Keltner v. United States

In the United States Court of Federal Claims

No. 19-663C

(Filed: May 16, 2023)

)

JOEL V. KELTNER, )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

Elizabeth E. Olien, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., for Plaintiff.

With her on the briefs were Caitlin Kasmar and Graham Gardner. Of counsel were Esther

Leibfarth, Rochelle Bobroff, and David Sonenshine, National Veterans Legal Services

Program, Washington, D.C.

Joshua W. Moore, Commercial Litigation Branch, Civil Division, United States Department

of Justice, Washington, D.C., for Defendant. With him on the briefs were Brian M.

Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director,

and Douglas K. Mickle, Assistant Director. Of counsel was Major Scott W. Medlyn, Civil

Law and Litigation Domain, Military Personnel Litigation Branch, United States Air

Force.

OPINION AND ORDER

SOLOMSON, Judge.

The Department of Defense (“DoD”) and its component agencies — including the

Department of the Air Force 1 — manage the Disability Evaluation System (“DES”).

Rooted in Chapter 61 of Title 10 of the United States Code, the DES prescribes the

standards and processes the military uses to determine whether a service member is fit

1 See 10 U.S.C. § 9011 (“The Department of the Air Force is separately organized under the

Secretary of the Air Force. It operates under the authority, direction, and control of the Secretary

of Defense.”).

for duty or should be retired or separated due to a disability. See 10 U.S.C. §§ 1201–22;2

see also Torres v. Del Toro, 2022 WL 5167371, at *1 (D.D.C. Oct. 5, 2022) (“When a military

servicemember is set to be discharged from service due to medical disability, Chapter 61

of Title 10 of the U.S. Code provides the general guidelines for the process that the

servicemember is due.”).

Plaintiff, Joel V. Keltner, seeks disability retirement pay and benefits resulting

from post-traumatic stress disorder (“PTSD”) incurred in the line of duty. Mr. Keltner

alleges that the United States — acting by and through the Air Force — has unlawfully

denied him such pay and benefits under the DES. The parties filed cross-motions for

judgment on the administrative record pursuant to Rule 52.1 of the Rules of the United

States Court of Federal Claims (“RCFC”).

For the reasons set forth below, Mr. Keltner prevails. The Air Force Board for

Correction of Military Records (“AFBCMR” or the “Board”) has the authority to correct

Mr. Keltner’s record to remedy the Air Force’s failure to follow statutory and regulatory

procedures in handling his disability. That means, as the government argues, the Board

generally has the power to correct a service member’s records not only to retroactively

add and remove a service member from the Temporary Disability Retired List (“TDRL”),

but also to determine his or her disability rating. Based on the administrative record,

however, the Board’s determination — that Mr. Keltner is entitled only to a ten percent

disability rating as of August 31, 2016 — is arbitrary, capricious, or otherwise contrary to

law. Whether this Court should remand this matter, yet again, or enter judgment for Mr.

Keltner is an issue that requires further input from the parties.

I. STATUTORY AND REGULATORY BACKGROUND

The Court begins with a summary of the DES. Shakespeare was undoubtedly

correct that “brevity is the soul of wit,”3 and although we will attempt to be as brief as

possible, there is nothing amusing about this system’s complexity. Indeed, describing

the DES as byzantine is an understatement that may be unkind even to that ancient

empire.

A. DES Overview

The DES is not described in one central document, but rather its “details . . . are

2 The current version of these statutory provisions stems from the Career Compensation Act of

1949, Pub. L. No. 81-351, 63 Stat. 802, 802–41 (1949). Title IV of that statute contained “Provisions

Relating to Retirement, Retirement Pay, Separation and Severance Pay for Physical Disability”

and created the original version of the Temporary Disability Retired List at issue in this case. See

id. § 401, 63 Stat. at 816 (“Establishment of a temporary disability retired list.”).

3 William Shakespeare, Hamlet act 2, sc. 2, l. 97.

2

defined through rules generated by the Secretary of Defense and secretaries of the

military services pursuant to Congressional authorization.” Torres, 2022 WL 5167371, at

*1 (citing 10 U.S.C. §§ 1216, 1222(c)); see also Sabo v. United States, 127 Fed. Cl. 606, 610

(2016) (“A service member’s fitness for duty and eligibility for separation or retirement is

governed by regulations promulgated by the Secretary of the military department to

which the service member belongs.”). DoD implements the DES via various directives,4

instructions, 5 and manuals. 6 Torres, 2022 WL 5167371, at *1.7 The Air Force, in turn, has

issued Air Force Instruction (“AFI”) 36-3212, which “prescribes guidance on retiring,

discharging, or retaining service members who, because of a physical disability, are unfit

to perform the duties required of them” and “provides for the required periodic physical

4See DoD Directive 1332.18, at 1 (Nov. 4, 1996) [hereinafter DoDD 1332.18], https://apps.dtic.mil

/sti/pdfs/ADA320998.pdf (reissuing “[DoDD 1332.18], dated February 25, 1986, to update policy

and responsibilities for separation or retirement for physical disability under Title 10” and

“authorize[] procedures under DoD Instructions 1332.38 and 1332.39 for the DoD [DES]”). This

directive explains that the “DES shall be the mechanism for implementing retirement or

separation because of physical disability in accordance with Chapter 61 of 10 U.S.C.” Id. at ¶ C.1.

5See ECF No. 68-1 (“Def. MJAR App’x”) at 259, 264 (attaching DoD Instruction 1332.18: Disability

Evaluation System 1, 6 (Aug. 5, 2014) (cancelling DoDD 1332.18 and reissuing it as a DoD

Instruction (“DoDI”) “in accordance with the authority in DoDD 5124.02”)). The latest version of

DoDI 1332.18 is DoD Instruction 1332.18: Disability Evaluation System (Nov. 10, 2022) [hereinafter

DoDI 1332.18], https://www.esd.whs.mil/Directives/issuances/dodi/. The latest version notes

that it “[r]eissues and [c]ancels . . . [DoDI] 1332.18, ‘Disability Evaluation System (DES),’ August

5, 2014, as amended.” This opinion cites to the current version of the relevant publications, unless

noted otherwise.

6 See DoD Manual 1332.18, Vol. 1, Disability Evaluation System Manual: Processes (Feb. 24, 2023)

[hereinafter DoDM 1332.18]. DoD Manuals are available here: https://www.esd.whs.mil

/Directives/issuances/dodm/.

7 See also Wash. Headquarters Servs., DoD Directives Division, https://www.esd.whs.mil/DD/

(last visited May 2, 2023) (“The DoD Issuances Program processes the documents that establish

and implement DoD policy, called ‘DoD issuances.’ Issuance types include Instructions (DoDI),

Directives (DoDD), Manuals (DoDM), Directive-Type Memorandums (DTM) & Administrative

Instructions (AI).”); Department of Defense and Military Policies, Regulations, and Forms (Sept. 23,

2021), https://www.defense.gov/Contact/Help-Center/Article/Article/2762957/department-

of-defense-and-military-policies-regulations-and-forms/ (“DOD issuances contain the various

policies and procedures [that] govern and regulate activities and missions across the defense

enterprise. They take the form of formal directives, instructions, publications and manuals,

administrative instructions, and directive-type memorandums. . . . Each Military Department

publishes forms and regulations that similarly govern and regulate the activities within its

respective military branch[.]”); Golding v. United States, 48 Fed. Cl. 697, 737 (2001) (“[T]here is no

requirement that the military regulation or procedure be published in the Federal Register in

order to warrant compliance[.]”), aff’d, 47 F. App’x 939 (Fed. Cir. 2002).

3

examinations and final disposition of members on the [TDRL].” 8

Service members with putative disabilities proceed through one of two processes:

the Legacy Disability Evaluation System (“LDES”) or the Integrated Disability Evaluation

System (“IDES”). DoDI 1332.18, § 1.2.b. If a service member is processed through the

LDES, the DoD alone determines whether ill or injured service members are fit for

continued military service and entitled to disability benefits. 9 The IDES, by contrast, is

integrated in that it is jointly implemented by both the DoD and the United States

Department of Veterans Affairs (“VA”). In particular, the IDES is “[t]he joint DoD/VA

process by which DoD determines whether ill or injured Service members are fit for

continued military service, and the DoD and VA determine appropriate benefits for

Service members who are separated or retired for disability.” Id. § G.2 (“Definitions”)

(emphasis added). 10 The default path is “through the IDES unless the Secretary of the

Military Department concerned” makes certain determinations. Id. § 1.2.c; see also AFI

36-3212, ¶ 1.1.2.1 (“The LDES process is an exception to the IDES policy.”). This case

implicates the IDES only.

In general, the DES process is comprised of: (1) a medical evaluation, including a

medical evaluation board (“MEB”) review, impartial medical reviews, and an

opportunity for the service member to provide a rebuttal; and (2) a disability evaluation,

8Air Force Instruction 36-3212: Physical Evaluation for Retention, Retirement, and Separation 1 (July

15, 2019) [hereinafter AFI 36-3212], https://static.e-publishing.af.mil/production/1/af_a1

/publication/afi36-3212/afi36-3212.pdf; see also Off. of the Under Sec’y of Def. (Pers. &

Readiness), Report to Congress — The Temporary Disability Retired List (TDRL): An Assessment of its

Continuing Utility and Future Role, 7 n.7 (2008) [hereinafter OUSD(P&R) Report to

Congress], https://prhome.defense.gov/Portals/52/Documents/WCP%20Documents

/Sec_1647_report.pdf (noting that “[t]he Army regulations governing the disability retirement

system are contained in Army Regulation 635-40; [t]he Air Force regulations governing the TDRL

and disability retirement are [AFI] 36-3212; and the Navy appear in SECNAV Instruction

1850.4E”).

9See DoDI 1332.18, § G.2 (explaining that the LDES is “[a] DES process by which DoD determines

whether eligible wounded, ill, or injured Service members are fit for continued military service

and determines appropriate benefits for Service members who are separated or retired for

disability” (emphasis added)).

10“The IDES, enacted by law in 2007, established a partnership between [DoD] and [VA] to ensure

timely case processing and seamless transition of service members approved for disability

separation or retirement.” AFI 36-3212, ¶ 1.1.2; see also DoDM 1332.18, § 3.1.b (2023) (“The IDES

comprises all disability examinations and all administrative activities associated with IDES case

management from the point of referral by a military medical care provider to the point of return

to duty or completion of both DoD and VA benefits decision determinations, including the

management of Service members who are temporarily retired for disability through the IDES.”).

For a diagram of the IDES process, see DoDM 1332.18, § 3.2 (Figure 1). For a diagram of the Air

Force’s DES process, see AFI 36-3212, § 1.1 (Figure 1.1).

4

including a physical evaluation board (“PEB”) review, counseling, case management,

adjudication, and a final disposition. DoDI 1332.18, § 3.1.

The MEB “[r]eview[s] all available medical evidence, including examinations

completed as part of DES processing, and document[s] whether the Service member has

medical conditions that either singularly, collectively, or through combined effect, may

prevent them from reasonably performing the duties of their office, grade, rank, or

rating.” DoDI 1332.18, § 3.2.a(1) (emphasis added). If the MEB determines that a service

member has such condition(s), “the MEB will refer the case to the PEB.” Id. § 3.2.d. 11

B. PEBs

The purpose of the PEB is to “determine the fitness of Service members with medical

conditions that are, either singularly, collectively, or through combined effect, potentially

unfitting and, for members determined unfit, determine their eligibility for compensation.”

DoDI 1332.18, § 3.3.a (emphasis added) (citing 10 U.S.C. Ch. 61). There are two types of

PEBs: the informal physical evaluation board (“IPEB”) and the formal physical evaluation

board (“FPEB”). The IPEB first reviews the service member’s “case file to make initial

findings and recommendations without the Service member present.” Id. § 3.3.b(1). The

service member may accept the IPEB’s findings, rebut them, “request a [FPEB] if found

fit, or, if found unfit, demand a FPEB in accordance with [10 U.S.C. § 1214].” Id. In that

regard, 10 U.S.C. § 1214 provides that “[n]o member of the armed forces may be retired

or separated for physical disability without a full and fair hearing if he demands it.” 12

As part of the FPEB proceedings, a service member is “entitled to address issues

pertaining to their fitness, the percentage of disability, degree or stability of disability,

administrative determinations, a determination that their injury or disease was non-duty

related, or that their injury or disease was combat-related or took place in a combat-zone.”

DoDI 1332.18, § 3.3.c(4). The FPEB process also includes several procedural requirements

and protections for service members, such as the right: (1) to “[b]e represented by

government-appointed counsel provided by the Military Department concerned”; (2) “to

remain silent”; and (3) to “[r]equest witnesses and introduce depositions, documents, or

11 The service member may request “an impartial physician or other appropriate health care

professional who is independent of the MEB” to review the MEB’s “findings and

recommendations,” as well as to “[a]dvise and counsel the Service member regarding” those

findings. DoDI 1332.18, § 3.2.e(4). Service members are given an opportunity to submit “at least

one rebuttal of the MEB findings.” Id. § 3.2.e(6).

12See also DoDI 1332.18, § 3.3.c(1)(a) (“In accordance with Section 1214 of Title 10, U.S.C., Service

members are entitled to a full and fair hearing, upon request, before the Service member may be

separated or retired for physical disability.”). The service member is also entitled to an FPEB to

contest a military Secretary’s unilateral change to the IPEB’s fitness determination if the service

member concurred with the original IPEB determination. Id. § 3.3.c(1)(b).

5

other evidence, and to question all witnesses who testify at the hearing.” Id. § 3.3.c(5). 13

PEBs “must convey” their “findings and rationale in an orderly and itemized fashion,

with specific attention to each issue presented by the Service member regarding their

case.” DoDI 1332.18, § 3.3.f (“Record of Proceedings”).

In general, a service member is unfit for duty where: (1) “[t]he evidence establishes

that the member, due to disability, is unable to reasonably perform the duties of their

office, grade, rank, or rating”; or (2) the evidence establishes that the disability either

(a) “[r]epresents a decided medical risk to their health or to the welfare or safety of other

members,” or (b) “[i]mposes unreasonable requirements on the military to maintain or

protect the Service member.” DoDI 1332.18, § 6.2 (“General Criteria for Making Unfitness

Determinations”). In assessing fitness for duty, the PEB “will consider all relevant

evidence.” Id. § 6.3.

C. Disability Compensation: Separation or Retirement

If a service member is found to be unfit, “a determination will be made as to the

Service member’s entitlement to separation or retirement for disability with benefits

pursuant to [10 U.S.C. ch. 61].” DoDI 1332.18, § 6.7. 14 Whether a service member is retired

or separated depends on the service member’s years of service and the assigned disability

rating percentage. See 10 U.S.C. § 1201(b) (“Required determinations of disability.”). A

service member receives a disability retirement if he or she has “at least 20 years of

service” or a disability of “at least 30 percent.” Id.; see DoDI 1332.18, § 7.2. 15 A medically

retired individual receives monthly disability payments for life. 10 U.S.C. § 1401.

13 See also DoDI 1332.18, § 4 (“Provision of Legal Counsel in the DES”).

14See also AFI 36-3212, ¶ 1.1 (“When deemed unfit, the Air Force (AF) transitions the member

from service and, as appropriate, provides compensation when the member’s military career ends

due to a physical disability[.]” (citing DoDI 1332.18)).

15See also DoDI 1332.18, § 11.5.a (“Permanent Disability Retirement”) (“If the Service member is

unfit, retirement for a permanent and stable disability may be directed pursuant to Section 1201

or 1204 of Title 10, U.S.C. either: (1) When the total disability rating is at least 30 percent in

accordance with the VASRD and the Service member has fewer than 20 years of service,

computed pursuant to Section 1208 of Title 10, U.S.C.; or (2) When the Service member has at least

20 years of service, computed pursuant to Section 1208 of Title 10, U.S.C., and the disability is

rated at less than 30 percent.”); Def. Fin. & Acct. Serv., Qualifying for a Disability Retirement,

https://www.dfas.mil/retiredmilitary/disability/disability/ (last visited May 2, 2023)

(explaining that a service member with “less than 20 years of active service [and] a disability

rating of 30 percent or higher will qualify . . . for retirement,” and a service member with 20 or

more years of active service will receive a disability retirement “regardless of [the] disability

rating”); see also 10 U.S.C. § 1201(b)(3)(A) (providing that a member is retired with monthly

benefits, even if his disability is rated at less than thirty percent, if he “has at least 20 years of

service computed under [10 U.S.C. § 1208]”).

