IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20140019991 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. Court of Federal Claims.  The court directs the ABCMR to address the following three issues:

   a.  Whether the applicant was exposed to lead during active duty, including while employed as a rifle instructor, which involved working with rifles and ammunition;

   b.  if yes, whether the source of any such lead exposure constitutes an "instrumentality of war" within the definition of Title 10, U.S. Code, subsection 1413a(e)(2)(D) (10 USC 1413a(e)(2)(D)); and

   c.  if yes, whether any of the applicant's service-connected disabilities, including his central nervous system dysfunction, constitute a disability that was "incurred…through an instrumentality of war."  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests approval of the applicant's request for Combat Related Special Compensation (CRSC) under 10 USC 1413a(e)(2)(D).

2.  Counsel states the applicant respectfully requests consideration of his application for CRSC.  With regard to whether the applicant was exposed to lead during active duty, including while employed as a rifle range instructor, which involved working with rifles and ammunition counsel states:
   a.  The applicant's service records, including Noncommissioned Officer (NCO) Evaluation Reports, corroborate that the applicant was assigned to the Central Michigan University 2nd Reserve Officers' Training Corps (ROTC) Command as a Military Science Instructor from July 1995 to August 1998.  These reports also verify his duties included "Weapons Instructor," "Cannon Club Advisor," and "Ammunitions NCO."

   b.  As part of his formal duties as an ROTC Instructor, the applicant was required to train ROTC cadets in marksmanship with the M16A1 Rifle.  According to the Military Qualifications Standards Manual I (MQSMI), Soldier Training Publication (STP) 145-I-MQS, the applicant was required to train cadets in the following weapons task:
   
   	Task 03-3111.01-0004:  Engage Targets with an M16A1 Rifle.
   
   	Conditions:  Your ability to defeat the enemy in close-in battle depends on accurate and lethal rifle fire… a situation has developed where the lethality of your rifle is more important than leading your troops (e.g., an enemy charge and penetration towards your fighting position).
   
   	Standards:  a.  Load and chamber a round; b.  engage the target, either suppressing it or eliminating it; c.  take immediate action to eliminate stoppages; d.  clear the M16A1 Rifle.
   
   c.  Colonel (COL) (Ret) D_____ M________, Professor of Military Science at Central Michigan University personally supervised the applicant during his active duty.  COL M________ also served as Chief Facilities Engineer and an expert in issues with indoor ranges.  He writes in his Statement in Support of Claim, dated 22 July 2011:
   
   	"Part of the duties of the cadre was to conduct rifle marksmanship training…
   
   	with most older ranges that shot thousands of rounds of military match grade 22-250 cal, which were soft shot ‘lead’ projectiles/bullets, thousands of these rounds were contained in the down range bullet traps…
   
   	It is obvious, each round shot produced lead/smoke residue…
   
   	Summary, all of us cadre was exposed to lead, firing rifles…
   
   	Indoor rifle ranges concentrate particulates, lead is one of them…"
   
   d.  Sergeant First Class (SFC) J___ U____, Ammunitions Handler at Camp Grayling, MI, verifies in her letter, dated 23 May 2013, that the applicant did in fact request ammunition from Camp Grayling in the years 1995-1998.  She indicates that he personally drew the 5.56 ball ammunition and .22 caliber ammunition and transported the ammunition to Central Michigan University.  Furthermore, she states that after firing the ammunition he turned in the expended brass (dunnage) and unexpended live rounds at the Camp Grayling Ammunitions Supply Point.
   
   e.  SFC (Ret) B___ B___, former Gunnery Sergeant of Battery B,                1st Battalion, 119th Field Artillery in Alma, MI in his letter, dated 25 June 2013, verifies that he personally observed the loan of M16A1 Rifles to the applicant in the years 1995-1998.  SFC (Ret) B____ also verifies that he also loaned 
sub-caliber rimfire devices to the applicant along with the weapons.
   
   f.  Therefore, based on his duties as an ROTC instructor, weapons instructor, and ammunitions NCO; and based on his numerous military service records; and based on the several first-hand accounts of fellow service members and supervisors, the preponderance of the available documentary information clearly shows that the applicant was exposed to lead during active duty, including while employed as a rifle range instructor, which involved working with rifles and ammunition.
   
   g.  With regard to whether the source of any such lead exposure constitutes an "instrumentality of war" within the definition of 10 U.S.C. 1413a(e)(2)(D), counsel states the M16A1 Rifle is a device that was produced to replace the M14 Rifle.  According to Army TM 9-1005-249-23&P, the purpose of the M16A1 Rifle is to "provide personnel an offensive/defensive capability to engage targets for field use."  While a "civilianized" version, the AR-15 is available, it does not have a fully automatic feature, and rarely do they offer the same trigger mechanisms and combat sights.  The M16A1 weapons used by the applicant were fully automatic and were primarily designed for military service only.  Here, this type of weapon would indeed "subject an individual to a hazard peculiar to military service."
   
