Nathan T. Meidl v. United States

In the United States Court of Federal Claims

No. 11-90C

Filed: January 25, 2013

TO BE PUBLISHED

************************************* 10 U.S.C. § 1201 (2006) (compensable

* disabilities);

* 10 U.S.C.A. § 1216a(b) (2012) (medical

NATHAN T. MEIDL, * conditions considered in disability

* determinations);

Plaintiff, * Army Regulation 635-40 (physical evaluation

* for separation);

v. * 38 C.F.R. § 4.3 (resolving reasonable doubt in

* disability ratings);

THE UNITED STATES, * 38 C.F.R. § 4.7 (choosing between two

* disability evaluations);

Defendant. * RCFC 52.1 (judgment on the administrative

* record);

* RCFC 52.2 (remanding to an administrative

* body).

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

Jason E. Perry, Cheshire, Connecticut, Counsel for Plaintiff.

Sheryl L. Floyd, United States Department of Justice, Civil Division, Washington, D.C.,

Counsel for Defendant.

Captain Rachel A. Landsee, United States Army Litigation Division, Of Counsel for

Defendant.

MEMORANDUM OPINION AND ORDER

I. RELEVANT FACTS. 1

On September 8, 1993, Nathan T. Meidl (“Plaintiff”) enlisted in the Army Reserve

Officers’ Training Corps (“Army ROTC”) program while attending the University of Wisconsin.

AR 209. On April 9, 1996, Plaintiff entered active duty in the United States Army. AR 99. On

April 30, 2000, he was appointed as a commissioned officer in the Active Guard Reserve

(“AGR”). AR 167.

1

The relevant facts are derived from the May 6, 2011 Administrative Record (“AR 1-

211”), as supplemented on July 8, 2011 (“SAR 1-16”), June 7, 2011 (“Pl. Ex. at 1-10”), and

February 27, 2012 (“Gov’t SR at A1-A38”), and discussed in large part in Meidl v. United States,

100 Fed. Cl. 1 (2011) (“Meidl I”).

In 2000, while serving in the AGR, Plaintiff began to experience bilateral foot pain that

was aggravated by prolonged standing and running. AR 10. In 2001, he was diagnosed with pes

planus. 2 Id. In early 2002, Plaintiff began to experience pain as a result of degenerative changes

to his left wrist. AR 3, 10.

On October 5, 2005, Plaintiff entered into active duty in Iraq as an Acquisitions Corps

Officer. AR 10, 95. In April 2006, while lifting weights, Plaintiff tore his left pectoralis major

and injured his shoulder, requiring surgery. AR 10, 95. As a result of these injuries, Plaintiff

had a limited range of motion and difficulty bearing more than five pounds of weight. AR 10.

On April 26, 2006, he was diagnosed with hypertension. AR 11.

In October 2008, Plaintiff again was deployed to Iraq for a temporary tour of duty. AR

10. After his return to the United States, in April 2009, Plaintiff’s pes planus was “graded as

severe, bilaterally with pronation, intolerance to weight bearing, extended standing, and extended

walking.” AR 10-11. In June 2009, Plaintiff began to develop bilateral plantar fasciitis 3 that

was painful when he wore military footwear. AR 11. In 2009, Plaintiff suffered a basketball

injury; his left Achilles tendon ruptured, requiring orthopedic surgery and resulting in residual

heel pain. AR 11. Thereafter, Plaintiff’s military physicians directed that he be evaluated for

physical disability by a Medical Evaluation Board (“MEB”). 4 AR 1.

On November 12, 2009, Plaintiff was examined at an orthopedic clinic in preparation for

evaluation by an MEB. 5 AR 1-3. The clinic examined Plaintiff’s left shoulder, his left ankle, a

surgical scar, and his left wrist. AR 2. The clinic concluded that Plaintiff’s left shoulder and

wrist pain did not meet Army retention standards, because they interfered with his ability to

perform military duties, but that Plaintiff’s left ankle pain met retention standards. AR 2. The

orthopedic clinic did not examine Plaintiff’s pes planus or plantar fasciitis. AR 28.

On February 26, 2010, Plaintiff’s Commander recommended that the Army not retain

Plaintiff due to his left shoulder injury, left wrist pain, bilateral pes planus, and bilateral plantar

2

Pes planus is the medical term for flatfoot. See DORLAND’S ILLUSTRATED MEDICAL

DICTIONARY at 1441 (31st ed. 2007) (“DORLAND’S”).

