The opinion
In the United States Court of Federal Claims
No. 20-204C
(Filed July 26, 2022)
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*
HAYWOOD ROYAL, * Motion for Judgement on the
* Administrative Record;
Plaintiff, * Instrumentality of War; Arbitrary
* and Capricious; Board for
v. * Correction of Naval Records;
* Combat Related Special Compensation
THE UNITED STATES, *
*
Defendant. *
*
* * * * * * * * * * * * * * * * * *
Opinion
FUTEY, Senior Judge
Plaintiff, Mr. Haywood Royal, filed this action before the Court after he was
denied Combat Related Special Compensation (CRCS) by the Board for Correction
of Naval Records(BCNR). Mr. Royal served in the US Navy from 1979 to 1990 as a
Cryptologic Technician. AR 001. Plaintiff alleges that as part of his service, in 1985,
he was ordered to stand guard in 12 hour shifts at a vault door that was being
reconstructed, exposing him to dust, fumes, and fibers from the construction. Id. He
was diagnosed with Sarcoidosis in 1989, and subsequently placed on Temporary
Disability Retirement in January 1990. Id. He was transferred to the Permanent
Disability Retirement List in 1994. Id. Plaintiff alleges that his Sarcoidosis was
caused by his exposure to the fumes and dust from the vault door. As a result, Mr.
Royal applied for combat related disability benefits and was denied.
On September 6, 2021, plaintiff filed a Motion for Judgement on the
Administrative Record in which he asks this Court to either overrule the decision of
the BCNR or remand for further consideration. ECF 26. The government had filed
the Administrative Record at that point and subsequently filed a Cross Motion for
Judgement on the Administrative Record on October 21, 2021. ECF 21 & 29.
In its Motion for Judgement on the Administrative Record, the government
argues that the decision of the Combat Related Special Compensation (CRSC)
Board to deny combat related disability benefits was supported by substantial
evidence and was not arbitrary or capricious. Id.
This matter is now ripe for disposition.
I. BACKGROUND
a. Factual Background
Mr. Royal joined the United States Navy on June 15, 1979. ECF 26 at 10. Mr.
Royal was assigned to RAF Mildenhall in England from 1983 and 1986. AR013.
While stationed there, plaintiff alleges that he was assigned to guard a vault, while
the vault was being reconstructed. AR013. Plaintiff also alleges that he was exposed
to fumes, dust, and fibers from the reconstruction of the vault door while standing
guard over the vault’s classified materials. Id.
Plaintiff produced chest x-rays from 1985 and 1986. ECF 26 at 16. 1985 chest
x-ray was normal, while the 1986 chest x-ray established that plaintiff had chronic
inflammatory granulomatosis. Id. Plaintiff was not diagnosed with sarcoidosis until
1989, which was at least two years after he left RAF Mildenhall permanently. AR
010. The BCNR thought that “creates uncertainty as to when his disability was
actually incurred and the specific events that may have caused it”. AR010.
Mr. Royal then served continuously until January 5, 1990 when the Naval
Department placed him on the temporary disability retirement list due to
sarcoidosis with a 30 percent rating. Id. He was moved to the permanent disability
list on October 1, 1994 with a 60 percent rating for bilateral lung damage. Id.
b. Procedural Background
Plaintiff filed an application for Combat Related Special Compensation
(CRSC) on November 15, 2018. ECF 26 at 10. The BCNR denied this claim in
December of 2018, finding that there was insufficient evidence that the lung
condition was caused by combat related events. AR 001. Plaintiff filed a request for
reconsideration, arguing that his time spent guarding the vault while the door was
being reconstructed qualified under the Instrumentality of War criteria. AR001. On
March 12, 2019, the CRSC denied the reconsideration request, concluding that
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while the construction of the vault door may have caused Mr. Royal’s lung
condition, the vault did not qualify as an Instrumentality of War.
