[00:00:00] Speaker 03:
And good morning.

[00:00:02] Speaker 03:
The first argued case this morning is number 16, 2296, Adams against the United States.

[00:00:09] Speaker 03:
Mr. Detumne.

[00:00:11] Speaker 02:
Good morning, Your Honors.

[00:00:12] Speaker 02:
It's a privilege to be back in your courtroom.

[00:00:15] Speaker 02:
With your permission, I'd like to begin and briefly address the first claim, which is that he is presently owed money and that the board did not provide full and fitting relief in regard to his claims for medical, dental, and other expenses, and then subsequently address the combat-related special compensation claim, if that's appropriate.

[00:00:33] Speaker 02:
There are three considerations that we would like to bring to the Court's attention that we think should guide its analysis of this particular claim.

[00:00:41] Speaker 02:
And the first is in Roth v. United States.

[00:00:43] Speaker 02:
This court made clear that when the Military Records Correction Board finds an error and injustice, it must take, quote, such corrective action as will appropriately and fully erase such error or compensate such injustice.

[00:00:59] Speaker 02:
Similarly, the D.C.

[00:01:00] Speaker 02:
Circuit in Dilley v. Alexander concluded that the authority of the board, the duty of the board is to make service members and veterans whole.

[00:01:09] Speaker 02:
Second, 10 U.S.C.

[00:01:10] Speaker 02:
Section 1552, the statute that governs the Correctional Board is a remedial statute and therefore should be given liberal consideration.

[00:01:20] Speaker 02:
And the third consideration, which may be the most important, is that Major Adams is a United States Air Force graduate.

[00:01:26] Speaker 02:
He was an officer in the United States Air Force for 11 years.

[00:01:29] Speaker 02:
He was a pilot.

[00:01:30] Speaker 02:
He served our country at the time of the war, and he largely sacrificed his health for us.

[00:01:36] Speaker 01:
Can I ask this?

[00:01:37] Speaker 01:
Yes, your honor.

[00:01:39] Speaker 01:
I'm wrong in thinking there are two concrete things that this case is about.

[00:01:45] Speaker 01:
One is the combat-related classification, which you haven't yet talked about.

[00:01:51] Speaker 01:
And then the other is an argument that your client should have been treated by the board as if he had not been

[00:02:09] Speaker 01:
as if, as if he were still in the service, particularly during that year when he got the expensive surgery.

[00:02:16] Speaker 02:
Yes, your honor.

[00:02:17] Speaker 02:
That's a, that is an alternative that they had available to them.

[00:02:20] Speaker 01:
Right.

[00:02:21] Speaker 01:
But I guess here's my question.

[00:02:23] Speaker 01:
Um, we, we have the court of federal claims has, um, jurisdiction based on, you know, money mandating statutes at the bottom of the, the, the claim.

[00:02:37] Speaker 01:
that he should have been treated as if he were still in the military.

[00:02:42] Speaker 01:
Aren't you saying that there must be a mandatory duty enforceable by money that he had been, that he should have been retained during that year?

[00:02:55] Speaker 01:
And I'm not sure where that's coming from.

[00:02:57] Speaker 02:
Well, the claim would be that, and again, I wasn't counseled below, bear in mind with me,

[00:03:03] Speaker 02:
The claim is that the board in correcting his record had a couple of options.

[00:03:08] Speaker 02:
One, they could have just stated that he was extended on active duty orders for a certain period of time, whether it was one year or six months or what have you.

[00:03:18] Speaker 02:
They have that authority.

[00:03:19] Speaker 02:
And we did cite a couple of cases to the court.

[00:03:21] Speaker 01:
Maybe I can put the question this way.

[00:03:24] Speaker 01:
In order for that to be a litigable claim in the court of federal claims under the Tucker Act, wouldn't that duty have to have been a mandatory one on the part of the board of corrections or the secretary?

[00:03:38] Speaker 01:
And at least as I'm not recalling that you pointed to anything, any statute that says in these circumstances,

[00:03:46] Speaker 01:
the service member must be retained during the period that's relevant here.

[00:03:52] Speaker 01:
Only maybe, and we've said several times that these may statutes don't generate Tucker Act claims.

[00:03:59] Speaker 02:
I don't think that that specific claim was made to the court of federal claims prior.

[00:04:06] Speaker 02:
I don't think that specific claim was.

[00:04:08] Speaker 02:
It would be in effect a constructive service credit claim that he would be entitled to back pay under 37 USC section 204A.

[00:04:17] Speaker 02:
I don't believe that that was specified in the complaint as a basis, so I may be wrong.

[00:04:23] Speaker 04:
That's part of my concern here is that I think that had I been making this assessment in the first instance, I might have said fair and fitting relief included exactly what you're talking about, but I don't know that we have any authority to second-guess that determination.

