Adams v. United States

In the United States Court of Federal Claims

No. 11-783C

Filed: August 21, 2014

Reissued: September 17, 20141

* * * * * * * * * * * * * * * *

ERIC F. ADAMS, *

* Military Pay; Motion for Judgment

Plaintiff, * on the Administrative Record; 10

* U.S.C. § 1201; 10 U.S.C. § 1216a;

v. * Department of Veterans Affairs

* Schedule for Rating Disabilities

UNITED STATES, * (VASRD); 38 C.F.R. Part 4; 38 C.F.R.

* § 4.124a.

Defendant. *

*

* * * * * * * * * * * * * * *

Barton F. Stichman, National Veterans Legal Services Program, Washington,

D.C., for plaintiff. With him were Thomas A. Moore, National Veterans Legal Services

Program, Noelle J. Coates, Hunton & Williams LLP, Washington, D.C., and Shannon

E. Fyfe, Hunton & Williams LLP.

Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washington, D.C., for defendant. With

him were Stuart F. Delery, Assistant Attorney General, Civil Division, Robert E.

Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and Scott D.

Austin, Deputy Director, Commercial Litigation Branch, Civil Division, Major Mary E.

Meek, Department of the Army, Litigation Division, Fort Belvoir, Virginia, of counsel.

OPINION

HORN, J.

Plaintiff, Eric F. Adams, filed suit in the United States Court of Federal Claims

claiming that he “has been denied the disability retirement pay and benefits to which he

is entitled under 10 U.S.C. § 1201 as a result of the Army's erroneous application of the

VASRD [Veterans Affairs Schedule for Rating Disabilities].” Plaintiff seeks to vacate the

1

This opinion was issued under seal on August 21, 2014. The parties were given the

opportunity to propose possible redactions, but no redactions were proposed. The

original opinion is hereby unsealed and reissued without redaction.

2005 “decision of the Army to assign Plaintiff a disability rating of less than 30% for his

unfitting disability of migraine headaches,” and the 2011 “decision by the Secretary of

the Army to reject the PDBR [Physical Disability Board of Review] majority

recommendation” to raise plaintiff’s disability rating for his “Post-Concussive Migraine

Headaches” from ten percent to thirty percent. He seeks to vacate both decisions as

“unsupported by substantial evidence, arbitrary and capricious, and contrary to law.”

Plaintiff also seeks (1) money damages, (2) a correction to his records to reflect the

thirty percent rating for his migraine condition, (3) interest, costs, and attorneys’ fees,

and (4) other relief as the court deems just and proper.

FINDINGS OF FACT

According to the parties’ joint stipulation of facts, “Staff Sergeant Eric Adams

began his military service in the United States Army Reserves in November 1985,

serving at various times in both an active and reserve status until his honorable

discharge from the Reserves in December 1994.” The record indicates that during this

time plaintiff served one year, one month, and four days in active service in the role of

military police during the first Gulf War. Plaintiff reenlisted in the Army Reserves on May

1, 2001, for a three-year term. The parties jointly stipulated that on July 24, 2003, while

deployed in Kuwait, “Mr. Adams was injured in a motor vehicle accident during a dust

storm in which Mr. Adams reported his vehicle was hit from behind at a relatively high

speed.” The parties stipulated “that the collision tossed him into the ceiling of the

vehicle,” and the record further indicates that plaintiff hit his head on the ceiling of the

vehicle, although he did not lose consciousness. According to the parties’ joint

stipulation, “Mr. Adams reported that there were no seat belts in the vehicle.” The

parties also stipulated: “The line of duty investigation into the accident concluded that

Mr. Adams sustained a head and neck injury while in the line of duty when the van in

which he was a passenger was hit by a tractor trailer in Kuwait.”2

The record before the court further indicates that after the accident, plaintiff was

taken for treatment to the 47th Combat Support Hospital in Camp Wolf, Kuwait, where

he complained of head and neck pain. Shortly thereafter, he was evacuated from

Kuwait and sent to Landstuhl Regional Medical Center in Germany for further evaluation

and treatment. Three days after the accident, on July 27, 2003, an “AEROMEDICAL

EVACUATON PATIENT RECORD” indicated that plaintiff complained of a headache

with the pain measuring a seven out of ten. (capitalization in original). On July 28, 2003,

when examined in Landstuhl, Germany, the handwritten medical records appear to

state plaintiff was diagnosed with a “Concussion,” along with “Head Muscle Strain.”

Plaintiff additionally reported at that time that he was suffering from migraine

headaches.

2

Defendant has not contested whether plaintiff’s medical condition resulted from the

July 24, 2003 accident.

2

According to the parties, one day later, “[b]y orders dated July 29, 2003, Mr.

Adams was reassigned to Fort Stewart, Georgia, for continued medical care to recover

from his physical injuries.” The record indicates that on August 4, 2003, at Fort Stewart,

Colonel Josephine W. Session, a medical doctor, diagnosed plaintiff with “Post

traumatic Headache Syndrome.”3 The record further indicates that plaintiff was

examined by certified physician assistant Keith E. Williamson at Fort Gordon on August

7, 2003. Mr. Williamson listed “Head Injury” and “Persistent Asthma” under “Impression”

in his report. (emphasis in original). The parties also jointly stipulated that Colonel John

H. Brooks, a medical doctor, subsequently “conducted a medical examination of Mr.

Adams at Fort Stewart, Georgia on August 25, 2003 and diagnosed Mr. Adams with a

‘migraine headache’ due to ‘auto accident with concussion.’”

On September 11, 2003, Jerry L. Vander Heyden, a doctor of chiropractic

medicine, working at the Winn Army Community Hospital in Fort Stewart, diagnosed

plaintiff with “OCCIPITAL NEURAGIA [sic],” “POST TRAUMATIC HEADACHES,” and

“ACUTE CERVICAL STRAIN/SPRAIN.” (capitalization in original). Plaintiff stated to Dr.

Vander Heyden that his headaches were “FREQUENT,” “THROBBING,” and that they

began “IN THE BASE OF THE SKULL AND RADIATE INTO THE RIGHT SIDE OF HIS

HEAD AND OVER THE EYES.” (capitalization in original). Plaintiff also stated to Dr.

Vander Heyden that bright lights affect his eyes, and that “he has had episodes of

dizziness and vomiting as well.” According to the report by Dr. Vander Heyden,

however, “HE HAS HAD A CTSCAN [computerized tomography scan] OF HIS HEAD

WHICH WAS REPORTED TO BE NORMAL.” (capitalization in original). On October 1,

2003, Major Umesh S. Marathe, a medical doctor, examined plaintiff at Fort Stewart’s

Ear, Nose, and Throat Clinic, and stated in his examination report that plaintiff

experienced headaches and a concussion resulting from trauma. Dr. Marathe assessed

plaintiff with “MiGraiNe.” (capitalization as in original). Plaintiff was prescribed medicine

to manage his migraine headaches during this period. The parties jointly stipulated that

while at Fort Stewart, on October 21, 2003, First Lieutenant Elizabeth VanHemel, a

certified physician assistant, assessed plaintiff, and “diagnosed Mr. Adams with

‘migraine headache’ and ‘post-concussive syndrome.’” According to the parties, First

Lieutenant VanHemel noted that plaintiff “‘fe[lt] like his migraine [was] about to start’ but

that he was not ‘photophobic’ and had no ‘vertigo.’” (modifications in original).

A Department of the Army (DA) Form 3349, “PHYSICAL PROFILE” report,4

signed by Dr. Session, an Army physician, on November 4, 2003, indicated

3

The phrase “Post traumatic Headache Syndrome” follows the letter “A” in the notes

taken by the physician, which appears to indicate “Assessment.”

4

The DA Form 3349 is part of the Army’s physical profiling system, which is used to

determine whether a physical condition has temporarily or permanently affected a

soldier’s ability to perform his or her military duty. See Army Reg. 40-501, Ch. 7 (Apr.

12, 2004 Rev.); see also 5 C.F.R. § 339 (2005).

3

“MIGRAINE” as plaintiff’s “MEDICAL CONDITION.” (capitalization in original). This

report recommended that plaintiff not be deployed because of his injury.5 On a

November 6, 2003 sick call for neck and shoulder pain at Fort Stewart, Eric Treaster,

the treating physician assistant, assessed plaintiff with migraines, and filed a medical

report indicating “Migraines” as one of plaintiff’s medical conditions, along with “DDD

Cy-C6,” which appears to refer to a spinal injury. According to the parties, on November

18, 2003 Major Jason Friedman, a neurologist, evaluated plaintiff at Fort Stewart’s

Eisenhower Medical Center and diagnosed him with “migraines.” The parties jointly

stipulated that “Dr. Freidman states in his report that Mr. Adams ‘[complained of]

migraines since accident 24 July 03’ starting in the frontal area with nausea, vomiting,

photophobia, phonophobia, and that these symptoms were relieved with ‘midrin and

rest, cold compress.’” (modification in original). The parties further jointly stipulated:

“The report also reflects that Mr. Adams reported to Dr. Friedman that he had migraines

‘at least once a [week]’ that ‘last until he goes [to sleep],’ with an intensity of 8-9 out of

10.” (modifications in original). The record also indicates that another physical profile

report was completed on November 24, 2003, this time by Dr. Brooks, which listed

“ASTHMA. MIGRAINE HEADACHE. HEARING LOSS. DEGENERATIVE DISK [sic]

DISEASE. LEFT PLANTAR FASCITIS [sic]” as plaintiff’s “MEDICAL CONDITION.”

(capitalization in original). When visiting Dr. Vander Heyden on December 8, 2003,

plaintiff again reported: “Migraine, 2 Headaches LAST weeks,” along with tinnitus, but

indicated that the migraines were controlled with medication. First Lieutenant Kim

Walker, another physician assistant, examined plaintiff on February 10, 2004 and

diagnosed him with “migraine HA’s [headaches] – controlled.” On April 19, 2004,

Colonel Lynn F. Abrams filed a physical profile report, which also listed migraines as

one of Mr. Adams’ medical conditions. Both parties stated in their briefs that at no point

did the evidence demonstrate that plaintiff suffered from memory loss or memory

impairment.

Plaintiff was evaluated by Dr. Thomas R. Byrnes at the Winn Army Community

Hospital, Fort Stewart, Georgia, on April 22, 2004. The parties jointly stipulated

regarding the April 22, 2004 visit: “Dr. Thomas Byrnes examined Mr. Adams for the

Military Evaluation Board (‘MEB’) to evaluate his medical condition.” The parties further

stipulated that plaintiff told Dr. Byrnes that he suffered from “daily headaches . . . with

occasional exacerbations. . . [sic] for which he takes Percocet when [the pain] is

severe.” (modifications in original). The report by Dr. Byrnes gave the following

diagnosis: “Chronic neck pain with degenerative disc disease and a cervical herniated

nucleus pulposus, debilitating migraine headaches, plantar fasciitis, left plantar fasciitis.

Sensory neural hearing loss with tinnitus, medically acceptable, and asthma, medically

5

Although only the physical profile report filed on November 4, 2003, specifically

recommended that plaintiff not be deployed, two later physical profile reports in the

record, dated November 24, 2003 and April 19, 2004, substantially limited plaintiff’s

duties within the Army, for example, by preventing plaintiff from “WEAPON[S] FIRING,”

and limiting his ability to lift heavy objects, perform strenuous activity, or be in areas with

loud noise. (capitalization in original).

4

acceptable.” The parties jointly stipulated: “The doctor’s narrative summary states that

the migraines occur ‘weekly’ and require Mr. Adams ‘to leave his duty station, take

medication and rest in a darkened room.’” The report also indicated that Dr. Byrnes

recommended Mr. Adams be sent “to the Physical Evaluation Board for further

adjudication.”

Additionally, the parties jointly stipulated that “[o]n May 3, 2004, the Medical

Evaluation Board convened to evaluate plaintiff’s medical condition.” The May 3, 2004

MEB, according to the parties, “determined that Mr. Adams fell below Army medical

fitness standards for retention for a number of reasons, including ‘debilitating migraine

headaches,’ and referred his case to a Physical Evaluation Board.” The parties also

jointly stipulated that, one day later, on May 4, 2004, “Mr. Adams concurred with the

Medical Evaluation Board’s findings and recommendations,” and the record indicates

that plaintiff signed a DA Form 3947 (Mar. 1983 Rev.), marking the box, “I agree with

the board’s findings and recommendation.”

According to the parties’ joint stipulation, “[o]n May 5, 2004, an informal Physical

Evaluation Board (‘PEB’) reviewed Mr. Adams’s medical history.” As indicated jointly by

the parties, the 2004 informal PEB concluded that plaintiff’s “‘medical and physical

impairment prevent[ed] the reasonable performance of duties required by grade and

military specialty.’” (modification in original). The record indicates that the 2004 informal

PEB assigned plaintiff a disability rating of thirty percent, based on the following:

(a) 20 percent for “LEFT C5-6 RADICULOPATHY WITH PAIN

PARESTHESIAS AND SENSORY IMPAIRMENT” under the

analogous Department of Veterans Affairs (“VA”) Schedule for Rating

Disabilities (“VASRD”) Diagnostic Codes 8599, 8513 under the VASRD

diagnostic codes (DCs) 8599-8513[6];

(b) 10 percent for “C4-5 HERNIATED NUCLEUS PULPOSUS WITH

COMBINED CERVICAL RANGE OF MOTION OF 305 DEGREES”

under VASRD Diagnostic Code 5243 [“Intervertebral disc syndrome.”

38 C.F.R. § 4.71a (2003)];

(c) zero percent for “MIGRAINE HEADACHES, NOT REQUIRING

PROPHYLACTIC THERAPY, NOT CONSIDERED PROSTRATING”

6

DC 8599-8513 represents the pairing of two diagnostic codes in the VASRD, DC

8599, representing an unknown “DISEASE[] OF THE PERIPHERAL NERVES,” rated

analogously to DC 8513, representing “Mild” paralysis of “[a]ll radicular groups.” See

38 C.F.R. § 4.124a (2003) (capitalization and emphasis in original).

5

under VASRD Diagnostic Code 8910 [“Migraine.” 38 C.F.R. § 4.124a

(2003).7]

(capitalization in original).

The 2004 informal PEB determined that plaintiff’s injuries were “not sufficiently

stable for final adjudication,” and recommended that plaintiff be “[p]laced on temporary

disability retired list with reexamination during JUN, 2005.” According to the parties, a

PEB liaison officer, Robert E. King, explained the “findings and recommendations” of

the 2004 informal PEB review to plaintiff, and Mr. Adams’ “legal rights pertaining

thereto.” Thereafter, on May 11, 2004, “Mr. Adams concurred with” the 2004 informal

PEB’s “findings and recommendations and waived a formal hearing of his case,” and

the record indicates that plaintiff signed a DA Form 199 (Jun. 1997 Rev.) and marked, “I

CONCUR AND WAIVE A FORMAL HEARING OF MY CASE.” (capitalization in

original). The parties stipulated that “[i]n July 2004, Mr. Adams was released from active

service and placed on the TDRL [Temporary Disability Retired List].” The record

contains a “CERTIFICATE OF RELEASE OR DISCHARGE FROM ACTIVE DUTY,”

listing a “Separation Date This Period” of July 1, 2004, and listing the type of separation

as “RETIREMENT.” (capitalization in original).

After plaintiff was placed on the TDRL, the parties stipulated that plaintiff applied

to the Department of Veterans Affairs (VA) “for service-connected disability

compensation” on August 3, 2004.8 According to the parties’ joint stipulation, “[o]n

September 1, 2004, the VA issued its first rating decision addressing Mr. Adams’s

migraines,” and assigned plaintiff a fifty percent disability rating for migraines under DC

8100, “Migraine.” In their joint stipulation, the parties noted that the VA concluded that

plaintiff’s migraines were “‘very frequent, completely prostrating, and prolonged attacks

productive of severe economic inadaptability.’” The September 1, 2004 VA report

7

In the actual May 5, 2004 informal PEB record, plaintiff’s migraines condition was

indicated as rated under DC “8910,” which represents “Epilepsy, grand mal.” 38 C.F.R.

§ 4.124a (2003). Both the later October 24, 2005 informal PEB and July 7, 2011 PDBR

concluded that this rating was an error. The October 24, 2005 informal PEB noted:

“Headaches incorrectly rated in May 2004.” The 2011 PDBR majority decision stated: “It

is clear that the 8910 (epilepsy) code entered on the PEB’s DA Form 199 for TDRL

[Temporary Disability Retired List] placement was erroneous, probably typographically

so. A 0% rating was conferred at that time with documentation on the DA Form 199 that

the headaches were ‘not considered prostrating;’ so, it may be assumed that the rating

criteria in mind were those attendant to code 8100 (migraine).”

8

Previously, on August 26, 2003, according to the record, plaintiff signed a “PHYSICAL

EVALUATION BOARD (PEB) FACT SHEET,” stating that he understood the rules and

guidelines of disability ratings, including that, “[t]he Army is not bound by the VA ratings

nor is the VA bound by the Army’s ratings.” (capitalization in original).

6

stated: “We have assigned an effective date of July 2, 2004, the first day following your

discharge from the military.”

