related special compensation claim if that appropriate there are three considerations that we would like to bring to the court's attention that we think should guide its analysis of this particular claim in the first as in roff united states this court make clear that when the military records correction warrants finds an error an injustice it must take quote such corrective action as will appropriately appropriately in fully erased such error or compensates compensate such injustice similarly the is a remedial statute in there should therefore should be given liberal consideration in their consideration which may be the most important the major major items as a united states air force graduate he was an officer in the united states air force for eleven jurisdiction based on your money mandate and statutes at the bottom of the claim that he should have been treated as if he were still in the military are you saying that there must be a mandatory duty enforceable by money that he had been that he should have been retained during that year and i'm not sure where that is coming from with the  you claim would be the and again i was in council below bear in mind with me but the claim is that the board in correcting his record had a couple of options one they could have just stated that he was extended on active federal claims under the tucker act wouldn't that duty have to have been in the mandatory why on the part of the board of corrections or the secretary and at least as i mean i'm not recalling that you pointed to anything any statute that says in these circumstances the service member must be retained during the period that's relevant here only maybe and we said several times that these may statutes don't generate know i've been making this assessment in the first instance i might have that hole in there and getting relief included exactly what you're talking about but i don't know that we haven't had already to second guess that to the fact that others were were corrected in a different way to treat them as having an on on duty but on leave during a period of their a prior to their retirement that you're not claiming that he was treated in a way that lies unfair these it be those other service members are you not specifically around to because there were there was another alternative which is in this convoluted in direct manner is what unfolded so that the board never specified in its decisions whether he was entirely to retroactive medical care or dental care or compensation for his moving expenses or what has been corrected it was not it was done really by captain phillips of the united states air force bless her heart she took initiative on his she interpreted the board's decision as authorizing him to receive tri care retrospective the situation with the truck let me back of the general claim is that he's presently owed money even based on the relief that was granted in the steps were taken the basic issue here is that they did not go through his medical expenses claimed in dental expenses and complainer against the policy that he had which is a continuing health care benefits policy compare that against the policy he would have had had he been medically retired in the first instance and determine which claims are allowed will and which claims are not know what they compensated him for were his premiums that he had paid to the to the treasury for the continuing health care benefits program but he also has premiums that he paid to private insurance companies that were not addressed by the board's decision so we're taking that is to say the board needs to put its mind to this needs to fully consider an applicant's claims and it needs to address each one of those claims the action that it took in this case which is just to say we're going to medically retired you without specifying anything else reaches its legal duty under the statute are we do you believe that deal with but you need to settle those with appropriate agencies including tri care but i think the point you're going to we would make a strike is not the agency he needs to deal with you need to deal with the five so this if for for the board stakes the board makes the records corrections in it specify the relief defense finance and accounting service then is charged by law with computing what what the man or what the veteran is owed in so in this case asset well we don't think we can help him in terms of figuring out what medical expenses were valid and could be recoverable by him they sent him to try here that's not in conformity with statute so tri care provided him an e mail is he owed anything if it's fifty dollars he's owed fifty dollars if it's five thousand years of five dollars in addressing that didn't happen so what we're getting at these boards have an extraordinary responsibility most often they're the first tribunal tyler's an as a matter of statute to dental care retroactive to his date of retirement that has never been address the best they sent him to a private dental insurer which said we can retroactive you to two thousand that it is an option that the board would have if the if the matter were remained if i were representing before the board that's the option i would press upon or if the cleanest simplest way to discharge of these disputes to go through some comparison between a policy he had and didn't have and how that policy changes over time just say the man continued to serve on active duty until let's say november sixteenth two thousand and seven when the surgery was completed that takes care of the problem so there is no question that they can do that they have that authority to make myself clear what we're getting at the gist of this is the failure of the namely a correction to provide him with a disability retirement as opposed to a voluntary separation constituted full unfitting relief they'd done a fight aaron justice and his separation and they corrected his record to to remedy that injustice is a it's a government program but it's managed by contractors the government wanted to get out of the business of deciding insurance claims so they contracted with with experts in doing this with insurance companies and so what if the insurance company will cover or  cover is is a matter of the insurance company's policy but they determine what they're going to cover based on the information that the government gets right while they determine what they're going to cover based on our sorry easier question whether their yes and that's why they refunded him with his premiums i mean first of all there are two misconceptions that i think underlie the if palin's argument and one that one is that he didn't somehow receive tried here and the record  his insurance coverage at the time was through tri care tri care you know and what he paid he peed on the difference between what he paid and what a what average tyree would otherwise pay is premiums so