   h.  According to Field Manual (FM) 23-9 (Rifle Marksmanship), the M16A1 Rifle uses the M193 Cartridge, 5.56mm, Ball.  The M193 cartridge is a center-fired cartridge with a 55-grain, gilded metal-jacketed, lead alloy core bullet.  The M193 round is the standard cartridge for field use with the M16A1 Rifle and has no identifying marks.  This round is designed to "tumble" in its trajectory to its target producing a lethal effect.  This ammunition is produced to stringent military standards and is primarily for military use only.  The ammunition releases fumes, gases, and lead particulates from the military grade cartridge when the firing pin strikes the cartridge primer.  Here, this type of ammunition would also "subject an individual to a hazard peculiar to military service."
   
   i.  According to FM 3-22.9 (Rifle Marksmanship), the M16A1 Rifle also is capable of using the .22 caliber ammunition for training marksmanship when the M261 Rimfire Adapter bolt assembly is employed in accordance with Technical Manual (TM) 9-6920-363-12&P (Unit and Direct Support Maintenance Manual).  The applicant did indeed use the M261 rimfire adapter in his training program.  The type of ammunition used was .22-250 military match-grade ball ammunition which was obtained through military procurement methods, drawn from approved Army Ammunition Supply Points, and is primarily for military use with the rimfire adapter.  Department of the Army Pamphlet 350-38 (Standards in Training Commission (STRAC)) strictly prohibits the use of locally procured commercial ammunition in military weapons.  The rimfire adapter, in and of itself, is also primarily used for military use only and is approved by Department of the Army Pamphlet 350-38.  Here, this type of device and ammunition would also "subject an individual to a hazard peculiar to military service."
   
   j.  According to Title 10, U.S.C. 1413A, the term "combat-related disability" means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that:
   
   (1)  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 war.   

k.  According to the Revised Program Guidance Memorandum issued by the 
U.S. Army Human Resources Command (HRC) on 1 January 2004, and its attachment 1-1 issued on 15 April 2004, an instrumentality of war is:

		"…a vehicle, vessel, or device designed primarily for Military Service and intended for use in such Service at the time of the occurrence or injury…"

	l.  There is no "non-military" purpose for these devices used by the applicant.  Therefore, the preponderance of the available documentary information clearly shows that by definition, these military weapons and ammunition and the exposure to lead constitutes an "instrumentality of war" within the definition of        10 U.S.C. 1413a(e)(2)(D).

	m.  With regard to whether any of the applicant's service-connected disabilities, including his central nervous system dysfunction, constitute a disability that was "incurred…through an instrumentality of war," counsel states the applicant's disabilities were indeed incurred through his use of military devices, specifically, the M16A1 Rifle and military grade ammunition in 5.56mm and .22 caliber.

	n.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the term "instrumentality of war" refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  According to 10 USC 1413a, the term 
"combat-related disability" means a disability that is compensable under the laws administered by the Secretary of Veterans Affair.

	o.  In the applicant's latest Compensation and Pension Report and Progress Notes dated 20 November 2012, the Department of Veterans Affairs (VA) determined that:  "the condition/disability central nervous system dysfunction is at least as likely as not (50/50 probability) caused by or a result of lead exposure."  Also clearly stated in the Rationale for Opinion Given, "Veteran has been diagnosed with lead poisoning.  Records document that the Veteran was exposed to lead while serving as a military rifle range operator…Therefore, Veteran’s central nervous system dysfunction is at least as likely secondary to lead exposure during military service."

	p.  The VA determined on 10 May 2013 that the applicant's conditions were directly related to service, that his conditions were the result of lead poisoning in service, and granted service-connected disability for his conditions.  The VA granted him 100 percent total and permanent disability and granted him special monthly compensation for his loss of use of both feet, both hands, and central nervous dysfunction including the need for aid and attendance.

	q.  According to the Revised Program Guidance Memorandum issued by HRC on 1 January 2004, and its attachment issued on 15 April 2004, a determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material."

	r.  HRC determined that the standard of proof of whether a disability is combat related will be based on the preponderance of available documentary information.  According to the Revised Program Guidance Memorandum issued by HRC on 1 January 2004, "Determination of whether a disability is combat-related will be based on the preponderance of available documentary information where quality of information is more important than quantity.  All relevant documentary information is to be weighed in relation to known facts and circumstances, and determinations will be made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture…the burden of proof that a disability is combat-related rests with the applicant and members will be required to provide copies of documents in their possession to the best of their ability."

	s.  In the applicant's case, material evidence has been presented in this case and clearly shows:

(1)  that he served on active duty in the U.S. Army;

(2)  that his official duty was to train ROTC cadets in accordance with
 MSQMI Standards;

(3)  that he became disabled while performing his assigned duty;

(4)  that his disability was incurred by an instrumentality of war;

(5)  that the instrumentality of war was a device primarily used and only for 
 military service (the M16A1 Rifle and military grade ammunition);

