IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230000511 APPLICANT REQUESTS: through counsel, duty-related physical disability retirement with a disability rating of 75 percent. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s two letters * Table of Contents * Counsel’s Brief/Continuation Sheet to DD Form 149 * Appendix * Counsel’s second Brief/Supplement to Application * eight DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Standard Form 600 (Chronological Record of Medical Care), 15 September 2014 * numerous pages of Hartford Healthcare Records, 9 May 2019 – 17 June 2019 * Dr. Initial Office Consultation Note, 17 June 2019 * Dr. Follow-Up Note, 27 June 2019 * numerous pages of Progress Notes, December 2019 – July 2021 * multiple DA Forms 2173 (Statement of Medical Examination) * DA Form 5016 (Chronological Statement of Retirement Points), 15 July 2020 * two witness statements * two Department of Veterans Affairs (VA) Rating Decisions * U.S. Army Reserve Command (USAR) memorandum, Subject: Non-Duty Related Condition, Notification of Medical Disqualification, 15 July 2020 * Statement of Understanding and Election of Options, Acknowledgement of Notification of Medical Unfitness for Retention, 19 August 2020 * USAR memorandum for Commander, U.S. Army Physical Disability Agency (USAPDA), 19 March 2021 * DA Form 199 (Informal Physical Evaluation Board (IPEB) Proceedings, 12 April 2021 * Soldiers’ Medical Evaluation Board (MEB) Counsel Office memorandum, Subject: Written Appeal of IPEB Decision and Request for Formal PEB, 22 April 2021 * USAPDA memorandum, Subject: Appeal Response of Informal PEB Proceedings, 12 May 2021 * email correspondence, October 2021 * Soldiers’ PEB Counsel memorandum, Subject: Revised Official Contention Regarding [the applicant] for Formal PEB Hearing, 20 October 2021 * partial Transcript of Formal Physical Evaluation Board (PEB) Hearing, 8 November 2021 * U.S. Army Human Resources Command (AHRC), Director, Casualty and Mortuary Affairs Operations Division memorandum, Subject: Line of Duty (LOD) Advisory Opinion, 13 January 2022 * DA Form 199-1 (Formal PEB Proceedings), 20 January 2022 * Soldier’s PEB Counsel memorandum, Subject: Appeal of Formal PEB Decision and Request for Reconsideration, 4 February 2022 * email correspondence, February 2022 * USAPDA memorandum, Subject: Rebuttal to PEB Findings, 14 February 2022 * Headquarters, 99th Readiness Division (USAR) Orders 22-073-00030, 14 March 2022 * medical opinion, 28 June 2022 * Dr. ’s Curriculum Vitae * Dr. medical opinion, 30 September 2022 * Dr.’s Curriculum Vitae * medical article, “The Phenomenology of Pain in Parkinson’s Disease” * medical article, Fine Particle Exposure and Clinical Aggravation in Neurodegenerative Diseases in New York State” * medical article “Long-term Effects of PM 2.5 on Neurological Disorders in the American Medicare Population: a Longitudinal Cohort Study” * Scientific Reports article, “Short-term Air Pollution Exposure Aggravates Parkinson’s Disease in a Population-Based Cohort” * Institute of Medicine of the National Academies publication, Health Conditions Identified by the Camp Lejeune Legislation” * JAMA Neurology article, “Risk of Parkinson Disease Among Service Members at Marine Corps Base Camp Lejeune * Proposed Rules, VA, 38 CFR Part 3, Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, Proposed Rule, 9 September 2016 * Rules and Regulations, VA, 38 CFR Part 3, Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, Final Rule, 13 January 2017 * VA Training Letter 10-03, Environmental Hazards in Iraq, Afghanistan, and Other Military Installations, including Fact Sheets, 26 April 2020 * Rules and Regulations, VA, 38 CFR Part 3, Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter, Interim final rule, 5 August 2021 * Rules and Regulations, VA, 38 CFR Part 3, Presumptive Service Connection for Respiratory Conditions Due to Exposure to Fine Particulate Matter, Interim final rule, 26 April 2022 FACTS: 1. Counsel states: a. The applicant requests correction of his military records to reflect his placement on the Army’s Permanent Disability Retired List (PDRL) in the rank/grade of Colonel (COL)/O-6, with a disability rating of 75 percent (based on his combined VA Rating of 100 percent for Parkinson’s disease and secondary anxiety disorder), effective 14 February 2022, the date his PEB appeal was denied. He also requests the orders transferring him to the Retired Reserve effective 1 April 2022 be vacated and that the Board direct the Defense Finance and Accounting Service (DFAS) to pay him all disability retired pay or other benefits retroactively and prospectively to which he is entitled. b. The PEB’s decision and the AHRC advisory opinion on which it was based were erroneous because each failed to properly consider the evidence establishing the applicant’s Parkinson’s disease was incurred or aggravated during periods of active duty in excess of 30 days, including the conclusion of VA neurologist in his VA medical records that his Parkinson’s disease caused by his active duty exposure to the contaminated water supply at Camp Lejeune in 1987. c. Two expert medical opinions now conclude that the following is more likely than not: (1) The applicant’s Parkinson’s disease was caused by his exposure to trichloroethylene at Camp Lejeune in 1987 and by his exposure to Agent Orange at Fort McClellan, Alabama in 1990 to 1991, and 1996, (2) his Parkinson’s disease initially manifested on active duty in 2013 and 2014 as left biceps pain, and (3) his Parkinson’s disease was aggravated by active duty service in Iraq (in 2008, 2009, 2011 to 2012) and Djibouti (in 2012 to 2013) through his exposure to fine particulate matter (PM 2.5) from the smoke of open burn pits and other sources. d. Alternatively, the applicant is entitled to full relief under Title 10 U.S. Code, section 1204, because his Parkinson’s disease manifested and was incurred when he was performing inactive duty training in 2019. e. The applicant respectfully requests that the Army Board for Correction of Military Records (ABCMR) correct his military records to remedy a material error or injustice arising from the erroneous determination by a PEB that his unfitting Parkinson’s disease was not duty-related and not compensable. f. In April 2019, the applicant was a member of the Selected Reserve assigned to a USAR Troop Program Unit (TPU),when he manifested the symptoms of Parkinson's disease, including the slowness of movement known as bradykinesia, while performing Inactive Duty Training (IDT). The applicant’s unit commander ordered him to see a medical provider, which resulted in being diagnosed with Parkinson's disease in May 2019. In July 2020, the Army Reserve Medical Management Center (ARMMC) referred the applicant to a non-duty related PEB asserting that there was "not enough evidence" to support a link between his Parkinson's disease and a period of active duty. g. At a hearing before a Formal PEB (FPEB) on 8 November 2021, the applicant presented evidence that his Parkinson's disease was incurred during a period of active duty as an enlisted member of the U.S. Marine Corps Reserve as a result of his exposure to the contaminated water supply at Camp Lejeune, North Carolina in 1987. He showed that in 2019 and 2020, the VA had determined his Parkinson's disease and secondary anxiety disorder were service connected due to the exposure consistent with a VA regulatory presumption relating to Camp Lejeune's toxic water, and had evaluated him with a 100 percent disability. The applicant also presented evidence that left biceps pain and stiffness with which he presented during successive active duty periods in 2013 to 2014, were manifestations of his Parkinson's disease linked to active duty. In addition, although never considered by the PEB, the applicant’s attending VA neurologist concluded in his VA medical records in 2019, 2020, and 2021 that there was a likely causal nexus between the applicant’s exposure to the contaminated water at Camp Lejeune and the incurrence or aggravation of his Parkinson's disease. h. The applicant's evidence was sufficiently persuasive to cause the FPEB to question the propriety of his referral to a non-duty related PEB. As required by Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation), the PEB sought an LOD advisory opinion from AHRC, explaining the reasons for the request as the applicant’s exposure to contaminated water at Camp Lejeune when on active duty and the belief that the biceps pain he experienced on active duty was consistent with bradykinesia, which the PEB noted "is present at the onset of Parkinson's disease in approximately 80 percent of patients." On 13 January 2022, AHRC concluded that the applicant’s Parkinson's disease was not incurred or aggravated by military service and that his cases should be processed as non-duty related. A HRC discounted the applicant’s left biceps pain in 2014, by speculating that it was ''possibly due to ongoing weight lifting " AHRC dismissed the relevance of the VA Rating Decision, stating that ''Veterans Affairs provided [the applicant] with a presumed diagnosis, but that is not indicative of a specific cause of a disease process or service aggravation." However, AHRC erroneously failed to consider the most probative evidence of causation staring it in the face; the applicant’s VA medical records in which his attending VA neurologist had repeatedly concluded that his Parkinson's disease was likely caused by his exposure to toxins in the contaminated water supply at Camp Lejeune. AHRC also failed to consider the multiple VA and private medical entries that showed a continuity of symptoms with his left biceps pain in 2013 and 2014 and his bradykinesia and left extremity issues in 2019 upon his diagnosis with Parkinson's disease. As it is required to do by Army Regulation 635-40, the PEB adhered to AHRC's advisory opinion and found the applicant’s Parkinson's disease to be unfitting, but not compensable as it was found not duty-related. The applicant was medically separated and transferred to the Retired Reserve effective 1 April 1 2022, with eligibility for Reserve retired pay at age 60. i. The PEB's decision, and the AHRC advisory opinion on which it was based, were erroneous because each failed properly to consider the evidence establishing that the applicant’s Parkinson's disease was incurred and/or aggravated during periods of active duty more than 30 days. Both the PEB and AHRC failed to consider the direct medical evidence reflected in the applicant’s medical records that his attending neurologist had concluded his Parkinson 's disease was caused by his exposure to the toxins in the contaminated water supply at Camp Lejeune in 1987. This was the very evidence of causation AHRC claimed was significant, but was lacking with the VA presumption of service connection arising from Parkinson's disease and Camp Lejeune. The AHRC advisory opinion as improperly speculative when it concluded that the left biceps pain the applicant manifested on active duty in 2013 and 2014, was ''possibly due to ongoing weight lifting," speculation which is prohibited by Army Regulation 635-40 and that was belied by the objective evidence of service connection reflected in the continuity of symptoms of the left biceps stiffness in 2013/2014, and the left arm and shoulder symptoms observed in 2019, when the applicant was diagnosed with Parkinson's disease. j. The applicant has now obtained the expert medical opinions of two eminent physicians supporting his position that his Parkinson's disease was duty related. The expert opinions further demonstrate that the decision of the PEB, and the AHRC advisory opinion upon which the PEB decision was based, constituted a material error or an injustice. Dr. , a board-certified neurologist concludes that the applicant’s development of Parkinson’s disease was more likely than not caused by his exposure to trichloroethylene (TCE) at Camp Lejeune in 1987, and by his exposure to Agent Orange at Fort McClellan, Alabama, in 1990 to 1991, and 1996. Dr., board certified in internal medicine, concludes that it is more likely than not that the applicant’s left bicep pain in 2013 and 2014, when he was on active duty, was an initial manifestation of his Parkinson's disease. Dr. also concludes that it is more likely than not that the applicant’s Parkinson's disease was aggravated during periods of active duty service in Iraq (2008 to 2009, 2011 to 2012) and Djibouti (2012 to 2013), that is, the condition was made worse over and above the natural progression of the condition (including a more rapid progression) absent that service, through his exposure to fine particulate matter (PM2.5) from the smoke of open burn pits as well as sand, dust, and other contaminants. The expert medical opinions of Dr. and Dr., together with the evidence the applicant presented to the PEB, but which was wrongfully discounted by AHRC and the PEB, demonstrate that a preponderance of the evidence supports the conclusion that the applicant’s Parkinson disease was incurred or aggravated during periods of active duty more than 30 days. k. Even if the ABCMR mistakenly should conclude that there is insufficient evidence of a material error or injustice with regard to the PEB's determination that the applicant’s Parkinson's disease was neither incurred nor aggravated during periods of active duty more than 30 days, he nevertheless remains entitled to full relief under Title 10 U.S. Code, section 124, because his Parkinson's disease manifested during IDT and thus was incurred or aggravated in the LOD while performing that IDT. Both the PEB and AHRC claimed that purportedly was no evidence that the applicant’s Parkinson’s disease manifested during periods of active duty, so his disability was non- compensable. The period of time during which the symptoms of the applicant’s Parkinson’s disease manifested was considered dispositive by the PEB and AHRC, as each pointed to the purported lack of any evidence that any such manifestation occurred during or was caused by active duty service. That being the case, the PEB and AHRC were obligated, but erroneously failed to consider the IDT side of the manifestation coin. The evidence is undisputed that the applicant presented with or manifested the symptoms of Parkinson's disease, including bradykinesia, in April 2019 while performing IDT to such a degree that his commander ordered him to consult with a medical provider to obtain medical clearance. That makes his Parkinson's a compensable disability under Title 10 U.S. Code, section 1204. l. The applicant began his military career by enlisting in the United States Marine Corps Reserve and serving on an initial tour of active duty between 13 May 1987 and 17 September 1987. Appendix (Appx) 151. After completing boot camp at Parris Island, South Carolina, the applicant traveled to Camp Lejeune, Nort Carolina for the Basic Landing Support Specialist Course, a course of instruction equivalent to that provided by Army Advanced Individual Training (Appx 16). As reflected on NAVMC 118(3), Chronological Record, the applicant attended the advanced training course at Camp Lejeune between 14 August 1987 and 16 September 1987 .