Mr. Royal then sued in this Court on February 25, 2020. AR002. In April,
upon the government’s voluntary motion, the Court remanded the case to the
BCNR. Id. The BCNR was directed to:
(1) consider plaintiff ’s claim filed in this case and previously brought to the
Combat-Related Special Compensation (CRSC) Board, and in particular
address whether a vault is an instrumentality of war pursuant to Section
E3.P5.2.2.4 of DoDI 1332.38; address whether plaintiff ’s exposure to
fumes, dust, and fibers resulting from the reconstruction of a vault door
caused his medical conditions within the exception of Section E3.P5.2.2.4
of DoDI 1332.38; and address the CRSC Board’s statement that even
though “it is possible that exposure to dust and fibers from a vault may
have caused the service connected disabilities listed above, this does not
make the vault an instrumentality of war”;
(2) address any other issues, evidence, or arguments plaintiff submits in
writing to the BCNR within 45 days of this order; and
(3) determine and explain whether plaintiff is entitled to any relief, including
correction of records or pay, based upon any errors or injustices found.
Order to Remand, ECF 6. The BCNR again denied plaintiff’s claims. AR 005.
Plaintiff then filed an amended complaint and a motion for judgment on the
administrative record. ECF 20 & 26.
II. Discussion
a. Standard of Review
Once a plaintiff has sought relief from a military correction board, the board's
determination binds plaintiff unless he can demonstrate that the decision was
arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable
statutes and regulations. Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir.
2004); Koretsky v. United States, 57 Fed. Cl. 154, 158 (2003). A board's decision is
arbitrary and capricious “if the board fails to consider an important aspect of a
problem, offers an explanation for its decision that runs counter to the evidence
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before the board, or is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Van Cleave v. United States, 70 Fed. Cl.
674, 679 (2006). “When reviewing the decisions of the [reviewing board] under the
arbitrary and capricious standard, the scope of review is extremely narrow.”
Champagne v. United States, 35 Fed. Cl. 198, 208 (1996) (citing Bowman Transp.,
Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 (1974)).
This standard of review “does not require a reweighing of the evidence, but a
determination whether the conclusion being reviewed is supported by substantial
evidence.” Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983). The Court
does not serve as a “super correction board.” Skinner v. United States, 219 Ct. Cl.
322, 327, 594 F.2d 824 (1979). Therefore, “when substantial evidence supports a
board's action, and when that action is reasonable in light of all the evidence
presented, the court will not disturb the result.” Pope v. United States, 16 Cl. Ct.
637, 641 (1989). “When reasonable minds could reach differing conclusions in the
same instance, the court will not substitute its own judgment for that of the
military board.” Id. Under this standard, the Court's review is limited to the
administrative record before the BCNR. See Wyatt v. United States, 23 Cl. Ct. 314,
319 (1991).
Plaintiff acknowledges the arbitrary and capricious standard of review. He
then advocates for an additional standard of review which he calls the interest of
justice standard. He cites a variety of sources for this standard of review. 1 Plaintiff
admits that “In the CFC setting, the Interest of Justice Standard remains vague”.
ECF 26 at 20. Because the standard is vague and the plaintiff is not able to point to
any authority that allows the Court to apply it in this case, the Court will instead
follow the standard of review as stated above that is consistent with prior caselaw.
1 The citations include the United States Court of Federal Claims Patent
Rules, Marbury v. Madison, 5 U.S. 137, 164, 2 L. Ed. 60, 69 (1803), and St. Regis
Paper Co. v. United States, 368 U.S. 208, 229, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961)
(Black, J., dissenting)
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b. The BCNR’s Decision to Deny Disability Benefits Was
Supported by Substantial Evidence.
At the board, the burden of proof that a disability is combat-related rests
with the claimant. AR007; see DoD Directive 1332.41(3.2.3); AR 179. At this Court,
a plaintiff can only meet his considerable burden by presenting “cogent and clearly
convincing evidence” that the board’s decision was in error. Stuart, 123 Fed. Cl. at
421. As stated above, the case was remanded back to the BCNR by the Court and
instructed to consider specific issues. The board expressly made findings and stated
each factor that it was instructed to consider. AR002. The board then specifically
addressed each factor that it was to consider and provided its rationale based on the
evidence in the record. AR002-006.
For Mr. Royal to be eligible for the CRSC benefits he is seeking, his lung
damage must be a combat related disability. 10 U.S.C. § 1413a(c)(2). To qualify, the
disability must have occurred “(A) as a direct result of armed conflict; (B) while
engaged in hazardous service; (C) in the performance of duty under conditions
simulating war; or (D) through an instrumentality of war.” 10 U.S.C § 1413a(e)(2).
