Jason Sissel v. Christine Wormuth ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2023 Decided July 28, 2023
No. 22-5045
JASON L. SISSEL,
APPELLANT
v.
CHRISTINE E. WORMUTH, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE ARMY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00356)
Bradley A. Hyde argued the cause for appellant. With him
on the briefs were Adriana Erquiaga, Helen G. Kirkby,
Carolyn G. Hudson, Erik Jensen, Michael A. David, and
Rochelle Bobroff.
John B. Wells and Melanie L. Bostwick were on the brief
for amicus curiae Military-Veterans Advocacy, Inc. in support
of appellant.
John K. Roche was on the brief for amici curiae
Connecticut Veterans Legal Center, et al. in support of
appellant. David Aaron entered an appearance.
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Whitney Cloud, Peter Karanjia, and Elizabeth J. Jones
were on the brief for amici curiae Eugene R. Fidell and
Franklin D. Rosenblatt in support of appellant.
Sean R. Janda, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Charles W. Scarborough, Attorney. John
Haberland, Special Assistant U.S. Attorney, and R. Craig
Lawrence, Assistant U.S. Attorney, entered appearances.
Before: SRINIVASAN, Chief Judge, MILLETT and WALKER,
Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: In 2003, while on deployment
with the Army in Iraq, Jason Sissel suffered back and leg
injuries in a motor vehicle accident. The Army’s medical
evaluations determined that his condition rendered him unfit
for duty. Depending on the extent of his disability, Sissel could
either be “retired” from service, in which case he would receive
retirement benefits, or “separated” from service, in which case
he would receive severance pay but no retirement benefits. The
Secretary of the Army gave Sissel a disability rating of 20%,
below the 30% threshold necessary to qualify him for
retirement from service.
Sissel brought an action against the Army in district court,
challenging the Secretary’s assignment of a 20% disability
rating. According to Sissel, the Secretary should have given
him a 30% rating, consistent with the rating he had received
from the Department of Veterans Affairs in a separate
3
assessment conducted by the VA to determine his eligibility for
veterans’ disability benefits.
The district court granted summary judgment in favor of
the Army. We conclude, however, that the Secretary’s
approach when determining Sissel’s disability rating was
inconsistent with the applicable statute and regulations. We
thus vacate the grant of summary judgment to the Army and
remand for further proceedings.
I.
A.
If a military servicemember incurs a “physical
disability . . . while entitled to basic pay,” the Secretary of the
relevant military department determines if the disability
renders the servicemember “unfit to perform the duties of the
member’s office, grade, rank or rating.” 10 U.S.C. §§ 1201(a),
1203(a). If the servicemember has been rendered unfit, the
servicemember may be either “retired” or “separated” from
service, depending on the degree of disability. Id. §§ 1201(a),
1203(a). A retired servicemember is eligible to receive
retirement benefits, whereas a separated servicemember
receives only severance pay with no retirement benefits. See
id. §§ 1201(a), 1203(a).
For a servicemember with fewer than 20 years of service,
the member can qualify for retirement if the relevant Secretary
finds that “the disability is at least 30 percent under the standard
schedule of rating disabilities.” Id. § 1201(b)(3)(B). If the
servicemember’s disability falls below that 30% threshold, “the
member may be separated from the member’s armed force,
with severance pay,” but not retirement benefits. Id. § 1203(a);
see also White v. Mattis, No. 18-cv-02867, 2019 WL 6728448,
4
at *1 (D.D.C. Dec. 11, 2019) (“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.”).
B.
For Army personnel, the Secretary of the Army makes
fitness and ratings determinations under a process known as the
Physical Disability Evaluation System (DES). See Dep’t of the
Army, Army Regul. 635-40, Disability Evaluation for
Retention, Retirement or Separation (2017) (2017 Army Regul.
635-40). The specific version of the DES used to evaluate
Sissel’s disability is the legacy DES (LDES). See id. ¶ 4–
1(d)(1). The LDES process consists of two steps.
