United States District Court, District of Columbia
LEON C. WHITE, Plaintiff,
v.
JAMES N. MATTIS, et al., Defendants.
MEMORANDUM OPINION
ELLEN
S. HUVELLE, UNITED STATES DISTRICT JUDGE.
After
serving in the Army for nine years, Plaintiff Leon C. White
was found unfit to perform his duties as an Infantryman
because of a lower back disability. After a medical
examination, the military determined that his disability was
not severe enough to qualify him for retirement, and he was
separated with severance pay. White appealed the
military's determination to the Physical Disability Board
of Review (the “Board”), arguing that a VA
examination finding him qualified for medical retirement was
more probative of his disability at the time he was separated
than the military's examination. The Board disagreed and
upheld White's discharge.
White
now challenges the Board's decision on the grounds that
it violates the Administrative Procedure Act (the
“APA”). Before the Court are the parties'
cross-motions for summary judgment. For the reasons stated
herein, White's motion for summary judgment will be
granted, the defendants' motion will be denied, and the
case will be remanded to the Board for further consideration
consistent with this Memorandum Opinion.
BACKGROUND
I.
STATUTORY AND REGULATORY FRAMEWORK
A
soldier in the Army found unfit to serve because of a
physical disability may be separated or retired, depending on
the severity of his or her disability. 10 U.S.C. §§
1201(a), 1203(a). Soldiers who are separated are entitled
only to severance pay, while soldiers who are retired
receive, inter alia, lifetime retired pay,
healthcare, and commissary privileges. 10 U.S.C. §
1203(a) (providing severance pay for separated individuals);
10 U.S.C. § 1201(a) (providing retired pay for medically
retired individuals); 32 C.F.R. § 199.17 (providing
TRICARE healthcare for retired servicemembers); DODI §
1330.17, Enclosure 2, ¶ 3(c)(1) (stating that retired
servicemembers “granted retirement pay for physical
disability” “are authorized commissary
privileges”).
The
Army uses a complex Disability Evaluation System to determine
whether a soldier's disability warrants separation or
retirement. See Army Reg. 635-40, ¶ 4-1. First,
an Army medical examiner examines the soldier and determines
whether he or she is qualified to perform his or her duties.
Id. ¶ 4-10. If the medical examiner concludes
that a soldier is not medically qualified, a Medical
Evaluation Board (“MEB”) is convened to review
the medical examiner's determinations and make its own
“conclusions and recommendations regarding
fitness.” Id. ¶ 4- 7. If “the MEB
finds that one or more of a Soldier's medical conditions
. . . do not meet medical retention standards, ” the
MEB recommends the case to a Physical Evaluation Board
(“PEB”). Army Reg. 635-40, ¶ 4-12(f). The
PEB reviews the MEB's findings; conducts its own,
“more thorough investigation into the nature and
permanency of the servicemember's condition, ” and
ultimately assigns a disability rating to a soldier's
condition that determines whether he or she qualifies for
disability retirement. Fulbright v. McHugh, 67
F.Supp.3d 81, 85-86 (D.D.C. 2014) (citing Army Reg. 635-40
¶¶ 4-17, 19).
In
determining a disability rating, the PEB is bound by the
Veteran's Administration Schedule for Rating Disabilities
(the “VASRD”), a set of regulations that instruct
rating boards on evaluating the nature and degree of a
soldier's disability. Army Reg. 635-40, ¶ 4-1(d)(1).
The VASRD contains lists of codes associated with specific
disabilities, and each code is accompanied by a disability
rating or a range of ratings with instructions on determining
which applies to a specific case. See, e.g., 38
C.F.R. § 4.71a (the schedule of ratings for disabilities
of the musculoskeletal system). In addition to these
disability rating schedules, rating boards are required to
consider other aspects of a soldier's disability.
