Dresen v. United States

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In the United States Court of Federal Claims

No. 14_1102C

(Fnedaapnizo,zoi?)

Nor FoR PUBLICATION Fl LED

APR 2 0 2017

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THE UNITED sTATES, *

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Det`endant. *

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OPINION AND ORDER

DAMICH, Senior Judge:

Pending before the Court are the Det`endant United States’ motion for judgment

on the administrative record regarding Daniel J. Dresen’s (“Plaintift") entitlement to

retirement or severance benefits under 10 U.S.C. §§ 1201, 1203l and a denied promotion

following a remand in 2015.2 The Plaintiff, acting pro se, argued that he was illegally

denied military severance and/or retirement funds and denied a promotion When the

California Army National Guard found him unfit for duty and discharged him in 2014 as

a result of a diagnosis of Crohn’s disease in 2013. Plaintiff asked for medical severance

1 Generally, 10 U.S.C. §§1201, 1203 defines Who is eligible to receive either

retirement (§1201) or severance (§1203) benefits as a result of medical separation from

the military. Specitically relevant in the instant case, a member of the armed forces, may

be eligible for retirement or Severance benefits, if at the time a disability is incurred, the

service member is entitled to basic pay, and has been called or ordered to active duty for

a period of more than 30 days.

2 See Dresen v. United States, Case No. 14-1102C, ECF No. 22 at l (Fed. Cl. July

30, 2015) (hereinafter “Dresen”).

meals mandamus ani=ls_'?si.n

equaling $33,500.00 or medical retirement Plaintiff also requested a promotion to E-S,

and any back pay.3

The Defendant originally argued before this Court that Plaintiff’s Crohn’s disease

was hereditary and existed prior to Plaintiff entering military duty in 2006; consequently,

Plaintiff was not eligible to receive either retirement or severance benefits upon discharge

because his disease was not incurred or aggravated while he was on active duty and

entitled to basic pay. Def.’s Mot. at 11-12.

Regarding aggravation, this Court held that the conclusions reached by the

military review boards, that Plaintift” s Crohn’s disease was not service-aggravated, was

not arbitrary, capricious, or otherwise contrary to law.4 However, regarding the onset of

the disease, this Court could not conclude that Plaintift’s Crohn’s disease existed prior to

military service or was incurred while on active duty because there was a lack of

evidence on the cause or origin of Crohn’s disease Dresen at 13-14. Therefore,

referencing what appeared to be analogous facts in Wollman v. United States, 108 Fed_

C]. 656 (2013), (“Woflman I”) this Court similarly remanded to the Califomia National

Guard (“CAARNG”) to determine the cause or origin of Crohn’s disease and if “genetic

predisposition” and “hereditary” are synonymous, as different terms were used

throughout the administrative record. The Court further ordered the CAARNG to

determine whether Plaintift’ s Crohn’s disease existed prior to his entrance to military

service and when the symptoms manifested themselves5

On remand, the CAARNG entered an advisory opinion that the cause or origin of

Crohn’s disease i-s unknown and that “genetic predisposition” and “hereditary” are not

synonymous Therefore, Plaintiff could not be deemed to have incurred Crohn’s disease

prior to entering military service in 2006. Crohn’s disease was not mentioned in his

medical records When he was treated for anal tissures and underwent a

hemorrhoidectomy during his initial active duty for training in 2007 nor during his

deployments to Kuwait in 2008-2009 and 2010-201 l.

3 Plaintiff’s request for retroactive promotion to the grade of E-5 was denied by

this Court as non-justiciable in Dresen at 13.

4 This Court ruled in Dresen that, if his Crohn’s existed prior to his service, the

record was clear that Plaintiff’s symptoms were attributable to the natural progression of

the disease rather than service aggravation Dresen at 13

5 Generally, a service member is deemed healthy upon entrance to military

service. If a condition is incurred after the start of military service, unless it was a

hereditary condition, the burden would be on the government to prove the condition was

not incurred or aggravated during military service per Army Regulations. Dresen at 8-9.

If Crohn’s disease was not hereditary, the Plaintiff was entitled to the presumption that

his disease was incurred while on active duty. Furthermore, the record used a variety of

terms including, “hereditary,” “congenital,” “genetic,” and “genetic predisposition.”

