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Chatman v. United States Department of Defense

United States District Court, District of Columbia

September 13, 2017



          RICHARD J. LEON United States District Judge.

         Former U.S. Army Sergeant Sherron M. Chatman ("plaintiff or "Chatman") brings this action against the Department of Defense ("defendant" or "Department"). In her complaint, plaintiff asks this Court to set aside the Department's determination that she is not a "covered individual" entitled to a hearing before the Department's Physical Disability Board of Review ("PDBR"). 10 U.S.C. § 1554a; see generally Compl. [Dkt. # 1].

         Currently before the Court are the Department's Motion to Dismiss the Complaint [Dkt. # 16] and plaintiffs Cross-Motion for Judgment on the Pleadings [Dkt. # 20]. For the reasons stated below, I conclude that plaintiff is not eligible for PDBR review of her disability determination because she does not meet the statutory definition of "covered individual." The Department therefore did not violate the Administrative Procedure Act ("APA") when it denied plaintiffs request for PDBR review. Accordingly, the Department's motion is GRANTED, plaintiffs cross-motion is DENIED, and plaintiffs complaint is dismissed.


         By statute, Congress has established guidelines for the retirement and separation of members of the military due to disability. See, e.g., 10 U.S.C. §§ 1201-1222, 1552-1559. Those statutes, implemented by various regulations and Department of Defense instructions, set forth the policies and procedures that the armed service branches must follow when determining whether a member of the military is medically fit to perform his or her duties and, if not, whether and how to assign a disability rating or provide compensation for the medically unfitting condition. See Def.'s App. at A6-A13 [Dkt. # 16-1] (Dep't of Defense Instruction 1332.18); id. at A87-A193 (Army Regulation 635-40); id. at A223-A236 (Dep't of Defense Instruction 6040.44). Generally, disabilities caused or aggravated by a member's service in the military may be compensable, while disabilities that existed prior to service and were not permanently aggravated by service are non-compensable. See 10 U.S.C. §§ 1201(a)-(b), 1203(a)-(b); Def.'s App. at A2, A42.

         To simplify for present purposes, if a soldier in the Army has a medical condition that negatively affects his or her fitness for duty, the soldier is ultimately referred for evaluation by a Physical Evaluation Board (PEB). Def.'s App at A29; see 10 U.S.C. § 1222. A PEB is a fact-finding board responsible for evaluating the nature, cause, degree of severity, and likely permanency of a soldier's disability. Def.'s App. at A107. A soldier may elect to have a formal hearing before the PEB, at which the soldier is entitled to the representation of legal counsel and may present evidence and testimony. Id. at A29-A31; see also 10 U.S.C. § 1214.

         Following a formal hearing, the PEB renders its conclusions regarding the soldier's disability, including whether the soldier should be retired or separated due to physical disability and, similarly, whether the soldier is eligible for any separation pay or disability benefits. Def.'s App. at A107; see also Id. at A2-A5. If a soldier is determined to have an unfitting and compensable disability, the soldier receives a "disability rating" ranging from 0 to 100 percent in 10 percent increments. See Id. at A46-A47, A103, A146-A147. If, by contrast, a soldier is determined to be unfit due to a disability that "existed prior to service and was not permanently aggravated by service, " the soldier is not eligible to receive a disability rating and the soldier is not entitled to physical disability compensation from the Army. Id. at A56; see also 10 U.S.C. §§ 1201(a)-(b), 1203(a)-(b); Def.'s App. at A2-A5.

         If an individual is separated from the military without pay due to disability as a result of the PEB's determination, he or she may appeal to the Physical Disability Review Board operated by the relevant service branch - in plaintiffs case, the Army Physical Disability Review Board. See 10 U.S.C. § 1554; Compl. Ex. C ("Apr. 2015 PDBR Letter") [Dkt. #1-3]. That Board has the "same powers" as the PEB, and may choose to reverse the PEB's disability determination. Apr. 2015 PDBR Letter. Each service branch also operates a Board for Correction of Military Records. An individual may apply to that board to have his or her records reviewed. See 10 U.S.C. § 1552; Compl. Ex. A ("Feb. 2015 PDBR Letter") [Dkt. #1-1]. The Board is empowered to correct errors or injustices, including those related to disability determinations. Id.