("STUD/LND SPT SPL CRS - 870814 to 870916"). (Appx 152 ). During that 33-day .period of active duty service, the applicant consumed from and was exposed to the toxins in the contaminated water supply at Camp Lejeune (Appx 16-17). m. The applicant was commissioned as a second lieutenant in the U S. Army Reserve on 10 August 1990, with a branch assignment in the Chemical Corps. He attended the Chemical Officer Basic Course at Fort McClellan, AL, on active duty status between 20 October 1990 and 2 June 1991. (Appx 153). He returned to Fort McClellan between 16 March 1996 to 2 August1996, attend the Chemical Officer Advance Course. (Appx 154). The applicant was exposed to various toxic substances stored or dumped at Fort McClellan, including Agent Orange. In a 1976 report, the U.S. Army Hygiene Agency, as part of its "Installation Pest Management Program Review," said that between 1974 and 1976, nearly 12,000 gallons of herbicide 2,4,5-T (trichloro phenoxyacetic acid) and 18,000 gallons of herbicide 2,4-D (dichloro-phenoxyacetic acid-) were used or dumped at Fort McClellan. Agent Orange is a 50/50 mixture of those two herbicides. The 1994 Agent Orange Report of the Institute of Medicine of the National Academy of Sciences recognized that herbicides can remain in the soil for 30- 40 years. See McRae v. Wilkie, No. 19-3492, 2020 WL 7231034, Dec. 9, 2 20) (in1998, "soil samples from various locations around [Fort McClellan were contaminated with 2,4,5-T; 2,4,5-TP; 2,4-D; 4-DP; and TCDD" and, in 1999, "soil samples from various locations around the base were still contaminate with TCDD."). n. The applicant was mobilized to active duty for two separate periods in support of Operations Iraqi Freedom and New Dawn. His first deployment was from 22 May 2008 to 22 June 2009, with duty at Forward Operating Base Delta in Al Kut, Iraq. (Appx 18, 155). His second deployment was from 22 April to 31 January 2012, with duty at Contingency Operating Site Kalsu in Babil Province Iraq. (Appx 18, 156). During each deployment in Iraq, the applicant was exposed to fine particulate matter (PM2.5) from burn pits, sand, dust, and other airborne contaminants. (Appx 45). o. The applicant was again mobilized to active duty between 6 April 2012 and 21 February 2013, in support of Operation Enduring Freedom. (Appx 18). He deployed to Camp Lemonnier in Djibouti on the Horn of Africa, where he was again exposed to toxic, fine particulate matter (PM2.5) from burn pits, sand, dust, and other airborne contaminants. (Appx 45). p. The applicant was ordered to two additional continuous periods of active duty. The first ran from 1 May 2013 to 30 September 2013, where he was on Active Duty Operational Support (ADOS) - Reserve Component (RC) orders and the second ran from 1 October 2013 to 30 September 2014, in support of Operation Noble Eagle. (Appx 160-163). It was during these periods of active duty that the applicant presented with or manifested, and sought medical treatment for muscle pain, stiffness, or rigidity in his left biceps, a common symptom of Parkinson's disease. (Appx 19-20). The applicant’s Army medical records reflect that on 15 September 2014, he sought outpatient medical treatment for his left-biceps stiffness or discomfort at the Mills Troop Clinic at Fort Dix, New Jersey, but that treatment did not result in either a diagnosis of any condition or any resolution of the muscle stiffness. (Appx 36-37). The biceps pain, stiffness, or rigidity symptom did not disappear appear and was among the symptoms with which the applicant presented when his Parkinson's disease was diagnosed in May 2019. q. In 2019, while the applicant was performing inactive duty training (IDT), he presented with or manifested bradykinesia, or slowness of movement, a classic symptom of Parkinson's disease reflecting a change of movement that causes an individual to move or respond slowly. (Appx 21, 164-166). In 2019, the applicant was a member of the Selected Reserve and was as a branch chief for an observer controller trainer team the 1st Brigade, Atlantic Training Division, 84th Training Command. (Appx 164-165). The 1st Brigade was aa Reserve Troop Program Unit (TPU), and he performed his duties in an IDT status, otherwise known as multiple unit training assemblies, unit training assemblies, or drill periods. (Appx 165). In or about April 2019, the applicant’s unit commander observed him during an IDT Battle Assembly period. It was readily apparent to the commander that something was not right with the applicant. His movements were very slow and lethargic, and his speech was halted like he was searching for words. The commander noted that it appeared the applicant was performing the task of raising a water bottle to his mouth to drink in slow motion. (Appx 165). The commander met with the applicant and instructed him that he needed to be checked and cleared by a physician, whether a military or a private physician, before the commander would allow him to participate in an upcoming European based exercise. (Appx 165-166). r. At the direction of his commander, the applicant consulted with a private physician at the Hartford HealthCare Midstate Medical Center in Connecticut, who diagnosed him with Parkinson's disease. (Appx 38). The applicant was subsequently treated by a neurologist, Dr. between May and August 2019, who confirmed the diagnosis of Parkinson’s disease. (App 45-49). The applicant began receiving medical care for his Parkinson’s disease from the VA in August 2019. s. The applicant’s attending VA neurologist was and continues to be Dr. . Dr. concluded, as reflected in the applicant’s VA medical records, that a causal nexus likely exists between the applicant’s exposure to the contaminated water at Camp Lejeune and the incurrence or aggravation of his Parkinson's disease, writing the following: "[The applicant] is a 52 year old married Caucasian male former police officer who was is [sic] seen for further assessment of his parkinsonisms. Patient is currently on medication managed by a community provider Dr . In the future the patient plans to transfer his care to the VA. It is very likely that his exposure at Camp Lejeune is contributing to his parkinsonisms syndrome...Diagnosis: toxin induced PD." VA Progress Note dated 17 December 2019; Appx 167-1 70. t. Further VA Progress Notes show: "It is very likely that his exposure at Camp Lejeune is contributing to his parkinsonisms syndrome…Diagnosis: toxin induced PD." VA Progress Note dated 13 October 2020; (Appx 5-9). "[The applicant] is a 53 year old married Caucasian male former police officer who with history (hx) of toxin exposure at Camp Lejeune who seen today for further assessment of his Parkinson's disease...previously noted his exposure hx at Camp Lejeune is contributing to his parkinsonisms syndrome; Diagnosis: toxin induced PD." VA Progress Notes dated 13 July 2021; (Appx 171-176). u. The applicant’s treatment records for his Parkinson’s disease reflect a continuity of symptoms with respect to his left biceps stiffness and pain that manifested in 2014, as follows: (1) On 8 May 2019, when the applicant was initially diagnosed with Parkinson's disease at the Hartford Health Care Midstate Medical Center, he was described as "a 51-year old male very healthy active police officer in the military as a Reservist who now presents with left-sided dysmetria." (Appx 38). (2) On 17 June 2019, in a neurological consultation with Dr. , a neurologist, it was noted that "[f]or the past few years he has had left arm and leg discomfort and dragging." (Appx 45). In a follow-up visit on 27 June 2019, Dr. noted that he "has more cognitive clarity, but he still feels some pain in the left arm. Previously when he left [sic] weights his left arm felt stiff and this is better." (Appx 48). (3) A VA neurology outpatient consult note dated 21 August 2019 states: "[The applicant] was referred to our clinic by his PCP (Dr. ) for valuation and management of his newly diagnosed Parkinson's disease…Patient reports noting discomfort in his left bicep about five years ago but did not make anything of it and carried on with his life as usual." (Appx 50). (4) A 22 August 2019 addendum by Dr. states: "[The applicant] is a pleasant 52year old (yo) male who has had onset of parkinsonian symptoms in the past approx. 5-6 years…Clinically, patient has more typical motor features of PD with bradykinesia, masked facies, reduced amplitude and irregular rate with RAM, stiffness and tremor on left side greater than the right side. There are more symptoms present in the UEs as compared to the LEs." (Appx 54). (5) A VA neuropsychology consult dated 26 November 2019, stated: 'Physically, the Veteran reported a 5 year history of increased ‘stiffness' in his left bicep that has gradually spread to his left leg and left side of his face; he also reported an intermittent left-side tremor. He reported manageable numbness and pain from these changes as 4/10…as well as changes in gait due to intermittent left leg drag.” (Appx 56). (6) In a VA neurology outpatient progress note dated 17 December 2019, Dr. states: "Historically, he had an onset of parkinsonian symptoms in the past around 2013-2014. His symptoms have included unsteady gait, stiffness, masked facies bradykinesia and slowed thinking [sic] he also has had changes in GI motility visual disturbance and anosmia…His boss commented on noting slowness in his cognition as well as movements and recommend evaluation." (Appx 1). v. In a VA Rating Decision dated 18 September 2019 , the VA determined that the applicant’s Parkinson's disease with tremors and muscle rigidity, left upper extremity was service connected with an evaluation of 20 percent and that his masked facies [hypomimia - loss of facial expression] with bradykinesia and left cheek numbness was service connected with an evaluation of 10 percent. (Appx 177-180). In making this determination, the VA relied on 38 C.F.R., section 3.307 and 3.309, which establish a presumption that Parkinson 's disease diagnosed in a veteran, like the applicant, who was exposed to the contaminated water supply at Camp Lejeune 30 days or more between 1 August 1953 and 1 December 1987, was incurred in the LOD and was service connected. w. On 26 May 2020, the applicant’s commander, COL signed a DA Form 2173 which reflected Dr. 's medical opinion that the applicant’s Parkinson's disease was incurred in the LOD based on his exposure to the contaminated water at Camp Lejeune when he was a Marine Reservist between 14 August 1987 and 16 September 1987. (Appx 181). Col indicated at Item 32 that she had determined that the applicant’s Parkinson's disease was incurred in the LOD. On 13 October 2021, the applicant’s commander, COL signed another DA Form 2173, identical to the previous DA Form 2173, reflecting that the applicant’s Parkinson's disease was incurred in the LOD. (Appx 18) . The LOD determination was never approved by the AHRC. x. In a VA Rating Decision dated 1 September 2020 the VA determined that the applicant’s generalized anxiety disorder (claimed as anxiety condition) as secondary to the service-connected disability of Parkinson's disease with tremors and muscle rigidity, left upper extremity was service connected with an evaluation of 100 percent. (Appx 184-188). y. In a memorandum to the applicant, dated 5 July 2020, the ARMMC notified the applicant he longer met Army medical standards because of his Parkinson's disease and provided him with his options regarding his proposed separation, including referral to a Non-Duty Physical Evaluation Board (NDPEB). (Appx 189 92). On 17 August 2020, the applicant requested that his case be referred to the NDPEB. (Appx 193). z. In a memorandum to the USAPDA, dated 19 March 2021, the ARMMC indicated that the applicant’s Parkinson's disease did not meet medical retention standards. (Appx 194-195). ARMMC concluded that the applicant’s medical separation should follow the non-duty related process because the "Soldier’s valid diagnosis not made during the Active Duty period" and that "there was not enough evidence to support a link to the Active Duty period" because the "Soldier cannot provide incident(s) or circumstance(s) where military duty caused the condition(s) or aggravated beyond normal progression and permanently worsened the condition(s)." The ARMMC also made the following statement: "Key note, a VA Rating Service Connection has no bearing on IDRM or LOD eligibility, processing or determination." aa. On a DA Form 199 dated 12 April 2021, an IPEB determined that the applicant’s Parkinson's disease was unfitting, but non-compensable because: "at the time the Soldier was diagnosed with this condition the Soldier was not in an Active Duty status or more than 30 days or entitled to base pay, and there is no LOD investigation for this condition. Additionally, there is no evidence within the Soldier’s available case file that indicates that military service has aggravated the condition." (Appx 196 -198). bb. In a memorandum to the PEB dated 2 April 2021, the applicant appealed the IPEB decision. (Appx 199-202). The applicant contended that his case should be processed as a duty related case based on the VA presumption that his Parkinson's disease was service connected and disabling as a result of his exposure to the contaminated water supply at Camp Lejeune, NC, in 1987. He also contended that a LOD determination was pending completion at the AHRC. cc. By memorandum to the applicant dated 12 May 2021, the PEB denied the applicant’s appeal. (Appx 203-204). The PEB rejected his reliance on the VA service connection presumption for his Parkinson's disease, stating: ''VA Ratings or Service connection have no bearing on LOD eligibility, processing or determination." The PEB also asserted that the applicant had not provided sufficient evidence to show he served at Camp Lejeune as claimed in his appeal. dd. In an email from Line of Duty/LOD Appeals Policy, AHRC to the PEB dated 8 October 2021, AHRC explained that an informal LOD cannot be done for Parkinson's disease, a formal LOD is required, and that no LOD had been directed by a proper authority for the applicant. AHRC was aware of the unit LOD on DA Form 2173, but rejected it because it was based on a VA rating and "[w]e do not adjudicate LODs from VA service connected disability." (Appx 205-207). ee. In a contention memorandum to the President of the PEB dated 20 October 2021, Soldier's Counsel on behalf of the applicant requested that the applicant be found unfit for Parkinson s disease, generalized anxiety disorder as a secondary disability of Parkinson's disease, and Parkinson's disease with tremors and muscle rigidity, left upper extremity. (Appx 208-222). Soldier's Counsel further requested that: "the PEB make a factual determination as to whether all conditions associated with Parkinson's disease were the result of water contamination on while serving at Camp Lejeune, NC. He requested that the PEB follow 38 C.F.R., section 3.309(f) that Parkinson's disease is subjective [sic] to presumptive service connection. Furthermore, he request that his case be terminated and restarted as a IDES case." ff. On 8 November 2021, the applicant appealed and testified under oath at a telephonic hearing before the Formal PEB (FPEB) (Appx 16-35). gg. By memorandum dated 16 November 2021, the FPEB requested an LOD advisory opinion from the AHRC regarding the applicant’s Parkinson's disease based on the applicant’s testimony at the FPEB hearing. (Appx 223-225). The FPEB identified several significant issues leading it to request the advisory opinion "to determine whether or not these conditions were permanently service aggravated and should be considered in the LOD and referred to IDES or continue to be processed as a non-duty related case." First, the VA had established a relationship between exposure to contaminated water at Camp Lejeune and Parkinson's disease in1987, when the applicant was there. Second, the applicant reported left biceps pain in 2014 and that "he progressively stopped doing pull ups despite using Bengay and ultimately was unable to use his left hand to button up the top of his shirt while wearing a tie because of pain in his left bicep region." Third, the FPEB explained that during a period of active duty, a military medical record of the applicant dated 15 September 2014, noted that he had "complained about left shoulder arm discomfort despite denying overt trauma and most importantly on exam, ‘general/bilateral arms showed abnormalities some bicep pain with resisted flexion.' Finally, the FPEB noted that the symptoms the applicant demonstrated in 2014 were consistent with bradykinesia, which the PEB noted "is present at the onset of Parkinson 's disease in approximately 80 percent of patients:" hh. The National Institutes of Health (NIH) National Library of Medicine review stated that Bradykinesia is the generalized slowness of movement, and is present at the onset of Parkinson's disease in approximately 80 percent of patients. It is arguably the major cause of disability in Parkinson's disease and is eventually seen in almost all patients. While it is the most common feature in Parkinson's, it is also the most difficult symptom for patients to describe, In the arms bradykinesia typically starts with decreased manual