3

Plantar fasciitis refers to inflammation of the sole of the foot. See DORLAND’S at 692,

1476.

4

The Administrative Record does not contain a document reflecting the date of this

referral.

5

The Army may convene a medical evaluation “when a question arises as to the Soldier’s

ability to perform the duties of his or her office, grade, rank, or rating because of physical

disability.” Army Reg. 635-40 ¶¶ 4-6, 4-7, 4-8. A MEB is convened to “document a Soldier’s

medical status and duty limitations insofar as duty is affected by the Soldier’s status.” Army

Reg. 635-40 ¶¶ 4-10. If the MEB finds that a Soldier is not medically qualified for retention, a

referral is made to a Physical Evaluation Board. Id.

2

fasciitis, because Plaintiff could not perform his Military Occupational Specialty (“MOS”) as an

acquisition or logistics officer. AR 8.

On February 28, 2010, however, an MEB considered Plaintiff’s medical condition and

concluded that, due to the condition of his left shoulder and left wrist and his pes planus, and

plantar fasciitis, Plaintiff did not meet the Army’s retention standards, but his left Achilles

tendon rupture and hypertension met retention standards. AR 10-13. As a result, the MEB

recommended a referral to a Physical Evaluation Board (“PEB”) 6 for further evaluation. AR 13.

On March 9, 2010, before the PEB convened, Plaintiff was afforded an opportunity to

have the MEB’s findings reviewed by an impartial medical professional and to review the

MEB’s findings and submit any disagreement. AR 14. Plaintiff declined the opportunity for an

impartial medical evaluation and did not dispute the findings and recommendation of the MEB.

AR 15-17.

On March 25, 2010, the PEB considered Plaintiff’s medical records and determined that

his chronic shoulder and wrist pain rendered him unfit for service, at a twenty percent disability. 7

AR 19-20. The PEB, however, determined that the bilateral pes planus, bilateral plantar

fasciitis, left Achilles tendon rupture, and hypertension did not warrant a disability rating. AR

19. Consequently, the PEB recommended a discharge with severance pay at a twenty percent

disability rate. AR 20.

On March 31, 2010, after the PEB issued a determination, the orthopedic clinic also

issued an Addendum indicating that, although it had not examined Plaintiff’s bilateral pes planus

and plantar fasciitis, an examination by a podiatrist on April 13, 2009 found that these

conditions did not meet retention standards. AR 28.

On April 7, 2010, Plaintiff acknowledged that he was informed of his rights by the PEB

Liaison Officer. AR 27. Plaintiff was given three options: (1) accept the PEB preliminary

findings and waive his right to a formal hearing; (2) contest the preliminary findings and waive

his right to a formal hearing; and (3) contest the preliminary findings and demand a formal

hearing. AR 27. Plaintiff concurred with the PEB findings and waived a formal hearing of his

case. AR 27.

6

PEBs have authority to evaluate a Soldier’s physical disability based on the following

three factors: 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; and 3)

whether the disability meets the criteria established by law for compensation. See Army Reg.

635-40 ¶¶ 4-19(a)(1)-(3). If the PEB determines that a Soldier is unfit because of a physical

disability and is entitled to benefits, the PEB determines a percentage rating for each disability

rendering the Soldier unfit for duty. See Army Reg. 635-40 ¶ 4-19(i).

7

The Veterans Affairs Schedule for Rating Disabilities is used to determine disability

ratings. See Army Reg. 635-40 ¶ 4-19.

3

On June 27, 2010, Plaintiff was diagnosed with severe obstructive sleep apnea. Pl. Ex. at

6-7.

On July 13, 2010, Plaintiff was discharged from active duty in the Army with disability

severance pay, but did not receive medical retirement because his disability rating was less than

thirty percent and he had fewer than twenty years of service. AR 19, 30.

II. PROCEDURAL HISTORY.

On February 10, 2011, Plaintiff filed a Complaint (“Compl.”) in the United States Court

of Federal Claims alleging that he was denied disability retirement pay and benefits to which he

is entitled under 10 U.S.C. § 1201. Compl. ¶ 22. The Complaint also alleges that the PEB failed

to: rate his disabilities at an eighty percent level; provide an adequate MEB evaluation; and apply

applicable evidentiary standards. Compl. ¶ 22.

