Robert E. Pearl v. United States

United States Court of Federal Claims

No. 11-253 C

June 7, 2013

ROBERT E. PEARL,

RCFC 52.1; RCFC

Plaintiff, 12(b)(6); Military

disability pay; 10 U.S.C. §

v. 1201; 10 U.S.C. §1203;

Arbitrary and capricious;

UNITED STATES OF AMERICA, Substantial evidence

Defendant.

Aaron L. Parker and Christine E. Lehman, Finnegan, Henderson, Farabow, Garrett &

Dunner, L.L.P., Washington, DC, for plaintiff.

Michael D. Snyder, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, DC, for defendant.

OPINION and ORDER

Block, Judge.

Plaintiff was honorably discharged from the United States Army (“Army”) on April 30,

2005, with a 10 percent disability rating. This rating entitled him to severance pay under 10

U.S.C. § 1212. AR at 87, 991. The United States Army reviewed plaintiff’s rating

determination and affirmed it on February 15, 2011. Id. at 1-2. Plaintiff challenges this

determination alleging that the Army was arbitrary and capricious in its decision-making,

improperly rated his post-traumatic stress disorder (PTSD), and erred in finding that his PTSD

and back pain were not “combat-related.” Compl. at A-H. Plaintiff avers that his low PTSD

rating resulted in errant classification during his separation from the Army. He contends the

Army, to use the language of the statute, should have “retired” him pursuant to 10 U.S.C. § 1201,

rather than “separated” him pursuant to 10 U.S.C. § 1203. The result would have been “retired

pay” compensation under 10 U.S.C. § 1401 rather than less generous “severance pay” under §

1212.

Before this court are defendant’s motion to dismiss, see Rule 12(b)(6) of the Rules of the

United States Court of Federal Claims (“RCFC”), and the parties’ cross-motions for judgment on

the administrative record, see RCFC 52.1. As will be addressed, the motion to dismiss is based

on an apparent misunderstanding as to what claims plaintiff alleges in his complaint—a

misunderstanding that has subsequently been clarified by the parties. Consequently, the bulk of

this opinion will be devoted to the parties’ cross-motions for judgment on the administrative

record.

In adjudicating the cross-motions for judgment on the administrative record, it is

important to recall that this court is not conducting a de novo review. Walls v. United States, 582

F.3d 1358, 1367 (Fed. Cir. 2009). That is to say, the court will not make independent factual

assessments of medical evaluations or determine which party is right and which is wrong with

regard to the facts of the case. Those facts are provided in the administrative record. Rather,

pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1), the court will review the decisions of the

applicable government agencies, as found in the record, under the “arbitrary and capricious”

standard of review. 1 Walls, 582 F.3d at 1367-68. This standard respects agency expertise while

protecting the individual from despotic governmental conduct. To be sure, that is one of this

court’s roles – to serve as a check on irrational or arbitrary government conduct in military

medical disability cases. Under the standard, this court must find the Army’s decision was not

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

For the reasons stated below, defendant’s motion to dismiss is denied. Plaintiff’s motion

for judgment on the administrative record is denied, and, conversely, defendant’s motion is

granted.

I. THE ARMY PHYSICAL DISABILITY EVALUATION SYSTEM

The Secretary of the Army is authorized to retire or discharge with severance pay a

soldier who is unfit to perform his military duties because of physical disability. 10 U.S.C. §§

1201-22; Dep’t of the Army, Army Reg. 635-40, Physical Evaluation for Retention, Retirement,

or Separation ¶ 1-1. You might expect, given the many layers of bureaucracy in the modern

Army, that several layers of fact finders exist to determine a medical diagnosis—here a

disability. If so, you will not be disappointed.

The name for this bureaucracy is the Army Physical Disability Evaluation System

(“DES”) and it determines whether a particular soldier is physically unfit for duty. Army Reg.

635-40, ¶ 1-1. The DES consists of (1) a medical evaluation board (the ”MEB”), (2) a physical

evaluation board (the “PEB”), and (3) the United States Army Physical Disability Agency (the

“USAPDA”). Id. at ¶ 2-10. Moreover, after the DES process is complete, a service member

may seek review of a disability determination by the Physical Disability Board of Review (the

“PDBR” or “Board of Review”). 10 U.S.C. § 1554; U.S. Dep’t of Def., Instr. 6040.44, Lead

DoD Component for the Physical Disability Board of Review (PDBR) ¶ 4(a) (June 27, 2008).

