In the United States Court of Federal Claims

No. 16»796
(Filed: July 18, 2017)

 

KARI L. MARTIN, Military Pay, Cornbat Related Special
Compensation, 10 U.S.C. § l4lBa,
Hazardous Service, Administrative

Implementation of a Statute.

Piaintiff,
V.
THE UNITED STATES,

Defendant.

 

Gary R. Myers, Weare, NH, for plaintiff

Douglas G. Edelschz`ck, U.S. Department of Justice _ Commercial Lit. Branch,
Washington, DC, for defendant

OPINION

FUTEY, Senior Judge

This case is before the Court on cross motions for judgment on the administrative
record The administrative record Was filed on September 15, 2016. Defendant filed its
motion on December 15, 2016, While plaintiff filed her cross motion and response on
March 15, 2017. Defendant filed its reply on April l2, 2017, and plaintiff filed her reply
on April 23, 20 l7. Plaintiff Seeks a declaration that the Board of Correction for Naval
Records’ (“BCNR”) interpretation of the Hazardous Duty provision of 10 U.S.C. §

l413a(e)(2)(}3) Was in error, and a remand such that the BCNR may determine the

 

appropriate amount of combat related special compensation plaintiff alleges she is owed.
Defendant argues that the Department of Defense’s (“DoD”) interpretation of the term
“hazardous service” is in accordance With the law, and that the BCNR correctly
interpreted the statute When denying plaintiffs claim for special compensationl

The Court held oral argument on June 22, 2017. The matter is now ripe for
disposition

I. BACKGROUND
a. Factual Background
i. Legal Frameworkfor Militar"y Retiremem‘ Pa.y, VA Disabl`ll`ty
Benefl`rs, and CombaI-Related Specz'al Compensation

Service members of a branch of the United States military are entitled to military
disability retirement pay When an individual suffers from an impairment that renders him
or her unfit for further military service. See Srz`ne v. Um'red Srares, 92 Fed. Cl. 776 (20l0).
Military retirement pay is provided by the DoD pursuant to l() U.S.C. § 1201.
Additionally, the Department of Veterans Affairs (“VA”) has the authority to assign a
disability rating to service members and compensate them for their injuries The VA
determines Whether an injury Was incurred during military service (or if a condition
Which existed prior to service Was aggravated by military service) and evaluates how
those injuries affect the service member’s civilian employability See id. (noting that the
military uses disability rating to determine Whether a service member is fit to perform the

duties attendant With an individual’s office, grade, ranl<, or rating, While the VA employs

 

a more holistic approach in determining an individual’s capacity to function and perform
tasks in the civilian world).

Typically, concurrent receipt of the full amounts of VA disability compensation
and military retirement pay is prohibited - retired service members eligible for both
payments are required to waive a portion of their military retirement pay in an amount
equal to their VA disability compensation 38 U.S.C. § 5305. Congress, however, has
created some exceptions to this general rule, one of which is for combat~related special
compensation (“CRSC”). Codified at 10 U.S.C. § 1413a, it provides that an eligible
retiree is a member of the uniformed services who 1) is entitled to retired pay; and 2) has
a combat»related disability 10 U.S.C. § 1413a(c). The statute goes on to define a combat-
related disability asi

a disability that is compensable under the laws administered by the

Secretary of Veterans Affairs and that a

(l) is attributable to an injury for which the member was awarded
the Purple Heart; or
(2) was incurred (as determined under criteria prescribed by the
Secretary of Defense) - (A) as a direct result of armed conflict; (B)
while engaged in hazardous service; (C) in the performance of duty
under conditions simulating war; or (D) through an instrumentality
of wa.r.
10 U.S.C. § 1413a(e). In the instant case, plaintiff alleges that she incurred her VA-rated
disability while engaged in hazardous service, thus meeting the requirements of section
10 U.S.C. § 1413a(e)(2)(13).
The background of the CRSC statute merits discussion The statute, originally

conceived in 2002, permitted a limited group of retirees to obtain immediate receipt of

concurrent pay if they had completed 20 years or more of creditable military service and