On May 6, 2011, the Government filed the Administrative Record and a Motion For

Judgment On The Administrative Record. On June 7, 2011, Plaintiff filed a Cross-Motion For

Judgment On The Administrative Record, together with attached Exhibits. On July 8, 2011, the

Government filed a Reply, together with a Supplemental Administrative Record.

On August 10, 2011, the United States Court of Federal Claims remanded the case to the

Army Board for Correction of Military Records (“ABCMR”) for further administrative action

pursuant to RCFC 52.2. 8 See Meidl I. Specifically, the court ordered the ABCMR to consider

the following issues: (1) whether Plaintiff’s separation from active duty complied with applicable

laws and policies; (2) whether Plaintiff had unfitting physical conditions in addition to shoulder

and wrist pain at the time of separation; and (3) whether Plaintiff’s disability rating was

appropriate. Id. at 8. The case was stayed during the remand. Id.

On October 24, 2011, the United States Army Physical Disability Agency (“USAPDA”)

issued an advisory opinion “[r]ecommending no change to the Plaintiff’s military records.”

Gov’t SR at A35-A38. On December 13, 2011, Plaintiff responded that the USAPDA factual

findings were incorrect and that the recommendation to deny relief was contrary to law and did

not address the injustices in the case. Gov’t SR at A18-A34.

On February 2, 2012, the ABCMR denied Plaintiff’s request for relief. Gov’t SR at A3-

A17. The ABCMR found: (1) Plaintiff’s separation from service complied with applicable laws

and policies; (2) Plaintiff properly was processed through the Army’s physical disability

evaluation system; (3) Plaintiff was provided an appropriate disability rating based on the

unfitting conditions identified by the PEB; and (4) Plaintiff’s rights were fully protected during

the separation process. Gov’t SR at A15-A17.

On May 18, 2012, Plaintiff filed a Supplemental Brief In Support Of Plaintiff’s Motion

For Judgment On The Administrative Record in the United States Court of Federal Claims (“Pl.

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The court, sua sponte, may “order the remand of appropriate matters to an

administrative or executive body or official.” RCFC 52.2(a).

4

Supp.”). On June 22, 2012, the Government filed a Supplemental Brief In Opposition To

Plaintiff’s Cross-Motion For Judgment On The Administrative Record And In Support Of

Defendant’s Motion For Judgment On The Administrative Record (“Gov’t Supp.”). On July 10,

2012, Plaintiff filed a Reply (“Pl. Reply”).

II. DISCUSSION.

A. Jurisdiction And Standing.

The jurisdiction of the United States Court of Federal Claims is established by the Tucker

Act. See 28 U.S.C. § 1491. The Tucker Act authorizes the court “to render judgment upon any

claim against the United States founded either upon the Constitution, or any Act of Congress or

any regulation of an executive department, or upon any express or implied contract with the

United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28

U.S.C. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional statute; it does not create any

substantive right enforceable against the United States for money damages. . . . [T]he Act merely

confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive

right exists.” United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must

identify and plead an independent contractual relationship, constitutional provision, federal

statute, or executive agency regulation that provides a substantive right to money damages. See

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (“The Tucker Act itself

does not create a substantive cause of action; in order to come within the jurisdictional reach and

the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that

creates the right to money damages.”). The burden of establishing jurisdiction falls upon the

plaintiff. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (holding that the burden is on

the plaintiff to allege facts sufficient to establish jurisdiction); see also RCFC 12(b)(1)

(establishing lack of subject matter jurisdiction as a defense).

In Meidl I, the court determined that the February 10, 2011 Complaint invoked the

jurisdiction of the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. §

1491(a)(1) as it challenged the determination of Plaintiff’s disability status under 10 U.S.C. §

1201. Compl. ¶ 2; see also Sawyer v. United States, 930 F.2d 1577, 1580-81 (Fed. Cir. 1991)

(holding that claims challenging disability status under 10 U.S.C. § 1201 may be adjudicated by

the United States Court of Federal Claims). In addition, although Plaintiff “voluntarily waived

judicial review of the informal PEB[,]” he retained the right to seek administrative review of the

informal PEB decision and judicial review of that administrative review. See Meidl I, 100 Fed.

Cl. at 8. The court remanded the case to the ABCMR. Id.