The parties have jointly stipulated that, “[a]s a service member who has been

placed on the TDRL, Mr. Adams was required to undergo a periodic medical

examination -at least every 18 months followed by a reevaluation by a PEB to

determine whether his impairments changed to any meaningful degree.” (citing 10

U.S.C. § 1210; Army Reg. 635-40, Ch. 7-4 (Aug. 15, 1990 Rev.)). While on the TDRL,

between his 2004 and later 2005 informal PEB reviews, plaintiff was evaluated on July

18, 2005 by Major Elizabeth L. Garcia, a neurologist, at the Dwight David Eisenhower

Army Medical Center at Fort Gordon, Georgia. According to the parties:

Dr. Garcia stated, in her medical report, that Mr. Adams reported that he

was experiencing “one to two” migraine headaches per week with a

“duration of less than 24 hours”; that the headaches “interfere[d] with his

quality of life and ability to work”; but that the headaches were “[l]ess

intense than when he first had them.”

(modifications in original). According to the parties, “Mr. Adams reported to Dr. Garcia

that ‘he gets visual aura with the headaches’ and that the headaches caused

photophobia, visual scotomata, and nausea, but no vomiting.” The parties stipulated

that “Dr. Garcia diagnosed plaintiff with ‘CLASSICAL MIGRAINE (WITH AURA):

intractable with 1-2 prostrating headaches a week’ and found him ‘[n]ot fit for duty’

pursuant to Army Regulation 40-501, paragraph 3-30(g).” (capitalization in original). Dr.

Garcia also noted that plaintiff was not suffering from any mental disability, and was

working as a “‘VA police officer.’”

In addition, as part of his TDRL review, plaintiff was examined on August 20,

2005 by Captain Tran, an orthopedic specialist, again at the Dwight David Eisenhower

Army Medical Center. Dr. Tran’s examination was not related to Mr. Adams’ migraine

complaints. Instead, Dr. Tran explored whether there was a relationship between

plaintiff’s “neck pain and decreased range-of-motion,” and his “herniated nucleus

pulposus,” for which he had been given a ten percent disability rating in his May 3, 2004

informal PEB review. Dr. Tran concluded that Mr. Adams’ “magnetic resonance imaging

scan findings of a herniated nucleus pulposus without any symptoms on physical

examination is highly unlikely for his cause of his neck pain and decreased range-of-

motion,” and that the patient was stable.

Plaintiff was given an opportunity to agree or disagree with the TDRL evaluation,

conducted by Doctors Tran and Garcia, in a memorandum dated September 1, 2005.

According to the memorandum, plaintiff had the option to agree with the evaluation and

concur with the phrase: “I have read the TDRL evaluation and agree with the findings

and recommendations.” Alternatively, he could have disagreed with the findings and

filed an appeal by marking: “I have read the TDRL evaluation and I disagree with the

findings and recommendations. My written appeal is attached.” Plaintiff chose the

7

second option and included a notation above his signature, which stated, “NEED

REASONABLE AMOUNT OF TIME TO REPLY, HAVE APPTS.” (capitalization in

original). There is no evidence in the record, however, that plaintiff ever provided further

information.

On October 13, 2005, plaintiff was notified, in a memorandum from Colonel

Martin I. Reyes, president of the Army PEB, that plaintiff’s upcoming PEB proceedings

had been postponed due to a request for more information. The memorandum stated:

Physical Evaluation Board proceedings pertaining to the above named

Soldier are discontinued for the following reasons: Please provide the

documentation that Soldier was receiving prophylaxis for his headaches

as described in the 18 July 2005 Neurology Note. The medication profile

shows that he received no medications from 18 November 2003 until 18

July 2005, the date of his neurology evaluation. Please provide medication

profiles supporting the TDRL evaluation.

The memorandum added that “[i]f the information or documentation is not provided to

the PEB within 60 days, the case will be terminated.” Documents in the record suggest

that plaintiff was prescribed and taking medication for his migraine headaches in

October and November of 2003, and was again prescribed medication for his migraine

headaches running from October of 2004 through December of 2005.

According to the parties’ joint stipulation, a “second informal PEB convened on

October 24, 2005 to review Mr. Adams’s medical condition.” The 2005 informal PEB

rated plaintiff differently than the prior 2004 informal PEB had done, both in rating

percentage and with respect to the causes of plaintiff’s disabilities. The disability ratings

assigned by the 2005 informal PEB are summarized from the record as follows:

(a) 10 percent for “CERVICAL DISC HERNIATION, WITHOUT NEUROLOGIC

ABNORMALITY” under DC 5243, “Intervertebral disc syndrome.” 38 C.F.R.

§ 4.71a (2005);

(b) 10 percent for “POSTCONCUSSIVE MIGRAINE HEADACHES” under DC

8045-9304, which, as discussed more below, represents “Brain disease due

to trauma” rated analogously to “Dementia due to head trauma.” See 38

C.F.R. §§ 4.124a, 4.130 (2005).

The 2005 informal PEB did not assign plaintiff a disability rating for his “LEFT C5-6

RADICULOPATHY” or his “C4-5 HERNIATED NUCLEUS PULPOSUS,” as the 2004

informal PEB had done, nor did the 2005 informal PEB utilize VASRD DC 8100, titled

“Migraine,” to rate plaintiff’s post-concussive migraine headaches. (capitalization in

original). Instead, the 2005 informal PEB chose to rate plaintiff’s migraines under DC

8045-9304, “Brain disease due to trauma,” analogous to “Dementia due to head

trauma.” The 2005 informal PEB, referencing Dr. Garcia’s TDRL evaluation, stated:

8

“NARSUM [narrative summary] indicated 24 July 2003 MVA [motor vehicle accident]

and subsequent diagnosis of postconcussive syndrome. Currently rated IAW [in

accordance with] VASRD note under DC 8045 [‘Brain disease due to trauma’].” As

indicated jointly by the parties, the total resulting disability rating granted by the 2005

informal PEB was twenty percent, which left plaintiff eligible to be medically separated

from the Army, but not retired on disability. As stipulated to by the parties, the 2005

informal PEB also decided that plaintiff’s condition was “‘sufficiently stable for final

adjudication.’”

The parties jointly stipulated that “[t]he Army provided Mr. Adams with the PEB’s

findings and recommendations.” According to the record, and the parties’ joint

stipulation, “Mr. Adams did not submit an appeal or otherwise submit an election

regarding the 2005 informal PEB decision,” within the applicable time limits, and, as a

result, his case was forwarded to the Army Physical Disability Agency for final

determination on November 17, 2005.9 As indicated in the record, on November 21,

2005, the Army Physical Disability Agency approved the 2005 informal PEB’s

recommendation, removed plaintiff from the TDRL, and discharged him from the Army.

The parties stipulated that “Mr. Adams thereafter was provided a one-time lump sum

disability severance payment.” The Army issued the following order:

You are removed from the Temporary Disability Retired List and

discharged from the service on the date indicated because of permanent

physical disability.

Effective date: 21 Nov 05

Percentage of disability: 20%

Additional instructions: You are entitled to severance pay provided you

have completed over 6 months of service.

BY ORDER OF THE SECRETARY OF THE ARMY:

9

Included in the record is a November 17, 2005 memorandum from Colonel Reyes to

“CDR [Commander], U.S. Army Physical Disability Agency,” discussing plaintiff’s

“Failure to Elect.” The memorandum stated in full:

1. SSG [Staff Sergeant] Eric F. Adams, XXX-XX-XXXX has received

the findings and recommendations of the informal board dated 24

October 2005 on 27 October 2005, verified per attached FedEx proof of

delivery, tracking number 792420905764.

2. Since the soldier has failed to make an election within the

prescribed time limits, the case is forwarded in accordance with paragraph

AR 635-40, para 7-20e for further processing.

(emphasis in original).

9

(capitalization in original).

Thereafter, plaintiff continued to receive benefits from the VA, based on the VA’s

earlier September 1, 2004 rating decision. Plaintiff “filed a claim for increased

evaluation, a re-opened claim, and a new claim that was received on December 20,

2006.” The VA came to a new disability rating decision on October 26, 2007. As part of

the VA’s October 26, 2007 rating decision, the VA “proposed decreasing its rating of Mr.

Adams’s migraine condition [previously awarded September 1, 2004] from 50 percent

disabling to 10 percent,” based on “a thorough review of your outpatient treatment

records which fail[ed] to confirm any treatment for completely prostrating and prolonged

headaches over the past year which caused severe economic inadaptability.” The

October 26, 2007 VA rating decision also stated:

In November, 2005, you were routinely evaluated for headache treatment

and were noted to be “in no acute distress.” Seen again in March, 2006,

for migraine management you were again described as being in “no acute

distress.” In July, 2006, you were found to be in a “functional status” and in

“no acute distress.” You presently take medications to reduce the

frequency and severity of migraine headaches. At your VA compensation

and pension examination you reported that headaches had become worse

and that they are more frequent. You described your headaches as

occurring “weekly.” Physical examination was unremarkable.

The VA decision explained: “Prostrating attacks of headache are episodes of acute

signs and symptoms severe enough to cause extreme weakness and incapacitation

which require bed rest and treatment by a physician. The evidence of record fails to

establish a current history of migraine headaches which meet this criteria.” In the

October 26, 2007 rating decision, the VA also proposed to increase plaintiff’s disability

rating for “cervical disc disease, C4 to C6,” from ten percent to twenty percent, and

maintain plaintiff’s other disability ratings for his “chronic adjustment disorder,” “left C5-6

radiculopathy,” “labrynthitis,” “tinnitus,” and “asthma.” The record before the court is not

clear, however, it appears that plaintiff’s fifty percent disability rating related to his

migraine headaches, awarded on September 1, of 2004, was not actually reduced.

The record before the court reflects that on November 15, 2007 plaintiff

requested a formal hearing to contest the reduction in migraine-related benefits

suggested earlier by the VA. On March 13, 2008 the VA received from plaintiff a

summary of leave requests, showing “many requests for sick leave due to headaches.”

According to the record, plaintiff filed another “claim for increased evaluation” with the

VA on June 19, 2008. The VA issued another rating decision on December 15, 2008, in

which the VA continued plaintiff’s disability ratings related to his shoulder and neck pain,

and vertigo, however, the VA did not address Mr. Adams’ disability rating for his

10

migraine condition.10 On September 17, 2009, the VA issued another rating decision,

stating that “[s]ince our last review of your claim, we received additional evidence on

March 13, 2008,” related to Mr. Adams’ migraine condition. The September 17, 2009 VA

rating decision included the following determination: “Evaluation of migraines, which is

currently 50 percent disabling, is continued.” Plaintiff’s September 17, 2009 VA rating

decision also stated in its explanation:

Rating decision of October 26, 2007, proposed to reduce your benefits.

We sent you a letter on November 2, 2007, notifying you of the proposed

reduction. You had 60 days to submit additional evidence or 30 days to

request a hearing.

On November 15, 2007, we received your request for a hearing prior to

reduction in benefits.

Summary of leave requests, received March 13, 2008, shows many

requests for sick leave due to headaches.

Review of VAMC [Veteran’s Administration Medical Center] records,

James A. Haley Veteran's Administration Medical Center, Tampa, from

April 25, 2008 through June 24, 2009, shows that you report headache

frequency of once or twice per week on average. You have used

propranolol, depakote, Imitrex, and Botox for headache prophylaxis with

varied results. You report decreased headache frequency with Botox,

however, results last less than a month. Records show that most of your

headaches are prostrating and last up to 24 hours, causing you to miss

many days of work.

10

The parties have stipulated:

Mr. Adams’s VA rating decision dated December 15, 2008, does not

address Mr. Adams’ migraine condition, but the VA rating decision dated

September 17, 2009 notes that the rating of 50 percent for migraines was

continued. The VA lists as reasons supporting this decision the “summary

of leave requests received March 13, 2008 show[ing] many requests for

sick leave due to headaches; a review of VAMC [Veterans’ Administration

Medical Center] records from April 24, 2008 through June 24, 2009

showing that Mr. Adams “report[ed] headache frequency of once or twice

per week on average; and the records showing that “most of [Mr.

Adams’s] headaches are prostrating and last up to 24 hours, causing [him]

to miss many days of work.”

(modifications in original).

11

An evaluation of 50 percent is assigned from July 2, 2004. An evaluation

of 50 percent is granted if the record shows very frequent completely

prostrating, and prolonged attacks productive of severe economic

inadaptability.

Since there is a likelihood of improvement, the assigned evaluation is not

considered permanent and is subject to a future review examination.

Finally, another VA rating decision contained in the record, dated February 2,

2010, stated: “We received a Notice of Disagreement from you on November 15, 2007

about one or more of our earlier decisions. Based on a review of the evidence listed

below, we have made the following decisions on your claim.” The February 2, 2010 VA

decision did not discuss plaintiff’s migraine headaches. In its February 2, 2010 rating

decision, the VA increased plaintiff’s “post traumatic stress disorder with depressed

mood (formerly rated as adjustment disorder),” to fifty percent from thirty percent, and

granted “[s]ervice connection for right knee patellofemoral syndrome” with “an

evaluation of 10 percent effective December 15, 2006.”

As is discussed further below, on January 28, 2008, Congress passed the

National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, 122 Stat

3 (Jan. 28, 2008). Title XVI of the Act, the “Wounded Warrior Act,” established the

Physical Disability Board of Review (PDBR). The PDBR was tasked with reviewing the

disability ratings of service members who were separated from the armed forces

between September 11, 2001 and December 31, 2009, if their separation was due to a

medical condition, they received a disability rating of twenty percent or less, and were

not otherwise eligible for retirement. See Wounded Warrior Act § 1643. On November

20, 2009, according to the parties’ joint stipulation, “Mr. Adams petitioned the Physical

Disability Board of Review (‘PDBR’), seeking review of the ‘original decision of the Army

dated [May 3, 2004] and post TDRL rating dated [October 24, 2005].’” (modifications in

original). In his application to the PDBR, Mr. Adams stated that he was “inappropriately

rated at 20% by the US Army PEB.” He asked for a review of the 2004 and 2005

informal PEB decisions, as contrasted with the higher VA ratings he had subsequently

received.11

11

There is a dispute as to whether plaintiff’s application to the PDBR (Defense

Department Form 294 (Jan. 2009 Rev.)), was filed by Mr. Adams pro se or by an

attorney on plaintiff’s behalf. Plaintiff’s application stated that Mr. Adams was

represented by Jason J. Quintero, from the firm of “Carlton Fields Attorneys at Law.”

Thomas A. Moore, a staff attorney at the National Veterans Legal Services Program,

who is plaintiff’s attorney of record in the above captioned case, in a sworn affidavit filed

with the court, states that plaintiff was not represented by any counsel at the time he

prepared his November 20, 2009 PDBR application. According to Mr. Moore, plaintiff

included Mr. Quintero’s name on the PDBR application “in the hope that he would be

able to later obtain Mr. Quintero's agreement to extend his pro bono representation of

Mr. Adams before the VA to pro bono representation of Mr. Adams before the PDBR,”

12

As stipulated to by the parties, on July 7, 2011, a three-person PDBR panel

convened to review plaintiff’s claims. The evidence the panel considered included

plaintiff’s “DD [Defense Department] Form 294,” which was his application for review by

the Physical Disability Board of Review, as well as his “Service Treatment Record,” and

“Department of Veterans’ Affairs Treatment Record.” The parties stipulated that: “The

PDBR based its recommendations ‘on the severity [of his conditions] evidenced at the

time of his permanent separation,’” on November 21, 2005.12 (modification in original).

A two-person majority of the three-person 2011 PDBR concluded that plaintiff’s

disability rating for his “Post-Concussive Migraine Headaches” condition should be

raised from twenty percent to thirty percent. In determining which evidence was most

probative as to plaintiff’s injuries, the 2011 PDBR majority determined that “[t]he most

influential evidence therefore is that obtained from the TDRL evaluation underpinning

the PEB determinations at the time of permanent separation.” The 2011 PDBR majority

despite the fact that Mr. Adams “had never discussed with Mr. Quintero the issue of

representation before the PDBR.” Additionally, Mr. Moore asserts that plaintiff was

denied the ability to be represented by counsel after his application was submitted to

the PDBR. Mr. Moore gives the following explanation: After plaintiff retained the

National Veterans Legal Services Program, plaintiff’s counsel wanted to supplement

plaintiff’s PDBR application. Providing as support a January 2011 e-mail chain attached

to Mr. Moore’s affidavit, Mr. Moore attests that the Chief of the Joint Central

Adjudication of the PDBR, Greg Johnson, stated to a National Veterans Legal Services

Program attorney: “‘since you have indicated that [Mr. Adams] wishes to submit

additional documentation, I will ensure that his case is not adjudicated until the

documentation is received and reviewed.’” (modification in original). Nonetheless,

according to Mr. Moore, the PDBR went ahead and adjudicated plaintiff’s case in July of

2011. Mr. Moore stated in his affidavit:

Despite Mr. Johnson's representation to Mr. Sonenshine [another National

Veterans Legal Services Program attorney], these decisions were

rendered before any additional documentation or supplementation was

submitted on behalf of Mr. Adams, as the Administrative Record reflects.

Thus, the only submission to the PDBR by Mr. Adams was his DD 294

application form, which was prepared pro se by Mr. Adams.

12

The top of the first page of the 2011 PDBR record stated Mr. Adams’ “SEPARATION

DATE” as “20040701,” or July 1, 2004, the date plaintiff was discharged from active

duty after his 2004 informal PEB review. The record, as well as the parties’ filings,

however, indicate that plaintiff was separated from the Army due to his disabilities on

November 21, 2005, shortly after his October 24, 2005 informal PEB review. The text of

the 2011 PDBR majority decision also indicated that plaintiff was “medically separated”

in 2005, after the 2005 informal PEB determination, and that before then his status was

instead “temporary retirement.”