 

had a “combat~related disability.” National Defense Authorization Act (“NDAA”) for
Fiscal Year 2003, Pub. L. No. 107~314, § 636, 116 Stat. 2,574-76, codified ar 10 U.S.C. §
l-€lljia.1

l Of particular importance to the instant case is the fact that Congress provided that
“[t]he secretary of Defense shall prescribe procedures and criteria under which a disabled
uniformed services retiree may apply” for CRSC. 10 U.S.C. § l413a(d). The statute
further notes that the question of whether a disability is incurred “while engaged in
hazardous service” shall be “determined under criteria prescribed by the Department of
Defense.” 10 U,S.C. § 1413a(e)(2). lt is clear then that it was the intent of Congress to
leave to the Secretary of Defense and the Department of Defense the determination of
what kinds of injuries Were to be compensable under the CRSC statute. This is confirmed
by the statements of members of Congress who worked on passing the relevant statute.
See 148 Cong. Rec. 21,844 (2002) (Sen. Warner, ranking member of the Senate Armed
Services Committee noting that Congress “will rely on the Secretary of Defense to
exercise his discretion to further define the nature of this service.”); 148 Cong. Rec.
21,808 (2002) (statement of Rep. Hunter) (“'I`he agreement does require the Secretary of
Defense to establish a process and criteria for evaluating whether a disability is combat

related.”).

 

1 “Combat-related disability” originally required that the disability not be rated at less
than 60 percent by the military. NDAA for Fiscal year 2003, Pub. L. No. 107-314, § 636,
l 16 Stat. 2,574-76 (2002). The following year, Congress amended the definition to
include disabilities that are rated less than 60 percent NDAA for Fiscal Year 2004, Pub.
L. No. 108-136, § 642, 117 Stat. 1516-17 (2003).

 

As a result of this delegation of authority, the Dol) has produced several
documents which set forth the criteria that eligible service members must meet in order to
receive CRSC. These procedures and criteria are set forth in DD Form 2860. AR 298-
301. This Form was originally created in 2004 and amended and supplemented in 2008.
The 2004 directive, in pertinent part, defines the phrase “engaged in hazardous service”
as follows:

While Engaged in Hazardous Serviee - Such service includes, but is not
limited to, aerial flight, parachute duty, demolition duty, experimental
stress duty, and diving duty, A finding that a disability is the result of such
hazardous service requires that the injury or disease be the direct result of
actions taken in the performance of such service Travel to and from such
service, or actions incidental to a normal duty status not considered
hazardous are not included

AR 295. This language is mirrored in the DoD Financial Management Regulation
(DA28~48). See DA 37; DoD 7000.14-R, Fz`rzancz`a[ Management Regulation, vol. 7B, ch.
63, § 630602 (Dep’t of Defense Dec. 2013). 'l`he updated 2008 version of f)D Form 2860
espouses a slightly different definition:

WHILE ENGAGED IN HAZARDOUS SERVICE (HS) a The disability
was incurred during performance of duties that present a higher degree of
danger to Service personnel due to the level of exposure to actual or
simulated armed conflict. The fact that a member incurred the disability
during a period of hazardous service is not sufficient by itself to support a
combat-related determination There must be a definite, documented, causal
relationship between the hazardous service and the resulting disability
Such service includes, but is not limited to, aerial flight, parachute duty,
demolition duty, experimental stress duty, diving duty, and rescue missions.

AR 301. 'l`he DoD requires that all applications for CRSC must be submitted in
accordance with DD Form 2860. DoD 7000.14~R, Fi'nnncial Managemem Regulation,

vol. 7B, ch. 63, § 63 0301 (Dep’t of Defense Dec. 2013) (“A member may not be paid

CRSC unless he or she has applied for and elected to receive compensation under the
CRSC program by filing an application on Departrnent of Defense (DD) Form 2860 . . .
with the Military Department from which he or she retired.”).

ii. CDR Marn'n ’s Military Servz'ce

Plaintiff served on active duty in the United States Navy, Nurse Corps, for over 18
years, from August 1995 through April 20l4. AR 16. Plaintiff` s last deployment of active
duty was to Camp Bastion, Afghanistan, in support of Operation Enduring Freedom,
where she served in a combat trauma unit at Bastion Hospital from October 2010 until
April 201 1. AR 48, 51, 57. While stationed at Bastion Hospital, plaintiff was tasked with
rendering aid to patients who had experienced gunshot wounds, blast injuries,
amputations, burns, and other injuries associated with the ongoing military conflict in
Afghanistan. AR 80, 82, 94-95.