6

Conversely, service members are “separated” with a lump-sum payment when the

service member has fewer than twenty years of service and the disability is less than

thirty percent. 10 U.S.C. § 1203(b); DoDI 1332.18, § 7.4. 16

Thus, if a service member has less than twenty years of service, his or her disability

rating determines the nature of the payment. Schmidt v. Spencer, 319 F. Supp. 3d 386, 389

n.1 (D.D.C. 2018), aff’d sub nom. Schmidt v. McPherson, 806 F. App’x 10 (D.C. Cir. 2020).

Thirty percent is the “magic number.” Paul Jennings, The Battle After War: Why Disabled

Texas Veterans Are Fighting for the Military Retirement They Deserve, 17 Tex. Tech. Admin.

L.J. 153, 163 (2015). To reiterate, a rating of less than thirty percent will result in a

“medically separated” designation leading to a one-time lump sum disability severance

payment. See 10 U.S.C. §§ 1203, 1212. A rating of at least thirty percent will result in a

disability retirement with monthly payments for life. See 10 U.S.C. § 1201(a)–(b); 10 U.S.C.

§ 1401 (“Computation of retired pay”). 17

D. Disability Ratings

Disability ratings are assigned pursuant to the VA Schedule for Rating Disabilities

(“VASRD”), located at 38 C.F.R. Chapter I, Part 4 (“Schedule for Rating Disabilities”). As

part of the National Defense Authorization Act for Fiscal Year 2008, Congress sought to

“eliminate unacceptable discrepancies and improve consistency among disability

ratings” between the VA and the military departments. See Pub. L. No. 110–181, § 1612,

122 Stat. 3, 442 (2008). In furtherance of that goal, Congress required the military

Secretaries to utilize the VASRD, “including any applicable interpretation of [the]

schedule by the United States Court of Appeals for Veterans Claims.” 10 U.S.C. § 1216a. 18

16 See DoDI 1332.18, § 11.5.c (“Separation with Disability Severance Pay”); Qualifying for a

Disability Retirement, supra note 15 (explaining how a service member with “less than 20 years of

active service” plus “a disability rating below 30 percent will result in separation”).

17 If the member does not have twenty years of service, but receives at least a thirty percent

disability rating, then the member must further satisfy additional criteria to establish that the

disability was service-connected. 10 U.S.C. § 1201(b). As the parties no longer dispute that

Mr. Keltner incurred PTSD in the line of duty, these criteria are not at issue in this case.

18See also DoDI 1332.18, § 8.1.a(1) (“The Secretaries of the Military Departments may not deviate

from the VASRD, including any applicable interpretation of the VASRD by the U.S. Court of

Appeals for Veterans Claims, U.S. Court of Appeals for the Federal Circuit, or U.S. Supreme

Court.”). While DoD components must only apply the VASRD “to the extent feasible,” 10 U.S.C.

§ 1216a(a)(1)(A), DoD directs that “any determination of infeasibility must be based on statutory

differences between the DoD and VA disability systems, compelling differences in mission

grounded in statute, or some other major difference between the two systems.” DODI 1332.18,

§ 8.1.b. In contrast, “[a] policy disagreement or differing medical opinion does not constitute

infeasibility.” Id.

7

Following the statutory instruction, DoD issued a policy memorandum

specifically adopting 38 C.F.R. § 4.129, a VA regulation that sets a minimum initial

disability rating for “mental disorders due to traumatic stress.” 19 This VA regulation

provides:

When a mental disorder that develops in service as a result of

a highly stressful event is severe enough to bring about the

veteran’s release from active military service, the rating

agency shall assign an evaluation of not less than 50 percent

and schedule an examination within the six month period

following the veteran’s discharge to determine whether a

change in evaluation is warranted.

38 C.F.R. § 4.129. 20

The next year, in 2009, the Office of the Under Secretary of Defense for Personnel

and Readiness issued a memorandum governing record corrections for service members

with PTSD. 21 This memorandum instructed that boards for correction of military records

(“BCMRs”) must apply section 38 C.F.R. § 4.129 in assessing “PTSD unfitting conditions

for applicants discharged after September 11, 2001, and . . . assign a disability rating of

not less than 50% for PTSD unfitting conditions for an initial period of six months . . .

with subsequent fitness and PTSD ratings based on the applicable evidence.” 2009 DoD

Memo.

For service members proceeding through the IDES process, DoD requires the

military services to apply the VA’s disability rating. See DoDI 1332.18, § 8.1.d(3) (“[T]he

PEB will apply ratings provided by the VA for unfitting conditions to establish the Service

member’s DoD disability rating under the IDES process.”); AFI 36-3212, ¶ 1.10.1 (“The

PEB assigns the disability rating percentage(s) provided by the Department of Veterans

Affairs Rating Agency Site for unfitting medical conditions of service members in the

19Def. MJAR App’x at 1, 21 (David S.C. Chu, Under Sec’y of Def. for Pers. & Readiness,

Memorandum for Secretaries of the Military Departments et al., Policy Memorandum on

Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008 (Pub. L.

110–181), attach. § E7.2 (Oct. 14, 2008)); see also Kaster v. United States, 158 Fed. Cl. 86, 94 (2022)

(describing this memorandum).

20Specifically, “for disposition of Service members found unfit because of a behavioral disorder

due to traumatic stress,” ratings are assigned pursuant to 38 C.F.R. §§ 4.129–.130. DoDI 1332.18,

§ 8.2 (“Behavioral Disorders Due to Traumatic Stress”).

21Def. MJAR App’x at 26 (Gail H. McGinn, Deputy Under Sec’y of Def. for Plans, Memorandum

for Secretaries of the Military Departments, Requests for Correction of Military Records Relating to

Disability Ratings for Post Traumatic Stress Disorder (July 17, 2009) [hereinafter 2009 DoD Memo]).

8

IDES[.]”). 22 That does not mean the disability rating percentages determined via the IDES

process will always be identical to the VA’s total rating. Indeed, “[t]he total combined

disability ratings determined by the IDES and those determined by the VA may differ.”

AFI 36-3212, ¶ 1.11. Such discrepancies may occur because “[t]he VA is authorized to

rate any service-connected condition while the [military service] is only authorized to

rate or apply ratings to the conditions which make a service member unfit for continued

military service and cause the premature termination of the member’s military career.”

Id.

E. The TDRL

The purpose of the TDRL is “to further observe unfit members whose disability

has not stabilized and for whom the PEB cannot accurately assess the degree of severity,

percent of disability, or final disposition.” AFI 36-3212, ¶ 8.2 (“Initial Placement”). The

TDRL thus “serves as a safeguard for both the service member and the [Air Force] by

delaying permanent disposition for service members whose conditions could improve or

get worse, or where the ultimate disposition could change within a reasonable period of

time.” Id. 23

Section 1202 of Title 10 of the United States Code governs a member’s placement

on the TDRL. See Dambrava v. OPM, 466 F.3d 1061, 1062–63 (Fed. Cir. 2006) (discussing

10 U.S.C. § 1202 in the context of a claim for “civil service retirement credit and annual

leave credit for . . . time spent on the TDRL”). If a military Secretary determines that a

service member would qualify for a disability “retirement under [10 U.S.C. §] 1201 . . .

but for the fact that his disability is not determined to be of a permanent nature and stable,

the Secretary shall, if he also determines that accepted medical principles indicate that

22 See also DoDM 1332.18, § 3.1 (explaining that, for the IDES, “[t]he VA provides examinations,

proposes disability ratings, and determines entitlement to veterans’ benefits for all service-

connected disabilities”); B. Asch, J. Hosek, & M. Mattock, Toward Meaningful Military

Compensation Reform: Research in Support of DoD’s Review 123 (2014), https://www.rand.org

/content/dam/rand/pubs/research_reports/RR500/RR501/RAND_RR501.pdf (“The PEB

determines which specific conditions make the member unfit for duty, and the VA determines

the disability rating for each medical condition. The PEB calculates the DoD disability rating by

combining the individual ratings for all medical conditions determined to be unfitting. Using the

same ratings, the VA calculates a combined VA disability rating for all service-related medical

conditions, not just those for conditions determined to be unfit for service. The service member

is counseled on all findings at the MEB and PEB stages, and elects to concur or not concur with

the PEB fit/unfit decision and VA ratings.”).

23 See also OUSD(P&R) Report to Congress, supra note 8, at 6 (“The TDRL has evolved into a vehicle

to provide a safeguard both to Service members whose condition may develop into a more serious

permanent disability and to the government against permanently retiring a member who may

subsequently fully recover (or nearly so) from the condition that led to them being placed on the

list in the first place.”).

9

the disability may be of a permanent nature, place the member’s name on the [TDRL].”

10 U.S.C. § 1202. In other words, service members are “placed on the TDRL when they

meet the requirements for permanent disability retirement, except when the disability is

not determined to be stable but may be permanent.” DoDI 1332.18, § 9.1 (“Initial

Placement on the TDRL”).

A member on the TDRL must be given a physical examination at least once every

eighteen months “to determine whether there has been a change in the disability for

which he was temporarily retired.” 10 U.S.C. § 1210(a). For service members diagnosed

with PTSD, “the reexamination will be scheduled within 6 months from the date of

placement on the TDRL, but completed no earlier than 90 days after placement on the

TDRL.” DoDI 1332.18, § 9.2 (“TDRL Re-Evaluation”). If a periodic reexamination

demonstrates that the disability “is of a permanent nature and stable,” then the member

is either separated or retired. 10 U.S.C. § 1210(c)–(e). “A disability will be determined

stable when the preponderance of medical evidence indicates the severity of the

condition will probably not change enough within the next [five] years to increase or

decrease the disability rating percentage.” AFI 36-3212, ¶ 3.17.3 (altered to reflect the

prior statutory language applicable in this case); see also id. ¶ 8.1 (“Permanence of

Condition”); DoDI 1332.18, § 9.1 (providing that, for a disability to be determined stable,

the preponderance of medical evidence must indicate that “the severity of the condition

will probably not change enough within the next [five] years to increase or decrease the

disability rating percentage, pursuant to [10 U.S.C. § 1210]” (also altered to reflect the

applicable statutory language)). 24

Pursuant to 10 U.S.C. § 1210, “[v]eterans placed on the TDRL before January 1,

2017[,] may remain on the TDRL for no more than 5 years after placement.” DoDM

1332.18, § 10.6.b (“TDRL Termination”). 25 Accordingly, if a member has been on the

TDRL for five years and continues to suffer from the disability, then “it shall be

24On the other hand, “[s]ervice members with unstable conditions rated at least 80 percent,” who

“are not expected to improve to less than an 80 percent rating, will be permanently retired.” DoDI

1332.18, § 9.1.b.

25 Through December 31, 2016, 10 U.S.C. § 1210(b) provided: “[t]he Secretary concerned shall

make a final determination of the case of each member whose name is on the [TDRL] upon the

expiration of five years after the date when the member’s name was placed on that list. If, at the

time of that determination, the physical disability for which the member’s name was carried on

the [TDRL] still exists, it shall be considered to be of a permanent nature and stable.” National

Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114–328, § 525, 130 Stat. 2000, 2117

(2016) (emphasis added) (amending the statute to replace “five years” with “three years,” which

“shall apply to members of the Armed Forces whose names are placed on the [TDRL] on or after

[January 1, 2017]”). The parties do not dispute that the previous version of the statute (i.e., with

the five year requirement), applicable through December 31, 2016, governs this case.

10

considered to be of a permanent nature and stable,” and the member is separated or

retired. 10 U.S.C. § 1210(b) (2016).

In sum, there are two avenues for identifying a service member’s disability as

“permanent and stable” in order to remove the service member from the TDRL. First,

pursuant to 10 U.S.C. § 1210(a), a medical examination may determine that a disability is

permanent and stable. See Cronin v. United States, 765 F.3d 1331, 1336 (Fed. Cir. 2014)

(citing 10 U.S.C. § 1210(a)–(b)). Second, a disability will be deemed permanent and stable

pursuant to 10 U.S.C. § 1210(b) once the service member has been on the TDRL for five

years. Either way, “retirement or separation follows, depending on the degree of

disability and length of service.” Cronin, 765 F.3d at 1336 (citing 10 U.S.C. § 1210(c)–(e));

see also AFI 36-3212, ¶ 8.19 (“Recommended Disposition”) (providing possible

dispositions for a service member on the TDRL).

When the PEB reevaluates a service member already on the TDRL, “[t]he Military

Department will request that the VA provide their most current rating and medical

evidence upon which the most current rating was based for the condition for which the

veteran was placed on the TDRL.” DoDI 1332.18, § 9.2.c(1). Pursuant to DoDM 1332.18:

VA will conduct exams and prepare rating decisions for veterans

who were temporarily retired for disability in accordance

with VA laws and regulations. VA will provide a copy of the

most current rating and the medical evidence upon which the

most current rating is based in accordance with Section 7332

of Title 38, U.S.C. If VA does not provide examination and

rating information sufficient to adjudicate the veteran’s case

or if the most recent VA exam is older than 18 months, the

Military Department will execute required TDRL

examinations and ratings in accordance with Title 38, CFR.

DoDM 1332.18, § 10.4 (“TDRL Reevaluation”) (emphasis added); see also AFI 36-3212

attach. 1 at 75 (“The IDES features a single set of disability medical examinations

appropriate for fitness determination by the Military Departments and a single set of

disability ratings provided by VA for appropriate use by both departments.”); but see AFI

36-3212, ¶ 3.18 (“The PEB applies VA ratings provided by the Department of Veterans

Affairs Rating Activity Site for IDES cases . . . ; however, for LDES and TDRL cases, the

PEB utilizes the VASRD to determine a rating for each unfitting condition.” (emphasis

added)); AFI 36-3212, ¶ 1.10.2 (“The PEB will assign a disability rating percentage(s) to

unfitting medical conditions using the current VASRD for service members in the [LDES]

and for TDRL reevaluations.” (emphasis added)).

Service members also have appellate rights following the FPEB process. See DoDI

1332.18, § 3.3.d (“Appeal of FPEB Determination of Fitness”), § 4.4 (“Service Member

11

Appeals and Hearings”). The Air Force specifically provides that “Airmen have the

option to apply to the [AFBCMR] if they believe, and have evidence, that an error or

injustice occurred.” AFI 36-3212, ¶ 5.4.5.

II. FACTUAL AND PROCEDURAL BACKGROUND 26

A. Mr. Keltner’s Military Service and PTSD

Mr. Keltner enlisted in the Air Force in 2001 and entered active duty service in

2002. AR 25, 71. He deployed to Pakistan in 2003, transitioned to the Air Force Reserve

in 2006, and deployed again to Iraq in 2008. AR 71, 208. In 2011, Mr. Keltner deployed

to Afghanistan for his third and final combat tour. AR 208. While serving in Afghanistan,

his forward operating base was constantly attacked by mortars and rockets, sometimes

six times a day. Id. On one occasion, a mortar detonated a hundred yards from him. AR

189. He rode in helicopters that were fired at, saw wounded soldiers and dead bodies,

and his base received threats of being “overrun” by the Taliban. AR 189, 199, 208. He

believed that the soldiers working on that base were always in imminent danger. AR 189.

The stressors Mr. Keltner experienced in Afghanistan, alongside the simultaneous

disintegration of his marriage, caused him to develop mental health problems. Id.

In August 2012, a few months after Mr. Keltner returned to the States following

his tour of duty in Afghanistan, the Air Force gave him a Post-Deployment Health Re-

Assessment. AR 1033. The examiner found that Mr. Keltner had PTSD symptoms and

referred him to a behavioral health specialist. AR 1037. A few months later, Mr. Keltner

began taking antidepressant and anti-anxiety medication. AR 281. In December 2012,

while on orders, Mr. Keltner told several members of his unit that he “would have killed

himself if he wasn’t a Christian.” AR 264. One of his commanders immediately reported

this to military health professionals and Mr. Keltner was taken to the emergency room

for evaluation. AR 262.

The following year, in September 2013, Mr. Keltner went to a VA clinic for PTSD

screening. AR 272. He reported difficulty concentrating, frequent alcohol use, occasional

panic attacks, hypervigilance, irritability, intrusive thoughts, being easily startled, extra

anxiety in public and loud places, and nightmares. Id. He subsequently complained to

the Air Force of PTSD symptoms resulting from his deployment in Afghanistan and

26This background section constitutes the Court’s principal findings of fact drawn from the

administrative record. Judgment on the administrative record, pursuant to RCFC 52.1, “is

properly understood as intending to provide for an expedited trial on the record” and requires

the Court “to make factual findings from the record evidence as if it were conducting a trial on

the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1354, 1356 (Fed. Cir. 2005). Citations to

the administrative record (ECF Nos. 63-1 to -7) are denoted as “AR” followed by the page number

indicated at the bottom right corner of the page.

