White v. Mattis ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LEON C. WHITE,
Plaintiff,
v. Civil Action No. 18-02867 (ESH)
JAMES N. MATTIS, et al.,
Defendants.
MEMORANDUM OPINION
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
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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
1
Qualification for retirement also depends on the cause and timing of the disability and whether
the disability may be permanent. See 10 U.S.C. §§ 1201(b)(3)(B), 1203(b)(2)–(3).
2
The Board only considers appeals from soldiers discharged between September 11, 2001, and
December 31, 2009, with a disability rating of 20 percent or less. 10 U.S.C. § 1554a(b). Other
discharged soldiers have other avenues of appeal. See 10 U.S.C. § 1554; 32 C.F.R. § 581.1.
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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.)
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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 White’s disability prevented him from performing his duties and assigned a
disability rating of 20 percent. (AR 35.) The PEB recommended that he be separated with
severance pay. (Id.)
On January 5, 2004, White attended a medical examination through the VA (the “VA
examination”). (AR 609.) The physician found that the range of motion in his thoracolumbar
spine showed flexion of 30 degrees, extension of 10 degrees, lateral flexion of 10 degrees, and
rotation of 10 degrees. (AR 612.) The range of motion of his cervical spine showed flexion of
45 degrees, extension of 45 degrees, lateral flexion of 45 degrees, and rotation of 80 degrees.
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(Id.) Based on the results of this examination and White’s Army medical records, the VA
awarded White a disability rating of 40 percent. (AR 618.)
Based on the PEB’s disability rating and recommendation, White was medically
separated from the Army on March 27, 2004. (AR 32.) On April 24, 2011, White applied for
review of the PEB’s decision by the Board, and, on February 26, 2015, a majority of the Board
recommended that the PEB’s disability rating remain unchanged. (AR 7, 30–31.) In its
decision, the Board summarized White’s relevant medical history, including the origin of his
injury, the surgeries he had undergone, and the treatment he had received. (AR 6.) It also
referenced White’s commander’s statement, which “indicated that [White] was able to perform
duties in-garrison as a unit mail clerk; however[,] he was not deployable due to his inability to
perform his [military occupational specialty] duties as an Infantryman.” (Id.) The Board next
reviewed the PEB and the VA examinations. (Id.) The Board stated that the former, which was
“approximately 5 months prior to separation,” “contains documentation that [White] had marked
and frequent [lower back pain] episodes, which precluded him from performing the majority of
his activities of daily living, disrupted his sleep and required narcotics for pain control.” (Id.)
And it noted that the VA examination, which was “approximately 3 months prior to separation,”
similarly “documented chronic [lower back pain] that precluded him from most of his activities
of daily living, such as limited [sic] to taking showers, an inability to wear socks, cutting
toenails, tying his shoelaces and removing his shoes.” (Id.) The Board summarized other
evidence from the evaluations and ratings in two charts. The first shows how White’s disability
was coded and rated by each rating board. (Id.) The second appeared as follows:
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Thoracolumbar ROM PT 4-5 Mos. Pre-Sep.[3] VA C&P 3 Mos. Pre-Sep.[4]
(Degrees)
Flexion (90 Normal) 45 30
Combined (240) - 80
ROM limited by poor effort; Back brace; Normal gait,
Comment stiff during ROM; 2/5 strength/sensation & reflexes
positive Waddell signs
§ 4.71a Rating 20% 40%
(AR 7.)
The Board then reached its conclusion in a single paragraph:
The Board considered the probative value between the [PEB
examination] (approximately 5 months prior to separation) and the
[VA examination] (3 months prior to separation). Although both
examinations contained detailed comments, the VA C&P exam
contained complete ROM’s [sic] measurements to include a
combined ROM value. The Board noted that the [PEB
examination] contained relevant comments related to [White]’s
effort during the evaluation. Additionally, the Board noted
[White] was performing mailroom duties satisfactorily as cited in
the commander’s statement. After a thorough discussion, a
consensus of the Board members adjudged that the [PEB]
examination was the most probative valued exam and more likely
reflected [White]’s disability at the time of separation. The PEB
appropriately utilized the forward flexion of 45 degrees
documented on the [PEB] examination to arrive at its 20%
evaluation. The Board did not find any evidence of an unfitting
neurological abnormality. After due deliberation, considering all
of the evidence and mindful of [38 C.F.R.] § 4.3 (reasonable
doubt), the Board recommends no change in the PEB’s
adjudication of the [lower back pain], lumbar fusion without
neurologic abnormality.
(AR 7.)
III. PROCEDURAL HISTORY
White initiated this action on December 6, 2018. His single-count complaint challenges
the Board’s decision as arbitrary and capricious in violation of the APA. (Compl. ¶¶ 42–46.) He
3
The information in this column corresponds to the PEB examination.
4
The information in this column corresponds to the VA examination.