In addition, in Meidl I, the court determined that the February 10, 2011 Complaint

alleged that Plaintiff suffered an injury in fact that can be determined in a specific amount and is

traceable to the Army’s unlawful determination of disability retirement pay and benefits. Compl.

¶ 22; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81

(2000) (“[A] plaintiff must show [that] it has suffered an ‘injury in fact’ that is . . . concrete and

particularized and . . . actual or imminent, not conjectural or hypothetical; . . . the injury is fairly

traceable to the challenged action of the defendant; and . . . it is likely, as opposed to merely

5

speculative, that the injury will be redressed by a favorable decision.” (internal citations

omitted)).

B. Standard For Judgment On The Administrative Record, Pursuant To RCFC

52.1.

A motion for judgment on the administrative record, pursuant to RCFC 52.1, is akin to an

expedited trial on the record and has no counterpart in the Federal Rules of Civil Procedure. See

RCFC 52.1, Rules Committee Note (July 13, 2009); see also Bannum, Inc. v. United States, 404

F.3d 1346, 1356 (Fed. Cir. 2005) (“[T]he judgment on an administrative record is properly

understood as intending to provide for an expedited trial on the record.”). Accordingly, on a

motion for judgment on the administrative record, the court is required to determine whether the

plaintiff has met the burden of proof to show that the relevant federal agency decision was

without a rational basis or not in accordance with the law. Id. at 1348 (instructing the trial court

to make “factual findings under RCFC [52.1] from the [limited] record evidence as if it were

conducting a trial on the record”); see also Afghan Am. Army Servs. Corp. v. United States, 90

Fed. Cl. 341, 355 (2009) (“In reviewing cross-motions for judgment on the administrative

record, the court must determine ‘whether, given all the disputed and undisputed facts, a party

has met its burden of proof based on the evidence in the record.’” (citations omitted)). The

existence of a material issue of fact, however, does not prohibit the court from granting a motion

for judgment on the administrative record, nor is the court required to conduct an evidentiary

proceeding. See Bannum, 404 F.3d at 1353-54 (“RCFC [52.1] requires the [United States] Court

of Federal Claims, when making a prejudice analysis in the first instance, to make factual

findings from the record evidence as if it were conducting a trial on the record.”).

The United States Court of Federal Claims “reviews a [board for correction of military

records] decision to determine if it is arbitrary, capricious, contrary to law, or unsupported by

substantial evidence.” Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004). A plaintiff

must “show by cogent and clearly convincing evidence” that the board’s decision failed by at

least one of those standards. Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986).

The court now applies this standard of review to the ABCMR’s February 2, 2012 remand

decision.

C. Whether The Army Board For Correction Of Military Records’ Finding

Regarding Plaintiff’s Pes Planus And Plantar Fasciitis Was Contrary To

Law, Arbitrary, Capricious, Or Unsupported By Substantial Evidence.

Plaintiff asserts that the ABCMR decision violated 10 U.S.C. §§ 1201, 1216a; 38 C.F.R.

§§ 4.3, 4.7; and Army Reg. 635-40 ¶ 4-19 and was arbitrary and capricious. Pl. Supp. at 5-6.

Plaintiff asserts that the ABCMR was arbitrary and capricious in pointing to the

longstanding nature of Plaintiff’s foot conditions as evidence that they did not make him unfit for

service. Pl. Supp. at 5 (“There is no statutory or regulatory reason why the timing of these

disabilities . . . was a disqualifying factor for compensability.” (citing 10 U.S.C. § 1201 (2006)

(basing disability determinations on conditions “not noted at the time of the [service] member’s

entrance on active duty”) and Army Reg. 635-40 ¶ 4-19 (compensating disabilities “incurred or

6

aggravated while the Soldier was entitled to basic pay”))). The Government responds that

Plaintiff’s ability to continue performing his duties after his foot conditions were diagnosed

evidences that they did not render him unfit to serve. Gov’t Supp. at 8 (quoting Army Reg. 635-

40 ¶ 3-1 (“[I]t is necessary to compare the nature and degree of physical disability present with

the requirements of the duties the Soldier reasonably may be expected to perform because of

their office, grade, rank, or rating.”)). The ABCMR also quoted Army Reg. 635-40 ¶ 3-1 and, by

implication, applied it when noting Plaintiff’s “outstanding duty performance record over the

period he suffered from the conditions.” Gov’t SR at A13, A15. For these reasons, the court has

determined that the ABCMR’s consideration of the timing of Plaintiff’s disabilities was not

arbitrary or capricious.

