[00:00:00] Speaker 05:
for argument is 17-25-28 from versus United States.

[00:01:21] Speaker 01:
The first issue that I'd like to dive into is the question of waive arrest and Mr. Brown's shoulder condition.

[00:01:36] Speaker 01:
The trial court below found that

[00:01:42] Speaker 05:
In his findings, it laid out exactly how he... Let me ask you just to cut to the chase.

[00:01:48] Speaker 05:
What is going to happen here if you prevail?

[00:01:53] Speaker 05:
It would be sent back to the Court of Federal Plains because they found it was a waiver.

[00:01:58] Speaker 05:
But even looking at the issue on the merits of the issue, what were you asking for in terms of this?

[00:02:04] Speaker 01:
So it can go in two directions because the ABCMR has broad discretion to grant a wide amount of relief, but also the way the

[00:02:12] Speaker 01:
original application was put forward.

[00:02:15] Speaker 01:
It's framed as a request for review, a medical review board, which is not quite correct terminology.

[00:02:21] Speaker 01:
That's a state proceeding for National Guard soldiers that's out of use, but a return to an evaluation of whether or not he actually meets or met at the time of his separation in 2000 retention standards.

[00:02:37] Speaker 05:
If he gets those retention standards... So you would assume, if you were to prevail at the Court of Federal Plains, the relief you would get would that this is shipped over to the MB4 analysis?

[00:02:52] Speaker 01:
Almost necessarily, Your Honor, because in order to get to the retirement finding that we ultimately want in that compensation, there needs to be a finding of the percentages under the VA schedule that the plaintiff would be entitled to.

[00:03:04] Speaker 01:
And without a lot more fact finding and development of that,

[00:03:07] Speaker 01:
I don't see how it's possible otherwise.

[00:03:09] Speaker 05:
Let me ask you just, because I've been focusing more on the epilepsy, the seizure piece of this than the shoulder piece.

[00:03:14] Speaker 05:
Are there prerequisites to get to the MEB that you have satisfied?

[00:03:19] Speaker 05:
I mean, is that what the others?

[00:03:21] Speaker 05:
I mean, even if the Court of Federal Claims sent it back to the board, would it be automatic it goes to the MEB?

[00:03:28] Speaker 05:
Or is there some predicate to it being sent there?

[00:03:31] Speaker 01:
Well, that's where my colleague and I apparently disagree.

[00:03:36] Speaker 01:
The citations from Army Regulation 40-501, Chapter 3, 3-30i lay out those prerequisites.

[00:03:46] Speaker 01:
Now, the first sort of overarching rule for epilepsy is that seizure disorders and epilepsy.

[00:03:54] Speaker 05:
No, I understand.

[00:03:55] Speaker 05:
I don't want to leave the shoulder.

[00:03:56] Speaker 05:
The shoulder thing is the same thing?

[00:03:59] Speaker 01:
There's a different standard, Your Honor.

[00:04:01] Speaker 05:
OK.

[00:04:02] Speaker 05:
I wanted to stay with the shoulder thing for a moment.

[00:04:04] Speaker 01:
Yes, Your Honor.

[00:04:05] Speaker 01:
the standard for failure for shoulder.

[00:04:08] Speaker 01:
So there's basically, again, there's another section of 40-501 Chapter 3 that deals with limitations of range of motion.

[00:04:17] Speaker 01:
And there's several possible ways you can satisfy failing retention standards.

[00:04:24] Speaker 01:
One is whether it's considered just by the limitation of the range of motion by itself.

[00:04:30] Speaker 05:
And remind me what the board said about this claim, because it dealt with that, sort of.

[00:04:35] Speaker 01:
Well, it referenced the evidence that Mr. Brown submitted.

[00:04:42] Speaker 01:
But in this discussion session, it really didn't.

[00:04:45] Speaker 01:
It just made a conclusory on there is no showing that he fails retention standards.

[00:04:51] Speaker 01:
And that's really part of the problem, is that they did not address that.

[00:04:55] Speaker 01:
So any sort of guessing about that is very difficult to do, because there's no real explanation of why they found what they found.

