From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) Title 10 U.S.C. 1552 (b) U.S. Court of Federal Claims remand order of 8 July 2020 Encl: (1) Petitioner Memorandum of 24 July 2020 (2) Senior Medical Advisor CORB letter 1910 CORB: 002 of 3 August 2020 (3) Director CORB letter 1910 CORB: 001 of 4 August 2020 (3) Petitioner response to advisory opinion of 4 September 2020 1. Pursuant to references (a) and (b), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to place him on the disability retirement list by adding Traumatic Brain Injury (TBI) to his Physical Evaluation Board findings as an additional unfitting condition. 2. The Board reviewed Petitioner’s allegations of error and injustice on 10 September 2020 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 available under existing law and regulations within the Department of the Navy. b. A review of Petitioner’s record shows he entered active duty with the Navy in October 2016. While in Basic Underwater Demolition/SEAL training, Petitioner suffered a severe head injury after being struck by a classmate and striking his head on concrete after a fall. He was diagnosed with a temporal bone fracture, subarachnoid bleed, and cerebral contusion that required Petitioner to be placed in a comatose state as part of his treatment. As a result of his brain injury, Petitioner suffered behavioral and cognitive impairments that required extensive therapy and neurological management over a period of approximately 10 months. c. Over the course of his treatment, Petitioner slowly began to recover physically and cognitively. By May 2018, he was performing strenuous physical activities without symptoms and completed speech therapy. However, he continued to suffer from partial Anosmia as a result of his brain injury. Eventually, a medical board referred Petitioner to the Physical Evaluation Board (PEB) for TBI and Anosmia in October 2018. The medical board report documented that Petitioner’s TBI would never heal but that he suffered no neurological deficits other than his loss of smell. Petitioner’s non-medical assessment concluded that Petitioner required assistance to complete medical appointments and should not be assigned to assignments in high-risk environments including ships. d. In 22 January 2019, the PEB found Petitioner unfit for Anosmia with TBI as a related diagnosis. He was assigned a 0% disability rating based on a proposed Department of Veterans Affairs (VA) rating issued on 28 December 2018. The VA also proposed a rating of 70% for Petitioner’s TBI. Petitioner requested a formal hearing to contest the PEB findings. On 2 April 2019, the PEB conducted a formal hearing and concluded Petitioner’s TBI was not separately unfitting and affirmed that his Anosmia was unfitting. Petitioner subsequently filed a Petition for Relief that was denied by Director, Secretary of the Navy Council of Review Boards. e. Petitioner filed suit in U.S. Court of Federal Claims on 3 March 2020 alleging the PEB failed to properly apply the criteria for unfitness contained in Department of Defense Instruction (DODI) 1332.18. Based on a request for a voluntary remand, the court remanded the case to this Board to consider all three criteria for unfitness contained in DODI 1332.18 and to determine whether Petitioner is entitled to disability retirement benefits. See reference (b). f. In enclosures (2) and (3), the office with cognizance over Petitioner’s request to be placed on the disability retirement list provided an advisory opinion recommending denial of Petitioner’s requests to be placed on the disability retirement list. The opinion points out that Petitioner’s medical providers limited his assignments to specialized assignments and that his TBI was not, otherwise, sufficiently impairing to merit a finding of unfitness. g. In enclosure (4), Petitioner provided a rebuttal response to the advisory opinion. In his response, Petitioner argues that the advisory opinions fail to properly address the court’s order to consider and address the unfitness criteria in DODI 1332.18. Additionally, the response alleges the advisory opinion applies an improper legal standard and fails to reconcile medical evidence that contradicts its conclusions. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting the following corrective action. The Board concluded the preponderance of the evidence supports a finding that Petitioner was unfit for continued naval service at the time of his discharge from the Navy due to his TBI in addition to his Anosmia. The Board applied the criteria contained in DODI 1332.18 in determining that Petitioner was unfit for continued naval service due to his TBI. DODI 1332.18 provides the following criteria to determine whether a service member is unfit: The Service member, due to disability, is unable to reasonably perform duties of his or her office, grade, rank, or rating, including those during a remaining period of Reserve obligation; The Service member’s disability represents a decided medical risk to the health of the member or to the welfare or safety of other members; or The Service member’s disability imposes unreasonable requirements on the military to maintain or protect the Service member. In applying the criteria, the Board conclude that despite evidence that Petitioner could likely reasonably perform the duties of a Seaman under certain circumstances, his TBI condition represented a decided medical risk to Petitioner’s health and it would impose unreasonable requirements on the military to protect Petitioner from future injury. The Board relied on the medical board report and non-medical assessment that determined Petitioner was at continued risk of future injury due to his TBI and that his structural brain injury would never heal. In the Board’s opinion, the potential risk associated with working in a military environment with brain injury that would never heal was “a decided medical risk to health” of Petitioner that met the requirements of unfitness under DODI 1332.18. Additionally, while the Navy could possibly accommodate Petitioner in a safe environment in an attempt to protect him from future TBI, the Board concluded such an accommodation would be too onerous and unreasonable in light of the fragile and dangerous nature of Petitioner’s brain injury. Based on the Board finding that Petitioner’s TBI was unfitting, they determined his condition should be assigned a disability rating of 70% based on the proposed VA rating issued on 28 December 2018. The assignment of the proposed 70% disability rating was determined to be consistent with existing Integrated Disability Evaluation System procedures. When combined with his 0% rating for his Anosmia condition, the Board concluded placement on the disability retirement list with a combined 70% rating was appropriate. However, in reviewing the medical evidence, the Board did not feel Petitioner’s TBI was stable based on medical evidence that documented his continuous and significant cognitive and physical improvements from the date of the TBI injury until his discharge from the Navy. Additionally, the Board noted that Petitioner’s Anosmia condition was also determined to be unstable. Therefore, they decided the preponderance of the evidence supports placing Petitioner retroactively on the Temporary Disability Retirement list in order for the Navy to conduct a periodic physical examination and allow the PEB to issue a final adjudication based on a current medical examination of Petitioner’s unfitting disability conditions. RECOMMENDATION: That Petitioner’s naval record be corrected, where appropriate, to show that Petitioner was placed on the TDLR for TBI with Moderate Cognitive Impairment and Unspecified Anxiety Disorder, VASRD 9304-8045 at 70%, and Anosmia, VASRD 6275 at 0%, with an effective date of 28 September 2019. Petitioner’s disability conditions did not result from a combat-related injury as defined by Title 26, U.S. Code, Section 104(b)(3). Petitioner will also be directed to undergo a physical examination and have the Physical Evaluation Board make a final determination of his disability status in accordance with Title 10, U.S. Code, Section 1210. All due process rights associated with the Disability Evaluation System will be afforded to the Petitioner as part of the Physical Evaluation Board review. Petitioner will be issued a new DD Form 214 consistent with this change. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that 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. 5. The foregoing action of the Board is submitted for your review and action.