Strahler v. United States

In the United States Court of Federal Claims

No. 20-1469C

(Filed: March 18, 2022)

FOR PUBLICATION

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CRAIG M. STRAHLER, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

*

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Jason Ellis Perry, Law Office of Jason Perry, LLC, Wellington, FL, for Plaintiff.

Kyle S. Beckrich, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, D.C., for Defendant, United

States. With him on briefs were Brian M. Boynton, Acting Assistant Attorney

General, Patricia M. McCarthy, Director, Martin F. Hockey, Jr., Acting Director, Eric

P. Bruskin, Assistant Director, as well as Lt. Col. Jahn Olson, United States Marine

Corps, Office of the Judge Advocate General.

OPINION AND ORDER

Plaintiff Craig M. Strahler, a former rifleman in the U.S. Marine Corps,

challenges a decision of the Board for Correction of Naval Records (“BCNR” or

“Board”) denying his request for medical retirement. Mr. Strahler also seeks combat-

related special compensation (“CRSC”). The parties filed cross-motions for judgment

on the administrative record under RCFC 52.1(c).1 The parties filed supplemental

briefs on jurisdiction at the Court’s request,2 and the Court held oral argument on all

issues.3 The matter is now ripe for disposition.

This Court has jurisdiction over Mr. Strahler’s claim. However, substantial

evidence supports the BCNR’s finding that he was fit for continued service when he

1 Def.’s Mot. for J. on the Administrative R. (ECF 16) (“Def.’s MJAR”); Pl.’s Cross-Mot. for J. on the

Administrative R. & Opp. (ECF 21) (“Pl.’s MJAR”); Def.’s Resp. & Reply (ECF 30) (“Def.’s R&R”); Pl.’s

Reply (ECF 33).

2 Def.’s Suppl. Br. (ECF 35); Pl.’s Suppl. Br. (ECF 36); Def.’s Suppl. Resp. (ECF 37); Pl.’s Suppl. Resp.

(ECF 38); see Order (ECF 34) (requesting supplemental briefs).

3 Tr. of Oral Arg. (ECF 40).

was discharged from active duty. Accordingly, the Court GRANTS Defendant’s

motion and DENIES Mr. Strahler’s cross-motion. The case is DISMISSED.

BACKGROUND

I. The Disability Retirement Process

A military service member may receive disability retirement if the secretary of

his branch finds that he is “unfit to perform the duties of the member’s office, grade,

rank, or rating because of physical disability incurred while entitled to basic pay,”

and also that:

(1) based upon accepted medical principles, the disability is of a

permanent nature and stable;

(2) the disability is not the result of the member’s intentional misconduct

or willful neglect, and was not incurred during a period of unauthorized

absence; and

(3) [inter alia]—

…

(B) the disability is at least 30 percent under the standard

schedule of rating disabilities in use by the Department of

Veterans Affairs [(“VA”)] at the time of the determination; and …

(iv) the disability was incurred in line of duty after

September 14, 1978.

10 U.S.C. § 1201(a)–(b); see also 10 U.S.C. § 101(a)(9).

Under Department of Defense (“DoD”) regulations, a service member will be

considered unfit “when the evidence establishes that the member, due to physical

disability, is unable to reasonably perform the duties of his or her office, grade, rank,

or rating (hereafter called duties) to include duties during a remaining period of

Reserve obligation.” See Department of Defense Instruction (“DoDI”) 1332.38,

E3.P3.2 (Nov. 14, 1996); see also Secretary of the Navy Instruction (“SECNAVINST”)

1850.4E encl. 3, § 3301 (Apr. 30, 2002) (“The sole standard to be used in making

determinations of physical disability as a basis for retirement or separation is

unfitness to perform the duties of office, grade, rank or rating because of disease or

injury incurred or aggravated while entitled to basic pay.”). Fitness to separate from

the military is evaluated by the same standard as fitness for duty. Department of the

Navy, Manual of the Medical Department (“MANMED”) Art. 15-29(1) (Dec. 14, 2001).

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Because the Navy is not equipped to provide “prolonged, definitive medical

care” for service members with injuries compromising their ability to serve, personnel

in various administrative and medical roles — including “line commanders,

commanding officers of MTFs [medical treatment facilities] and individual medical

and dental officers” — are charged with promptly identifying those individuals

“whose physical or mental fitness to continue naval service is questionable.”

SECNAVINST 1850.4E encl. 1, § 1005; DoDI 1332.38, E3.P1.6.1; DoD 6015.1–M,

P13.1.58 (Jan. 3, 1999) (defining medical treatment facility as a “military facility

established for the purpose of furnishing medical and/or dental care to eligible

individuals”). Members meeting certain diagnostic criteria are processed through the

Disability Evaluation System (“DES”). See DoDI 1332.38, E3.P2.1, E3.P7.1.2; see also

SECNAVINST 1850.4E encl. 8, § 8001(a). The DES process begins with a medical

evaluation board (“MEB”), see DoDI 1332.38, E3.P1.1.1; SECNAVINST 1850.4E encl.