At the first step, “[w]hen a commander believes that a
soldier of his or her command is unable to perform the[ir]
duties,” the commander “refer[s] the soldier to the responsible
[treatment facility] for evaluation.” Dep’t of the Army, Army
Regul. 635-40, Physical Evaluation for Retention, Retirement,
or Separation ¶ 4–8 (1990) (1990 Army Regul. 635-40). After
that evaluation, if the soldier appears “not medically qualified
to perform duty,” the soldier goes before a Medical Evaluation
Board (MEB). Id. ¶ 4–9. The MEB then makes a decision “as
to the soldier’s medical qualification for retention.” Id. ¶ 4–10;
see also 2017 Army Regul. 635-40 ¶ 4–7(a). If the MEB
determines the soldier does not meet retention standards, it will
recommend referral of the soldier to a Physical Evaluation
Board (PEB). 1990 Army Regul. 635-40 ¶ 4–10.
The PEB’s review is the second step of the process. The
PEB initially determines whether the soldier is physically fit or
unfit to perform the duties of their role. Id. ¶ 4–19(a)(1); 2017
Army Regul. 635-40 ¶¶ 4–19, 4–22, 5–1. If the soldier is unfit,
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the PEB then decides the percentage rating for each “unfitting
compensable disability,” using the Veteran’s Administration
Schedule for Rating Disabilities (VASRD). See 1990 Army
Regul. 635-40 ¶ 4–19(i); 38 C.F.R. ch. 1, pt. 4 (VASRD). The
VASRD contains a schedule of medical conditions, each
identified by a diagnostic code and assigned a disability rating
percentage or range of percentages. See, e.g., 38 C.F.R.
§ 4.71a.
“An unfitting, or ratable condition, is one which renders
the soldier unable to perform [his] duties . . . in such a way as
to reasonably fulfill the purpose of his or her employment on
active duty.” 1990 Army Regul. 635-40 ¶ 3–5(c). Under the
applicable regulations, a finding of unfitness may be based on
the effect of one disability standing alone or on “the combined
effect of two or more disabilities.” Id. ¶ 4–19(f)(4).
Correspondingly, a disability is compensable either if it, “in
itself, is unfitting or [if it] contributes to the unfitting
condition.” Id. ¶ 4–19(f)(6)(b). If the PEB finds that a
particular condition neither itself renders the soldier unfit nor
contributes to a finding of unfitness, the Board must list that
condition with an annotation indicating that the condition is
“non-ratable.” Id. ¶ 3–5(d).
In 2008, Congress codified those principles, requiring the
Secretary (and by extension the Boards that conduct the
LDES), “[i]n making a determination of the rating of
disability,” to “take into account all medical conditions,
whether individually or collectively, that render the member
unfit.” 10 U.S.C. § 1216a(b). Army regulations similarly
provide that a soldier may be determined unfit based on “the
overall effect of two or more impairments even though each of
them, standing alone, would not cause the Soldier to be found
unfit because of physical disability.” 2017 Army Regul.
635-40 ¶ 5–4(g). Additionally, “unfitness due to overall or
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combined effect may include one or more conditions
determined to be unfitting in combination with an
independently unfitting condition.” Id.
If a soldier concurs with the PEB’s rating decisions, the
PEB’s recommendation is finalized and approved on behalf of
the Secretary of the Army. Since 2008, however, a soldier
discharged between September 11, 2001, and December 31,
2009, with a disability rating percentage of 20% or less may
appeal to the Physical Disability Board of Review (PDBR).
The PDBR was established pursuant to the National Defense
Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,
§ 1643, 122 Stat. 3, 465–67 (codified at 10 U.S.C. § 1554a), to
“address the disparities in the disability ratings issued by the
military departments in the Department of Defense and the
VA” during that period. U-Ahk-Vroman-Sanchez v. U.S.
Dep’t of Def., No. 19-cv-3141, 2021 WL 394811, at *2 (D.D.C.
Feb. 4, 2021).
Following its review, the PDBR may “recommend to the
Secretary” the issuance of a new disability rating, the
modification of a previous rating, the recharacterization of a
soldier’s separation to include medical retirement, or no
change. See 10 U.S.C. § 1554a(d)(1)–(4). If the PDBR “makes
a recommendation not to correct the military records,” its
recommendation is final. Id. § 1554a(e)(3). Otherwise, the
Secretary “may correct the military records” pursuant to the
PDBR’s recommendation. Id. § 1554a(e)(1).
