waive $1350 a month. In 2003, I was rated at 50% for MDD and the VA went all the way back to my first initial claim and paid me a large sum of money. In 1998, the VA missed my MDD disability in my service record that I was diagnosed while I was on active duty. In 1998, PTSD was not yet invented. Or more correctly stated: PTSD was not widely diagnosed and many veterans like myself that suffered from PTSD symptoms were simply diagnosed with MDD.

You are certainly more than welcome to send me a PM with your contact information. I know lawyers do not work for free nor do I expect them too. If you think I somehow have a chance at getting CRSC back pay for a couple of decades, I would be interested in your services.
 
shimaze said:
Never heard of Soto v. US, but I don’t think it applies anyways. I became eligible for CRSC in 2022 when I got a 60% rating for asthma. Before that, I didn’t have any combat related disabilities. Would Soto prevent me from getting back pay from ’22?
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Yes it does apply. The DOD should have never limited back pay to 6 years by misapplying the barring act to CRSC.

 
shimaze said:
Yes, I am rated for 10% tinnitus. But I wasn't rated until 2022 for tinnitus. For many years, 20 to be exact, I was at 75% and rounded up to 80%. My tinnitus caused by Mefloquine and a grenade exploding in our camp in 1993 while being deployed to Somalia. But I never complained of tinnitus until 2014. But I never applied for tinnitus compensation with the VA until 2022 because the 10%er would have increased me to 78% and still well below moving the 80% needle. When I filed my last claim that got me to 100, I finally added tinnitus in with some other things I was applying to get increased. For most disability compensation, the clock starts to tick when rated for a disability, not when the disability started. I just don't think I can get CRSC to pay before the PACT Act 60% asthma.

I may be able to use your paid for legal services. When I went to PEB in 1998, I was never rated by the Navy for MDD. I was only rated 30% for back & neck injuries from a MVA. My MH issues were never considered. I believe my MDD is misdiagnosed PTSD from combat duty in Somalia. I don’t think I can reach back almost 3 decades and fix a flawed PEB. Until CRSC came along, it never mattered to me what Chapter 61 pay I was eligible for because, except for a few short years, my VA disability compensation was ALWAYS more than anything DFAS had to offer.

But, If I could get the VA to change my MDD to PTSD and get the Navy to correct my PEB, in theory, I could get CRSC all the way back to when CRSC was created and I could get CRSC pay for more than my 60% asthma would get. But getting the VA rating changed from MDD to PTSD and then correcting a very old PEB is a heavy ball to roll up a steep hill.

I was an E-4 when I medically retired in 1998 and I am not sure of my exact CRSC pay. DFAS says I waive $1350 a month. In 2003, I was rated at 50% for MDD and the VA went all the way back to my first initial claim and paid me a large sum of money. In 1998, the VA missed my MDD disability in my service record that I was diagnosed while I was on active duty. In 1998, PTSD was not yet invented. Or more correctly stated: PTSD was not widely diagnosed and many veterans like myself that suffered from PTSD symptoms were simply diagnosed with MDD.

You are certainly more than welcome to send me a PM with your contact information. I know lawyers do not work for free nor do I expect them too. If you think I somehow have a chance at getting CRSC back pay for a couple of decades, I would be interested in your services.
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It wouldn’t be a couple decades. It would be possibly the change in the law that allowed medically retired Ch 61 to be eligible at most, 2008. However your VA rating and effective date is also relevant. And yes if you were granted asthma due to PACT Act presumption they would only go back to the change in the law, here being the PACT ACT. But you seem to be aware of some of this.

But you being granted Asthma in 2022 probably 25-30 years since your service in a qualifying area is promising.

Couple additional comments, not really a “golden question” and yeah actually what category has been discussed here many times, typically IW for some PACT ACT presumptives, especially the respiratory and cancers. However PACT made changes to agent orange, an even GW. The problem is the form is somewhat dated and there doesn’t seem to be an appetite to update it. I don’t think wrong code is a deal breaker, I certainly wouldn’t put Purple Heart if you weren’t awarded one.
 
decision letter.jpg


“…service connection for asthma has been granted on the basis of presumption. (38 CFR 3.307, 38 CFR 3.309)”

I this the language CRSC needs to confirm my asthma is a PACT Act presumptive?
 
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