White v. Mattis

          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 ...