[00:04:47] Speaker 02:
The authority, the parameter is really from the Roth decision.

[00:04:53] Speaker 02:
We've argued in the brief that the board just doesn't have unbridled equitable discretion.

[00:04:59] Speaker 02:
There are parameters and those parameters are established one by the Air Force's own regulation which requires full and fitting relief.

[00:05:06] Speaker 02:
And the second are by the decisions of this court and also from the DC Circuit as well to make whole relief, to put the service member in the position that he or she would have been but for the error and injustice.

[00:05:17] Speaker 04:
But your citation to the fact that others were corrected in a different way to treat them as having been on duty but on leave during a period prior to their retirement that

[00:05:33] Speaker 04:
You're not claiming that he was treated in a way that was unfair vis-a-vis those other service members, are you?

[00:05:42] Speaker 02:
Not specifically, Your Honor, because there was another alternative, which is in this convoluted, indirect manner is what unfolded.

[00:05:52] Speaker 02:
So the board never specified in its decisions.

[00:05:56] Speaker 02:
whether he was entitled to retroactive medical care or dental care or compensation for his moving expenses or his travel expenses for any of that.

[00:06:05] Speaker 02:
They said, we don't have authority to do that.

[00:06:07] Speaker 02:
They clearly do have the authority.

[00:06:09] Speaker 02:
And we cited a number of the board's cases where they specify amounts of money that they're paying for someone.

[00:06:14] Speaker 02:
And some of that's been corrected, though, correct?

[00:06:17] Speaker 02:
What has been corrected, it was done really by Captain Phillips of the United States Air Force.

[00:06:24] Speaker 02:
bless her heart, she took initiative on this, she interpreted the board's decision as authorizing him to receive TRICARE retrospectively.

[00:06:34] Speaker 02:
The situation with the TRICARE, let me back up, the general claim is that he's presently owed money even based upon the relief that was granted and the steps were taken.

[00:06:44] Speaker 02:
The basic issue here is that they did not go through his medical expenses claimed and dental expenses and compare against

[00:06:53] Speaker 02:
the policy that he had, which is a continuing health care benefits policy, compare that against the policy he would have had had he been medically retired in the first instance, and determine which claims are allowable and which claims are not.

[00:07:07] Speaker 02:
Now what they compensated him for were his premiums that he had paid to the Treasury for the continuing health care benefits program.

[00:07:16] Speaker 02:
But he also has premiums that he paid to private insurance companies that were not addressed by the board's decision.

[00:07:23] Speaker 02:
So where we're taking that is to say the board needs to put its mind to this.

[00:07:27] Speaker 02:
It needs to fully consider an applicant's claims, and it needs to address each one of those claims.

[00:07:34] Speaker 02:
The action that it took in this case, which is just to say, we're going to medically retire you without specifying anything else, breaches its legal duty under the statute.

[00:07:45] Speaker 04:
Do you believe that we or the court of federal claims would have the authority to second-guess

[00:07:51] Speaker 04:
the disability retirement determination, given that there were doctor's determinations, whether I agree with them or not, that they relied upon.

[00:08:02] Speaker 02:
Whether he was disabled or not, Your Honor?

[00:08:04] Speaker 04:
Yes.

[00:08:05] Speaker 02:
No.

[00:08:06] Speaker 02:
The court could weigh the procedure, but that's not an issue because they did find him to be 60% disabled.

[00:08:13] Speaker 02:
And that was retroactively made effective to 1 July 2006.

[00:08:17] Speaker 02:
So that aspect of things was taken care of.

[00:08:20] Speaker 02:
The remainder on the money side, setting aside CRSC, are a surgery that he had to have that he was unable to obtain even after diligent effort through the VA.

[00:08:34] Speaker 02:
It cost him about $32,000 that the board didn't address.

[00:08:39] Speaker 02:
The claims he made, I'm sorry, the premiums he paid to a company called Assurus Healthcare, to the University of Iowa Healthcare, were never addressed.

[00:08:49] Speaker 02:
by defense, finance, and accounting service.

[00:08:51] Speaker 02:
They certainly weren't addressed by Tricare, which manages the retiree health program.

[00:08:56] Speaker 04:
Do we have any authority over Tricare, though?

[00:09:01] Speaker 04:
Can we order Tricare to do anything, or does he have to deal with Tricare?

[00:09:06] Speaker 02:
I'm not sure I understand the question.

[00:09:08] Speaker 04:
Well, isn't that one of the points that the Court of Federal Claims said, is that yes, there might be some issues that you have to deal with, but you need to settle those with the

[00:09:18] Speaker 04:
appropriate agencies, including Tricare.

[00:09:20] Speaker 02:
I think the point, Your Honor, we would make is Tricare is not the agency he needs to deal with.

[00:09:26] Speaker 02:
He needs to deal with DFAS.