Thus, the Court was asking for clarification as to the medical understanding of these

terms and if they could be used interchangeably in conjunction with how Crohn’s disease

is contracted

The CAARNG concluded that Plaintiff’s Crohn’s disease was diagnosed in March

2013. After reviewing Plaintift’s medical records, the medical experts noted that Crohn’s

disease was not mentioned prior to the genetic testing by a civilian doctor in 2012.

Unlike the plaintiff in Wollman I, here, Plaintiff was a member of the California Army

National Guard and had not been on active duty for more than 30 days and entitled to

basic pay during 2012 or 2013. Therefore, the CAARNG concluded that Plaintiff was

not on active duty and entitled to basic pay at the time the disease incurred. The Army

Board of Correction of Military Records (“ABCMR”), in accord with the CAARNG

findings, reviewed Plaintiff`s military records, and denied his request for military

retirement

The Defendant then filed in this Court a motion for judgment on the

administrative record. The Plaintiff timely responded and the case is now ripe for

decision For the reasons set forth below, the Court hereby GRANTS the Defendant’s

motion for judgment on the administrative record.

I. Standard of Review

A. Review of Military Decisions

The United States Court of Federal Claims acquires jurisdiction over claims for

military disability retirement after an appropriate military board has evaluated the service

member's entitlement to such retirement in the first instance Cha`mbers v. United States,

417 F.3d 1218, 1225 (Fed. Cir. 2005); See also Scarseth v. UnitedSmtes, 52 Fed. Cl.

458, 479-80 (2002) (claim not ripe until considered by MEB, PEB, or Army Board for

Correction of Military Records). The Court's task is limited to determining whether the

board's decision was arbitrary, capricious, unsupported by substantial evidence, or

contrary to law, The substantial evidence standard is satisfied when the record reflects

"relevant evidence [sufficient for] a reasonable mind [to] accept as adequate to support a

conclusion." Gosscrge v. United Stares, 394 F. App'x 695, 697 (Fed. Cir. 2010). The

court will not engage in a reweighing of the evidence that was before the board. Heisig v.

United Srates, 719 F.2d 1153, 1157 (Fed. Cir. 1983). Moreover, the board is entitled to a

presumption that its members acted in good faith in executing their duties. See Van

Cleave v. United$mtes, 70 Fed. Cl. 674, 679 (2006).

B. Motion for Judgrnent on the Administrative Record

When reviewing a motion for judgment on the administrative record under Rule

52.1 (c) of the RCFC, the court makes factual findings on record evidence “as if it were

conducting a trial on the record.” Wollman v. United States, 1 16 Fed. Cl. 419, 428 (2014)

("Wollmarz H”) (quoting Bannnm, ]nc. v. United Srares, 404 F.3d 1346, 1357 (Fed. Cir.

2005)). “Therefore, unlike a motion for summary judgment, the existence of a disputed

material fact does not preclude the court from reaching a decision.” Wolfman H at 428.

“Should the administrative record be silent as to some disputed facts, the court may still

render judgment if the agency provided an adequate discussion of the basis of its

decision.” [a’.; rea also Rebosky v. United Srates, 60 Fed. Cl. 305, 311-13 (2004).

II. Discussion

In the previous case, the Defendant argued that the Plaintiff” s claims for medical

retirement or severance pay would fail since Plaintiff was not an eligible member as

defined by 10 U.S.C. §§ 1201, 1203 at the time his Crohn’s disease was incurred because

there was “clear and unmistakable” evidence that Plaintiff`s Crohn’s existed prior to his

entrance on active duty. Def.’s MJAR at 10 n. 5 (quoting AR 1083). The Defendant now

argues that the record has been clarified and that, therefore, Plaintiff’s Crohn’s disease

did not exist prior to his entrance on active duty. Instead, the Defendant argues that it

was not medically certain that the Plaintiff had the disease until the diagnosis in March

2013, two years after Plaintiff"s last active duty deployment The Defendant notes that

the ABCMR concluded that the disease was not incurred while Plaintiff was on active

duty for more than 30 days and entitled to basic pay and denied Plaintiff’s request for

military retirement The posture in this case has changed in a way not anticipated by this

Court. Therefore, the focus of this Court’s review is now on the conclusion that the

Plaintiff`s Crohn’s was not incurred until March 2013 when he was not on active duty.