At that point, if the soldier remains dissatisfied with the
Secretary’s determination, he may seek judicial review under
the Administrative Procedure Act. See 5 U.S.C. § 702.
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C.
1.
Jason Sissel enlisted in the Army and was deployed to Iraq
during Operation Iraqi Freedom. In 2003, Sissel was involved
in a motor vehicle accident, suffering injuries to his back and
right leg. He underwent spinal fusion surgery but continued to
suffer significant back pain along with pain and weakness in
his right leg.
In February 2005, Sissel’s surgeon recommended that an
MEB assess Sissel to determine his ability to perform his
duties. An MEB was convened the next month. The MEB
diagnosed Sissel with degenerative disc disease of the lumbar
spine, as well as dense hypesthesia (numbness) of the right foot
and mild weakness in the right leg. See Sissel v. McCarthy, No.
19-cv-356, 2021 WL 6062832, at *3 (D.D.C. Dec. 22, 2021).
The MEB determined that Sissel failed to meet retention
standards and referred him to a PEB.
In June 2005, a PEB was convened to review Sissel’s
fitness to serve. The PEB’s report described Sissel’s disability
as “chronic back pain and right-leg weakness.” Sissel, 2021
WL 6062832, at *3 (quotation marks omitted). The report
linked the disability to a single VASRD code (number 5241),
which covers spinal fusions. See 38 C.F.R. § 4.71a. The PEB
concluded that Sissel’s injuries prevented his performance of
duty. Sissel, 2021 WL 6062832, at *3. The Board
recommended a combined disability rating percentage of 10%
under VASRD code 5241 and a disposition of separation with
only severance pay. See id. The PEB’s report did not annotate
any conditions as not contributing to unfitness and thus non-
ratable.
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Sissel concurred with the PEB’s decision, and the decision
then was finalized on behalf of the Secretary. In October 2005,
the Army honorably discharged Sissel.
2.
While Sissel worked his way through the LDES, he also
applied to the Department of Veterans Affairs for disability
benefits based on the same injuries. VA disability benefits are
distinct from and offset medical severance and retirement
benefits. See 10 U.S.C. § 1212(d); 38 U.S.C. §§ 5304–05.
The VA diagnosed Sissel with chronic back pain and a
right leg injury associated with the back injury. Based on that
diagnosis, the VA assigned two disability ratings under two
separate VASRD codes. Under the first code, the VA rated
Sissel as 20% disabled for his back injury. And under the
second code, the VA rated him as 10% disabled for his right
leg injury. The VA thus assigned a total rating percentage of
30%.
3.
Years later, in 2014, Sissel requested that the PDBR
increase his disability rating from 10% to 30%. He maintained
that the PEB should have assigned his back injury a 20% rating,
as the VA had done, rather than the 10% the PEB had assigned
in 2005. He further contended that the PEB erroneously failed
to separately rate his leg condition at 10%.
The PDBR recommended granting Sissel’s request to raise
his back injury rating to 20% but declining to assign his leg
injury a separate rating. The updated, recommended total
disability rating thus was 20%, still not enough to qualify for
medical retirement. In assessing the PEB’s decision to
9
combine Sissel’s back and leg injuries under a single VASRD
Code, the PDBR explained that the combined rating reflected
the PEB’s judgment that the constellation of his conditions
rendered him unfit. The Deputy Assistant Secretary, on behalf
of the Secretary, accepted the PDBR’s recommendation.
4.
In 2019, Sissel sued the Secretary in the district court,
alleging that the Secretary’s decision to adopt the PDBR’s
recommendation was arbitrary, unsupported by substantial
evidence, and contrary to law. The parties jointly moved for a
remand to the PDBR to reconsider Sissel’s disability rating,
and the district court granted the motion.