[00:09:27] Speaker 02:
So the CFR for the board states, the board makes the records corrections.

[00:09:32] Speaker 02:
It needs to specify the relief.

[00:09:34] Speaker 02:
Defense Finance and Accounting Service then is charged by law with computing what the veteran is owed.

[00:09:43] Speaker 02:
And so in this case, DFAS said, well,

[00:09:46] Speaker 02:
We don't think we can help him in terms of figuring out what medical expenses were valid and could be recoverable by him.

[00:09:54] Speaker 02:
They sent him to Tricare.

[00:09:56] Speaker 02:
That's not in conformity with the statute.

[00:09:58] Speaker 02:
So Tricare provided him an email.

[00:10:00] Speaker 02:
That was the most detail that he received was from an email from Ms.

[00:10:04] Speaker 02:
DeAnton at Tricare saying, you know, there may be some difference, but there also may be some increase.

[00:10:10] Speaker 02:
Well, provide a number.

[00:10:12] Speaker 02:
Go through each of the claims.

[00:10:14] Speaker 02:
and provide him a number.

[00:10:15] Speaker 02:
Is he owed anything?

[00:10:16] Speaker 02:
If it's $50, he's owed $50.

[00:10:18] Speaker 02:
If it's $5,000, he's owed $5,000.

[00:10:20] Speaker 02:
And address it.

[00:10:22] Speaker 02:
That didn't happen.

[00:10:23] Speaker 02:
So what we're getting at, these boards have an extraordinary responsibility.

[00:10:27] Speaker 02:
Most often, they're the first, the tribunal of first and last instance for servicemembers.

[00:10:32] Speaker 02:
Very, very few cases come before the courts.

[00:10:35] Speaker 02:
So it's extraordinarily important that they discharge their duties properly and comprehensively.

[00:10:41] Speaker 02:
So that's the gist of the claim.

[00:10:44] Speaker 02:
on this point.

[00:10:45] Speaker 04:
Can you tell me precisely what the relief is that you think we can order and that you want us to order?

[00:10:52] Speaker 02:
What I would recommend the court do is remand the matter back, reverse the court's decision, remand the matter back to the AFBCMR with guidance from Roth or other decisions finding that they did not provide make-all relief, providing that calculations remain to be undertaken

[00:11:12] Speaker 02:
that they haven't addressed his, he's entitled as a matter of statute to dental care, retroactive to his date of retirement.

[00:11:20] Speaker 02:
That has never been addressed.

[00:11:22] Speaker 02:
The best, they sent him to a private dental insurer, which said, we can retroactive you to 2011.

[00:11:29] Speaker 02:
That was the best he got out of the dental.

[00:11:31] Speaker 02:
He has $5,000 of dental expenses during this early period of post discharge.

[00:11:37] Speaker 04:
But you're focusing solely on these

[00:11:40] Speaker 04:
And I'm sure they're important, but I'm going to refer to them as incidental costs at this point.

[00:11:44] Speaker 04:
You're not asking for what you described as the ability to have retroactively be considered on active duty for a period of time.

[00:11:56] Speaker 02:
Not specifically, Your Honor.

[00:11:58] Speaker 02:
It is an option that the board would have if the matter were remanded.

[00:12:05] Speaker 02:
If I were representing before the board, that's the option I would press upon the board.

[00:12:09] Speaker 02:
It's the cleanest, it's the simplest way to discharge of these disputes.

[00:12:15] Speaker 02:
Not to go through some comparison between a policy he had and didn't have and how that policy changes over time.

[00:12:22] Speaker 02:
Just say the man continued to serve on active duty until let's say November 16, 2007 when his surgery was completed.

[00:12:31] Speaker 02:
That takes care of the problem.

[00:12:33] Speaker 02:
So there's no question that they can do that.

[00:12:36] Speaker 02:
They have that authority.

[00:12:38] Speaker 02:
Am I making myself clear, Your Honor?

[00:12:41] Speaker 02:
What we're getting at in the gist of this is the failure of the board want to specify what he was entitled to.

[00:12:49] Speaker 02:
As a consequence of that, he had to go ahead and hand to, first DFAS says they're not responsible, he has to go ahead and hand to Tricare, then he has to go to Delta Dental of California private corporation.

[00:13:02] Speaker 02:
That's not what Congress intended.

[00:13:04] Speaker 02:
That's not full and fitting relief.

[00:13:07] Speaker 02:
Your Honor,

[00:13:08] Speaker 02:
Thank you.

[00:13:09] Speaker 03:
Let's hear from the government.

[00:13:16] Speaker 03:
Because I wanted to ask Mr. Lofgren, do you agree with the proposed paths for full relief for the veteran?

[00:13:25] Speaker 00:
Your Honor, the Corrections Board already determined that the relief that was provided to Major Adams, namely a correction to provide him with a disability retirement as opposed to a voluntary separation,

[00:13:37] Speaker 00:
constituted full and fitting relief.