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moved for summary judgment on June 10, 2019, and defendants filed their cross-motion for
summary judgment on July 11, 2019. In support of his motion, White argues that the Board’s
determination that the PEB examination was more probative than the VA examination was
arbitrary and capricious because the Board failed to explain how it relied on the evidence it cited
and how it reached its conclusion. (Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”) at 10–16, ECF No.
18.) White also urges that the Board’s conclusion is not supported by substantial evidence. (Id.
at 12–13.) In their cross-motion, defendants contend that the Board sufficiently explained its use
of the evidence and its conclusion, and that conclusion is supported by substantial evidence.
(Defs.’ Cross-Mot. for Summ. J. at 10–18, ECF No. 19-2.) Those motions are now ripe.
ANALYSIS
I. LEGAL STANDARDS
When reviewing agency action under the APA on cross-motions for summary judgment,
courts do not apply the typical summary judgment standard contained in Federal Rule of Civil
Procedure 56. Stewart v. Stackley, 251 F. Supp. 3d 138, 155 (D.D.C. 2017). Instead, the
standard proscribed by the statute applies: A court must “hold unlawful and set aside agency
action, findings, and conclusions” that are, inter alia, “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” or “unsupported by substantial evidence.”
5 U.S.C. § 706(2). The scope of this review is “narrow,” and “a court is not to substitute its
judgment for that of the agency.” Judulang v. Holder, 565 U.S. 42, 53 (2011) (citations and
internal quotation marks omitted); see also Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier
Safety Admin., 724 F.3d 243, 245 (D.C. Cir. 2013) (review under the APA is “highly deferential”
(citation and internal quotation marks omitted)). Moreover, a court does not engage in fact
finding and is instead bound by the administrative record that was before the agency. CTS Corp.
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v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“It is black-letter administrative law that in an
Administrative Procedure Act case, a reviewing court should have before it neither more nor less
information than did the agency when it made its decision.” (citations, internal quotation marks,
and alterations omitted)).
The APA’s “arbitrary and capricious” test requires courts to “ensur[e] that agencies have
engaged in reasoned decisionmaking.” Judulang, 565 U.S. at 483–84. To this end, an agency
must have reviewed the record and articulated an explanation for its action that establishes “a
rational connection between the facts found and the choice made.” Alpharma, Inc. v. Leavitt,
460 F.3d 1, 6 (D.C. Cir. 2006) (citation and internal quotation marks omitted); see also Butte
Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) (“[T]he agency must explain why it decided
to act as it did.”). “[C]onclusory statements will not do; an agency’s statement must be one of
reasoning.” Amerijet Intern., Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (citation and
internal quotation marks omitted) (emphasis in original). “This does not mean that an agency’s
decision must be a model of analytic precision to survive a challenge,” so long as “the agency’s
path” between the facts found and decision made “may reasonably be discerned.” Dickson v.
Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995) (citation and internal quotation marks
omitted).
Similarly, “[u]nder the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains sufficient evidence to support the agency’s
factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation and internal
quotation marks omitted). In doing so, a court “must consider the whole record upon which an
agency’s factual findings are based, including whatever in the record fairly detracts from the
evidence supporting the agency’s decision.” Genuine Parts Co. v. EPA, 890 F.3d 304, 312 (D.C.
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Cir. 2018) (citation and internal quotation marks omitted). “Evidence that is substantial viewed
in isolation may become insubstantial when contradictory evidence is taken into account.” Id.(citation and internal quotation marks omitted). Thus, an agency cannot ignore evidence
contrary to its action or dismiss such evidence “without adequate explanation.” Id.II. THE BOARD’S DECISION
The Board’s single-paragraph analysis fails to explain how its conclusion is supported by
the facts. The Board identified only two facts as support for its conclusion, but, without
explanation, the importance of these facts is unclear. First, the Board “noted that the [PEB
examination] contained relevant comments related to [White]’s effort during the evaluation.”
(AR 7.) Although the medical examiner conducting White’s PEB examination perceived that his
range of motion was “limited by [his] effort,” the Board did not explain how this comment leads
to the conclusion that the PEB examination is more probative of the degree of White’s disability
at the time of separation than the VA examination. (AR 66.) The Board also failed to account
for other comments made by that medical examiner that may explain the examiner’s perception
of White’s effort. Specifically, the PEB examiner noted that White “has run out of pain meds so
his pain is a 7/10 today.” (AR 65.) The Board made no mention of his experiencing pain during
his PEB examination, even though it may have affected his effort while testing his range of
motion. And, importantly, unlike effort, pain is explicitly listed by the VASRD as a
consideration when determining the functional loss caused by a disability. See 38 C.F.R. § 4.40(“The functional loss . . . may be due to pain,” and “a part which becomes painful on use must be
regarded as seriously disabled.”). Thus, White’s pain is not only relevant under the regulations,
but its consideration is mandated by them. Nonetheless, the record gives no indication that pain
was factored into the Board’s analysis.