3, § 3102(a), followed if necessary by a physical evaluation board (“PEB”), see DoDI

1332.38, E3.P1.1.2; SECNAVINST 1850.4E encl. 3, § 3102(c), which makes a

determination of disability “on behalf of the Secretary of the Navy[.]” SECNAVINST

1850.4E encl. 1, § 1004(a).

If a member’s condition is such that he “can be restored to full military duty

within a reasonable period of time” (i.e., “16 months or less”), the member may be

placed on temporary limited duty for the time he needs to recover. SECNAVINST

1850.4E encl. 1, § 1008(b); see MANMED Art. 18-29 (Sep. 10, 1993). For Marine Corps

members, temporary limited duty up to eight months can be granted solely by a

medical treatment facility, without approval by the Commandant of the Marine

Corps. SECNAVINST 1850.4E encl. 1, § 1008(b)(2)(a)(1).

At the time relevant to this case, if the member recovered before his temporary

limited duty ended, his physician could return him to full duty. See MANMED Art.

18-29(3)(f). The physician was required to document a reasonably detailed report of

the member’s condition, including “findings, prognosis, and any residual effects that

may be apparent.” Id. “A note stating ‘Fit for Full Duty’ [was] not sufficient.” Id. The

physician was also required to counsel the member on his medical findings. Id. But if

a member was deemed unlikely to return to full duty and had obtained optimal

medical treatment, he would be referred to the DES. SECNAVINST 1850.4E encl. 1,

§ 1009(a). A revision to those procedures, effective January 10, 2005, added a

requirement that the physician obtain the approval of the convening authority or his

designee before returning a member to full duty. See MANMED Art. 18-10(11)(a)

(Jan. 10, 2005). A “convening authority” is an officer with authority to convene a

medical board. MANMED Art. 18-3(1) (describing the convening authority’s

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responsibilities with respect to the medical boards). But that requirement was not in

effect when the events underlying this case occurred.

Separate from military disability retirement benefits, a veteran may obtain

CRSC under 10 U.S.C. § 1413a. A member is entitled to CRSC when he “(1) is entitled

to retired pay (other than by reason of section 12731b of this title); and (2) has a

combat-related disability.” 10 U.S.C. § 1413a(c)(1); see also 10 U.S.C. § 1413a(e)

(defining “combat-related disability”).

A member of the Navy who believes he was erroneously denied disability

retirement or CRSC may petition the BCNR for correction of his military record. See

Chambers v. United States, 417 F.3d 1218, 1222 (Fed. Cir. 2005) (discussing the

BCNR’s Army counterpart); Porter v. United States, 131 Fed. Cl. 552, 559 (2017). The

BCNR grants relief upon finding an error or injustice. 10 U.S.C. § 1552(a)(1). The

BCNR may also “make a disability determination in the first instance.” Sawyer v.

United States, 930 F.2d 1577, 1581 (Fed. Cir. 1991); O’Hare v. United States, 155 Fed.

Cl. 364, 378 (2021). Members who are dissatisfied with the decision of the BCNR may

obtain judicial review. Chambers, 417 F.3d at 1224–25.

II. Facts

Mr. Strahler is a former sergeant in the U.S. Marine Corps. Administrative

Record (“AR”) 20. In late 2001 and early 2002, he was deployed to Afghanistan, where,

among other decorations, he received a Combat Action Ribbon. AR 20, 190. His active

service was scheduled to end on July 7, 2002. AR 20.

Upon his return from Afghanistan, he self-reported several debilitating

physical ailments. AR 1019, 1021. On April 24, 2002 — less than three months before

the end of his enlistment — Mr. Strahler was placed on temporary limited duty for

eight months by Dr. R.T. VanHook, Assistant Battalion Surgeon of Naval Hospital

Camp Lejeune in North Carolina. AR 37. Dr. VanHook prepared a treatment plan for

Mr. Strahler that involved referrals to specialists, diagnostic tests, and restrictions

on strenuous activity. AR 37, 841.

During a check-up appointment early that summer, Dr. VanHook recorded

updates on six physical complaints previously reported by Mr. Strahler: dyspepsia,

breathing problems, hemorrhoids, shoulder pain, lower back pain, and chest pain

with shortness of breath. AR 458. According to Dr. VanHook’s notes, Plaintiff

disclaimed most symptoms either to specialists or to Dr. VanHook directly. Id. Mr.

Strahler’s evaluations were normal, except for a spine MRI that showed an L4/5 and

L5/S1 disc bulge with L5 and S1 nerve root impingement. AR 754–56. Dr. VanHook

addressed Mr. Strahler’s lower back pain as follows:

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Completed back school. Continues to deny problems since returning

from deployment. MRI reveals posterior disc bulge at L4/5 w/ L5 and S1

nerve root impingement in the right lateral recess. [Patient] has NEVER

[complained of symptoms] that were [consistent with] radiculopathy,[4]

and the pain he describes has always been [consistent with] mechanical

LBP/lumbar strain/lumbar spasm.

AR 458. In short, Dr. VanHook summed up, “[a]ll labs and radiological studies have

been normal (except for the MRI which is NOT [consistent with] his [complaints]).”