12

depression from his recent divorce. AR 280–82. On or about September 17, 2013, an Air

Force psychologist diagnosed Mr. Keltner with “Adjustment Disorder with Anxiety and

Depression, Chronic.” AR 284.

A few months later, in December 2013, the Air Force found that Mr. Keltner had a

“Non-Duty” physical disqualification that precluded him from future deployment.

AR 239. The report noted that the Air Force would need to process Mr. Keltner through

its DES if he sought to continue his military service, and he was referred to a PEB,

accordingly. Id. In April 2014, an IPEB determined that Mr. Keltner was unfit for

continued military service. AR 20. Mr. Keltner requested a fitness determination from a

FPEB, but he failed to appear for his August 2014 hearing. AR 17–19. 27

B. Mr. Keltner’s Discharge and AFBCMR Application

In April 2015, the Air Force initiated an “Administrative Discharge due to Physical

Disqualification.” AR 241 (emphasis added). In June of that year, Mr. Keltner applied to

the AFBCMR for relief, arguing that his mental health issues were combat related and

requesting that he be given a medical discharge with severance pay (rather than an

administrative discharge). AR 7, 13. He explained that after returning from Afghanistan

he was “afraid to tell [his] unit’s psychiatrist that [he] was suffering from PTSD in fear of

getting kicked out of the military so [he] only brought the depression and anxiety to the

psychiatrist’s attention.” AR 13. He also explained that he had waived his right to a FPEB

because he assumed he would be medically discharged and given a severance package.

Id. The Air Force finalized Mr. Keltner’s administrative discharge in February 2016,

notwithstanding that his appeal to the AFBCMR remained pending. AR 16.

C. The VA’s Fifty Percent Disability Rating for Mr. Keltner’s PTSD

On or about August 31, 2016, roughly six months after the Air Force

administratively discharged Mr. Keltner, he received a VA Compensation and Pension

examination (the “August 2016 VA C&P Examination”). AR 1080–96. As part of that

examination, a VA psychologist found that Mr. Keltner was suffering from PTSD with

“mild to moderate symptoms overall.” AR 1080. He was also diagnosed with an

unspecified anxiety order, an unspecified depressive disorder, alcohol use disorder, and

sleep apnea. Id. The anxiety and depression were deemed “progression[s] of the

adjustment disorder symptoms that were observed during his service”; the psychologist

found those diagnoses at least partially related to Mr. Keltner’s PTSD. Id. The VA

psychologist similarly concluded that alcohol was “likely used as a maladaptive coping

mechanism” to help assuage other symptoms. AR 1080–81.

27The government does not contend that Mr. Keltner’s failure to appear for the FPEB impacts his

claim before this Court.

13

The VA psychologist described Mr. Keltner’s mental health troubles in extensive

detail. AR 1090. Mr. Keltner reported having panic attacks at least once per day,

characterized by a racing heart, shortness of breath, shakiness in his knees, and feeling

like he was losing control. Id. He relayed fears of “bombs going off, explosions, or

dying”; hypervigilance; and heightened feelings of fear when driving. Id. He described

serious social anxiety, noting “physical tension along with sweating, feeling like his eyes

get red, stammering, stuttering, and lapses in concentration in the middle of

conversations.” Id. He had trouble concentrating and would forget conversations. Id.

He also had problems sleeping most nights — “his mind just race[d] over things” since

he returned from Afghanistan. Id.

The August 2016 VA C&P Examination further memorialized that Mr. Keltner

reported “feel[ing] down and depressed on a daily basis for most of the day.” AR 1090.

He first remembered feeling depressed “for a couple of weeks or more right after his

return from Afghanistan,” noting that he felt guilty for leaving the United States for

Afghanistan and sending his family to Arizona. Id. He indicated a loss of interest in

activities he previously enjoyed, like working on his house, playing video games, and

playing pool and darts in social settings. Id. His “energy level [was] low” and he felt

“tired a lot.” Id. He described occasional feelings of worthlessness. Id. He denied

“current suicidal ideation,” but described “passive suicidal ideation” about once a month,

including during the week before the psychological examination. Id.

Despite this raft of symptoms, the VA examiner — in the “occupational and social

impairment” section of the examination form — checked a box indicating that Mr. Keltner

had “mild or transient symptoms which decrease work efficiency and ability to perform

occupational tasks only during periods of significant stress, or[] symptoms controlled by

medication.” AR 1081. This language comes directly from the VASRD criteria for a

disability rating of ten percent. See 38 C.F.R. § 4.130 (“Schedule of ratings — Mental

disorders”).

Three weeks after the August 2016 VA C&P Examination, the VA’s Veterans

Benefits Administration, on September 21, 2016, issued its disability rating decision (the

“VA Rating Decision”). AR 1072–78. After considering the totality of Mr. Keltner’s

medical records from 2008 through the August 2016 VA C&P Examination, the VA found

that Mr. Keltner’s PTSD — “to include depressive disorder, anxiety disorder, and alcohol

use disorder” — was service connected and warranted a fifty percent disability rating

based on the VASRD. AR 1072–73; see 38 C.F.R. § 4.130 (definition of a fifty percent

disability rating).

The VA Rating Decision detailed Mr. Keltner’s symptoms and explained that the

“overall evidentiary record show[ed] that the severity of [his] disability most closely

approximates the criteria for a 50 percent disability evaluation.” AR 1074 (applying the

definition of a fifty percent disability rating from 38 C.F.R. § 4.130). The VA Rating

14

Decision also explained that Mr. Keltner’s PTSD did not warrant “[a] higher evaluation

of 70 percent” based on the VASRD criteria. Id. (referring to the definition of a seventy

percent disability rating from 38 C.F.R. § 4.130). The VA further indicated that Mr.

Keltner had received a ten percent disability rating for tinnitus in June 2008, thus yielding

a total sixty percent “combined [disability] evaluation for compensation.” AR 1077.

D. The AFBCMR’s First Decision

On September 22, 2016, the day after the VA issued its rating decision, a psychiatric

advisor to the AFBCMR recommended a starkly different disability rating to the Board.

AR 77–82. Relying primarily on the August 2016 VA C&P Examination’s indication that

Mr. Keltner suffered “mild or transient” occupational and social impairment, the

psychiatric advisor recommended a disability rating of just ten percent. AR 81. The

psychiatric advisor neither discussed Mr. Keltner’s specific symptoms noted a few weeks

before in the August 2016 VA C&P Examination, nor considered the VA’s final PTSD

disability rating of fifty percent. Id. On the other hand, the Air Force psychiatric advisor

did conclude that the Air Force’s April 2015 administrative discharge decision

“represented an error,” and thus recommended that the Air Force accept the diagnosis of

PTSD and find that it was received in the line of duty. AR 82 (recommending that the

Board “[p]lace applicant on the [TDRL] with a rating of 50 percent in accordance with 38

CFR 4.129, effective February 5, 2016[,]” and “[r]emove the applicant from TDRL on

August 31, 2016 and discharge with the rating of 10 percent in agreement with the

[August 2016 VA C&P Examination]”).

In December 2016, the AFBCMR denied Mr. Keltner’s request for a medical

discharge with severance pay. AR 1–2. Although the Board “note[d] the comments of

[the] Psychiatric Advisor indicating that relief should be granted,” the Board determined

that Mr. Keltner’s mental health problems were not “a result of military stressors,” so the

applicant “had not been a victim of error or injustice.” AR 3, 5.

E. Mr. Keltner’s Initial Claims Before this Court

On May 3, 2019, Mr. Keltner filed suit in this Court, claiming that the Air Force

improperly withheld retirement pay and benefits owed to him pursuant to 10 U.S.C.

§ 1201. ECF No. 1. Mr. Keltner claimed that his PTSD was incurred in the line of duty

and argued that the Air Force’s failure to complete a line of duty determination, its failure

to correct the record, and its reliance on an unsubstantiated advisory opinion were

unlawful. Id. at 14–17. He requested that this Court order the Air Force to correct his

military records to reflect: (1) that his PTSD was combat related; (2) that his PTSD

warranted a disability rating of fifty percent; and (3) that he is owed commensurate

disability retirement pay and benefits. Id. at 17.

15

On November 1, 2019, the government filed a motion for voluntary remand to the

Board. ECF No. 9. On June 3, 2020, this Court denied the government’s motion because

the AFBCMR’s concern was not “substantial and legitimate” when it sought only to

“expound upon its rationale for denying plaintiff’s request.” Keltner v. United States, 148

Fed. Cl. 552, 563–65 (2020) (quoting Def. Mot. at 1). On July 1, 2020, the Court ordered a

briefing schedule to resolve this case via motions for judgment on the administrative

record (“MJARs”). ECF No. 28. Following oral argument on the parties’ motions, see ECF

Nos. 30, 33, and the government’s renewed request to stay and remand the matter to the

Board, see ECF No. 40, the Court ordered the parties to meet and confer and to file a joint

status report with a proposal for how the case should proceed, ECF No. 46.

F. The Parties’ Joint Remand Request and the AFBCMR’s Second Decision,

Separating Mr. Keltner with a Ten Percent Disability Rating

On May 14, 2021, the parties jointly proposed remanding this case to the AFBCMR

with specific remand instructions. ECF No. 50. The government agreed to rescind its

2016 decision denying Mr. Keltner’s disability retirement claims, to consider his claims

without deference to the previous decision, and to issue a replacement decision within

six months. Id. at 1–6. On May 19, 2021, the Court stayed this case and remanded it to

the Board with the specific instructions to which the parties had agreed. ECF No. 51

(incorporating ECF No. 50). On June 23, 2021, Mr. Keltner amended his application to

the Board, requesting that it correct his records to reflect his retirement with a disability

rating of sixty percent — fifty percent from PTSD and ten percent from tinnitus. See ECF

No. 58 at 6.

On November 23, 2021, the Board issued its second decision, granting

Mr. Keltner’s application in part. ECF No. 58 (“Second AFBCMR Decision”) at 2. The

decision found that Mr. Keltner’s diagnosis of chronic adjustment disorder “was replaced

with PTSD prior to his discharge,” and that his PTSD was incurred in the line of duty. Id.

at 14–15. The Board also corrected his record to reflect his placement on the TDRL as of

January 22, 2016 — the day after Mr. Keltner was actually released from active duty —

with a disability rating of fifty percent, pursuant to AFI 36-3212. Id. at 15. 28 The Board,

however, then further “corrected” Mr. Keltner’s record to reflect that he was “removed”

from the TDRL on August 31, 2016 — the same day as his August 2016 VA C&P

Examination — with a disability rating of only ten percent. Id.

28See Def. MJAR App’x at 28 (Air Force Instruction (AFI) 36–3212: Physical Evaluation for Retention,

Retirement, and Separation (Nov. 27, 2009)); see also 38 C.F.R. § 4.129 (“When a mental disorder that

develops in service as a result of a highly stressful event is severe enough to bring about the

veteran’s release from active military service, the rating agency shall assign an evaluation of not

less than 50 percent[.]”).

16

In deciding to amend Mr. Keltner’s records to reflect that he was removed from

the TDRL as of August 31, 2016, and in assigning him a disability rating of ten percent,

the Second AFBCMR Decision relied primarily on a September 15, 2021, memorandum

issued by yet another psychological advisor to the AFBCMR. See AR 1048–52 (the

“September 2021 AFRBA Memorandum”); 29 Second AFBCMR Decision at 2, 6–11. The

September 2021 AFRBA Memorandum did not address the August 2016 VA C&P

Examination in any detail. Instead, it selectively quoted the “mild or transient

symptoms” language from the August 2016 VA C&P Examination form corresponding

to the VASRD’s ten percent rating definition. AR 1051. The September 2021 AFRBA

Memorandum did not address or even acknowledge that the August 2016 VA C&P

Examination paints a far more concerning picture of Mr. Keltner’s PTSD symptoms,

which were more consistent with the fifty percent disability rating the VA ultimately

assigned. AR 1074 (noting, amongst other symptoms, suicidal ideation, chronic sleep

impairment, and panic attacks more than once per week). The psychological advisor in

the September 2021 AFRBA Memorandum further opined that Mr. Keltner’s PTSD “had

stabilized,” AR 1051, but did not identify a specific date for a stabilization finding. Given

that the psychological advisor made that comment after reviewing select medical records

dated between March 11, 2016, and June 9, 2017, 30 the September 2021 AFRBA

Memorandum implies that the stabilization date may not have been until at least June 9,

2017 — about nine months after the August 31, 2016, date that the Second AFBCMR

Decision assessed. AR 1068–69.

Following the remand, and at the Court’s direction, Mr. Keltner filed an amended

complaint on January 31, 2022, challenging the Second AFBCMR Decision on three

grounds. ECF No. 62 (“Am. Compl.”). First, Mr. Keltner alleges that his constructive

removal from the TDRL without the “requisite” procedural protections was unlawful. Id.

at 12–13 (Count I) (alleging violations of 10 U.S.C. §§ 1202, 1210, and 1214). Second, he

alleges that the Air Force’s decision to assign him a final disability rating of only ten

percent violated the requirement of resolving reasonable doubt in favor of a service

member. Id. at 13 (Count II) (alleging violations of 10 U.S.C. § 1216a and 38 C.F.R. §§ 4.3,

4.7). Third, he alleges that the Air Force’s final disability rating of only ten percent —

29 The memorandum is signed by a psychological advisor with the AFRBA — the Air Force

Review Boards Agency, see Air Force Review Boards Agency Information Website and Application

Portal, https://afrba-portal.cce.af.mil/ (last visited May 2, 2023) (“The [AFRBA] was established

to streamline the adjudication of military and civilian personnel matters through 11 statutory and

secretarial boards and one review office. As a field operating agency, the AFRBA reports directly

to the Assistant Secretary of the Air Force for Manpower and Reserve Affairs (SAF/MR).”).

30The psychological advisor’s chronological review of Mr. Keltner’s medical history, AR 1068–

69, conspicuously omits any discussion of the August 2016 VA C&P Examination’s findings.

17

after the VA assigned him a disability rating of fifty percent — violated the “presumption

of regularity.” Id. at 13–14 (Count III). 31

On April 29, 2022, Mr. Keltner filed a motion for judgment on the administrative

record. ECF No. 64 (“Pl. MJAR”). On August 17, 2022, the government filed a cross-

motion. ECF No. 68 (“Def. MJAR”). On September 30, 2022, Mr. Keltner filed his reply

brief. ECF No. 71 (“Pl. Reply”). And on October 13, 2022, the government filed its reply.

ECF No. 73 (“Def. Reply”). All filings were timely. On November 1, 2022, the Court held

oral argument on the parties’ cross-MJARs. ECF No. 75 (“Tr.”).

III. JURISDICTION

Pursuant to the Tucker Act, the United States Court of Federal Claims has

jurisdiction “to render judgment upon any claim against the United States founded either

upon the Constitution, or any Act of Congress . . . or for liquidated or unliquidated

damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). Because the Tucker Act

“does not create any substantive right enforceable against the United States for money

damages,” the Court must determine whether the statute upon which a claim for money

is based “can fairly be interpreted as mandating compensation by the Federal

Government for the damage sustained.” United States v. Testan, 424 U.S. 392, 398, 400, 402

(1976) (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (Ct. Cl. 1967)).

Mr. Keltner’s disability retirement claims, see Am. Compl. at 2, invoke 10 U.S.C.

§ 1201. Our appellate court, the United States Court of Appeals for the Federal Circuit,

has held that 10 U.S.C. § 1201 is a money-mandating source of substantive law that is

actionable in this Court pursuant to the Tucker Act. Fisher v. United States, 402 F.3d 1167,

1174–75 (Fed. Cir. 2005) (reaffirming Sawyer v. United States, 930 F.2d 1577 (Fed. Cir.

1991)); see also Verbeck v. United States, 89 Fed. Cl. 47, 61 (2009) (“[10 U.S.C. §] 1203 is a

money-mandating statute for the same reasons that [10 U.S.C. §] 1201 is a money-

mandating source of law for purposes of the jurisdiction of this court.”). 32

31 Mr. Keltner does not challenge the Board’s finding that his tinnitus was not compensable

because it “was not found to be an unfitting condition.” Second AFBCMR Decision at 14. Thus,

Mr. Keltner no longer contends that the Board should have assigned him a sixty percent disability

rating — fifty percent from PTSD and ten percent from tinnitus. Id. at 6.

32 Depending on the precise money-mandating statute, “an appeal to a Correction Board

constitutes a ‘permissive’ rather than a mandatory remedy.” Chambers v. United States, 417 F.3d

1218, 1224 (Fed. Cir. 2005) (quoting Martinez v. United States, 333 F.3d 1295, 1303

(Fed. Cir. 2003) (en banc)). In a disability retirement case, however, “the Court of Federal Claims

has no jurisdiction . . . until a military board evaluates a service member’s entitlement to such

retirement in the first instance.” Id. at 1225.