[00:05:09] Speaker 05:
On the epilepsy aspect, I must admit I'm very confused about what's happening here.

[00:05:19] Speaker 05:
about it would just be, what's the term you use, that it's summarily fashion or whatever, what they use, redundant, and then you argue that the regulations were different.

[00:05:29] Speaker 05:
Well, let's leave those arguments to aside.

[00:05:33] Speaker 05:
Are you saying, what are you saying about why there should have been, you're claiming there should have been an MEB view beyond the neurologist's conclusions, and what is the basis for your arguing that?

[00:05:48] Speaker 01:
That section quoted 3-30i, which has sort of a number of criteria that when you meet, you get that MEB.

[00:06:01] Speaker 01:
So the first thing is seizure disorders in epilepsy are causes for referral to the MEB.

[00:06:07] Speaker 01:
And then it says, OK, but epilepsy is normally referred to the MEB, except if a neurologist reviews it,

[00:06:19] Speaker 01:
decides that, no, we're going to do a trial of medication and a one-year look at this soldier.

[00:06:24] Speaker 01:
And then after that, during that time period, if he has another seizure during that period of review, it automatically goes to the PEB.

[00:06:34] Speaker 05:
And so are you claiming that you fall into that?

[00:06:37] Speaker 01:
Yes, Your Honor.

[00:06:38] Speaker 05:
Because he had another seizure.

[00:06:39] Speaker 01:
Because he had 1996, Your Honor, was when he had that first seizure.

[00:06:43] Speaker 01:
And then when they're looking at it and saying, no, you're good to go in December,

[00:06:47] Speaker 01:
four or five months after he left the army.

[00:06:49] Speaker 01:
They're saying, you're good to go.

[00:06:50] Speaker 01:
It's controlled on medication.

[00:06:51] Speaker 01:
That's four years too late.

[00:06:52] Speaker 01:
He had three or four other seizures in the meantime, dislocated his shoulder, broke his face, falling running.

[00:06:58] Speaker 05:
Yeah, but I thought there was a finding, and I didn't see where you were disputing it, that when he had another seizure,

[00:07:07] Speaker 05:
He had not been taking the dosage of the drug, whatever it is, that he was prescribed.

[00:07:15] Speaker 05:
And therefore, OK, let's fix this up.

[00:07:16] Speaker 05:
And I think after he got on the 300-milligram dosage,

[00:07:21] Speaker 05:
there was no evidence on the record that he had another seizure after that.

[00:07:25] Speaker 05:
So if he's been treated, if once he takes the prescribed dosage, he does not have another seizure, why should he be able to get to the MEB?

[00:07:39] Speaker 01:
What's important is to look at the timelines, Your Honor, because under the view where the 2000 review by the neurologist says, yes, it's controlled on medication, well, that's four years too late.

[00:07:51] Speaker 01:
He had 1996, he was on the medication now.

[00:07:55] Speaker 04:
Is it true though?

[00:07:57] Speaker 04:
One of the questions was you don't dispute that he was taking the wrong amount of medication?

[00:08:06] Speaker 04:
I'm a little confused about the factual facts on that.

[00:08:10] Speaker 01:
I don't dispute that there's

[00:08:13] Speaker 01:
not a lot of evidence about that and nothing to dispute in the administrative record itself, except for by making inferences.

[00:08:22] Speaker 01:
Some of those inferences you can find in the record is that there's, in that finding by, I believe it was Dr. Moss, who said wrong medication, you've got to up it to 300.

[00:08:34] Speaker 01:
And there's a statement that he was confused or wasn't told to go from 100 milligrams to 300 milligrams.

[00:08:41] Speaker 01:
First off, there's no records review.

[00:08:43] Speaker 01:
It says right in that same, I think it's at 243, I want to say.

[00:08:48] Speaker 01:
But it says no records reviewed.

[00:08:52] Speaker 01:
And it's just a reporting of what he says.

[00:08:54] Speaker 05:
Can I ask you, is it your position then that it was not correct that he was taking the incorrect dosage?

[00:09:01] Speaker 05:
100 milligrams was what he had been prescribed, and therefore,

[00:09:05] Speaker 05:
At that point, when he had the second seizure, he should have been sent up to the MEB.