Next, Plaintiff argues that “there is no statutory or regulatory requirement that a condition

be ‘aggressively treated with appropriate medication’ before being compensable.” Pl. Supp. at 5.

The Government does not challenge that assertion. Gov’t Supp. at 6-9. But, Plaintiff cites no

statute nor regulation that barred the PEB from considering the treatment of Plaintiff’s condition

as evidence of the condition’s impact on his fitness for duty. Pl. Supp. 3-6. For this reason, the

court also has determined that the ABCMR’s consideration of Plaintiff’s medical treatment was

not contrary to law.

Plaintiff also asserts that the ABCMR failed to consider evidence from Plaintiff’s

Commander as to the consequences of Plaintiff’s foot conditions. Pl. Supp. at 5-6. The record,

however, confirms that the ABCMR did consider that evidence:

Although the [C]ommander included these conditions in his statement regarding

the applicant’s fitness for duty, the limitation on the applicant’s duty performance

only became apparent with the progression of the left shoulder and wrist pain.

The medical evidence related to these conditions do [sic] not show his bilateral

foot pain disqualified the applicant from taking an alternate [Army Physical

Fitness Test] or rendered him unfit to perform his duties as a field grade

acquisition officer.

Gov’t SR at A15. Instead of failing to consider the evidence from Plaintiff’s Commander, the

ABCMR merely reached a conclusion with which Plaintiff disagreed, and that disagreement does

not establish that the ABCMR was arbitrary or capricious in its consideration of the

Commander’s statement.

Plaintiff adds that the ABCMR also failed to consider that the Veterans Affairs Schedule

for Rating Disabilities required a fifty percent disability rating for Plaintiff’s pes planus and

plantar fasciitis. Pl. Supp. at 6 (citing 38 C.F.R. § 4.3 (stating that doubt regarding a disability

should be resolved in favor of the claimant); 38 C.F.R. § 4.7 (“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.”); and AR 28 (Medical

Board Addendum recommending that, based on Plaintiff’s Apr. 13, 2009 podiatry evaluation, the

PEB consider Plaintiff’s foot conditions in evaluating him for a disability)). Because the

ABCMR concluded that Plaintiff’s foot conditions were not unfitting, the ABCMR had no

reason to address the appropriate disability rating for those conditions. See 10 U.S.C.A. §

1216a(b). For these reasons, the court has further determined that the ABCMR’s failure to

7

address the appropriate disability rating for Plaintiff’s foot conditions was neither arbitrary nor

capricious.

Section 1216a provides that disability ratings “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.” 10 U.S.C.A. § 1216a(b) (2012) (emphasis

added). Plaintiff argues that although the ABCMR concluded that his foot conditions alone did

not render him unfit for duty, it failed to consider whether his foot conditions contributed to

rendering him unfit for duty. Pl. Supp. at 6; Pl. Reply at 10. The Government does not counter

this argument; in fact, it replaces the words “whether individually or collectively” with an

ellipsis when it quotes from section 1216a(b). Gov’t Supp. at 8-9 (“[T]he statute provides that,

in making rating determinations, the military will ‘take into account all medical conditions . . .

that render the member unfit to perform the duties of the member’s office, grade, rank, or

rating.’”). The ABCMR Record of Proceedings supports Plaintiff’s contention. Gov’t SR at A3-

A17. The ABCMR reviewed “whether [Plaintiff] had unfitting physical conditions in addition to

the shoulder and wrist pain at the time of separation,” instead of whether Plaintiff had physical

conditions in addition to his shoulder and wrist pain that contributed to rendering him unfit for

service. Gov’t SR at A14; see also Gov’t SR at A15 (discussing whether Plaintiff “had other

unfitting physical conditions in addition to shoulder and wrist pain,” rather than whether other

conditions contributed to rendering Plaintiff unfit for service). The ABCMR’s review of the

PEB’s reasoning reflects this focus on whether the foot conditions, in isolation, were unfitting.