After completing her deployment at Camp Bastion, plaintiff began suffering from
post-traumatic stress disorder (“PTSD”) as a result of her “persistent, recurrent,
involuntary, and intrusive memories of her Bastion Hospital Experiences.” AR 49. From
October 2012 to December 20 l 3, plaintiff was a patient at Naval Hospital Beaufort for
her PTSD, and continued seeing Dr. Thornas Collins, a psychologist, through 2014. AR
48. Additionally, plaintiff was hospitalized for 45 days in the inpatient PTSD treatment
program at Laurel Ridge in San Antonio, TX. AR 48. ln September 2013, a medical
evaluation board determined that plaintiff suffered from P"fSD (moderate), depressive
disorder, and alcohol abuse (in early remission). AR 51-55. In February 2014, plaintiff

was evaluated by a physical evaluation board (“PEB”), which determined that plaintiff’ s

 

PTSD significantly interfered with the performance of her duties, was an unfitting
medical condition, and warranted placement on the TDRL with a 50 percent disability
rating. AR 56~58. In April 2014, the Navy honorably discharged plaintiff from active
service and placed her on the TDRL. AR 16.

b. ProceduralBackground

In June 2014, plaintiff submitted a claim on DD Form 2860 seeking CRSC. The
CRSC Board issued two decisions upon the plaintiffs application and request for
reconsideration The Board denied plaintiffs initial application on July 14, 2014 and
concluded that the PTSD suffered by plaintiff is not combat-related The denial was due
to the failure to establish that specific combat related events caused plaintiffs diagnosis.
AR 109. After the denial of CRSC, plaintiff requested for the CRSC Board’s
reconsideration, and asserted specifically that she meets the Hazardous Duty Standard
provided for in l0 U.S.C. §1413a(e)(2)(B). AR ll2-l4.

On September 9, 2014, the Board denied CDR Martin’s application for CRSC a
second time after reconsideration, on the same ground that the application package did
not establish that specific combat-related events caused plaintiffs diagnosis Again, the
Board asserted that “there must be a definite causal relationship between the armed (or
simulated) conflict and the resulting disability.” AR 126. “A combat-related
determination under hazardous service criteria requires documented evidence that the
disability claimed be the direct result of a specific combat-related event, which caused

the disability, e.g., parachute mishap, aircraft ejections, or dive trauma.” AR 126.

 

 

Upon appeal, the BCNR found on August 19, 2015 that “the evidence submitted
was insufficient to establish the existence of probable material error or injustice” and thus
affirmed the CRSC Board’s decision. AR 272. The BCNR disagreed with the argument
that “there is no requirement that the injury be combat related since Congressional intent
was to create a separate hazardous duty category.” Id. The BCNR felt “that Congress
intended to require a specific combat related nexus to injuries suffered as a result of
hazardous duty” because “it was not Congress’ intent to include any and all hazardous
duty injuries for consideration of combat related special compensation.” AR 273. The
BCNR provided an example that “diving duty”, even though listed as an example of
hazardous duty in DOD guidance, would not qualify under 10 U.S.C. § 1413a if it is done
to help salvage a civil war relic, because the statute was implemented to cover combat-
related injuries AR 273.

The BCNR determined that “performing medical work in a combat zone without
specific combat-related nexus was insufficient to warrant combat related special
compensation pay for hazardous duty.” AR 273. lt felt, in this case, “[the plaintiff s] duty
was only hazardous because it was performed in a combat zone.” AR 273. The BCNR
explained that all the examples given in the DoD Program Guidance, “i.e. aerial flight,
parachute duty, demolition duty, experimental stress duty, and diving duty, are duties that
are dangerous by their nature and performing them in a combat related environment
makes them even more dangerous warranting special compensation if an injury occurs.”
AR 274. Thus, “[itj concluded that [CDR l\/lartin’s] duty did not reach the same level of

hazardousness to qualify .°’ AR 274.