A. Crohn’s is Not Hereditary

On February 9, 2016, Dr. Conrad Salinas, the State Surgeon for the CAARNG,

answered the Court’s remand by stating that the cause or origin of Crohn’s disease “is at

present incomplete.” AR 1082-84. In his report, Dr. Salinas stated that the terms

“genetic” and “hereditary” are considered to be synonymous but that the term “genetic

predisposition” and V‘genetic disease” are not. AR 1082. Specifically, “the factors which

cause an individual who is genetically predisposed to ultimately develop the disease are

as yet uncertain.” AR 1083. According to the medical community, Crohn’s disease

“may only be diagnosed when objective medical findings meet established criteria.” Id.

Thus, only after specific genetic testing which identify a genetic predisposition to the

disease, a colonoscopy, and a biopsy are performed on an individual is a diagnosis of

Crohn’s established Id.

B. Plaintiff" s Crohn’s I)isease Did Not Incur during Military Service

Turning to the Plaintiff’s medical history, Dr. Salinas stated that the Plaintiff had

periods of constipation and rectal bleeding and anal fissures in 2007 and 2008 which led

to surgical intervention Id. Nowhere in the medical records do the clinicians’ notes

suggest these symptoms raised concerns of Crohn’s disease Id. His rectal bleeding and

anal fissures were attributed to constipation. Id. Additionally, Dr. Salinas noted that

“[a]ccording to the National lnstitutes of Health CNIH), the most common symptoms of

Crohn’s are abdominal pain and diarrhea.” AR 1083. Plaintiff’ s medical records do not

indicate a complaint of abdominal pain until 2013. Id. The testing on Plaintiff indicating

the genetic predisposition to Crohn’s was completed in 2012 by a civilian doctor and only

after a colonoscopy and tissue biopsy in March 2013 was a diagnosis of Crohn’s disease

actually confirmed Id. Dr. Salinas stated that “it is not possible to conclude with

medical certainty that the disease was present prior to these l\/Iarch 2013 findings.” Ia'.

Further, Dr. Salinas highlighted that Plaintiff was not on active duty for over 30 days and

entitled to basic pay during 2012 and 2013 which distinguished Plaintiffs case from the

active duty soldier in Wollman I. Id.

On February 16, 2016, the ABCMR requested an additional review and advisory

opinion, by the Army’s Office of the Surgeon General, of the Plaintiff’s records, in

response to Plaintiff’s request for a medical retirement AR 1081.

On March 3, 2016, Dr. David Twillie issued an advisory opinion to the ABCMR

that Plaintiff was not eligible for a medical retirement and had been appropriately

recommended for separation AR 1079-80. Dr. Twillie described the medical

interventions that Plaintiff received in 2007 and 2008 as “self-limiting and not associated

with his eventual unfitting diagnosis.” AR 1079. Dr. Twillie stated that in November

2013 the Plaintiff received a medically disqualifying profile for Crohn’s disease and that

the recommendation for separation from service was in accordance with Arrny Reg. 40-

501, CH 3-10 and AR 635~40. AR 1080. The ABCMR concluded that in accord with the

expert medical opinions, Plaintiff s Crohn’s disease was not incurred during the time that

he was on military orders for more than 30 days and entitled to base pay and thus was not

entitled to a military retirement The reports of Drs. Salinas and Twillie and the

involvement of the CAARNG, point to the conclusion that the ABMCR’s findings were

not arbitrary, capricious, unsupported by substantial evidence, or contrary to law.

C. The ABCMR Denies Request to Correct Military Records

The Court notes that although it was not requested by this Court, the ABCMR

again reviewed Plaintiff s military record for error, provided Plaintiff an opportunity to

rebut the preliminary findings, and ultimately denied his request for correction to his

military record and medical retirement. After review, this Court concludes that the

ABCMR findings are not arbitrary, capricious, unsupported by Substantial evidence, or

contrary to law.