         This case concerns the jurisdiction of yet another review board - the Department's Physical Disability Board of Review ("PDBR"). Created as part of the National Defense Authorization Act for Fiscal Year 2008, the PDBR has statutory authority to review certain disability determinations rendered by PEBs from any branch of service. See 10 U.S.C. § 1554a. Specifically, the PDBR is authorized to review the disability determinations for "covered individuals, " defined as those individuals who, among other things, "are separated from the armed forces due to unfitness for duty due to a medical condition with a disability rating of 20 percent disabled or less." Id. § 1554a(b)(1).

         Plaintiff is a former Army Sergeant who was medically separated with an honorable discharge from the Army in 2004. Compl. ¶¶ 2, 5, 10. The discharge followed a formal PEB proceeding, at which plaintiff was represented by counsel. Def's App. at A4. Based on the hearing and its review of the record, the PEB concluded that plaintiff had a mental health condition that rendered her "unfit" for service. Id. at A2. Most importantly for purposes of this case, the PEB further determined that there was "sufficient evidence to substantiate an EPTS (existed prior to service) condition" that "has not been permanently aggravated by service but is the result of natural progression." Id. Because the PEB concluded that plaintiffs mental condition existed prior to service and was not service aggravated, the PEB held the condition to be "not compensable under the Army Physical Disability System" and found that the "proper disposition" of plaintiffs case was "separation from the Army without entitlement to disability benefits." Id.

         Following her discharge, plaintiff separately sought, and was eventually granted, disability benefits for post-traumatic stress disorder ("PTSD") and depression from the Department of Veterans Affairs ("VA"), which administers a separate system of disability benefits than that administered by the Army. Compl. ¶¶ 11-12; Def.'s App. at A168. The VA determined that plaintiff suffered from PTSD and depression and that her conditions were related to sexual assaults plaintiff had suffered during her prior active-duty service in the Army in 1981. Compl. ¶¶ 11-12. The VA assigned plaintiff a disability rating of 70 percent. Id.

         In light of the VA's determination, plaintiff applied to the PDBR on February 18, 2015 for review of the Army PEB's determination that plaintiffs unfitting medical condition existed prior to service. See Id. A13. It is this request by plaintiff- her request to the PDBR to review and rectify the Army PEB's existed-prior-to-service determination - that triggered the chain of events that form the basis of her complaint.

         The day after plaintiff submitted her request for PDBR review, plaintiff received a letter informing her that her request for review had been denied.. Id.; see Feb. 2015 PDBR Letter. In the letter, a PDBR representative noted that, under 10 U.S.C. § 1554a, "covered individuals" eligible for PDBR review are "Service members who were discharged" as "unfit for continued military service by the Military Departments with a combined rating of 20 percent or less, " among other requirements. Feb. 2015 PDBR Letter. The letter went on to explain that plaintiff was not a "covered individual" entitled to PDBR review because her "reason for separation" was "disability, EPTS" (a disability that existed prior to service) - meaning that plaintiff had not received a disability "rating" from the Army. Id. (capitalization altered). The letter noted, however, that plaintiff could seek review of the PEB's decision from the Board for Correction of Army Records. Id.

         Plaintiff, through counsel, wrote the President of the PDBR to seek reconsideration. Compl. ¶ 14. Plaintiffs counsel insisted that the "only plausible interpretation" of 10 U.S.C. § 1554a is that it allows plaintiff to obtain PDBR review of the PEB's existed-prior-to-service determination, and therefore asked the President to confirm that plaintiff was a "covered individual that warrants review by the PDBR." Compl. Ex. B, at 1, 2 [Dkt. # 1-2]. The President of the PDBR responded by letter a few weeks later. See Apr. 2015 PDBR Letter. The PDBR President reiterated that, under 10 U.S.C. § 1554a, "[c]overed individuals" eligible for PDBR review are "former members of the armed forces who" were "separated from the armed forces due to unfitness for duty due to a medical condition, with a disability rating of 20 percent or less." Id. Plaintiff did not meet that statutory definition, according to the PDBR President, because plaintiffs "condition was determined to have existed prior to service and she was separated without entitlement to ...

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