(6)  that the disability was incurred in a period of service as a result of 
 injury or sickness caused by fumes, gases, or explosion of military 
 ordinance (including lead poisoning);

(7)  that the VA has determined that the condition/disability central 
 nervous system dysfunction is at least as likely as not caused by or a 
 result of lead exposure while in service; and

(8)  that a determination that a disability is the result of an instrumentality 
 of war may be made if the disability was incurred in any period of 
 service as a result of sickness caused by fumes, gases, or explosion 
 of military ordnance.  
t.  The preponderance of evidence submitted by the applicant clearly meets 
definitions of each element of the CRSC under the instrumentality of war section as published by HRC.  Further, each element is factually supported by credible documentary information and first-hand personal statements of individuals actually involved in the matter.

3.  Counsel provides multiple enclosures, labeled Exhibits 1 through 10 as follows:

* Exhibit 1:  Brewer v. United States of America, 14-cv-00658-EDK, Joint Motion to Stay
* Exhibit 2:  STP 145-I-MQS
* Exhibit 3:  Statement in Support of Claim, COL D_____ M________
* Exhibit 4:  Letter in Support of Claim, SFC J___ U____
* Exhibit 5:  Letter in Support of Claim, SFC B___ B____
* Exhibit 6:  TM 9-1005-249-23&P
* Exhibit 7:  FM 23-9
* Exhibit 8:  Department of the Army Pamphlet 350-38
* Exhibit 9:  VA Compensation and Pension Report, dated             
20 November 2012
* Exhibit 10:  VA Compensation Decision, dated 10 May 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120011860, on 4 February 2013, and in Docket Number AR20130012435, on 1 April 2014.  

2.  The applicant enlisted in the Regular Army on 6 August 1981.  He successfully completed training and he was awarded military occupational specialty 13B (Cannon Crewmember).  He served through numerous reenlistments and/or extensions in positions of increased responsibility and he was promoted to the rank/grade of sergeant first class/E-7 on 1 November 1993.

3.  On or about 1 August 1995, he was assigned as a Military Science Instructor in the ROTC Department at Central Michigan University.

4.  On or about 17 October 1997, the applicant underwent a medical evaluation board (MEB) at Walter Reed Army Medical Center in Washington, DC.  His MEB Proceedings are not available for review; however, the majority of his narrative summary (NARSUM) is available and effectively states:

   a.  While on a field training exercise in Hawaii in autumn 1994, he was stricken with flu-like symptoms with fever, rhinorrhea, cough, congestion, and malaise which persisted over weeks.  He developed an unsteady gait and had a syncopal episode.  He also had the onset of mastoid tenderness and complained of difficulty swallowing with a recurrent clicking sound in his throat which was associated with the feeling of his soft palate moving continuously.

   b.  In October 1994, he developed recurrent episodes of periods of lost awareness of his surroundings and amnesia, and with both of these events he had confusion with excessive drowsiness.  The applicant underwent extensive evaluations which revealed a small gadolinium-enhanced nodule in the left hypothalamic area of his brain.
   
   c.  He was placed on a brief trial of Klonopin which was discontinued due to side effects, and he was subsequently prescribed Depakote.  By the applicant's report, his spells resolved although he continued to have difficulty swallowing.  Complete resolution of the rhythmic palatal myoclonus symptom and control of his seizures continued despite discontinuation of Depakote for three months until he had a recurrence of the rhythmic palatal myoclonus in March 1996.
   
   d.  The applicant continued to have two to three seizures a week and weekly severe headaches.  He was profiled for no driving, no operating heavy machinery, no work with ammunition, and no work at height or participation in any activities where a loss of consciousness would cause harm to himself or others.

   e.  The NARSUM's Disposition and Recommendations section states, "It is felt that the left hypothalamic structure lesion is the probable etiology for his complex partial seizures as well as rhythmic palatal myoclonus.  It is also most consistent with post-viral onset during his acute illness in October 1994, when he became symptomatic."

5.  The applicant was referred to the physical evaluation board (PEB) for further determination.  His NARSUM does not mention lead poisoning as a possible or probable cause for any of his conditions.  The PEB determined he was 60 percent disabled, not fit for further service, and directed his placement on the Temporary Disability Retired List (TDRL).

6.  On 1 April 1998, he was honorably retired from the Army by reason of temporary disability.  On 9 May 2002, he was removed from the TDRL and he was permanently retired on 10 May 2002.