[00:09:12] Speaker 05:
Is that your position?

[00:09:15] Speaker 01:
I don't want to sidestep the direct question, but my position is that the physician had the responsibility to set up the medication program for four years.

[00:09:24] Speaker 01:
He's going to the pharmacy.

[00:09:25] Speaker 01:
He's an Army soldier.

[00:09:26] Speaker 01:
The Army is issuing him the medication.

[00:09:28] Speaker 01:
If they don't know the difference between 100 and 300 milligrams, what are they filling?

[00:09:32] Speaker 01:
Why isn't the follow-up happening?

[00:09:34] Speaker 01:
And it's the physician's neurologist's obligation to be treating this soldier and coming up with a plan and resolving it, looking at it with a one-year review that didn't happen.

[00:09:44] Speaker 01:
So from 1990s.

[00:09:44] Speaker 04:
Is there an allegation that he was being prescribed pills that were only 100?

[00:09:48] Speaker 04:
Is that what you're saying?

[00:09:50] Speaker 01:
I'm saying that on the record.

[00:09:51] Speaker 01:
It's not clear.

[00:09:52] Speaker 01:
My client has expressed some confusion as to the facts of this.

[00:09:57] Speaker 05:
Where did you make that argument in the red brief?

[00:09:59] Speaker 05:
Because I saw it kind of.

[00:10:01] Speaker 05:
touched upon maybe in gray, but I didn't see it in blue.

[00:10:06] Speaker 05:
I'm sorry, in your blue brief.

[00:10:08] Speaker 01:
No, Your Honor.

[00:10:08] Speaker 01:
It was just a response to your question.

[00:10:10] Speaker 01:
The brief.

[00:10:11] Speaker 05:
So what is the allegation that's before our court as to why we should dislodge the conclusion here that they followed the red.

[00:10:24] Speaker 05:
He wasn't taking the right treatment, but they're not responsible for that blinch.

[00:10:29] Speaker 05:
And once he got on the right treatment,

[00:10:31] Speaker 05:
He's fine and no more seizures, so that's OK under the regulations.

[00:10:36] Speaker 05:
If you haven't made that argument, what argument are you making?

[00:10:39] Speaker 01:
Because the use of the wrong regulation, there's just a... So you agree you're not making that argument, you haven't made that argument?

[00:10:47] Speaker 01:
Right, Your Honor, yes.

[00:10:49] Speaker 02:
Can I ask a logistical question?

[00:10:51] Speaker 02:
If I were to agree with you that he did not waive his shoulder claim, doesn't everything go back?

[00:10:57] Speaker 02:
I mean, I don't decide the epilepsy and the right reg, wrong reg, and what impact that may have had on anything.

[00:11:04] Speaker 02:
Is that right?

[00:11:04] Speaker 01:
Yes, Your Honor.

[00:11:05] Speaker 01:
The tenuous code 1216 alpha sub B requires the- Everything to be considered together.

[00:11:13] Speaker 01:
All conditions, whether individually or collectively unfitting,

[00:11:16] Speaker 01:
And so if one condition goes back, it has to be an entire MEB looking at both individually and collectively how the conditions impact his ability.

[00:11:25] Speaker 02:
Is that 10 USC 1216A subsection C or B?

[00:11:28] Speaker 02:
I think it's C. B, Your Honor.

[00:11:29] Speaker 02:
B?

[00:11:33] Speaker 01:
OK.

[00:11:33] Speaker 01:
And I'm into it for a little time, so thank you, Court.

[00:11:35] Speaker 01:
Thank you.

[00:11:45] Speaker 00:
May I please the Court?

[00:11:47] Speaker 00:
To address the seizure issue first, as the discussion a moment ago touched upon, the six-month provision in the regulation, which is paragraph four of the regulation, I believe that Judge Stoll correctly pointed out in the record that once he was put on the correct doses of medication, he was seizure-free.

[00:12:07] Speaker 05:
Well, can I ask you about that?

[00:12:08] Speaker 05:
Can you turn to page 10 of your brief?

[00:12:10] Speaker 00:
Yes, Your Honor.