[00:13:39] Speaker 00:
They identified error and justice in his separation, and they corrected his record to remedy that injustice.

[00:13:46] Speaker 00:
And by doing so, they provided him with very significant and meaningful benefits, including back pay and disability retirement.

[00:13:53] Speaker 00:
His dispute is an insurance coverage dispute.

[00:13:55] Speaker 00:
It's a dispute with Tricare about whether or not they cover his back surgery.

[00:14:00] Speaker 00:
And in the record... Well, but he says it's with

[00:14:04] Speaker 04:
DFAS, because DFAS can provide the information to Tricare that would basically give them the vehicle to pay for that.

[00:14:14] Speaker 00:
Tricare is a government program, but it's managed by contractors.

[00:14:20] Speaker 00:
The government wanted to get out of the business of deciding insurance claims, so they contracted with experts in doing this, with insurance companies.

[00:14:29] Speaker 00:
And so what the insurance company will cover or will not cover is

[00:14:32] Speaker 00:
is a matter of the insurance company's policy.

[00:14:35] Speaker 04:
But they determine what they're going to cover based on the information that the government gives them, right?

[00:14:40] Speaker 00:
Well, they determine what they're going to cover based on, sorry, is it your question whether their policy is regulated by the government?

[00:14:50] Speaker 00:
No.

[00:14:51] Speaker 04:
You have to have some metric to determine what you're going to cover, right?

[00:14:54] Speaker 04:
Yes.

[00:14:55] Speaker 04:
And the metric is the information that's provided to them by DFS, right?

[00:15:01] Speaker 00:
Yes, and that's why they refunded him with his premiums.

[00:15:04] Speaker 00:
I mean, first of all, there are two misconceptions that I think underlie the appellant's argument.

[00:15:10] Speaker 00:
And one is that he didn't somehow receive Tricare.

[00:15:14] Speaker 00:
But the record reflects that he did obtain insurance coverage under Tricare.

[00:15:19] Speaker 00:
And he had received reimbursement for medical expenses.

[00:15:22] Speaker 00:
Tricare paid their portion of his insurance claim.

[00:15:26] Speaker 00:
Basically, he paid what every other retiree paid.

[00:15:28] Speaker 04:
But expenses after the date of his surgery.

[00:15:31] Speaker 00:
And before, he had medical expenses after he left the military for doctors, MRIs, all the things that he needed to do in order to get medical treatment.

[00:15:45] Speaker 00:
And his insurance coverage at the time was through TRICARE.

[00:15:50] Speaker 00:
TRICARE and what he paid, the difference between what he paid and what a retiree would otherwise pay is premiums.

[00:16:01] Speaker 00:
So he had to pay premiums.

[00:16:02] Speaker 00:
If you're a retiree and if you were retired in the ordinary course, what he would have done is he would have paid for Medicare Part B because he would have been eligible for Medicare.

[00:16:12] Speaker 03:
Okay.

[00:16:12] Speaker 03:
So this issue is now before the court.

[00:16:15] Speaker 03:
And the question is, who has the power?

[00:16:18] Speaker 03:
Let's assume at the moment that we think Tricare, we think a mistake was made and that there should have been additional reimbursement.

[00:16:30] Speaker 03:
We seem to be in some strange kind of gap as to where the authority lies to instruct that mistake, assume it was a mistake, to be corrected.

[00:16:45] Speaker 00:
His relief is through the Tricare appeals process.

[00:16:50] Speaker 00:
The board never decided whether or not he's entitled to any sort of

[00:16:58] Speaker 00:
payment for any particular procedure.

[00:17:00] Speaker 03:
Was that within their scope?

[00:17:01] Speaker 03:
It seemed to make a good deal of sense.

[00:17:03] Speaker 03:
As the board, they corrected the records.

[00:17:06] Speaker 03:
That's their role in life.

[00:17:07] Speaker 03:
Now we have a different situation.

[00:17:10] Speaker 03:
Now what happens is veterans went to the courts, they were right.

[00:17:15] Speaker 03:
Consider, determine and enforce the consequences having gone through the previous proceedings.

[00:17:22] Speaker 03:
And we seem to be in some sort of limbo as to where that authority lies.

[00:17:29] Speaker 00:
The authority to determine, it would be, he could sue in district court.

[00:17:34] Speaker 00:
It would be like suing your insurance company.

[00:17:37] Speaker 00:
If you say that you're entitled to some sort of coverage under your policy with Aetna or with United, you would ostensibly after exhausting your appeals process, you would sue them in their state or federal court.

[00:17:51] Speaker 03:
But it's a monetary claim against the government.

[00:17:54] Speaker 03:
That's the court of federal claims, not the district court.