The PDBR engaged in a “de novo reconsideration” on
remand but ultimately made the same recommendation: a 20%
total rating, with no separate rating for the leg injury. Sissel,
2021 WL 6062832, at *4 (quotation marks omitted). The
PDBR again explained that the PEB’s decision to combine
Sissel’s back and leg conditions under a single disability rating
reflected a judgment that “‘the constellation of [his] conditions’
rendered him unfit for duty.” Id. The PDBR added that it
considered each “bundled condition[]” to be “reasonably
justified as separately unfitting” unless a preponderance of
evidence indicates the condition would not cause the member
to be found unfit. Id. (alteration in original) (quotation marks
omitted). The PDBR reached the same conclusion as it had
before: “the back condition was reasonably considered
unfitting at separation, but the preponderance of evidence
showed the [leg injury] would not have, on its own, caused
[Sissel] to be . . . found unfit.” Id. at *4 n.16.
The Deputy Assistant Secretary, acting on the Secretary’s
behalf, accepted the PDBR’s recommendation. The Deputy
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Assistant Secretary also reviewed an informal review of
Sissel’s case conducted by a doctor who was an advisor for the
Army Review Boards Agency. That doctor determined that
Sissel’s right-leg condition would require its own rating if it
either “contributed significantly to the finding of unfitness” or
was “an absolute stand-alone unfitting condition.” See Sissel,
2021 WL 6062832, at *5 (quotation marks omitted). Finding
neither of those to be true of Sissel’s right-leg condition, the
doctor concluded that his unfitness instead was predominantly
due to his back condition. See id. The Deputy Assistant
Secretary likewise determined that Sissel’s right-leg condition
was neither separately unfitting nor contributed “significantly”
to his unfitness.
Sissel’s suit then returned to the district court, which
granted summary judgment to the Secretary. The court held
that the Secretary’s decision was not contrary to law, and the
court further held that the Secretary’s decision was adequately
explained and supported by substantial evidence. See id. at *7–
13.
II.
A.
Before addressing Sissel’s challenges to the Secretary’s
decision, we first consider the appropriate standard of review.
The Secretary submits that we should conduct an “unusually
deferential application” of Administrative Procedure Act
review. Sec’y Br. 28. We disagree.
We have said that “[i]t is the longstanding practice of this
court to review a decision of a military corrections board under
an ‘unusually deferential application of the “arbitrary or
capricious” standard’ of the APA.” Roberts v. United States,
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741 F.3d 152, 158 (D.C. Cir. 2014) (quoting Kreis v. Sec’y of
the Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)). We
articulated that approach in Kreis, which involved a challenge
to a decision of the Air Force Board for the Correction of
Military Records. The statute empowering military corrections
boards, 10 U.S.C. § 1552(a)(1), allows for correction of “any
military record . . . when the Secretary considers it necessary
to” do so. 10 U.S.C. § 1552(a)(1) (emphasis added). That
language, we reasoned, “substantially restrict[ed] the authority
of the reviewing court to upset the Secretary’s determination”
because “[i]t is simply more difficult to say that the Secretary
has acted arbitrarily if he is authorized to act ‘when he
considers it necessary.’” Kreis, 866 F,2d at 1514 (quoting 10
U.S.C. § 1552(a)(1)). We thus concluded that “decisions of the
Board are reviewable under the APA, albeit by an unusually
deferential application of the ‘arbitrary and capricious’
standard.” Id.The question here is whether the statute empowering the
PDBR, 10 U.S.C. § 1554a, exudes similarly unusual deference
to the Secretary. Under that statute, the PDBR “may . . .
recommend to the Secretary” that a separation be
recharacterized or a rating be modified or issued and the
Secretary “may correct the military records . . . in accordance
with a recommendation made by the [PDBR].” 10 U.S.C.
§ 1554a(d), (e)(1) (emphasis added). True, the statute’s use of
“may” indicates that the PDBR and the Secretary have the
discretion, rather than the obligation, to act. See, e.g., Biden v.
Texas, 142 S. Ct. 2528, 2541 (2022). But a great deal of agency
action is discretionary, and the default standard of review still
is ordinary arbitrary-and-capricious review. In Kreis, we
concluded that an unusually deferential application of that
standard was warranted because section 1552(a)(1) confers
uncommon discretion by authorizing the Secretary to act when
she “considers it necessary.” 10 U.S.C. § 1552(a)(1); see
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Kreis, 866 F.3d at 1514. Section 1554a contains no
comparable language.