dexterity of the fingers. Patients often complain of difficult performing simple tasks such as buttoning clothes. NIH National Library of Medicine stated that rigidity is an increased resistance to passive movement about a joint and occurs in about 75 to 90 percent of patients. Rigidity can affect any part of the body, and may contribute to complaints of stiffness and pain. The Soldier had an ongoing complaints and work ups for these very same symptoms…in in 2014 (rigidity left bicep, tiredness) and ultimately leading to his Parkinson 's diagnoses in 2019. jj. By memorandum dated 13 January 2022 to the FPEB, AHRC provided an LOD advisory opinion, which AHRC claimed was based on a "medical opinion" from the AHRC Surgeon General's office. (Appx 22 -227). However, the medical opinion was not provided to the PEB, to Soldier's Counsel, or to the applicant in response to a Privacy Act request he made to AHRC, raising some doubt about whether it actually exists. Moreover, it is not established that the medical opinion was written by a physician or even an individual with medical training or background, as AHRC never provided that explicit assurance nor did AHRC identify the author or the educational or professional credentials of the author. In the advisory opinion, AHRC concluded that the applicant’s Parkinson’s disease was not incurred or aggravated by military service and that his case should be processed as non-duty related. AHRC discounted the applicant’s left biceps pain in 2014, by speculating that it was "possibly due to ongoing weight lifting despite a decrease in the amount of weight used." AHRC discounted the relevance of the VA Rating Decision, stating that ''Veterans Affairs provided the applicant with a presumed diagnosis, but that is not indicative of a specific cause of a disease process or service aggravation." Although AHRC conceded that the decision whether the applicant’s condition was duty related "is based on [sic] preponderance of evidence and medical evidence presented by the Soldier as well as medical evidence located in the various programs that contain medical records," AHRC failed to do just that as they did not consider the applicant’s VA medical records, in which his neurologist concluded that his Parkinson's disease was likely caused by his exposure to toxins in the contaminated water supply at Camp Lejeune. AHRC also failed to consider the multiple VA and private medical entries that showed a continuity of symptoms with his left bicep pain in 2014 and his bradykinesia and left extremity issues in 2019 upon his diagnosis with Parkinson's disease. kk. On a DA Form 199-1, dated 20 January 2022, the FPEB made no change to the IPEB findings and recommendations, and determined that the applicant’s disease was unfitting, but non-compensable because it was not duty related.(Appx 228-230). The FPEB referenced the applicant’s hearing testimony and the issues that it raised, but indicated that the AHRC LOD advisory opinion was dispositive in its adjudication of the case. ll. By memorandum dated 4 February 2022, through the FPEB to the USAPDA, the applicant appealed the FPEB disposition of his case through Soldier’s Counsel. (Appx 231-233). The appeal requested a copy of the medical opinion referenced in the AHRC LOD advisory opinion, which neither the applicant nor Soldier's Counsel had received. The appeal asserted that AHRC's conclusion was erroneous in light of the VA presumption that his Parkinson's disease was service connected, which Soldier's Counsel argued the Army should follow. The appeal also asserted that the applicant’s left biceps injury was a symptom of his Parkinson's disease that manifested during a period of active duty greater than 30 days. mm. By memorandum dated 14 February 2022, the USAPDA denied the applicant’s appeal of the FPEB determination. (Appx 234 -235). USAPDA stated that any complaint with the HRC LOD advisory opinion had to be taken up AHRC and that the applicant presented no evidence that was not considered during the FPEB. nn. By Orders 22-073-00030, dated 14 March 2022, issued by Headquarters, 99th Readiness Division (USAR), the applicant was transferred to the Retired Reserve effective 1 April 2022, due to medical disqualification, not result of own misconduct. (Appx 236). oo. A Soldier in the USAR called or ordered active duty for a period of more than 30 days who is unfit to perform the duties of the Soldier's office, grade, rank, or rating because of a physical disability incurred or aggravated while entitled to basic pay during that period of active duty may be eligible for disability retired pay. Title 10 U.S.C., section 1201. Alternatively, a Soldier in the USAR who incurs or aggravates an unfitting physical disability while performing inactive-duty training may be eligible for disability retired pay. Title 10 U.S.C, section 1204. In each case, the Soldier's disability must be permanent and stable, rate at 30 percent or more, and must not be the result of the member's intentional misconduct or willful neglect nor can it be incurred during a period of unauthorized absence. Title 10 U.S.C., sections 1201,1204. pp. Pursuant to Army Regulation 635-40, (19 January 2017), paragraph 4-34, the PEB considering the applicant’s case was required to make two determinations: (1) whether he was ft for duty, that is, whether his Parkinson's disease was an unfitting medical condition; and (2) whether his medical condition was duty-related, that is, in the LOD such that it was incurred or aggravated during a period of active duty status ("The RC non-duty related process is established by policy. It affords RC Soldiers not on call to active duty of more than 30 days and who are pending separation by the RC for non- duty related medical conditions to enter the DES for a determination of fitness and whether the condition is duty-related."). qq. A PEB is obligated to adhere to an approve LOD determination. Army Regulation 635-40, paragraph 5-23.c.(1). If a PEB believes that an LOD determination · is questionable, the PEB may seek an advisory opinion from AHRC, but a PEB is bound by the AHRC LOD determination. See Army Regulation 600-8-4, (Line of Duty Policy, Procedures, and Investigations (12 November 2020), paragraph 4-19. rr. The Glossary to Army Regulation 635-40, prohibits characterization of a medical condition as a non-duty related impairment for processing in a non-duty related proceeding if there has been an incident of manifestation while performing duty. The Glossary to Army Regulation 635-40 defines the term "non-duty related impairments " as "impairments of members of the RC [Reserve Component] that were neither incurred no aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation." ss. Pursuant to Department of Defense Instruction (DoDI) 1332.18,(Disability Evaluation System (DES)) (17 May 2018), when a Soldier incurs or manifests a disease during a period of active duty more than 30 days the Army is required to presume that the disease is incurred or aggravated in the LOD unless the disease was noted at the time of entry into service. The applicant’s Parkinson's disease was not noted at the time upon his entry into service. The Army may overcome the presumption only when clear and unmistakable evidence establishes each of two conditions (1) the disease existed prior to the Soldier's current period of military service; and (2) the disease was not aggravated by the Soldier's current period of military service. There is no evidence, let alone clear and unmistakable evidence, that either exception is applicable in this case. tt. Under the rule of prior service condition, any medical condition incurred or aggravated during one period of active service that recurs, is aggravated, or otherwise causes a Soldier to be unfit, as is the case with the applicant , the condition must be considered incurred in the LOD, provided the condition or its current state did not progress to unfitness as the result of intervening events when the Soldier was not in a duty status. DoDI 1332.18 and Army Regulation 635-40, paragraph 5-14. The record is devoid of any evidence that the applicant’s unfitness resulted from intervening events from a non-duty status. uu. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) (31 March 2006) provides that an applicant has the burden of proving an error or injustice by a preponderance of the evidence. The preponderance of the evidence standard is met when the proof shows that the existence of a fact or other conditions "more likely than not." See Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983) (preponderance means "more likely than not"); Bailey v. United States, 145 Fed. Cl. 453, 463-464 (2019) (preponderance is the same a "more likely than not” in correction board context). vv. The applicant’s Parkinson's disease is duty-related because it was caused by his exposure to environmental toxins while he was service on periods of active duty service of more than 30 days. A preponderance of the evidence establishes his Parkinson's disease is duty-related, i.e., it was incurred the LOD, because the disease was caused by his exposure to environmental toxins while he was entitled to base pay during three separate periods of active duty service each of which was more than 30 days. The applicant was exposed to trichloroethylene (TCE) in the contaminated water at Camp Lejeune, NC when he was on active duty as a member of the U.S. Marine Corps Reserve. In 1990 and 1991 and gain in 1996, he was exposed to Agent Orange in the soil and groundwater at Fort McClellan, Alabama when he was attending the Chemical Officer's Basic Course and the Chemical Officer’s Advance Course. Dr. a board-certified neurologist, has provided an expert medical opinion that it is more likely than not that the applicant’s Parkinson's disease was caused by his exposure to TCE at Cam Lejeune and Agent Orange at Fort McClellan. In addition, the applicant’s attending VA neurologist, Dr. , concluded in the applicant's VA medical records that there is a causal nexus between his exposure to toxins at Camp Lejeune and his Parkinson's disease. ww. There is no dispute that the water at Camp Lejeune, NC, was contaminated and exposure to that contamination was deleterious to the health of Marines and others. The VA has pointed to "the conclusions of internationally recognized scientific authorities that strong evidence exists establishing a relationship between exposure to certain volatile organic compounds (VOCs) that were in the water at Camp Lejeune and later development of certain disabilities.” 81 Federal Register (Fed. Reg.) 62419 (9 September 2016). (Appx 237). xx. The VA published in the Federal Register a final rule amending two of its regulations, 38 C.F.R., sections 3.307 and 3.309, effective 14 March 2017. The final rule established a presumption of service connection relating to eight medical conditions, including Parkinson's disease, for any veteran exposed to the contaminants in the water supply at Camp Lejeune for no less than 30 days between 1 August 1953 and 31 December 1987. As a result, it is presumed that Parkinson’s disease in a veteran exposed to the contaminated water at Camp Lejeune during specified period was incurred in the LOD and was disabling for the purposes of entitlement to VA benefits. (82 Fed. Reg. 4173 (13 January 2017);(Appx 250). yy. There is no dispute that the applicant was assigned to Camp Lejeune from 14 August 1987 to 16 September 1987, during a period of active duty service with the Marine Corps Reserve between 13 May 1987,and 17 September 1987.(Appx 151). After completing boot camp at Parris Island, South Carolina, the applicant traveled to Camp Lejeune, North Carolina for the Basic Landing Support Specialist Course, a course of instruction equivalent to that received by Army Advanced Individual Training. (Appx 16). As reflected on NAVMC 118(3), Chronological Record, the applicant attended the advanced training course at Camp Lejeune between 14 August 1987 and 16 September 1987 ("STUD/LND SPT SPL CRS – 870814 to 870916"). (Appx 152). During that 33-day period of active duty service the applicant consumed from and was exposed to the toxins in the contaminated water supply at Camp Lejeune. (Appx 16-17). zz. It is against this backdrop that Dr. provides his expert medical opinion that the applicant’s development of Parkinson’s disease was more likely than not caused by his exposure to TCE at Camp Lejeune. (Appx 68-269). As reflected in his Curriculum Vitae, Dr. ’s credentials are exceptional and his qualifications as an expert in neurology and Parkinson's disease are unimpeachable. (Appx 270-271). In addition, Dr. has personally examined and is familiar with applicant’s case, as he was his patient in 2019. Dr. states in his medical opinion: 'It is opinion that [the applicant’s] Parkinson's disease is the result of exposure to several toxins throughout his military career and is therefore 'duty-related.' I will here by summarize the studies that support this." (Appx 268)., which Counsel then summarizes and have been included in the appendix and Counsel’s brief. Dr. concludes in his opinion: "The literature therefore strongly supports the conclusion that the applicant’s development of Parkinson’s disease is more likely than not related to the above exposure and is therefore duty related." (Appx 269). aaa. In addition to Dr. 's expert medical opinion, the applicant’s VA medical records also reflect the conclusion of his attending VA neurologist Dr. , that a causal nexus likely exists between the applicant’s exposure to the contaminated water at Camp Lejeune and the incurrence or aggravation of his Parkinson's disease. Dr. also provided her medical opinion that the applicant’s Parkinson's disease was incurred in the LOD based on his exposure to the contaminated water at Camp Lejeune when he as a Marine Corps Reservist between in 1987, on DA Forms 2173, that were prepared by the applicant’s unit commander. (Appx 181-183). bbb. Dr. 's expert medical opinion together with Dr. 's conclusions in the applicant’s medical records establish by a preponderance of the evidence that he incurred his Parkinson's disease as a result of his exposure to environmental toxins in 1987 during period of active duty more than 30 days during which he was entitled to base pay. Accordingly, his Parkinson's disease was incurred in the LOD and is compensable, entitling him to disability retired pay. ccc. The conclusion of Dr. in VA medical records between 2019 and 2021, that the applicant’s exposure to the toxins in the contaminated water supply at Camp Lejeune likely caused his Parkinson's disease demonstrates the unjustified and inaccurate nature of A HRC's advisory opinion dated 13 January 2022, which wrongfully asserted there was no evidence of causation. AHRC erroneously failed to consider or address Dr. 's highly probative conclusion that, in fact, the applicant’s Parkinson's disease was caused by exposure to toxins at Camp Lejeune. and underscored the relevance of the scientific and medical literature underlying that presumption of service connection. AHRC was required at a minimum but failed: (1) to consider in the context of the entire record the scientific and medical literature behind the VA service connection determination, particularly as it corroborated Dr. ’s medical conclusions and (2) to articulate some rationale in support of AHRC's contrary conclusion. Per Strahler v. United Sates, 158 Fed. Cl. 584, 595 (2022) (although a correction board is not bound by a VA decision, it is at a minimum required to consider a relevant VA Evaluation "in the context of the whole record"); Valles-Prieto v. United States, 59 F d. Cl. 611, 618 2022) (it is error for a military correction board to refuse to consider or to disregard a VA disability evaluation based on the conclusion that the VA and DoD operate under a different set of laws). Dr. 