[00:17:56] Speaker 00:
It's not a monetary claim against the government.

[00:17:58] Speaker 00:
It would be a claim against the insurance company.

[00:18:01] Speaker 00:
It would be against the insurance provider.

[00:18:03] Speaker 03:
So this veteran gets a straightforward correction of his military records and he's got to go through two separate federal courts.

[00:18:11] Speaker 03:
Who knows what else?

[00:18:14] Speaker 03:
Find representation, take however many years all this takes for what to him

[00:18:21] Speaker 03:
is a significant sum and what, in the reality of federal litigation, one blinks at.

[00:18:29] Speaker 03:
And yet it looks as if the claim may be valid.

[00:18:34] Speaker 03:
What, in fact, surely there's a more straightforward path.

[00:18:40] Speaker 00:
Well, let me show, may I show you in the record what happened?

[00:18:43] Speaker 00:
And I think this is really what was supposed to happen.

[00:18:46] Speaker 00:
If you look at page

[00:18:55] Speaker 00:
If you look at Appendix 575 in the record, what he did is before seeking the surgery, he approached Tricare.

[00:19:04] Speaker 00:
And this is in November of 2007.

[00:19:05] Speaker 00:
This is now 18 months after he separated from the military.

[00:19:09] Speaker 00:
He approached Tricare.

[00:19:10] Speaker 00:
Will you cover this?

[00:19:11] Speaker 00:
Tricare explained to him that they would not authorize him to obtain surgery in Germany.

[00:19:20] Speaker 00:
In consultation with his doctors,

[00:19:23] Speaker 00:
He made an informed decision as a patient that he's going to go to Germany to obtain this medical care.

[00:19:29] Speaker 00:
They don't do, as a general practice, as I understand it, was not FDA approved, or at least that's what's in the record at Appendix 80, according to his timeline, that there was not FDA approval of this procedure that he sought to obtain in Germany.

[00:19:43] Speaker 00:
So he went to Germany and obtained treatment at Senham Hospital.

[00:19:49] Speaker 00:
After he returned,

[00:19:51] Speaker 00:
he filed a claim for Tricare for emergency care.

[00:19:54] Speaker 00:
This is on the following page.

[00:19:55] Speaker 00:
And Tricare denied that claim.

[00:19:58] Speaker 00:
He appealed it.

[00:19:59] Speaker 00:
Tricare denied it again.

[00:20:00] Speaker 00:
He saw reimbursement from the Veterans Administration.

[00:20:07] Speaker 00:
They denied his claim.

[00:20:11] Speaker 00:
His remedy in such a situation would be to pursue either further appeal rights or to

[00:20:20] Speaker 00:
or to file a suit, but that's not what happened.

[00:20:25] Speaker 00:
The insurance company advised him that they were not going to pay for this.

[00:20:29] Speaker 00:
It was outside the scope of his policy.

[00:20:32] Speaker 01:
And outside the scope of the policy that he would have had, had he been a disability retiree?

[00:20:42] Speaker 01:
Absolutely.

[00:20:43] Speaker 01:
Okay.

[00:20:43] Speaker 01:
That seems to me the crucial point.

[00:20:45] Speaker 01:
I think what you keep saying is,

[00:20:47] Speaker 01:
that the exact same policy that he did have is the policy he would have had had he been retired for disability and all therefore that the board had to do was to say you had to have a disability retirement.

[00:21:03] Speaker 01:
The change is a change in premiums but not a change in coverage.

[00:21:09] Speaker 00:
That's right.

[00:21:10] Speaker 01:
Is that your argument?

[00:21:11] Speaker 00:
That is my argument.

[00:21:12] Speaker 00:
He has not received less than other retirees would have received.

[00:21:17] Speaker 00:
He has received everything that he is legally entitled to receive.

[00:21:21] Speaker 00:
The corrections that the appellant has proposed are equitable corrections that he never requested, first of all, to the board.

[00:21:29] Speaker 00:
And their determination of whether or not error and justice exist to implement such corrections, there's no test and standard by which the court can measure whether or not that such a decision was arbitrary and capricious or unlawful.

[00:21:44] Speaker 00:
I mean, these are discretionary corrections made by the board acting on behalf of the secretary, you know, unless there's some sort of procedural violation or something that they did incorrectly here.

[00:21:54] Speaker 00:
I mean, what the board considers to be error and justice, you know, is really it's discretion and they did identify error and justice.

[00:22:02] Speaker 01:
Can I just double check something?

[00:22:04] Speaker 01:
When you say it's discretion, is the consequence of that, that that's not litigable?

[00:22:11] Speaker 01:
through, what was it, the Military Pay Act or some under the Tucker Act?

[00:22:16] Speaker 01:
That's not litigable or just it's reviewable, but it was not reversible or something?

[00:22:24] Speaker 00:
Well, there are portions to the extent it's reviewable.