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Second, in support of its conclusion, the Board “noted [White] was performing mailroom
duties satisfactorily as cited in the commander’s statement.” (AR 7.) But neither the
commander’s statement nor the Board’s decision elucidates exactly what White’s mailroom
duties were or how they are probative of the degree of his disability. His mailroom position may
have involved minimal physical movement. Indeed, the commander’s statement also reports that
White was “unable to lift heavy weights over 20 pounds, a necessity in his field [as an
Infantryman].” (AR 50.) Thus, the record does not reveal why the Board concluded that
White’s performance of mailroom duties favors its conclusion or why that conclusion is not
undercut by his limited ability to perform activities of daily living.
Moreover, the Board’s analysis does not show that it took account of contradictory
evidence. See Genuine Parts Co., 890 F.3d at 312 (“[A]n agency cannot ignore evidence that
undercuts its judgment . . . .”). First, the Board stated that the VA examination occurred closer in
time to White’s separation than the PEB examination. (AR 7.) Second, it stated that, unlike the
PEB examination, the VA examination “contained complete [range of motion] measurements to
include a combined ROM value.” (Id.) On their face, both facts appear to undercut the Board’s
conclusion. Because the VA examination took place closer to White’s separation, why is it not
more indicative of his disability at separation than the PEB examination? But because the Board
failed to explain how it weighed this fact, if at all, the Court cannot discern if the Board’s
decision is the product of reasoned decisionmaking. And, as defendants admit, the thoroughness
of an examination is an important “factor” to be considered “in comparing the examinations.”
(Defs.’ Reply at 6, ECF No. 24.) The Board’s failure to explain how thoroughness affected its
analysis leaves the Court guessing as to whether it was actually considered.
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Although acknowledging the Board’s obligation to resolve any reasonable doubt in favor
of the servicemember, as required by 38 C.F.R. § 4.3, the defendants refer only to the Board’s
statement that it was “mindful” of this regulation. (AR 7.) But a mere mention of the regulation
is not enough; it provides no insight as to whether the Board concluded that the regulation was
applicable or, if applicable, why it did not help to resolve the conflicting evidence.
Absent explanation of the evidence cited in the Board’s analysis, the Court cannot discern
the “path” the Board took to reach its conclusion. The Board’s decision, therefore, does not
“permit this Court to exercise its function of judicial review” and is arbitrary and capricious. CS-
360 v. Dep’t of Veterans Affairs, 846 F. Supp. 2d 171, 189 (D.D.C. 2012). 5
Moreover, based on review of the entire administrative record, the Court is unable to
determine if the Board’s conclusion is supported by substantial evidence. As noted above, the
Board failed to consider White’s pain as required by 38 C.F.R. § 4.40, and the commander’s
statement, which the Board credited, contains evidence that is relevant, but it appears to undercut
the Board’s ultimate conclusion. In addition, both the PEB and VA examination indicate that
White’s activities of daily living were extremely limited by his disability. Both examiners noted
that White was unable to sit in the bathtub, experienced extreme difficulty with putting on his
socks and shoes, and had difficulty sleeping because of his back pain. (AR 65, 611–12.) The
PEB examiner also noted that White “can’t run, can’t play with his kids, can’t play basketball,
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In his motion for summary judgment, White also argues that the Board failed to properly apply
three legal provisions: DODI 6040.44, Enclosure 3, ¶ 4(a)(5), which requires the Board to give
special consideration to VA rating determinations awarded within 12 months of the veteran’s
separation; 38 C.F.R. § 3.102, which, in conjunction with 38 C.F.R. § 4.3, requires the Board to
resolve any reasonable doubt that arises in favor of the veteran; and 38 C.F.R. § 4.7, which
requires the Board to assign the higher rating when “there is a question as to which of two
evaluations shall be applied” and “if the disability picture more nearly approximates the criteria
required for that rating.” (Pl.’s Mot. at 16–24.) On remand, the Board should consider their
applicability and explain how, if at all, they impact its analysis.
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etc.” (AR 65.) Although the VASRD requires that the Board consider a soldier’s “inability . . .
to perform the normal working movements of the body,” the Board failed to mention, let alone
consider, these limitations in its analysis. 38 C.F.R. § 4.40. Because the Board ignored this
seemingly significant evidence that conflicted with its conclusion, the Court cannot conclude that
the Board’s decision is supported by substantial evidence. See Genuine Parts Co., 890 F.3d at
312 (“Evidence that is substantial viewed in isolation may become insubstantial when
contradictory evidence is taken into account.”).
CONCLUSION
For the reasons stated above, the Court will grant White’s motion for summary judgment,
deny defendants’ motion for summary judgment, and remand to the Board for further
proceedings consistent with this Memorandum Opinion. In doing so, the Court does not decide
whether the Board’s ultimate conclusion was correct or incorrect. Here, the Court only
determines that the Board’s decisionmaking process was flawed. On remand, the Board should
review the administrative record and explain its decision in a way that clearly connects the facts
found to the decision made. In doing so, the Board should consider all relevant VASRD
provisions and DOD Instructions and explain how, if at all, they are applicable.
_______________________
ELLEN S. HUVELLE
United States District Judge
Date: December 11, 2019
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