 

II. DISCUSSION

Before the Court are the parties’ cross~motions for judgment on the administrative
record. The issue for the Court to decide is whether plaintiffs service as a nurse in
Afghanistan qualifies as “hazardous service” as the term is used in 10 U.S.C. §
1413a(e)(2)(B), and accordingly whether the DoD’s interpretation of the term “hazardous
service” is in accordance with the law.

Defendant argues that the DoD has interpreted a disability incurred while engaged
in “hazardous service” to mean that the disability was incurred “during performance of
duties that present a higher degree of danger to Service personnel due to the level of
exposure to actual or simulated armed conflict” and that “actions incidental to a normal
duty status not considered hazardous are not included.” Def.’s Mot. at 2. Accordingly,
while defendant acknowledges that plaintiff helped treat others that were exposed to
actual armed conflict, it is argued that plaintiff herself was not exposed to actual armed
conflict such that performance of her duties would qualify as hazardous service. Thus,
defendant contends that the BCNR did not err when it rejected plaintiff’ s claim for
CRSC. Defendant also argues that because congress granted DoD the authority to define
c‘hazardous service,” it’s subsequent interpretations should be granted deference by the
court under the standard announced in Chevrorz, U.S.A., Inc. v. Natural Resow'ces
Dejénse Cotmcil, hic., 467 U.S. 837 (1984), which states that in the absence of clear
Congressional intent, a court must give deference to an agency’s interpretation of a
statute provided that the agency’s interpretation is based on a permissible construction of

the statutel

 

 

Plaintiff believes that the DoD interpretation of the term “hazardous service”
followed by the BCNR ignores the plain meaning of the term under the statute, and thus,
the interpretation is arbitrary, capricious and manifestly contrary to the statute and
Congress’s intent Pl.’s Mot. at 2. Specifically, plaintiff contends that DoD has proffered
two different interpretations of “hazardous service” over different forms and that the
interpretation advanced by defendant and the BCNR is contrary to how “hazardous
service” has been defined by other government agencies Plaintiff further argues that by
advancing the interpretation that it does, the DoD has effectively served to eliminate
section (B) from l0 U.S.C. § 1413a(e)(2) because “a service member exposed to actual or
simulated armed conflict would qualify for CRSC under subsection ’a’ or subsection ‘c’.”
Pl.’s Mot. at 15. Finally, plaintiff argues that Chevron deference is inapplicable because
congressional intent is clear that “[b]y creating a category for ‘armed conflict’ and
‘conditions simulating war,’ Congress intended for ‘hazardous service’ to cover injuries
or sickness distinctively different from the other two categories.” Pl.’s Mot. at 17.

a. Legal Standard

RCFC 52.l provides for motions for judgment on the administrative record, which
is l‘designed to provide for trial on a paper record, allowing fact-finding by the trial
court." chnum, Inc. v. United Stafes, 404 F.3d 1346, 1356 (ch. Cir. 2005). Ajudgment
on the administrative record is appropriate "[w]hen proceedings before an agency are
relevant to a decision in a case" before the court. RCFC 52.1(a). ln reviewing cross-
motions for judgment on the administrative record, the court must determine "whether,

given all the disputed and undisputed facts, a party has met its burden of proof based on

10

 

 

the evidence in the record.‘l A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131
(2006).
b. Chevron Deference

The Court’s analysis of the instant case begins with the standard announced in
C/'zevron:

When a court reviews an agency’s construction of the statute which it

administers it is confronted with two questions First, always, is the -

question of whether Congress has directly spoken to the precise question at

issue. if the intent of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the unambiguously

expressed intent of Congress lf, however, the court determines Congress

has not directly addressed the precise question at issue, the court does not

simply impose its own construction of the statute, as would be necessary in

the absence of an administrative interpretation Rather, if the statute is

silent or ambiguous with respect to the specific issue, the question for the

court is whether the agency’s answer is based on a permissible construction

of the statute
Chevron, 467 U.S. at 842-43. Furthermore, “administrative implementation of a
particular statutory provision qualifies for Chevron deference when it appears that
Congress delegated authority to the agency generally to make rules carrying the force of
law, and that the agency interpretation claiming deference was promulgated in the
exercise of that authority.” United Stares v. Mead Corp., 533 U.S. 2l 8, 226-27 (2001).
When reviewing the interpretation of an agency, a court’s “duty is not to weigh the
wisdom of, or to resolve any struggle between, competing views of the public interest

but rather to respect legitimate policy choices made by the agency in interpreting and

applying the statute.” Hymds v. United Stares, 810 F.3d 1312, l324 (Fed. Cir. 2016).

ll

 

 

 

Beginning with the first step of Chevron, the Court concludes that Congress has
not spoken to the precise question at issue - namely, what is the definition of hazardous
service in relation to the CRSC statute of 10 U.S.C. § 1413a. The plain language ofthe
statute makes this abundantly clear. 10 U.S.C. § 14l3a(e)(2) concerns combat-related
disabilities, and notes that “the term ‘combat-related disability’ means a disability that is
compensable under the laws administered by the Secretary of Veterans Affairs and that
was incurred (as determined under criteria prescribed by the Secretary OfDefense) - (A)
as a direct result of armed conflict; (B) while engaged in hazardous service; (C) in the
performance of duty under conditions simulating war; or (D) through an instrumentality
of war.” (emphasis added).

lt is clear, by the plain wording of the statute, that Congress intended for the
Secretary of Defense (and by natural extension, the Department of Defense) to determine
what criteria a service member would have to meet in order to be eligible for CRSC as a
result of hazardous service. This position is confirmed by the Congressional Record. See
148 Cong. Rec. 21,844 (2002) (statement of Sen. Warner) (“We will rely on the Secretary
of Defense to exercise his discretion to further define the nature of this service.”); 148
Cong. Rec. 21 ,808 (statement of Rep. Hunter) (“The agreement does require the
Secretary of Defense to establish a process and criteria for evaluating whether a disability
is combat related.”).

Plaintiff argues that “by creating a category for ‘armed conflict’ and ‘conditions
simulating war,’ Congress intended for ‘hazardous service’ to cover injuries or sickness

distinctively different from the other two categories.” Pl.’s Mot. at 17. This argument has

l2

 

no moment because it ignores the plain language of the statute, which announces that the
Secretary of Defense is to prescribe the criteria which determines whether a service
member incurred a disability while engaged in hazardous service. As read in the statute,
the term “hazardous service” is facially ambiguous especially considered in the context
of a profession as generally fraught with peril and danger as military service. Indeed, the
definition of “hazardous service” that plaintiff argues should apply is announced in the
Financial Management Regulation and the initial DD For'in 2860, two items promulgated
by the Department of Defense and not Congress Id. Accordingly, the Court holds that
Congress did not speak on the precise definition of “hazardous service” and instead left
the matter to the Department of Defense to decide.

c. The Department of Defense’S lnterpretation of “Hazardous Service.”

Having determined that Congress did not speak directly on the definition of
“hazardous service” at it relates to CRSC, and rather delegated the authority to make that
determination to the Secretary of Defense, the Court now turns to the second step
required by C!ievron to determine whether the Department of Defense’s interpretation
and application of the term “hazardous service” is arbitrary, capricious or manifestly
contrary to the statute, See Hymas, 810 F.3d at 1318 (quoting Chevron, 467 U.S. at 844).
If the Department of Defense’s interpretation is not arbitrary or capricious, then it is
entitled to controlling weight that the Court must treat with the required deference
ln their fillings, the parties point to three main documents promulgated by the

Department of Defense regarding the meaning of “hazardous service”: the original DD

13

 

 

Form 2860 issued in i\/lay 2004, the updated DD Form 2860 issued in 2008, and the 2008
Financial Management Regulation.