[00:22:27] Speaker 00:
If the argument is that they misapprehended the scope of their authority, that the board misapprehended the scope of its authority, for instance, that's reviewable.

[00:22:37] Speaker 00:
But as to what constitutes error and justice or full and fitting relief,

[00:22:41] Speaker 00:
There's no metric or benchmark by which this court can measure whether or not the correction he received, the correction he requested, constitutes full and fitting relief.

[00:22:51] Speaker 00:
I think the important point is the one that we just discussed before is what the board did here was operate within the framework in which it exists.

[00:23:02] Speaker 00:
The board corrected his record.

[00:23:03] Speaker 00:
He received checks for back pay.

[00:23:06] Speaker 00:
He receives ongoing checks for disability payments.

[00:23:11] Speaker 00:
He received a correction to the record to show that he's entitled to moving expenses.

[00:23:17] Speaker 00:
With respect to his dental expenses, the record shows that the majority of the dental expenses were incurred after he had the correction received to his record.

[00:23:29] Speaker 00:
And dental said, we will retroactively reimburse you to cover the scope of those 2011 medical dental expenses.

[00:23:40] Speaker 00:
But you have to pay premiums.

[00:23:42] Speaker 00:
You have to pay exactly what did the other retirees pay.

[00:23:45] Speaker 00:
And the record doesn't indicate whether or not he paid that or he decided he elected to obtain coverage through dental dental.

[00:23:52] Speaker 00:
But the point is he is receiving and he received what other retirees similarly situate.

[00:24:00] Speaker 03:
You're telling us that he received what he was entitled to.

[00:24:04] Speaker 03:
He says otherwise.

[00:24:05] Speaker 03:
Where does he have the opportunity

[00:24:09] Speaker 03:
for review of whether, in fact, he received everything that was appropriate.

[00:24:18] Speaker 00:
To the extent there's something monetary that he says, I'm entitled to receive, he would speak to DFAS.

[00:24:26] Speaker 00:
DFAS is the one who, by the regulations cited by both parties and contained in the appellant's brief, 32 CFR 865.1,

[00:24:39] Speaker 00:
DFAS is charged with computing the amounts due.

[00:24:42] Speaker 00:
It's a complex financial calculation given taxes and VA disability payments that Major Adams had received.

[00:24:50] Speaker 03:
It's not... You're arguing the merits to us.

[00:24:53] Speaker 03:
Is it accepted by the government that this path of review was appropriate on the merits, on the substance?

[00:25:01] Speaker 00:
That the boards review and the Court of Federal Claims review?

[00:25:04] Speaker 03:
Everything that's before us that we're debating.

[00:25:07] Speaker 00:
Yes.

[00:25:07] Speaker 00:
Yes, absolutely.

[00:25:08] Speaker 00:
And the one time where we did identify an error in procedure, Major Adams correctly notified us that there was a requirement.

[00:25:18] Speaker 00:
This is in connection with the combat-related special compensation claim, that the board was required to obtain an advisory opinion from the office of the undersecretary.

[00:25:28] Speaker 00:
So we said, you are absolutely right.

[00:25:30] Speaker 00:
And so we sought a remand in order for the board to obtain such an opinion and consider such an opinion.

[00:25:35] Speaker 00:
It considered that opinion.

[00:25:39] Speaker 00:
In this case, the board followed all of the rules it was supposed to follow.

[00:25:42] Speaker 00:
Everything happened the way it was supposed to happen.

[00:25:44] Speaker 04:
Let me ask you this, though.

[00:25:45] Speaker 04:
Full and fair relief, that's what the standard is that the board is supposed to be striving for, correct?

[00:25:52] Speaker 00:
Yes.

[00:25:53] Speaker 04:
Is there anything more that it could have done to make sure that all of these expenses were covered?

[00:26:00] Speaker 04:
Any other correction that could have occurred?

[00:26:03] Speaker 00:
To the extent there's some hypothetical correction that could have occurred,

[00:26:06] Speaker 00:
One, Major Adams didn't say raise it to the board, that he should have been on active duty until 2007.

[00:26:14] Speaker 00:
That's new.

[00:26:16] Speaker 00:
That was never even raised below.

[00:26:17] Speaker 04:
But that's obviously something the board has been doing in the past and could have easily done.

[00:26:24] Speaker 04:
Whether he understood that that was an option for him or not is a different question.

[00:26:28] Speaker 00:
Well, in this case, the board looked at the record, and they determined that the correction that they

[00:26:34] Speaker 00:
provided constituted full and fitting relief.

[00:26:37] Speaker 00:
He made the argument it wasn't full and fitting relief.

[00:26:39] Speaker 00:
He said, given the circumstances, we're reviewing this case on the merits.