's expert medical opinion further demonstrates the speciousness of AHRC's advisory opinion. ddd. The applicant’s Parkinson’s disease was also caused by exposure to Agent Orange at Fort McClellan, Alabama while serving on active duty in 1990 to 1991 and in 1996. The applicant attended the Chemical Officer Basic Course at Fort McClellan, Alabama on active duty status between 20 October 1990 and 20 June 1991. (Appx 153). He then returned to Fort McClellan between16 March 1996 and 2 August 1996, to attend the Chemical Officer Advance Course. (Appx 154). During each period of active duty, the applicant was exposed to various toxic substances stored or dumped at Fort McClellan, including Agent Orange, that caused his Parkinson's disease. eee. It is well-established that the soil and groundwater at Fort McClellan are contaminated with, among many toxins, the herbicide Agent Orange or the chemical constituents of Agent Orange. In a 1976 report , the U.S. Army Hygiene Agency, as part of its "Installation Pest Management Program Review," said that between 1974 and 1976, nearly 12,000 gallons of herbicide 2,4,5-T (trichlorophenoxyacetic acid) and 18,000 gallons of herbicide 2,4-D (dichlorophenoxyacetic acid) were used or dumped at Fort McClellan. Agent Orange consisted of an equal mixture by weight of these two chemicals, and also contained trace amounts of 2,3, 7,8-tetrachlorodibenzo-para dioxin, also known a dioxin or TCDD. See Haas v. Peake, 525 F.3d 1168, 1171 ( Fed. Cir. 2008). In 1998, soil samples from various locations around Fort McClellan were contaminated with 2,4,5-T; 2,4,5-TP; 2,4-D; 4-DP; and TCDD and, in 1999, soil samples from various locations around Fort McClellan were still contaminated with TCDD. The 1994 Agent Orange Report of the Institute of Medicine of the National Academy of Sciences recognized that herbicides can remain in the soil for 30 to 40 years. See McRae v. Wilkie, No. 19-3492, 2020 WL 7231034, at *2 (CAVC 9 December 2020). fff. In light of this environmental contamination, Dr provides his expert medical opinion that the applicant’s development of Parkinson's disease is more likely than not caused by his exposure to Agent Orange at Fort McClellan. Dr. concludes in his opinion: 'The literature therefore strongly supports the conclusion that the applicant’s development of Parkinson’s disease is more likely than not related to the above exposure therefore duty-related." (Appx 269). ggg. A preponderance of the evidence establishes that the applicant’s Parkinson's disease is duty-related, i.e., it was incurred in the LOD, because the disease initially presented or manifested as left biceps stiffness and discomfort during periods of his active duty service in 2013 to 2014. The first period of active duty ran from 1 May 2013 to 30 September 2013, when the applicant was on Active Duty Operational Support- Reserve Component orders. (Appx 160-161). The second period of active duty ran from 1 October 2013 to 30 September 2014, in support of Operation Noble Eagle. (Appx 162-163). Relying on the testimony of the applicant at the FPEB hearing, his military service and medical records, and scientific or medical literature, Dr. has provided an expert medical opinion that it is more likely than not that the applicant’s Parkinson’s disease initially manifested and was aggravated during periods in which he was on active-duty status. (Appx 272-280). As reflected by his Curriculum Vitae, Dr. ’s qualifications as a medical expert are outstanding and unimpeachable. hhh. During periods of active duty between 2013 and 2014, the applicant presented with or manifested muscle pain, stiffness, or rigidity in his left biceps, a common symptom of Parkinson 's disease. The biceps pain, stiffness, or rigidity symptom did not disappear and was among the symptoms with which the applicant presented when his Parkinson's disease was diagnosed in May 2019. They believe that the continuity of the muscle pain or stiffness symptom is particularly probative that the left biceps issue was an initial symptom or manifestation of his Parkinson’s disease. iii. From 1 May 2013 until 30 September 2014, the applicant served continuously on active duty. During this period of active duty service, he began to experience discomfort with his left biceps, including tightness, stiffness, or rigidity. In his sworn testimony at his Army FPEB hearing, which the Army uses to determine a Soldier's fitness for duty, the applicant explained at length how his muscle stiffness manifested and is in the provided copy of the testimony. (Appx 19-20). The applicant’s Army medical records corroborate his testimony that on 15 September 2014, he sought outpatient medical treatment for his left biceps stiffness or discomfort at the Mills Troop Clinic at Fort Dix, New Jersey, but that treatment did not result either a diagnosis of any condition or any resolution of the muscle stiffness. (Appx 36-37). jjj. The left biceps stiffness that manifested in 2013 and 2014 "never went away," as the applicant testified, and it was noted as one of a number of symptoms, particularly on his left side, leading to the applicant’s Parkinson's disease diagnosis and course of treatment beginning in May 2019. On 8 May 2019, when the applicant was initially diagnosed with Parkinson's disease at the Hartford HealthCare Midstate Medical Center, he was described as "a 51-year old male very healthy active police officer in the military as a Reservist who now presents with left-sided dysmetria." (Appx 38). On 17 June 2019 in a neurological consultation with Dr. it was noted that "[f]or the past few years he left arm and leg discomfort and dragging." (Appx 45). In a follow-up visit on 27 June 2019, Dr. noted that he "has more cognitive clarity, but he still feels some pain in the left arm. Previously when he left [sic] weights his left arm felt stiff and this is better." (Appx 48). kkk. The applicant’s VA medical records similarly reflect a continuity of symptoms from 2013 to his 2019 diagnosis with Parkinson’s disease regarding his left biceps or arm stiffness and pain as reflected in an outpatient consult note dated 21 August 2019 and in a VA neurology outpatient progress note dated 17 December 2019. The medical literature also supports the conclusion that the applicant’s left-biceps pain was a manifestation of his Parkinson's disease. For example, one recent study stated that "[d]uring the preclinical stage, pain is one of the early symptoms of PD" and that the pain may affect a specific joint or body part, such as a shoulder. Antonio Camacho- Conde, "The phenomenology of pain in Parkinson's disease," Korean Journal of Pain (2020). Appx 64. lll. The Army refused to even consider the possibility that the applicant’s biceps pain was a symptom or manifestation of Parkinson's disease. The AHRC stated that a military medical record "in September 2014 indicates [the applicant] had an episode of left shoulder strain of the biceps tendon. No abnormalities were found upon examination of the shoulder and some biceps pain was evident with resisted flexion but is possibly due to ongoing lifting despite a decrease in the amount of weight used.” The Army did not consider the medical literature to the contrary and did not discuss or analyze the continuity of the muscle stiffness symptom as reflected in the applicant’s private or VA medical records reflecting his diagnosis with and treatment of Parkinson’s' disease. mmm. Dr. 's medical opinion and the evidence upon which he relied establish that it is more likely than not, which is the preponderance of evidence standard, that the applicant’s left biceps pain and stiffness in 2013 and 2014 were manifestations of his Parkinson's disease during periods of active duty more than 30 days. The applicant’s argument to that effect before the FPEB had been sufficiently persuasive to cause the FPEB to seek an LOD advisory opinion from AHRC, because the FPEB felt that the biceps pain was consistent with bradykinesia, which the PEB noted "is present at the onset of Parkinson 's disease in approximately 80 percent of patients." (Appx 224). AHRC's conclusion to the contrary, which the FPEB relied upon in continuing with a non-duty related proceeding, lacked probative value. First, the provenance of the reference medical opinion is dubious and secondly, it was speculative or conjecture, admitting that the left biceps pain was “possibly” due to ongoing weight lifting. Thirdly, the medical opinion failed to consider the objective record of evidence relating to the continuity of symptoms . nnn. In that regard, in a telephone conversation with the Department of the Army civilian responsible for AHRC line of duty determinations, the applicant emphasized that his initial active duty manifestation of his Parkinson’s disease as left biceps tightness never we3nt away and was a continuous symptom up to his diagnosis in 2019. The applicant told him he was definitely on active duty orders for 365 days in support of Operation Noble Eagle when he started getting unexplained tightness in his left bicep and that he believes this is when his Parkinson’s disease first manifested itself. ooo. The applicant’s Parkinson’s disease was aggravated during periods of active duty service in Iraq (2008 - 2009, 2011 - 2012) and Djibouti (2012 – 2013) through his exposure to fine particulate matter (PM2.5). Relying on the applicant’s military service records and medical or scientific literature, Dr. provided an expert medical opinion that it is more likely than not that the applicant’s Parkinson’s disease was aggravated during periods of active duty service in Iraq and Djibouti, that is, the condition was made worse over and above the natural progression of the condition (including a more rapid progression) absent that service, through his exposure to fine particulate matter (PM2.5) from the smoke of open burn pits as well as sand, dust, and other contaminants. (Appx 276 – 280). ppp. As early as 2010, the VA recognized that veterans like the applicant serving in Iraq or Djibouti were exposed to a variety of toxins through burn pits and that such exposure may be associated with a variety of illnesses or medical conditions, including neurological disorders, as referenced in VA Training Letter 10-3, Subject: Environmental Hazards in Iraq, Afghanistan, and Other Military Installations (26 April 2010) (Appx 101). The VA also recognized that veterans serving in Iraq or Djibouti were exposed to particulate matter at levels that were naturally higher than hose found worldwide and may present a health risk to service members. Relying on medical and scientific literature, the VA has determined that veterans like the applicant who deployed to Iraq or Djibouti after September 2001 were exposed to fine particulate matter (PM2.5). The VA made this determination in connection with is promulgation of two interim final rules that established at 38 C.F.R., section 3.320 a presumptive service connection for certain chronic respiratory health conditions and rare respiratory cancers. qqq. The scientific and medical literature also supports a conclusion that he applicant’s exposure to PM2.5 during his deployments to Iraq and Djibouti aggravated his Parkinson’s disease by making it worse over and above the natural progression of the conditions, including a more rapid progression, than had he not been deployed. The literature shows that neuroinflammation and oxidative stress have been increasingly considered causal factors in the pathology of central nervous system diseases such as Parkinson’s disease and that, among various environmental factors which may be involved, air pollution has been identified as the most pervasive factor inducing inflammation and oxidative stress, including dopamine neuron damage. rrr. Even if the ABCMR mistakenly should conclude that there is insufficient evidence of a material error or injustice with regard to the PEB’s determination that the applicant’s Parkinson’s disease was neither incurred nor aggravated during periods of active duty more than 30 days, he nevertheless remains entitled to full relief under Title 10 U.S. C., section 1204(2)B(B)(i), because his Parkinson’s disease manifested during IDT and thus was incurred or aggravated in the LOD while performing that IDT. (See Army Regulation 635-40, paragraph 5-13.a.2.a). There is undisputed evidence that the applicant manifested the symptoms of Parkinson’s disease in April 2019 while on IDT status to such a degree that his commander ordered him to consult with a medical provider to obtain medical clearance, which resulted in his Parkinson’s disease diagnosis 1 week or two later. The applicant’s manifestation of classic symptoms of Parkinson’s disease while on IDT status is described by his former commander, COL (Appx 164-166) and also another prior commander, COL , who also recognized the manifestation of the applicant’s bradykinesia during periods of IDT. (Appx 290-291). These manifestations while on IDT status were also the subject of a colloquy between the PEB presiding officer and the applicant, as evidenced in the formal hearing testimony. There can be no doubt that the applicant was performing IDT during multiple unit training assemblies or drill periods when his Parkinson’s disease manifested and was incurred sss. The applicant has demonstrated by a preponderance of the evidence that the decision by the PEB and AHRC that his Parkinson’s disease was not duty-related was a material error or injustice. Both the PEB and AHRC failed to consider highly probative, direct medical evidence reflected in the applicant’s VA medical records, that his attending neurologist had concluded his Parkinson’s disease was caused by his exposure to the toxins in the contaminated water supply at Camp Lejeune in 1987. Moreover, the AHRC advisory opinion was impermissibly speculative when it concluded the left biceps pain that the applicant manifested on active duty in 2013 and 2014 was “possibly due to ongoing weight lifting,” speculation that was belied by the continuity of symptoms of the left biceps stiffness in 2013/2014, and the left arm and shoulder symptoms observed in 2019, when the applicant was diagnosed with Parkinson’s disease. ttt. In addition, the applicant presented the ABCMR with the expert medical opinions of two eminent physicians supporting his position that his Parkinson’s disease was duty- related. Dr. , a board-certified neurologist, concludes that the applicant’s development of Parkinson’s disease is more likely than not caused by his exposure to trichloroethylene (TCE) at Camp Lejeune in 1987, and by his exposure to Agent Orange at Fort McClellan, Alabama in 1990 to 1991 and 1996. Dr. also concludes that it is more likely than not that the applicant’s Parkinson’s disease was aggravated during periods of active duty service in Iraq (2008 to 2009 and 2011 to 2012) and Djibouti (2012 to 2013), that is, the condition was made worse over and above the natural progression of the condition (including a more rapid progression) absent that service, through his exposure to fine particulate matter (PM2.5) from the smoke of open burn pits as well as sand, dust, and other contaminates. The expert opinions of Dr. and Dr. together with the evidence the applicant presented to the PEB, but which was wrongfully discounted by AHRC and the PEB, demonstrate that a preponderance of the evidence supports the conclusion that he applicant’s Parkinson’s disease was incurred or aggravated during periods of active duty more than 30 days. uuu. Alternatively, the applicant remains entitled to full relief under Title 10 U.S.C., section 1204, because his Parkinson’s disease manifested during IDT and thus was incurred or aggravated in the LOD while performing that IDT. The period of time during which the symptoms of the applicant’s Parkinson’s disease manifested was considered dispositive by the PEB and AHRC, as each pointed to the purported lack of any evidence that any such manifestation occurred during or was caused by active duty service. The evidence provided by the applicant’s former commanding officers, COL and COL and his testimony at the FPEB hearing demonstrates the applicant presented with or manifested the symptoms of Parkinson’s disease, including bradykinesia, in April 2019, while on IDT status to such a degree that his commander ordered him to consult with a medical provider to obtain medical clearance, which makes his Parkinson’s disease a compensable disability. vvv. To provide full and effective relief to remedy the material error or injustice committed by the PEB and the AHRC, the applicant seeks correction of his military records as follows: (1) vacate his transfer to the Retired Reserve effective 1 April 2022 and any other orders or records reflecting that transfer (2) reflect his placement on the Army’s PDRL in the rank/grade of COL/O-6, effective 14 February 2022, the date on which the USAPDA denied his appeal of the PEB’s determination, with a combined disability rating of 75 percent, in light of his VA rating for Parkinson’s disease and secondary anxiety disorder at 100 percent (3) direct DFAS to pay the applicant both retroactively and prospectively all disability retired pay and/or other benefits to which he is entitled www. In a supplement to the application, Counsel and the applicant seek to make the Board aware of a recently published medical study in which the authors found human epidemiological evidence supporting a causal link between service members’ exposure to the industrial solvent trichloroethylene (TCE) and Parkinson’s disease risk. This study squarely supports and corroborates the applicant’s case in which he demonstrated that a preponderance of the evidence establishes that his Parkinson’s disease was duty-related because it was caused by his exposure to TCE in the contaminated water at Marine Corps Base Camp Lejeune, NC, while he was on active duty. 2. The applicant’s DA Form 5016 shows he enlisted in the U.S. Marine Corps Reserve (USMCR) on 24 January 1987. 