Plaintiff’s disability was not a result of armed conflict, while engaged in hazardous
service, or in the performance of duty under conditions simulating war. He alleges
that his injury was caused by an instrumentality of war, specifically the vault he
was guarding at RAF Mildenhall.
The Department of Defense has issued some guidelines about what qualifies
as an instrumentality of war. An instrumentality of war is:
A vehicle, vessel, or device designed primarily for Military Service and
intended for use in such Service at the time of the occurrence of the injury. It
may also be a vehicle, vessel, or device not designed primarily for Military
Service if use of or occurrence involving such a vehicle, vessel, or device
subjects the individual to a hazard peculiar to Military Service. This use or
occurrence differs from the use or occurrence under similar circumstances in
civilian pursuits. There must be direct causal relationship between the use of
the instrumentality of war and the disability, and the disability must be
incurred incident to a hazard or risk of the service.
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Department of Defense Instruction (DoDI) 1332.38, Section E2.1.17; AR190. The
DoD has further elaborated:
Incurrence during a war period is not required. A favorable
determination is made if the disability was incurred during any period of
service as a result of such diverse causes as wounds caused by a military
weapon, accidents involving a military combat vehicle, injury, or sickness
caused by fumes, gases, or explosion of military ordnance, vehicle, or
material. However, there must be a direct causal relationship between the
instrumentality of war and the disability. For example, an injury resulting
from a Service member falling on the deck of a ship while participating in a
sports activity would not normally be considered an injury caused by an
instrumentality of war (the ship) since the sports activity and not the ship
caused the fall. The exception occurs if the operation of the ship caused the
fall.
DoDI 1332.38, Section E3.P5.2.2.4; AR226. The CRSC board looked at these
guidelines and determined that the vault in question was not an instrumentality of
war. One thing they relied on was a DoD decision that burn pits were not an
instrumentality of war. AR 057. In that decision the DoD found that when lung
damage that was caused by fumes from a burn pit, the incinerated material would
have to be considered an instrumentality of war for the injury to be considered
caused by an instrumentality of war. Id. The burn pits themselves did not qualify as
instrumentalities of war. Id. The CRSC board analogized the burn pits to the vault
to argue that the fumes from the construction would only qualify as
instrumentalities of war if the vault itself was an instrumentality of war. Id.
Plaintiff makes two arguments. First, he claimed that under E3.P5.2.2.4, if
an object is designed primarily for a military purpose, then it should be classified as
an instrumentality of war. Plaintiff points to specific military specifications that
vaults must adhere to and argues that military vaults are therefore primarily
designed for military use. Second, he argues that a military vault could be used to
safeguard “arms, ammunition, and explosives” and therefore is unique from civilian
vaults. Pl. MJAR at 15.
As the BCNR pointed out, vaults are a common civilian structure and are not
uniquely military in nature. AR 019. The BCNR points to the CRSC board’s
determination that they are being used for the same purpose as a civilian safe, “i.e.
to safeguard valuable items from potential theft”. AR 010. The BCNR also points
out that the plaintiff has not proven that the reconstruction used construction
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standards and techniques specific to the military. Instead, the reconstruction of the
vault appeared to use standard civilian construction techniques. Id. Furthermore,
while plaintiff discusses at length the requirements and specifications of a GSA
Security Vault, there is no discussion of anything that distinguishes the military
vault from a civilian vault. Civilian vaults often protect sensitive information and
must meet rigorous requirements. While the information in the documents plaintiff
was guarding might be unique to the military, that is not enough to make the vault
an instrumentality of war. Finally, the GSA specifications are also not enough to
make a vault designed primarily for military purposes. As plaintiff admits, there
are GSA specifications for a wide variety of everyday items, including items as
commonplace as office chairs, and those would not qualify as an instrumentality of
war. ECF 26 n.30. 2
Plaintiff also argues that a military vault could hold “arms, ammunition, and
explosives” and therefore is unique to the military. Id. As plaintiff points out, “in
the military setting, an Armory Vault Door and Security Vault Door differs in both
use and GSA requirements.” Id. The Security Vault Doors are used to protect
classified documents, while the Armory Vault Door is used to protect “arms,
ammunition, and explosives.” The vault that Mr. Royal was guarding was therefore
a Security Vault Door, and the fact that Armory Vault Doors exist is irrelevant to
the case.
The record contains sufficient evidence to support the BCNR’s conclusions.