[00:26:43] Speaker 00:
You know, change, correcting your record to show, as opposed to a voluntary separation, a disability retirement with TRICARE eligibility, with all of the incidents that you get as a result of a disability retirement.

[00:26:57] Speaker 04:
But the disability retirement now is corrected to show that it occurs before the surgery.

[00:27:02] Speaker 00:
It is, the disability retirement is retroactive to July.

[00:27:05] Speaker 04:
Right, but it could have been done the other way.

[00:27:07] Speaker 00:
What?

[00:27:07] Speaker 04:
It could have been done the other way.

[00:27:11] Speaker 00:
Not necessarily because his argument was that I was not fit for service at the time I was discharged.

[00:27:18] Speaker 00:
So he actually withdrew a prior claim for retroactive pay and promotion because he said I was not fit to serve by the time I retired.

[00:27:28] Speaker 04:
Right, but some of the others that you found not fit to serve you carried over.

[00:27:32] Speaker 04:
on active duty, but on disability leave.

[00:27:38] Speaker 00:
I'm not exactly sure of which particular case we're referring to.

[00:27:43] Speaker 00:
But hypothetically, the board does have broad discretion to correct error and justice.

[00:27:48] Speaker 00:
And the board's make whole power is something that, as to what constitutes full and fitting relief, is something that the board is entrusted to decide.

[00:28:00] Speaker 00:
There's nothing by which this court can really

[00:28:03] Speaker 00:
gauge whether or not the board went far enough without saying, this isn't a case where we say, we're going to medically retire you, but that's it.

[00:28:12] Speaker 00:
We're not going to allow for pay.

[00:28:14] Speaker 00:
That wasn't what happened.

[00:28:15] Speaker 00:
They said, we're going to medically retire you, and you get what you're entitled to receive as a result.

[00:28:20] Speaker 00:
And that's what happened.

[00:28:23] Speaker 00:
So given these circumstances, I see my time is up.

[00:28:28] Speaker 00:
We respectfully request that the court affirm the judgment below.

[00:28:33] Speaker 03:
Thank you, Mr. Lappeen.

[00:28:50] Speaker 02:
Your Honor, would you prefer that I respond to the medical claims?

[00:28:55] Speaker 02:
We haven't touched upon the combat related special compensation issue yet.

[00:28:59] Speaker 02:
Three minutes is a short period of time in which to do so.

[00:29:02] Speaker 04:
What would the court's preference be?

[00:29:04] Speaker 04:
I wasn't clear from your first presentation whether you were continuing to pursue that claim.

[00:29:09] Speaker 02:
Absolutely.

[00:29:11] Speaker 04:
Okay.

[00:29:12] Speaker 04:
And how do you think it is that we can adjust that?

[00:29:16] Speaker 02:
There is a determination that in fact the directive type memorandum, the interpretation of the statute of 1413A by the Department of Defense is erroneous, certainly as it pertains to

[00:29:28] Speaker 02:
the condition of hazardous service and remand that also back to the board and instruct the DOD to reissue guidance on that particular point.

[00:29:37] Speaker 02:
The fundamental, the underlying problem here is one that they impose a direct causation requirement, the DOD does, where the Congress did not.

[00:29:48] Speaker 02:
So they're not entitled to redraft the statute.

[00:29:51] Speaker 02:
Closely related is that it requires that an applicant show that

[00:29:56] Speaker 02:
his or her underlying medical condition was the direct consequence of the hazardous service.

[00:30:05] Speaker 02:
Now that runs contrary to the 1413A Congress incorporated the law in the VA.

[00:30:11] Speaker 02:
not necessarily wholesale, but the definition of disability states that under the combat related special compensation disabilities that are compensable under the VA also may be compensable.

[00:30:24] Speaker 04:
Do you believe we would have to reach the conclusion that their interpretation of 1413A is not a reasonable one?

[00:30:35] Speaker 02:
That would be the best outcome, not just for Major Adams, but for all other applicants, I think, preceding and following, because I think it's plainly inconsistent with the statute as we have explained.

[00:30:47] Speaker 02:
Even if the court were not to go there and just consider the merits of his claim, I think the court could reverse on that as well, because the evidence does show that his condition, his underlying conditions, worsened

[00:31:01] Speaker 02:
After the bathroom fall of 2004, he had a... That's a substantial evidence review that does limit us, right?

[00:31:08] Speaker 02:
Correct, Your Honor.

[00:31:08] Speaker 02:
Correct, Your Honor.

[00:31:10] Speaker 02:
But the evidence is there that contradicts, and I think that outweighs the opinion that was issued by the AFBCMAR medical consultant, because there is no other event to explain the changes in his MRI that occurred.

[00:31:23] Speaker 02:
The board physician conceded

[00:31:27] Speaker 02:
that in fact that flying an aircraft for extended periods of time during a deployment can cause these conditions to happen and can certainly aggravate those conditions to happen.