13

decision acknowledged plaintiff’s “contention that his combined VA rating of 80%

[effective July 2, 2004] differs considerably from the 20% combined rating conferred by

the U.S Army Physical Disability Agency (USAPDA),” the agency under which plaintiff’s

2004 and 2005 informal PEBs operated. The parties stipulated: “The PDBR also noted

that the VA had rated Mr. Adams’s migraines under the disability rating criteria in

VASRD Diagnostic Code 8100 (Migraines), ever since the VA issued ‘its decision based

on service records at the time of TDRL placement.’”

The 2011 PDBR majority decision found that since the VA findings were not

within twelve months of plaintiff’s separation from the Army, they were to be accorded

no special benefit:

The VA’s initial rating evaluation was based on severity evidenced at the

time of temporary retirement, which was 16 months prior to permanent

separation; and, the first subsequent VA evaluation was performed 24

months after permanent separation. DoDI 6040.44 [Department of

Defense Instruction 6040.44], under which the Board operates, specifies a

12-month interval for special consideration to VA findings. This does not

mean that the VA clinical evidence at the time of temporary retirement and

VA evaluations after permanent separation were disregarded; but, in

matters germane to the severity of the Cl’s [claimant’s] conditions and

disability at the time of his permanent separation, the information in the

service record proximal to that date (20051024) was assigned

proportionately more probative value as a basis for the Board’s rating

recommendations.

The 2011 PDBR majority included a comparison table in their decision:

(as in original).

14

The 2011 PDBR majority decision stated: “IAW [in accordance with] DoDI

6040.44 [June 2, 2009 Rev.], provisions of DoD or Military Department regulations or

guidelines relied upon by the PEB will not be considered by the Board to the extent they

were inconsistent with the VASRD in effect at the time of the adjudication.” The 2011

PDBR majority decision briefly summarized the background of plaintiff’s injury, stating in

relevant part:

The Cl developed debilitating headaches after the 2003 MVA [motor

vehicle accident]. . . . Posttraumatic headache is the most common

symptom following mild head injury, although posttraumatic migraine

headaches are less common. The evidence of record indicated that the Cl

had no migraine headaches prior to the MVA. If present, the clinical

features of posttraumatic migraine headaches are similar to those of

typical migraine. . . . Outpatient Neurology notes and the narrative

summary (NARSUM) at the onset of TDRL documented both ‘post-

concussive’ and ‘migraine’ descriptors for the headaches. The NARSUM

stated, “He continues to have weekly migraines requiring him to leave his

duty station, take medication and rest in a darkened room.”

The PDBR majority decision commented, referring to Mr. Adams’ October 24, 2005

informal PEB determination: “The PEB at the time of permanent separation

characterized the condition as ‘post-concussive migraine headaches’ coded 8045-9304

(‘brain disease due to trauma’ analogous to ‘dementia due to head trauma’).” In

reaching a determination on which diagnostic code to use to rate plaintiff’s migraine

condition, the 2011 PDBR majority decision stated:

Regarding the appropriate coding option, although 8045 [“Brain disease

due to trauma”] code is technically more accurate for the diagnosis, Board

members concluded that the 8100 [“Migraine”] rating criteria are more

applicable and fair for rating purposes. It was debated therefore whether a

divergence from the more clinically specific 8045 code was justified by

VASRD §4.7 (higher of two evaluations) and §4.3 (reasonable doubt).

Consensus was that the DoDI 60.40.44 mandate for arriving at a “fair and

equitable” recommendation justified resolution of this question in favor of

the Cl [claimant].

The 2011 PDBR majority decision coded “analogously to 8100 [Migraine],” however,

rating plaintiff under DC 8199-8100, “MISCELLANEOUS DISEASES” analogous to

“Migraine.”13 See 38 C.F.R. § 4.124a (2005) (capitalization in original). Using DC 8199-

13

The 2011 PDBR majority decision did not provide an explanation for why the PDBR

majority rated plaintiff under DC 8199-8100, as opposed to DC 8100, “Migraine.” It

appears, however, that rating plaintiff under DC 8100, “Migraine,” as opposed to DC

8199-8100, would not have resulted in a substantially different rating outcome.

According to the VASRD in effect in 2005: “When an unlisted disease, injury, or residual

15

8100, “MISCELLANEOUS DISEASES” analogous to “Migraine,” the PDBR majority

decision assigned plaintiff a disability rating of thirty percent for his “Post-Concussive

Migraine Headaches” “UNFITTING CONDITION.” (capitalization and emphasis in

original). The 2011 PDBR majority decision stated: “It was agreed that the episodes

documented above were equivocally characterized as prostrating since it was not

specified whether the headaches forced cessation of work activities, although

reasonable doubt allows the assumption that at least some of them were.” This resulted

in a final recommendation by the 2011 PDBR majority of a forty percent disability rating

for plaintiff, since the PDBR majority decision also continued plaintiff’s ten percent

disability rating for his “Cervical Disc Herniation” condition, pursuant to DC 5243,

“Intervertebral disc syndrome.” See 38 C.F.R. § 4.71a (2005).

The single minority member of the 2011 PDBR filed a dissenting decision, which

consisted of two grounds for rejecting the majority recommendation. First, the minority

decision contended that DC 8045, “Brain disease due to trauma,” was “technically

accurate for the diagnosis.” The minority decision explained that, “Board members

debated whether a divergence from the more clinically specific code [DC 8045, ‘Brain

disease due to trauma’] was justified by VASRD §4.7 (higher of two evaluations) and

§4.3 (reasonable doubt).” The minority decision concluded:

The evidence is clear that the Cl [claimant] did not have migraine

headaches prior to the MVA [motor vehicle accident] and that the

headaches started as a result of the head trauma resulting from it. It

readily follows that the coding and the rating of the headache condition by

the PEB at the end of the TDRL period was supported, and that the PEB’s

interpretation of the VASRD guidelines for post-concussive headaches in

effect at the time was correct. Unfortunately, the 8045 rating criteria in

2005 did not apply what we know about traumatic brain injuries today and

did not take into consideration the nature of the headaches or the severity

of the subjective symptoms that resulted from the head trauma. DoDI

condition is encountered, requiring rating by analogy, the diagnostic code number will

be ‘built-up’ as follows: The first 2 digits will be selected from that part of the schedule

most closely identifying the part, or system, of the body involved; the last 2 digits will be

“99” for all unlisted conditions.” 38 C.F.R. § 4.27 (2005). Under the 2005 VASRD,

diagnostic code 8199 refers to “MISCELLANEOUS DISEASES,” which is the category

of diseases listed under the 81XX series of diagnostic codes. See 38 C.F.R. § 4.124a

(2005) (capitalization in original). A rating of DC 8199-8100 appears to represent to a

rating of “MISCELLANEOUS DISEASES,” analogous to “Migraine.” See id.

(capitalization in original); see also Price v. Shinseki, No. 08-3390, 2010 WL 4987330,

at *6 (Vet. App. Dec. 3, 2010) (referring to “‘8199-8100’” as “an analogous condition

under the DC for migraines” (internal citation omitted; emphasis in original)).

Regardless, as discussed further below, the actual disability rating chosen still would be

based on the diagnostic code following the hyphen, or DC 8100 in this case. See 38

C.F.R. § 4.27 (2005).

16

6040.44, however, is unequivocal in its stipulation that the VASRD criteria

applied to Board recommendations are derived from the VASRD in effect

at separation.

The 2011 PDBR minority decision also rejected the majority recommendation because,

even if Mr. Adams were to be rated under DC 8100, “Migraine,” plaintiff’s condition

would not warrant a thirty percent disability rating. The 2011 PDBR minority decision

stated:

I furthermore believe that, even if the 8100 rating criteria were conceded, it

would be overly speculative to characterize the episodes documented at

separation as prostrating. It was documented that the Cl [claimant] was

fully employed as a security guard by the VA at the time of permanent

separation, and the record is devoid of evidence that the headaches

forced cessation of work activities during the rating period (8100 specifies

“last several months”). Board precedence, and the more typical VA

practice, has been to define ‘prostrating’ by documented occurrences of

the need to abandon work in order to treat the headache.

(emphasis in original). The 2011 PDBR minority decision, therefore, recommended that

plaintiff’s condition of “Post-Concussive Migraine Headaches” continue to be rated at

ten percent under DC 8045-9304, “Brain disease due to trauma,” analogous to

“Dementia due to head trauma.” The PDBR minority decision, as with the PDBR

majority decision, also chose to continue plaintiff’s ten percent disability rating for his

“Cervical Disc Herniation” condition, rated under DC 5243, “Intervertebral disc

syndrome.” See 38 C.F.R. § 4.71a (2005).

On July 26, 2011, the Deputy Director of the PDBR, after reviewing the PDBR

application, “Record of Proceedings,” and majority and minority decisions,

recommended that the Director for Army Review Boards, acting on behalf of the

Secretary of the Army, accept Mr. Adams’ 2011 PDBR majority recommendation.

Nonetheless, on August 23, 2011, the Deputy Assistant Secretary for Army Review

Boards, acting for the Secretary of the Army, chose to reject the PDBR majority

recommendation. The Deputy Assistant Secretary’s brief rationale, in support of

selecting the PDBR minority decision, stated in full:

I have reviewed the Board’s record of proceedings, majority

recommendation, and minority opinion (copy enclosed). I regret to inform

you that I reject the Board’s majority recommendation and accept the

Board’s minority opinion as accurate that your final Physical Evaluation

Board disability rating remains unchanged. There is insufficient

justification to support the Board’s recommendation in accordance with

Army and Department of Defense regulations.

17

The Deputy Assistant Secretary of the Army informed plaintiff that his recourse with the

Department of Defense was exhausted, but that he could “seek relief by filing suit in a

court of appropriate jurisdiction.”

Plaintiff subsequently filed a complaint in the United States Court of Federal

Claims, and alleges he “has been denied the disability retirement pay and benefits to

which he is entitled under 10 U.S.C. § 1201 as a result of the Army’s erroneous

application of the VASRD.” Plaintiff, in his complaint, seeks to vacate two separate

determinations by the Secretary of the Army. Plaintiff seeks:

(1) to vacate the 2005 “decision of the Army to assign Plaintiff a disability rating

of less than 30% for his unfitting disability of migraine headaches and a

combined disability rating of less than 40% for all of Plaintiff’s physical

injuries,” because the decision is “unsupported by substantial evidence,

arbitrary and capricious, and contrary to law;”

(2) to vacate the 2011 “decision by the Secretary of the Army to reject the PDBR

majority recommendation,” because the decision is “unsupported by

substantial evidence, arbitrary and capricious, and contrary to law.”

Both of plaintiff’s claims relate to the Secretary of the Army’s interpretation of two

VASRD diagnostic codes, DC 8100, “Migraine,” and DC 8045-9304, “Brain disease due

to trauma,” analogous to “Dementia due to head trauma.” Plaintiff makes multiple

arguments why the choice to rate plaintiff’s “Post-Concussive Migraine Headaches”

under DC 8045-9304, “Brain disease due to trauma,” analogous to “Dementia due to

head trauma,” instead of DC 8100, “Migraine,” was impermissible. Plaintiff argues that

the Secretary of the Army’s interpretation of the VASRD diagnostic codes is contrary to

both their plain meaning and the controlling interpretation given to them by the United

States Court of Appeals for Veterans Claims and the Board of Veterans Appeals.

Plaintiff also argues that the Secretary ignored VA regulations that required the

Secretary to resolve reasonable doubt in choosing between disability ratings in favor of

plaintiff. Furthermore, plaintiff argues that the Secretary ignored DoDI 6040.44, which

requires the PDBR to compare the VA’s and Army’s assigned disability ratings when

making its rating decision. In addition, plaintiff argues that the Secretary ignored DoDI

1332.39 and Army Regulation 635-40, both of which plaintiff alleges prohibit the

analogous rating of DC 8045, “Brain disease due to trauma,” with DC 9304, “Dementia

due to head trauma.” Plaintiff also alleges that the minority member’s determination that

plaintiff’s attacks were not “prostrating” was arbitrary, capricious, unsupported by

substantial evidence, and contrary to law. (emphasis in original).

Plaintiff seeks (1) “money benefits that are formulaic in nature in an amount to be

determined at trial;” (2) an “Order that Plaintiff’s military records be corrected to reflect

that he was assigned a 30% disability rating for his unfitting migraine headaches on

November 21, 2005, the date Plaintiff was removed from the TDRL and separated from

the Army;” (3) interest, costs, and attorneys’ fees; and (4) such other relief as the Court

18

deems just and proper. The parties filed and briefed cross-motions for judgment on the

administrative record.

DISCUSSION

Plaintiff’s case must be reviewed in the context of the Army’s disability evaluation

system in place at the times relevant to the events in plaintiff’s case, including May 3,

2004, the date of plaintiff’s MEB review, May 5, 2004 and October 24, 2005, the dates

of plaintiff’s two informal PEB reviews, his separation from the Army on November 21,

2005, and August 23, 2011, the date when plaintiff’s PDBR application was denied by

the Secretary of the Army. During the years at issue, Chapter 61 of Title 10 of the U.S.

Code established the standards and processes by which the Army determined whether

a service member should be retired or separated from service due to a medical

disability. See 10 U.S.C. §§ 1201 et seq. Under the Army’s disability evaluation system

in effect May 3, 2004, the date of plaintiff’s MEB review, service members whose

condition fell below the Army’s medical retention standards were first referred to a MEB,

pursuant to Army Regulation 40-501, Ch. 7-4 (Apr. 12, 2004 Rev). Army Regulation 40-

501, Chapter 3-30(g) listed “Migraine, tension, or cluster headaches, when manifested

by frequent incapacitating attacks” as one of the conditions that triggered a referral to a

MEB. Under Army regulations, the MEB collected and generated a complete record of

the service member’s medical condition. See Army Reg. 40-501, Ch. 3-4; see also DoDI

1332.28, Enclosure 3, Attachment 2 (Nov. 14, 1996 Rev.) (discussing the requirements

for the MEB evaluation and narrative summary). Under the regulations in effect May 3,

2004, the results of the MEB evaluation of plaintiff were then sent to a PEB, which made

“the determination of fitness or unfitness” to serve in the Army. Army Reg. 40-501, Ch.

3-4; see also Army Reg. 40-501, Ch. 3-3 (“Soldiers with conditions listed in [Army

Regulation 40-501, Chapter 3] who do not meet the required medical standards will be

evaluated by an MEB as defined in AR [Army Regulation] 40-400 and will be referred to

a PEB as defined in AR [Army Regulation] 635-40 . . . ,” listing certain exceptions not

applicable to plaintiff’s case).

An informal PEB reviewed plaintiff’s condition on May 5, 2004, before placing

plaintiff on the TDRL, and again on October 24, 2005, before final separation. At the

time of both the 2004 and 2005 informal PEB reviews, the informal PEB was structured

in accordance with Army Regulation 635-40 (Aug. 15, 1990 Rev.),14 titled “Physical

Evaluation for Retention, Retirement, or Separation.” (emphasis in original).15 An

14

Army Regulation 635-40 was updated on March 8, 2006, and again on March 20,

2012. The court, however, references the 1990 revision, which was in effect at the time

of plaintiff’s 2004 and 2005 informal PEB determinations. See Personnel Separations,

Physical Evaluation for Retention, Retirement, or Separation, U.S. Army,

http://www.apd.army.mil/jw2/xmldemo/r635_40/cover.asp (last visited August 20, 2014).

15

DoDI 1332.39, “Application of the Veterans Administration Schedule for Rating

Disabilities,” (Nov. 14, 1996 Rev.) covered similar topics as Army Regulation 635-40,

19

informal PEB was designed to be a “fact-finding board,” responsible for, among other

duties, “[i]nvestigating the nature, cause, degree of severity, and probable permanency

of the disability of soldiers whose cases are referred to the board,” “[p]roviding a full and

fair hearing for the soldier,” and “[m]aking findings and recommendations required by

law to establish the eligibility of a soldier to be separated or retired because of physical

disability.” Army Reg. 635-40, Ch. 4-17(a).

At the time of plaintiff’s informal PEB reviews in 2004 and 2005, service

members had to appear first before an informal PEB to be reviewed, before choosing

whether to undergo a formal PEB. See Army Reg. 635-40, Ch. 4-20(a). An informal

PEB, like a formal PEB consisted of “at least three members (president, personnel

management officer, and a medical member). PEB members will be experienced

officers who are thoroughly familiar with board procedures.” Army Reg. 635-40, Ch. 4-

17(b). According to the regulations in place at the time of plaintiff’s 2004 and 2005

informal PEB reviews:

The president and personnel management officers [of the PEB] will be

field grade officers (other than Medical Corps) on active duty in the U.S.

Army (other than active duty for training). The medical member will be

either an officer of the U.S. Army Medical Corps or a Department of the

Army civilian (DAC) physician with previous U.S. Army Medical Corps

experience. The medical member must not have served in any capacity

with the [MEB] that referred the soldier to the PEB.

Id. Despite their status as “informal,” informal PEBs, nonetheless, were detailed,

evaluative processes. According to the Army Regulation:

Informal procedures reduce the overall time required to process a case

through the disability evaluation system. An informal board must ensure

that each case considered is complete and correct. The rapid processing

intended by the use of informal boards must not override the fundamental

requirement for detailed and uniform evaluation of each case. All evidence

in the case file must be closely examined and additional evidence

obtained if required.

including guidance as to how military review boards were to use and interpret the

VASRD. See DoDI 1332.39 § 1; Army Reg. 635-40, App. B-1. Since it is the Secretary

of the Army’s decision at issue in plaintiff’s case, the court refers to the more

comprehensive Army Regulation. Defendant, in addition, noted that “we do not perceive

any inconsistency between the relevant Army regulations and the relevant Department

of Defense Instructions on any issue material to the outcome of this case.” Plaintiff

agreed, stating: “Plaintiff has reviewed the relevant DoDI [1332.39] and corresponding

Army regulations [635-40] and determined that . . . the relevant provisions are largely

similar and do not require this Court to ignore relevant Army regulations in favor of

contrary DoDI.”