Id.

Dr. VanHook concluded on that basis that Mr. Strahler’s reported ailments

represented “malingering for the secondary gain of disability benefits.” Id. He wrote

that he had originally suspected malingering because Mr. Strahler was “extremely

paranoid and interested more in medico-legal issues than his health,” AR 457, but

that he “had not previously documented this suspicion in order to withhold it from”

Mr. Strahler. AR 458. Instead, he had used the eight-month temporary limited duty

“as a diagnostic tool to confirm [Mr. Strahler’s] malingering while simultaneously

treating any legitimate medical conditions.” Id. “All complaints vanished instantly as

soon as [Mr. Strahler] realized that they would delay his separation,” Dr. VanHook

wrote, and Mr. Strahler “threatened litigation and congressional investigation if [Dr.

VanHook] held him on active duty.” Id. Considering his suspicions confirmed, Dr.

VanHook “formally chang[ed] his diagnosis to malingering” and found Mr. Strahler

“fit for duty and fit for separation.” Id. Dr. VanHook appears to have inserted a

typewritten addendum and made manual cross-outs of diagnoses he had previously

recorded. AR 455–58; 763.

On July 7, 2002, Mr. Strahler was honorably discharged from active duty. AR

20. His reentry code was RE-1A, AR 20, meaning he was “[e]ligible for reenlistment.”

Department of the Navy, Bureau of Personnel Instruction 1900.8D encl. 2 (Aug. 27,

2018). Mr. Strahler signed a document titled “FINAL DISPOSITION” affirming that

he was found “fit for full duty” on June 3, 2002. AR 38.

Mr. Strahler also signed a “Report of Medical Examination” containing an

acknowledgment that individuals found fit for separation do not receive DES

processing:

You are being examined because of your separation from active duty. If

you feel you have a serious defect or condition that interferes, or has

4One case has described radiculopathy as a “disease of the nerve roots, such as from inflammation or

impingement by a tumor or a bony spur.” Krusemark. v. Sec’y of HHS, No. 16-1593V, 2021 WL

6774576, at *5 n. 23 (quoting Dorland’s Medical Dictionary Online).

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interfered, with the performance of your military duties, advise the

examiner. If you are considered by the examiner to be not physically

qualified for separation, you will be referred for further evaluation, and

if indicated, appearance before a medical board. If, however, you are

found physically qualified for separation, any defect will be recorded[.]

… Such defects, while not considered disqualifying for military service,

may entitle you to certain benefits from the [VA].5

AR 454. But his signature is not dated, the date at the top of the form appears to have

been altered, AR 453, and diagnoses on the form other than malingering have been

struck out, AR 455, making it unclear when Mr. Strahler signed the form or what it

said at the time.

Mr. Strahler was assigned to the Individual Ready Reserve (“IRR”) as an

inactive member.6 AR 24; DoDI 1235.13, 3.2 (Nov. 19, 1997). In early 2003, Mr.

Strahler was recalled to active duty for service in Iraq. Compl. ¶ 22 (ECF 1). But

meanwhile, the Commanding General of the Marine Corps Reserve Support

Command submitted Mr. Strahler’s medical documents to the Chief of the Bureau of

Medicine and Surgery with a recommendation that Mr. Strahler be discharged. AR

24. In May 2003, Mr. Strahler was diagnosed with L4/5 and L5-S1 disc herniation

and underwent surgery for a herniated disk at the University Hospitals of Cleveland.

AR 412, 415. Later that month, Mr. Strahler was found not physically qualified for

retention because of back pain. AR 23, 25. He was honorably discharged from the IRR

on July 11, 2003. AR 22.

By 2017, Mr. Strahler began receiving VA disability compensation for various

service-related conditions.7 AR 547–49. Among other conditions, the VA rated him as

40 percent disabled for “osteoarthritis, lumbar spine with posterior L4-S1 disc bulge,”

AR 548, 10 percent for “left lower sciatic nerve radiculopathy,” AR 549, 20 percent for

“posterior L4-S1 disc bulge with radiculopathy right lower extremity,” id., and 50

percent for depressive disorder, id.

5 Mr. Strahler’s signature on this page additionally affirmed that he was “informed [of] and

underst[ood] the provisions of article 15-29 [Separation from Active Duty] of the [MANMED].” AR 454.

6 The IRR provides the Nation with a pool of manpower available for active duty in times of conflict.

Unless called to serve in war or national emergency, members have limited administrative and

training obligations. See 10 U.S.C. §§ 10102, 10141.

7 Plaintiff states, without any citation to the record, that Mr. Strahler’s “first award of VA disability

compensation came in 2008.” Pl.’s MJAR at 15. The record contains a document of Plaintiff’s rated

disabilities as of Aug. 15, 2017. AR 547.