7.  Throughout the years, the VA awarded him service-connected disability compensation for:

* complex partial seizure disorder
* loss of both hands (claimed as peripheral neuropathy of the bilateral upper extremities) associated with central nervous system dysfunction with loss of use of the bilateral lower extremities
* central nervous system dysfunction with loss of use of the bilateral lower extremities (including seizures, palatal myoclonus and muscle weakness)
* recurrent, severe major depression with cognitive disorder (not otherwise specified) associated with central nervous system dysfunction with loss of  use of the bilateral lower extremities

8.  A VA Progress Note in his record dated 30 November 2012 discusses his central nervous system dysfunction and causative factors.  The note states:

   THE CONDITION/DISABILITY central nervous system dysfunction IS AT LEAST AS LIKELY AS NOT (50/50 PROBABILITY) CAUSED BY OR A RESULT OF lead exposure…Records document that Veteran was exposed to lead while serving in a military as a rifle range operator…

   Therefore Veterans [sic] central nervous system dysfunction is as least as likely secondary to lead exposure during military service…

9.  Initially the VA determined he was 80 percent disabled; however, his rating was subsequently increased to show he is 100 percent disabled.

10.  On or about 26 September 2010, he submitted a CRSC claim for multiple conditions, ailments, or VA-rated disabilities.  On his DD Form 2860 (Claim for CRSC), he describes his disabilities as complex partial seizure disorder, rhythmic palatal myoclonus, hypothyroidism and migraines.  He states:

The onset of my symptoms began during a field training exercise while I [was] stationed at Schofield Barracks, HI.  I was a career field artilleryman.  My symptoms have continued and have led to my medical retirement.

11.  The CRSC Branch at HRC denied his claim, citing their inability to verify any of his disabilities as combat related.  They granted that his claimed conditions were medically documented; however, the documentation provided did not show a relationship between his conditions and a combat event.

12.  On 13 January 2011, the CRSC Branch denied his request for reconsideration of his CRSC claim.  The CRSC Branch reviewed the existing and newly-submitted documentation and determined they could not establish a link between the claimed conditions and a combat-related event.

13.  Evidence provided by the applicant shows on or about May 2011 he was diagnosed with chronic lead poisoning and he began to receive treatment from a neurologist at Mount Pleasant, MI.  The same physician notes in other records that the applicant reported being exposed to lead at Central Michigan University in 1995 to 1998 and such exposure is consistent with lead exposure and would explain his symptoms.  

14.  On 22 March 2012, the CRSC Branch again denied his request for reconsideration of his CRSC claim.  The CRSC Branch determined they still could not establish a link between his conditions and a combat-related event, they were unable to overturn the previous adjudications, and they considered this current disapproval to be final.

15.  The applicant and counsel provided numerous documents intended to draw a correlation between his medical conditions and lead exposure he experienced during the years 1995 through 1998 while assigned at Central Michigan University to include VA documents which indicate his condition is at least as likely as not related to the aftereffects of severe lead poisoning incurred while assigned as a rifle range instructor and supervisor at Central Michigan University.

16.  During the processing of this case an advisory opinion was obtained from the Chief, Special Compensation Branch, HRC.  The advisory official stated the Army CRSC program office performed a thorough review of all available supporting documentation regarding the claim submitted by the applicant and the subsequent order by the Honorable Judge Elaine D. Kaplan to issue a decision on three specific questions.

   a.  With regard to whether the applicant was exposed to lead during active duty, including while employed as a rifle range instructor, which involved working with rifles and ammunition the advisory official opined in the positive that the applicant was exposed to lead while on active duty.  The exposure to lead as part of the applicant's duties is not disputed.  However, it was noted that the onset of the applicant's symptoms began prior to being assigned to ROTC duty at Central Michigan University.  The applicant's medical condition is rare and has not been seen in other personnel who operated this particular range.  There has been nothing found which links the applicant's condition with thousands of other Soldiers, Sailors, Airmen, and Marines who perform these same duties and experience similar levels of exposure to lead on a daily basis.

   b.  Any qualified or authoritative opinion regarding lead exposure would be issued by the Army Medical Command (MEDCOM) or the Army Safety Center.  To date, no advisory has been issued by either entity which warns of negative effects due to lead exposure associated with firing ranges or ammunition.  Additionally, the Army CRSC office has seen no evidence which shows a causal link which supports the applicant's claim.  The VA basis for awarding a "service-connected" disability applies an "at least as likely as not" standard.  There is a tremendous difference between "service-connected" and "combat related."
   
   c.  With regard to whether the source of any such lead exposure constitutes an "instrumentality of war" within the definition of 10 USC 1413a(e)(2)(D), the official opined that the lead ammunition itself is not an instrumentality of war in accordance with 10 USC 1413a(e)(2)(D).  Lead used in military ammunition is an odorless, inert object.  The applicant claims that fumes, gasses or explosions from the small arms fire contributed to his disease; however, it is the gunpowder charge in the brass casing that explodes to propel the lead projectile.  The lead itself does not explode or produce a toxic odor, gas, or fumes.
   
   d.  Paragraph 630604B of the Department of Defense Financial Management Regulation 7000.14 states:  "An instrumentality of war is a vehicle, vessel, or device designated primarily for Military Service and intended for use in such Service at the time of the occurrence or injury.  It may also include such instrumentality not designed primarily for Military Service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to Military Service.  Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits."