20

Army Reg. 635-40, Ch. 4-20(a). After receiving the findings of the informal PEB, service

members had to request a formal PEB hearing in order to be afforded one. See Army

Reg. 635-40, Ch. 4-21(a) (“A soldier is entitled to a formal hearing if requested after

informal consideration by a PEB.”). The service member, however, could waive the right

to appeal before a formal PEB by “concurring in the findings and recommendations of

the informal board.” Id.

Both informal and formal PEBs reached their determinations pursuant to Army

Regulation 635-40, Chapter 4-19(a)–(q). The PEBs had the authority to determine by

majority vote:

(1) Whether the soldier is physically fit or unfit to perform the duties of

the soldier’s office, grade, rank, or rating.

(2) Whether the disability is of a permanent nature.

(3) Whether the disability meets the criteria established by law for

compensation.

Army Reg. 635-40, Ch. 4-19(a). In addition to determining fitness to serve, the PEB

determined the “severity” of the disability, and from that, “the eligibility of a soldier to be

separated or retired because of physical disability.” Army Reg. 635-40, Ch. 4-17(a); see

also Army Reg. 635-40, App. C-7(a) (“If the soldier is found unfit, the PEB will . . . (2)

Assign a percentage rating to the disability if the soldier otherwise qualifies.”). In 2005,

the year plaintiff separated from the Army, a service member given a disability rating of

thirty percent or more, and who otherwise met the other requirements of 10 U.S.C.

§ 1201, was eligible for medical “retirement.” Retirement from the Army in 2005 allowed

the service member to receive ongoing retirement payments, among other benefits. See

10 U.S.C. §§ 1201, 1401.16 In contrast, a service member who was given a disability

rating of “less than 30 percent” was only eligible for medical “separation.” See 10 U.S.C.

§ 1203. A service member medically “separated” from the Army received a lump sum

severance payment at separation. See 10 U.S.C. § 1212.

Alternatively, at the time of plaintiff’s 2004 and 2005 informal PEB reviews, if the

informal or formal PEB determined that a service member’s “disability is not determined

to be of a permanent nature and stable” at the time of the PEB, the PEB could place

that service member on the Temporary Disability Retired List, or TDRL. See 10 U.S.C.

§ 1202; Army Reg. 635-40, Chs. 3-9(b), 4-19(h). A service member placed on the TDRL

16

“Those with disabilities rated at 30 percent or higher are medically retired, entitling

them and their families to health care for life through the military’s TRICARE health care

program, a military pension, and access to commissary and post exchange benefits.”

Hearing to Receive Testimony on the Department of Defense and Veterans Affairs

Disability Rating Systems and the Transition of Servicemembers from the Department

of Defense to the Department of Veterans Affairs, 110th Cong. 2 (Apr. 12, 2007)

(Opening Statement of Senator Carl Levin, Chairman, Committee on Armed Services).

21

would be reevaluated in eighteen months, see 10 U.S.C. § 1210(a); Army Reg. 635-40,

Ch. 4-19(h), but treated as medically “retired” for the interim period. See 10 U.S.C.

§ 1202. Plaintiff was placed on the TDRL after his 2004 informal PEB, and was

medically separated from the Army after his 2005 informal PEB.

At the time of plaintiff’s 2004 and 2005 informal PEB reviews, the Army

determined disability ratings based on the “standard schedule of rating disabilities in use

by the Department of Veterans Affairs at the time of the determination.” See 10 U.S.C.

§ 1201(b)(3)(B). The VA Schedule of Rating Disabilities, or VASRD, is articulated in 38

C.F.R. Part 4. See generally 38 C.F.R. Pt. 4 (2005). Army regulations further required

that, “[i]f the soldier is entitled to disability benefits, the PEB decides the rating for each

compensable disability from the VASRD, as modified by appendix B.” Army Reg. 635-

40, Ch. 4-19(f)(5). The VASRD contains a comprehensive listing of four-digit diagnostic

codes and an associated menu of disability ratings. See, e.g., DC 8100, “Migraine,” 38

C.F.R. § 4.124a (2005). At the time of plaintiff’s 2004 and 2005 informal PEB reviews, a

PEB, whether formal or informal, would first choose the proper four-digit diagnostic code

to apply to the service member’s condition. Then, based on the diagnostic code

accompanying the rating scheme, the PEB would select a particular disability rating to

best reflect the severity of the service member’s condition. See, e.g., 38 C.F.R.

§ 4.124a (2005); see also Army Reg. 635-40, Ch. 4-19(i) (“Percentage ratings reflect

the severity of the soldier’s medical condition at time of rating.”); Army Reg. 635-40,

App. B-14.

The VASRD at 38 C.F.R. § 4.124a (2005), at the time of plaintiff’s 2004 and 2005

informal PEB reviews, contained two of the diagnostic codes at issue in the above

captioned case, DC 8100, “Migraine,” and DC 8045, “Brain disease due to trauma.”

These two diagnostic codes were promulgated into the regulations in 1964, and

remained unchanged in any relevant manner by the time of defendant’s November 21,

2005 separation from the Army. See 29 Fed. Reg. 6718, 6750–51 (May 22, 1964); 41

Fed. Reg. 1129, 11301–02 (Mar. 18, 1976). The VASRD at 38 C.F.R. § 4.130 (2005)

contained the other diagnostic code at issue, DC 9304, “Dementia due to head trauma.”

This diagnostic code was promulgated in 1988 and also was not significantly changed

by the time of plaintiff’s 2005 separation from the Army. See 53 Fed. Reg. 21, 23 (Jan.

4, 1988). Under DC 8100, “Migraine,” the following disability rating options were

available at the time of plaintiff’s 2004 and 2005 informal PEB reviews:

8100 Migraine:

With very frequent completely prostrating and prolonged attacks

productive of severe economic inadaptability ................ 50% [rating]

With characteristic prostrating attacks occurring on an average once a

month over last several months ..................................... 30% [rating]

With characteristic prostrating attacks averaging one in 2 months over last

several months .............................................................. 10% [rating]

With less frequent attacks ......................................................... 0% [rating]

22

38 C.F.R. § 4.124a (2005). DC 8045, “Brain disease due to trauma,” did not directly

assign ratings, but was used in conjunction with another diagnostic code to result in a

combined rating for a particular disease or injury. The following language, in its entirety,

was found in DC 8045 at the time of plaintiff’s 2004 and 2005 PEB reviews:

8045 Brain disease due to trauma:

Purely neurological disabilities, such as hemiplegia, epileptiform seizures,

facial nerve paralysis, etc., following trauma to the brain, will be

rated under the diagnostic codes specifically dealing with such

disabilities, with citation of a hyphenated diagnostic code (e.g.,

8045-8207).

Purely subjective complaints such as headache, dizziness, insomnia, etc.,

recognized as symptomatic of brain trauma, will be rated 10

percent and no more under diagnostic code 9304. This 10 percent

rating will not be combined with any other rating for a disability due

to brain trauma. Ratings in excess of 10 percent for brain disease

due to trauma under diagnostic code 9304 are not assignable in the

absence of a diagnosis of multi-infarct dementia associated with

brain trauma.

38 C.F.R. § 4.124a (2005). DC 9304, referred to within the text of DC 8045, was defined

in the VASRD as “Dementia[17] due to brain trauma.” See 38 C.F.R. § 4.130 (2005). In

the 2005 regulation, all mental disorders (VASRD DCs 9201 to 9521), except eating

disorders (DCs 9520, 9521) were assigned disability ratings under a common rating

scale. See id. (the “General Rating Formula for Mental Disorders”). A disability rating of

ten percent could be awarded under DC 9304, “Dementia due to head trauma,” a

mental disorder, for “[o]ccupational and social impairment due to mild or transient

symptoms which decrease work efficiency and ability to perform occupational tasks only

during periods of significant stress, or; symptoms controlled by continuous medication.”

Id.

Under the VASRD, at the time of plaintiff’s 2004 and 2005 informal PEB reviews,

a service member was only allowed to be rated under one VASRD diagnostic code for a

single disability or condition. See, e.g., 38 C.F.R. § 4.124a (2005) (stating that a ten

percent rating under DC 8045-9304, “Brain disease due to trauma,” analogous to

17

Unlike other sections of the VASRD, the diagnostic codes in 38 C.F.R. § 4.130,

including DC 9304, “Dementia due to head trauma,” cited an outside source to explain

their meanings. See 38 C.F.R. § 4.130 (2005) (“The nomenclature employed in this

portion of the rating schedule [VASRD DCs 9201 to 9521] is based upon the Diagnostic

and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric

Association (DSM–IV),” published in 1994.).

23

“Dementia due to head trauma,” “will not be combined with any other rating for a

disability due to brain trauma”); see Cullen v. Shinseki, 24 Vet. App. 74, 83–84 (2010)

(stating that “a claimant is not entitled to more than one disability rating for a single

disability,” and explaining that while a single disability can be made up of multiple

symptoms, ratings based on individual symptoms instead of the whole disability picture

can result in duplicative and inappropriately cumulative disability ratings (emphasis in

original)). Subpart A of the VASRD, 38 C.F.R. §§ 4.1–4.31 (2005), also contained

guidance on how a review board should interpret the VASRD. The 2011 PDBR majority

decision in plaintiff’s case referenced 38 C.F.R. § 4.3, titled “Resolution of reasonable

doubt,” and 38 C.F.R. § 4.7, titled “Higher of two evaluations,” in its analysis.

(emphasis in original). The PDBR majority decision discussed “whether a divergence

from the more clinically specific 8045 code was justified by VASRD §4.7 (higher of two

evaluations) and §4.3 (reasonable doubt).” The regulation at 38 C.F.R § 4.3 stated:

It is the defined and consistently applied policy of the Department of

Veterans Affairs to administer the law under a broad interpretation,

consistent, however, with the facts shown in every case. When after

careful consideration of all procurable and assembled data, a reasonable

doubt arises regarding the degree of disability such doubt will be resolved

in favor of the claimant. See [38 C.F.R.] § 3.102 of this chapter.

38 C.F.R. § 4.3 (2005).18

18

The language of 38. C.F.R. § 4.3 (2005) is similar to other statutory and regulatory

language not part of the VASRD, but which also directs the VA to give the benefit of the

doubt in rating decisions to the veteran. See 38 U.S.C. § 5107 (2012) (“(b) Benefit of

the doubt.— The Secretary shall consider all information and lay and medical evidence

of record in a case before the Secretary with respect to benefits under laws

administered by the Secretary. When there is an approximate balance of positive and

negative evidence regarding any issue material to the determination of a matter, the

Secretary shall give the benefit of the doubt to the claimant.” (emphasis in original)); 38

C.F.R. § 3.102 (2014) (“When, after careful consideration of all procurable and

assembled data, a reasonable doubt arises regarding service origin, the degree of

disability, or any other point, such doubt will be resolved in favor of the claimant. By

reasonable doubt is meant one which exists because of an approximate balance of

positive and negative evidence which does not satisfactorily prove or disprove the claim.

It is a substantial doubt and one within the range of probability as distinguished from

pure speculation or remote possibility. It is not a means of reconciling actual conflict or a

contradiction in the evidence.”). Moreover, the United States Court of Appeals for the

Federal Circuit has stated that “by statute and regulation,” the veteran is given the

“benefit of the doubt” “regarding any issue material” to the veteran's claim “‘when there

is an approximate balance of positive and negative evidence.’” See Fagan v. Shinseki,

573 F.3d 1282, 1287 (Fed. Cir. 2009) (quoting 38 U.S.C. § 5107(b)); see also Gilbert v.

Derwinski, 1 Vet. App. 49, 53–55 (1990) (“Therefore, a veteran need only demonstrate

24

Moreover, 38 C.F.R. § 4.7, titled “Higher of two evaluations,” (emphasis in

original) required all disability review boards to consider:

Where there is a question as to which of two evaluations shall be applied,

the higher evaluation will be assigned if the disability picture more nearly

approximates the criteria required for that rating. Otherwise, the lower

rating will be assigned.

38 C.F.R. § 4.7 (2005). In other words, 38 C.F.R § 4.7, “Higher of two evaluations,”

asked the reviewer to make a fact-driven decision, looking at the service members

individual “disability picture.” Id. (emphasis in original). The reviewer was supposed to

choose the higher rating option “if the disability picture more nearly approximates the

criteria required for that rating.” Id. Application of 38 C.F.R. §§ 4.3 and 4.7 had to be

specific to the facts in the record before the reviewing body.

At the time of Mr. Adams’ 2004 and 2005 PEB reviews, and up until January 28,

2008, the date of enactment of the Wounded Warrior Act, the Army instructed PEBs to

utilize the actual VASRD schedules of diagnostic codes, but not the guidance on how to

use the schedule provided by the VA in Subpart A of the VASRD. According to the Army

Regulation: “The first 31 paragraphs of the VASRD [38 C.F.R. § 4 Subpart A], which

provide general policies, do not apply [to PEB reviews] and have been replaced by

section I and II of appendix B of this regulation [Army Regulation 635-40].” Army Reg.

635-40, Ch. 4-19(i). The Army created its own supplement to the VASRD, in the form of

Appendix B of Army Regulation 635-40, “Army Application of the Department of

Veterans Affairs Schedule for Rating Disabilities.” The Army appendix included

guidance on how to choose between multiple disability ratings. See Army Reg. 635-40,

App. B-4, B-8. The appendix also included guidance on how to rate disabilities not

covered by the VASRD, see Army Reg. 635-40, App. B-9, as well as guidance on how

to combine ratings for multiple separate disabilities.19 Section III of Army Regulation

that there is an ‘approximate balance of positive and negative evidence’ in order to

prevail.” (citation omitted)).

19

Pursuant to the Army Regulation, “[w]hen a soldier has more than one compensable

disability, the percentages are combined rather than added (except when a ‘Note’ in the

VASRD indicates otherwise).” Army Reg. 635-40, App. B-12. “Thus, a person having a

60 percent disability is considered to have a remaining efficiency of 40 percent. if [sic]

he has a second disability rated at 20 percent, then he is considered to have lost 20

percent of that remaining 40 percent, thus reducing his remaining efficiency to 32

percent.” Id. In essence, this utilizes an inverse multiplication calculation, in which the

final disability rating = 1 - %Healthyfinal, where %Healthyfinal = (1 - %Disability1)*(1 -

%Disability2) . . . (1-%Disabilityn). The Army approach was similar to the VA approach.

See 38 C.F.R. § 4.25 (2005).

25

635-40, Appendix B also contained the Army’s explanations of various VASRD codes.

See generally Army Reg. 635-40, App. B.

Furthermore, at the time of plaintiff’s 2004 and 2005 informal PEB reviews, Army

Regulation 635-40, Appendix B included guidance on how to rate medical conditions not

diagnosable using a single VASRD diagnostic code. Injuries and diseases were to be

considered first in assigning diagnostic codes. See Army Reg. 635-40, App. B-14; see

also 38 C.F.R. § 4.27 (2005) (containing similar guidance). At that time, as well as

today, many diagnostic codes in the VASRD characterizing diseases or injuries did not

have complementary disability ratings,20 or, the ratings provided at times may have

inadequately described the severity of the service member’s actual medical condition. In

those cases, the Army Regulation instructed: “If the rating is determined on the basis of

residual conditions, the code appropriate to the residual condition will be added,

preceded by a hyphen.” Army Reg. 635-40, App. B-14. Army Regulation 635-40,

Appendix B stated that hyphenated codes “are used in the following circumstances:”

a. When the VASRD provides that a listed condition is to be rated as

some other code, for example, myocardial infraction rated as

arteriosclerotic heart disease (7006-7005) or nephrolithiasis rated as

hydronephrosis (7508-7509).

b. When the VASRD provides a minimum rating and the unfitting

disability is being rated on residuals, for example, multiple sclerosis rated

with very diffuse residuals, rated by analogy (8018-8105).

c. When an unlisted condition is rated by analogy, for example,

spondylolisthesis rated as lumbrosacral strain (5299-5295). When an

unlisted disease, injury, or residual condition is encountered, requiring

rating by analogy, the diagnostic code number will be “built-up” as follows.

The first two digits will be selected from the part of the schedule most

closely identifying the part, or system, of the body involved. The last two

digits will be “99” for all unlisted conditions. This procedure will facilitate a

close check of new and unlisted conditions rated by analogy.

Id. The Army Regulation Appendix B and VASRD also provided similar, but not

identical, guidance on when hyphenated, analogous ratings were not to be used.

According to Army Regulation 635-40, Appendix B:

20

For example, relevant to the above captioned case, DC 8045 “Brain disease due to

trauma,” diagnoses the disease, but has no complementary disability rating, and,

therefore, has to be paired with another diagnostic code that accurately describes the

residual medical conditions the service member experience as a result of the disease.

See 38 C.F.R. § 124a (2005).

26

B–8. Analogous ratings

When an unlisted condition is encountered, it is rated under a closely

related disease or injury in which not only the functional, but the

anatomical localization and symptomatology are closely analogous.

