United States District Court, District of Columbia
SHERRON M. CHATMAN, Plaintiff,
UNITED STATES DEPARTMENT OF DEFENSE, Defendant.
RICHARD J. LEON United States District Judge.
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].
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.
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,
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.
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.
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
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).
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
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.
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.
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.
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 ...