18

Accordingly, this Court possesses jurisdiction to decide Plaintiff’s claims. 33

IV. STANDARD OF REVIEW

Ordinarily, Tucker Act claims — whether of the contract, money-mandating, or

illegal exaction varieties — proceed before this Court “on a de novo basis.” L & D Servs.,

Inc. v. United States, 34 Fed. Cl. 673, 678 n.6 (1996) (“Any litigation of a [contract] claim . . .

before this court is on a de novo basis and the contractor may rely upon evidence not

considered by the contracting officer.”). That is, the Court does not defer to an agency’s

fact finding or conclusions, but instead receives new evidence, makes its own factual

findings, and reaches an independent determination regarding whether a plaintiff has

substantiated its claim by a preponderance of the evidence. See, e.g., Ampersand Chowchilla

Biomass, LLC v. United States, 150 Fed. Cl. 620, 642 (2020) (“The Court reviews claims for

tax refunds and [money-mandating statutory] claims . . . on a de novo basis.”), aff’d, 26

F.4th 1306 (Fed. Cir. 2022); Cherokee Gen. Corp. v. United States, 150 Fed. Cl. 270, 283 (2020)

(“Even where a contracting officer’s legal opinion is fully explained (unlike here), it is not

binding on the government in judicial proceedings (which are de novo) and it cannot

override the language of the contract itself.” (citing Wilner v. United States, 24 F.3d 1397,

1401–02 (Fed. Cir. 1994))); Cencast Servs., L.P. v. United States, 94 Fed. Cl. 425, 453 (2010)

(“In general, a tax refund suit is a de novo proceeding and any subsidiary factual findings

of the IRS are given no weight by the court.”), aff’d, 729 F.3d 1352 (Fed. Cir. 2013); Cnty.

of Suffolk v. United States, 19 Cl. Ct. 295, 299 (1990) (“The Claims Court typically considers

allegations that a party did not fulfill its obligations under a contract on a de novo basis.”);

Woog v. United States, 48 Ct. Cl. 80, 94 (1913) (“The court is of opinion that the statute

under which we are taking jurisdiction requires us to make an independent investigation

and to afford relief irrespective of the findings of any board.”). 34

Where Congress wants this Court to apply a different, more deferential standard

of review, Congress knows how to issue such instructions. The most common example

is, of course, the Administrative Procedure Act’s arbitrary and capricious standard of

review, which Congress expressly applied to actions challenging government

procurement-related decisions pursuant to 28 U.S.C. § 1491(b). See 28 U.S.C. § 1491(b)(4)

(“In any action under this subsection, the courts shall review the agency’s decision

pursuant to the standards set forth in section 706 of title 5.”). Congress has imposed the

33Although every court has a duty to confirm its jurisdiction, see, e.g., RCFC 12(h)(3), this Court

notes that the government has not challenged jurisdiction in this case.

34But see Fla. Home Med. Supply, Inc. v. United States, 131 Fed. Cl. 170, 177–78 (2017) (contrasting a

breach of contract case — where “[t]he evidence that plaintiffs may offer is governed by the

relevant rules of this court, and is not limited to the information previously provided to [the

agency]” — and “[t]he court’s review of an agency decision,” which “is limited to an

administrative record and is conducted under a deferential ‘arbitrary, capricious, contrary to law,

or unsupported by substantial evidence’ standard” (citations omitted)).

19

arbitrary and capricious standard in other instances as well. See, e.g., 50 U.S.C. §

4215(h)(1) (“A claimant may seek judicial review of a denial of compensation under this

section solely in the United States Court of Federal Claims, which shall review the denial

upon the administrative record and shall hold unlawful and set aside the denial if it is

found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.”); 42 U.S.C. § 300aa-12(e) (providing that “the United States Court of Federal

Claims shall have jurisdiction to undertake a review of the record of [vaccine injury]

proceedings and may thereafter . . . set aside any findings of fact or conclusion of law of

the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law”).

Military pay cases — including disability retirement cases — involve money-

mandating claims, see Section III, supra. 35 In such cases, Congress has neither required

this Court to apply the APA’s standard of review by express reference to that statute, nor

otherwise directly imposed the “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law” formulation. Nevertheless, “[a]s Mr. Justice Holmes

commented . . .[,] ‘a page of history is worth [a] volume of logic.’” Walz v. Tax Comm’n of

City of New York, 397 U.S. 664, 675–76, (1970) (quoting New York Trust Co. v. Eisner, 256

U.S. 345, 349 (1921)). And the history makes quite clear that our Court, and our

predecessor and appellate tribunals, have consistently applied the arbitrary and

capricious standard of review since at least 1954. Gordon v. United States, 121 F. Supp. 625,

629 (Ct. Cl. 1954) (“By this application plaintiff invoked the jurisdiction of the Army

Board on Correction of Military Records and was bound by the terms thereof unless the

resulting action of the board was arbitrary or capricious, etc., or was in violation of some

other substantive right.”); see Brown v. United States, 396 F.2d 989, 991 (Ct. Cl. 1968) (“Since

Congress has vested the Service Secretaries (acting on the recommendation of the various

physical disability and correction boards) with such discretion in determining eligibility

for disability-retired pay, we have always adhered to that scope of review.” (footnotes

omitted)). 36 The Supreme Court also has long endorsed this deferential standard of

review, although it has never concluded that the APA literally applies to these cases. See

35 Friedman v. United States, 158 F. Supp. 364, 376 (Ct. Cl. 1958) (“[T]he sort of ‘review’

contemplated in an action to recover lost pay in the Court of Claims is an original suit for a money

judgment and not a review looking to the alteration or correction of an official military record or

to the compelling of official action by an officer of an executive department. And such ‘reviews’

by this court to determine whether or not pay has illegally been withheld from a member or

former member of the military services, have long been sanctioned by this court and the Supreme

Court.” (citing cases)).

36This is true even where “resort to a correction board is not mandatory.” Lewis v. United States,

458 F.3d 1372, 1376 (Fed. Cir. 2006) (citing Martinez, 333 F.3d at 1305, and explaining that “where,

as here, a service member has elected to pursue relief before a corrections board, we have

reviewed the board’s decision to determine whether it is arbitrary, capricious, unsupported by

substantial evidence, or contrary to law”(other citations omitted)).

20

Chappell v. Wallace, 462 U.S. 296, 303 (1983) (explaining that correction board “decisions

are subject to judicial review and can be set aside if they are arbitrary, capricious or not

based on substantial evidence” (citing Grieg v. United States, 640 F.2d 1261 (Ct. Cl. 1981)

and Sanders v. United States, 594 F.2d 804 (Ct. Cl. 1979))). 37 Indeed, Supreme Court

precedent supporting the application of the arbitrary and capricious standard of review

to military pay cases apparently pre-dates the APA. See Wales v. United States, 130 F.

Supp. 900, 904 (Ct. Cl. 1955) (holding that arbitrary and capricious standard of review

applies to BCMR findings and that “the doors of this court are always open to grant relief

to a party aggrieved by the action of an executive or administrative officer which is

arbitrary or capricious” because “[t]he Supreme Court has long recognized the right of

the court to review such action” (internal citations omitted) (citing Dismuke v. United

States, 297 U.S. 167, 171–72 (1936))).

Perhaps because the APA does not actually apply to Tucker Act claims, 38 binding

authority from the Court of Claims “permit[ed] the taking of de novo evidence by the [trial

court]” in military pay cases. Beckham v. United States, 375 F.2d 782, 785 (Ct. Cl. 1967);39

see Brown, 396 F.2d at 991–92 (“We have also, since we first began dealing with disability

retirement two decades ago, regularly considered evidence over and above that

presented before the administrative boards if a party wishes to offer it. . . . This coupling

of the substantial-evidence standard with the acceptance of new evidence has not

. . . encroached on the administrative process.”). In Brown, the Court of Claims reasoned

that the military disability administrative process “as a whole, is not designed to collect

and evaluate for itself all the evidence bearing on the issue of disability, nor is it geared

37See also Clinton v. Goldsmith, 526 U.S. 529, 539 (1999) (“A servicemember claiming something

other than monetary relief may challenge a BCMR’s decision . . . as final agency action under the

[APA] . . . in the district courts” or “[i]n the instances in which a claim for monetary relief may be

framed, a servicemember may enter the Court of Federal Claims with a challenge . . . under the

Tucker Act, 28 U.S.C. § 1491” (citations omitted)).

38See Bowen v. Massachusetts, 487 U.S. 879 (1988); District of Columbia v. United States, 67 Fed. Cl.

292, 305 (2005) (contrasting “two waivers of sovereign immunity” — “[t]he first is found in the

Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), the foundation of this court’s jurisdiction, and the

second is found in the [APA], 5 U.S.C. §§ 701–706 (2000), which gives United States district courts

jurisdiction over certain claims ‘seeking relief other than money damages’ against the United

States, id. § 702” (footnote omitted)).

39 See Beckham, 375 F.2d at 785 (“In determining the arbitrariness, capriciousness, or

insubstantiality of an administrative decision, it is not necessary that the review always be

restricted to the record before the administrative body. . . . This has not prevented the court from

applying its substantial evidence test to the findings of the Board. All that this procedure has

done is to expand our substantiality test. We do not ask if the Board decision is supported by

substantial evidence upon an inspection of the record, but instead, we ask if the decision meets

the test when compared with all available evidence — that is both the record and the de novo

evidence.”).

21

to produce records comparable to those of the regulatory agencies.” 396 F.2d at 996.

Thus, “[t]he character of the administrative process in military disability-retirement cases

. . . strongly suggests the propriety of our established practice of accepting de novo

evidence in this area.” Id.

Notwithstanding that Beckham and Brown are consistent with the money-

mandating nature of military pay claims — and even though Congress never applied the

APA to military pay claims in Tucker Act cases — the Federal Circuit, in a split panel

decision, 40 concluded that “it has become well established that judicial review of

decisions of military correction boards is conducted under the APA.” Walls v. United States,

582 F.3d 1358, 1367 (Fed. Cir. 2009) (emphasis added and footnote omitted). 41 The Federal

Circuit thus applied APA cases and procurement protest decisions to find that our review

of military pay claims “is generally limited to the administrative record.” Walls, 582 F.3d

at 1367–68 (Fed. Cir. 2009) (discussing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985); Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009); and

Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1338 (Fed. Cir.

2001)). 42 Judge Wolski’s summary of the standard of review, however, is more accurate:

“[t]he Court reviews the decision of a Secretary acting through a Correction Board

40Judge Newman dissented at length. See Walls, 582 F.3d at 1369–81 (Newman, J., dissenting)

(“The Brown ruling continues to be the law of this circuit.” (footnote omitted) (citing Bray v. United

States, 515 F.2d 1383 (Ct. Cl. 1975) amongst other cases)). Judge Newman maintained that “[n]o

authority disturbs the long-standing rulings that because of the nature of correction board

proceedings, augmentation of the administrative record is permissible” and that “[t]he APA does

not exclude this approach.” Id. at 1376.

41 See also Pearl v. United States, 111 Fed. Cl. 301, 303 n.1 (2013) (noting that “[a]lthough the APA

[is] 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” (quoting Walls, 582 F.3d at 1367)).

42Walls relied on two earlier Federal Circuit cases for the proposition that this Court applies the

APA in reviewing decisions of military correction boards: Metz v. United States, 466 F.3d 991 (Fed.

Cir. 2006), and Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005). See Walls, 582 F.3d at 1367

n.11. But neither case mentions the APA even a single time. Metz, consistent with precedent,

simply noted that “the Court of Federal Claims reviews the Board’s action under the same

standard as any other agency action,” while acknowledging that, fundamentally, military pay

claims are money-mandating claims under the Tucker Act. 466 F.3d at 995–98. Similarly, Fisher

recognized the money-mandating nature of a disability retirement pay claim and explained the

standard of review based on “controlling precedents,” but did not invoke the APA. Id. at 1174,

1180 (“The cases are consistent that this review is conducted under a deferential standard of

review, essentially the standard under which administrative agency decisions are reviewed” (emphasis

added)).

22

according to a standard borrowed from the [APA].” Brooks v. United States, 65 Fed. Cl. 135,

140 (2005) (emphasis added and citation omitted). 43

The upshot of this history is that our Court resolves military pay claims via cross-

motions for judgment on the administrative record, pursuant to RCFC 52.1. That process

“is properly understood as intending to provide for an expedited trial on the record” and

requires the Court “to make factual findings from the record evidence as if it were

conducting a trial on the record.” Bannum, 404 F.3d at 1354, 1356 (applying this standard

in a bid protest case); see Doyon v. United States, 58 F.4th 1235, 1242 (Fed. Cir. 2023)

(explaining, in a case involving the Board for Correction of Naval Records, that the

Federal Circuit “review[s] a decision of the Court of Federal Claims granting or denying

a motion for judgment on the administrative record without deference” (citations and

quotations omitted)). 44 The Court asks whether, given all the disputed and undisputed

facts, a party has met its burden of proof under the applicable standard of review, based

on the evidence in the administrative record. Bannum, 404 F.3d at 1356–57.

Particularly with respect to the scope of relief, however — just as in a procurement

protest action pursuant 28 U.S.C. § 1491(b) — neither Federal Circuit precedent nor this

Court’s rules preclude the consideration of evidence outside of the agency’s record. See

Aero Spray, Inc. v. United States, 156 Fed. Cl. 548, 578 n.45 (2021) (“The Court’s

consideration of such extra-record evidence is appropriate when evaluating prejudice or

the propriety of injunctive relief.” (citations omitted)); RCFC 52.1, Rules Comm. Notes

43 The Federal Circuit’s predecessor, the Court of Claims, similarly borrowed “[APA]-type

review” for other money-mandating claims. Foote Mineral Co. v. United States, 654 F.2d 81, 84–85

(Ct. Cl. 1981) (applying “[APA]-type review” to a refund claim brought pursuant to 43 U.S.C.

§ 1734(c) (1976), and citing a military pay case, Sanders v. United States, 594 F.2d 804 (Ct. Cl. 1979)).

As to whether it makes sense to apply APA case law wholesale in such cases, Judge Wolski

observed that the more recent “convention of restricting review to the administrative record

seems to conflict with the express holding of the Federal Circuit that plaintiffs challenging

Correction Board determinations are ‘entitled’ to supplement this record with additional

evidence.” Brooks, 65 Fed. Cl. at 150 n. 22 (quoting Heisig v. United States, 719 F.2d 1153, 1157

(Fed. Cir. 1983)); see also Joslyn v. United States, 110 Fed. Cl. 372, 388 (2013) (“Both the record and

the de novo evidence are considered to determine whether the decision of the military disability

evaluation board was supported by substantial evidence.” (citing Beckham, 375 F.2d at 785)).

44See also Young v. United States, 497 F. App’x 53, 58–59 (Fed. Cir. 2012) (explaining that military

pay claims and this Court’s review of military correction board decisions may be decided via

motions for judgment on the administrative record pursuant to RCFC 52.1, which “provides a

procedure for parties to seek the equivalent of an expedited trial on a ‘paper record, allowing fact-

finding by the trial court’” (quoting Bannum, 404 F.3d at 1356)); Acevedo v. United States, 216

F. App’x 977, 979 (Fed. Cir. 2007) (explaining that this Court, in reviewing decisions of the Army

Board for the Correction of Military Records, “is required to make factual findings under [RCFC]

52.1 from the record as if it were conducting a trial on the record” (footnote omitted) (citing

Bannum, 404 F.3d at 1355–57)).

23

(2006) (“Cases filed in this court frequently turn only in part on action taken by an

administrative agency. In such cases, the administrative record may provide a factual

and procedural predicate for a portion of the court’s decision, while other elements might

be derived from a trial, an evidentiary hearing, or summary judgment or other judicial

proceedings.”).

V. DISCUSSION: MR. KELTNER’S MJAR IS GRANTED

The parties’ pending motions for judgment on the administrative record require

this Court to determine whether the Second AFBCMR Decision — correcting

Mr. Keltner’s military records to reflect that he was removed from the TDRL with a final

disability rating of ten percent as of August 31, 2016 — is arbitrary, capricious, contrary

to law, or unsupported by substantial evidence.