[00:12:16] Speaker 05:
here and it's not clear to me whether it is or isn't or has been appropriately preserved but if he had been prescribed the 100 milligrams and that's what he'd been prescribed and there was no dispute about that and had another seizure the neurologist wouldn't get a do-over, right?

[00:12:34] Speaker 05:
He would kind of automatically be allowed to move up to the MEB.

[00:12:38] Speaker 05:
Is that correct?

[00:12:39] Speaker 00:
I think if that was after six months, yes.

[00:12:43] Speaker 05:
So a lot of it hinges on whether or not he had been prescribed the right dosage or whether it was based on his own confusion.

[00:12:54] Speaker 05:
So what I look to your brief to like, OK, what are you saying about this?

[00:12:58] Speaker 05:
And it seems what you're saying is at the top of page 10, the neurologist also noted that Mr. Brown apparently misunderstood the proper dosage for the medication.

[00:13:09] Speaker 05:
And then you keep on going with a quote and an insight to a page in the appendix.

[00:13:14] Speaker 05:
I don't see where your citation to the appendix tells us that,

[00:13:19] Speaker 05:
has a notation from the neurologist about him apparently misunderstanding the proper dosage, which seems to me to arguably be a fairly key point.

[00:13:31] Speaker 05:
I mean, the id site is then back to 377 of the appendix.

[00:13:36] Speaker 01:
Yes, Your Honor.

[00:13:38] Speaker 05:
And 377, I may be missing something, but the only thing it says about

[00:13:47] Speaker 05:
The dosage is, however, the patient has been taking only 100 milligrams, claiming that he has never been told to increase it to 300 milligrams.

[00:13:57] Speaker 05:
That's the only reference I see here.

[00:13:59] Speaker 05:
So what we have is the patient saying he's never been told to increase it, and nobody else saying anything else.

[00:14:07] Speaker 05:
So I don't know where you, tell me where you're getting your neurologist noting that he misunderstood.

[00:14:15] Speaker 00:
in our brief, but not directly in this section of the brief, appendix page 515, which is when he was initially put on the medication in August of 1996.

[00:14:27] Speaker 00:
It's handwritten, and it is hard to read this right.

[00:14:30] Speaker 04:
But doesn't it say Dilantin 300 milligrams for three days, then 500-something?

[00:14:37] Speaker 04:
Where does that say take 300 milligrams every day?

[00:14:40] Speaker 04:
It just says for three days, and then there's some

[00:14:44] Speaker 04:
other notation about doing something different for five days.

[00:14:48] Speaker 00:
Yes, Your Honor, it does say that.

[00:14:49] Speaker 05:
And where do you cite this in your brief?

[00:14:54] Speaker 00:
I believe it's in the factual background, which we just addressed when he was first prescribed the medication.

[00:15:03] Speaker 00:
I can find the page if you give me a moment.

[00:15:12] Speaker 00:
Provision of the regulation paragraph four that talks about the six-month period, to sort of focus on that in this context, is that provision talks about the initiation of treatment.

[00:15:29] Speaker 00:
And the record documents that we have available to us, which is all the board had available to it, show that in August

[00:15:38] Speaker 00:
96 when he was first given medication he started off with as as your honor pointed out a 300 milligrams potentially moving up to 500 We don't know exactly what happened over the years between 1996 and when he had a seizure in February of 2000 we only know that as Judge Proust pointed out that he wasn't taking 300 milligrams and the

[00:16:02] Speaker 05:
But as Judge Still pointed out, this says 300 milligrams times three days, then 500 milligrams.

[00:16:13] Speaker 05:
And I don't know what else it says.

[00:16:16] Speaker 05:
And then the level at five days.

[00:16:20] Speaker 05:
So I don't know.

[00:16:24] Speaker 05:
Is that the support for your statement on page 10 that says the neurologist also noted that Mr. Brown apparently misunderstood the proper dosage?

[00:16:36] Speaker 05:
I mean, did the neurologist make a statement?

[00:16:39] Speaker 05:
Is there a statement in the record that he misunderstood?

[00:16:43] Speaker 05:
Because as I said, the site you have only says his saying.