As noted previously, the 2004 edition of DD Form 2860 defined hazardous service
as such:

While Engaged in Hazardous Service -~ Such service includes, but is not
limited to, aerial flight, parachute duty, demolition duty, experimental
stress duty, and driving duty. A finding that a disability is the result of such
hazardous service requires that the injury or disease be the direct result of
actions taken in performance of such service. Travel to and from such
service, or actions incidental to a normal duty status not considered
hazardous are not included.

DD Form 2860 (2004). The language set forth in the Financial Management Regulation
in 2008 is identical to the above quoted language, and remains unchanged in the 2015
update of the liinancial Management Regulation. DoD 7000.14-R, Fz`nancz`a[
Managemem Regu!ation, vol. 7B, ch. 63, § 630202 (Dep’t of Defense Sept. 2008)', DoD
7000. l4-R, Fl`nancin'l Managemem Regulatz`on, vol. 7B, ch. 63, § 630202 (Dep’t of
Defense Sept. 2015). DD Form 2860 was updated in 2008 and contains different
language as to hazardous service:

WHILE ENGAGED IN HAZARDOUS SERVICE (HS) - The disability
was incurred during performance of duties that present a higher degree of
danger to Service personnel due to the level of exposure to actual or
simulated armed conflict The fact that a member incurred the disability
during a period of hazardous service is not sufficient by itself to support a
combat-related determination There must be a definite, documented, causal
relationship between the hazardous service and the resulting disability.
Such service includes, but is not limited to, aerial flight, parachute duty,
demolition duty, experimental stress duty, driving duty, and rescue
missions.

14

 

DD Form 2860 (2008). Plaintiff takes issue with this change in language, contending that
the 2008 version of DD Form 2860 is the only agency document to require exposure to
actual or simulated armed conflict, and thus it fundamentally changed the definition of
“hazardous service” to an extent that it contradicts every other agency interpretation of
hazardous service. Pl.’s Mot. at 9. This newer interpretation, it is argued, is manifestly
contrary to the intent of 10 U.S.C. § 1413a because Congress created four categories of
service-connected disabilities that qualified for CRSC, some of which were intended to
cover those injured in combat, while others, such as those engaged in hazardous service
and those injured by an instrumentality of war, were intended to cover those injured
outside of armed conflict. ]d. at l5. By adding the requirement of exposure to actual or
simulated armed conflict, plaintiff believes the Department of Defense has effectively
removed the hazardous service section from 10 U.S.C. § 1413a because “a service
member exposed to actual or simulated armed conflict would qualify for CRSC under
subsection ‘a’ [as a direct result of armed conflict] or subsection ‘c’ [in the performance
of duty under conditions simulating war].” Id.

Defendant argues that the Department of Defense’s interpretation of hazardous
service is in accordance with the law, and that the two definitions proffered by the 2004
and 2008 versions of DD Form 2860 are consistent, and that furthermore, plaintiff
overlooks the limitation in the Financial Management Regulation (“FMR”) that “actions
incidental to a normal duty status not considered hazardous, are not included.” Def.’s

Reply at 3.

15

 

 

 

 

 

 

 

 

After consideration of the legislative history of the status and the subsequent
interpretation of “hazardous service” set forth by the Department of Defense, the Court
must conclude that the agency’s interpretation is reasonable and not arbitrary or
capricious and otherwise not contrary to the intent of the statute. lt is eminently
reasonable for the agency to require a combat-related nexus to the hazardous service in
order to receive CRSC. By its plain terms and language, 10 U.S.C. § 1413a deals with
combat-related special compensation, and subsection (e), under which the hazardous
service language can be found, is entitled combat-related disability. Congressional
statements on whether a combat-related nexus is required are inconclusive at best.
Senator Levin noted that “[t]hese disabilities are sometimes called ‘combat-related’
disabilities for short. But that is really a misnomer, lt is actually misleading to call certain
of them ‘combat-related disabilities’ because the categories are far broader than simply
combat-related.” 148 Cong. Rec. 21,839 (2002) (statement of Sen. Levin). Plaintiff relies
on this for the proposition that a combat~related nexus was not contemplated by Congress
is passing the statute Other statements, however, cut against that argument For example,
Representative Hunter noted that “if one is undertaking a hazardous operation, for
example, if they are in a submarine or a swift boat or some other activity that is military-
related, combat-related, and is a hazardous operation, even though they may not be
exchanging gunfire with the enemy in that particular area of operations they also will
receive both checks.” 148 Cong. Ree. 21,807 (2002) (statement of Rep. Hunter).