The parties no longer dispute that Mr. Keltner’s PTSD was incurred in the line of

duty. Second AFBCMR Decision at 15. Accordingly, the threshold issue is whether the

Air Force — having corrected Mr. Keltner’s record to reflect his placement on the TDRL

as of January 22, 2016, with a disability rating of fifty percent — was per se required to

retain him on that list for five years and then retire him with a disability rating of fifty

percent. Pl. MJAR at 11. The Court answers that question in the negative and agrees with

the government that the Board must place a veteran “in the situation he would have

occupied if the wrong had not been committed.” Def. MJAR at 23–24. The Court

nevertheless concludes, based on the administrative record, the VASRD, and the IDES

regulations, that the Board’s decision to assign Mr. Keltner a final disability rating of only

ten percent is arbitrary, capricious, contrary to law, or unsupported by substantial

evidence.

A. The AFBCMR May Make Retroactive Disability Determinations, but They

Must Be Reasonable, Supported by the Administrative Record, and

Consistent with the DES Statutory and Regulatory Regime

After the Board determined that Mr. Keltner incurred PTSD in the line of duty, the

Board corrected his record to reflect that finding. Second AFBCMR Decision at 15. The

Board also applied 38 C.F.R. § 4.129 to reflect that Mr. Keltner was placed on the TDRL

with a fifty percent rating on January 22, 2016, the day after he was released from the Air

Force. Id. (applying 38 C.F.R. § 4.129). Mr. Keltner does not contest these decisions. The

Board, however, did not stop there. The Board proceeded to further “correct”

Mr. Keltner’s records to show that he was removed from the TDRL on August 31, 2016

— the date of his August 2016 VA C&P Examination, AR 1080 — with a final disability

rating of just ten percent. See Second AFBCMR Decision at 15.

As explained supra, Mr. Keltner argues the Board erred in: (1) removing him from

the TDRL, effective August 31, 2016; and (2) assigning him a ten percent disability rating.

24

In particular, Mr. Keltner maintains that the Air Force “erred by constructively removing

[him] from the TDRL . . . without following its own removal procedures.” Pl. MJAR at

14. He contends that all service members on the TDRL are entitled to periodic medical

examinations to determine if their condition has changed, an opportunity for review by

an FPEB, and the right to a full and fair hearing if the service member demands it. Pl.

MJAR at 15–16 (citing 10 U.S.C. §§ 1202, 1210, 1214). Because the Air Force never afforded

him these “procedural protections,” and cannot go back in time to provide them,

Mr. Keltner asserts the Air Force was required to retain him on the TDRL for the statutory

maximum of five years and then retire him with a fifty percent disability rating. Pl. MJAR

at 16–17. 45 In a nutshell, Mr. Keltner’s argument is that the AFBCMR could correct his

records to put him on the TDRL but could not retroactively remove him from the TDRL.

Mr. Keltner’s argument does have some facial appeal to it. As described above,

there are, in fact, only two ways to be removed from the TDRL pursuant to 10 U.S.C.

§ 1210: (1) if a medical examination “given at least once every 18 months,” 10 U.S.C.

§ 1210(a), supports the determination that the “disability is of a permanent nature and

stable,” id. § 1210(c); or (2) if “the physical disability for which the member’s name was

carried on the [TDRL] still exists” at the end of five years (under the previous version of

the statute), then the disability “shall be considered to be of a permanent nature and

stable,” id. § 1210(b). Mr. Keltner is correct that he didn’t receive the required “periodic

examination” pursuant to 10 U.S.C. § 1210(a). Pl. MJAR at 14–16. Thus, Mr. Keltner

reasons, the only way for the Air Force to remove him from the TDRL is to “consider[]”

his disability “to be of a permanent nature and stable” due to the passage of the five-year

mark. 10 U.S.C. § 1210(b); see also Pl. MJAR at 16 (“The fact that it is now impossible for

the Air Force to timely schedule a follow-up examination or to convene a new PEB does

not excuse it from needing a legal basis to remove Mr. Keltner from the TDRL.”). 46

To support that position, Mr. Keltner primarily relies on Cook v. United States, 123

Fed. Cl. 277 (2015). Pl. MJAR at 16–17. In Cook, Judge Sweeney held that when the Army

retroactively placed a veteran on the TDRL, it “triggered” the statutory and regulatory

“prerequisites” that are required to remove a veteran from that list. Cook v. United States,

45Elsewhere, Plaintiff contends that he deserves the “opportunity to be heard,” which might

include a new follow-up examination or a new PEB. Pl. Reply at 1.

46 Plaintiff similarly argues that because the Air Force did not schedule a “baseline” medical

examination after placing him on the TDRL, the AFBCMR had nothing to measure against “to

determine whether a change in evaluation is warranted.” Pl. Reply at 13–14 (quoting 38 C.F.R.

§ 4.129). Of course, the Board cannot schedule a baseline appointment for seven years ago, but it

does not follow that the Board must award Mr. Keltner a fifty percent disability rating. Indeed,

the government arguably did establish a baseline when it gave Mr. Keltner a Post-Deployment

Health Reassessment. AR 1033. As explained infra, the Board’s role is to decide, based on the

totality of the record before it, how to correct Mr. Keltner’s records to remedy the Air Force’s

error.

25

123 Fed. Cl. at 307–08. Because the Army failed to both schedule a follow-up exam and

convene a new PEB within the required timeframe, Judge Sweeney concluded that the

Army did not have a “legal basis” to remove the veteran from the TDRL. Id. at 308. In

other words, Cook concluded that the only lawful outcome was to retain the service

member on the TDRL for “as long as was legally authorized.” Id. Although Judge

Sweeney recognized that the Army could not “go back in time” to schedule a follow-up

exam or convene a timely PEB, that did not permit the Army to disregard the regulatory

prerequisites for TDRL removal. Id. Ruling otherwise, Cook opined, “would reward the

Army for its own errors.” Id. Mr. Keltner asks this Court to follow Cook and conclude

that, because the Air Force failed to schedule a follow-up exam and convene a timely PEB

for Mr. Keltner, the Board had no “legal basis” to remove him from the TDRL as of

August 2016. Pl. MJAR at 16 (citing Cook, 123 Fed. Cl. at 308).

The government, in contrast, urges this Court not to follow Cook, pointing to two

contrary decisions, including one that expressly disagreed with Cook. Def. MJAR at 27–

28 (discussing Petri v. United States, 104 Fed. Cl. 537 (2012), and Coleman v. Wilson, 2022

WL 966857 (W.D.N.C. Mar. 30, 2022)).

In Petri, this Court held that the Physical Disability Board of Review acted

reasonably when it retroactively removed an Air Force veteran from the TDRL without

either performing a new physical examination or an FPEB hearing. See 104 Fed. Cl. at

557–58. 47 According to Petri, a physical exam performed years after a veteran’s

separation would not reflect the state of a veteran’s health at the time of his or her

separation in any event, so a reasonable alternative is for a review board to consider

contemporaneous, existing medical records instead. Id. Petri also drew an important

distinction between placing members on the TDRL and “correct[ing] their records to

reflect that they had been upon the TDRL.” Id. at 557. The latter is a remedy for the

military’s error to effectuate benefits and payments; it is not a time machine that literally

places the service member on the TDRL in the past and that retroactively requires the

military to follow procedures it can no longer follow because of the passage of time.

In Coleman, the United States District Court for the Western District of North

Carolina similarly held that the Air Force acted reasonably when it retroactively removed

a veteran from the TDRL without scheduling a new physical exam. Coleman, 2022 WL

966857, at *6. The district court expressly disagreed with this Court’s decision in Cook

because it would lead to an arguably absurd result: by Cook’s logic, 38 C.F.R. § 4.129

requires either a “retroactive physical examination that is impossible to complete” in a

47The Physical Disability Board of Review is an alternative forum that was “established under 10

U.S.C. § 1554(a) . . . for the purpose of reassessing the combined disability ratings of service

members discharged after September 11, 2001 as unfit for continued military service, who had a

combined disability rating of [twenty percent] or less, and who were not eligible for retirement.”

Petri, 104 Fed. Cl. at 545.

26

timely manner or that everyone on the TDRL remains there until their disability

graduates to become “legally permanent.” Id. Coleman thus followed Petri instead. Id. at

*7 (“The Petri court’s reasoning is more persuasive.”).

This Court agrees with Petri and the district court’s decision in Coleman. Finding

that the AFBCMR was required to retain Mr. Keltner on the TDRL for the statutory

maximum of five years and then retire him with a disability rating of fifty percent would

be inconsistent with the Correction Board’s broad authority to correct military records

whenever the “Secretary considers it necessary to correct an error or remove an injustice.”

10 U.S.C. § 1552(a)(1); see also Richey v. United States, 322 F.3d 1317, 1323 (Fed. Cir. 2003)

(explaining that military secretaries have “the power to correct military records using

civilian Corrections Boards” (citing 10 U.S.C. § 1552(a)(1))); Def. MJAR at 23–24. Indeed,

the Federal Circuit has explained that “the discretionary power granted to the Correction

Boards by 10 U.S.C. § 1552 includes the power to backdate discharges where such

backdating places the claimant where he likely would have been absent the improper discharge.”

Barnick v. United States, 591 F.3d 1372, 1380 (Fed. Cir. 2010) (emphasis added) (quoting

Denton v. United States, 204 Ct. Cl. 188, 200 (1974)); see also Roth v. United States, 378 F.3d

1371, 1381 (Fed. Cir. 2004) (“The Secretary is obligated not only to properly determine the

nature of any error or injustice, but also to take ‘such corrective action as will

appropriately and fully erase such error or compensate such injustice.’”

(quoting Caddington v. United States, 147 Ct. Cl. 629, 632 (1959))); Sawyer v. United States,

930 F.2d 1577, 1581 (Fed. Cir. 1991) (explaining that BCMRs may make retroactive

disability determinations).

In this case, the Board retroactively added Mr. Keltner to the TDRL to correct an

injustice, but that does not mean the Board should give Mr. Keltner a windfall, either. See

McCord v. United States, 943 F.3d 1354, 1358 (Fed. Cir. 2019) (“[I]t would make no sense

for Congress to make a veteran whose disability record was later corrected better off than

another whose record had no error in the first place.”); cf. Samish Indian Nation v. United

States, 419 F.3d 1355, 1367 (Fed. Cir. 2005) (explaining that Congress did not intend a

remedial statute to provide “a damage remedy [that] would provide [plaintiffs] nothing

but a windfall”). In other words, the Board necessarily has the power not only to correct

Mr. Keltner’s records to give him relief, but to do so in a manner that places him in the

position he would have occupied absent the improper discharge. Barnick, 591 F.3d at

1380 (“The Board is competent to make such a retroactive disability determination.”). As

Petri and Coleman correctly recognize, placing a veteran on the TDRL in real time, on the

one hand, and correcting the record to reflect that he was on the TDRL for the purpose of

crafting a remedy for the government’s error, on the other hand, are two very different

things. Petri, 104 Fed. Cl. at 557; Coleman, 2022 WL 966857, at *6–7.

The Board corrected Mr. Keltner’s record to reflect that he was on the TDRL for

the purpose of crafting a remedy. See Second AFBCMR Decision at 15. Because

Mr. Keltner never actually went through the TDRL process, however, the procedural

27

requirements in 10 U.S.C. § 1210, 10 U.S.C. § 1214, and 38 C.F.R. § 4.129 were never

triggered. See Pl. MJAR at 15–16 (arguing that a follow-up examination and a new PEB

were “prerequisites” for retroactively removing him from the TDRL); cf. Breland v.

McDonough, 22 F.4th 1347, 1352 (Fed. Cir. 2022) (“Simply put, the Veterans Court’s

interpretation is eminently reasonable because the agency cannot provide a six-month

mandatory examination retrospectively.”).

In sum, having erred by failing to place Mr. Keltner on the TDRL to begin with,

the Air Force ipso facto could not have complied with the requisite procedures to remove

him from the TDRL. But that merely begs the question of what the AFBCMR (or this

Court) should do to remedy the Air Force’s error. While the AFBCMR is empowered to

make retroactive disability determinations generally, it still must follow the applicable

IDES rules. That brings the Court to the second issue in this case: whether the AFBCMR’s

determination that Mr. Keltner’s PTSD warranted a final ten percent disability rating as

of August 31, 2016, was arbitrary, capricious, contrary to law, or unsupported by

substantial evidence. 48

B. The AFBCMR’s Determination that Mr. Keltner Warranted a Disability

Rating of Ten Percent was Arbitrary, Capricious, or Otherwise Contrary to

Law

The Court concludes that the AFBCMR’s latest decision, removing Mr. Keltner

from the TDRL as of August 31, 2016, with a final disability rating of ten percent, is

arbitrary, capricious, or contrary to law given the administrative record. First, the

AFBCMR misapplied the VASRD. Second, to the extent that Mr. Keltner argues that there

is an unexplained and irrational gulf between the Board’s ten percent disability rating

and the VA’s fifty percent disability rating, the Court concurs. At a minimum, the Board’s

failure to adequately consider the VA Rating Decision renders the Board’s decision

arbitrary and capricious. See Second AFBCMR Decision at 14. Third, the Board erred as

a matter of law in not adopting the VA’s almost contemporaneous disability rating of

fifty percent. AR 1072–73. Finally, in the alternative, the AFBCMR erred in finding that

Mr. Keltner’s PTSD was permanent and stable as of August 31, 2016.

48During oral argument, Plaintiff appeared to acknowledge that the AFBCMR may retroactively

remove a service member from the TDRL if the record supports that outcome. See Tr. at 25:16–20

(“[PLAINTIFF’S COUNSEL]: . . . Our argument is really that, in this case, if there was somewhere

in the record evidence of a finding of permanency and stability, then you could be removed from the

TDRL prior to the expiration of the time period.” (emphasis added)).

28

1. The AFBCMR’s Misapplication of the VASRD Was, at a Minimum,

Irrational

The AFBCMR’s latest decision is critically flawed because it badly misreads the

August 2016 VA C&P Examination in the context of the VASRD and improperly

discounts the VA Rating Decision. Either way, Mr. Keltner is entitled to judgment and

the monetary relief he seeks.

The Board relied primarily on Mr. Keltner’s August 2016 VA C&P Examination to

determine that his condition warranted a final rating of ten percent. Second AFBCMR

Decision at 13 (explaining that “the Board finds the applicant’s PTSD symptoms outlined

in the VA C&P examiner’s notes, dated 31 Aug 16, align with a [ten] percent disability

rating”). The Board acknowledged the VA’s nearly contemporaneous “final rating for

[Mr. Keltner’s] medical condition of, ‘PTSD, to include depressive disorder, anxiety

disorder, and alcohol use disorder,’ was rated at 50 percent.” Id. at 14. The Board

disregarded the VA’s rating, however, cryptically noting that it “cannot speculate why

the VA assigned a 50 percent rating.” Id.

Section 1216a of Title 10 of the United States Code requires the military to utilize

the VASRD in evaluating disabilities, “including any applicable interpretation of the

schedule by the United States Court of Appeals for Veterans Claims.” 10 U.S.C.

§ 1216a(1)(A); see also National Defense Authorization Act for Fiscal Year 2008 § 1612, 122

Stat. at 442 (explaining that Congress sought to “eliminate unacceptable discrepancies

and improve consistency among disability ratings” between the VA and the military

departments). As explained above, a service member’s final rating can determine if he or

she is separated or retired — with significant financial implications. See 10 U.S.C.

§ 1201(b).

The VA’s “General Rating Formula for Mental Disorders” is contained within 38

C.F.R. § 4.130. There are six disability levels: zero, ten, thirty, fifty, seventy, ninety, and

one hundred percent. 38 C.F.R. § 4.130. Relevant here, the definitions for ratings of ten,

thirty, and fifty percent are as follows:

[Ten percent:] Occupational and social impairment due to

mild or transient symptoms which decrease work efficiency

and ability to perform occupational tasks only during periods

of significant stress, or symptoms controlled by continuous

medication.

[Thirty percent:] Occupational and social impairment with

occasional decrease in work efficiency and intermittent

periods of inability to perform occupational tasks (although

generally functioning satisfactorily, with routine behavior,

29

self-care, and conversation normal), due to such symptoms

as: depressed mood, anxiety, suspiciousness, panic attacks

(weekly or less often), chronic sleep impairment, mild

memory loss (such as forgetting names, directions, recent

events).

[Fifty percent:] Occupational and social impairment with

reduced reliability and productivity due to such symptoms

as: flattened affect; circumstantial, circumlocutory, or

stereotyped speech; panic attacks more than once a week;

difficulty in understanding complex commands; impairment

of short- and long-term memory (e.g., retention of only highly

learned material, forgetting to complete tasks); impaired

judgment; impaired abstract thinking; disturbances of

motivation and mood; difficulty in establishing and

maintaining effective work and social relationships.