On September 29, 2016, the ABCMR entered its opinion denying Plaintiff’s

request for a military retirement finding no probable error, injustice, or correction to his

military records AR 1051. Plaintiff raised multiple issues and argued that (1) his non-

duty related Physical Evaluation Board (“NDR-PEB”) should have been reconvened, (2)

he should have been referred to a Physical Evaluation Board after his surgeries in

Kuwait, (3) he should have been referred to a l\/Iedical Evaluation Board for his

Traumatic Brain Injury (“TBI”), (4) his line of duty determination for hemorrhoids, anal

fissures, rectal bleeding, and anal leakage should have been ruled to have occurred in the

line of duty, (5) the VA disability award of 90% demonstrates he should have been

medically retired from the military, (6) he was unlawfully denied promotion to E5, and

(7) his Crohn’s disease is a result of the anthrax vaccinations he received as a member of

the military.

The ABCMR’s conclusions regarding Plaintiff’s NDR-PEB should not be

reconvened was not arbitrary, capricious, unsupported by substantial evidence, or

contrary to law. Plaintiff’s NDR-PEB had begun in June 2014 and he voluntarily

requested discharge on August 4, 2014 because of his medical disqualification for

retention AR 1065. The Plaintiff’s voluntary discharge request ended the review in

accordance with Arrny regulations Id.

The ABCMR’s finding that the lack of referral to a Physical Evaluation Board

after his sphincterotomy or to a l\/[edical Evaluation Board for his TBI was not in error.

The ABCMR noted that there was no evidence in his record that he could not perform his

duties when he was released from active duty after his deployments which was when the

surgery and TBI occurred. Id. Additionally, the “mere presence of impairment does not,

of itself, justify a finding of unfitness and referral to a [Medical Evaluation Board].” Id.

Plaintiff also argued that his line of duty determination for his hemorrhoids, anal fissures,

rectal bleeding, and anal leakage should have been ruled to have occurred in the line of

duty, The ABCMR found that multiple reviewers of Plaintiff’ s medical records

confirmed the findings in accordance with regulations that these conditions were not in

the line of duty and not a result of Plaintiff s misconduct AR 1066 (emphasis added).

Therefore, the ABCMR’s finding was not arbitrary, capricious, unsupported by

substantial evidence, or contrary to law.

The ABCMR responded to Plaintiff’s argument that his VA disability award of 90

% is inconsistent with his separation from the military, explaining that “an award of a VA

rating does not establish error or injustice in an Army rating or discharge.” AR 1065; see

Title 38 U.S.C. §§ 1110, 1131. Furthermore, the ABCMR concluded that a later VA

disability award to a discharged soldier is not proof that at the time of separation, the

soldier was unfit for military service AR 1065; see also Chambers v. United Srares, 417

F.3d 1218, 1227-28 (Fed. Cir 2005). Therefore, the ABCMR’s finding was not arbitrary,

capricious, unsupported by substantial evidence, or contrary to law.

In response to the Plaintiffs contention that he should have been promoted to E-5,

the ABCMR ruled that the Plaintiff did not provide any evidence to support his claim.

AR 1066. Additionally, the ABCMR noted that this Court had denied the request for

promotion As such this finding by the ABCl\/IR was not arbitrary, capricious,

unsupported by substantial evidence, or contrary to law.

Lastly, the ABCl\/IR rejected Plaintiff s argument that his anthrax vaccinations

caused or aggravated his Crohn’s disease. Id. Plaintiff was not diagnosed with Crohn’s

disease until 2013, two years after his release from active duty. Id. Numerous medical

authorities reviewed Plaintiff’s military records and all agreed that his Crohn’s disease

was not aggravated by anthrax vaccinations or his military service Id. Additionally, the

ABCl\/IR reviewed reports by a number of medical authorities including the National

Academy of Sciences, lnstitute of Medicine, and the CDC, and have concluded that there

are no “definitive links between anthrax vaccinations and [illnesses or] unexpected

adverse events.” Id, Thus, the ABCMR’s finding was not arbitrary, capricious,

unsupported by substantial evidence, or contrary to law.

III. Conclusion l

For the reasons set forth above, the Court GRANTS Defendant’s motion and

DENIES Plaintiffs request for relief. The Clerk is DIRECTED to enter judgment

accordingly and to close the case

IT IS SO ()RDERED.

EDWARD%. DAMlCH

Senior Judge