Contrary to the Secretary’s contention, our reliance on
ordinary arbitrary-and-capricious review should not threaten to
“destabilize military command and take the judiciary far afield
of its area of competence.” Cone v. Caldera, 223 F.3d 789,
793 (D.C. Cir. 2000). To be sure, determining whether a
condition renders a soldier unfit for service calls for military
judgment. But the cases in which we have emphasized the need
for a heightened standard of review to safeguard military
judgment have involved decisions concerning active personnel,
such as performance reviews and promotion decisions. See,
e.g., Roberts, 741 F.3d at 155–57; Cone, 223 F.3d at 790–92;
Kreis, 866 F.2d at 1509. The PDBR, however, is tasked with
reviewing disability rating decisions that will determine the
compensation of soldiers who left the military no later than
2009. See 10 U.S.C. § 1554a(b). Reviewing those decisions
under ordinary arbitrary-and-capricious review would not
“destabilize military command.” Cone, 223 F.3d at 793.
Of course, even ordinary arbitrary-and-capricious review
is “[h]ighly deferential” and “presumes the validity of agency
action.” AT&T Corp. v. FCC, 220 F.3d 607, 616 (D.C. Cir.
2000). The Secretary’s decision is thus entitled to that kind of
deference.
B.
We now turn to the Secretary’s decision. The PDBR’s
recommendation, which the Secretary accepted, is amenable to
more than one interpretation. But no matter how one reads that
recommendation, the Secretary, in accepting it, did not act in
accordance with the law governing disability ratings. The
Secretary either (i) concluded that Sissel’s leg condition
13
contributed to his unfitness but nonetheless did not assign it a
disability rating, or (ii) concluded that Sissel’s leg condition
was not unfitting because it neither separately rendered Sissel
unfit nor “significantly” contributed to his unfitness. Either
way, the Secretary’s decision was contrary to law.
1.
Certain aspects of the PDBR’s recommendation suggest a
conclusion that Sissel’s leg condition contributed to his
unfitness together with his back injury. According to the
PDBR, the PEB had determined that the “constellation” of
Sissel’s back and leg injuries was unfitting. Sissel, 2021 WL
6062832, at *4. The record contains support for the PDBR’s
understanding of the PEB’s decision. The PEB listed both of
Sissel’s injuries—chronic back pain and right leg weakness—
under a single diagnostic code. Id. Importantly, in listing both
conditions under a single code, the PEB did not annotate the
leg condition as non-ratable. Under the relevant regulations,
that omission indicates that the PEB found the two conditions
collectively unfitting. See 1990 Army Regul. 635-40 ¶ 3–5(d).
To the extent the PEB found Sissel’s right-leg condition
collectively unfitting, the PDBR’s ensuing recommendation in
some respects suggests agreement that Sissel’s leg condition
contributed to his unfitness together with his back condition.
The PDBR undoubtedly found the latter condition separately
unfitting: after “de-coupl[ing]” the back and leg conditions,
the PDBR concluded that “the back condition was reasonably
considered unfitting at separation” and assigned “a disability
rating of 20% for the back condition, coded 5241.” Sissel, 2021
WL 6062832, at *4 n.16. But the PDBR did not expressly
disclaim the PEB’s explanation that the “constellation” of
Sissel’s back and leg injuries also was unfitting. Moreover, the
PDBR recommended a 20% disability rating “for the combined
14
conditions of ‘back pain and right leg weakness,’” id. at *4(emphasis added), consistent with a conclusion that Sissel’s leg
injury contributed to unfitness together with his back condition.
If the PDBR concluded that Sissel’s leg injury, along with
his back injury, was collectively unfitting, the PDBR was
obligated to give Sissel’s leg condition a rating. But the PDBR
did not do so, meaning the Secretary acted contrary to law in
adopting the PDBR’s conclusion.