3. A DD Form 214 shows this period of USMCR service included a period of active duty training (ADT) from 13 May 1987 through 17 September 1987, where he attended and successfully completed Basic Landing Support Specialist Course at Camp Lejeune, NC, and was credited with 4 months and 5 days of net active service this period. 4. A Navy/Marine Corps (NAVMC) Form 116 (Chronological Record) likewise shows the applicant’s attendance as a student at Basic Landing Support Specialist Course at Camp Lejeune with training dates listed as 14 May 1987 through 4 August 1987. 5. The applicant’s DA Form 5016 shows he was discharged from the USMCR on 6 March 1990 for entrance in the Reserve Officers’ Training Corps (ROTC) on 7 March 1990. 6. A Headquarters, U.S. Army ROTC Cadet Command memorandum, dated 10 August 1990, shows the applicant was appointed as an unassigned Reserve commissioned officer in the USAR on10 August 1990. 7. A DD Form 214 shows the applicant entered active duty on 20 October 1990, where he attended and successfully completed Chemical Officer Basic Course at Fort McClellan, AL and was honorably released from active duty on 20 June 1991, due to completion of a period of ADT and returned to the USAR Control Group (Annual Training). He was credited with 8 months and 1 day of net active service this period. 8. USAR Personnel Center Orders C-09-130643, dated 24 September 1991 released the applicant from the USAR Control Group (Annual Training) and reassigned him to the Connecticut Army National Guard (ARNG) due to ARNG appointment effective 31 July 1991. 9. A DD Form 214 shows the applicant again entered active duty on 15 March 1996, where he attended and successfully completed Chemical Officer Advance Course, was honorably released from active duty on 2 August 1996, due to completion of a period of ADT, and returned to his ARNG unit. He was credited with 4 months and 18 days of net active service this period. 10. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged from the ARNG on 1 October 2007 and transferred to the USAR Control Group (Reinforcement), due to voluntary request. He was credited with 16 years, 2 months, and 1 day of net service this period and 4 years, 6 months, and 7 days of prior Reserve service. 11. Multiple DD Forms 214 show the applicant was additionally ordered to active duty as follows: a. He was ordered to active duty in support of Operation Iraqi Freedom on 22 May 2008, with duty in Iraq from 7 June 20028 through 11 May 2009. He was honorably released from active duty after 1 year, 1 month , and 1 day of net active service this period on 22 June 2009, due to completion of required active service and transferred back to his USAR unit. b. He was ordered to active duty in support of Operation New Dawn on 22 April 2011, with duty in Iraq from 9 June 2011 through 5 December 2011. He was honorably released from active duty after 9 months and 9 days of net active service this period on 31 January 2012, due to completion of required active service and transferred back to his USAR unit. c. He was ordered to active duty in support of Operation Enduring Freedom on 6 April 2012, with duty in Djibouti from 12 April 2012 through 4 January 2013. He was honorably released from active duty after 10 months and 16 days net active service this period due to completion of required active service and transferred back to his USAR unit. d. He was ordered to active duty for Active Duty Operational Support – Reserve Component, on 1 May 2013. He was honorably released from active duty after 5 months net active service this period on 30 September 2013, due to completion of required active service, and transferred back to his USAR unit. e. He was ordered to active duty in support of Operation Noble Eagle on 1 October 2013. He was honorably released from active duty after 1 year net active service this period on 30 September 2014, due to completion of required active service, and transferred back to his USAR unit. 12. A Standard Form 600 shows the following: a. The applicant was seen at the Mills Troop Clinic, Fort Dix, on 15 September 2014, 2 weeks prior to his above-referenced 30 September 2014 release from active duty, for complaints of left arm/shoulder discomfort/pain for approximately 6 months. He denied overt trauma to the area and admitted to weight lifting, although at reduced weights. b. Upon examination, his arms showed abnormalities with some bicep pain with resisted flexion. Arms showed a normal appearance. Palpitation of the arms revealed no abnormalities. Arms were not weak. c. He was given a provisional diagnosis of left shoulder and biceps tendon strain and prescribed a topical gel to apply to the areas twice a day. He was cleared to out process and released without limitations. 13. Hartford HealthCare medical records, dated 8 May 2019, show the applicant was seen on the date of the forms for neurologic complaints primarily on the left side. His chief complaint is listed as left-sided dexterity impairment, unsteadiness, facial numbness, speech impairment, and tremor. The assessment and plan shows the applicant was a healthy 51 year old presenting with 6 months of gradually progressive left-sided dexterity impairment, unsteadiness, facial numbness, speech impairment, and tremor. On exam he had masked facies, left sided cogwheeling, impaired finger tapping and hand movements, and mild bradykinesia. He was diagnosed with movement disorder and Parkinsonian syndrome. 14. An Initial Office Consultation Note with Dr. , dated 17 June 2019, shows the applicant was seen on the date of the record in a neurological consultation. He was a 51 year old Army COL and police Lieutenant. For the past few years he had left arm and leg discomfort and dragging and he has slowed down in the past year. His past medical history shows he was exposed to trash burn pits on overseas deployments (Iraq in 2008 to 2009 and 2011; and Djibouti in 2012 to 2013). The assessment/plan shows he was diagnosed with Parkinson’s disease. 15. Multiple Progress Notes, dated in August 2019, show in pertinent part the following: a. A Neurology Outpatient Consult Note, dated 21 August 2019 shows the applicant was referred to the Neurology Clinic by his PCP (Dr. ) for evaluation and management of his newly diagnosed Parkinson’s disease. The applicant reported noting discomfort in his left bicep about 5 years ago, but did not make anything of it and carried on with his life as usual. About 6 months ago is when he began feeling extremely tired, described as being in a “haze or a fog” which affected his attention and concentration and caused him to feel sore throughout his body, with his left leg dragging, and stiffness of his left cheek. Around May 2019,his boss commented on his slowness in cognition as well as movements and recommended evaluation. b. An Addendum to the above Neurology Outpatient Consult Note, signed by Dr. and dated 22 August 2019, shows the applicant has had the onset of Parkinsonian symptoms in the past approximately 5-6 years. He does have a history of exposure to contaminated waster in Camp Lejeune. Clinically, he has more typical motor features of Parkinson’s disease with bradykinesia, masked facies, reduced amplitude and irregular rate with Ram, stiffness and tremor on the left side greater than right side. 16. A VA Rating Decision, dated 18 September 2019, shows the applicant was granted service-connection for the following conditions effective 26 July 2019: * Parkinson’s disease with tremor and muscle rigidity, left upper extremity, 20 percent * masked facies with bradykinesia and left cheek numbness, 10 percent * erectile dysfunction, 0 percent 17. Multiple additional Progress Notes, dated between November 2019 and December 2019, show the following: a. A Neuropsychology Consult, dated 26 November 2019, shows the applicant was seen on the date of the record for neuropsychological assessment by Dr. . The applicant reported a 5-year history of increased “stiffness” in his left bicep that gradually spread to his left leg and left side of his face and an intermittent left-side tremor as well as manageable numbness and pain from these changes and changes in gait. b. A Neurology Outpatient Progress Note, dated 17 December 2019, and signed by Dr. shows the applicant was a 52 year old former police officer who was seen for further assessment of his Parkinsonism’s. He was currently on medication managed by a community provider, Dr. . In the future he planned to transfer his care to the VA. It is very likely that his exposure at Camp Lejeune is contributing to his Parkinsonism’s syndrome. His diagnosis is listed as toxin induced Parkinson’s disease. 18. A DA Form 2173 shows the following: a. The applicant was seen as an outpatient at the VA Medical Center, West Haven, CT by Dr. on 22 May 2020, for Parkinson’s disease. The medical opinion shows the applicant’s Parkinson’s disease was incurred in the LOD. The basis for the opinion is the VA granted a service-connected disability for the condition due to exposure to contaminated water while serving as a Marine Reservist at Camp Lejeune, NC, in August - September 1987. b. The applicant was assigned to Camp Lejeune, NCE from August 1987 to September 1987, where he attended a professional development school as an enlisted Marine Reservist. On 8 May 2019, he was diagnosed with Parkinson’s disease and soon found out that the VA concedes that for service members who served 30 days or more at Camp Lejeune between 1953 and 1987 and contract a number of diseases, including Parkinson’s disease, the VA deems the diagnosis is service-connected due to contaminated water there during this timeframe. The applicant applied for and was granted a service-connected VA disability rating for his diagnosis of Parkinson’s disease on 9 September 2019 and in January 2020, he learned he would be losing his civilian job as a police officer effective 18 April 2020, due to this medical condition. He subsequently looked to apply for disability benefits through the military based on the loss of his civilian job due to his medical condition that was incurred during his military service. On 4 April 2020, he learned that in order to do so he would have to apply to an LOD for the 1987 contaminated water exposure and his chain of command would have to further appl for an exception to policy to do so due to the lapse in time. c. On 26 May 2020, the applicant’s commander, COL signed the form indicating the injury is considered to have been incurred in the LOD and that a formal LOD investigation was not required. 19. A USAR Command (USARC) memorandum, dated 15 July 2020, shows the following: a. The applicant was notified of his medical disqualification due to non-duty related medical condition. A determination was made that he no longer met Army medical standards for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, due to his permanent physical profile ratings of 3 and 4 for conditions listed on his DA Form 3349 (Physical Profile Record). b. He was provided with a copy of his DA Form 5016 (Chronological Statement of Retirement Points) for his verification of years of creditable military service and was advised on how to rectify any discrepancies with his DA Form 5016. c. Per a medical records review by an ARMMC Nurse Case Manager and Profiling Medical Provider, his conditions were determined to be non-duty related (NDR). The applicant did not have an approved LOD for his conditions and per review, his conditions and/or circumstances of said conditions did not meet IDES referral memorandum criteria. d. He was advised he had one of four options available to elect, as follows: (1) Option A, USAR Military Retirement: in order to elect this option he must have 20 or more creditable years of service. This is not a medical retirement and any benefits eligible to him would be received at age 60, minus qualified active duty years after 2008. (2) Option B, Early USAR Military Retirement: in order to qualify for this option he must have 15 years but less than 20 years of creditable years of service. This is not a medical retirement and any benefits eligible to him would be received at age 60, minus qualified active duty years after 2008. (3) Option C, Honorable Discharge: honorable final discharge is available in the event he had less than 15 years of creditable service. (4) Option D, PDES: this is also commonly referred to as the non-duty Physical Evaluation Board (NDPEB). This is not a Medical Evaluation Board (MEB). The main purpose of this election is for a board to make a final determination of your medical fitness for retention and/or separation. The NDPEB does not make any determination of benefits of any kind. e. The applicant was advised he had 45 days in which to make an election. If he believed his condition was duty-related, had had until the suspense date to provide all required documents that support an LOD or Integrated Disability Referral Memorandum (IDRM) and was provided with a list of the required documents, including the following: (1) Documentation showing he was on active duty greater than 30 days when the injury/illness occurred. (2) Medical documentation showing he received a valid diagnosis during the active duty period. Medical records must identify when the condition first became an issue, the first valid diagnosis (must have been made during an active duty period), and all follow-on treatment and updates of the condition to current date. A VA Rating or service-connection alone is not considered for the approval of an IDRM. (3) A clear synopsis of circumstances, preferably reflected by medical records during the active duty timeframe, documenting how the military duty caused/incurred the injury illness or how the military duty aggravated and permanently worsened the condition beyond the normal progression of the injury/illness. Simply being in a qualified duty status (QDS) and receiving DOD healthcare does not automatically make a condition duty related. 20. A DA Form 5016, dated 15 July 2020, shows the applicant completed 32 years, 6 months, and 17 days of qualifying service for retirement. 