he had a p premiums if you're retired and if you were retired in the ordinary course what he would have done is he would have she would have paid for medicare part b because he would have been eligible for medicare ok so this issue is now before the court and the question is you could sue in in this record it's it would be like suing your insurance company if you say that you're entitled to some sort of coverage under your policy with at now or with united you would sensibly exhausting your appeals process you would you would see them in your state or federal court but in other mandatory claims against the government that's a court of federal claims not the district court it's not a monetary claim against the government it would be a claim against the insurance representation take however many years all this takes for what is a significant sum and what reality of federal litigation when blinks out and yet supposed to happen if you look at he disability retiree absolutely ok and that seems to me that the crucial point i think you i think what you keep saying is that the exact same policy that he did have is the policy he would have had had he been retired for disability and all they are for that board had to do with the say you had to have a disability retirement the change is it is a change in premiums but not a change in coverage that's right is that is that your argument is my argument he has not received less than other retirees would have received he has received everything that he is legally entitled to receive the corrections that the appellant has proposed are equitable corrections that he never requested first of all to the board and their determination of whether or not aaron justice exists to implement such corrections i there's no it has the standard by which the court can measure whether or not that such a decision was arbitrary capricious or wrong lawful i mean these are discretionary corrections meet the word acting on behalf of the secretary you know unless there's some sort of procedural violation or something that they did incorrectly here i'm what the an error in in procedure major adams correctly notified us that there is a requirement this is a connection with a special kind of special combat related special compensation claim that the board was required to obtain an advisory opinion from the office of the undersecretary so we said you are absolutely right and so we sought to remain in order for the board to obtain such an opinion and consider such an opinion you consider that opinion you know in this case the board you know and that is that he should be out and put on active duty for him till two thousand and seven that's that's new that was never even raised below but that's obviously something the board has been just doing in the past and could have easily done  understood that that was an option for him or not is a different question well the in this case the board looked at the record and they determined that the correction that they provided constituted full unfitting relief you made the argument it wasn't on fitting relief not necessarily because his argument was that i was not fit for service at the time i was discharged so he actually with drew a prior claim for retroactive pay and promotion because he said i retired you but that's it we're not going to allow for pay you know that wasn't what happened they said we're going to medically retired and you get what you're entitled to receive as a result and that's what happened so you know given the circumstances the interpretation of the statute of fourteen thirteen eighty by the department of defense is erroneous certainly as it pertains to the condition of hazardous service and remand that also back to the board and instruct reissue guidance on that particular point the fundamental underlying problem here is one that they impose a direct causation requirement the d o d does where the congress did not so they're not totally redraft the statute closely related is that it requires that an applicant show that his or her underlying medical condition was the direct consequence of the hazardous service consider the merits of of his claim i think the court could reverse on that as well because the evidence does show that his condition his underlying conditions worsen and after the the bathroom fall of two thousand and four he had a substantial evidence for a view that does let us write your own curricula so but the evidence is there that contradicts and i think that outweighs the opinion that was issued by the f b c moore medical consultant because there is no other event to explain the changes in his him are either occurred the the board physician conceded that in fact that flying an aircraft for extended periods of time during a deployment can cause these conditions to happen  can certainly aggravate those conditions to happen he did not find out because he said he provided no proof that his underlying medical conditions were the direct result that's the improper standard so the improper standard that was implied because think about this if congress intended for preexisting conditions to be included within the scope of section fourteen thirteen a which it did because a preexisting condition that is aggravated to the point of disability is compensable under the law in the us therefore it's compensable under fourteen thirteen if you require an applicant shows that his or her injuries are the direct result not the disability because that this ability is the impairment as this court will notice the distinction between the underlying condition in the disability if your requirement an applicant show that the underlying condition was caused by then no applicant with a preexisting condition any condition that existed prior to the service in question can prove up as he was doing those things and that it came down to a factual determination of a debate between the two doctors about whether that in fact curt but that's inconsistent with the v a s definition of aggravation aggravation is not aggravation of the underlying medical condition of disease or injury it's not provision the impairment it's a worsening of the impairment of time so if you know it's the same if you l disability because they don't impede my ability to do my to do my job or my life of lots of service members on active duty with serious medical conditions but they're not found to be disabled until the manifestations are until they're there impaired such that they can term direct result in relation to a combat caused injury chose not to in relation to has a service so the court has to include that it meant a different standard to be applied the t m department didn't difference in the directive memorandum is applying a direct causation standard where congress did not authorized to do so with the consequence that applicants are excluded so and going to the factual matter i certainly strongly disagree