Conjectural analogies, as well as the use of analogous ratings for

conditions of doubtful diagnosis, or those not fully supported by clinical

and laboratory findings, are to be avoided. The ratings for organic

diseases and injuries are not to be assigned by analogy to conditions of

psychological origin (VASRD Codes 9000-9511).[21]

Army Reg. 635-40, App. B-8. (emphasis in original). The 2005 informal PEB decision,

and 2011 PDBR minority decision, rated plaintiff’s migraines under DC 8045-9304,

“Brain disease due to trauma,” analogous to “Dementia due to head trauma.” See 38

C.F.R. §§ 124a, 4.130 (2005). The 2011 PDBR majority referred to DC 8045-9304 as

“‘brain disease due to trauma’ analogous to ‘dementia due to head trauma.’” The 2011

PDBR majority rated plaintiff under DC 8199-8100, “MISCELLANEOUS DISEASES”

analogous to “Migraine.” See 38 C.F.R. § 4.124a (2005) (capitalization in original).

21

Plaintiff claims that the last sentence of Army Regulation 635-40, Appendix B-8,

“implies that the Army regulations recognize a sharp distinction between organic

diseases and psychological conditions. DC 8045-9304, [‘Brain disease due to trauma,’

analogous to ‘Dementia due to head trauma’] according to this logic, seems to be a

contradictory coding.” DC 8045-9304, “Brain disease due to trauma,” analogous to

“Dementia due to head trauma,” was the rating assigned by plaintiff’s 2005 informal

PEB and 2011 PDBR minority decision to Mr. Adams’ migraine headache condition. All

the diseases listed under DC 8000 to 8099 in the 2005 VASRD, including DC 8045,

“Brain disease due to trauma,” were under the title “ORGANIC DISEASES OF THE

CENTRAL NERVOUS SYSTEM.” See 38 C.F.R. § 4.124a (2005) (capitalization in

original). The Army Regulation indicated that VASRD diagnostic codes 9000–9511,

including DC 9304, “Dementia due to head trauma,” are “conditions of psychological

origin.” See Army Reg. 635-40, App. B-8. At the time of plaintiff’s 2004 and 2005

informal PEB reviews, the note under DC 8045 stated, however: “Purely subjective

complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of

brain trauma, will be rated 10 percent and no more under diagnostic code 9304,” and

appears to have allowed a joint rating of DC 8045-9304, “Brain disease due to trauma,”

analogous to “Dementia due to head trauma.” Furthermore, the instruction under Army

Regulation 635-40, Appendix B-8 did not limit the language contained in the actual

VASRD schedules. See Army Reg. 635-40, Ch. 4-19(i). The court also notes that the

VASRD contained different guidance: “Nor will ratings assigned to organic diseases and

injuries be assigned by analogy to conditions of functional origin.” 38 C.F.R. § 4.20

(2005).” The VA’s regulation would not appear to have rendered a rating of DC 8045-

9304 improper, as DC 9304, “Dementia due to head trauma,” could be read as a

disease of psychological or cognitive origin, not functional origin. See 38 C.F.R. §§ 4.20,

4.130 (2005); Army Reg. 635-40, App. B-8.

27

On January 28, 2008, Congress passed the National Defense Authorization Act

for Fiscal Year 2008, Pub. L. No. 110-181, 122 Stat 3. Title 16 of the National Defense

Authorization Act for Fiscal Year 2008, encompassing sections 1601 to 1676, as noted

above, is known as the “Wounded Warrior Act.” See Nat’l Def. Authorization Act for

Fiscal Year 2008, tit. XVI, § 1601. The Wounded Warrior Act, in section 1642 (codified

at 10 U.S.C. § 1216a), limited the ability of the Department of Defense to diverge from

the rating system and approach established in the VASRD. According to the Wounded

Warrior Act section 1642:

SEC. 1642. REQUIREMENTS AND LIMITATIONS ON DEPARTMENT

OF DEFENSE DETERMINATIONS OF DISABILITY WITH RESPECT TO

MEMBERS OF THE ARMED FORCES.

(a) IN GENERAL.—Chapter 61 of title 10, United States Code, is

amended by inserting after section 1216 the following new section:

‘‘§ 1216a. Determinations of disability: requirements and limitations

on determinations

‘‘(a) UTILIZATION OF VA SCHEDULE FOR RATING

DISABILITIES IN DETERMINATIONS OF DISABILITY.—(1) In making a

determination of disability of a member of the armed forces for purposes

of this chapter, the Secretary concerned—

“(A) shall, to the extent feasible, utilize the schedule for

rating disabilities in use by the Department of Veterans Affairs,[22]

including any applicable interpretation of the schedule by the United

States Court of Appeals for Veterans Claims; and

“(B) except as provided in paragraph (2), may not deviate

from the schedule or any such interpretation of the schedule.

“(2) In making a determination described in paragraph (1), the

Secretary concerned may utilize in lieu of the schedule described in that

paragraph such criteria as the Secretary of Defense and the Secretary of

Veterans Affairs may jointly prescribe for purposes of this subsection if the

utilization of such criteria will result in a determination of a greater

percentage of disability than would be otherwise determined through the

utilization of the schedule.

‘‘(b) CONSIDERATION OF ALL MEDICAL CONDITIONS.—In

making a determination of the rating of disability of a member of the armed

22

The court notes that all of 38 C.F.R. Part 4 (2005) falls under the title “SCHEDULE

FOR RATING DISABILITIES.” (capitalization and emphasis in original). This includes

not just the list of diagnostic codes, but also the thirty one sections under Subpart A,

“General Policy in Rating.” (emphasis in original). These sections provide guidance as

to how the VASRD is to be used. As mentioned above, the Army previously did not

utilize 38 C.F.R. Part 4, Subpart A, and instructed its reviewers to use Army Regulation

635-40, Appendix B. See Army Reg. 635-40, App. B-2.

28

forces for purposes of this chapter, the Secretary concerned shall take into

account all medical conditions, whether individually or collectively, that

render the member unfit to perform the duties of the member’s office,

grade, rank, or rating.’’.

(b) CLERICAL AMENDMENT.—The table of sections at the

beginning of chapter 61 of such title is amended by inserting after the item

relating to section 1216 the following new item:

“1216a. Determinations of disability: requirements and limitations on

determinations.’’.

Wounded Warrior Act § 1642 (all capitalization, emphasis, and quotations in original).

The Wounded Warrior Act, in the next section, section 1643 (codified at 10

U.S.C. § 1554a), established the PDBR. The PDBR is tasked with reviewing the

disability ratings of service members who were separated from the armed forces

between September 11, 2001 and December 31, 2009, if their separation was due to a

medical condition, they received a disability rating of twenty percent or less, and were

not otherwise eligible for retirement. See Wounded Warrior Act § 1643. Like the PEB,

the PDBR is composed of three members. See id. Upon the request of a covered

individual, meeting the requirements of Wounded Warrior Act § 1643, the PDBR is

supposed to review the findings and decisions of the service member’s prior PEB,

“based on the records of the armed force concerned and such other evidence as may

be presented[,]” including witnesses. See id. The PDBR is authorized to recommend to

the secretary of the appropriate service branch:

(1) No recharacterization of the separation of such individual or

modification of the disability rating previously assigned such individual.

(2) The recharacterization of the separation of such individual to

retirement for disability.

(3) The modification of the disability rating previously assigned such

individual by the Physical Evaluation Board concerned, which modified

disability rating may not be a reduction of the disability rating previously

assigned such individual by that Physical Evaluation Board.

(4) The issuance of a new disability rating for such individual.

Id. According to Wounded Warrior Act § 1643, the Secretary of the Army “may correct

the military records of a covered individual in accordance with a recommendation made

by the [Physical Disability Board of Review].” Id. Changes can relate back to the

effective date of the action taken by a prior PEB. See id. The Wounded Warrior Act also

states: “The Secretary of Defense shall establish the board of review required by

section 1554a of title 10, United States Code (as added by subsection (a)), and

prescribe the regulations required by such section . . . .” Wounded Warrior Act §

1643(b).

29

When implementing the National Defense Authorization Act for Fiscal Year 2008,

and its title XVI, the Wounded Warrior Act, the military issued DoDI 6040.44, “Lead DoD

Component for the Physical Disability Board of Review (PDBR),” on June 27, 2008, and

then amended the instruction on June 2, 2009.23 The instruction, DoDI 6040.44,

emphasizes the DoD policy regarding the PDBR: “The purpose of the PDBR shall be to

reassess the accuracy and fairness of the combined disability ratings assigned Service

members who were discharged . . . with a combined disability rating of 20 percent or

less and were not found to be eligible for retirement.” See DoDI 6040.44 § 4(a). The

instruction reiterated the broad scope of allowable evidence that could be considered by

a PDBR, permitting not only all of the evidence considered by the PEB, but also ratings

issued by the VA and any newly discovered evidence. See DoDI 6040.44, Enclosure 3

§ 5(a). According to DoDI 6040.44, the PDBR also is to compare the applicant’s VA

ratings with the ratings given by the military at the time of separation:

Once obtained, the PDBR should compare any DVA disability rating for

the specifically military unfitting condition(s) with the PEB combined

disability rating and consider any variance in its deliberations and any

impact on the final PEB combined disability rating, particularly if the DVA

rating was awarded within 12 months of the Service member’s separation.

DoDI 6040.44, Enclosure 3 § 5(a)(4).24 According to DoDI 6040.44, the PDBR is

instructed to “establish a recommendation based on a vote of a simple majority of the

23

The court references the amended instruction.

24

Plaintiff maintains that “nowhere in the analysis of the PDBR minority member or the

Deputy Assistant Secretary is there an indication that they ‘compare[d]’ the VA rating

with the PEB rating or that they ‘consider[ed]’ the variance, as the DODI requires.”

(modifications in original). Defendant responds that “the record is clear that the PDBR

was well-aware of the VA’s actions,” and appropriately considered plaintiff’s VA ratings

in their determination. The 2011 PDBR majority decision indicates that there was

discussion by the members of the 2011 PDBR at the outset of its review about how to

consider the VA record, and the 2011 PDBR majority decision included a comparison

table. The 2011 PDBR majority decided to give weight to other of plaintiff’s medical

examinations that were closer in time to plaintiff’s November 21, 2005 separation,

noting that as the VA rating evaluations were more than twelve months apart from the

date of plaintiff’s permanent separation, thus, pursuant to DoDI 6040.44, they were not

to be accorded special consideration. The 2011 PDBR majority decision concluded:

This does not mean that the VA clinical evidence at the time of temporary

retirement and VA evaluations after permanent separation were

disregarded; but, in matters germane to the severity of the Cl’s conditions

and disability at the time of his permanent separation, the information in

the service record proximal to that date (20051024) was assigned

proportionately more probative value.

30

board members.” DoDI 6040.44, Enclosure 3 § 5(f). The Secretary of the Army must

“accept or reject recommendations of the PDBR,” although there was no mention in

DoDI 6040.44 whether or not the Secretary of the Army must explain his or her

decision. See DoDI 6040.44, Enclosure 3 § 5(h)(3).

DoDI 6040.44 also discusses how the PDBR should use the VASRD, given

Congress’ new instructions in section 1642 of the Wounded Warrior Act. According to

the instruction, the PDBR is to conduct reviews “in accordance with the VASRD in effect

at the time of separation.” DoDI 6040.44, Enclosure 3 § 5(e). DoDI 6040.44, Enclosure

3 § 4(d) also instructs the PDBR to “[u]se the VASRD in arriving at its

recommendations, along with all applicable statutes, and any directives in effect at the

time of the contested separation (to the extent they do not conflict with the VASRD in

effect at the time of the contested separation).” Additionally, the instruction at Enclosure

3 § 5(e)(1) states:

If the case was adjudicated by the final Military Department PEB and the

covered individual was separated from military service prior to January 28,

2008, the PDBR shall also review the disability rating(s) of the covered

individual, in accordance with the VASRD in effect at the time of

separation for the covered individual. Provisions of DoD or Military

Department regulations or guidelines relied upon by the PEB will not be

considered by the PDBR to the extent they were inconsistent with the

VASRD in effect at the time of the adjudication. If the covered individual

was separated from military service on or after January 28, 2008, the

PDBR shall use the VASRD without application of Reference (m),[25] along

with any applicable interpretation of the VASRD by the United States

Court of Appeals for Veterans Claims.

DoDI 6040.44, Enclosure 3 § 5(e)(1).

Recently, a Judge of this court issued Hatmaker v. United States, No. 13-719C, 2014

WL 3767049, at *8 (Fed. Cl. July 31, 2014), and found that the PDBR gave sufficient

consideration of the plaintiff’s VA ratings because the PDBR “compared the PEB and

DVA disability ratings in a side-by-side table,” “described the various medical

examination reports created during the DVA-arranged visits between January and

February 2008,” and discussed inconsistencies. See id.

25

Reference (m) refers to “DoD Instruction 1332.39, ‘Application of the Veterans

Administration Schedule for Rating Disabilities, November 14, 1996.’” DoDI 6040.44,

Enclosure 1. As mentioned above, DoDI 1332.39 covers the use of the VASRD by

military review boards, and contains similar content to that in Army Regulation 635-40.

31

The PDBR may review an updated, broader record than was available to a PEB,

including “all the information necessary for competent review and recommendation,”

and can consider VA determinations made after plaintiff’s separation from the military

and witness testimony. See DoDI 6040.44, Enclosure 3 § 5(a), (d); see also Wounded

Warrior Act § 1643 (The PDBR review shall be “based on the records of the armed

force concerned and such other evidence as may be presented to the Physical

Disability Board of Review. A witness may present evidence to the Board by affidavit or

by any other means considered acceptable by the Secretary of Defense.”). In Pearl v.

United States, a Judge of the United States Court of Federal Claims noted that the

PDBR made its decision based on an even larger administrative record than was

available to the PEB — such as the records from the MEB, PEB, VA, and the U.S. Army

Physical Disability Agency. See Pearl v. United States, 111 Fed. Cl. 301, 307 (2013)

(“The Board of Review uses the complete case record as well as any new evidence the

parties present to review the soldier's disability rating.”).

Applicants to a PDBR review not only can make the same arguments brought

forward to a service member’s prior PEB, but may make additional arguments as well.

According to DoDI 6040.44, upon request, the PDBR can review conditions “identified

but not determined to be unfitting”26 by a service member’s prior PEB. See DoDI

6040.44 § 4(a), Enclosure 3 § 5(e)(2)(b). The PDBR also is not limited to the arguments

made by the service member in his or her PDBR application. For example, the form

plaintiff filled out in his application to the PDBR stated under “Burden of Proof:”

“Member need not allege anything, review accomplished upon request.” See DD Form

294, OMB No. 0704-0453 (Jan. 2009); see also Silbaugh v. United States, 107 Fed. Cl.

143, 150 (2012). Furthermore, the Wounded Warrior Act enables the Secretary of

Defense not only to modify a service member’s previously granted disability rating, but

also to “issu[e] a new disability rating” upon a recommendation by the PDBR. See

Wounded Warrior Act § 1643.

In Silbaugh v. United States, a Judge of the United States Court of Federal

Claims determined that PDBRs conduct “de novo” reviews. See Silbaugh v. United

States, 107 Fed. Cl. at 150. The court stated:

The PDBR reviewed plaintiff's case de novo. See DODI 6040.44 ¶ 4.b.

(instructing the PDBR to “impartially readjudicate cases upon which review

is requested or undertaken on its own motion”). DODI 6040.44 requires

the PDBR to issue recommendations based on the complete case record

that was before the PEB and, to the extent feasible, "all the information

necessary for competent review and recommendation.” Id., Encl. 3., ¶ 5.d.

Accordingly, the PDBR reviewed both plaintiff's military and DVA

[Department of Veterans Affairs] medical records to determine the

26

An “unfitting” condition is a condition that makes a service member unfit to continue to

serve in the armed forces. See Army Reg. 40-501, Ch. 3-4.

32

"accuracy and fairness" of plaintiff's disability rating. see DODI 6040.44 ¶

4.a.

Id. (internal citation removed). Similarly, in Hatmaker v. United States, another Judge of

the United States Court of Federal Claims held that the PDBR conducts “de novo”

reviews, noting that under DoDI 6040.44 § 4(b), “‘[t]he PDBR shall . . . impartially

readjudicate cases upon which review is requested or undertaken on its own motion.’”

Hatmaker v. United States, 2014 WL 3767049, at *8. Moreover, PDBR review panels in

at least four separate decisions have stated that they had the authority to conduct, or

conducted, de novo evaluations of the record. See, e.g., PDBR Case No. PD0900676,

at 3 (Feb. 16, 2011) (“[T]he Board considered the appropriate deduction for non-

compliance de novo.”); PDBR Case No. PD0900054, at 12 (Jan. 05, 2010) (“[T]he

Board considered the shoulder conditions de novo for an unfitness determination.”);

PDBR Case No. PD0900260, at 6 (Nov. 17, 2009) (“Using a de novo evaluation of the

evidence, the Board determined that LBP [low back pain] should be changed to an

unfitting condition . . . .”); PDBR Case No. PD0900275, at 3 (Aug. 25, 2009) (“De-novo

rating of the VA exam would also rate at 30%.”). The court also notes that, by statute, a

PDBR decision, if in plaintiff’s favor, can be made retroactive to the applicant’s initial

date of medical separation. See Wounded Warrior Act § 1643 (“Any such correction

may be made effective as of the effective date of the action taken on the report of the

Physical Evaluation Board to which such recommendation relates.”).