21. In a Statement of Understanding and Election of Options/Acknowledgment of Notification of Medical Unfitness for Retention, the applicant signed the form on 19 August 2020, indicating the following: * he acknowledged receipt of the Notification of Medical Unfitness for Retention and available options * he understood counseling was available through the Office of Soldiers’ Counsel * he understood that if he chooses PDES, he must remain in a drilling status within the limits of his profile with no adverse actions in order to continue in the PDES Board process * he understood that it was his responsibility to comply with all medical documentation requests and suspense dates * he understood he did not meet the Army’s medical retention standards and he must choose one of the options A to D * he requested option D, referral to PDES for a final determination of his medical fitness for retention and/or separation per Army Regulation 40-501 and Army Regulation 635-40 22. A VA Rating Decision, dated 1 September 2020, shows the applicant was granted service-connection for the following conditions with the following disability ratings, effective 4 March 2020: * generalized anxiety disorder, 100 percent * difficulty swallowing due to Parkinson’s disease, 0 percent * Parkinson’s disease with tremors and muscle rigidity, left upper extremity, continued at 20 percent * masked facies with bradykinesia and left cheek numbness, continued at 10 percent * hearing loss, left ear, continued at 0 percent 23. A USARC ARMMC memorandum for the Commander USAPDA, dated 19 March 2021, shows the following non-duty related referral: a. The applicant’s diagnosis was Parkinson’s disease. b. The medical basis for the diagnosis shows the applicant initially visited the Keller Army Community Hospital on 9 December 2011, after returning from Iraq. He had complaints of decreased energy after exertion such as physical training and similar cardiovascular events. Initial evaluation was negative. At the time of diagnosis, the applicant noted having an onset of Parkinson-like symptoms in 2013/2014, including unsteady gait, stiffness, masked facial expression, slow thinking, visual disturbance, and difficulty swallowing. His Parkinsonism continued to progress. After reporting neurological symptoms to his PCP including decreased cognition and tremor, he was seen by Internal Medicine and Neurology and diagnosed with Parkinson’s disease, He was started on medications and referred to VA Neurology for continued evaluation and treatment. c. The basis for non-duty related vs. duty-related process shows the applicant had been provided an opportunity to support IDRM and/or LOD to determine if the condition could have ben duty related. He was found not eligible for IDRM or LOD, reference Medical Disqualification memorandum sent to the applicant for full details on the requirements/criteria for each. [Note to the Board, this document is not in the applicant’s available records for review.] Key note, a VA Rating or service connection has no bearing on IDRM or LOD eligibility, processing, or determination. Specific to this applicant’s case, the main reason his case did not meet IDRM criteria for Parkinson’s disease was his valid diagnosis was not made during the active duty period, exceptions apply to behavioral health, however in this case there was not enough evidence to support a link to the active duty period. The main reason this case did not meet LOD criteria for Parkinson’s disease was the applicant cannot provide incidents or circumstances where military duty caused the condition or aggravated it beyond normal progression and permanently worsened the condition. d. As a result of this condition, the applicant has a permanent P3 profile. He is restricted from functional activities a through f on DA Form 3349 and has a lifting/carrying restriction of 15 pounds. He should not be required to participate in physical exercise and should not be deployed or assigned field training exercises. He cannot perform the Army Physical Fitness Test (APFT) or the Army Combat Fitness Test (ACFT) events or alternate cardo events. HE should not participate in group physical readiness training. He may participate in individual physical readiness training as his own pace and distance. e. The applicant has difficulties completing tasks and/or duties to standards and cannot perform in a field environment or perform strenuous activity. He is unable to perform any significant military tasks or duties because of his medical conditions and is unable to contribute to the unit’s mission. He should not be required to participate in unit physical exercise and should not be deployed or assigned to field training exercises. f. The medical retention standards of Army Regulation 40-501, paragraph 3-21(d) apply due to the applicant’s Parkinson’s disease. Progressive degenerative disorders of the basal ganglia and cerebellum, including Parkinson’s disease, Huntington’s chorea, hepatolenticular degeneration, and variants of Friedreich’s ataxia do not meet medical retention standards. 24. A DA Form 199 shows the following: a. An IPEB convened on 12 April 2021, where the applicant was found physically unfit and that his disposition be referral for case disposition under Reserve Component regulations. b. The applicant’s unfitting condition is listed as Parkinson’s disease (non- compensable). Non-duty related case. The applicant was diagnosed with this condition in 2019. The condition is not compensable because at the time the Soldier was diagnosed with this condition, he was not in an active duty status for more than 30 days or entitled to base pay and there is no LOD investigation for this condition. Additionally, there is no evidence in his available case file that indicates military service has aggravated this condition. He is unfit because his DA Form 3349 shows functional activity limitations associated with this condition make him unable to reasonably perform required duties. c. On 21 April 2021, the applicant signed the form indicating he did not concur with the findings and recommendations of the IPEB and demanded a formal hearing, attaching his written appeal. He also indicated he requested personal appearance before the FPEB and requested regularly appointed counsel. 25. A memorandum from the Soldiers’ MEB Counsel Office to the PEB President, dated 22 April 2021, shows the following: a. This memorandum constituted the applicant’s written appeal of the IPEB decision and request for a FPEB. The applicant concurred that he was unfit for duty due to his Parkinson’s disease; however, he disagreed with the determination that this was non- duty related and requested a FPEB to provide evidence that it should be considered in the LOD/duty-related. b. While in the U.S. Marine Corps, the applicant was stationed at Camp Lejeune in the late 1980s, where he was exposed to hazardous contaminants in the drinking water. Parkinson’s disease is one of the illnesses that are presumptively considered to have been caused by the exposure to the contaminants in the water supply. The VA granted him service-connection and an overall rating of 100 percent for his Parkinson’s disease and generalized anxiety disorder, secondary to his Parkinson’s disease. Because his active duty service at Camp Lejeune presumptively caused his unfitting Parkinson’s disease, he requests the PEB to determine this condition is duty-related and reinitiate his case as a duty-related case. c. Additionally, it appears the PEB was not informed that an informal LOD investigation was directed by the AHRC and was then currently underway, with a completion suspense date of 31 May 2021. He requested the PEB pause the processing of his non-duty related PEB until the completion of the informal LOD investigation. 26. A USAPDA memorandum to the applicant, dated 12 May 2021, shows the following: a. The applicant was advised the PEB received his appeal to the IPEB dated 22 April 2021, and that his appeal was carefully considered and his case reviewed. Following the review of his case, the Board adhered to the original findings and recommendations of the IPEB. b. In his appeal, the applicant contended his Parkinson’s disease is service- connected as a result of service in the U.S. Marine Corps at Camp Lejeune in the late 1980s where he was exposed to hazardous contaminants in the drinking water. He provided as support a VA Rating Decision which made the determination his Parkinson’s disease was service-connected. VA Rating Decisions or service-connection have no bearing on LOD eligibility, processing or determination. c. Further, although evidence shows he served in the Marine Corps, no evidence such as orders were provided that pertained to his assignment to Camp Lejeune during the timeframe indicated in his appeal. At such time that the results of the informal LOD become available, the PEB requests the applicant sent that for review prior to his FPEB in order to possibly move his case to a faster resolution. The FPEB only determines fitness for duty, which according to the applicant’s appeal he agrees with that determination at this time. d. His appeal will be included in his case file for consideration during his FPEB, which was scheduled for 21 October 2021. 27. A second DA Form 2173 reflects the same details contained on the first DA Form 2173 and is signed by his then commander, COL on 13 October 2021, indicating the illness was considered to have been incurred in the LOD and that a formal LOD investigation was not required. 28. Email correspondence with officials at AHRC, LOD/LOD Appeal/Policy section, dated between 7 -14 October 2021, shows that there had been no LOD directed pertaining to the applicant. An informal investigation cannot be done for Parkinson’s disease if the Soldier was on orders for less than 30 days, and only when directed by a higher authority (AHRC) could a formal LOD investigation be done and none had been directed. 29. A memorandum from Office of Soldiers’ Counsel to the PEB President, dated 20 October 2021, shows the following: a. The applicant contended he be maintained as unfit for Parkinson’s disease and that he is unfit for both generalized anxiety disorder as secondary disability of Parkinson’s disease and Parkinson’s disease with tremors and muscle rigidity, left upper extremity. b. The applicant requested the PEB make a factual determination as to whether all conditions associated with Parkinson’s disease were the result of water contamination while serving at Camp Lejeune, NC and follow 38 CFR that Parkinson’s disease is subjective to presumptive service connection. He furthermore requested his case be terminated and restarted as an IDES case. c. The applicant provided multiple health and service records, as well as fact sheets excerpts from 38 CFR, and medical articles, as listed on the memorandum. 30. The applicant provided a partial copy of the 8 November 2021 FPEB hearing transcript, which has been provided in full to the Board for review, wherein the applicant provides sworn testimony regarding the onset of the manifestation of his Parkinson’s disease symptoms and his exposure to toxins and Camp Lejeune, NC, among other deployed locations. 31. An LOD Advisory Opinion, signed by the Director, Casualty and Mortuary Affairs Operations Division, AHRC, dated 13 January 2022, shows the following: a. The AHRC received an advisory opinion request from the Joint Base San Antonio (JBSA) NDR PEB, requesting an LOD advisory opinion for the applicant regarding his unfitting conditions of Parkinson’s disease, generalized anxiety disorder as secondary disability of Parkinson’s disease, and Parkinson’s disease with tremors and muscle rigidity, left upper extremity. b. After a thorough review and a medical opinion obtained by the AHRC Surgeon General’s office, the applicant’s Parkinson’s disease was not incurred or aggravated by military service. Continue processing this claim as NDR. c. The number of days the applicant was in a duty status or when his disease was diagnosed should have no bearing on why the ARMMC would send a case as non-duty related or duty-related (unless the Soldier served on active duty orders greater than 30 days); that decision is based on a preponderance of evidence and medical evidence presented by the Soldier as well as medical evidence located in the various programs that contain medical records. d. Armed Forces Health Longitudinal Technology Application (AHLTA) notes for the applicant from December 2011 indicate fatigue after cardiovascular events, but fatigue alone is not an indicator of a specific diagnosis as it could be a symptom of many different disease processes. e. AHLTA notes in September 2014 indicate the applicant had an episode of left shoulder strain of the biceps tendon. No abnormalities were found upon examination of the shoulder and some bicep pain was evident with resisted flexion, but is possibly due to ongoing weight lifting despite a decrease in the amount of weight used. f. The VA provided the applicant with a presumed diagnosis, but that is not indicative of a specific cause of a disease process or service aggravation. The AHRC Surgeon General’s office reviewed information from the Parkinson’s Foundation where it was noted an individual can improve their Parkinson’s disease process at every stage by ensuring an individual stays fit and receives adequate sleep and proper nutrition. Exercise is particularly important for improving mobility, stamina, mood, and quality of life. g. Based on a review of all the documentation provided by the applicant and a review of AHLTA notes, the Parkinson’s diagnosis was not service aggravated. 32. A DA Form 199-1 shows the following: a. An FPEB convened on 20 January 2022, where the applicant was found physically unfit and that his disposition be referral for case disposition under Reserve Component regulations. b. The applicant’s unfitting condition is listed as Parkinson’s disease (non- compensable). Non-duty related case. The applicant was diagnosed with this condition in 2019. The condition is not compensable because at the time the Soldier was diagnosed with this condition, he was not in an active duty status for more than 30 days or entitled to base pay and there is no LOD investigation for this condition. Additionally, there is no evidence in his available case file that indicates military service has aggravated this condition. His is unfit because his DA Form 3349 shows functional activity limitations associated with this condition make him unable to reasonably perform required duties. c. At a Formal Board hearing held on 8 November 2021, the applicant contended that he be maintained as unfit for his Parkinson’s disease condition and requested that this condition be determined as in the LOD. Additionally, he requested to be found unfit for generalized anxiety disorder as secondary disability to Parkinson’s disease and Parkinson’s disease with tremors and muscle rigidity, left upper extremity. The Board performed a review of the entire case file, to include the applicant’s contention memorandum with exhibits A-O, dated 20 October 2021, and there was no new medial evidence received that these conditions occurred during a period of active duty status of more than 30 days or entitled to base pay, and there is no LOD investigation for the conditions. The conditions are not compensable because the PEB’s review of available military and civilian medial records dis not reveal any evidence that the conditions were either incurred or aggravated while on active duty. The applicant testified that the Parkinson’s disease condition is directly related to service while in the U.S. Marine Corps while stationed at Camp Lejeune in 1987. He testified that he was diagnosed with this condition in May 2019 and profiled for this condition in November 2019. He affirmed that he had applied for and received notification from the VA’s disability rating for his diagnosis of Parkinson’s disease in September 2019. The IPEB determined no change to the Informal Proceedings, dated 21 April 2021 and the Formal Board affirms the findings of the Informal Board. d. Based on all the information available and provided by the Soldier via his counsel, the Formal Board held on 8 November 2021 had determined this case was properly adjudicated and found the Soldier unfit and non-duty related. His condition prevents him from performing duty in accordance with his DA Form3349-SG, Section 4, functional activities. This condition is medically unacceptable and prevents worldwide deployment in a field or austere environment; therefor the Soldier is unfit. e. The PEB however sought an advisory opinion via correspondence to AHRC on 16 November 2021, as requested at the behest of the Soldier’s counsel. The AHRC reaffirmed the finding in a response dated 13 January 2022. After a comprehensive review and a medical opinion obtained by the ARHRC Surgeon General’s office, it was determined that the applicant’s Parkinson’s disease, generalized anxiety disorder as secondary disability of Parkinson’s disease, and Parkinson’s disease with tremors and muscle rigidity, left upper extremity were found to have not incurred or been aggravated by military service. Furthermore, AHRC endorsed to continue processing this case as non-duty related. The formal hearing was adjudicated in accordance with Army Regulation 635-40 and will be forwarded to the USAPDA for further review and processing. f. On 31 January 2021, the applicant signed the form indicating he did not concur with the findings and recommendations of the FPEB and attached his written appeal. 