Longstanding Army regulations confirm an obligation to
rate any compensable disability—that is, any disability that “in
itself, is unfitting or contributes to the unfitting condition.”
1990 Army Regul. 635-40 ¶ 4–19(f)(6)(b) (emphasis added);
see also id. ¶ 4-19(i); 2017 Army Regul. 635-40 ¶ 5–5. That is
so even if, as here, one of the conditions in the constellation of
collectively unfitting conditions would also, on its own, suffice
to render the soldier unfit. See 2017 Army Regul. 635-40 ¶ 5–
4(g). To the same effect, the governing statute establishes that,
“[i]n making a determination of the rating of disability of a
member of the armed forces . . . , the Secretary concerned shall
take into account all medical conditions, whether individually
or collectively, that render the member unfit.” 10 U.S.C.
§ 1216a(b) (emphasis added).
Thus, to the extent the PDBR concluded that Sissel’s leg
condition rendered him collectively unfit when considered
together with his back condition, it was obligated to assign a
rating to the leg condition. By extension, the Secretary, in
accepting the PDBR’s recommendation to give no rating to
Sissel’s leg condition, acted contrary to law insofar as the
PDBR concluded that his leg condition was collectively
unfitting together with his back condition.
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2.
In certain respects, however, the PDBR indicated that
Sissel’s leg condition did not contribute to his unfitness—i.e.,
that it was not collectively unfitting together with his back
condition. Most notably, the PDBR stated that Sissel’s
“decreased RLE [right lower extremity] sensation would not be
anticipated to have any impact on [Sissel’s] duty performance
and there was no evidence in the record that it did.” Sissel,
2021 WL 6062832, at *4 n.16 (emphasis added). And the
Secretary, in adopting the PDBR’s recommendation, said that
she concurred that Sissel’s leg condition was not separately
unfitting and did not contribute to his unfitness.
Insofar as the Secretary determined that Sissel’s leg
condition was not collectively unfitting, though, the Secretary
referenced too stringent a standard. The Secretary, echoing the
conclusion of the doctor whose informal advice the Secretary
reviewed, stated that Sissel’s leg condition did not contribute
“significantly” to his unfitness. Sissel, 2021 WL 6062832, at
*5. But according to the terms of the Army’s regulations, any
“contribution”—regardless of level of significance—calls for a
rating. See 1990 Army Regul. 635-40 ¶ 4–19(f)(6)(b); 2017
Army Regul. 635-40 ¶ 5–5. That is also the most natural
reading of the relevant statute: when multiple conditions
“collectively . . . render the member unfit,” the Secretary “shall
take into account all” of those medical conditions. 10 U.S.C.
§ 1216a(b) (emphasis added). The fact that a condition
contributes to a soldier’s unfitness is enough, and the
Secretary’s apparent addition of a “significantly” criterion
naturally raises questions about what degree and manner of
contribution is thought to suffice, questions that the terms of
the statute and regulations do not make salient.
16
The Secretary’s “significantly” add-on is also undermined
by the fact that, under the LDES, the insignificance of a
condition that contributes to unfitness is taken into account in
the rating ultimately assigned to the condition, not in whether
the condition should get any rating in the first place. The
applicable regulations explain that, “[o]ccasionally a medical
condition which . . . contributes to unfitness for military
service is of such mild degree that it does not meet the criteria
for even the lowest rating provided in the VASRD.” 1990
Army Regul. 635-40 app. ¶ B–15. In that situation, the
regulations instruct the PEB to generally “[a]pply a 0 percent
rating” even though the condition does contribute (albeit
mildly) to the soldier’s unfitness. Id. The regulations thus
presume that every condition contributing to unfitness—no
matter how insignificant the contribution—receives a rating,
even if a rating of 0. That is inconsistent with the Secretary’s
indication that Sissel’s leg condition was not unfitting (and
hence non-ratable) because it did not “significantly” contribute
to his unfitness. Any assumption that a medical condition, to
receive a rating, must contribute “significantly” to unfitness
thus is contrary to law.
* * * * *
For the foregoing reasons, we vacate the district court’s
grant of summary judgment and remand for further
proceedings consistent with this opinion.
So ordered.