The first step in the DES process is the medical evaluation board. The MEB is composed

of two or more physicians, one of whom is a senior medical officer. Dep’t of the Army, Army

Reg. 40-400, Patient Administration ¶ 7-3 (2010). These physicians document soldiers’

1

See Administrative Procedure Act (the “APA”), 5 U.S.C. § 706. The Supreme Court has called

this standard of review “narrow.” F.C.C. v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1810

(2009) (“[A] court is not to substitute its judgment for that of the agency and should uphold a

decision of less than ideal clarity if the agency’s path may reasonably be discerned.”) (internal

quotations omitted). Although the APA explicitly cited only in the portion of the Tucker Act

pursuant to which this court exercises jurisdiction in bid protests, see 28 U.S.C. § 1491(b)(4), “it

has become well established that judicial review of decisions of military corrections boards is

conducted under the APA” standard of review. Walls, 582 F.3d at 1367 (citing Brown v. United

States, 184 Ct. Cl. 501 (1968)).

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“medical status[es] and duty limitations.” Id. at ¶ 7-1. They also compile an extensive case file

on each soldier for use throughout the DES process. Id. at ¶ 7-9, 7-11. If a soldier is found unfit,

the MEB will refer him to the next level of bureaucracy—the physical evaluation board. Army

Reg. 635-40, ¶ 4-10.

The PEB is a three-member panel of “experienced officers who have been trained on

adjudication standards and procedures.” Id. at ¶ 4-17(b). These officers investigate the soldier’s

disability and evaluate it against the physical requirements of the soldier’s duties. Id. at ¶ 4-

17(a). Using this information, the PEB establishes “the eligibility of a [s]oldier to be separated

or retired because of physical disability.” Id. at ¶ 4-17(a)(4). If the PEB determines that the

soldier is unfit for duty because of his physical disability, the PEB then rates the soldier’s

disability using a modified version of the Department of Veterans Affairs Schedule for Rating

Disabilities (the “ratings schedule”). Id. at ¶ 4-19(i).

The ratings schedule assigns particular conditions or categories of conditions a disability

rating. These ratings range from 10 percent to 100 percent in multiples of ten. Schedule of

Ratings – Neurological Conditions and Convulsive Disorders, 38 C.F.R. § 4.124a. A soldier

with a rating of at least 30 percent is eligible for “retirement” under 10 U.S.C. § 1201 and

“retired pay” under 10 U.S.C. § 1401. A soldier with a rating of less than 30 percent is eligible

for “separation” under 10 U.S.C. § 1203 and “severance pay” under 10 U.S.C. § 1212. These

classifications have significant pecuniary consequences.

The PEB also determines whether the soldier’s disability is “combat-related” under 26

U.S.C. § 104. Army Reg. 635-40, ¶ 4-19(k)(2)(b). This classification entitles soldiers to exclude

some compensation from their gross income for federal tax purposes. An injury is considered

combat-related if it “is incurred as a direct result of armed conflict, while engaged in

extrahazardous service, or under conditions simulating war, or . . . is caused by an

instrumentality of war.” 26 U.S.C. § 104; see also Army Reg. 635-40, ¶ 4-19(k)(2). Because a

combat-related injury is denoted in Blocks 10 A and C of the form detailing the PEB’s

proceedings, it is referred to as a “10 A/C characterization.”

The PEB operates in two stages, informal and formal. First, the informal PEB examines

the case file and obtains additional evidence if necessary. Army Reg. 635-40, ¶ 4-20(a). These

informal procedures ensure rapid processing and “reduce the overall time required to process a

case through the disability evaluation system.” Id. After ensuring the case file is complete and

correct, the informal PEB determines the soldier’s fitness. Id. If the soldier disagrees with the

informal PEB’s decision, the process moves to the second stage -- review by a formal PEB. Id.

at ¶ 4-21(a). Formal PEB adjudication more closely resembles a traditional court case. The

soldier is entitled to an attorney and he can present new evidence, including witness testimony,

which the formal PEB must consider when determining fitness. Id. at ¶ 4-21(a)-(b).

If the soldier disagrees with the formal PEB’s decision, he can submit a statement of

rebuttal to the United States Physical Disability Agency, or, as the court abbreviated above, the

USAPDA. Id. at ¶ 4-22(a)(3). The USAPDA determines whether the findings and

recommendations of both the MEB and the PEB were “just, equitable, consistent with the facts,

and in keeping with the provisions of law and regulations.” Id. at ¶ 4-22(b)(3). The USAPDA

confines this analysis to the case records and proceedings, as well as related evidence. Id. at ¶ 4-

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22(b). After reviewing the case, the USAPDA can concur with or remand to the PEB, issue its

own findings and recommendations, or refer the case to a higher review board. Id. at ¶ 4-22(c).

A soldier with a combined disability rating of 20 percent or less who is not found eligible

for retirement can then appeal the findings of the USAPDA to the Board of Review. Instr.