38 C.F.R. § 4.130.

Determining which rating should be assigned to a veteran is a symptom-driven

analysis. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013) (explaining that

“most of the General Rating Formula [for Mental Disorders] is dedicated to associating

certain symptoms with certain disability ratings, and to this end, the regulation’s plain

language highlights its symptom-driven nature”); Bankhead v. Shulkin, 29 Vet. App. 10, 22

(2017) (requiring the VA to “engage in a holistic analysis in which it assesses the severity,

frequency, and duration of the signs and symptoms of the veteran’s service-connected

mental disorder; quantifies the level of occupational and social impairment caused by

those signs and symptoms; and assigns an evaluation that most nearly approximates that

level of occupational and social impairment”). A veteran must also exhibit the required

degree of “occupational and social impairment,” which must be “due to” those

symptoms. Vazquez-Claudio, 713 F.3d at 116. 49

In assigning Mr. Keltner a final disability rating of ten percent based on the August

2016 VA C&P Examination, the Board did not address, or even acknowledge, that this

VA exam is replete with contrary findings supporting a higher disability rating. The

Board relied almost exclusively on the fact that the VA psychologist checked a box on the

examination form describing “[o]ccupational and social impairment due to mild or

49The Federal Circuit also observes that the use of the phrase “such symptoms as” in all of the

rating definitions greater than ten percent implies that these lists of symptoms are non-

exhaustive. See Vazquez-Claudio, 713 F.3d at 115. Furthermore, as the disability rating levels

increase, the associated levels of “occupational and social impairment” are more severe, as are

the “frequency, severity, and duration” of associated symptoms. Id. at 116.

30

transient symptoms which decrease work efficiency and ability to perform occupational

tasks only during periods of significant stress, or[] symptoms controlled by medication,”

which is nearly the definition of a ten percent disability rating. Compare 38 C.F.R. § 4.130,

with AR 1081. 50 But the Board’s hyperfocus on the August 2016 VA C&P Examination

report oddly ignores that the bulk of those exam notes do not describe someone with

merely “mild or transient symptoms.” Compare 38 C.F.R. § 4.130 (ten percent rating), with

AR 1080 (describing Mr. Keltner as exhibiting “mild to moderate symptoms overall”

(emphasis added)).

Indeed, the examining psychologist indicated that Mr. Keltner’s anxiety and

depressive disorders could not be disentangled from his PTSD. AR 1080–81. The August

2016 VA C&P Examination further indicates that Mr. Keltner had the following

symptoms: depressed mood; anxiety; panic attacks more than once a week; chronic sleep

impairment; mild memory loss (such as forgetting names, directions, or recent events);

disturbances of motivation and mood; and even suicidal ideation. AR 1094. Cross-

checking Mr. Keltner’s symptoms with the VASRD ratings demonstrates that Mr. Keltner

exhibited every symptom enumerated in the thirty percent disability rating. 51 Compare

AR 1094, with 38 C.F.R. § 4.130. Mr. Keltner further displayed two symptoms that are

encompassed in the fifty percent rating — i.e., disturbances of motivation and mood, and

panic attacks more than once a week; he reported having panic attacks at least once per

day. Compare AR 1090, 1094, with 38 C.F.R. § 4.130. Finally, he had one significant

symptom consistent with a seventy percent disability rating: suicidal ideation. Compare

AR 1094, with 38 C.F.R. § 4.130. Although Mr. Keltner denied “current suicidal ideation,”

the VA psychologist confirmed “passive suicidal ideation” about once a month, including

during the week before the examination. AR 1091.

Because a disability rating determination must be a “symptom-driven” analysis,

Vazquez-Claudio, 713 F.3d at 116, the Court, as discussed in more detail below, finds that

the VA’s assignment of a fifty percent disability rating was eminently reasonable, AR

1072–73, whereas the Board’s ten percent rating was not, Second AFBCMR Decision at

15.

50The only difference in wording between the August 2016 VA C&P Examination form and 38

C.F.R. § 4.130 is the word “continuous.” Whereas the August 2016 VA C&P Examination form

provides “symptoms controlled by medication,” AR 1081, the definition of a ten percent disability

rating provides “symptoms controlled by continuous medication,” 38 C.F.R. § 4.130 (emphasis

added). This distinction appears insignificant as neither party addresses it. This Court concurs

with the Board that the August 2016 VA C&P Examination form references the ten percent rating

definition in 38 C.F.R. § 4.130. See Second AFBCMR Decision at 14.

51The examiner also noted that Mr. Keltner displayed “suspiciousness” as well, relaying fears of

“bombs going off, explosions, or dying”; hypervigilance; and heightened feelings of fear when

driving. AR 1090.

31

In reviewing the Board’s determination, the Court must consider Mr. Keltner’s

level of social and occupational impairment in addition to his symptoms. See 38 C.F.R.

§ 4.130; Vazquez-Claudio, 713 F.3d at 117–18 (explaining that, for any particular disability

rating level, a veteran must exhibit the required degree of “occupational and social

impairment,” which, in turn, must be “due to” the disability symptoms). The August

2016 VA C&P Examination documented these issues in detail. AR 1090. For example,

Mr. Keltner reported that, during social interactions, he experienced considerable

anxiety, including “physical tension along with sweating, feeling like his eyes get red,

stammering, stuttering, and lapses in concentration in the middle of conversations.” Id.

He also had “feelings of detachment or estrangement from others.” AR 1093.

Mr. Keltner’s depression contributed to social impairment as well. He had lost interest

in social activities he previously enjoyed, like playing pool and darts. AR 1090. He said

he had two close friends that lived nearby, “estimated that he ha[d] contact with friends

anywhere from daily to a couple times per year,” “denied that that he and his friends go

out and do things together,” and “reported that he spends his free time watching

television.” AR 1083.

The August 2016 VA C&P Examination further conveys that Mr. Keltner’s PTSD

and “overlapping” anxiety, depressive, and alcohol use disorders contributed to

occupational impairments as well. See AR 1080–81. Although the record evidence for

that conclusion is more ambiguous than that of his social impairment, the exam notes

substantiate that Mr. Keltner experienced reduced occupational “efficiency,”

“productivity,” and “reliability,” the relevant metrics from the VASRD criteria. See 38

C.F.R. § 4.130 (describing occupational impairment in terms of “reduced” or

“decrease[d]” “efficiency,” “productivity,” and “reliability”). Although he denied

“significant work-related adjustment problems,” he reported having problems

concentrating, and said he would forget conversations and other information. AR 1084,

1090, 1094. He also said he had low energy, felt “tired a lot,” and was “down and

depressed on a daily basis for most of the day.” AR 1090, 1094. His alcohol use disorder

had led to a DUI and work tardiness. AR 1091. His social anxiety and panic attacks

clearly hindered his work relationships, as he described feeling uncomfortable around

others, especially in crowds or when speaking to someone in professional roles. AR 1083.

And the VA psychologist noted that Mr. Keltner satisfied PTSD criteria such as

“recurrent, involuntary, and intrusive distressing memories”; “persistent and

exaggerated negative beliefs or expectations about oneself, others, or the world”; and

“irritable behavior and angry outbursts (with little or no provocation) typically expressed

as verbal or physical aggression toward people or objects.” AR 1093–94.

Despite this torrent of evidence pointing toward a higher disability rating, the

AFBCMR found that Mr. Keltner’s condition warranted a rating of just ten percent.

Second AFBCMR Decision at 15. In so doing, the Board “entirely failed to consider an

important aspect of the problem.” Ala. Aircraft Indus., Inc.–Birmingham v. United States,

586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

32

Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Although “symptomology should be the fact

finder’s primary focus when deciding entitlement to a given disability rating,” Vazquez-

Claudio, 713 F.3d at 117, the Board ignored that Mr. Keltner exhibited every symptom for

a rating of thirty percent, that he had two symptoms in line with a fifty percent rating,

and that he had one symptom in line with a seventy percent rating, see Second AFBCMR

Decision at 14; AR 1094.

The Board decision opined that “[t]he VA C&P examiner’s notes do not indicate

the applicant meets the criteria for [a thirty] percent rating. In fact, the examiner’s

assessment indicated, ‘the applicant’s symptoms are in better control and he is

functioning consistently well. I will continue current medications.’” Second AFBCMR

Decision at 14 (quoting AR 1089). But that summation can only be achieved by cherry-

picking the record. See Valles-Prieto v. United States, 159 Fed. Cl. 611, 618 (2022) (“The

AFBCMR also failed to consider the entire record because it cherry-picked which

evidence to consider.”). Indeed, the VA psychologist noted that Mr. Keltner had all of

the symptoms listed in the thirty percent definition. Compare AR 1094, with 38 C.F.R.

§ 4.130. Furthermore, the Board’s quotation about Mr. Keltner’s symptoms being in

“better control” does not come from the August 2016 VA C&P Examination, as the Board

suggests, but from an earlier exam with a different doctor. See AR 1089–90 (incorporating

notes from two previous exams by two different health professionals).

In addition to disregarding Mr. Keltner’s panoply of symptoms the VA

psychologist documented in the August 2016 VA C&P Examination, the Second

AFBCMR Decision similarly ignored the VASRD criteria for occupational and social

impairment. Instead of discussing the examiner’s descriptions of Mr. Keltner’s impaired

work and social life, the Board found, in essence, that the VA examiner “summarized”

his findings by checking the ten percent VASRD rating box. Second AFBCMR Decision

at 14. That evidence is insufficient to support a ten percent rating when the rest of the

examination notes, which the Board did not even address, contradict the checkbox. The

Court’s conclusion, in that regard, is consistent with the government’s concession that

“[t]here is no clear bright line between a 10 percent rating and a 30 percent rating or 50

percent rating under VASRD section 4.130” but “instead, the regulation supplies general

descriptions to guide the rating decision.” Def. MJAR at 34.

2. The AFBCMR Improperly Discounted the VA Rating Decision

The VA Rating Decision that evaluated Mr. Keltner’s PTSD as a fifty percent

disability did not make the same error as the Board, which entirely discounted the VA

Rating Decision because it could not “speculate why the VA assigned [Mr. Keltner] a fifty

percent rating.” Second AFBCMR Decision at 14. But no speculation is necessary. After

all, the VA explained that it reached its disability rating determination by considering the

“overall evidentiary record.” AR 1074. The VA Rating Decision noted that Mr. Keltner

was reported to have “mild or transient symptoms” consistent with a ten percent rating,

33

but then it also noted that he presented with a “depressed mood, suicidal ideation,

disturbances of motivation and mood, mild memory loss, anxiety, chronic sleep

impairment, and panic attacks more than once a week.” Id. The AFBCMR, however,

myopically focused only on the fact that the VA psychologist checked the ten percent box

on the August 2016 VA C&P Examination form. Second AFBCMR Decision at 14. In

enacting 10 U.S.C. § 1216a, Congress sought to “eliminate unacceptable discrepancies and

improve consistency among disability ratings” between the VA and the military

departments. National Defense Authorization Act for Fiscal Year 2008 § 1612, 122 Stat.

at 442. On this record, the chasm between the AFBCMR’s ten percent disability rating

and the VA’s fifty percent disability rating is “unacceptable.” Id. And, on this record, the

AFBCMR’s determination is arbitrary and capricious, while the VA’s rating is reasonable.

The AFBCMR’s further reliance upon the September 2021 AFRBA Memorandum

does not excuse ignoring the VA Rating Decision. The Board’s psychological advisor —

whose role was limited to reviewing Mr. Keltner’s medical records — wrote that Mr.

Keltner “was able to function as he was able to maintain full-time employment and even

worked over time on multiple occasions and simultaneously attended Heating,

Ventilation, and Air Conditioning (HVAC) schooling. There were no significant

impairments noted with his occupational, social, and academic functioning.” Second

AFBCMR Decision at 11 (summarizing the September 2021 AFRBA Memorandum, AR

1051). The AFRBA Memorandum, in turn, is a woefully incorrect summary of the August

2016 VA C&P Examination. See AR 1094. The August 2016 VA C&P Examination

explained that Mr. Keltner’s PTSD “causes clinically significant distress or impairment in

social, occupational, or other important areas of functioning.” Id. (emphasis added). The

Board did not address the VA’s observation or how the AFRBA Memorandum diverged

from it. The Board’s psychological advisor also failed to appreciate that “occupational

impairment” refers to decreases in “efficiency,” “reliability,” “productivity,” and the

“ability to perform occupational tasks.” See 38 C.F.R. § 4.130. Concluding that the inquiry

is over if a veteran holds a fulltime job would render the symptoms and impairment

language in the ratings meaningless. See id.

The Board’s decision is not entitled to greater deference simply because an expert

trained in psychology selects a few facts in the record while ignoring the rest. See Motor

Vehicle Mfrs. Ass’n, 463 U.S. at 43 (explaining that if an agency’s explanation for a decision

“runs counter to the evidence before the agency,” then the decision is arbitrary and

capricious); Versaci v. United States, 403 F.2d 246, 258 (Ct. Cl. 1968) (concluding that

medical advice “‘couched in broad conclusions rather than a reasoned discussion of the

evidence’ is entitled to little weight” (quoting Dayley v. United States, 180 Ct. Cl. 1136, 1146

(1967)); Brown, 396 F.2d at 995 n.15 (“This court has never held that a board’s action is

arbitrary merely because it relied on an ex parte statement from The Surgeon General. If,

however, the statement was inaccurate and the board relied on it, we have declined to

uphold the denial of relief.” (citation omitted)).

34

The Second AFBCMR Decision itself further acknowledges that Mr. Keltner

should receive “liberal consideration due to his mental health conditions and in

accordance with the Secretary of Defense Clarifying Guidance memorandums, dated 3

Sep 14 and 25 Aug 17.” Second AFBCMR Decision at 6; cf. Doyon, 58 F.4th at 1238

(elaborating on these two memorandums and concluding that they are binding on

BCMRs); Rebecca Izzo, Comment, In Need of Correction: How the Army Board for Correction

of Military Records Is Failing Veterans with PTSD, 123 Yale L.J. 1587, 1590 (2014) (arguing

that the military “is still not appropriately diagnosing PTSD,” despite significant

advances in medical understanding over the last several decades). There is no indication

in the Board’s decision, however, that it gave Mr. Keltner any benefit of the doubt,

despite: (1) the government’s acknowledgement that the record could support a higher

disability rating percentage; and (2) the VA Rating Decision’s assessing a fifty percent

disability rating. 52

In sum, the Board failed to “articulate any rational connection between the facts

found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168

(1962). Its determination that Mr. Keltner warranted a ten percent disability rating as of

August 2016 was arbitrary and capricious.

3. The AFBCMR was Required to Follow the VA Rating Decision

Plaintiff argues that the Air Force’s determination of ten percent — after the VA’s

determination of fifty percent — violated the “presumption of regularity” that should

have been accorded to the VA’s rating. Am. Compl. (Count III); Pl. Reply at 21. This

contention misunderstands the doctrine. According to the Federal Circuit, the

“presumption of regularity provides that, in the absence of clear evidence to the contrary,

the court will presume that public officers have properly discharged their official duties.”

Toomer v. McDonald, 783 F.3d 1229, 1235 (Fed. Cir. 2015) (citing Sickels v. Shinseki, 643 F.3d

1362, 1366 (Fed. Cir. 2011)). Although the Court will presume that the VA properly

discharged its duties when it rated Mr. Keltner’s disability at fifty percent, this

presumption, standing alone, does not mean that the Air Force was required to assign

him an identical rating. See Toomer, 783 F.3d at 1235. An agency does not “violate” this

presumption, Pl. MJAR at 24, when it reaches a different conclusion than another agency.

Nevertheless, this Court agrees with Mr. Keltner that “[t]he Government’s

approach does not place Mr. Keltner in the situation he would have occupied but for the

Air Force’s mistakes.” Pl. Reply at 9. 53 The Board in this case simply failed to fully

comprehend or consider the “but-for world.” Spicer v. McDonough, 61 F.4th 1360, 1365–

52The government agrees that Mr. Keltner had “two symptoms . . . for the 50% disability rating”

and one symptom “that meets the 70% disability rating.” Def. MJAR at 36.

53The government agrees with Mr. Keltner’s framing: “The question for the board was, save for

the Air Force’s error, what position would Mr. Keltner be in today.” Def. Reply at 3.

35

66 (Fed. Cir. 2023) (rejecting the “the government’s concerns that the VA cannot ‘measure,

evaluate, or appropriately compensate’ [a veteran] . . . in a but-for world because the

assessment is too speculative,” because “[d]escribing a but-for world necessarily requires

imagining that which did not occur” and “some speculation is naturally baked into but-

for causation.”).