[00:16:47] Speaker 05:
You'd only have 100.

[00:16:49] Speaker 00:
Your Honor, page 377 of the appendix, which you referred us to,

[00:16:54] Speaker 00:
I didn't mean to mischaracterize the evidence, but it seemed like a fair characterization to say misunderstood.

[00:17:03] Speaker 00:
The sentence that I was referring to at page 377 says that, however, the patient has been taking only 100 milligrams, claiming that he had never been told to increase to 300 milligrams.

[00:17:17] Speaker 00:
And given the other evidence... You said from what?

[00:17:21] Speaker 00:
There is an evidence in between.

[00:17:23] Speaker 00:
There's a lot of, I'm taking the evidence that we have as the Corrections Board did.

[00:17:29] Speaker 00:
The Corrections Board, and to really focus on, I think the regulation gives us the answer in this type of situation.

[00:17:36] Speaker 00:
The regulation, and perhaps the best place to look at that is an appendix page 68.

[00:17:45] Speaker 04:
But going back to whether this

[00:17:49] Speaker 04:
statement on page 10 of your red brief is a characterization.

[00:17:55] Speaker 04:
It talks about increasing it.

[00:17:56] Speaker 04:
He didn't know he was supposed to increase it.

[00:17:58] Speaker 04:
How can you rely on his initial treatment, that language that's not even clear and says 300 milligrams for, what, three days followed by something else?

[00:18:10] Speaker 04:
How can you take it that the neurologist noted that Mr. Brown misunderstood?

[00:18:19] Speaker 00:
I think the corrections for it also interpreted it that way, that he should have been taking more medication than he was taking, and that he was mistaken in that regard.

[00:18:30] Speaker 00:
That's all we mean by that.

[00:18:31] Speaker 00:
We don't mean to impute any sort of container.

[00:18:35] Speaker 00:
The reason this matters is it's about whether or not when was the treatment initiated.

[00:18:41] Speaker 00:
That's the initiation of treatment is the language in the regulation.

[00:18:44] Speaker 02:
Is he right, the opposing counsel, correct that 10 U.S.C.

[00:18:48] Speaker 02:
1216 A.B.

[00:18:51] Speaker 02:
requires us to send the whole thing back and not really address the merits of the epilepsy claims and the regulatory issues with the possibly wrong regulation, whether that matters, if we conclude that he did not in fact waive the shoulder issue, and thus it should have been addressed?

[00:19:10] Speaker 00:
If you decide the correction board should look at the entire case again, it will do so.

[00:19:17] Speaker 02:
No, that's not my question.

[00:19:18] Speaker 02:
My question is, if it's true, if he is correct, that the shoulder issue was not waived, doesn't that require us to send the whole thing back to be looked at together?

[00:19:32] Speaker 00:
You're correct.

[00:19:33] Speaker 00:
The statute requires the corrections board to look at.

[00:19:37] Speaker 00:
Before I move to the waiver issue, just one last

[00:19:41] Speaker 00:
reference to the regulation regarding the seizure.

[00:19:46] Speaker 00:
Paragraph four we focused on, which is the six-month issue.

[00:19:49] Speaker 00:
Other provisions in that regulation provide some context.

[00:19:55] Speaker 00:
It talks about in paragraph five, if a seizure should recur during a later attempt to withdraw medication, then the decision to refer to a P.E.B.

[00:20:07] Speaker 00:
is at the discretion of the physician or of the M.E.B.

[00:20:11] Speaker 00:
Also, there's in paragraph 6 of that regulation some language about if a soldier remains seizure-free for 36 months.

[00:20:22] Speaker 04:
Can I ask you about another document?

[00:20:24] Speaker 04:
It's in the appendix at page 324.

[00:20:28] Speaker 04:
This one's dated 1999.

[00:20:31] Speaker 04:
So it's like over three years after that original 1996 document we're relying on

[00:20:38] Speaker 04:
purportedly showing prescription of 300 milligrams.

[00:20:42] Speaker 04:
This document, this page at 324, dated August 1999, seems to, at the bottom you see it says something like, the Lantin 300 milligrams, now 300 milligrams tonight, 300 milligrams tomorrow, something like that.