6040.44, Enclosure 3 ¶¶ 1-2. The Board of Review was established in 2008 to “reassess the

accuracy and fairness of the combined disability ratings assigned Service members . . . and to

recommend corrections where discrepancies and errors in such ratings exist.” Id. at Enclosure 3

¶ 1; see also 10 U.S.C. § 1554. The Board of Review uses the complete case record as well as

any new evidence the parties present to review the soldier’s disability rating. Instr. 6040.44, at

Enclosure 3 ¶ 5(a), (d). Depending on its findings, the Board of Review recommends that the

Secretary of the Army either affirm or modify the soldier’s disability rating. Id. at Enclosure 3

¶¶ 4(e), 5(g).

With this multifaceted and somewhat convoluted administrative framework in mind, the

court turns to the facts of this case, including the timeline of plaintiff’s reported medical

conditions.

II. FACTUAL BACKGROUND

Plaintiff, then a sergeant major in the United States Army, was deployed to Kuwait in

2003 as part of Operation Enduring Freedom. AR at 4, 193-94. During his deployment, on May

15, 2003, plaintiff reported chest and back pain to his camp’s medical clinic. Id. at 461-62. The

doctors suspected he might have shingles, and plaintiff was evacuated to Landstuhl, Germany,

and then to the United States. Id. at 4; 380; 443.

On June 25, 2003, plaintiff underwent a medical evaluation at the Behavioral Science

Department at Fort McPherson, Georgia. In that evaluation, plaintiff indicated he did not think

he had any combat-related emotional problems. Id. at 1007. On July 27, 2003, he underwent a

mental health intake review. Id. at 1003. Both plaintiff and the counselor conducting the review,

Gary D. Cabbage, thought plaintiff handled combat well and plaintiff was not diagnosed with

any mental problems. Id. at 1003-04. Plaintiff also told Mr. Cabbage that his marriage and

home life were doing well. Id. at 1003.

On November 19, 2003, then about half a year after he returned to the United States,

plaintiff told a patient administrator at Fort McPherson that he injured his back jumping off a

wall in a firefight on or about May 5, 2003. Id. at 134. While clinical notes from July and

September 2003 mention a firefight, this was the first time the reference appeared in an official

statement. Id. at 134; 378-79.

On December 1, 2003, plaintiff met again with Mr. Cabbage. Id. at 1001-02. Plaintiff

revealed he and his wife separated in October and a divorce was pending. Id. at 1001. Mr.

Cabbage noted that plaintiff was severely depressed, intensely angry about his divorce, and

concerned about his future in the Army. Id. at 1001-02.

On January 7, 2004, plaintiff was reassigned to a transportation unit at Fort Rucken,

Alabama. Id. at 191. Shortly before this time, he began seeing a clinical psychologist, Dr. Jerry

M. Bynum, at a Veterans Affairs Mental Health Clinic. Id. at 523. Dr. Bynum reported that

plaintiff suffered from insomnia, irritability, depression, and poor frustration tolerance. Id. at

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523. While Dr. Bynum initially diagnosed plaintiff with “Depression NOS 2 and Acute Stress

Disorder,” the diagnosis was later changed to post traumatic stress disorder, or PTSD. Id. at 523.

Plaintiff was evaluated by a medical evaluation board for back pain on July 6, 2004. Id.

at 129-30. The MEB diagnosed him with thoracic back pain and recommended that his case be

forwarded to a physical evaluation board to determine fitness for duty. Id.

On August 23, 2004, plaintiff’s commanding officer (“CO”) submitted an evaluation to

the PEB. Id. at 110-11. He reported that plaintiff’s back pain prevented him “from carrying

common equipment required of an Infantry soldier,” performing industrial tasks, and sometimes

resulted in plaintiff leaving work early. Id. at 110. The CO also stated that plaintiff “suffered

from post operational stress.” Id. Even with these limitations, the CO found that plaintiff’s duty

performance was excellent, that he helped others within the unit, and that he “volunteered his

leadership and mentorship to the local ROTC program.” Id.

On October 29, 2004, plaintiff underwent a physical profile conducted by profiling

officers at his medical treatment facility. Dep’t of the Army, Army Reg. 40-501, Standards of

Medical Fitness ¶ 7-6 (2008). A physical profile indicates overall functional capacity. Id. at ¶ 7-

3(b). The profile considers six factors in the following order: physical capacity, upper

extremities, lower extremities, hearing and ears, eyes, and psychiatric. Id. at 7-3(c). Each factor

is given a rating between 1 and 4, with “1” representing a high level of medical fitness, and “4”

representing “one or more medical conditions or physical defects of such severity that

performance of military duty must be drastically limited.” Id. at ¶ 7-3(d). The required physical

profile for the initial award of plaintiff’s grade and rank is 222221, Pamphlet 611-21, ¶ 10-

45(b)(2)—the “1” required for psychiatric fitness. Plaintiff’s physical profile at the time of the

exam was 131113. AR at 112. The physical profile also indicated plaintiff was not able to carry

a weapon due to the “3” plaintiff received on the psychiatric component. Id.