33. A memorandum from the Office of Soldiers’ Counsel, dated 4 February 2022, appealed the FPEB decision and requested reconsideration, stating the following: a. The applicant wishes to appeal the PEB decision and requests reconsideration. He disagrees with the AHRC decision dated 13 January 2022 and objects to is use in the USAPDA/PEB findings because of mistake of law. He requests the PDA maintain him as unfit for Parkinson’s disease, find him unfit for generalized anxiety disorder as secondary disability of Parkinson’s disease, and as unfit for Parkinson’s disease with tremors and muscle rigidity, left upper extremity. He requests all the above conditions be found as compensable and his case terminated and restarted as an IDES case b. The applicant requests a copy of the AHRC Surgeon General’s office medical opinion that was used in the advisory opinion. Since the applicant and his counsel have not reviewed the AHRC Surgeon General’s opinion, they object to the use of the advisory opinion for PEB purposes. They request that the APDA suspend its final adjudication until AHRC provides a written copy of The Surgeon General’s medical opinion as there is no possible way to contest it without this information. c. They specifically request that AHRC seek a legal review regarding the applicant’s contention that Parkinson’s disease is subject to presumptive service connection in accordance with 38 C.F.R., section 3.309(f). AHRC clearly does not understand the concept of “presumptive service connection.” Congress has clearly determined that service members exposed to water contamination while service at Camp Lejeune, NC would have their conditions service connected and it would be presumed that conditions like Parkinson’s disease were cause by military service. d. The preponderance of the evidence shows the applicant had symptoms of Parkinson’s disease which started while on active duty longer than 30 days. They ask the APDA to make their own determination as to whether they believe the applicant’s medical conditions are compensable and not rely on the AHRC advisory opinion, which is not a formal LOD determination. 34. A USAPDA Memo to the Office of Soldiers’ Counsel, dated 14 February 2022, shows the following: a. They noted the applicant’s disagreement with the findings of the FPEB and reviewed the entire case, wherein he non-concurs with the FPEB findings, requesting that his referred condition of Parkinson’s disease, as well as the conditions of generalized anxiety disorder as secondary disability of Parkinson’s disease and Parkinson’s disease with rigidity, left upper extremity, be identified as compensable and his case terminated and restarted as an IDES case. b. A review of the eProfile system reveals the applicant has never been on a physical profile for a behavioral health condition. On 13 January 2022, an AHRC LOD advisory opinion was obtained. They note that when an LOD advisory opinion has been requested and obtained, the USAPDA is not the appellate authority for LOD determinations. c. The evidence submitted with this request for reconsideration was essentially the same evidence as was submitted prior to the FPEB convening, with the addition of an email regarding the advisory opinion, and was all thoroughly reviewed and considered. They do not have evidence that allows them to conclude differently than the FPEB and refer to the conclusion summary provided on the DA Form 199-1, dated 20 January 2022. The applicant is found unfit for the condition of Parkinson’s disease. The conditions of generalized anxiety disorder as secondary disability of Parkinson’s disease and Parkinson’s disease with rigidity, left upper extremity are not unfitting. d. Their conclusion is that this case was properly adjudicated by the FPEB, which correctly applied the rules that govern the PDES in making its determination. The findings and recommendations of the FPEB are supported by a preponderance of the evidence and are therefore affirmed. The issues raised in your 4 February 2022 appeal were adequately addressed by the PEB in its Formal Board proceedings and they concur with the findings. The applicant was advised of his right to apply to the ABCMR if he felt their findings were in error. 35. Headquarters, 99th Readiness Division (USAR) Orders 22-073-00030, dated 14 March 2022, reassigned the applicant from his current assignment in the USAR to the Retired Reserve effective 1 April 2022, due to medical disqualification – not result of own misconduct. 36. An opinion written by Dr. , dated 28 June 2022, provided in full to the Board for review, shows he concludes that the applicant’s development of Parkinson’s disease is more likely than not caused by his exposure to trichloroethylene (TCE) at Camp Lejeune in 1987, and by his exposure to agent Orange at Fort McClellan, Alabama in 1990 to 1991 and 1996, and he summarizes medical studies supporting this view. 37. A statement from COL, dated 5 July 2022, shows she took command of the 1st Brigade, Atlantic Training Division in April 2019, and was made aware of concerns about the applicant’s physical and mental conditions which he had manifested while performing IDT during multiple MUTAs, where he appeared to be mentally out of things. She had an opportunity to interact with him personally and it was readily apparent to her that something was not right with him. His movements were very slow and lethargic and his speech was halted, like he was searching for words. In April 2019, she spoke to the applicant as his commander and told him she did not know what was going on with him, but that based on her observation of him and the reports of others during battle assembly periods, something was not right with him and she was not going to allow him to deploy with the unit to Europe for the upcoming mission until he met with a medical provider. She instructed him he needed to be checked and cleared by a physician before she would reconsider her decision to not allow his participation in the European based exercise. Approximately 1 or 2 weeks later, in about May 2019, the applicant called her and told her he had bene diagnosed with Parkinson’s disease. As a result, he did not participate in the unit’s training exercise in Europe and a subsequent parallel medical separation board was initiated in addition to his upcoming retirement related to his Mandatory Retirement Date (MRD). 38. A statement from COL, dated 12 July 2022, shows the applicant was an officer under his command between 2017 and 2019, when he commanded the 1st Brigade, Atlantic Training Division, 84thTraining Command. Prior to his change of command with COL, he addressed with her his perceptions of the applicant’s mental and physical slowness and his concern about whether this noticeable slowness might warrant not sending him to Europe for their training mission. He also addressed these concerns with the applicant during a drill period, who assured him he was fine and comfortable with his ability to support the upcoming mission in Europe. 39. An opinion written by Dr., dated 30 September 2022, and provided in full to the Board for review, concludes that it is more likely than not that the applicant’s Parkinson’s disease was aggravated during periods of active duty service in Iraq (2008 to 2009 and 2011 to 2012) and Djibouti (2012 to 2013), that is, the condition was made worse over and above the natural progression of the condition (including a more rapid progression) absent that service, through his exposure to fine particulate matter (PM2.5) from the smoke of open burn pits as well as sand, dust, and other contaminates. 40. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 41. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 42. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 43. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting revocation of orders transferring him to the Retired Reserve and that he me permanently retired for physical disability with a disability rating of 75%. He states through counsel: “The PEB's [physical evaluation board] decision, and the HRC [Human Resources Command] advisory opinion on which it was based, were erroneous because each failed properly to consider he evidence establishing that Colonel [Applicant]'s Parkinson's disease was incurred or aggravated during periods of active duty more than 30 days. Both the PEB and HRC failed to consider the direct medical evidence reflected in Colonel [Applicant]’s VA medical records that his attending neurologist had concluded his Parkinson's disease was caused by his exposure to the toxins in the contaminated water supply at Camp Lejeune in 1987 ... The HRC advisory opinion was improperly speculative when it concluded that the left-biceps pain that Colonel [Applicant] manifested on active duty in 2013 and 2014, was ''possibly due to ongoing weight lifting," speculation prohibited by AR 635-40 [Physical Evaluation for Retention, Retirement, or Separation (19 January 2017)] and that was belied by the objective evidence of service connection reflected in the continuity of symptoms of the left-biceps stiffness in 2013/2014, and the left arm and shoulder symptoms observed in 2019, when Colonel Finkle was diagnosed with Parkinson's disease ... Dr., a board-certified neurologist, concludes that Colonel [Applicant]’s development of Parkinson’s disease was more likely than not caused by his exposure to trichloroethylene at Camp Lejeune in 1987, and by his exposure to Agent Orange at For McClellan, Alabama in 1990 to 1991, and 1996. Dr., board-certified in internal medicine, concludes that it is more likely than not that Colonel [Applicant]’s left-biceps pain in 2013 and 2014, when he was on active duty, was an initial manifestation of his Parkinson's disease. Dr. also concludes that it is more likely than not that Colonel [Applicant]’s Parkinson's disease was aggravated during periods of active duty service in Iraq (2008 to 2009, 2011 to 2012) and Djibouti (2012 to 2013), that is, the condition was made worse over and above the natural progression of the condition (including a more rapid progression) absent that service through his exposure to fine particulate matter from the smoke of open burn pits as well as sand, dust, and other contaminants ... Even if the ABCMR mistakenly should concludes that there is insufficient evidence of a material error or injustice with regard to the PEB's determination that Colonel [Applicant]’s Parkinson's disease was neither incurred nor aggravated during periods of active duty more than 30 days, Colonel Finkle nevertheless remains entitled to full relief under 10 U.S.C. § 1204, because his Parkinson’s disease manifested during IDT and thus was incurred or aggravated in the line of duty while performing that IDT.” The Record of Proceedings details the former drilling USAR Officer’s service and the circumstances of the case. c. The applicant was diagnosed with Parkinson’s disease in May 2019. He was placed on a duty limiting temporary physical profile for Parkinson’s disease on 2 November 2019. This was converted to a permanent physical profile on 9 June 2020. He was notified in a 15 July 2020 memorandum from the Unites States Army Reserve Command’s Army Reserve Medical Management Center that he had a medical condition which was disqualifying for further military service. A separate document was presented him with a set of elections to choose from as to how he wished to proceed. His suspense date for his election was 29 August 2020, and on 17 August 2020, the applicant elected a non-duty related physical evaluation board. d. A non-duty related physical evaluation board (NDR PEB) allows Reserve Component (RC) Service Members who are not currently on a call to active duty of more than 30 days and who are pending separation for non-duty related medical conditions but desire to remain in their component to enter the Disability Evaluation System (DES) for a determination of fitness. The NDR PEB affords these Soldiers the opportunity to have their fitness for duty determined under the standards that apply to Soldiers who have the statutory right to be referred to the DES for a duty related medical condition. After 2014, these boards also look to see if the referred condition(s) were duty related, and if so, return them to the sending organization for entrance into the duty related processes of the DES. e. On 12 April 2021, his informal PEB (IPEB) found his Parkinson’s disease was an unfitting condition for continued military service and that it was nonduty related and therefore non-compensable. They recommended the Officer’s case be referred for disposition under Reserve Component Regulations. On 21 April 2021, the applicant non-concurred with the PEB and requested a formal hearing with regularly appointed counsel. The PEB granted his request. f. The applicant was present for and represented by regularly appointed counsel at his 20 January 2022 formal PEB. Experts from the Formal Physical Evaluation Board (PEB) Proceedings (DA Form 199-1): “At a Formal Board hearing held on 8 November 2021, COL [Applicant] contended that he be maintained as unfit for his Parkinson's disease condition and requested that this condition be determined as in the line of duty. Additionally, he requests to be found unfit for generalized anxiety disorder as secondary disability of Parkinson's disease and Parkinson's disease with tremors and muscle rigidity, left upper extremity. The Board performed a review of the entire casefile, to include the Soldier's Contention memorandum with exhibits A- O, dated 20 October 2021, and there was no new medical evidence received that these conditions occurred during a period of Active-Duty status for more than 30 days or entitled to base pay, and there is no Line of Duty investigation for the conditions. The conditions are not compensable because the PEB's review of available military and civilian medical records did not reveal any evidence that the conditions were either incurred or aggravated while on active duty. COL [Applicant] testified that the Parkinson's disease condition is directly related to service while in the U.S. Marine Corps while stationed at Camp Lejeune in 1987. The Soldier testified that he was diagnosed with this condition in May 2019 and profiled for this condition in November 2019. COL [Applicant] affirmed that he had applied for and received notification from the Veteran Affairs' disability rating for his diagnosis of Parkinson's disease in September 2019. The IPEB determined no change to the Informal Proceedings, dated 21 April 2021 and the Formal Board affirms the findings of the Informal board. Based all the information available and provided by the Soldier via his counsel, the Formal Board held on 8 November 2021 had determined this case was properly adjudicated and found the Solider unfit and non-duty related. The Soldier's condition prevents them from performing duty in accordance with the Soldier's DA Form3349-SG, Physical Profile, Section 4 functional activity 24f (live and function, without restrictions in any geographic or climatic area without worsening condition). IAW AR 635-40 5-4, e(2) this condition is medically unacceptable and prevents worldwide deployment in a field or austere environment; therefore, the Soldier is unfit. The PEB however sought an advisory opinion via correspondence to HRC on 16 November 2021 as requested on the behest of the Soldier's counsel. The U.S. Army Human Resources Command (AHRC) reaffirmed the finding in a response dated 13 January 2022. After a comprehensive review and a medical opinion obtained by the AHRC Surgeon General's office, it was determined that COL [Applicant]'s Parkinson's disease; generalized anxiety disorder as secondary disability of Parkinson's disease; and Parkinson's disease with tremors and