[00:20:58] Speaker 04:
It looks like maybe it's a new prescription, I don't know.

[00:21:01] Speaker 04:
But that, this document seems to be a little bit before the

[00:21:06] Speaker 04:
neurologist report that is dated 2000.

[00:21:10] Speaker 04:
So have you considered this and what this is saying here?

[00:21:13] Speaker 04:
And whether this is changing his prescription?

[00:21:17] Speaker 00:
It seems to be another indication that he should have been taking 300 milligrams and wasn't for whatever reason, whether it was a misunderstanding or a failure to communicate.

[00:21:26] Speaker 04:
Or is this a new prescription?

[00:21:28] Speaker 04:
I mean, how do you know that this means that he should have known

[00:21:33] Speaker 03:
Or should have been given, or that he was given, let me straighten that out, that he was given 300 milligrams per day as early as 1996 for the initial treatment.

[00:21:43] Speaker 00:
It's not clear that it's a new prescription or not.

[00:21:46] Speaker 00:
I can't, as your honor is unable to conclude, as I am also unable to conclude.

[00:21:54] Speaker 00:
Ultimately, we know that once he was taking the 300 milligrams, once he was actually taking it, because even if your honor

[00:22:03] Speaker 00:
If that wasn't, let's assume it was a new prescription then.

[00:22:05] Speaker 00:
It appears that he didn't take the prescription as prescribed several months later when he had his seizure.

[00:22:13] Speaker 00:
In February of 2000, it was discovered that he had been taking 100, which I think the document you just showed me was in late 1999, so several months before.

[00:22:24] Speaker 00:
So that's our position on this specific issue, is that for the seizure, that once he was treated,

[00:22:31] Speaker 00:
Once he was following the treatment, once the treatment was initiated, which is the language in the regulation, he was seizure free.

[00:22:37] Speaker 00:
And that documents in the record demonstrate that.

[00:22:41] Speaker 00:
So that's the position of the government on the seizure issue is that once the treatment had been initiated.

[00:22:47] Speaker 05:
But if, in fact, he had been prescribed 100,

[00:22:51] Speaker 05:
And then he had another seizure.

[00:22:54] Speaker 05:
Under my reading of the regulation, he gets to go move up to the MEB.

[00:22:59] Speaker 05:
The doctor, if it's four months later, the neurologist doesn't, I mean, the whole point of this is that the neurologist doesn't get to continually experiment on the correct dosage.

[00:23:10] Speaker 05:
You get kind of one try.

[00:23:13] Speaker 05:
And if that doesn't work, you move you up to the MEB, right?

[00:23:17] Speaker 00:
There is a period of where there's a trial and error period

[00:23:21] Speaker 00:
contemplated in the regulations and after yes after that periods over you should be referred this is an important point also the Corrections Board the Barnett case which is cited in our brief states that the Corrections Board essentially if a service member doesn't have an M.A.B.

[00:23:39] Speaker 00:
or P.E.B.

[00:23:40] Speaker 00:
that the Corrections Board can give that service member the review that a P.E.B.

[00:23:45] Speaker 00:
would have provided and it could take the place of the P.E.B.

[00:23:48] Speaker 00:
so here

[00:23:49] Speaker 00:
When Mr. Brown went to the Corrections Board, the Corrections Board considered all the evidence that was presented to it, all the medical records that were provided, cited that he was fit for duty at the time that he had been separated, which was several years or 13 years before, because this Corrections Board process didn't start for about 13 years after the service ended.

[00:24:11] Speaker 00:
So we know that he was given this review by the Corrections Board, which is

[00:24:15] Speaker 00:
essentially what he would have gotten from a PEB initially.

[00:24:21] Speaker 00:
Barnett tells us that.

[00:24:23] Speaker 00:
We also know that this court reviews these decisions de novo.

[00:24:26] Speaker 00:
And so we think the trial court is correct.

[00:24:29] Speaker 00:
And we think even if you have a different basis upon which you would want to rule from the trial court based upon the record, of course, under the law, you can do that as long as the record supports such a basis, because this is de novo review.