On November 19, 2004, the informal physical evaluation board found plaintiff 20 percent

disabled, assigning 10 percent disability ratings to both his thoracic back pain and PTSD. Id. at

101-02. Disagreeing with this decision, plaintiff requested a formal PEB, which reviewed

plaintiff’s case on January 28, 2005, reevaluating “all available medical records and sworn

testimony by [plaintiff].” Id. at 87. The formal PEB determined that plaintiff’s thoracic back

was his only unfitting disability and assigned it a 10 percent rating. Id. at 87-88. Further,

disagreeing with the informal PEB, see id. at 101, the formal PEB found this disability was not

combat-related, as the combat relationship was “tenuous at best” and “independent verification”

was required. Id. at 87.

The formal PEB forwarded the case to the United States Army Physical Disability

Agency, id. at 17, which affirmed the PEB’s findings and recommendations on March 9, 2005,

id. at 14. On April 30, 2005, plaintiff was honorably discharged from active duty. Id. at 991.

Plaintiff applied to the Physical Disability Board of Review for review of the USAPDA’s

decision on September 11, 2009. Id. at 984-85. The Board of Review examined the record

compiled by the first three bodies--the MEB, the PEB, and the USAPDA. Id. at 4-8. It gave

special attention to plaintiff’s physical profile and weapons restriction, but found that they were

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Not otherwise specified.

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not determinative of plaintiff’s fitness for duty. Id. at 5. The Board of Review also found there

was no firsthand evidence to corroborate or refute the combat-relation of plaintiff’s disabilities.

No documents substantiating plaintiff’s combat action, such as Purple Heart awards given to

soldiers injured in combat, were listed. Id. at 6. This led the Board of Review to “doubt” the

history and severity of plaintiff’s PTSD. Id. at 6. Considering this and other evidence in the

record, the Board of Review determined plaintiff’s PTSD did not render him unfit for service.

Id. Overall, the Board of Review recommended no change in plaintiff’s disability and separation

determination. Id. at 7. The Secretary of the Army affirmed this decision on February 15, 2011,

thus exhausting the administrative review to which plaintiff was entitled.

Plaintiff filed his complaint in the Court of Federal Claims on April 28, 2011. He alleges

four errors: (1) that the informal PEB improperly rated his PTSD disability; (2) that the formal

PEB’s decision was arbitrary and capricious in finding that plaintiff’s PTSD did not render him

unfit and that his injuries were not combat-related; (3) that the USAPDA erred in upholding the

formal PEB; and (4) that the Board of Review erred in not reversing the lower boards. Compl.

¶¶ A-D.

Based on these errors, plaintiff requests declaratory relief entitling him to a 50 percent

rating for his PTSD and recognition that his injuries were combat-related. Compl. ¶¶ E, F. He

also requests monetary relief in the form of retroactive and prospective retirement benefits called

“combat-related special compensation” (“CRSC”) and medical expenses. Compl. ¶¶ F, G, H.

Finally, plaintiff requests that the court order defendant to pay the costs of this action, including

reasonable attorney fees, and that the court order such other relief as it deems just and proper.

Compl. ¶¶ F, G.

In their cross-motions and subsequent filings, the parties raise three issues. First,

defendant argues that plaintiff fails to state a claim insofar as plaintiff alleges errors by

administrative bodies other than the Board of Review. Plaintiff argues in response that it

challenges the Board of Review’s reliance on and endorsement of the decisions of those lower

administrative bodies, not the decisions themselves. Second, defendant argues that plaintiff

waived certain arguments about the findings of the formal PEB and PDA by failing to raise them

before the Board of Review. In essence, plaintiff counters this waiver argument, contending that

the Board of Review did consider and evaluate those findings. Third, the parties disagree as to

whether the Board of Review acted irrationally by finding that plaintiff was (1) not entitled to a

10 A/C characterization for a combat-related injury and (2) not rendered unfit for service by

virtue of his PTSD.

In reviewing this case, however, the court determined that there was a serious question as

to its jurisdiction to rule on whether plaintiff had suffered a combat-related injury entitling him

to a 10 A/C characterization. As explained more fully below, it was unclear to the court whether

the 10 A/C characterization, and the determination of whether plaintiff suffered a “combat-

related injury,” was incidental or collateral to the award of some form of monetary relief as

required by 28 U.S.C. § 1491(a)(2). Accordingly, in a letter to the parties the court asked for

supplemental briefing. The parties subsequently responded—defendant taking the position that

the court has no jurisdiction to rule on the denial of the 10 A/C characterization, and plaintiff

taking the position that the court does have such jurisdiction.