According to the Department of Defense in its instruction, DoDI 6040.44, “Lead

DoD Component for the Physical Disability Board of Review (PDBR),” a PDBR “shall

impartially readjudicate cases upon which review is requested or undertaken on its own

motion.” DoDI 6040.44, Enclosure 3 § 4(b). The instruction further states that “[t]he

purpose of the PDBR shall be to reassess the accuracy and fairness of the combined

disability ratings assigned Service members who were discharged as unfit . . . with a

combined disability rating of 20 percent or less and were not found to be eligible for

retirement.” DoDI 6040.44 § 4(a). A review of the record indicates that Mr. Adams’ 2011

PDBR conducted a de novo review of the 2005 informal PEB decision using the

complete record in front of the 2005 informal PEB as well as additional evidence.

The parties’ numerous briefs focus on the merits of Mr. Adams’ 2011 PDBR

decision, with far less attention paid to Mr. Adams’ 2005 informal PEB rating. Plaintiff

argues that DC 8100, “Migraine,” is a better choice for his disability, and that he should

have been rated under DC 8100, “Migraine” as opposed to DC 8045-9304, “Brain

disease due to trauma,” analogous to “Dementia due to head trauma,” referring

primarily to the record pertaining to Mr. Adams’ 2011 PDBR review. 27 The court notes

27

Defendant argues that plaintiff knowingly and intelligently waived his right to review

the Army’s 2005 informal PEB decision, because plaintiff made no attempt to seek

review of the 2005 informal PEB decision. The record does not indicate that plaintiff

consented to the informal PEB decision by signing a DA Form 199 and marking that he

concurred with the 2005 informal PEB decision, as he had done with the 2004 informal

33

defendant’s comment in its motion for judgment on the administrative record: “Because

the minority PDBR decision did not change the rating awarded by the 2005 PEB, Mr.

Adams's brief does not appear to raise stand-alone challenges to the 2005 PEB

decision.” Defendant also comments that “[i]n any event, any distinction between the

2005 and 2011 proceedings is one without a difference in this case. Mr. Adams has

essentially treated the two decisions, which reached the same result, as one and the

same.” Therefore, considering that plaintiff’s 2011 PDBR review addressed the entire

record before his 2005 informal PEB and more, and considering that plaintiff has

declined to make any arguments specific to Mr. Adams’ 2005 PEB review, the court

proceeds to focus its review on Mr. Adams’ 2011 PDBR determination.

Defendant also argued, initially, that plaintiff had waived certain arguments which

Mr. Adams did not raise in front of the 2011 PDBR, but now has raised before this court.

Defendant stated in its motion for judgment on the administrative record:

Mr. Adams failed to assert many of the arguments he is making before this

Court to the PDBR. Mr. Adams relies almost entirely upon his argument

that the Army erred in its selection of Diagnostic Code 8045, rather than

8100. Mr. Adams claims, for the first time, that “the plain language of the

VASRD indicates that [the] VA intentionally and purposely excluded

migraines from the scope of [Diagnostic Code 8045, among others] . . .

and intended migraines be evaluated instead under . . . [Diagnostic Code]

8100.” Similarly, Mr. Adams only now claims that, “even if there were any

ambiguity in the VASRD . . . the Supreme Court has counseled strongly

that 'interpretative doubt is to resolved in the veteran's favor” [sic] and that,

“[i]n rejecting use of DC 8100, neither the PDBR minority nor the

Secretary cited or discussed these reasonable doubt rules, apparently

preferring instead to cast a veil of silence over the difficulties these rules

present.” Finally, for the first time before this Court, Mr. Adams makes his

argument that the Army was required to follow Board of Veterans' Appeals

case law that allegedly required the Army to rely upon Diagnostic Code

8100 rather than Diagnostic Code 8045-9304.

Despite being represented by counsel, Mr. Adams did not raise

those arguments before the PDBR, and, thus, the PDBR did not have an

opportunity to consider them.

PEB decision, nor does the record indicate that he submitted an appeal “within the

prescribed time limits” after he received notice of the 2005 informal PEB decision. See

Army Reg. 635-40, Ch. 4-21(a). The record further indicates that since receipt of the

October 17, 2005 notice of the decision, and the later Army memorandum, dated

November 17, 2005, informing Mr. Adams that his case had moved on “for further

processing,” plaintiff did not challenge the PEB decision until he applied to the PDBR in

2009. The 2011 PDBR majority decision also stated that “[t]he Cl [claimant] made no

appeals” after his 2005 informal PEB review.

34

(modifications in original; internal citations omitted). Defendant initially asserted in its

motion for judgment on the administrative record that plaintiff’s failure to make all his

legal arguments within the earlier, PDBR application, “prevented the [Army] from itself

having an opportunity to entertain any claim or objection and to develop a full record

that this court now could review.” (quotation omitted; modification in original). Defendant

later withdrew this argument, however, citing the decision issued by a Judge of this

court in Silbaugh v. United States, 107 Fed. Cl. 143. In Silbaugh, the United States

Court of Federal Claims confronted a similar issue, and concluded:

[T]he PDBR is not equivalent to a board for correction of military records.

In fact, the instruction sheet accompanying the application for PDBR

review explicitly states that, unlike a servicemember seeking review by a

correction board, a servicemember seeking PDBR review “need not allege

anything, [sic] review accomplished upon request.” Because plaintiff was

not required to raise her VASRD § 4.129 argument before the PDBR,

plaintiff's failure to raise the issue could not have resulted in a waiver of

her VASRD § 4.129 claim.

Silbaugh v. United States, 107 Fed. Cl. at 150–51 (internal citations omitted); see also

Pearl v. United States, 111 Fed. Cl. at 310 (In a case involving the Physical Disability

Board of Review, the court dismissed defendant’s waiver argument, stating, “this rule

does not apply when the administrative body whose decision is being challenged

addressed an issue sua sponte. The mere fact that the issue before the administrative

body was not raised by the parties does not put the issue beyond this court's review.”).

In general, the court reviews the decision of the Secretary of the Army in

plaintiff’s case “to determine whether it is arbitrary, capricious, unsupported by

substantial evidence, or contrary to law.” Lewis v. United States, 458 F.3d 1372, 1376

(Fed. Cir.) (citing Martinez v. United States, 333 F.3d 1295, 1305, 1314 (Fed. Cir.

2003), cert. denied, 540 U.S. 1177 (2004)), reh’g en banc denied (Fed. Cir. 2006), cert.

denied, 552 U.S. 810 (2007); see also Chappell v. Wallace, 462 U.S. 296, 303 (1983)

(“Board decisions are subject to judicial review and can be set aside if they are arbitrary,

capricious, or not based on substantial evidence.”); Burnick v. United States, 541 F.3d

1372, 1377 (Fed. Cir. 2010); Barnes v. United States, 473 F.3d 1356, 1361 (Fed. Cir.

2007) (“We apply the same standard of review as the United States Court of Federal

Claims, which means ‘we will not disturb the decision of the corrections board unless it

is arbitrary, capricious, contrary to law, or unsupported by substantial evidence.’”

(quoting Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)); Metz v.

United States, 466 F.3d 991, 998 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006);

Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998), reh'g denied, en banc

suggestion declined (Fed. Cir.), cert. denied, 528 U.S. 809 (1999); Heisig v. United

States, 719 F.2d 1153, 1156 (Fed. Cir. 1983); Skinner v. United States, 219 Ct. Cl. 322,

331, 594 F.2d 824, 830 (1979); Spellissy v. United States, 103 Fed. Cl. 274, 283 (2012)

(“[W]hen a service member chooses to seek relief from a military corrections board, the

35

court ‘will not disturb the decision of [a] corrections board unless it is arbitrary,

capricious, contrary to law, or unsupported by substantial evidence.’” (quoting

Chambers v. United States, 417 F.3d at 1227) (second modification in original)). In

Riser v. United States, the United States Court of Federal Claims noted that plaintiff

must show that the decision by the Army Board for Correction of Military Records was

arbitrary and capricious, contrary to law, or unsupported by substantial evidence, and

that, in accordance with this deferential standard of review, the court does not reweigh

the evidence, “but rather considers whether the conclusion being reviewed is supported

by substantial evidence. So long as the Board considered the relevant evidence and

came to a reasonable conclusion, this court will not disturb the Board's decision.” Riser

v. United States, 97 Fed. Cl. 679, 683–84 (2011) (quoting Heisig v. United States, 719

F.2d at 1157) (emphasis in original; other citations omitted); see also Holmes v. United

States, 98 Fed. Cl. 767, 780–81 (2011) (“‘The Board’s decision will comply with the

substantial evidence standard so long as a ‘reasonable mind might accept” [the]

particular evidentiary record as “adequate to support [the contested] conclusion.”’”

(quoting Dickinson v. Zurko, 527 U.S. 150, 162 (1999) (quoting Consol. Edison Co. of

N.Y. v. NLRB, 305 U.S. 197, 229 (1938))) (modifications in original)).

This standard of review is narrow. The court does not sit as “a super correction

board.” Skinner v. United States, 219 Ct. Cl. at 331, 594 F.2d at 830; see also Voge v.

United States, 844 F.2d 776, 782 (Fed. Cir. 1988) (The “court does not function as ‘a

sort of super Correction Board.’” (quoting Reale v. United States, 208 Ct. Cl. 1010,

1013, 529 F.2d 533 (1976))). Moreover, “military administrators are presumed to act

lawfully and in good faith like other public officers, and the military is entitled to

substantial deference in the governance of its affairs.” Dodson v. United States, 988

F.2d 1199, 1204 (Fed. Cir.), reh'g denied (Fed. Cir. 1993). “‘[J]udges are not given the

task of running the Army.’” Antonellis v. United States, 723 F.3d 1328, 1332 (Fed. Cir.

2013) (quoting Orloff v. Willoughby, 345 U.S. 83, 93 (1953)). The United States

Supreme Court, however, has also stated:

Normally, an agency rule would be arbitrary and capricious if the agency

has relied on factors which Congress has not intended it to consider,

entirely failed to consider an important aspect of the problem, offered an

explanation for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a difference in

view or the product of agency expertise. The reviewing court should not

attempt itself to make up for such deficiencies; we may not supply a

reasoned basis for the agency's action that the agency itself has not given.

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) [reh’g denied and reh’g

denied sub nom. SEC v. Fed. Water & Gas Corp. (1947)]. We will,

however, “uphold a decision of less than ideal clarity if the agency's path

may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas–Best

Freight System, Inc., 419 U.S. [281,] 286, 95 S. Ct. 438, 42 L. Ed. 2d 447

[(1974)]. See also Camp v. Pitts, 411 U.S. 138, 142–143, 93 S. Ct. 1241,

36 L. Ed. 2d 106 (1973) (per curiam).

36

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43–44 (1983) (other citations omitted); see also SKF USA Inc. v. United States, 630

F.3d 1365, 1373 n.3 (Fed. Cir. 2011)). In sum, as a Judge of the United States Court of

Federal Claims explained in Verbeck v. United States:

The court's review in these matters is thus limited in scope and deferential

in nature. Ms. Verbeck must show that the Board's decision was arbitrary

and capricious, contrary to law, or unsupported by substantial evidence.

See Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)

[cert. denied, 546 U.S. 1066 (2005)]; Godwin v. United States, 338 F.3d

1374, 1378 (Fed. Cir. 2003); Heisig [v. United States], 719 F.2d [1153,

1156 (Fed. Cir. 1983)]. . . . The Board's decision will comply with the

substantial evidence standard so long as a “‘reasonable mind might

accept’ [the] particular evidentiary record as ‘adequate to support [the

contested] conclusion.’” Dickinson v. Zurko, 527 U.S. 150, 162, 119 S. Ct.

1816, 144 L. Ed. 2d 143 (1999) (quoting Consolidated Edison Co. of N.Y.

v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938)).

Similarly, the arbitrary and capricious standard “requires a reviewing court

to sustain an action evincing rational reasoning and consideration of

relevant factors.” Advanced Data Concepts, Inc. v. United States, 216

F.3d 1054, 1058 (Fed. Cir.[), reh’g denied (Fed. Cir. 2000)].

In sum, the court must satisfy itself that the Board considered all of the

relevant evidence and provided a reasoned opinion that reflects a

contemplation of the facts and circumstances pertinent to the case before

it. See Heisig, 719 F.2d at 1157 (“Under the substantial evidence rule, all

of the competent evidence must be considered, whether original or

supplemental, and whether or not it supports the challenged conclusion.”);

Van Cleave v. United States, 70 Fed. Cl. 674, 678–79 (2006) (While the

court does not “serve as a ‘super correction board[,]’ Skinner v. United

States, [219 Ct. Cl. at 331] . . . correction boards must examine relevant

data and articulate satisfactory explanations for their decisions.”) (citations

omitted). If the Board “entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter to the

evidence before the [Board], or is so implausible that it could not be

ascribed to a difference in view or the product of agency expertise[,]” its

decision runs afoul of even this lenient standard of review. Motor Vehicle

Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).

Verbeck v. United States, 97 Fed. Cl. 443, 451 (2011) (second omission in original); see

also PAI Corp. v. United States, 614 F.3d 1347, 1351 (Fed. Cir. 2010) (citing Advanced

Data Concepts, Inc. v. United States, 216 F.3d at 1058).

37

In Mr. Adams’ case, the Deputy Assistant Secretary for Army Review Boards,

acting for the Secretary of the Army, and despite the Deputy Director of the PDBR

recommendation in favor of the 2011 PDBR majority decision, gave no reason for

rejecting the 2011 PDBR majority recommendation, and endorsed the minority decision

without comment. The Deputy Assistant Secretary stated, in full:

I have reviewed the Board’s record of proceedings, majority

recommendation, and minority opinion (copy enclosed). I regret to inform

you that I reject the Board’s majority recommendation and accept the

Board’s minority opinion as accurate that your final Physical Evaluation

Board disability rating remains unchanged. There is insufficient

justification to support the Board’s recommendation in accordance with

Army and Department of Defense regulations.

The 2011 PDBR majority decision in Mr. Adams’ case found that, although DC

8045, “Brain disease due to trauma” was “technically accurate for the diagnosis” and

more “clinically specific,” DC 8100, “Migraine,” was “more applicable and fair for rating

purposes,” and assigned Mr. Adams a thirty percent disability rating under DC 8199-

8100, “MISCELLANEOUS DISEASES” analogous to “Migraine.” (capitalization in

original). See 38 C.F.R. § 4.124a (2005); see also Price v. Shinseki, 2010 WL 4987330,

at *6 (referring to DC 8199-8100 as “an analogous condition under the DC for

migraines” (emphasis in original)). The 2011 PDBR majority decision stated:

“Consensus was that DoDI 6040.44 mandate for arriving at a ‘fair and equitable’

recommendation justified resolution of this question in favor of the Cl [claimant].” The

2011 PDBR majority decision also stated: “It was agreed that the episodes documented

above were equivocally characterized as prostrating since it was not specified whether

the headaches forced cessation of work activities, although reasonable doubt allows the

assumption that at least some of them were.” This led to a final, combined

recommendation for a forty percent disability rating for plaintiff, because plaintiff was

also given a ten percent disability rating for “Cervical Disc Herniation.”

The 2011 PDBR minority decision, which, as stated above, the Secretary of the

Army adopted, objected to the decision by the PDBR majority members on two grounds.

The minority decision first contended that the choice to rate plaintiff’s “Post-Concussive

Migraine Headaches” condition under DC 8045-9304, “Brain disease due to trauma,”

analogous to “Dementia due to head trauma,” was “technically accurate,” and preferable

to a rating under DC 8100, “Migraine.” The minority member’s decision’s entire, brief,

explanation in this regard was:

The evidence is clear that the Cl did not have migraine headaches prior to

the MVA [motor vehicle accident] and that the headaches started as a

result of the head trauma resulting from it. It readily follows that the coding

and the rating of the headache condition by the PEB at the end of the

TDRL period was supported, and that the PEB’s interpretation of the

VASRD guidelines for post-concussive headaches in effect at the time

38

was correct. Unfortunately, the 8045 [‘Brain disease due to trauma’] rating

criteria in 2005 did not apply what we know about traumatic brain injuries

today and did not take into consideration the nature of the headaches or

the severity of the subjective symptoms that resulted from the head

trauma. DoDI 6040.44, however, is unequivocal in its stipulation that the

VASRD criteria applied to Board recommendations are derived from the

VASRD in effect at separation.

Plaintiff contends that the accurate selection of VASRD diagnostic codes is “critical” in

this case, because plaintiff cannot succeed if rated under DC 8045-9304, “Brain disease

due to trauma,” analogous to “Dementia due to head trauma.” According to plaintiff,

“[t]his issue is critical because, as defendant repeatedly and correctly emphasizes, the

maximum rating that plaintiff’s migraines could receive using DC 8045 [‘Brain disease

due to trauma] is 10%.” (internal citation omitted). Defendant similarly notes that “[t]he

central issue in this case is whether the Army reasonably chose to apply Diagnostic

Code 8045 [‘Brain disease due to trauma’].” Defendant, however, challenges plaintiff’s

arguments as trying to disguise an issue of fact as an issue of law, stating: “Mr. Adams

ignores the fact that the Army's rating decision required more than regulatory

construction.” Defendant further states:

Even assuming for the sake of argument that the Army could have

selected Diagnostic Code 8100 [“Migraine”], rather than Diagnostic Code

8045 [“Brain disease due to trauma”], Mr. Adams’s challenge is, in

essence, an inappropriate attempt to second-guess the Army's reasonable

judgment call to evaluate his condition based upon the latter code.

