NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEFFREY BROWN,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-2528
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-01121-LKG, Judge Lydia Kay
Griggsby.
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Decided: August 30, 2018
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JASON E. PERRY, Law Office of Jason Perry, Cheshire,
CT, argued for plaintiff-appellant.
MICHAEL D. SNYDER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by ROBERT EDWARD KIRSCHMAN, JR.,
DOUGLAS K. MICKLE, CHAD A. READLER.
______________________
2 BROWN v. UNITED STATES
Before PROST, Chief Judge, MOORE and STOLL, Circuit
Judges.
MOORE, Circuit Judge.
Jeffrey Brown appeals the U.S. Court of Federal
Claims’ (“Claims Court”) grant of the government’s mo-
tion and denial of his motion for judgment on the admin-
istrative record of proceedings before the Army Board for
Correction of Military Records under 10 U.S.C. §§ 1201
and 1203. Because the Claims Court erred in holding Mr.
Brown waived his argument that his shoulder condition
supported disability retirement benefits, we reverse and
remand.
BACKGROUND
Mr. Brown served in the U.S. Army from August 1984
to August 2000, when he was honorably discharged.
During this time, he suffered several seizures. After the
first seizure in 1996, he received treatment for a dislocat-
ed shoulder resulting from the seizure. From 1996 to
1997, his shoulder dislocated several more times, and in
1998, he underwent surgery to repair it.
In 1999, Mr. Brown fell out of the Army’s height and
weight standards, and the Army began processing him for
involuntary separation. In April 1999, a Brigade Medical
Officer reviewed Mr. Brown’s report of medical history
and concluded he qualified for involuntary separation
upon conclusion of a General Surgery consult. In August
2000, Mr. Brown’s enlistment contract expired prior to
any action on involuntary separation.
In December 2013, Mr. Brown petitioned the Board
for correction of his military records to provide him with
military disability retirement. The Board determined his
military records did not contain an error or injustice and
denied his request for reconsideration. Mr. Brown filed
suit in the Claims Court, which determined he had not
sufficiently raised his claim based on his shoulder condi-
BROWN v. UNITED STATES 3
tion before the Board and had, therefore, waived it. It
granted judgment on the administrative record in favor of
the government.
Mr. Brown appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(3). We review the Claims Court’s
judgment on the administrative record de novo. Cham-
bers v. United States,
417 F.3d 1218, 1227 (Fed. Cir.
2005).
DISCUSSION
We disagree with the Claims Court’s determination
that Mr. Brown had not sufficiently raised his claim based
on his shoulder condition before the Board. In his
May 11, 2015, Application for Correction of Military
Record, Mr. Brown specifically stated he was a “top per-
former” until he “began to have seizures and requiring
surgeries.” J.A. 132. His medical records make clear that
one of the surgeries he required was to address his recur-
rent shoulder dislocations. J.A. 302. Similarly, his Re-
port of Medical History explains that he had “3 hernia
operations” and “1 shoulder surgery.” J.A. 312. In re-
questing reconsideration by the Board, Mr. Brown stated
his commanders failed to properly evaluate his medical
condition “through all my shoulder dislocation and other
seizures,” and discussed his inability to do pushups.
J.A. 133, 136. The Claims Court further acknowledged
other portions of the record in which Mr. Brown explained
the nature of his shoulder condition to the Board.
J.A. 15–16. We hold, therefore, that Mr. Brown sufficient-
ly raised his claims based on his shoulder condition.
In determining the rating of disability of a member of
the armed services, the Secretary must “take into account
all medical conditions whether individually or collective-
ly.” 10 U.S.C. § 1216a(b) (emphasis added). At oral
argument, both parties agreed that if we find Mr. Brown
4 BROWN v. UNITED STATES
did not waive his shoulder condition, remand of the entire
case is required. 1 Oral Arg. 10:51–11:24, 19:15–19:32.
Because we hold Mr. Brown did not waive his shoulder
condition, we remand the entire case for reconsideration.
CONCLUSION
For the foregoing reasons, we reverse the Claims
Court’s determination that Mr. Brown waived his claims
based on his shoulder condition. We remand for further
proceedings.
REVERSED AND REMANDED
1 In a post-argument letter for the court, the gov-
ernment for the first time changed its position on
§ 1216a(b), claiming that it does not require collectively
considering every claimed condition. While we are skepti-
cal of the government’s proposed supplemental construc-
tion as it appears to read “or collectively” out of the
statutory text, we deem this late-raised argument to have
been waived.