In particular, the Board incorrectly assumed that it was free to arrive at a disability

rating itself, de novo, without regard to the VA’s rating:

[T]he Air Force may assign disability ratings independently

for TDRL re-evaluations by consideration of the VA and[/or]

civilian medical records along with the results of the TDRL

re-evaluation[,] and is not bound by the VA’s determination

as is required when a service member enters the MEB for

separation, under the IDES.

Second AFBCMR Decision at 14. The Board cited no authority for this assertion, but its

view appears to be derived directly from the AFBCMR psychological advisor’s opinion

in the September 2021 AFRBA Memorandum. AR 1051. There, the psychological advisor

asserted (also without citing any authority):

It is acknowledged the applicant was given a 50% disability

rating from the VA from the same C&P exam despite the C&P

exam evaluator determining the level of impairment that

exactly fits and meets the 10% criteria. To explain the

disparity and for general awareness, when a service member

enters the [MEB] for separation, under the [IDES], the VA is

the single rating authority and the [DoD] to include the Air

Force must accept the VA rating for the unfitting condition.

Nonetheless during the TDRL re-evaluation and adjudication

process, DoD is not bounded by the VA’s rating and makes

its decision independently considering the VA and/or

civilian medical records and the results of the TDRL re-

evaluation if available.

AR 1051 (emphasis in original).

What both the psychological advisor and the Board got right is that, in the “but-

for world,” Mr. Keltner would have been processed through the IDES. See Second

AFBCMR Decision at 14; AR 1050–51 (noting that Mr. Keltner “should have been

processed through the DES/IDES for a medical discharge”). The Board’s psychological

36

advisor also correctly explained what would have happened if Mr. Keltner had “be[en]

properly processed through the DES”:

[T]he IPEB would find his condition of PTSD, VARSD code

9411 as unfitting, designated as Combat Related and would

recommend he be placed on the [TDRL] with a rating of 50%

because his condition [would] not [be] determined as stable

in accordance to AFI 36-3212. He would also be required to

receive a TDRL re-evaluation once every 18 months for up to

three years or until his condition was determined to be stable

by a duly qualified psychiatrist or doctoral level psychologist.

If his condition was determine[d] to be stable, he would be

removed from TDRL and be given another and final rating

(the rating could remain the same, increase or decrease

depending on level of impairment) from the Air Force.

AR 1050. 54

The defect in the psychological advisor’s conclusion, however — and thus in the

Board’s conclusion — is failing to appreciate that, but for the Air Force’s error, the Air

Force would have had to follow the VA’s disability rating as part of the IDES. DoDM

1332.18, § 10.4 (“TDRL Reevaluation”). Indeed, that is the entire point of the IDES: the

VA performs the medical exam and decides the rating, and the military decides whether

the disability renders the service member unfit. Id.; see also Kaster, 158 Fed. Cl. at 90 n.2

(“[T]he [IDES] [is] a joint medical evaluation process which combines the disability

examinations performed by DoD and the VA and requires the DoD to apply the VA’s

disability rating determinations for all conditions the Navy determines to be unfitting.”);

U.S. Gov’t Accountability Off., GAO-12-676, Military Disability System: Improved

Monitoring Needed to Better Track and Manage Performance 3 (2012) (describing the IDES

and explaining that during the “PEB phase” the VA “prepares a rating that covers the

conditions that DOD determined made a servicemember unfit for duty” and that “[t]his

rating is prepared for use by both agencies in determining disability benefits”); U.S. Gov’t

Accountability Off., GAO-13-5, Recovering Servicemembers and Veterans: Sustained

Leadership Attention and Systematic Oversight Needed to Resolve Persistent Problems Affecting

Care and Benefits 10 (2012) (“IDES merges DOD’s and VA’s separate medical exams for

servicemembers into a single exam process” and “consolidates DOD’s and VA’s separate

disability rating decisions into a single VA rating decision[.]”); Dep’t of Def., IDES,

https://warriorcare.dodlive.mil/Portals/113/Documents/Reference%20Center/IDES-

New-Factsheet.pdf (last visited May 2, 2023) (“The IDES is a joint DoD and [VA] disability

54The psychological advisor erroneously referenced the current three-year TDRL maximum; the

correct time period for the purposes of this case, however, is five years, not three years, as the

Court noted above.

37

evaluation process. Under this system, . . . [s]ervice members determined to be unfit for

duty receive a single set of disability ratings to determine the appropriate level of DoD

and VA disability benefits . . . .VA assigns disability ratings according to the [VASRD]

that are accepted by both DoD and VA.”). 55

Air Force sources are similarly consistent in explaining that the VA determines the

disability ratings as part of the IDES process:

The VA will perform a medical exam which will be used by

the Air Force in determining your fitness for duty and by the

VA in determining your disability ratings. The PEB will

decide which condition(s) (if any) makes you unfit for

continued service and will send the case file to the VA, who

will assign your disability ratings. The PEB will then apply

the VA ratings to your unfitting conditions.

55See also Dep’t of Def., Report to the Congressional Committees: Assessment and Recommendations

Report: Consolidation of the Disability Evaluation System § 1.1 (Nov. 2014) (“IDES streamlines the

disability process so Service members receive a single set of physical disability examinations. The

examinations are conducted according to VA protocols and disability ratings prepared by VA.

DoD and VA share the examination results and ratings to relieve Service members of the burden

of redundant examination requirements and divergent ratings for the same disability.”); Seamless

Transition: Review of the Integrated Disability Evaluation System Before the S. Comm. on Veterans’ Affs.,

112th Cong. 54 (2012) (statement of John R. Gingrich, Chief of Staff, United States Department of

Veterans Affairs) (“In contrast to the DES legacy process, IDES provides a single set of disability

examinations and a single-source disability rating, for use by both Departments in executing their

respective responsibilities.”); id. at 10 (statement of Dr. Jo Ann Rooney, Acting Under Secretary

of Defense, Personnel and Readiness, United States Department of Defense) (“The IDES, similar

to the DES Pilot, streamlines the disability process so Servicemembers receive a single set of

physical disability examinations conducted according to VA examination protocols and disability

ratings prepared by VA. The Departments of Defense and Veterans Affairs share the examination

results and ratings to relieve Servicemembers of the burden of redundant examination

requirements and divergent ratings for the same disability.”); Legislative Hearing on Pre-Discharge

Claims Programs: Are VA and DOD Effectively Serving Separating Military Personnel Before the

Subcomm. on Disability Assistance & Mem’l Affs. of the H. Comm. on Veterans’ Affs., 115th Cong. 24

(2017) (statement of Willie C. Clark, Sr., Deputy Under Secretary for Field Operations, Veterans

Benefits Administration, United States Department of Veterans Affairs) (“IDES provides a single

set of disability examinations and a single-source disability rating that are used by both

departments in executing their respective responsibilities — eliminating the duplicate medical

examination and rating determinations within DoD and within VA processes.”).

38

U.S. Air Force, Integrated Disability Evaluation System, Air Force Wounded Warrior (AFW2)

Program; 56 see Air Force Manual 41-210, at 208–09 (Sept. 10, 2019) (“The [IDES] integrates

the [DES] with the [VA], and delivers the advantage of single-sourced disability ratings that

are accepted by both the DoD and the VA[.]” (emphasis added)). 57

Thus, under the IDES, the final, total disability rating of a military service may

differ from the VA’s, not because the military issues its own rating in lieu of the VA’s

rating, but rather because the military only compensates members for those disabilities

which render the member “unfit for further military service.”58

But perhaps the TDRL process is different and exempt from the normal VA rating

process, even under the IDES, as the psychological advisor and the Board seem to posit.

AFI 36-3212 suggests that possibility, in providing that “[t]he PEB will assign a disability

rating percentage(s) to unfitting medical conditions using the current VASRD for service

members . . . for TDRL reevaluations.” AFI 36-3212 ¶ 1.10.2 (emphasis added). The

problems for the Air Force here, however, are several.

First, that same paragraph of the AFI has a benefit-of-the-doubt rule that applies

to Mr. Keltner’s case. See id. (“When, after careful consideration of all procurable and

assembled data, a reasonable doubt arises regarding the degree of disability, such doubt

will be resolved in favor of the service member.”). Here, the Board does not explain why

it entirely disregarded the VA’s rating and assigned a vastly lower rating years later,

As of May 2, 2023, this website was available at: https://www.woundedwarrior.af.mil/About

56

/Documents/Display/Article/940713/integrated-disability-evaluation-system.

57See also Air Force Pers. Ctr., Integrated Disability Evaluation System (IDES), https://www

.woundedwarrior.af.mil/Portals/23/documents/07_PROGRAMS%20AND%20INITIATIVES

/02_Caregiver%20Support/IDES%20Short%20Brief.pdf (last visited May 2, 2023) (presentation

on IDES, indicating that the Air Force will “[a]pply ratings from VA for unfitting conditions”);

U.S. Air Force, USAF Integrated Disability Evaluation System Fact Sheet 1 (2015), https://www

.woundedwarrior.af.mil/portals/23/documents/082916_ides_factsheetfeb2015.pdf (“The VA

will perform a medical exam which will be used by the Air Force in determining your fitness for

duty and by the VA in determining your disability ratings. The PEB will decide which

condition(s) (if any) makes you unfit for continued service and will send the case file to the VA,

who will assign your disability ratings. The PEB will then apply the VA rating to your unfitting

conditions.” (emphasis added)).

58U.S. Air Force, Integrated Disability Evaluation System, supra note 57 (“The findings of the two

agencies frequently differ because the VA may compensate for any service-connected physical or

mental condition listed in the VASRD, whereas the Air Force may only compensate for those

conditions which render you unfit for further military service. For this reason, it is not unusual for

the military and VA total disability ratings to differ.” (emphasis added)); see also U.S. Air Force,

USAF Integrated Disability Evaluation System Fact Sheet, supra note 57, at 9 (same).

39

instead. At a minimum, the VA’s fifty percent rating should have created at least a

reasonable doubt in favor of Mr. Keltner pursuant to the Air Force’s own regulation. 59

Second, AFI 36-3212 ¶ 1.10.2 must be read in conjunction with both ¶ 8.5.1 of the

same document and DoDM 1332.18, Vol. 1. The former provides that the Air Force, as

part of the TDRL reevaluation process, “queries the VA for the most current rating within

16 months from placement on TDRL,” AFI 36-3212, ¶ 8.5.1, and “[i]f the VA rating is

sufficient for adjudication, the TDRL office will forward to the [IPEB] for review,” id.

¶ 8.5.1.1. The latter describes the TDRL reevaluation procedure:

VA will conduct and prepare rating decisions for veterans who

were temporarily retired for disability in accordance with VA

laws and regulations. VA will provide a copy of the most

current rating and the medical evidence upon which the most

current rating is based . . . . If VA does not provide

examination and rating information sufficient to adjudicate

the veteran’s case or if the VA exam is older than 18 months,

the Military Department will execute required TDRL

examinations and ratings in accordance with [the VASRD].

DoDM 1332.18, ¶ 10.4 (“TDRL Reevaluation”) (emphasis added); see also DoDM 1332.18,

Vol. 2, at 36 (Aug. 21, 2020) (Enclosure 5, “TDRL Procedures”). An Air Force Instruction

cannot override a DoD regulation. Baude v. United States, 955 F.3d 1290, 1299 (Fed. Cir.

2020) (concluding that the Secretary of the Air Force “did not have discretion to change

the DoD-imposed regulatory requirement” and that he “was obligated to follow [the]

DoDI”). Accordingly, in assessing the “but-for world,” the AFBCMR must adhere to the

VA’s rating, even for a service member on the TDRL, unless there is some reason to

conclude that the VA’s “examination and rating information” was insufficient. DoDM

1332.18, ¶ 10.4

In Mr. Keltner’s case, neither the Board nor its psychological advisor determined

that the VA’s “examination and rating information” was insufficient or somehow

59Plaintiff claims that if there was a reasonable doubt over the degree of his disability, then the

Board failed to resolve the doubt in his favor. Am. Compl. at 13 (Count II) (citing 10 U.S.C.

§ 1216a; 38 C.F.R. § 4.3). This Court agrees, but because the Court finds that a ten percent rating

as of August 2016 was unreasonable based on the record, there was not an “approximate balance”

of evidence straddling two different possible ratings. See Lynch v. McDonough, 21 F.4th 776, 781

(Fed. Cir. 2021) (explaining that reasonable doubt exists when there is an “approximate balance”

of positive and negative evidence); see also 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. Otherwise, the lower rating will

be assigned.”). In other words, Mr. Keltner does not need this tie-breaker rule to prevail.

40

defective. DoDM 1332.18, ¶ 10.4. Rather, both the Board and its psychological advisor

relied on the August 2016 VA C&P Examination and then simply assumed they could

disregard the VA’s nearly contemporaneous fifty percent disability rating. This approach

failed to recognize that, as part of the IDES, the Air Force ordinarily must adhere to the

VA’s disability rating. 60

Moreover, at least the Board’s psychological advisor candidly explained that she

was basing her ten percent recommendation “upon the evidence presented and available

at the ‘snapshot’ time of the records following 18 months of his discharge in lieu of an official

TDRL assessment.” AR 1051 (emphasis added). That is, she acknowledged that a de novo

rating determination does not itself constitute a TDRL reevaluation, which, given the

timing, is now impossible to provide. See AR 1050 (“Since the applicant never received a

TRDL re-evaluation and it would not be possible for him to receive one in present time

due to statutory limits, this psychological advisor utilizes his VA treatment records to

determine his final rating.”). 61 In contrast, the Board merely assumed, without

supporting authority, that its new disability rating itself constituted a proper TDRL re-

evaluation. Second AFBCMR Decision at 10 (noting that “the Air Force may assign

disability ratings independently for TDRL re-evaluations”). But while this Court agrees

with the government that the AFBCMR may correct Mr. Keltner’s record retroactively to

account for the “but-for world,” Def. MJAR at 23–24, its latest decision is not, itself, a

TDRL reevaluation, which would include a host of other procedural protections,

including a new medical examination. See, e.g., AFI 36-3212, ¶ 8.11. At least on this

record, then, this Court concludes that the Board was required to follow the VA Rating

Decision, which immediately followed the August 2016 VA C&P Examination. See

Barnick, 591 F.3d at 1381 (“[T]he extent of a service member’s disability is to be

determined at the time that he is found unfit for duty and separated from the service.”).

60This Court rejects the government’s attempt to minimize the importance of the VA’s disability

ratings in the IDES context, generally, and in the factual context of this case, in particular. See

Def. MJAR at 16 n.7 (citing Schmidt v. Spencer, 319 F. Supp. 3d 386 (D.D.C. 2018); Ward v. United

States, 133 Fed. Cl. 418 (2017); and Stine v. United States, 92 Fed. Cl. 776 (2010)). None of these

cases addressed the IDES. Moreover, in Ward, Judge Williams merely concluded that “the

relevant time for a determination of whether Plaintiff is entitled to military disability benefits is

when Plaintiff was separated from the service.” 133 Fed. Cl. at 431 (citing Stine, 92 Fed. Cl. at

795). The undersigned takes no issue with that uncontroversial principle, but here the VA’s

disability rating of Mr. Keltner was virtually contemporaneous with — and, indeed, was based

on — the very same August 2016 VA C&P Examination that the AFBCMR used to issue a different

(and lower) disability rating.

61The Board’s psychological advisor expressly used Mr. Keltner’s treatment records, but not the

VA’s rating, “to substitute [for] the absence of officially being on TDRL and receiving a TDRL re-

evaluation.” AR 1050.

41

Finally, the lack of deference the AFBCMR paid to the VA Rating Decision is also

inconsistent with this Court’s remand order. See ECF No. 51 (remanding “this case to the

AFBCMR for further proceedings consistent with the parties’ agreement as incorporated

by reference herein”). In particular, the government committed to the following: “[w]ith

respect to the disability rating issue, on remand, if Mr. Keltner submits to the Board a

rating decision by the [VA], the Board shall consider it, and the Board shall explain how

it weighed evidence of . . . the VA’s rating decision.” ECF No. 50 at 5 (¶ 7). Furthermore,

the Board acknowledged that, on remand, it was required “to consider the rating decision

by the [VA] . . . and explain how it weighed evidence of the VA’s rating decision.” Second

AFBCMR Decision at 9. The Board clearly did not do so; its mere mention of the VA

Rating Decision and assertion that the Board could not “speculate why the VA assigned

a 50 percent rating,” id. at 14, does not remotely cut the mustard. Beckham, 392 F.2d at

622–23 (“A naked conclusion and mere recitation that the opinion is based upon all of the

evidence without an analysis of the evidence in writing (as here), is inimical to a rational

system of administrative determination and ultimately inadequate.”).