(citing Grieg v. United States, 226 Ct. Cl. 258, 269, 640 F.2d 1261, 1268 (1981), cert.

denied, 455 U.S. 907 (1982)) (emphasis in original). In support, defendant also cites to

the case of Butts v. Brown, 5 Vet. App. 532 (1993) (en banc), which states in part:

The selection of the proper DC [diagnostic code] is not a question of law

because it is a determination that is completely dependent upon the facts

of a particular case. It involves the application of the law—in this case a

regulation—to a specific set of facts—in this case a particular condition

affecting a claimant . . . .

We now hold that the Court may set aside the BVA’s [Board of Veterans

Appeals’] selection of a DC [Diagnostic Code] in a particular case only if

such selection is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.”

Id. at 538–39 (citations omitted). Plaintiff responds that whether the minority decision

gave the terms “migraine” and “headache” their correct meanings under the VASRD is a

question of law that can be evaluated without deference to the 2011 PDBR minority

member or the Secretary of the Army. Plaintiff states:

39

The interpretation of a statute or, as here, a regulation, is a question of

law. See, e.g., Jensen v. Brown, 19 F.3d 1413, 1415 (Fed. Cir. 1994). The

Court’s scope of review of this question of law is de novo. See, e.g., Lane

v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003).

Generally, as discussed above, the Secretary of the Army’s application of a

military disability rating to a service member’s condition is entitled to deference and is a

fact-specific examination, judged as to whether it is “arbitrary, capricious, unsupported

by substantial evidence, or contrary to law.” See Lewis v. United States, 458 F.3d at

1376; see also Skinner v. United States, 219 Ct. Cl. at 331; Spellissy v. United States,

103 Fed. Cl. at 283; Verbeck v. United States, 97 Fed. Cl. at 451 (citing Heisig v. United

States, 719 F.2d at 1156). In plaintiff’s case, the Secretary of the Army’s rating

determination relied on the 2011 PDBR minority decision’s interpretation of the meaning

and application of two diagnostic codes within the VASRD, DC 8100, “Migraine,” and

DC 8045, “Brain disease due to trauma.” 38 C.F.R. § 4.124a (2005). The court reviews

an agency’s interpretation of a regulation as a question of law, and awards deference to

the agency’s interpretation only if it is a valid interpretation. See 5 U.S.C. § 706 (“[T]he

reviewing court shall decide all relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or applicability of the terms of an

agency action.”); Haas v. Peake, 525 F.3d 1168, 1186 (Fed. Cir. 2008) (“An agency's

interpretation of its regulations is entitled to ‘substantial deference,’ requiring a court to

defer to the agency's interpretation ‘unless an alternative reading is compelled by the

regulation's plain language or by other indications of the [agency's] intent at the time of

the regulation's promulgation.’” (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S.

504, 512 (1994)), cert. denied, 555 U.S. 1149 (2009) (modification in original)); Towne

v. United States, 106 Fed. Cl. 704, 712 (2012) (“The DoD's interpretation is only entitled

to deference if it is within the range of acceptable meanings of ‘combat-related

operations,’ as those words can be understood using ordinary rules of statutory

construction.” (citing Cuomo v. Clearing House, 557 U.S. 519, 525 (2009) (citing

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)))); Miss.

Dep't of Rehab. Servs. v. United States, 61 Fed. Cl. 20, 24 (2004) (“As the reviewing

Court, we ‘decide all relevant questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability of the terms of an agency

action.’” (quoting 5 U.S.C. § 706 (2000)). The dispute in plaintiff’s case turns on the

meaning of the VASRD diagnostic codes, and whether the 2011 PDBR minority

member’s interpretation of the VASRD diagnostic codes at issue was permissible, given

the language of the VASRD, and the case law from the United States Court of Appeals

for Veterans Claims. In addition, plaintiff argues that the case law from the Board of

Veterans Appeals also applies. A decision by the Secretary of the Army that relied on

an improper reading of a statute, regulation, or relevant, binding case law would be

arbitrary, capricious and contrary to law. See 5 U.S.C. § 706; Chambers v. United

States, 417 F.3d at 1224; Towne v. United States, 106 Fed. Cl. at 712.

40

As noted above, the VASRD diagnostic codes at issue in the above captioned

case are:

8045 Brain Disease Due to Trauma:

Purely neurological disabilities, such as hemiplegia, epileptiform seizures,

facial nerve paralysis, etc., following trauma to the brain, will be

rated under the diagnostic codes specifically dealing with such

disabilities, with citation of a hyphenated diagnostic code (e.g.,

8045-8207).

Purely subjective complaints such as headache, dizziness, insomnia, etc.,

recognized as symptomatic of brain trauma, will be rated 10

percent and no more under diagnostic code 9304. This 10 percent

rating will not be combined with any other rating for a disability due

to brain trauma. Ratings in excess of 10 percent for brain disease

due to trauma under diagnostic code 9304 are not assignable in the

absence of a diagnosis of multi-infarct dementia associated with

brain trauma.

...

8100 Migraine:

With very frequent completely prostrating and prolonged attacks

productive of severe economic inadaptability ................ 50% [rating]

With characteristic prostrating attacks occurring on an average once a

month over last several months ..................................... 30% [rating]

With characteristic prostrating attacks averaging one in 2 months over last

several months .............................................................. 10% [rating]

With less frequent attacks ......................................................... 0% [rating]

38 C.F.R. § 4.124a (2005).

A third diagnostic code, also relevant to the dispute before the court, DC 9304,

“Dementia due to head trauma,” has no description accompanying the diagnostic code.

See 38 C.F.R. § 4.130 (2005). Instead, at the time of plaintiff’s 2004 and 2005 PEB

reviews, all mental disorders (VASRD DCs 9201 to 9521), except eating disorders (DCs

9520, 9521), were assigned disability ratings under a common rating scale. See id. (the

“General Rating Formula for Mental Disorders”). A rating of ten percent can be awarded

under this code for “[o]ccupational and social impairment due to mild or transient

symptoms which decrease work efficiency and ability to perform occupational tasks only

during periods of significant stress, or; symptoms controlled by continuous medication.”

Id.

41

Plaintiff argues that the Secretary of the Army’s choice in 2011 to rate plaintiff’s

migraine condition under DC 8045-9304, “Brain disease due to trauma,” analogous to

“Dementia due to head trauma,” instead of DC 8100, “Migraine,” was incorrect. Plaintiff

first argues that the 2011 PDBR minority decision’s interpretation of the VASRD

diagnostic codes at issue, which the Secretary of the Army adopted, “violates the plain

language of the VASRD,” and also is contrary to the controlling interpretations of the

VASRD issued by the United States Court of Appeals for Veterans Claims, as well as

those issued by the Board of Veterans Appeals. Plaintiff contends that the minority

decision conflated two key terms in the VASRD that should not have been

interchanged: migraines and headaches. Plaintiff alleges that the minority decision

incorrectly concluded that under the VASRD migraines could be rated the same as

headaches for rating purposes. Plaintiff states that the evidence “demonstrates that the

medical personnel evaluating and treating SSG Adams consistently diagnosed him with

migraines,” listing as examples Mr. Adams’ evaluations by Dr. Brooks, First Lieutenant

VanHemel, Dr. Byrnes, and Dr. Garcia. Plaintiff adds that the diagnoses of many

medical doctors that plaintiff suffered from migraines is not challenged by the

government: “The Government has not and cannot appeal the Government’s own

finding. Accordingly, the Court and the parties to this lawsuit are bound by the 2005

PEB’s conclusion that Adams suffered from ‘postconcussive migraine headaches’ that

rendered him unfit for continued service.” (internal citation omitted). Plaintiff contends

that the 2011 PDBR minority decision, adopted by the Secretary of the Army, improperly

confused and failed to distinguish plaintiff’s “Post-Concussive Migraine Headaches”

condition, which was listed as the “UNFITTING CONDITION” in the PDBR minority

decision, from the separate disability of “post-concussive headaches,” which the PDBR

minority member also used to describe plaintiff’s disability within the text of the minority

decision. (capitalization and emphasis in original). Plaintiff states: “[T]he proper

interpretation of the VASRD is that all migraine headaches, whether post-concussive or

not, be rated using the disability rating criteria in DC 8100, [‘Migraine’] and that post-

concussive headaches other than migraine headaches be rated using the disability

rating criteria in DC 8045 [‘Brain disease due to trauma’].” (emphasis in original).

Plaintiff argues that the plain meaning of the VASRD mandates that plaintiff’s migraine

condition be rated under DC 8100, “Migraine,” as opposed DC 8045-9304, “Brain

disease due to trauma,” analogous to “Dementia due to head trauma.” Plaintiff also

argues, in the alternative, that if the meanings of the diagnostic codes are ambiguous,

under section 1642 of the Wounded Warrior Act, the interpretations of the VASRD by

the Court of Appeals for Veterans Claims and Board of Veterans Appeals were binding

on the Secretary of the Army and the 2011 PDBR. Plaintiff adds that both the Court of

Appeals for Veterans Claims and Board of Veterans Appeals interpret the terms

“migraine” and “headache” materially different from each other for rating purposes, and

prohibit the rating of a migraine condition under a diagnostic code other than DC 8100,

“Migraine.”

Defendant states that “the plain language of the VASRD clearly supports the

Army's decision that Diagnostic Code 8045-9304 [‘Brain disease due to trauma,’

analogous to ‘Dementia due to head trauma,’] is accurate for Mr. Adams's diagnosis.”

42

According to defendant, “[m]oreover, the Court of Appeals for Veterans Claims has

affirmed the use of Diagnostic Code 8045 [‘Brain disease due to trauma’] for headaches

resulting from trauma.” Defendant contends, in contrast to plaintiff’s argument, that the

interpretations of the VASRD by the Board of Veterans Appeals do not bind the

Secretary of the Army, and states that “any requirement to follow the interpretations of

the Court of Appeals for Veterans Claims (Veterans Court) simply does not constitute a

requirement to follow interpretations of the BVA [Board of Veterans Appeals].”

Additionally, defendant presents policy arguments advocating independence for the

Secretary of the Army to choose between different disability rating options.

The court first addresses whether the plain language of the VASRD allows for, or

precludes, the 2011 PDBR minority member’s choice to rate plaintiff’s migraines under

DC 8045-9304, “Brain disease due to trauma,” analogous to “Dementia due to head

trauma.” Plaintiff argues that the plain language of the VASRD indicates that DC 8100,

“Migraine,” refers to a unique and distinct disease condition from either DC 8045, “Brain

disease due to trauma,” or DC 9304, “Dementia due to head trauma.” Plaintiff quotes

Russello v. United States: “‘“[W]here Congress includes particular language in one

section of a statute but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposefully in the disparate inclusion or

exclusion.”’” (quoting Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United

States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))). Plaintiff claims that the

cannon described by the United States Supreme Court in Russello applies to

interpretation of the VASRD as much as to interpretation of statutes, and quotes from

Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994), which states “canons of

construction of course apply equally to any legal text and not merely to statutes.” See

also id. (“‘Regulations, like statutes, are interpreted according to the canons of

construction.’” (quoting Black & Decker Corp. v. Comm’r, 986 F.2d 60, 65 (4th

Cir.1993))). Plaintiff notes that in the VASRD, the term “Migraine” is mentioned only

once, in the title of DC 8100. See 38 CFR Pt. 4 (2005). Plaintiff further points out,

however, that many diagnostic codes discuss the term “headache” in their rating

scheme or notes, including DC 5025 (“Fibromyalgia”), DC 6314 (“Beriberi”), DC 8046

(“Cerebral arteriosclerosis”), and DC 8045 (“Brain disease due to trauma”). 38 C.F.R.

§§ 4.71a, 4.88b, 4.124a (2005).28 Plaintiff argues, therefore, that under the canon of

construction in Russello v. United States, a migraine condition can only be rated under

DC 8100, “Migraine.”

In contrast, defendant argues that instead of “headache” or “Migraine,” the key

term to examine is “trauma,” and like plaintiff applies the same canon of construction

discussed by plaintiff with reference to Russello, stating: “The same argument could be

made with respect to the presence of words ‘brain disease due to trauma’ in Diagnostic

Code 8045 and the absence of a reference to trauma in Diagnostic Code 8100 . . . .”

28

The court notes that there are other references to “headache” in the VASRD in effect

in 2004 and 2005, such as DC 6514 (“Sinitus”) and DC 7700 (“Anemia”), which discuss

headaches in their rating schemes or notes. See 38 C.F.R. §§ 4.97, 4.117 (2005).

43

Defendant acknowledges that it is undisputed that plaintiff suffered an injury due to

trauma during the car accident while he was deployed. Defendant points out that DC

8100, “Migraine,” does not discuss trauma, but that DC 8045, “Brain disease due to

trauma,” and DC 9304, “Dementia due to head trauma,” both mention the term “trauma.”

Defendant argues, therefore, that under Russello, plaintiff’s condition should be rated

only under a diagnostic code that includes the term “trauma.” Plaintiff responds that the

canon discussed in Russello does not apply to defendant’s example, since the term

“trauma” appears in many places within the VASRD, such as in DC 5010 (“Arthritis due

to trauma”) and DC 6520 (“Larynx, stenosis of, including residuals of laryngeal trauma”).

38 C.F.R. §§ 4.71a, 4.97 (2005). Plaintiff responds that focusing on the term that

identifies the cause of the injury, in this case “trauma,” is a mistake, and that, instead,

the terms of greater importance for determining the meaning of the diagnostic code are

the terms representing the disease or injury. According to plaintiff:

[T]he diagnostic codes in the VASRD are used to categorize disabilities.

See 38 C.F.R. § 4.1 (“This rating schedule is primarily a guide in the

evaluation of disability resulting from all types of diseases and injuries

encountered as a result of or incident to military service”). “Trauma” is not

a disability. “Trauma” is an event; an event that may or may not cause a

disability. “Migraines” and “Brain Disease” are disabilities.

Defendant responds that this distinction is without legal significance, and emphasizes

that “Mr. Adams’s headaches (Mr. Adams's ‘brain disease’) were due to trauma.”

(emphasis in original).

United States Supreme Court cases subsequent to Russello have applied the

canon of statutory construction described in that case to infer congressional intent when

one section of an Act is lacking specific language contained in a different section of the

same Act. See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452–53 (2012)

(“Where Congress wanted to provide for successor liability in the Coal Act, it did so

explicitly, as demonstrated by [26 U.S.C.] §§ 9706(b)(2) and 9711(g)(1). If Congress

had meant to make a preenactment successor in interest like Jericol liable, it could have

done so clearly and explicitly.” (citing as example Russello v. United States, 464 U.S. at

23)); United States v. Gonzales, 520 U.S. 1, 5 (1997) (“Given that Congress expressly

limited the phrase ‘any crime’ to only federal crimes, we find it significant that no similar

restriction modifies the phrase ‘any other term of imprisonment,’ which appears only two

sentences later and is at issue in this case.” (quoting 18 U.S.C.A. § 924(c) (1991));

Fedorenko v. United States, 449 U.S. 490, 512 (1981) (“That Congress was perfectly

capable of adopting a ‘voluntariness’ limitation where it felt that one was necessary is

plain from comparing § 2(a) with § 2(b) [of the Displaced Persons Act of 1948, 62 Stat.

1009], which excludes only those individuals who ‘voluntarily assisted the enemy forces

. . . in their operations . . . .’ Under traditional principles of statutory construction, the

deliberate omission of the word ‘voluntary’ from § 2(a) compels the conclusion that the

statute made all those who assisted in the persecution of civilians ineligible for visas.”

(modifications and emphasis in original)). The United States Supreme Court, however,

44

also has indicated that the Russello cannon has to be considered in the overall light of

congressional intent, and that reviewing courts should “‘“look not only to the particular

statutory language, but to the design of the statute as a whole and to its object and

policy.”’” Negusie v. Holder, 555 U.S. 511, 519 (2009) (quoting Dada v. Mukasey, 554

U.S. 1, 16 (2008) (quoting Gozlon–Peretz v. United States, 498 U.S. 395, 407 (1991))).

The United States Supreme Court has also cautioned against the use of the Russello

canon where there are an increasing number of differences between the provisions

being compared. See City of Columbus v. Ours Garage and Wrecker Serv., Inc., 536

U.S. 424, 425 (2002) (“The Russello presumption—that the presence of a phrase in one

provision and its absence in another reveals Congress' design—grows weaker with

each difference in the formulation of the provisions under inspection.”). The Russello

canon of statutory construction has been followed by the United States Court of Appeals

for the Federal Circuit. See, e.g., Burden v. Shinseki, 727 F.3d 1161, 1171 (Fed. Cir.)

(The Federal Circuit cited Russello v. United States and held that since 38 U.S.C.

§ 103(a) granted the VA authority determine, by “evidence satisfactory to the

Secretary,” what is a “marriage,” the lack of that same language in a later provision,

section 103(c), meant that the VA had to defer to state law and could not set its own

evidentiary standards for what is a marriage.), reh’g and reh’g en banc denied (Fed. Cir.

2013), cert. denied, 134 S. Ct. 2134 (2014); Sioux Honey Ass'n v. Hartford Fire Ins. Co.,

672 F.3d 1041, 1052 (Fed. Cir.) (The Federal Circuit cited Russello in noting

“Congress's use of the term ‘jurisdiction’ in [28 U.S.C.] §§ 1581–1584 but not in § 1585

suggests that it did not intend” for “the concept of supplemental jurisdiction” to apply to

28 U.S.C. § 1585.), cert. denied, 133 S. Ct. 126 (2012).

Under the VASRD, terms representing the resulting disease or injury effect, in

this case “Migraine” or “Brain disease,” are more relevant for determining the application

of a diagnostic code than the term that identifies the cause, in this case, “trauma.” VA

regulations specify that VASRD diagnostic codes are to be chosen based on how well

they represent a disease or injury condition, not the cause of the injury, such as

“trauma.” See 38 C.F.R. § 4.1 (2005) (“The percentage ratings represent as far as can

practicably be determined the average impairment in earning capacity resulting from

such diseases and injuries and their residual conditions in civil occupations.”); 38 C.F.R.