See, e.g., 38 C.F.R. § 4.40 (functional loss is
to be considered when evaluating a musculoskeletal
disability). Any reasonable doubt that arises as to the
rating of a disability must be resolved in favor of the
soldier. 38 C.F.R. §§ 3.102, 4.3. When a board
gives a soldier a disability rating of 30 percent or higher,
that soldier is medically retired; when a soldier's
disability rating falls below 30 percent, he or she is
discharged with severance pay.[1] 10 U.S.C. §§ 1201(b)(3)(B),
1203(b)(4).
A
soldier may appeal the PEB's determination to the
Board.[2] 10
U.S.C. § 1554a. The Board was created in 2008, in part,
in response to reports that the military consistently
assigned disability ratings lower than those assigned by
Veterans Affairs (the “VA”). See Adams v.
United States, 117 Fed.Cl. 628, 665-70 (2014) (detailing
the legislative history of the Dignified Treatment of Wounded
Warriors Act of 2008, which established the Board). In
reviewing a PEB decision where there are competing disability
ratings, the Board is required to give consideration to VA
ratings. Specifically, the Board must compare military and VA
disability ratings and consider any differences between the
two, “particularly if the VA rating was awarded within
12 months of the former Service member's
separation.” DoDI 6040.44, Enclosure 3, ¶ 4(a)(5).
And because the Board is bound by the VASRD, deference to VA
ratings is, in some instances, required. DODI 6040.44,
Enclosure 3, ¶ 3(e). For instance, when “there is
a question as to which of two evaluations shall be applied,
” the Board is required to assign the higher rating
“if the disability picture more nearly approximates the
criteria required for that rating.” 38 C.F.R. §
4.7. And, like the PEB, the Board must resolve any reasonable
doubt in favor of the former servicemember. 38 C.F.R.
§§ 3.102, 4.3.
Based
on the evidence presented to it, the Board is authorized to
recommend that an individual's discharge be
recharacterized to retirement, increase a disability rating
given by the PEB, or issue a new disability rating. 10 U.S.C.
§ 1554a(d). If the Board does not recommend one of these
changes, the PEB's decision becomes final. 10 U.S.C.
§ 1554a(e)(3).
II.
FACTS
White
began active duty service in the Army in 1994. After
completing his physical fitness test in 1995, he began
experiencing episodes of lower back pain. (Administrative
Record (“AR”) 6, 44.) Over time, his pain
worsened, and in 2002, examinations, X-rays, and magnetic
resonance imaging revealed “decreased disc space . . .
compatible with mild degenerative disc disease, ”
“degenerative spurring of the sacroiliac . . .
consistent with osteoarthritis, ” and “broad disc
bulges . . . with moderate to severe spinal canal
stenosis.” (AR 6; see also AR 578.) White
underwent three back surgeries in 2002 and 2003 and continued
treatment for his conditions with physical therapy. (AR 611.)
On
March 27, 2003, the Army placed White on a three-month
temporary profile for “lumbar degenerative disc
disease, ” which prevented him from, inter
alia, “running, jumping, stooping, crawling . . .,
riding/driving tactical vehicles . . . [, ] standing at
attention longer than 5 minutes, ” or lifting more than
20 pounds. (AR 387.) It also limited his workdays to four
hours per day and ordered that he not undergo any physical
fitness tests. (Id.) On September 12, 2003, he was
placed on permanent profile, which imposed many of the same
limitations but increased his workday to six hours. (AR 47.)
An Army
physician directed White to an MEB, and, on November 4, 2003,
the MEB determined that White was unfit to return to duty and
referred him to a PEB. (AR 46, 78-79.) As part of the
PEB's investigation, White attended a physical therapy
examination (the “PEB examination”) on November
6, 2003, for range of motion measurements. (See AR
65-66.) The clinician determined that White's standing
forward flexion was 45 degrees, his seated forward flexion
was 30 degrees, his standing extension was 30 degrees, and
his prone extension was 45 degrees. (AR 66.) Based on the
results of this examination, on December 1, 2003, the PEB
determined that ...