4. In the Alternative, the Air Force’s Implicit Finding that Mr. Keltner’s

Condition was Permanent and Stable as of August 2016 was Arbitrary

and Capricious

A determination that a service member’s disability “is of a permanent nature and

stable” is required for a member to be separated or retired. 10 U.S.C. §§ 1201(b)(1),

1203(b)(3). This includes when a member is removed from the TDRL. 10 U.S.C. § 1210(c)–

(e); Cronin, 765 F.3d at 1336. Indeed, the reason a service member is placed on the TDRL

in the first place is that the “disability is not determined to be of a permanent nature and

stable.” 10 U.S.C. § 1202; see also Kaster, 158 Fed. Cl. at 93 (“Placement on the TDRL is

appropriate if the unfitting condition ‘is not determined to be of a permanent nature and

stable.’” (citing 10 U.S.C. § 1202)). The rationale, as explained supra, is to protect the

government from having to pay for a disability that ultimately stabilizes at a lower rating,

and to protect service members from being undercompensated for disabilities that wind

up being more debilitating with time.

This requirement applies to BCMRs when performing retroactive disability

determinations as well. See 10 U.S.C. §§ 1201(b)(1), 1203(b)(3). Indeed, a finding of

permanency and stability is necessary to place a member in the position he or she would

have been in, but for the military’s error. See 10 U.S.C. § 1552(a)(1); Barnick, 591 F.3d at

1380 (“[T]he discretionary power granted to the Correction Boards by 10 U.S.C. § 1552

includes the power to backdate discharges where such backdating places the claimant

where he likely would have been absent the improper discharge.” (emphasis added and citations

omitted)); Roth, 378 F.3d at 1381 (“The Secretary is obligated not only to properly

determine the nature of any error or injustice, but also to take such corrective action as

will appropriately and fully erase such error or compensate such injustice.” (citations and

quotations omitted)). Unlike mandatory procedures not carried out in their prescribed

42

timeframe — like scheduling a physical examination or convening a PEB — the Board

can, and must, make a finding of permanency and stability retroactively (as of a specific

date) so long as there is support in the record. The Board must examine the veteran’s

medical records and determine when the disability was no longer fluctuating enough to

change his rating percentage. Cf. AFI 36-3212, ¶ 3.17.3. To complete this essential step

and to identify a disability as stable, the Board must find that “the preponderance of

medical evidence indicates the severity of the condition will probably not change enough

within the next [five] years to increase or decrease the disability rating percentage.” Id.

(altered to reflect the prior statutory language applicable in this case). In Mr. Keltner’s

case, neither the AFRBA psychological advisor nor the AFBCMR recited or applied this

standard to reach a conclusion.

Both parties agree that for the Air Force to have constructively removed

Mr. Keltner from the TDRL on August 31, 2016, the Board had to determine that his PTSD

condition was stable as of that date. Pl. MJAR at 13; Def. MJAR at 31. The government

seems to argue that it did make this finding, at least implicitly, and that the “[B]oard’s

decision was amply supported by substantial evidence in the record.” Def. MJAR at 33.

This Court disagrees.

The Second AFBCMR Decision did not explain either why the Board retroactively

removed Mr. Keltner on August 31, 2016, or when his condition had stabilized. See

Second AFBCMR Decision at 13–14. To be clear, the Second AFBCMR Decision makes no

express stability finding whatsoever. The only mention of Mr. Keltner’s condition having

“stabilized” comes from the Board’s psychological advisor, but she does not explain when

Mr. Keltner’s condition had stabilized, and her account skips the actual findings from the

August 2016 VA C&P Examination. Second AFBCMR Decision at 11 (summarizing the

2021 AFRBA Memorandum, AR 1050–51).

Nor do the government’s briefs support that the Board found Mr. Keltner’s

condition to be permanent and stable as of August 31, 2016. The government only

explains that “[b]ecause the closest and most comprehensive examination before the

board was the August 2016 VA [C&P Examination], the board relied on that examination

as the date that Mr. Keltner should have been removed from the TDRL.” Def. MJAR. at

33. In other words, the government admits that the Board just used the closest thing on

hand to determine Mr. Keltner’s final rating, and then assumed that date represents the

date on which Mr. Keltner’s disability stabilized.

But even if the Court assumes the Board implicitly made a stability finding, it is

unsupported by the record evidence. Mr. Keltner’s medical records show that his

condition worsened from June 2016 to August 2016. In June 2016, Mr. Keltner’s

psychiatrist wrote that Mr. Keltner “is not depressed now and is less anxious and not as

pressured,” but by August 2016, his anxiety and depressive symptoms were much more

severe. Compare AR 1087, with AR 1090. Then, according to the September 2021 AFRBA

43

Memorandum, his condition had improved by early 2017. AR 1051. But the

psychological advisor’s medical chronology skipped over the crucial August 2016 VA

C&P Examination and there are no underlying 2017 exam notes in the administrative

record. 62 Furthermore, the psychological advisor’s conclusion that Mr. Keltner’s

condition had stabilized in August 2016 contradicts itself insofar as she opined that “his

condition had improved or was stable.” Id. (emphasis added). Improvement is antithetical

to stabilization. Indeed, the entire point of the TDRL is that disability conditions (and

particularly PTSD) may fluctuate with time. The fact that his condition may have

improved in some narrow period is fundamentally inconsistent with a finding of

stability. Finally, the August 2016 VA C&P Examination itself contained no indications

that Mr. Keltner’s condition had stabilized, and neither did the VA Rating Decision. See

AR 1072–78, 1080–96.

The Second AFBCMR Decision did not explain that Mr. Keltner’s condition was

stable as of August 2016, and the record evidence, if anything, critically undermines this

conclusion. Constructively removing Mr. Keltner from the TDRL on August 31, 2016,

was arbitrary and capricious. Given the government’s admittedly prejudicial procedural

errors, the government has the burden to demonstrate harmless error — i.e., that

Mr. Keltner would have been removed from the TDRL as of August 31, 2016, in any event.

See Skinner v. United States, 594 F.2d 824, 831 (Ct. Cl. 1979) (“If there is to be such a showing

to establish the defense of harmless error on defendant’s part, it would more fairly belong

to defendant — the party guilty of the mistake in the first place. This is the rule in civilian

pay cases.” (citing Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977))); Christian v.

United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003) (noting that “[t]his court and its

predecessor court have applied the harmless error analysis to military back pay cases”

and explaining that the burden to show harmlessness ultimately rests with the

government). Although the Court, as explained supra, agrees that the Board may

retroactively correct a service member’s records, its selection of the August 31, 2016,

stabilization date is not supported by the administrative record.

VI. RELIEF

Mr. Keltner requests that this Court “direct the Air Force to correct Mr. Keltner’s

military record to reflect that he was removed from the TDRL on January 22, 2021[,] with

a final PTSD disability rating of 50 percent and award military medical retirement

benefits.” Pl. MJAR at 26. In opposition, the government submits that “[e]ven if this

62The Court suspects that the psychological advisor’s reliance on post-August 2016 medical

records is precisely why the Second AFBCMR Decision not only avoids discussing the precise

basis for the stability finding but also declines to locate any precise date for stabilization even

within the psychological advisor’s memorandum itself. See Pl. Reply at 13 (correctly noting that

“to the extent the Air Force could show that August 31, 2016[,] is the proper removal date, the

January 2017 and June 2017 notes are temporally irrelevant”).

44

Court were to agree with Plaintiff that the board erred in awarding him a 10% disability

rating, the proper remedy here is remand back to the board.” Def. MJAR at 42. According

to the government, this Court’s ordering anything other than a remand is “inappropriate”

because it would be inconsistent with the standard of review. Id. at 42–43 (arguing that

“Mr. Keltner is in essence asking this Court to sit in place of the board, and act as a ‘super-

correction’ board, reweighing the evidence of his disability determination de novo”

(quoting Skinner, 594 F.2d at 830)).

Mr. Keltner is correct that there is no reason, let alone any requirement, that this

Court must remand his case to the Air Force for yet a third bite at the apple. The record

is fully developed and supports Mr. Keltner’s claim for a disability retirement at a fifty

percent rating per the VA Rating Decision, consistent with the August 2016 VA C&P

Examination.

In contrast, the government’s position improperly glosses over the fact that this

case involves a money-mandating claim for compensation pursuant to the Tucker Act, 28

U.S.C. § 1491(a). If this Court were to adopt the government’s view, we would never be

able to enter a money judgment on a military pay claim; all we could do is issue remand

after remand until the agency eventually renders a reasonable decision supported by the

administrative record. But the Tucker Act does not require infinite remands. See, e.g.,

Furlong v. United States, 152 F. Supp. 238, 240–41 (Ct. Cl. 1957) (“[O]n a finding of arbitrary

or otherwise unlawful action by the retiring board and Secretary, it is our duty to act in

the place of the retiring board and, on a finding of disability at the time of discharge, to

hold an officer is entitled to retired pay from the date of his discharge.”); IAP Worldwide

Servs., Inc. v. United States, 160 Fed. Cl. 57, 85 (2022) (“[T]he government cannot forever

avoid vacatur or other injunctive relief by seeking infinite remands.” (citing cases)).

The Tucker Act’s Remand Statute provides further support for Mr. Keltner’s

position:

To 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

restoration to office or position, placement in appropriate

duty or retirement status, and correction of applicable

records, and such orders may be issued to any appropriate

official of the United States. In any case within its jurisdiction,

the court shall have the power to remand appropriate matters

45

to any administrative or executive body or official with such

direction as it may deem proper and just.

28 U.S.C. § 1491(a)(2); see RCFC 52.2 (“Remand a Case”). 63

The Federal Circuit’s predecessor tribunal, the Court of Claims — the decisions of

which remain binding on this Court — has explained that “[t]he objective of the remand

power is to provide a complete remedy” and that “[t]he deliberate Congressional purpose

in enacting the remand statute was to make it unnecessary for the parties to go to another

court, after the Court of Claims made its decision, to obtain the rights which follow from

the decision.” Hoopa Valley Tribe v. United States, 596 F.2d 435, 447 (Ct. Cl. 1979) (first

citing S. Rep. No. 92-1066, at 2 (1972), as reprinted in 1972 U.S.C.C.A.N. 3116, 3117; and

then citing H.R. Rep. No. 92-1023, at 3–4 (1972)). Thus, the point of the Remand Statute

is to provide this Court with similar powers to those of district courts, so long as the

underlying monetary claim is properly within this Court’s jurisdiction. See id. (“[T]he

remand power was available in this court and made it unnecessary for a party . . . to sue

in a district court to challenge the [agency’s] decision[.]”); see also United States v. Testan,

424 U.S. 392, 402 (1976) (“The remand statute . . . applies only to cases already within the

court’s jurisdiction.”).

Accordingly, this Court may instruct the Air Force (or remand the case to the Air

Force): (1) to correct Mr. Keltner’s records consistent with this decision; and (2) to

calculate how much it owes Mr. Keltner such that he will be paid accordingly. See, e.g.,

Fisher, 402 F.3d at 1175 (“If [plaintiff] were to succeed on his claim that the Secretary’s

decision was wrong and should be reversed, he would be entitled to disability retirement

pay under [10 U.S.C.] § 1201, and whatever procedural remedies were necessary to

achieve that result. The Court of Federal Claims is fully empowered to grant such

remedies.”); Carman v. United States, 602 F.2d 946, 948–49 (Ct. Cl. 1979).

Alternatively, this Court may enter partial judgment for Mr. Keltner and conduct

further proceedings, including taking evidence, to decide the quantum of damages. See

Dodson v. U.S. Gov’t, Dep’t of Army, 988 F.2d 1199, 1208 (Fed. Cir. 1993) (concluding that

plaintiff “is entitled to back pay and allowances” and remanding case “to the district

court for a proper determination as to this amount”); Bray v. United States, 515 F.2d 1383,

1396–97 (Ct. Cl. 1975) (entering judgment on liability, concluding “as a matter of law that

plaintiff is entitled to recover active duty pay and allowances from July 3, 1962, to the end

63See also Keltner v. United States, 148 Fed. Cl. 552, 558 (2020) (“In 1972, Congress first conferred

the remand power on the Court of Claims — the Federal Circuit’s (and this Court’s) predecessor

— via ‘[t]he remand statute, Pub. L. [No.] 92-415, 86 Stat. 652, now codified as part of 28 U.S.C.

[§] 1491.’” (quoting United States v. Testan, 424 U.S. 392, 404 (1976))).

46

of his then current enlistment term, March 13, 1964,” and instructing that “ [t]he amount

of recovery is reserved for further proceedings under Rule 131(c)”). 64

Following Bray, the Court of Claims in Cruz Casado v. United States, ordered what

this Court views as a viable remedy in this case:

In view of the Government’s failure to follow its own

published regulations, in a manner that substantially and

adversely affected plaintiff’s rights, the discharge cannot

stand. Since the Correction Board improperly failed to correct the

error we will do so. Plaintiff must be presumed to have

continued in the Army during the intervening years, must be

paid accordingly, Bray v. United States, supra, and again must

be placed on the active duty list. . . . It is, therefore, concluded

that plaintiff is entitled to recover back pay and allowances as

provided by law, less appropriate offsets to be determined in

a further proceeding pursuant to Rule 131(c). It is ordered

pursuant to 86 Stat. 652, 28 U.S.C. § 1491 (Supp. III, 1973), that

the Secretary of the Army reinstate plaintiff and that his

records be corrected . . . .

553 F.2d 672, 676 (Ct. Cl. 1977) (emphasis added); see also Versaci, 403 F.2d at 262 (holding

that where a “40 percent disability finding stands unimpaired,” it “properly forms the

basis for judgment herein” such that “Plaintiff should have been retired as of such June

30, 1960[,] date with disability pay based upon such 40 percent disability rating” and with

the precise “amount due to be determined in further proceedings” (internal quotations

and citations omitted)); Sanders, 594 F.2d at 13 (ordering the Air Force to reinstate plaintiff

to the rank of captain, correcting his records, entering “[j]udgment . . . for plaintiff with

the amount thereof to be determined” under the court’s rules, and remanding “the case

. . . to the Secretary of the Air Force with orders to implement” the relief); Skinner, 594

F.2d at 831–32 (granting plaintiff’s motion for summary judgment, ordering “that

plaintiff be restored to active duty commission status as a major,” and remanding the

case “to the trial division for computation” of damages).

Accordingly, there are several possible avenues of appropriate relief; the parties

shall meet and confer to determine whether they can agree on an approach.

64RCFC 42(c) (“Separate Determinations of Liability and Damages”) preserves the substance of

prior Rule 131(c).

47

VII. CONCLUSION

The AFBCMR’s determination that Mr. Keltner warranted a ten percent disability

rating as of August 31, 2016, was arbitrary, capricious, contrary to law, or unsupported

by substantial evidence. Accordingly, Mr. Keltner’s MJAR is GRANTED and

Defendant’s MJAR is DENIED.

In lieu of entering any judgment at this time, however, the Court orders the parties

to meet and confer regarding an appropriate remedy. In particular, the parties shall file

a joint status report, selecting one of the following three approaches:

1. The Court enters final judgment and orders the correction of Mr. Keltner’s records

consistent with this decision, such that he is entitled to a fifty percent disability

rating as of either August 31, 2016 (or as of when he would have been effectively

removed from the TDRL after five years), and that the Air Force will pay Mr.

Keltner accordingly.

2. The Court remands this matter to the Air Force with instructions to correct

Mr. Keltner’s records, consistent with this decision, such that he is entitled to a

fifty percent disability rating as of either August 31, 2016 (or as of when he would

have been effectively removed from the TDRL after five years), and for the Defense

Finance and Accounting Service to calculate the sum owed to Mr. Keltner for the

purpose of this Court entering final judgment at a later date. See Rogers v. United

States, 26 Cl. Ct. 1023, 1025 (1992) (describing the process, pursuant to 28 U.S.C.

§ 2507, of ordering an agency to calculate damages in a military pay case);

Laningham v. United States, 30 Fed. Cl. 296, 316 (1994) (same).

3. This Court enters partial judgment, ordering the correction of Mr. Keltner’s

records consistent with this decision (as detailed supra), and holds further

proceedings on damages consistent with RCFC 42(c)(1) and 28 U.S.C. § 2507.

If the parties are unable to agree on a remedy, the parties may provide their

respective positions in the joint status report, not to exceed five (5) pages per party. In

that case, the parties shall limit their discussion only to their preferred selection of one of

the above-described remedies; the parties shall not further address the underlying merits.

The joint status report shall be filed on or before May 29, 2023.

IT IS SO ORDERED.

s/Matthew H. Solomson

Matthew H. Solomson

Judge

48