   e.  The calibers used on the ranges (.22 Long Rifle (LR), and 5.56mm (also known as .223 Remington)) are readily available on the civilian market, and are often advertised as meeting military specifications.  Neither caliber is primarily designed for military use only.

   f.  It is their opinion that lead ammunition in and of itself is not an instrumentality of war, as lead ammunition is commonly used in the civilian community.  Lead ammunition would only be considered an instrumentality of war if it were fired at a subject and the impact of the bullet itself caused the injury.  Lead, unless physically ingested, would not produce a toxic result and does not emit fumes or pathogens seen in other types of military ammunition, such as depleted uranium rounds.

   g.  With regard to whether any of the applicant's service-connected disabilities, including his central nervous system dysfunction, constitute a disability that was "incurred…through an instrumentality of war" does not need to be addressed because the applicant's disability was not incurred through an instrumentality of war.

17.  On 29 January 2015, the applicant, via counsel, responded by respectfully disagreeing with the advisory opinion.  Counsel states:

   a.  HRC does not dispute that the applicant was exposed to lead as part of his military duties.  Exposure to lead is conceded.  The remainder of the opinion is arbitrary and capricious and should not be considered.  With regard to the applicant's symptoms beginning prior to being assigned to ROTC duty, the applicant states the statement is completely untrue.  He claims he was stationed in Hawaii prior to his permanent change of station (PCS) and he asserts he was treated and released for a possible insect bite while in Hawaii but was cleared for duty prior to his PCS.  In fact, the applicant's records indicate that he obtained a maximum score on his Army Physical Fitness Test, scoring greater than 300, and receiving excellent ratings on his NCO Evaluation Report Physical Ratings.  His annual physicals and PULHES score do not indicate any problem prior to his PCS to Central Michigan University.  He claims the HRC opinion is speculative, arbitrary, and not supported by medical opinion.  For this reason, the Board should disregard and reject the comment.

   b.  Regarding the comments, "the medical condition of the applicant is rare" and "this condition has not been seen in other personnel who operated this particular range," these comments are also arbitrary, capricious, and not supported by facts.  As discussed earlier, the preponderance of evidence requires "objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture."  There is nothing in the record to suggest that the medical condition of those exposed to lead and heavy metal contaminants is rare.  And in fact, the applicant would suggest that the Soldiers who were similarly exposed also had higher than normal lead and heavy metal contaminants in their blood.  The applicant worked in the indoor range, his work station was located on the range, he ate lunch in the range, he fired the M16 rifle on the range, his primary duty concerned marksmanship and weapons training that required this on an almost daily basis.  HRC cannot say with medical authority that this particular condition, especially under these circumstances, is rare.  Nor can HRC factually state that this condition has not been seen in other personnel since they arguably do not have visibility of the VA records and service treatment records of every Soldier who trained on this particular range.  Again, the HRC opinion is speculative, arbitrary and not supported by medical opinion.  For this reason, the Board should disregard and reject these comments.


   c.  Regarding the comments "there has been nothing found which links the applicant's condition with thousands of other Soldiers, Sailors, Airmen, and Marines who perform these same duties and experience similar levels of exposure to lead on a daily basis," these comments are irrelevant, not supported by facts.  HRC arguably has no real visibility of the Soldiers, Sailors, Airmen, and Marines of the other branches of service.  Furthermore, there is no regulatory or legal requirement to link the applicant's condition with the conditions of other service members.  The applicant's burden of proof is based on the preponderance of available documentary information in his case, which he asserts he has done.  For this reason the Board should also disregard and reject this comment.
   
   d.  The applicant asserts that he has met the burden of proof that his disability is combat related.  He has submitted relevant documents from his VA treatment records.  The VA has linked his lead exposure to his medical condition.  The applicant also submitted records from his own military service record.  He has obtained official statements from military personnel who had direct knowledge of his duties and instrumentalities of war, namely the M16A1 rifle and military grade ammunition.

   e.  While the VA standard of "as likely as" may be different than the CRSC standard of the "preponderance of evidence," the VA has indeed linked lead exposure to his condition.  And since HRC has conceded to the applicant's lead exposure in their advisory opinion, the applicant has met his burden of proof.  As such, the applicant requests that the Board accept the HRC opinion that he was exposed to lead during active duty, reject the HRC comments as discussed above, and grant his application for CRSC.

   f.  With regard to whether the source of any such lead exposure constitutes an "instrumentality of war" within the definition of 10 USC 1413a(e)(2)(D), HRC incorrectly states that "lead ammunition itself is not an instrumentality of war."  However, in their next sentence in the opinion, HRC admits that "lead [is] used in military ammunition."  In the remainder of the opinion on this subject, HRC attempts to dissect the function of an exploding projectile thereby separating the lead particulates apart from the gunpowder, fumes, gasses, and explosions.  When the applicant and his Soldiers pulled the trigger on the M16A1 rifle, releasing the firing pin, striking the military grade ball ammunition, causing the primer to ignite and propel the lead, they had no option to separate out the lead particulates, fumes, or gasses.  The lead exposure is a part of the process - intertwined with the explosion of the ammunition.  The applicant could not separate that function any more than other Soldiers could separate components of other types of instrumentalities of war such as combat weapons and military vehicles.  The applicant asserts that this reasoning is misplaced, unconscionable, and should be rejected by the Board.