[00:24:43] Speaker 00:
And there is no evidence in the record here, as the trial court correctly observed, to show that he's unfit for duty.

[00:24:51] Speaker 00:
And ultimately, the fitness question is what is at issue.

[00:24:56] Speaker 00:
Because if he's fit for duty, he is not entitled to disability compensation.

[00:25:04] Speaker 00:
So the Corrections Board made that determination.

[00:25:07] Speaker 00:
And as to the shoulder,

[00:25:09] Speaker 00:
Our position is that the Corrections Board addressed that issue to the extent it was raised by Mr. Brown.

[00:25:15] Speaker 00:
He didn't raise it as a separate basis for unfitness.

[00:25:18] Speaker 00:
It was raised in the context of this case.

[00:25:21] Speaker 00:
But he focused on his petitions to the Corrections Board, and he filed three petitions to the Corrections Board.

[00:25:27] Speaker 00:
All of them focused on the seizure condition, and to the extent the shoulder condition was referenced, it was a secondary point.

[00:25:34] Speaker 00:
the ultimate decision of the Corrections Board on reconsideration.

[00:25:37] Speaker 00:
It addressed the shoulder condition and discussed it at some length and decided that within the profiles, the limitations of his duty that were given to him because of his various conditions that he was fit for duty.

[00:25:50] Speaker 00:
And that's a decision that the Army is afforded deference for that decision, as the cases say.

[00:26:01] Speaker 02:
I'm sorry.

[00:26:02] Speaker 02:
Just to clarify, what is the standard you think that we use to determine whether or not there was waiver?

[00:26:08] Speaker 02:
Do you think that's a question of fact or law?

[00:26:11] Speaker 02:
And what is the appropriate standard of review that you believe we ought to apply?

[00:26:19] Speaker 00:
For waiver, the trial court decision on that, it would be an abusive discretion standard, I believe, Your Honor.

[00:26:31] Speaker 00:
Here I get the waiver issue I think is not as important because ultimately the Corrections Board addressed all the claims that were presented to it and it discussed the shoulder.

[00:26:46] Speaker 00:
It didn't assess it at length like it did the seizure.

[00:26:49] Speaker 05:
This is what kind of annoys me and I want to see if you think it's fair to be ignored.

[00:26:55] Speaker 05:
You're basing the waiver argument, as I understand it, it has to be based on the fact

[00:27:01] Speaker 05:
He never raised it at the board.

[00:27:04] Speaker 05:
So you're trying to have it both ways.

[00:27:06] Speaker 05:
He waived it because if he had raised it appropriately at the board, then there would be no waiver.

[00:27:12] Speaker 05:
So you're arguing, well, in the alternative, one, it was waived.

[00:27:18] Speaker 05:
But even if it wasn't waived, they dealt with it.

[00:27:21] Speaker 05:
I don't know that it seems right for you to get to have these alternative arguments presented.

[00:27:27] Speaker 00:
I understand your frustration.

[00:27:30] Speaker 00:
I think this case from the beginning, there were a lot of different claims.

[00:27:33] Speaker 00:
And over time, they've

[00:27:34] Speaker 00:
So many of them have fallen off.

[00:27:37] Speaker 00:
And so there was a hernia claim at the trial court that was deemed waived that wasn't raised here.

[00:27:42] Speaker 00:
There were other claims at the trial court that he withdrew.

[00:27:45] Speaker 05:
Right, I understand that.

[00:27:47] Speaker 05:
I mean, is the government's position that he raised it at the board and the board dealt with it and they want us to affirm on it instead about it?

[00:27:56] Speaker 00:
I don't mean to waffle it.

[00:27:57] Speaker 00:
I guess to the extent he raised his shoulder in his filings with the board, the board addressed his shoulder.

[00:28:02] Speaker 00:
at some, to some degree, whether it's squarely addressed that whether or not the shore could provide by itself.

[00:28:11] Speaker 05:
We can't possibly affirm that if it was a merits determination, because the trial court said it was waived.

[00:28:17] Speaker 05:
So she didn't deal with it at all.

[00:28:19] Speaker 05:
So when a minimum under that theory, we'd still have to send it back to the court of claims, right?