Ultimately, it is unclear whether Congress intended for those engaged in hazardous

16

 

 

 

service in non-combat conditions to be eligible for CRSC under the hazardous service

provisionl

 

'l`his requirement for a combat-related nexus was applied by the BCNR to

plaintiff’ s case. ln pertinent part, the BCNR reached the following conclusion:

 

Your argument is that Congress did not intend to require a specific combat
related nexus to the injuries incurred as a result of hazardous dutyl The
Board felt that Congress intended to require a specific combat related nexus
to the injuries suffered as a result of hazardous duty. In the opinion of the
Board, it was not Congress’ intent to include any and all hazardous duty
injuries for consideration of combat related special compensationl For
example, the Board did not feel that an injury suffered by a Navy diver
helping salvage a civil war relic would qualify under 10 U.S.C. § 14l3; this
despite the listing of “diving duty” in the DOD guidance as an example of
hazardous duty. in the Board’s opinion, this is because 10 U.S.C. § l413
was implemented to cover combat related injuries

 

AR 277. The parties were unable to cite to any BCNR decision that reached a contrary
conclusion that a service member who engaged in hazardous duty in a non~combat

related setting was able to recover CRSC. Tr. 11:l0-24.2 The BCNR went on to note that,

 

in its view, “thc examples given in the DOD guidance, i.e. aerial flight, parachute duty,
demolition duty, experimental stress duty, and diving duty, are duties that are dangerous
by their very nature and performing them in combat related environment makes them
even more dangerous warranting special compensation if an injury occurs.” AR 278. It is
clear then that the BCNR has taken the position that a combat-related nexus is required

for receipt of CRSC. So long as that standard is consistently applied (and plaintiff has

 

 

2 Citations to “Tr.” Refer to the oral argument transcript See Tr. June 22, 20l7, ECF No.
20.

l7

raised no argument to suggest that it has not been), the Court cannot say that the standard
is arbitrary or capricious

Furthermore, although plaintiff avers that the FMR and 2004 edition of DD Form
2860 provide the proper definition of “hazardous service” (i.e., without reference to a
requirement of exposure to actual or simulated armed conflict), the language also
ultimately proves fatal to plaintiffs case Specifically, the Fl\/IR states that “[t]ravel to
and from such service, or actions incidental to a normal duty status not considered
hazardous are not included.” Plaintiff does not allege that nursing duty is an action
considered hazardous At most, plaintiff contends that performance of that nursing duty at
Camp Bastion in Afghanistan made a job normally not considered hazardous into
hazardous service Specifically, plaintiff notes that “Afghani locals, detainees and
POW’s were housed in the hospital” and that workspace “included the hazards of a
suicide vest, live ordinance, and reports of males wandering into the female spaces.” Pl.’s
Mot. at 3. This, however, is not enough to overcome the standard set by the Department
of Defense for hazardous service As the BCNR noted, “[i]n your case, the Board
determined that performing medical work in a combat zone without a specific combat~
related nexus was insufficient to warrant combat related special compensation pay for
hazardous duty.” AR 277. While there can be no doubt that nursing duty in a military
hospital in Afghanistan is more trying than similar duty would be state-side, absent a
specific allegation of combat causing her PTSD, it cannot be said that the BCNR’s

decision was arbitrary or capricious

18

Moreover, an argument that normally non-hazardous jobs in the military
automatically becomes hazardous merely because it took place overseas in a potential
combat zone leads to a slippery slope which the DoD specifically sought to avoid.
Plaintiff` s argument must logically end in the conclusion that all service members who
perform their duties overseas in dangerous combat zones are performing hazardous
service, regardless of whether they are actually exposed to any armed conflictl This
would create an untenable situation The BCNR reached the same conclusion when
considering plaintiffs case, noting that “[t]he Board felt that your duty was only
hazardous because it was performed in a combat zone That in itself was not enough
since, using that rationale, every service member in the combat zone who suffers from
PTSD would otherwise qualify for combat related special compensation pay.” AR 277-
78, Simply put, location alone is not enough to turn normally non-hazardous duty, such
as nursing, into a hazardous one