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III. Procedural History

On June 9, 2015, Mr. Strahler submitted three separate applications for a

Purple Heart to the BCNR: first, based on a back injury, AR 88; second, for exposure

to chemical and biological agents, AR 139; and third, for injuries stemming from the

blast of an improvised explosive device, AR 283. In the first application, Plaintiff

described being struck by enemy militants while carrying a gear load of over 200

pounds. AR 88. Mr. Strahler claimed he was denied adequate treatment in

Afghanistan, and that his “medical and field records [were] erased[.]” Id. In a

statement accompanying his application, Mr. Strahler added that the incident left

him “in debilitating pains[,]” with “ruptured and herniated discs in my lower back.”

AR 90.

The BCNR first denied Plaintiff’s request for relief on February 1, 2016. AR

1021–22. The decision construed the application for a Purple Heart as a request for

medical retirement. AR 1021. But the Board found Dr. VanHook’s diagnosis of

malingering to be “credible” based on the sequence of events triggering Plaintiff’s

removal from limited duty, concluding that Mr. Strahler properly bore the

consequences of “orchestrat[ing] [his] removal from limited duty in order to be

discharged at [the] end of [his] obligated active service.” AR 1022. In the Board’s view,

because Plaintiff failed to demonstrate evidence of disabilities prior to discharge, any

evidence of administrative errors connected to his discharge was “not probative to the

Board’s decision.” Id. The BCNR further dismissed as irrelevant a VA diagnosis for

“service-connected disability conditions,” reasoning that he was found “fit for duty

prior to … discharge and issued a re-entry code that allowed [him] to re-enlist

immediately.” Id.

Mr. Strahler filed additional applications with the BCNR in 2017, AR 470, and

2018, AR 914, both of which added requests for medical retirement and CRSC and

elaborated on Mr. Strahler’s previous arguments. The BCNR denied those

applications in terms similar to its 2016 decision. AR 1016, 1126. In particular, the

BCNR acknowledged the VA disability rating, but concluded that “[t]he fact that you

have been subsequently diagnosed with conditions post-service, or that any of your

conditions may have worsened over time, did not convince the Board that you were

unfit for continued service at the time of your discharge on 7 July 2002.” AR 1017.

Because the BCNR found Mr. Strahler was not eligible for retired pay, it denied his

claims for CRSC. AR 1018, 1128.

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DISCUSSION

I. Jurisdiction

To reach the merits of the case, I must first determine that the Court has

jurisdiction over Mr. Strahler’s claims. See Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 94 (1998). I conclude that jurisdiction exists.

Mr. Strahler’s claims fall within this Court’s Tucker Act jurisdiction. See 28

U.S.C. § 1491(a)(1). The Tucker Act does not create a substantive right of action,

United States v. Testan, 424 U.S. 392, 398 (1976), so a party seeking to bring a Tucker

Act suit in this Court must point to a money-mandating statute or regulation. United

States v. Mitchell, 463 U.S. 206, 216–17 (1983). Mr. Strahler’s claims for medical

retirement arise under 10 U.S.C. § 1201, which is a money-mandating statute. See

Fisher v. United States, 402 F.3d 1167, 1174 (Fed. Cir. 2005) (citing Sawyer, 930 F.2d

1577). His claims for CRSC arise under 10 U.S.C. § 1413a, which has been held to be

money-mandating as well. Adams v. United States, 126 Fed. Cl. 645, 656 (2016), aff’d,

696 F. App’x 511 (Fed. Cir. 2017). As the allegedly aggrieved party, Mr. Strahler has

standing to bring those claims.

Whether Mr. Strahler’s claims are timely is a harder question. See John R.

Sand & Gravel Co. v. United States, 552 U.S. 130, 132–34 (2008) (explaining that “the

special statute of limitations governing the Court of Federal Claims” is jurisdictional,

requiring sua sponte consideration). All claims before this Court are barred if filed

more than six years after the claim first accrues. 28 U.S.C. § 2501.

The six-year statute of limitations on a disability pay case usually runs from

“[t]he decision by the first statutorily authorized board that hears or refuses to hear

the claim[.]” Chambers, 417 F.3d at 1224; see Friedman v. United States, 310 F.2d

381, 395–96 (Ct. Cl. 1962); 28 U.S.C. § 2501.8 But there is an exception when “the

veteran’s knowledge of the existence and extent of his condition at the time of his

discharge [is] sufficient to justify concluding that he waived the right to board review

of the service’s finding of fitness by failing to demand a board prior to his discharge.”

Chambers, 417 F.3d at 1226 (quoting Real v. United States, 906 F.2d 1557, 1562 (Fed.

Cir. 1990)). In that circumstance — where the service member knew, “at the time of

his separation” from the military, “that he was entitled to disability retirement due

to a permanent disability that was not a result of his intentional misconduct and was

8PEBs and boards for correction of military records (like the BCNR) are statutorily authorized boards.

Patterson v. United States, 154 Fed. Cl. 120, 125–26 (2021); Quesada v. United States, 136 Fed. Cl.

635, 643 (2018) (citing Chambers, 417 F.3d at 1225 & n.2).

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service-connected,” id. at 1226; see 10 U.S.C. § 1201(a)–(b)9 — the statute of

limitations runs from the time of discharge.

Because Mr. Strahler was discharged without a PEB, the first statutorily

authorized board to address his arguments was the BCNR. But if the Chambers

exception applies here, Mr. Strahler’s claim is untimely.