[00:28:24] Speaker 05:
Or she found waiver.

[00:28:27] Speaker 05:
Right?

[00:28:28] Speaker 00:
If you think that he didn't waive this claim, I suppose that is true.

[00:28:33] Speaker 04:
On page 132 of the appendix, it refers to seizures requiring surgeries.

[00:28:46] Speaker 04:
Do you know what those surgeries are?

[00:28:47] Speaker 04:
Does it have to do with the shoulder at all?

[00:28:49] Speaker 00:
That's my understanding, yes.

[00:28:51] Speaker 04:
It's a shoulder surgery.

[00:28:52] Speaker 00:
Yes.

[00:28:53] Speaker 00:
I believe his first shoulder dislocation occurred from a seizure.

[00:28:57] Speaker 04:
And that's in the application for correction of military record.

[00:29:01] Speaker 04:
I think it's maybe one of them, one of the applications.

[00:29:28] Speaker 01:
If I may, I just want to address the appendix 324, the question as to whether or not that document is a new prescription or not.

[00:29:37] Speaker 01:
I point out to the court that that's the emergency care and treatment record from when he fell and hit his face on the surgery for seizure.

[00:29:46] Speaker 01:
And at the bottom, it says instructions to patient dated that date.

[00:29:51] Speaker 01:
So to me, that suggests strongly that that's a new direction as to what

[00:29:56] Speaker 01:
what medication to take.

[00:29:57] Speaker 01:
And it's also from Dr. Pobliars, the neurologist at the bottom, who's directing that from the emergency department after he fell.

[00:30:05] Speaker 05:
Is that the same neurologist that's on the other document or no?

[00:30:08] Speaker 01:
No, Your Honor, different.

[00:30:11] Speaker 01:
I believe that the second one clearing him was Lieutenant Colonel Moss, I believe.

[00:30:17] Speaker 01:
My colleague raises the point of the trial court's finding that Mr. Brown never showed that he was unfit.

[00:30:26] Speaker 01:
And there's a really important distinction here between unfitness and fails retention standards.

[00:30:31] Speaker 01:
Failing retention standards is what gets you to the MEB.

[00:30:35] Speaker 01:
The MEB, once it convenes, looks at your conditions and basically documents them to be forwarded to the PEB.

[00:30:44] Speaker 01:
Now, the PEB is the agency that does the unfitness determination.

[00:30:50] Speaker 01:
So Mr. Brown wasn't asking for an unfit finding.

[00:30:53] Speaker 01:
He was asking for a medical review

[00:30:56] Speaker 01:
or an MEB.

[00:30:57] Speaker 01:
So the idea that he didn't show that he was unfit just really doesn't gel or fit into the applications.

[00:31:07] Speaker 01:
And just then briefly on the shoulders not being raised as being unfit, he talked about he couldn't do push-ups

[00:31:21] Speaker 01:
He couldn't do any overhead work.

[00:31:23] Speaker 01:
This is a soldier who's an E6 squad leader in the Army with communications gear, which involves putting up antennas, lifting, it's physical work.

[00:31:34] Speaker 01:
So that by itself does actually indicate both failing retention standards, but also is an indication of unfitness.

[00:31:41] Speaker 01:
Because if you can't lift things up as a communication sergeant,

[00:31:46] Speaker 01:
you're going to be unfit.

[00:31:48] Speaker 01:
And just to address exactly the unfit, that's from Army Regulation 635-40, which is the question of reasonableness of the ability to perform the duties expected of a soldier of that grade, rank, rating, or office, which basically means you're ranking what job you have in the military.

[00:32:06] Speaker 01:
So you can have these MEB conditions that are just a laundry list and applies to every soldier.

[00:32:13] Speaker 01:
But when you get over to the PEB,

[00:32:14] Speaker 01:
It really depends on your job, because if you're an admin soldier and you're in the office doing admin work all day, well, that's a different degree of physical requirements than an infantry soldier in the field running with a ruck and a rifle and doing all kinds of physical activity.

[00:32:30] Speaker 01:
Ms.

[00:32:31] Speaker 01:
Cora, is there any more questions?

[00:32:33] Speaker 01:
Thank you.