   g.  Regarding HRCs comparison of civilian ammunition, it is irrelevant whether military ammunition is available on the civilian market.  As HRC points out, paragraph 630604B of the Department of Defense Financial Management Regulation 7000.14 states "an instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury."  The facts show the applicant actually drew military 5.56 ball ammunition and .22 military match grade ammunition from the Ammunition Supply Point.  The ammunition was manufactured to military specifications, was produced by the military, was issued by the military, and was actually used by the applicant.  The applicant never used civilian ammunition or military ammunition procured from civilian sources.  Furthermore, HRC incorrectly states that 5.56mm is "also known as .223 Remington."  This is patently untrue.  NATO cartridges in 5.56mm are manufactured to very specific military specifications, weight, grains, size, and tolerance.  This is to ensure reliability and uniformity with the NATO system.  The civilian .223 is not manufactured to the same stringent standards.  In fact, Department of the Army Pamphlet 350-38 and its STRAC chapters determine the only resource for weapons training and strictly prohibit the use of civilian ammunition in military weapons.  Since the applicant was required by Army regulation to use only military grade ammunition, the ammunition was procured from the military, and the ammunition was designed primarily for military service, by definition, it is "an instrumentality of war" within the meaning of 10 USC 1413a(e)(2)(D).
   
   h.  Furthermore, HRC officials have specifically defined ammunition as an instrumentality of war in a memorandum published by HRC entitled "Disabilities Resulting From:  Armed Conflict, Instrumentality of War, Conditions Simulating War; and Disabilities Incurred in a Combat Zone," dated 24 October 2011.  This memorandum was written by the agency legal advisor and is used by HRC to help define CRSC.  This memorandum at page 3, paragraph b, defines an instrumentality of war as:
   
(1)  Tanks, armored personnel carriers, Bradley Fighting Vehicles, and other various combat vehicles.

(2)  Military air and water craft.

(3)  Unique military vehicles and equipment (jeeps, command and staff vehicles, ammunition carriers, combat recovery vehicles, two and one half and five ton trucks, HUMMV, etc.).

(4)  Weapons.

(5)  Ammunition and explosive devices.

(6)  Parachutes.

   i.  Based on HRCs own definition, ammunition is indeed an instrumentality of war.  As such, the applicant requests that the Board accept the HRC opinion that the applicant was indeed exposed to lead during active duty, reject HRC's contradictory opinion that ammunition is not an instrumentality of war as discussed above, and grant his application for CRSC.

   j.  With regard to whether any of the applicant's service-connected disabilities, including his central nervous system dysfunction, constitute a disability that was "incurred … through an instrumentality of war."  HRC has declined to address the specific merits of this section.  The applicant reasserts that his condition is the result of, and incurred through, an instrumentality of war.  According to 10 USC 1413a, the term "combat-related disability" means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs.  In his latest VA Compensation and Pension Report and Progress Notes dated  20 November 2012, the VA determined that "the condition/disability central nervous system dysfunction is at least as likely as not (50/50 probability) caused by or a result of lead exposure."  Also clearly stated in the Rationale for Opinion Given, "Veteran has been diagnosed with lead poisoning.  Records document that the Veteran was exposed to lead while serving as a military rifle range operator, and, …Therefore Veterans central nervous system dysfunction is at least as likely secondary to lead exposure during military service."

   k.  In their 10 May 2013 decision, the VA recognized that the applicant's conditions were directly related to service, that his conditions were the result of lead poisoning in service, and granted service-connected disability for his conditions.  The VA granted him 100 percent total and permanent disability and granted him Special Monthly Compensation for his loss of use of both feet, both hands, and central nervous dysfunction including the need for aid and attendance.
   
   l.  HRC does not dispute the applicant was exposed to lead while on active duty.  They have conceded that fact.  Congress has defined an instrumentality of war as codified in 10 USC 1413a, in which ammunition is clearly included as being designed primarily for military service and intended for use in such service at the time of the occurrence or injury.  HRC has published a memorandum, dated 24 October 2011, which clarifies and specifically lists ammunition as an instrumentality of war.  The VA has determined the applicant was indeed diagnosed with lead poisoning and that his central nervous system dysfunction was is at least as likely secondary to lead exposure during military service.  
   
   m.  The burden of proof required in this case is whether a disability is combat related will be based on the preponderance of available documentary information where quality of information is more important than quantity.  All relevant documentary information is to be weighed in relation to known facts and circumstances, and determinations will be made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture.  The applicant has met this burden and now respectfully requests a favorable decision in his case by granting his application for CRSC. 