The record, however, does not reflect that at the time of his discharge, Mr.

Strahler had knowledge regarding his own condition sufficient to start the limitations

period. Mr. Strahler presumably would have been aware of whatever physical

limitations he had. But it is less evident that he knew his conditions were permanent

disabilities. See Chambers, 417 F.3d at 1226. The record suggests that his medical

evaluation was in flux at the time of discharge. See id. at 1226–27; Real, 906 F.2d at

1563. His spine diagnosis, for example, appears to have changed between his original

MRI, see AR 755 (diagnosing a bulging disc), and the 2003 surgery that preceded his

discharge from the IRR, see AR 415 (diagnosing a herniated disc). The 2003 diagnosis

appears to have been new information developed after Mr. Strahler’s 2002 discharge,

and so does not shed light on what he knew at the time of discharge. The record does

not show that the 2002 diagnosis of a bulging disc made Mr. Strahler aware of a

permanent disability.

There is also evidence that Mr. Strahler did not know he was permanently

disabled. Dr. VanHook had assigned him to temporary limited duty and treatment

by specialists, and Mr. Strahler joined the IRR promptly after discharge from active

duty. A likely inference, assuming Mr. Strahler actually suffered from the symptoms

and conditions mentioned in Dr. VanHook’s original notes, is that Mr. Strahler had

reason to believe he was at least treatable. Real, 906 F.2d at 1563; see also Johnson

v. United States, 123 Fed. Cl. 174, 179 (2015) (finding no statute of limitations accrual

where plaintiff “never stopped” performing his duties and only had “temporary”

medical restrictions), aff’d, 675 F. App’x 1011 (Fed. Cir. 2017).

Lack of evidence that Mr. Strahler knew “that he was entitled to disability

retirement due to a permanent disability that was not a result of his intentional

misconduct and was service-connected” is sufficient to hold that the statute of

limitations did not begin to run at the time of discharge. Chambers, 417 F.3d at 1226.

But even if more were required, it is also unclear whether he knowingly waived his

right to medical board review. Id. Although Mr. Strahler acknowledged that he had

9Defendant suggests that Mr. Strahler’s claims are untimely because his “alleged medical conditions

are physical in nature and traceable back to specific events that occurred while Mr. Strahler was

deployed to Afghanistan,” and because “Mr. Strahler was given the opportunity to tell his physician

about any condition he believed he was suffering, and chose not to.” Def.’s Suppl. Br. at 6. That

argument is not consistent with the Chambers test.

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been found fit for duty, AR 38, and signed a form waiving a PEB, AR 454, alterations

and omissions in his medical records leave doubt about what the waiver form said

when he signed it. AR 453–55; see Chambers, 417 F.3d at 1225 n.3 (discussing

Huffaker v. United States, 2 Cl. Ct. 662 (1983)).

The statute of limitations thus began to run no earlier than February 1, 2016,

when the BCNR issued its first decision. AR 1021–22. The case was filed on October

27, 2020, less than six years later. Mr. Strahler’s claims are not time-barred.10

II. Merits

Mr. Strahler’s claims for medical retirement fall in two categories: substantive

arguments that he was medically unfit for duty at the time of discharge, and

procedural arguments about how his conditions and eventual discharge were

managed. I address those issues in turn.11

A. Legal Standard

When resolving motions for judgment on the administrative record under

RCFC 52.1(c), this Court proceeds “as if it were conducting a trial on the record.”

Bannum, Inc. v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005) (addressing

former RCFC 56.1); see also Young v. United States, 497 F. App’x 53, 58–59 (Fed. Cir.

2012). The Court reviews decisions of military records correction boards under the

standards of the Administrative Procedure Act. Walls v. United States, 582 F.3d 1358,

1367 (Fed. Cir. 2009); see 5 U.S.C. § 706. That requires evaluating whether the

BCNR’s decision was “arbitrary, capricious, unsupported by substantial evidence, or

contrary to law.” Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006) (quoting

Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998) (itself citing Skinner v.

United States, 219 Ct. Cl. 322, 594 F.2d 824 (1979))).

Especially when it comes to fitness for military service — which is not a

“judicial province,” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) —

the standard of review is narrow. This Court “may appropriately decide whether the

military followed [its] procedures[.]” Murphy v. United States, 993 F.2d 871, 873 (Fed.

Cir. 1993); see also Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002).

Moreover, while it may not “reweigh[] the evidence” before the BCNR, see Heisig, 719

F.2d at 1157, the Court may consider whether the Board’s decision “was based on a

10 There is no reason to address which of the Board’s decisions triggered the statute of limitations. See

Chambers, 417 F.3d at 1227 (statute of limitations runs from the date when “the first competent board

finally denie[s] [plaintiff’s] claim.”) (emphasis added); Friedman, 310 F.2d at 396 (noting the factors

informing whether a Board decision should be considered “final”).

11 Because I conclude Mr. Strahler has not shown that he is eligible for medical retirement, his claim

for CRSC must fail as well. See 10 U.S.C. § 1413a(c) (providing that CRSC is only available to members

eligible for retired pay); AR 1018, 1128.