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From all this, four issues emerge that the court must now decide. First, the court must

consider whether it has jurisdiction to consider the issues plaintiff raises, including whether

plaintiff should have been awarded a 10 A/C tax break for a “combat-related injury.” Second, if

the court has jurisdiction, it must consider whether plaintiff fails to state a claim by challenging

the decisions of the administrative bodies who reviewed plaintiff’s case before the Board of

Review. Third, if plaintiff has stated claims upon which relief may be granted, the court must

decide whether to consider some of plaintiff’s arguments as waived for failure to raise them

before the Board of Review. Fourth, and finally, assuming plaintiff has any claims left after

clearing these hurdles, the court must determine whether the Board of Review’s decision was

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

III. DISCUSSION

A. Jurisdiction

As an initial matter, the court must consider whether it has jurisdiction to decide

plaintiff’s claims.

Pursuant to the Tucker Act, this court has jurisdiction over claims against the United

States founded on a money-mandating source of law. 28 U.S.C. § 1491(a)(1); Fisher v. United

States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc). In addition, “[t]o provide an entire

remedy and to complete the relief afforded by the judgment, the court may, as an incident of and

collateral to any such judgment, issue orders directing . . . correction of applicable records.” 28

U.S.C. § 1491(a)(2). Together, these provisions confer jurisdiction to award money damages

and equitable relief that is “an incident of and collateral to” the award for money damages. See

Gonzales & Gonzales Bonds and Ins. Agency, Inc. v. Dept. of Homeland Sec., 490 F.3d 940, 943

n.3 (Fed. Cir. 2007) (“While limited equitable relief is sometimes available in Tucker Act suits,

the equitable relief must be incidental and collateral to a claim for money damages.”) (quoting

Bobula v. U.S. Dep’t of Justice, 970 F.2d 854, 858-59 (Fed. Cir. 1992)).

Accordingly, this court clearly has jurisdiction both to award “retired pay” under 10

U.S.C. § 1201, see Fisher, 402 F.3d at 1174-75, and to order the military to place a service

member in the proper “retirement status.” Haskins v. United States, 51 Fed. Cl. 818, 823 (2002);

cf. Smith v. Secretary of Army, 384 F.3d 1288, 1293 (Fed. Cir. 2004) (noting that “the Court of

Federal Claims can offer a service member . . . an adequate remedy for a claim relating to

military status . . . if the . . . claim constitutes a request for money (together with a request for

ancillary equitable relief) and if the request is based on a money-mandating statute”); Mitchell v.

United States, 930 F.2d 893, 896 (Fed. Cir. 1991) (permitting equitable relief necessary to

complete the remedy). Because the “retirement status” of the service member is incidental to the

amount of “retired pay” he is entitled to receive under 10 U.S.C. § 1201, et. al., correcting that

“retirement status” is within this court’s power to grant equitable relief. See Haskins, 51 Fed. Cl.

at 822. Thus, insofar as plaintiff requests that this court correct his “retirement status” along

with awarding him “retired pay,” this court plainly has jurisdiction over his claim.

But the court does not have jurisdiction to review the Army’s decision to award plaintiff

a “10 A/C characterization” for a “combat-related injury.” As plaintiff acknowledges, that form

of equitable relief is not collateral or incidental to the “retired pay” authorized by 10 U.S.C. §

1201, which says nothing about “combat-related injuries.” Instead, plaintiff originally alleged in

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its complaint that a 10 A/C characterization for “combat-related injury” is collateral or incidental

to plaintiff’s right to receive combat-related special compensation under 10 U.S.C. § 1413a.

Plaintiff now admits, however, that a 10 A/C characterization for “combat-related injury”

is irrelevant to plaintiff’s alleged right to received CRSC. See Pl.’s Letter of April 27, 2012.

Indeed, there is no basis either in the statute or in Army regulations for concluding that the 10

A/C characterization has anything to do with plaintiff’s entitlement to CRSC under § 1413a.

Rather, as the parties now both agree, there is one thing—and one thing only—that a 10

A/C characterization for “combat-related injury” concerns: taxes. Persons with these injuries

may take advantage of favorable tax treatment, pursuant to of 26 U.S.C. (I.R.C.) § 104. This

limited significance of 10 A/C characterizations is made abundantly clear in the Army regulation

authorizing the physical evaluation board’s determination of whether a member is entitled to one.

See Army Reg. 635-40, ¶ 4-19(k)(2)(b) (“In block 10C, the board will record its determination of

whether the injury was combat-related as defined by 26 U[.]S[.]C[.] [§] 104.”) (emphasis

added). To be sure, there is no authority for the PEB to make a determination on the non-tax

issue of combat-related special compensation.

In a letter to the court, plaintiff concedes these points and proposes a novel legal theory --

that the court should “constru[e] 26 U.S.C. § 104 as a money mandating statute.” Accordingly,

plaintiff contends that the court could use the statute as a springboard to consider the Army’s

denial of a 10 A/C characterization. However, this is not an appropriate juncture for novel legal

theories.