18.  On 22 May 2015, an advisory opinion was obtained from the Medical Board Physician Supervisor, Madigan Army Medical Center, Tacoma, WA, who responded to the following questions:

   a.  To what degree does lead exposure factor into the applicant's diagnosis and symptoms of lead (chronic) poisoning 15 years later?

(1)  Once absorbed, lead is distributed to the blood, soft tissues, and 
skeleton.  Lead in the skeleton has a half-life of decades and contains 95 percent of the body burden of lead.

(2)  What is known now, that wasn't known at the time of the applicant's 
initial exposures, is that some common genetic types may predispose individuals to worse responses to lead exposure.  Thus, the comment by Gary Potts at HRC, that other Soldiers "performed the same duties but did not develop the same symptoms," may not be applicable in this case.

(3)  Chronic exposure with lead levels greater than 20mcg/dL in adults has 
been linked to an increase in mortality.  Levels higher than 30 mcg/dL can cause mental retardation, cognitive and behavioral problems.  The applicant's lead levels were higher than 20 mcg/dL; as late as 2011, the level was 39 mcg/dL.

   b.  How much weight should be applied to the VA's statement and the Michigan Medical Center-Clare (MMC-C) documentation?
   
(1)  Per the Morbidity and Mortality Weekly Report, 2014 April, firing 
ranges are a source of lead exposure and elevated blood lead levels among employees, their families, and customers, despite public health outreach efforts and comprehensive guidelines for controlling occupational lead exposure.  An investigation by the Washington State Division of Occupational Safety and Health identified thousands of individuals with elevated blood lead levels as a result of target shooting, and lead-containing dust at firing ranges in 2002 to 2012.

(2)  Studies performed by the Department of Defense in the past decade 
show that air lead levels surrounding Soldiers at both indoor firing ranges and outdoor firing ranges exceeded the Permissible Exposure Limit at 27 percent of indoor ranges and at 16 percent of outdoor ranges.

(3)  Thus, it is likely that the applicant was exposed to lead as documented 
by the VA and MMC-C.  The lead levels detected by MMC-C were lead levels from 39 mcg/dL, down to 6 mcg/dL, which is reassuring, but his providers might consider obtaining a follow-up lead level, if not already done, to ensure that there is not continuing or recurrent release of lead from the bone reservoir.

	c.  During the applicant's MDB/PEB processes, lead poisoning was not referenced or considered.  Is it possible that it was an unknown entity at the time but had it been known, it could have affected the findings?

(1)  The applicant's symptoms of headaches, difficulty concentrating, 
fatigue, depression and seizures are all possible symptoms of lead poisoning, but are non-specific and understandably did not lead to a diagnosis of lead poisoning at the time of presentation.

(2)  It is noted that MAJ G_____, Walter Reed Army Medical Center 
neurologist, did consider metal poisoning in the differential diagnosis and ordered a serum copper level in 1997, but there is no note in the documentation reviewed regarding a lead level, and there are no hard copy medical records available to this reviewer to check for prior lead levels or complete blood counts.  Also noted is that patients with lead poisoning might also have normal red blood cell indices unless they have co-existent iron deficiency or thalassemia trait, so that normal red blood cell indices while on active duty would not disprove the presence of lead poisoning in the applicant.

(3)  Earlier detection of lead poisoning might have led to chelation therapy 
15 years ago and a better outcome for the applicant.  Many of the effects of lead are reversible if lead poisoning is identified early.  However, moderate poisoning over long periods can result in irreversible damage to the central and peripheral nervous systems and other organ systems, such as what is surmised to have occurred with the applicant.

(4)  A diagnosis of lead poisoning would affect VA compensation if ARBA 
is willing to overturn the decision by HRC and consider the weapons firing as "instrumentalities of war," which would result in additional CRSC.  Surely if the regulations will cover Soldiers injured while performing pugil stick training with a broomstick, one would think that firing a military weapon (M16A1 rifle) at a range and getting injured (via inhalation of lead) would also be intended for coverage.  A 2013 Department of Defense study confirmed the risk of lead inhalation at Army firing ranges.

(5)  It is not clear to this reviewer that the Army PEB disability rating would 
change based on ratings for lead poisoning vs. the residuals of lead poisoning, for which he was already rated, even though they were previously considered as non-lead-related diagnoses.  A U.S. Army Physical Disability Agency adjudicator would be better suited to comment on Army ratings.

	d.  Based on the physical exams, history, labs, and diagnostic studies, is there evidence that the applicant potentially had a toxic level of lead while on active duty?

(1)  No lead levels from the time period in question were available to this 
examiner for review.  There was a 1997 diagnosis of "Chronic leucopenia of unclear etiology."  Leucopenia may be associated with poisoning.  Brain imaging showed ischemic white matter lesions, which can be caused by metal deposition (for example, copper, in Wilson's disease).