[00:31:37] Speaker 02:
He did not find that because he said he presented no proof that his underlying medical conditions were the direct result.

[00:31:44] Speaker 02:
That's the improper standard.

[00:31:46] Speaker 02:
So the improper standard that was implied, because think about this, if Congress intended for pre-existing conditions to be included within the scope,

[00:31:55] Speaker 02:
of section 1413A, which it did, because the pre-existing condition that is aggravated to the point of disability is compensable under the law of the VA.

[00:32:04] Speaker 02:
Therefore, it's compensable under 1413A.

[00:32:06] Speaker 02:
If you require an applicant show that his or her injuries are the direct result, not the disability, because the disability is the impairment, as this court well-noticed, there's a distinction between the underlying condition and the disability.

[00:32:21] Speaker 02:
If you're requiring that an applicant show that the underlying condition

[00:32:25] Speaker 02:
was caused by, then no applicant with a preexisting condition or any condition that existed prior to the service in question can prove that.

[00:32:34] Speaker 01:
Well, unless he can prove, and I thought that the board and the court of federal claims both agreed that, um, it would have been enough if he proved that his underlying condition worsened as a result of the, you know,

[00:32:54] Speaker 01:
Was it the hazardous duty or whatever the particular category is, but not that symptoms were flared up as he was doing those things and that it came down to a factual determination, kind of a debate between the two doctors about whether that in fact occurred.

[00:33:16] Speaker 02:
But that's inconsistent with the VA's definition of aggravation.

[00:33:20] Speaker 02:
Aggravation is not aggravation of the underlying medical condition, the disease or injury.

[00:33:25] Speaker 02:
It's an aggravation of the impairment.

[00:33:27] Speaker 02:
It's a worsening of the impairment over time.

[00:33:31] Speaker 02:
So if, you know, it's the same, if you look at the ADA, for example, how it defines a disability, disability is the impairment.

[00:33:39] Speaker 02:
This court has affirmed in Davis v. Principi, the VA's construction, disability is the impairment.

[00:33:45] Speaker 02:
It's not the underlying condition.

[00:33:47] Speaker 02:
I have underlying conditions, but they're not a disability because they don't impede my ability to do my job or my life.

[00:33:54] Speaker 02:
You have lots of service members on active duty with serious medical conditions, but they're not found to be disabled until the manifestations or until they're impaired such that they can no longer perform their duties.

[00:34:05] Speaker 02:
It's a very crucial point to understand.

[00:34:07] Speaker 02:
It's slightly subtle, but the way the DOD has constructed this, you'll see it excludes anybody

[00:34:16] Speaker 02:
but those who incur as a direct result incur the underlying medical condition.

[00:34:21] Speaker 02:
And that is inconsistent with what Congress intended.

[00:34:25] Speaker 02:
I think that, you know, the cardinal rules of statutory interpretation have to be applied to this section.

[00:34:32] Speaker 02:
Congress used the term direct result in relation to a combat caused injury.

[00:34:38] Speaker 02:
It chose not to in relation to hazardous service.

[00:34:41] Speaker 02:
So the court has to conclude that it meant a different standard to be applied.

[00:34:45] Speaker 02:
DTM, the Department of Defense and the Directive Type Memorandum, is applying a direct causation standard where Congress did not authorize it to do so, with the consequence that applicants are excluded.

[00:35:00] Speaker 02:
Going to the factual matter, I certainly strongly disagree with the conclusion of the medical advisor and the district court.

[00:35:08] Speaker 02:
He was not disabled after his bicycle accident in 1997.

[00:35:13] Speaker 02:
He flew for another nine years.

[00:35:16] Speaker 02:
He wasn't disabled after his bathroom fall.

[00:35:19] Speaker 02:
And there's no radiographic or medical evidence concerning his bathroom fall.

[00:35:24] Speaker 02:
But he was disabled after a period of sustained, of numerous deployments, a lot of flying time, both in a deployed environment and in a home environment.

[00:35:34] Speaker 02:
Look at the MRI results, and you see those changes.

[00:35:38] Speaker 02:
They're tracked.

[00:35:40] Speaker 02:
basically the deterioration of his spine.

[00:35:42] Speaker 02:
I don't think it's a reasonable conclusion.

[00:35:45] Speaker 02:
I don't think it was for the board or for the court to say that this was not more likely due to his flying activities as opposed to just the natural progression of the disease.

[00:35:58] Speaker 02:
Okay.

[00:35:58] Speaker 02:
Any more questions?

[00:36:01] Speaker 03:
More questions?

[00:36:05] Speaker 02:
Thank you so much for your time.

[00:36:07] Speaker 03:
Thank you.

[00:36:07] Speaker 03:
Thank you both.

[00:36:08] Speaker 03:
The case is taken under submission.