Plaintiff’s request is inappropriate because it re-writes his complaint. In his complaint,

plaintiff requests “retired pay” and CRSC—not favorable tax treatment. Compl. at 14. Because

a supplemental brief is not the proper vehicle for amending a complaint, the court will not

consider § 104 as a basis for jurisdiction. See, e.g., The Redland Co., Inc. v. United States, 97

Fed. Cl. 736, 756 (2011) (declining to consider a breach of contract claim first raised in a motion

for summary judgment when the plaintiff did not amend its complaint); see RCFC 15(a) (setting

forth procedures for amending a complaint). Plaintiff did not amend his complaint within the

time required by this court’s rules and the court is not at liberty to pretend plaintiff’s complaint

requests a remedy that it plainly does not.

The court is left without any jurisdictional basis for considering the Army’s denial of a 10

A/C characterization. Lacking jurisdiction to consider that issue, the court will now proceed to

consider plaintiff’s claim for “retired pay” and for correction of his “retirement status.”

B. Motion to Dismiss

To the extent plaintiff clears the jurisdictional hurdle, defendant moves to dismiss

plaintiff’s challenges of the medical evaluation board’s, the physical evaluation boards’, and the

USAPDAs’ decisions for failure to state a claim. See RCFC 12(b); Def.’s Mot. at 9-12. Under

RCFC 12(b)(6), this court must dismiss a claim “when the facts asserted by the claimant do not

entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002).

Defendant’s argument is based on the rule that a plaintiff in this court may properly

challenge only the decision of the highest administrative body to review that plaintiff’s case. See

Van Cleave v. United States, 66 Fed. Cl. 133, 135-36 (2005). Decisions of lower administrative

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bodies are not reviewable. Id. Plaintiff does not dispute this rule, but argues that, in reviewing

the decision of the highest administrative body (here, the Board of Review), the court may

consider whether that decision was based on arbitrary and capricious decisions of lower bodies,

see Fisher v. United States, 72 Fed. Cl. 88, 95 (2006), at least if those arguments were not

waived, see infra Part III-C. In reply, defendant indicates that it agrees. See Def.’s Reply at 3

(“[I]t appears that the parties agree that each of the decisions of the preceding boards are to be

considered as relevant to the [Board of Review’s] review, but are not an independent premise for

a cause of action.”).

Given that plaintiff has disavowed any claim directly challenging the decisions of lower

administrative bodies, the court does not construe plaintiff’s complaint as containing such

claims. Rather, plaintiff is challenging the decision of the Board of Review, asking this court to

review decisions of lower bodies only to the extent they are reflected in the Board of Review’s

decision. Defendant does not argue that such a challenge must be dismissed for failure to state a

claim. Accordingly, the court will deny defendant’s motion to dismiss.

C. Waiver

Defendant thereafter argues that plaintiff waived any argument that the formal PEB or

PDA decisions were arbitrary and capricious because plaintiff did not challenge those decisions

before the Board of Review. The court does not agree.

Although issues not raised before the administrative body whose decision is being

challenged are ordinarily deemed waived, see, e.g., Van Cleave v. United States, 402 F.3d 1341,

1344 (Fed. Cir. 2005); Maier v. Orr, 754 F.2d 973, 984 (Fed. Cir. 1985), the rationale for that

rule is that the agency whose actions are being challenged should have a chance to correct any

errors during its administrative adjudicatory process. United States v. L.A. Tucker Truck Lines,

344 U.S. 33, 37 (1952); Gant v. United States, 417 F.3d 1328, 1332 (Fed. Cir. 2005). However,

this rule does not apply when the administrative body whose decision is being challenged

addressed an issue sua sponte. The mere fact that the issue before the administrative body was

not raised by the parties does not put the issue beyond this court’s review. See Lebron v.

National R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (“[E]ven if this were a claim not raised

by petitioner below, we would ordinarily feel free to address it, since it was addressed by the

court below.”); Arobelidize v. Holder, 653 F.3d 513, 517 (7th Cir. 2011) (“When [an

administrative immigration board] addresses an issue on its own . . . it . . . makes little sense to

deem an issue not raised by the parties unreviewable.”). 3

Here, the Board of Review considered and addressed the findings of both the formal PEB

and the USAPDA. For instance, it discussed the basis for the formal PEB determination that

3

The cases defendant cites are not to the contrary. In Metz v. United States, 466 F.3d 991 (Fed.