(2)  Given residual elevated lead levels of 39 mcg/dL in 2011, and 
assuming no continuing exposure to lead after Walter Reed neurologist, MAJ G_____, wrote a profile prohibiting exposure to ammunition, then it suggests that the applicant would have had even higher, (toxic) blood levels of lead during peak exposure while on active duty.

19.  Based on the evidence at hand, the Medical Board Physician Supervisor, Madigan Army Medical Center, Tacoma, WA, stated the applicant potentially had a toxic level of lead exposure while on active duty and further recommended that ARBA grant Combat Related Special Compensation based on an injury sustained by an instrumentality of war (M16A1 rifle).

20.  On 18 June 2015, the applicant, after consulting counsel, stated they did not have a response with regard to the recommendation only that they agreed with his opinion.

21.  CRSC, as established by 10 USC 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it weren't for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  CRSC eligibility includes disabilities incurred as a direct result of:

* armed conflict (gunshot wounds, Purple Heart, etc.)
* training that simulates war (exercises, field training, etc.)
* hazardous duty (flight, diving, parachute duty)
* an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.)

22.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals.  This guidance states that in order for a condition to be considered combat related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war or that it was caused by an instrumentality of war.  The determination of whether a disability is combat-related will be based on the preponderance of available documentary information where quality of information is more important than quantity.  All relevant documentary information is to be weighed in relation to known facts and circumstances, and determinations made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the term "instrumentality of war" refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier petitions for entitlement to CRSC have been carefully examined, evaluated, and considered. 

2.  Was the applicant exposed to lead during active duty, including while employed as a rifle instructor, which involved working with rifles and ammunition?  Yes.  It is reasonable to presume the applicant was exposed to lead during active duty, including while employed as a rifle instructor at Central Michigan University.
3.  Did the source of any such lead exposure constitute an "instrumentality of war" within the definition of 10 USC 1413a(e)(2)(D)?  Yes.  Contrary to the original advisory opinions, ammunition and explosive devices, by definition, are considered "an instrumentality of war" within the guidelines of 10 U.S.C. subsection 1413a(e)(2)(D).

4.  Do any of the applicant's service-connected disabilities, including his central nervous system dysfunction, constitute a disability that was "incurred…through an instrumentality of war"?  Yes. The evidence appears to support a conclusion that the applicant's service-connected disabilities were the result of an instrumentality of war, or lead exposure.

5.  Evidence contained in the applicant's records clearly document the onset of flu-like symptoms in autumn 1994, which persisted over weeks and subsequently developed into recurrent episodes of periods of lost awareness of his surroundings, amnesia, confusion and excessive drowsiness.  In 1994, the applicant underwent extensive evaluations which revealed a small gadolinium-enhanced nodule in the left hypothalamic area of his brain.  Upon receiving treatment and medication, the applicant reported his spells resolved and control of his seizures continued despite discontinuation of Depakote for three months.  The decline in his symptoms presumably occurred just prior to his PCS to Central Michigan University in August 1995 and assignment as a rifle range instructor. 

6.  However, in March 1996, the applicant had a recurrence of symptoms and he began to have two to three seizures a week and weekly severe headaches.  It is noted he received a profile for no driving, no operating heavy machinery, no work with ammunition, and no work at height or participation in any activities where a loss of consciousness would cause harm to himself or others.

7.  On or about 17 October 1997, the applicant underwent an MEB at Walter Reed Army Medical Center in Washington, DC.  While his MEB Proceedings were not available for review, the NARSUM's Disposition and Recommendations section states, "It is felt that the left hypothalamic structure lesion is the probable etiology for his complex partial seizures as well as rhythmic palatal myoclonus.  It is also most consistent with post-viral onset during his acute illness in October 1994, when he became symptomatic."  His NARSUM does not mention lead exposure or poisoning as a possible or probable cause for any of his conditions.  

8.  While a VA progress note dated 30 November 2012 cited by the applicant does not establish by a preponderance of the evidence that the applicant's central nervous system dysfunction (which includes seizures, palatal myoclonus and muscle weakness) was the result of lead exposure while at Central Michigan University, the note does state that lead exposure while at Central Michigan University is at least as likely as not the cause of his central nervous system dysfunction.  

9.  An advisory opinion was subsequently obtained from the OTSG and based on the evidence at hand, the Medical Board Physician Supervisor, Madigan Army Medical Center, Tacoma, WA, stated the applicant potentially had a toxic level of lead exposure while on active duty and recommended the Board grant CRSC based on an injury sustained by an instrumentality of war (M16A1 rifle).

10.  The totality of the evidence obtained by the Board appears to support the applicant's contention that his disabilities were incurred due to his exposure to lead while serving as a rifle range instructor from 1995-1998 and, therefore, were the result of an instrumentality of war.  In light of the foregoing, his claim for CRSC should be granted.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing his claim for CRSC was approved; and

	b.  if otherwise eligible, paying him any monies due as a result of this correction.



      _______ _   ___X____   ___
               CHAIRPERSON
      
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.



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