§ 4.27 (2005) (“With diseases, preference is to be given to the number assigned to the

disease itself; if the rating is determined on the basis of residual conditions, the number

appropriate to the residual condition will be added, preceded by a hyphen.”). Even

though, as defendant notes, the term “headache” appears multiple times in the VASRD,

the Federal Circuit has applied the Russello canon of construction even when a term

has been applied more than once in other areas of a body of law. See, e.g., Sioux

Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d at 1052 (“Further, that 28 U.S.C. § 1585

does not contain a ‘jurisdiction’ term is telling, especially because the Customs Courts

Act does refer to ‘jurisdiction’ numerous times in neighboring provisions (i.e., §§ 1581–

1584).” (emphasis in original)).

The term “Migraine” only appears once in the VASRD, whereas the term

“headache” appears multiple times in separate locations within the VASRD. See

45

generally 38 C.F.R Pt. 4 (2005). Given that the term “Migraine” is only found in DC

8100, and in no other part of the VASRD, the regulatory intent behind the VASRD would

appear to be for those service members with a diagnosis of “Migraine” to be rated under

DC 8100, “Migraine.” That plaintiff was diagnosed with a migraine condition is not in

dispute. Both the PDBR majority and minority decisions listed Mr. Adams’ “UNFITTING

CONDITION” as “Post-Concussive Migraine Headaches.” (capitalization and emphasis

in original). The vast majority of the medical professionals who examined plaintiff,

including those relevant examinations of Mr. Adams closest in time to his October 24,

2005 informal PEB and November 21, 2005 separation from the Army, concluded that

plaintiff was suffering from “migraines,” or “migraine headaches.”29

There are multiple, different terms, “Migraine,” “Brain disease,” and “headache,”

in the various diagnostics codes at issue. When there is different language in two

sections of a regulatory scheme, as opposed to when there is language in one section

of a regulatory scheme that does not exist in the other section, the Russello canon is

less helpful to resolve the issue. See Russello v. United States, 464 U.S. at 23 (The

United States Supreme Court stated that when there is different language between two

sections of a legal text, “[w]e refrain from concluding here that the differing language in

the two subsections has the same meaning in each.”). Furthermore, none of the key

terms at issue in this case, “Migraine,” “Brain disease,” or “headache,” are defined

within the VASRD and, therefore, are open to interpretation. See 38 C.F.R. §§ 4.124a,

4.130 (2005). The medical literature does not provide helpful definitions of the terms

“Migraine,” “Brain disease,” or “headache,” either, and even contains overlapping

definitions. For example, the term “Migraine” is defined in Dorland’s Illustrated Medical

Dictionary (30th ed. 2003) as a type of headache, “an often familial symptom complex of

periodic attacks of vascular headache, usually temporal and unilateral in onset,

commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and

often photophobia.” Dorland’s Illustrated Medical Dictionary 1158. The term “Brain

disease” is not generally defined in traditional medical dictionaries such as Dorland’s

Illustrated Medical Dictionary, however, the language included under DC 8045, “Brain

disease due to trauma,” implies, that headaches can be rated under DC 8045, through a

combined rating of DC 8045-9304, “Brain disease due to trauma,” analogous to

“Dementia due to head trauma.” The note under DC 8045, “Brain disease due to

trauma,” states: “Purely subjective complaints such as headache, dizziness, insomnia,

etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more

under diagnostic code 9304.” 38 C.F.R. § 4.124a (2005). Moreover, the term

29

For example, the parties stipulated that on July 18, 2005 “Dr. Garcia diagnosed

plaintiff with ‘CLASSICAL MIGRAINE (WITH AURA): intractable with 1-2 prostrating

headaches a week,’” during Mr. Adams’ TDRL evaluation. (capitalization in original). In

addition, Dr. Brooks, Dr. Marathe, First Lieutenant VanHemel, Dr. Friedman, Dr. Byrnes,

as well as Mr. Adams’ VA evaluators diagnosed plaintiff with migraines or migraine

headaches. Although Dr. Tran also evaluated plaintiff on August 20, 2005, close in time

to his October 24, 2005 informal PEB, this evaluation did not concern his migraine

headaches.

46

“headache” is simply defined in Dorland’s Illustrated Medical Dictionary as “pain in the

head.” Dorland’s Illustrated Medical Dictionary 817.

The United States Court of Appeals for the Federal Circuit decision in Deckers

Outdoor Corp. v. United States, provides some guidance when the Russello canon may

not resolve individual term construction issues, when multiple, perhaps related, terms

are in dispute, such as “migraine,” “brain trauma,” and “headache.” See Deckers

Outdoor Corp. v. United States, 14 F.3d 1363, 1365–67 (Fed. Cir.), reh’g and reh’g en

banc denied (Fed. Cir. 2013), cert. denied, 134 S. Ct. 2288 (2014). In Deckers, the

definitions of the terms “footwear,” “shoes,” and “boots” under the Harmonized Tariff

Schedule of the United States (HTSUS) were at issue. See id. at 1367. The Federal

Circuit, citing Russello, concluded that “footwear” could not have the same meaning as

“shoes” or “boots,” since the latter terms were used in other sections of the HTSUS,

while, instead, “footwear” was used in the section at issue in the case. See id.

Nonetheless, the Court of Appeals of the Federal Circuit still needed to define what

exactly “footwear” meant, using explanatory notes contained within the HTSUS. See id.

at 1367 n.1. The Deckers court concluded that “footwear” was not completely distinct

from “shoes” or “boots,” but instead encompassed both terms. See id. at 1367. The

Federal Circuit stated:

As Deckers acknowledges, the term “footwear” plainly encompasses both

shoes and boots. See Br. of Appellant 8 (acknowledging that the Classic

Crochet boots are “footwear with outer soles of rubber or plastic”). Certain

HTSUS [Harmonized Tariff Schedule of the United States] provisions refer

specifically to shoes. See HTSUS 6404.11 (referring to “tennis shoes,”

“basketball shoes,” and “gym shoes”); id. 6403.19.30 (referring to “golf

shoes”). Other HTSUS provisions refer specifically to “boots.”).

Id.

In the above captioned case, defendant similarly argues that the terms

“headache” and “Brain trauma” in the VASRD can be broadly defined, such that

“migraine” conditions can fall within the definition of headaches, just as “shoes” and

“boots” fell under the definition of “footwear” in Deckers. Defendant states: “Since the

regulations include headaches as a type of ‘brain disease due to trauma’ for purposes

of Diagnostic Code 8045, it defies reason for Mr. Adams to claim his headaches are not

brain disease within the meaning of that diagnostic code.”30 Plaintiff, however, argues

that migraines are a unique disease within the VASRD that should be rated under DC

8100, “Migraine,” and that migraines are distinct from other types of “headaches” or

“Brain disease.” According to plaintiff, “the word ‘migraines’ is a disability, and it was

exclusively used by VA in promulgating the VASRD in the title to DC 8100 and was

30

Defendant frequently refers to plaintiff’s condition as “post-concussive headaches,”

although the 2011 PDBR majority and minority decisions both referred to plaintiff’s

condition as “Post-Concussive Migraine Headaches.”

47

used nowhere else in the VASRD.” Given the lack of direct definitions provided in the

VASRD, it is not apparent from reading the words of the VASRD whether the disabilities

covered by DC 8045, “Brain disease due to trauma,” or DC 9304, “Dementia due to

head trauma,” cover migraine conditions. See 38 C.F.R. §§ 4.124a, 4.130 (2005).

Plaintiff argues that another term in the VASRD, “Dementia,” is of relevance to

plaintiff’s disability determination. The term “Dementia” is found in the title of DC 8045-

9304, “Brain disease due to trauma,” analogous to “Dementia due to head trauma.”

Unlike other terms in the VASRD, the term “Dementia” is defined within the VASRD.

The start of 38 C.F.R. § 4.130 (2005) states: “The nomenclature employed in this

portion of the rating schedule is based upon the Diagnostic and Statistical Manual of

Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM–IV).”

The DSM-IV defines “Dementia” (emphasis in original), in relevant part, as follows:

The essential feature of a dementia is the development of multiple

cognitive deficits that include memory impairment and at least one of the

following cognitive disturbances . . . .

Memory impairment is required to make the diagnosis of a

dementia and is a prominent early symptom (Criterion A1). Individuals with

dementia become impaired in their ability to learn new material, or they

forget previously learned material. Most individuals with dementia have

both forms of memory impairment . . . .

DSM-IV at 134; see also 61 Fed. Reg. 52695, 52695–96 (Oct. 6, 1996) (discussing the

use of DSM-IV, as well as the VA’s interpretation of other diagnostic codes that also use

the word “dementia”). The DSM-IV further defines “Dementia Due to Head Trauma”

(emphasis in original), in relevant part, as follows:

The essential feature of Dementia Due to Head Trauma is the presence of

a dementia that is judged to be the direct pathophysiological consequence

of head trauma. . . . Posttraumatic amnesia is frequently present, along

with persisting memory impairment.

DSM-IV at 148 (emphasis in original).

As part of its consideration of plaintiff’s case, this court issued an Order asking

the parties to clarify “whether the record indicates that plaintiff suffered from memory

impairment as a result of head trauma, and, if not, whether DC 8045, ‘Brain disease due

to trauma,’ was properly applied to plaintiff’s condition . . . .” The court asked the parties

to discuss whether, “[i]n order for DC 8045, ‘Brain disease due to trauma,’ to have been

applicable to plaintiff’s condition at the time of the 2005 PEB decision, therefore, there

may have been a requirement to have diagnosed plaintiff with memory impairment as a

result of trauma.” Both parties confirmed that at no point in the record is there evidence

that plaintiff suffered from memory loss or memory impairment. Defendant indicated:

48

“Our review of the record did not disclose evidence that Mr. Adams suffered from

memory loss.” Similarly, plaintiff stated: “The administrative record contains no evidence

that the plaintiff suffered from memory impairment as a result of trauma.”

Plaintiff argues that because plaintiff did not show any signs of memory loss,

plaintiff did not suffer from dementia, and therefore, the plain language of DC 9304,

“Dementia due to head trauma,” prevented plaintiff’s condition from being rated

analogously under DC 8045-9304, “Brain disease due to trauma,” analogous to

“Dementia due to head trauma.” Defendant responds that, pursuant to the descriptive

language under DC 8045, “Brain disease due to trauma,” a rating under DC 8045-9304,

“Brain disease due to trauma,” analogous to “Dementia due to the head trauma,” only

requires the presence of a purely subjective complaint, such as headaches or dizziness.

According to defendant:

Although the code cross-references DC 9304, Dementia Due to Head

Trauma (38 C.F.R. § 4.130) for purposes of designating the applicable

disability percentage, it does not mandate further evaluation of the

condition through DC 9304 for purposes of receiving a 10 percent rating.

Because Mr. Adams suffered from a “purely subjective” headache

condition, DC 8045 does not require satisfaction of two diagnostic codes:

DC 8045 [“Brain disease due to trauma,”] and DC 9304 [“Dementia due to

head trauma”]; rather, DC 8045 [“Brain disease due to trauma,”] only

requires the presence of headaches.

Defendant also maintains that, regardless, to qualify for a disability rating of ten percent

under DC 9304, “Dementia due to head trauma,” alone, no showing of memory loss is

required. Defendant notes that under the “General Rating Formula for Mental

Disorders,” which provides the disability rating scheme for DC 9304, “Dementia due to

head trauma,” a disability rating of ten percent only requires: “Occupational and social

impairment due to mild or transient symptoms which decrease work efficiency and

ability to perform occupational tasks only during periods of significant stress, or;

symptoms controlled by continuous medication.” 38 C.F.R. § 4.130 (2005). Defendant

notes, on the other hand, the next highest rating under DC 9304, “Dementia due to

head trauma,” of thirty percent, specifically looks for “mild memory loss (such as

forgetting names, directions, recent events)” as a rating requirement. See id.

Under the DSM-IV’s definition of “Dementia Due to Head Trauma” “memory

impairment” is “frequently present,” but does not have to be present in every instance.

See DSM-IV at 148 (emphasis in original). Moreover, according to the note under DC

8045, “Brain disease due to trauma,” as written at the time of plaintiff’s separation in

2005: “Purely subjective complaints such as headache, dizziness, insomnia, etc.,

recognized as symptomatic of brain trauma, will be rated 10 percent and no more under

diagnostic code 9304.” 38 C.F.R. § 4.124a (2005). It appears, therefore, from a review

of the plain language of the VASRD that “[p]urely subjective complaints such as

headache, dizziness, insomnia,” are among the diagnoses which potentially can

49

generate a rating under DC 8045-9304, “Brain disease due to trauma,” analogous to

“Dementia due to head trauma.” See 38 C.F.R. §§ 4.124a, 4.130 (2005).

Defendant also correctly notes that under the “General Rating Formula for Mental

Disorders,” which provides the disability ratings for DC 9304, “Dementia due to head

trauma,” a disability rating of ten percent under DC 9304 does not require memory

impairment. See 38 C.F.R. § 4.130 (2005). Only for ratings of thirty percent or higher

under DC 9304, “Dementia due to head trauma,” does the 2005 VASRD “General

Rating Formula for Mental Disorder” mention or require memory impairment as a

symptom. See id. The court also points out that the United States Court of Appeals for

Veterans Claims has upheld ratings for headache conditions under DC 8045-9304,

“Brain disease due to trauma,” analogous to “Dementia due to head trauma,” despite a

lack of a showing of memory loss. See, e.g., Ashmore v. Derwinski, 1 Vet. App. 580,

583–84 (1991) (in which the court recommended the Board of Veterans Appeals rate

plaintiff’s symptoms of headache, dizziness, and insomnia as ten percent disabling

under DC 8045-9304, despite no mention of the service member suffering memory

loss).

According to plaintiff, even if the plain language of the VASRD does not clarify

whether or not plaintiff’s migraine condition should have been rated under DC 8100,

“Migraine,” or DC 8045-9304, “Brain disease due to trauma,” analogous to “Dementia

due to head trauma,” the Secretary of the Army’s decision is contrary to the controlling

interpretations of the VASRD issued by the United States Court of Appeals for Veterans

Claims and the Board of Veterans Appeals. Plaintiff contends that these interpretations

were not considered during Mr. Adams’ 2011 PDBR review. Plaintiff points to section

1642 of the Wounded Warrior Act (codified at 10 U.S.C. § 1216a). According to section

1642 of the Wounded Warrior Act, in relevant part:

‘‘(a) UTILIZATION OF VA SCHEDULE FOR RATING DISABILITIES IN

DETERMINATIONS OF DISABILITY.—“(1) In making a determination of

disability of a member of the armed forces for purposes of this chapter, the

Secretary concerned

“(A) shall, to the extent feasible, utilize the schedule for rating

disabilities in use by the Department of Veterans Affairs [38 C.F.R.

Part 4] , including any applicable interpretation of the schedule by

the United States Court of Appeals for Veterans Claims; and

“(B) except as provided in paragraph (2), may not deviate from

the schedule or any such interpretation of the schedule.

Wounded Warrior Act § 1642 (capitalization and quotations in original). Plaintiff,

therefore, argues that: “In the 2008 NDAA [National Defense Authorization Act, of which

the Wounded Warrior Act is a part], Congress expanded on the principle that PEBs are

required to follow the VASRD by providing that both the PEBs and the newly created

PDBR are generally bound to follow VA interpretations of its own VASRD.”

50

The Wounded Warrior Act was enacted on January 28, 2008, after plaintiff’s

2005 informal PEB review, but before his 2011 PDBR review. Defendant does not

disagree that section 1642 of the Wounded Warrior Act applies to plaintiff’s PDBR. DoDI

6040.44, “Lead DoD Component for the Physical Disability Board of Review (PDBR),”

offers different approaches for the PDBR to follow depending on whether a claimant

was separated before or after January 28, 2008:

If the case was adjudicated by the final Military Department PEB and the

covered individual was separated from military service prior to January 28,

2008 [the date of enactment of the Wounded Warrior Act], the PDBR shall

also review the disability rating(s) of the covered individual, in accordance

with the VASRD in effect at the time of separation for the covered

individual. Provisions of DoD or Military Department regulations or

guidelines relied upon by the PEB will not be considered by the PDBR to

the extent they were inconsistent with the VASRD in effect at the time of

the adjudication. If the covered individual was separated from military

service on or after January 28, 2008, the PDBR shall use the VASRD

without application of Reference (m), along with any applicable

interpretation of the VASRD by the United States Court of Appeals for

Veterans Claims.

DoDI 6040.44, Enclosure 3 § 5(e)(1).31 According to the military’s instruction, when the

PDBR evaluated claimants who happened to have separated from the Army before

January 28, 2008, the date of enactment of the Wounded Warrior Act, the PDBR was

not required to rate the claimants in the same manner as VA and was not required to

31

As mentioned above, this court refers to DoDI 6040.44, as amended June 2, 2009, in

effect at the time of plaintiff’s 2011 PDBR review. Before DoDI 6040.44 was amended

on June 2, 2009, the instruction at Enclosure 3 § 5(e)(1)

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