Gov’t SR at A15. The fact that the conditions were “long standing” and had not previously

rendered Plaintiff unfit for service (Gov’t SR at A15) had no bearing on whether they

contributed to his unfitness, once he incurred his shoulder and wrist injuries. Furthermore, the

ABCMR concluded that Plaintiff’s initial concurrence with the PEB’s findings “shows he

understood his unfitness was primarily related to his left shoulder and wrist pain.” Gov’t SR at

A15 (emphasis added). Section 1216a(b), however, does not limit disability ratings to the

primary cause of a soldier’s unfitness; it requires that disability ratings “take into account all

medical conditions, whether individually or collectively, that render the member unfit.” 10

U.S.C.A. § 1216a(b).

By failing to consider whether Plaintiff’s foot conditions contributed to rendering him

unfit, the ABCMR violated the applicable statute and acted arbitrarily and capriciously. See Ala.

Aircraft Indus. Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (“Courts

have found an agency's decision to be arbitrary and capricious when the agency ‘entirely failed

to consider an important aspect of the problem[.]’” (quoting Motor Vehicle Mfrs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).

D. Whether The Army Board For Correction Of Military Records’ Finding

Regarding Plaintiff’s Sleep Apnea Was Arbitrary, Capricious, Contrary To

Law, Or Unsupported By Substantial Evidence.

Plaintiff raises two arguments regarding his sleep apnea: it was unfitting at the time of

Plaintiff’s MEB and PEB and should have been rated then; or it became unfitting after Plaintiff’s

MEB and PEB, but before his separation from the Army, so that the MEB and PEB decisions

were legally insufficient. Pl. Supp. at 8 (citing Army Reg. 635-40 ¶ 2-8, requiring MEBs be

8

“complete, accurate, and fully documented”). The Government argues that “[i]t is evident from

the fact that Mr. Meidl did not raise any concerns about his sleep apnea before the MEB or the

PEB that this condition was not unfitting at the time of his separation from the Navy [sic].”

Gov’t Supp. at 11. But this is a non sequitur, because the MEB and PEB evaluations occurred

months before Plaintiff’s separation from the Army. AR 1-3 (stating that the orthopedic

evaluation for Plaintiff’s MEB occurred on Nov. 12, 2009); AR 16-17 (stating that Plaintiff’s

MEB proceedings were on Mar. 2, 2010); AR 19-20 (stating that the PEB considered Plaintiff’s

case on Mar. 25, 2010); AR 19, 30 (stating that Plaintiff was discharged on July 13, 2010). The

ABCMR addressed only whether Plaintiff’s sleep apnea was unfitting at the time of his MEB

and PEB evaluations. Gov’t SR at A16 (stating that the evidence available to the MEB and PEB

did not support the conclusion that Plaintiff’s sleep apnea was unfitting, and listing that

evidence). Although the ABCMR wrote that “the medical evidence related to this condition is

not sufficiently compelling to show this condition was unfitting at the time of his separation,”

the evidence cited for that proposition is that Plaintiff did not raise sleep apnea “before the MEB

or PEB . . . during the [Physical Disability Evaluation System] process.” Gov’t SR at A16

(emphasis added). The ABCMR report also fails to document any consideration given to the

possibility that Plaintiff’s condition became unfitting after the MEB and PEB but before his

separation from the Army. By failing to consider whether Plaintiff’s sleep apnea became

unfitting after the MEB and PEB evaluations but before his separation from the Army, the

ABCMR acted arbitrarily and capriciously. See Ala. Aircraft Indus. Inc.-Birmingham, 586 F.3d

at 1375 (“Courts have found an agency's decision to be arbitrary and capricious when the agency

‘entirely failed to consider an important aspect of the problem[.]’” (quoting Motor Vehicle Mfrs.

Ass’n, 463 U.S. at 43)).

III. CONCLUSION.

For these reasons, the court has determined that this case must be remanded to the

ABCMR for further administrative action, pursuant to RCFC 52.2. The case is stayed for the

duration of remand proceedings. The Government is directed to report to the court 90 days

hereafter as to on the status of the remand proceedings. The ABCMR is directed to provide the

court with a decision within 180 days.

On remand, the ABCMR is to consider the following issues: whether Plaintiff’s foot

conditions contributed to rendering him unfit; whether Plaintiff’s sleep apnea became unfitting

after the MEB and PEB proceedings, but before Plaintiff’s separation from the Army; and, in

light of its resolution of those two issues, whether, Plaintiff's disability rating was appropriate.

The ABCMR is directed to take any corrective action deemed appropriate based on its review

and to advise the court of the same.

IT IS SO ORDERED.

s/ Susan G. Braden

SUSAN G. BRADEN

Judge

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