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consideration of the relevant factors,” Bowman Transp., Inc. v. Arkansas-Best Freight

Sys., Inc., 419 U.S. 281, 285 (1974) (quoting Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 416 (1971)), and was “supported by substantial evidence,” Heisig,

719 F.2d at 1157; see also Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019)

(stating that courts “may not substitute [their] judgment for that of [the agency],” but

instead look to ensure the agency engaged in a reasonable decision-making process).

To be supported by “substantial evidence,” the Board’s decision must be based

on “such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938)). If the BCNR complied with the necessary

procedures and reached a decision rationally supported by substantial evidence, it

must be upheld. Stine v. United States, 92 Fed. Cl. 776, 791 (2010), aff’d, 417 F. App’x

979 (Fed. Cir. 2011). To refute the BCNR’s decision, a plaintiff’s evidence must be

“cogent and clearly convincing[.]” Stuart v. United States, 123 Fed. Cl. 413, 421 (2015)

(quoting Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992)); Six v. United

States, 79 Fed. Cl. 581, 588 (2007).

B. Substance

Medical retirement, as explained above, is governed by 10 U.S.C. § 1201, which

requires (in relevant part) that a disability (1) render a service member “unfit to

perform the duties of [his] office, grade, rank, or rating” and (2) be “of a permanent

nature and stable.” 10 U.S.C. § 1201(a), (b)(1). The principal substantive question is

whether the BCNR’s conclusion that Mr. Strahler was fit for duty at the time of

discharge was supported by substantial evidence and not arbitrary, capricious or

contrary to law. I conclude that within the narrow scope of review, the BCNR’s

decision was sound.

The BCNR found “credible” Dr. VanHook’s statement that Mr. Strahler was fit

for duty at the time of discharge. AR 1022. The record supports that conclusion.

Although Mr. Strahler mentioned various complaints to Dr. VanHook before being

discharged, the medical evaluations in the record found he was normal — with the

exception of his spine MRI, discussed below. AR 754–56. Nothing in the record at the

time of discharge contradicts Dr. VanHook’s report of Mr. Strahler’s normal tests, or

that Mr. Strahler ultimately disclaimed conditions that he originally reported. AR

457–58. Even if Mr. Strahler did not in fact mean to disclaim his conditions, the record

contains no contemporaneous medical evidence that he in fact suffered from anything

other than a bulging disc, much less that any other conditions were disabling.

Especially in the absence of contrary evidence, the BCNR was entitled to rely on the

report of a military doctor. See Voge v. United States, 844 F.2d 776, 780 (Fed. Cir.

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1988) (“[I]t would be singularly inappropriate to second-guess the judgment of …

military medical officers[.]”); see also O’Brien v. United States, 120 Fed. Cl. 85, 93

(explaining that the Court “will not substitute its judgment for that of either the

military review board or the decisions made by qualified medical evaluators”).

Mr. Strahler raises several substantive arguments in response. First, he

argues that Dr. VanHook’s views should be discounted. For example, he characterizes

Dr. VanHook’s statement that Mr. Strahler disclaimed medical complaints as

uncorroborated hearsay. Pl.’s MJAR at 10. Even if that were true, it is not clear why

Mr. Strahler thinks the point benefits him: The purported record evidence that Mr.

Strahler actually suffered from disabling conditions at the time of discharge,

including his statements recorded by Dr. VanHook, is all hearsay too. See Richardson,

402 at 407–08; Schaefer v. United States, 633 F.2d 945, 952 (Ct. Cl. 1980); Fed. R.

Evid. 801(c) (“‘Hearsay’ means a statement that: (1) the declarant does not make

while testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.”). If Mr. Strahler’s approach

were the law, he could not have carried his burden of proof before the BCNR or this

Court. Cf. Boyer v. United States, 81 Fed. Cl. 188, 196 (2008), aff’d, 323 F. App’x 917

(Fed. Cir. 2009); Stuart, 123 Fed. Cl. at 421.

More fundamentally, this Court’s review of the BCNR decision in light of the

record is not bound by ordinary hearsay rules. Although this Court follows the

Federal Rules of Evidence, see 28 U.S.C. § 2503(b), its review of agency decisions

follows the Administrative Procedure Act. “[I]t has long been settled that the

technical rules for the exclusion of evidence applicable in jury trials do not apply to

proceedings before federal administrative agencies in the absence of a statutory

requirement that such rules are to be observed,” New Dynamics Found. v. United

States, 70 Fed. Cl. 782, 797 (2006) (quoting Opp Cotton Mills, Inc. v. Admin. of Wage

& Hour Div. of Dept. of Labor, 312 U.S. 126, 155 (1941)), and Plaintiff does not

identify any such requirement here. After an agency decides to consider a given piece

of information, what matters is not whether it is technically hearsay, but whether it

“amounts to substantial evidence,” a question this Court answers using “the same

standard applied to all other evidence properly before an administrative agency,”

Schaefer, 633 F.2d at 952 — that is, whether “to a reasonable mind[] the

circumstances are such as to lend it credence.” Hatmaker v. United States, 127 Fed.