muscle rigidity, left upper extremity: were found to have not incurred or been aggravated by military service. Furthermore, HRC endorsed to continue processing this case as (NDR) non-duty related. The formal hearing was adjudicated IAW AR 635-40 and will be forwarded to the U.S. Physical Disability Agency for further review and processing.” g. Contrary to counsel’s assertion, the applicant does not have an affirmative line of duty determination: The two Statements of Medical Examination and Duty Status (DA Form 2173) submitted with the application simply reference the presumed service connection granted by the Veterans Benefits Administration discussed above; and they are without the required approval memorandums from an approval authority acting on behalf of the Secretary of the Army and so are not valid. h. As noted, the applicant’s counsel requested the PEB reach out to the United States Army Human Resources Command (USAHRC) for a line of duty determination as provided for in paragraph 4-19 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017): 4–19. Processing cases for physical disability separation The U.S. Army Physical Disability Agency (USAPDA) or PEB processing cases for physical disability separation are not bound by prior LOD determinations. When the USAPDA or PEB believes that a prior LOD finding may be incorrect, a request for review should be sent to: Commander, U.S. Army Human Resources Command (USAHRC) … clearly detailing the reason for such action. The Adjutant General to the Army (TAG) at USAHRC oversees and manages the Army’s line of duty processes as directed by the Deputy Chief of Staff, G-1. Paragraph 1-7c(1) of AR 600-8-4 Line of Duty Policy, Procedures, and Investigations (15 March 2019): “1–7. Deputy Chief of Staff, G–1 The DCS, G–1 will — Maintain functional responsibility for LOD determinations. The following specific tasks may be delegated, but not below The Adjutant General (TAG): Have functional responsibility for LOD determinations and act for the Secretary of the Army (SECARMY) on all LOD determinations and appeals referred to Headquarters, Department of the Army and all exceptions to provisions described in this regulation. i. Thus, the PEB deferred to USAHRC’s 13 January determination the applicant’s Parkinson’s disease was not incurred in the line of duty: “The U.S. Army Human Resources Command (AHRC) received an advisory opinion request from the Joint Base San Antonio (JBSA) NDR PEB requesting an LOD advisory opinion for COL [Applicant], regarding his unfitting conditions of Parkinson's disease, generalized anxiety disorder as secondary disability of Parkinson's disease and Parkinson's disease with tremors and muscle rigidity, left upper extremity. After a thorough review and a medical opinion obtained by the AHRC Surgeon General’s office, COL [Applicant]’s Parkinson’s disease was not incurred or aggravated by military service. Continue processing this claim as NDR.” j. The applicant non-concurred and submitted a written appeal to the United States Army Physical Disability Agency. In their 14 January 2022 response, the Agency confirmed the finding of the Formal PEB, noting the submitted evidence was essentially the same and USAHRC’s determination the condition was not related to his military service. For simplicity, counsel’s additional contentions will be addressed in chronological order. A DD 214 shows the applicant entered the United States Marine Corps at Ft. Jackson SC, on 13 May 1987 and then served at and was subsequently separated from Camp Lejeune, NC on 17 September 1987. This period of Service is not in question nor is the Veterans Benefits Administration policy of presumptively service connecting a Veteran’s Parkinson’s disease if he or she served at Camp Lejeune for more than 30 days between August 1, 1953, to December 31, 1987. However, as correctly noted in the United States Army Physical Evaluation Board’s 12 May 2021 response to the applicant’s appeal: “VA Ratings or Service connection have no bearing on LOD [Line of Duty] eligibility, processing, or determination.” k. The requirements for an affirmative Army line of duty determination vice a Veterans Benefits Administration (VBA) service connection, though similar, are different in several respects and neither entity is required to observe the findings of the other, this being one of those. The VBA presumptively service connects conditions related to a period of Service in a given geographic region which has been linked to environmental contaminants / factors associated the with the potential to develop one or more associated conditions. Vietnam with possible exposure to agent orange is the best- known example of this policy. While there is typically no direct cause and effect for a given individuals development of a covered presumptive medical condition, giving this benefit to the Veteran with a period of service in one of these regions provides health care and other benefits to Veterans with diseases which may be due to such service incurred exposures. l. For a condition to be determined to have occurred in the line of duty, the presumption upon which the VBA’s service aggravation is based is not the standard: The preponderance of the evidence must show this Soldier’s given medical condition was incurred during or permanently aggravated by their military service. m. DD 214s show the applicant was stationed at Ft. McClellan from 20 October 1990 thru 20 June 1991 and again from 15 March 1996 thru 2 August.1996. At the present time, exposure to contaminants while serving at Fort McClellan is not associated with an increased risk for or the development of any diseases. From the U.S. Department of Veterans Affairs’ website: Public Health Potential Exposure at Fort McClellan Fort McClellan was an Army installation in Alabama that opened in 1917 and closed in 1999 as part of the Army Base Closure and Realignment Committee (BRAC) program. Some members of the U.S. Army Chemical Corps School, Army Combat Development Command Chemical/Biological/Radiological Agency, Army Military Police School, and Women's Army Corps, among others, may have been exposed to one or more of several hazardous materials, likely at low levels, during their service at Fort McClellan. Potential exposures could have included, but are not limited to, the following: - Radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base. - Chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base. - Airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town. Although exposures to high levels of these compounds have been shown to cause a variety of adverse health effects in humans and laboratory animals, there is no evidence of exposures of this magnitude having occurred at Fort McClellan.” (https://www.publichealth.va.gov/exposures/fort-mcclellan/) n. Counsel states: “Dr. also concludes that it is more likely than not that Colonel [Applicant]’s the applicant’s “Parkinson's disease was aggravated during periods of active duty service in Iraq (2008 to 2009, 2011 to 2012) and Djibouti (2012 to 2013), that is, the condition was made worse over and above the natural progression of the condition (including a more rapid progression) absent that service through his exposure to fine particulate matter from the smoke of open burn pits as well as sand, dust, and other contaminants.” o. There is no evidence these exposures caused his Parkinson’s disease, and they could not have permanently service aggravated a condition which was not known to exists at the time of these periods of active duty and which Counsel claims had an onset one year later, in April 2014. p. A DD 214 shows the applicant was on active duty in support of Operation Noble Eagle from 1 October 2013 thru 30 September 2014. During his demobilization in September 2014, the applicant mentioned a six-month history or left shoulder/upper arm pain. From the 15 September 2014 AHLTA encounter: “The Chief Complaint is: Left upper arm shoulder pain onset April 2014. History of Present Illness: Patient complains of approximately 6 months of left arm/shoulder discomfort, 3/10 pain. Patient denies overt trauma to the area. He admits to weightlifting although at reduced weights. Has not used OTC's [over- the counter medication].” q. The physician’s examination of the left shoulder was normal except for “some bicep pain with resisted [elbow] flexion.” He was diagnosed with a left biceps tendon strain, treated conservatively, and directed to follow-up with his primary care manager as needed. Counsel states: The HRC advisory opinion was improperly speculative when it concluded that the left-biceps pain that Colonel [Applicant] manifested on active duty in 2013 and 2014, was ''possibly due to ongoing weightlifting," speculation prohibited by AR 635-40 and that was belied by the objective evidence of service connection reflected in the continuity of symptoms of the left-biceps stiffness in 2013/2014, and the left arm and shoulder symptoms observed in 2019 …” r. It is speculative that the applicant’s left upper extremity symptoms were related to weightlifting or that they represented the onset of his Parkinson’s disease: Neither is supported in the medical record or by other probative evidence. In addition, when the applicant was seen for a new patient primary care consult at a Veterans Hospital Administration facility on 29 April 2016, there was no mention of left upper extremity pain and/or stiffness or neurological complaints: “Mr. [Applicant] is a 48-year-old male who present for initial consult visit today, previously has not been followed by any med providers for many years, pointedly states he has been well and “Has not needed any care.” Past Medical History: Hyperlipidemia Gastrointestinal problems start: 2015/16 … Tinnitus: Began in 2011 while patient deployed to Iraq … Back pain: Has had pain in his lumbar region related to sitting or standing for extended periods of time. Has seen chiropractor and PT in the past with some success in the past. Past Surgical History: No surgeries Finally, counsel states in part: “ … Colonel Finkle nevertheless remains entitled to full relief under 10 U.S.C. § 1204, because his Parkinson’s disease manifested during IDT [inactive duty for train, aka “drill”] and thus was incurred or aggravated in the line of duty while performing that IDT.” s. There is no probative evidence the applicant’s Parkinson’s disease was either caused or permanently service aggravated by his service during a drill weekend. In this case, the applicant’s Parkinson’s disease would be termed “Existed Prior to Service” (EPTS). t. When looking at diseases presenting or being diagnosed during a call to active service of less than 30 days, Army regulations require there be a cause-and-effect relationship between the Soldier’s service and the onset or permanent service aggravation of the condition in order for it to be determined to have been incurred in the line of duty. When a disease (e.g., a cancer, diabetes, or a mental health condition) presents or is diagnosed during a drill weekend or annual training, it is more likely than not that the condition was not caused by their military service and had been incurred between periods of Reserve Component service. When this is the case, it is said to have existed prior to service. The AR 600-8-4 glossary definition of existed prior to service: “Any injury, disease, or illness, to include the underlying causative condition, which was sustained or contracted prior to the present period of AD or authorized training or had its inception between prior and present periods of AD or training is considered to have existed prior to service. A medical condition may in fact be present or developing for some time prior to the point when it is either diagnosed or manifests symptoms. Consequently, the time at which a medical condition "exists" or is "incurred" is not dependent on the date of diagnosis or when the condition becomes symptomatic. (Examples of some conditions which may be pre-existing are slow-growing cancers, heart disease, diabetes, or mental conditions, which can all be present well before they manifest themselves by becoming symptomatic.)” u. In the unusual situation where it appears a disease may have been incurred or permanently service aggravated during a period of IDT or Annual Training, paragraph 2- 2d(2)(f) of AR 600-8-4 requires a formal line of duty investigation “When a USAR or ARNG Soldier serving on orders for less than 30 days who becomes disabled due to injury, illness, disease, or death.” v. Review of the applicant’s records in JLV show he has several VA service- connected disability ratings associated with his Parkinson’s disease. However, the DES compensates Service Members when a duty incurred disability led to an early termination of their career and thus prevented their attainment of a military retirement. w. The applicant’s final two Strategic Grade Plate (06) Officer Evaluation Reports (DA Form 67-10-3) were annuals, cover the period from 9 April 2019 thru 28 February 2021, and show he continued to perform his duties and was a successful Officer. He did not take the Army Physical Fitness Tests due to covid-19 restrictions in place at the time. His senior rater opined in his penultimate and final DA 67-10-3 respectively: “Colonel [Applicant] is an experienced senior leader with unlimited potential. is a selfless and dedicated officer who places his Soldiers needs first and understands what it takes to ensure mission success. He would serve best in a senior level staff leadership position.” “Colonel [Applicant] is an experienced leader with unlimited potential and would excel in a joint or interagency senior level staff assignment. 's skills and experience contributed to the mission success of this command and will serve as a valuable resource in the interagency and emergency preparedness sector upon his retirement. He will excel.” x. Review of his PEB case file in ePEB along with his encounters in AHLTA revealed no substantial inaccuracies in or discrepancies. y. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating, a change of his disability discharge disposition, nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence does not support changing the outcome of the applicant’s disability processing. The evidence does not show he had an unfitting duty-related condition that would have been a basis for retirement due to disability. Rather the evidence confirms he had a non-duty related condition that disqualified him from further service. The Board further noted that the VA finding of service-connection for the same condition has no bearing on the Army’s determination because the VA makes its determinations under different statutory authority. Based on a preponderance of the evidence, the Board determined the applicant’s transfer to the Retired Reserve due to medical disqualification was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The non-duty related DES process applies to Reserve Component (RC) Soldiers who are not on active duty and who do not meet medical retention standards because of non-duty related impairments. d. The RC non-duty related process is established by policy. It affords RC Soldiers not on call to active duty of more than 30 days and who are pending separation by the RC for non-duty related medical conditions to enter the DES for a determination of fitness and whether the condition is duty-related. A LOD investigation resulting in a finding of not in LOD is not required when it is clear that the disqualifying disability is non-duty related. For example, RC Soldier’s disqualifying condition is an amputation that was incurred when the Soldier was not in a duty status. e. The Glossary defines non-duty related impairments as impairments of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Soldiers with nonduty related impairments are referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits. 3. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Reserve Component Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40. c. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 (USAR Assignments, Attachments, Details, and Transfers) or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000511 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1