Cir. 2006), the Federal Circuit held that plaintiff’s failure to raise an issue before a military

corrections board was waived, but crucial to the court’s decision was the fact that the failure to

raise the issue caused the board to “completely bypass[]” it. Id. at 998-99. Likewise, in Conant

v. Office of Personnel Mgmt., 255 F.3d 1371 (Fed. Cir. 2001), the Federal Circuit described the

purpose of requiring a litigant to raise issues before an administrative board as being “to make

the tribunal aware of the issue.” Id. at 1375. Where the tribunal is aware of the issue and

addresses it sua sponte, the failure of a party to raise it is of no consequence.

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plaintiff’s PTSD did not render him unfit, noting that the formal PEB had found plaintiff’s

symptoms more consistent with depression and anxiety than PTSD. Moreover, the Board of

Review also discussed the findings of the USAPDA, necessarily sustaining that body’s decision

to uphold the findings of the formal PEB. In light of the Board of Review’s consideration of

these issues, the court concludes that none of plaintiff’s challenges have been waived.

D. Cross-motions for Judgment on the Administrative Record

The far more significant and, at times, vexing issue is whether the Board of Review acted

arbitrarily, capriciously, or without substantial evidence in finding that plaintiff was not rendered

unfit for service by PTSD. The parties raised this issue in their cross-motions for judgment on

the administrative record.

In considering these cross-motions, this 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.” A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum,

Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)). Genuine issues of material fact will

neither preclude a judgment on the administrative record nor require evidentiary proceedings.

Johnson v. United States, 97 Fed. Cl. 267, 270 (2011). The resolution of these cross-motions is

“akin to an expedited trial on the paper record.” L-3 Global Commc’ns Solutions, Inc. v. United

States, 82 Fed. Cl. 604, 608 (2008).

In seeking review of the Army’s action, plaintiff’s burden is a large one. This court is not

a “super correction board” responsible for determining which service members are fit to serve.

Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983); Skinner v. United States, 594 F.2d

824, 830 (Ct. Cl. 1979). The military makes this determination, and its administrators are

presumed to have properly discharged their official duties absent clear evidence to the contrary.

See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). Therefore, this court will review

the Army’s decision with a deferential eye and set it aside only if plaintiff can establish the

decision was “arbitrary, capricious, unsupported by substantial evidence, or contrary to law.”

Metz, 466 F.3d at 998 (quoting Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998));

Stine v. United States, 92 Fed. Cl. 776, 791 (2010). Plaintiff must meet this burden with “cogent

and clearly convincing evidence.” Dorl v. United States, 200 Ct. Cl. 626, 633 (1973). Thus,

plaintiff faces, if not a “triple whammy” of deference, see Overstreet Elec. Co., Inc. v. United

States, 59 Fed. Cl. 99, 117 (2003), at least a double whammy: there must be cogent and clearly

convincing evidence that the Army’s decision was arbitrary, capricious, unsupported by

substantial evidence, or contrary to law.

Moreover, this court’s review “does not require a reweighing of the evidence, but a

determination whether the conclusion being reviewed is supported by substantial evidence.”

Heisig, 719 F.2d at 1157. “Substantial evidence” is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB,

305 U.S. 197, 229 (1938). To prevail in this case, plaintiff must “demonstrate that evidence was

ignored or unreasonably construed.” Haskins, 51 Fed. Cl. at 828 (citing Thomas v. United

States, 47 Fed. Cl. 560, 569 (2000)).

In this case, the court will review the decision of the Board of Review that plaintiff was

not rendered unfit for his duties by virtue of PTSD. This court must evaluate that decision in

light of the Board of Review’s specific task: to apply a “fair and equitable” standard of review to

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the determinations of lower administrative bodies regarding whether a medical impairment

amounts to a physical disability. To do this, the board must ascertain whether a service

member’s injuries are “of such a nature and degree of severity as to interfere with the Service

member’s or former Service member’s ability to adequately perform his or her duties.” 4 DoDI

6040.44, Glossary.

There is no dispute that the duties against which plaintiff’s fitness must be measured are

those of an infantry senior sergeant. The Department of the Army Pamphlet describes the “major

duties” of an infantry senior sergeant as including primarily supervisory, advisory, and planning

responsibilities. For instance, an infantry senior sergeant “provides leadership, tactical and

technical guidance and professional support to subordinates,” “makes recommendations to

superiors,” “supervise[s] the processing of operations and intelligence information,” “plans,

coordinates, and supervises activities pertaining to organization, training, and combat

operations,” “edit[s] and prepare[s] tactical plans, training materials,” and “coordinate[s]

implementation of operations, training programs, and communications activities.” Pamphlet

600-25, ¶ 4-10(a) (emphasis added); see also Pamphlet 611-21, ¶ 10-45(a).