Cl. 217, 226 (2016) (quoting Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357,

1364 (Fed. Cir. 1998)). “Once held admissible [by the agency], … evidence is under no

special disadvantage because of its hearsay character.” Schaefer, 633 F.2d at 952.

Viewed by that standard, Dr. VanHook’s records are substantial evidence that

Mr. Strahler was fit. The record shows that Dr. VanHook placed Mr. Strahler on

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limited duty and referred him to specialists for evaluation and testing. AR 37, 841.

The resulting medical records — including records prepared by doctors other than

Dr. VanHook — do not show that Mr. Strahler suffered from any condition other than

a bulging disc, which Dr. VanHook discounted in writing. AR 458. Likewise, whatever

peculiarities there may be in Dr. VanHook’s approach, even Mr. Strahler does not

claim in this case that he was disabled by most of the conditions in Dr. VanHook’s

original report, i.e., dyspepsia, breathing problems, hemorrhoids, and so forth. Id. Dr.

VanHook’s statements that Mr. Strahler appeared fit for duty and disclaimed most

of his complaints thus appears consistent with the contemporaneous medical record

and Mr. Strahler’s subsequent claims.

Mr. Strahler similarly argues that Dr. VanHook’s report is not substantial

evidence because Dr. VanHook failed to follow certain procedural requirements.

Compl. ¶¶ 17–21; Pl’s. MJAR at 9; Pl.’s Reply at 3–7. Those issues, as discussed below,

are harmless error at worst. Besides, Dr. VanHook’s notes also provide the record’s

only pre-discharge corroboration for Mr. Strahler’s own claims that he suffered from

disabling conditions in the first place. If they should be disregarded for procedural

reasons, Mr. Strahler cannot carry his burden. Mr. Strahler gives no reason why he

should get the entire benefit of any procedural deficiencies. Mr. Strahler next objects

that he did not have access to some of his medical records at the time of discharge.

Id. at 10–11. Even if so, that casts no doubt on the truth of Dr. VanHook’s records,

especially considering that Mr. Strahler later obtained those records and has had an

opportunity — here and before the BCNR — to develop contrary medical evidence.

Second, Mr. Strahler emphasizes the back conditions that led to his discharge

from the IRR in 2003 and contributed to his VA disability. Compl. ¶22; Pl.’s MJAR at

12–13; Pl.’s Reply at 8–9. But Dr. VanHook’s view at the time of discharge was that

the abnormality noted on Mr. Strahler’s MRI did not line up with the symptoms he

complained of, AR 458, and Mr. Strahler has not pointed to any record evidence to

the contrary. In addition, as the BCNR noted, conditions that developed or worsened

after Mr. Strahler’s service do not bear on medical retirement under 10 U.S.C. § 1201.

AR 1017; see Kirwin v. United States, 23 Cl. Ct. 497, 507 (1991) (holding that

plaintiff’s temporary disability between 1982–83 “is irrelevant to the question of …

fitness for duty at the time of discharge in 1978”). Although Mr. Strahler transferred

to the IRR after his discharge, AR 20, there is no evidence in the record that he

suffered from back pain for roughly another nine months. AR 24. Even then, Mr.

Strahler’s diagnosis changed from a bulging disc to a herniated disc between 2002

and 2003. Compare AR 755, with AR 415. The record thus contains substantial

evidence that Mr. Strahler’s back condition changed between 2002 and 2003, rather

than that he was unfit in 2002. The BCNR perhaps could have concluded that medical

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evidence from 2003 implied that Mr. Strahler was also unfit in 2002, but it was also

entitled to draw the opposite conclusion.

The same is true of the VA evaluations of Mr. Strahler’s back condition. The

BCNR considered the VA evaluation in the context of the whole record, as it was

required to do, see Bosch v. United States, 27 Fed. Cl. 250, 265 (1992) (citing Bennett

v. United States, 200 Ct. Cl. 635, 644 (1972)), but reasonably determined that it did

not outweigh other evidence of Mr. Strahler’s condition in 2002. In any event, while

the Navy follows the percentages the VA attaches to disabilities, a VA rating does not

control the question of whether Mr. Strahler was unfit. “Disability rating

determinations by the Navy are ‘designed to determine unfitness to perform the

duties of office …. In contrast, the VA determines disability ratings based upon an

evaluation of whether and how an individual’s capacity to perform in the civilian

world is diminished by a disability.’” Lewis v. United States, 476 F. App’x 240, 245

(Fed. Cir. 2012) (alterations in original) (quoting Champagne v. United States, 35

Fed. Cl. 198, 211–12 (1996)). The Federal Circuit rejected a nearly identical argument

in Heisig: “[T]he fact of a 40 percent disability rating under the Veterans

Administration’s standards did not mandate a similar finding under service

standards, but was evidence to be, and which was, considered along with all other

evidence.” 719 F.2d at 1157.

Third, Mr. Strahler argues that the BCNR’s decision fails to account for other

possibly unfitting conditions Mr. Strahler may have had, including paranoia and

conditions resulting from chemical weapon exposure. Pl’s. MJAR at 11, 15. Yet Mr.