Finally, as defendant correctly notes, Congress has not taken any action to modify

 

the Department of Defense’s interpretation of hazardous service in the years since DD
Form 2860 was modified lndeed, although Congress has amended the statue several
times in recent years there has been no further clarification on the definition of
hazardous service See NDAA for Fiscal year 2013, Pub. L. No. 112-239, § 643(a), l26
Stat. 1632 (2013). In fact, Congress recently directed the Coast Guard to implement a
combat related special compensation program using “the procedures and criteria

prescribed by the Secretary of Defense pursuant to subsection (e)(2)” of 10 U.S.C. §

19

 

14l3a. See Coast Guard Authorization Act of 2015, Pub. L. No. 114-120, § 221(a)(1),
130 Stat. 48-49 (20l6).

Against this point, plaintiff argues that lack of Congressional action was not an
endorsement of the Department of Defense’s interpretation because “the broad
inconsistencies could have misled Congress.” Pl.’s Mot. at 18. This argument is
unavailing lt simply does not follow logically that if Congress were aware of
inconsistencies in how DoD was interpreting hazardous service, that Congress would
somehow be misled into inaction. If anything, awareness of broad inconsistencies in
interpretation would make it more likely that Congress would act to correct any
discrepancies such that the intent of the statute was being achieved Sirnply put, there is
nothing on the record that would lead the Court to believe that Congress disapproved of
DoD’s requirement of a combat~related nexus for receipt of CRSC.

Ultimately, Chevron requires the Court to defer to the agency’s interpretation of
“hazardous service” as requiring a combat-related nexus Plaintiff has failed to prove that
such a construction is arbitrary, capricious or contrary to the intent of Congress in
passing l0 U.S.C. § 1413a. Neither has plaintiff cited to any inconsistencies in how the
DoD has subsequently applied this interpretation when determining whether service
members are eligible for CRSC. Whether the Court believes that such a definition for
“hazardous service” is the best possible definition is irrelevant to the instant matter 4 the
duty of the Court “is not to weigh the wisdom of, or to resolve any struggle between,
competing views of the public interest, but rather to respect legitimate policy choices

made by the agency in interpreting and applying the statute.”Hymas, 810 F.3d at 1324.

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Congress delegated to DoD the task of establishing criteria a service member must meet
in order to receive CRSC for an injury incurred while engaged in hazardous service The
agency has subsequently determined one of those criteria is that the injury must have a
combat~related nexus There is no evidence that this criteria is manifestly contrary to the
intent of Congress is establishing CRSC.

'l`he Court is sympathetic to plaintiff, who braver served her country and her
fellow soldiers while stationed in Afghanistan.3 DoD, however, was tasked with the
difficult policy decision of drawing a line as to who is eligible for CRSC and who is not.
Unfortunately, plaintiff falls outside the criteria for CRSC as has been established by
DoD, and it is not the place of the Court to second guess this policy decision

III. CONCLUSION

For the reasons discussed above, the following is hereby ordered:

1. Plaintiff’ s motion for judgment on the administrative record is DENIED.

2. Defendant’s motion for judgment on the administrative record is GRANTED.
3. Plaintiff’ s complaint is dismissed

The Clerk is directed to enter judgment accordinglyl No costs

%M{/%%e/)

"noHDAN A FU'I é/Y
Senior ludge

I'I` IS SO ORDERED.

 

3 The Court also takes notice that the Government shares a similar sentiment, stating that
“there’s no question that Nurse l\/lartin is an American hero.” Tr. 27:10-l1.

21