They considered and addressed every argument raised by plaintiff. They found that
a vault is not an instrumentality of war based on their reasonable interpretation of
the DoD guidelines and regulations. This finding precludes Mr. Royal from getting
the combat related disability benefits that he is seeking.
c. The BCNR’s Decision to Deny Disability Benefits Was Not
Arbitrary or Capricious.
2While the vault in this case does not qualify as an instrumentality of war, that
does not mean that no other vault could qualify as one. If a vault was made of
unique materials because of the military nature or if the reconstruction methods
were unique to the military, then a vault could qualify as an instrumentality of war.
The plaintiff would have the burden of proof and have to demonstrate that the vault
was distinguishable from a civilian vault. The plaintiff in this case has failed to do
so.
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A board's decision is arbitrary and capricious “if the board fails to consider an
important aspect of a problem, offers 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.” Van Cleave v.
United States, 70 Fed. Cl. 674, 679 (2006). Plaintiff alleges that the board was
arbitrary and capricious when it failed to rebut the medical evidence that plaintiff
offered.
Plaintiff provided the board with a clean chest x-ray from 1985, as well as a
chest x-ray from 1986 that showed chronic inflammatory granulomatosis. He was
then diagnosed with sarcoidosis in 1989. Plaintiff claims this “establishes plaintiff
was Stage 1 within 6 months post the exposure”. ECF 30 n. 16. As the government
points out, the same page of the record states that “[t]he relatively long term course
and the relative asymptomatic nature of the patient suggest a chronic process, . . .
rather than infectious or malignant.” AR090.
The CRSC board admitted “the possibility that [plaintiff’s] exposure to dust
and fibers from the vault reconstruction may have caused [plaintiff’s] service
connected disabilities.” AR 004. The advisory opinion pointed out that the gap
between the time of alleged exposure and the eventual diagnosis “creates
uncertainty as to when his disability was actually incurred and the specific events
that may have caused it.” AR010. The board concludes that this analysis is
irrelevant because the vault was not an instrumentality of war so even if the fumes
caused Mr. Royal’s injuries, it would not change the outcome of the case.
Plaintiff believes that his evidence has “established causation” and that the
BCNR has “failed to rebut” this evidence. ECF 30 at 18, 20. Plaintiff has the
burden of proof, however, and the BCNR does not have to rebut anything.
Furthermore, the advisory opinion did raise a point that potentially rebuts
plaintiff’s argument. The long time gap makes it difficult to say that plaintiff’s
evidence has proven causation. Finally, as the BCNR points out, even if Mr. Royal’s
illness was caused by exposure to the fumes from the reconstruction of the door, he
still is not entitled to the combat related benefits unless the vault door is an
instrumentality of war. As the board has found that it is not, the causation analysis
becomes irrelevant.
Plaintiff also argues that the BCNR failed to give a “full response” and
therefore, the “Record is not ready for review”. ECF 30 at 10. Plaintiff believes that
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the BCNR was arbitrary and capricious when it fails to rebut plaintiff’s response to
the advisory opinion. ECF 30, 20. The BCNR, however, considered plaintiff’s
additional briefing and added it to the chronology of relevant events with a
summary. AR 015. Plaintiff argues that the BCNR should have gotten another
advisory opinion to rebut his additional briefing. The BCNR addressed the
arguments he raised in this brief in its opinion, and plaintiff provides no statutory
or legal duty that requires the BCNR to get another advisory opinion. The fact that
the BCNR gave the plaintiff the last word was in fact a benefit to the plaintiff.
Since the plaintiff failed to provide cogent and compelling evidence that the
BCRN’s review was arbitrary or capricious, the plaintiff’s arguments fail. Precedent
says that “[w]hen reasonable minds could reach differing conclusions in the same
instance, the court will not substitute its own judgment for that of the military
board.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989). Here the BCNR acted
reasonably and considered all the evidence submitted. They laid out their rationale
and supported it with facts from the administrative record. As a result, the Court
will not overrule their findings.
III. Conclusion
For the above stated reasons, the following is hereby ordered:
1. Defendant’s Motion for Judgement on the Administrative Record is
Granted.
2. Plaintiff’s complaint is DISMISSED.
The Clerk is directed to enter judgement accordingly. No costs.
IT IS SO ORDERED.
s/ Bohdan Futey
Bohdan Futey
Senior Judge
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