Strahler provides no medical evidence that he suffers from any such conditions, much

less “cogent and clearly convincing evidence” that he suffered from them at the time

of his discharge. Stuart, 123 Fed. Cl. at 421. At most, Dr. VanHook characterized Mr.

Strahler’s demeanor as “paranoid,” AR 457, but the record gives no reason to construe

that as a formal diagnosis.12 No such diagnosis appears anywhere else in the record

either. As for chemical weapon exposure, Mr. Strahler presents nothing more than

speculation, e.g., “[i]t is possible that Mr. Strahler’s complaints were caused by

chemical exposure and that may have also caused mental problems.” Pl’s. MJAR at

15. Without substantiation, that does nothing to undermine the evidence that Mr.

Strahler was in fact fit for duty.

I have considered all the evidence in the record, as substantial-evidence review

requires. See Dixon v. Dep’t of Transp., F.A.A., 8 F.3d 798, 804 (Fed. Cir. 1993)

12The record in fact suggests the opposite interpretation. Although hard to interpret with certainty,

another note by Dr. VanHook suggests that he ruled out diagnosing a personality disorder with

paranoid and antisocial traits. AR 455.

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(“Because the substantiality of evidence must take into account whatever in the

record fairly detracts from its weight, we must canvass the entire record.”) (quoting

Spurlock v. Dep’t of Justice, 894 F.2d 1328, 1330 (Fed. Cir. 1990) (quotes and

alteration omitted))); 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.”). Viewed in light of the

entire record, substantial evidence supports the BCNR’s conclusion that Mr. Strahler

was fit for duty at the time of discharge.

C. Procedure

Mr. Strahler also objects that his discharge without medical retirement was

procedurally improper in various ways. Those arguments fail as well.

The issue before the Court is not whether Mr. Strahler’s discharge was

procedurally sound in every respect, but whether to uphold the BCNR’s

determination that he was fit for duty and therefore ineligible for medical retirement.

While this Court “may appropriately decide whether the military followed [its]

procedures,” Murphy, 993 F.2d at 873, it also applies the rule of harmless error. See

Wagner v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004) (“[S]trict compliance

with procedural requirements is not required where the error is deemed harmless.”);

5 U.S.C. § 706(2). The BCNR, moreover, is empowered to make determinations of

fitness in the first instance, even if additional medical processing at the time of

discharge might have been appropriate. O’Hare, 155 Fed. Cl. at 378; Sawyer, 930 F.2d

at 1581 (“[I]n disability cases either the review boards or the correction board is

competent to make a disability determination in the first instance.”); Patterson v.

United States, 44 Fed. Cl. 468, 471 (1999), aff’d, 250 F.3d 757 (Fed. Cir. 2000) (table).

Those principles resolve Mr. Strahler’s procedural claims. Given the BCNR’s

conclusion that he was fit for duty at the time of discharge, it does not matter whether

Dr. VanHook was required to report suspected malingering, Pls.’ MJAR at 9, whether

he actually would have been able to hold Mr. Strahler in temporary limited duty past

the end of his service obligation, id. at 11, whether Mr. Strahler could have been

returned to active duty at the end of temporary limited duty without approval, id. at

12, or whether he should have received a post-deployment health assessment or DES

processing, id. at 3–4, 12. None of those supposed errors bear on Mr. Strahler’s

fitness, nor do they cast doubt on the BCNR’s decision that he was fit. Given the pre-

discharge medical evaluations that Mr. Strahler in fact received — and the

substantial evidence supporting the BCNR’s finding of fitness — it is also irrelevant

whether other medical evaluations were omitted. See Ferrell v. United States, 23 Cl.

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Ct. 562, 568 (1991) (explaining that failure to provide a PEB is harmless “unless it

can be shown that the purpose behind [DES processing] went unfulfilled”).

In short, even if Mr. Strahler’s discharge involved procedural errors, he still

would not be entitled to relief. All the procedural issues Mr. Strahler raises are

therefore harmless.13

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Judgment on the

Administrative Record is GRANTED and Mr. Strahler’s Cross-Motion is DENIED.

The case is DISMISSED.

The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Stephen S. Schwartz

STEPHEN S. SCHWARTZ

Judge

13Besides, most of the alleged procedural irregularities may not have been errors at all. For example,

the regulation Mr. Strahler cites for Dr. VanHook’s supposed duty to report malingering applies to

daily excuses from active duty, but it is not clear whether it applies to Mr. Strahler’s situation.

MANMED Art. 23-52 (Dec. 8, 1987). The record has no contemporaneous evidence that Mr. Strahler

ever objected to the length of his temporary limited duty, and he consented to being removed from

limited duty, affirming by signature a finding that he was “found fit for full duty.” AR 38. The

requirement for approval before return to active duty did not go into effect until after Mr. Strahler’s

discharge; at the relevant time, it permitted Dr. VanHook to return him to active duty. MANMED Art.

18-29(3)(f). Because any errors were harmless, I need not resolve those questions.

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