In light of these duties, the court does not agree with plaintiff that PTSD rendered

plaintiff unfit because it prevented him from carrying a weapon. The duties above described do

not contemplate the need for an infantry senior sergeant to carry a weapon. This is in stark

contrast to the “major duties” of a regular infantryman, which expressly and unequivocally

require the carrying of a weapon. Pamphlet 600-25, ¶ 4-4(a). In the absence of a regulation

specifically requiring plaintiff to carry a weapon, the court is bound to defer to the judgment of

the Army that plaintiff’s weapons restriction did not prevent him from carrying out his duties. 5

Moreover, contrary to plaintiff’s argument, his psychiatric profile did not render him

unfit for duty merely because it deviated from the profile for new entrants to his position.

Plaintiff’s psychiatric profile as a result of his PTSD required that he be evaluated, not that he be

separated. The profile is not a replacement for the independent determination of fitness made by

the physical evaluation board. The Army’s “Standards of Medical Fitness” refer a soldier to a

medical evaluation board if he deviates from his rank’s physical profile. See Army Reg. 40-501,

¶ 3-3, 3-4. However, the regulations make clear that deviation “does not mean automatic

retirement or separation . . . [t]he PEB will make the determination of fitness or unfitness.” Id. at

¶ 3-4. In making that determination, the PEB must “consider the results of the MEB, as well as

4

That standard is similar to the one the formal PEB uses in determining fitness, focusing on the

soldier’s ability to “reasonably perform the duties of his or her office, grade, rank, or rating.”

Army Reg. 635-40, ¶ 1-1; see also id. at ¶ 4-17(a)(2) (requiring the physical evaluation boards to

“evaluat[e] the physical condition of the Soldier against the physical requirements of the

Soldier’s particular office, grade, rank, or rating.”) (emphasis added).

5

Plaintiff relies on Beckham v. United States, 392 F.2d 619 (Ct. Cl. 1968) for the proposition

that the military cannot shuffle members around to avoid discharging him. Here, unlike in

Beckham, the administrative record does not reveal that the military shifted plaintiff around from

job to job until one was found which plaintiff could perform notwithstanding his PTSD. Indeed,

there is no evidence in the administrative record that anyone had diagnosed plaintiff with PTSD

at the time he was ordered to report to his assignment with the transportation unit in Alabama.

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the requirements of the Soldier’s [rank and duty],” but nothing in the regulations to which the

court has been referred require the profile series to control the fitness determination.

This conclusion is strengthened by the fact that the “physical profile” requirement

plaintiff relies on is found in a subsection entitled “Physical demands rating and qualifications

for the initial award of [infantry senior sergeant].” Pamphlet 611-21, ¶ 10-45. The use of the

word “initial” implies the physical profile is a prerequisite to becoming an infantry senior

sergeant, but not a necessary condition for maintaining that status. Id.; see also Dep’t of the

Army, Pamphlet 600-25, U.S. Army Noncommissioned Officer Professional Development Guide

¶ 4-10(b) (2008) (referring to the physical profile as a “prerequisite”). Moreover, the regulations

do not say that an infantry senior sergeant who develops a condition which would have

prevented him from becoming an infantry senior sergeant thereby loses the position he

previously obtained. Cf. Towell v. United States, 150 Ct. Cl. 422, 1960 WL 8475, *8-*9 (1960)

(interpreting earlier Army regulations governing fitness for an original appointment not to

govern the plaintiff’s fitness for retention); Boraiko v. United States, 146 Ct. Cl. 814, 1959 WL

7603, *3-*4 (1959) (same).

Finally, the Board of Review’s analysis clearly is rational--not arbitrary or capricious.

Relying on the statement of plaintiff’s commanding officer, the Board of Review indicated that

to the extent plaintiff could not perform his duties, it was due to his “physical impairments” (i.e.,

his back pain), rather than PTSD. AR 5. Unable to determine based on the available evidence

the origin of plaintiff’s PTSD, the Board of Review was “reasonably left with a degree of doubt

regarding the historical accuracy of the psychiatric symptoms . . . .” Id. at 6. This reasonable

doubt, the Board of Review explained, “softens the probative value of the stated severity of

symptoms, which directly bears on the degree of impairment, which directly bears on the fitness

determination.” Id. Given this doubt, then, as well as the “fair and equitable” standard of

review, the Board of Review concluded that it “did not find adequate justification for

recommending PTSD as an unfitting condition.” Id.

Based on the evidence in the administrative record, the court is in no position to dispute

this line of reasoning. The court therefore cannot say that the Army acted arbitrarily,

capriciously, without substantial evidence, or contrary to its own regulations in declining to find

plaintiff unfit based on his profile series.

IV. CONCLUSION

Accordingly, defendant’s MOTION for judgment on the administrative record is

GRANTED and plaintiff’s MOTION for judgment on the administrative record is DENIED.

Defendant’s MOTION to dismiss is DENIED. The Clerk is hereby directed to take the necessary

steps to dismiss this matter.

IT IS SO ORDERED.

/Lawrence J. Block

s

Lawrence J. Block

Judge

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