Brass v. United States ( 2015 )

In the United States Court of Federal Claims
No. 14-437C
(Filed: February 27, 2015)
)
TWANYA L. BRASS, )
)
Plaintiff, )
)
v. ) Military Pay; Wounded Warrior Act;
) Physical Disability Board of Review;
THE UNITED STATES, ) 10 U.S.C. § 1216a
)
Defendant. )
)
Wayne I. Pollock, Philadelphia, PA, for plaintiff. Edwin V. Woodsome, Jr. and
Anna Do, Los Angeles, CA, and Barton F. Stichman, Thomas A. Moore, David M.
Sonenshine, and E. Lane Thompson, National Veterans Legal Services Program,
Washington, DC, of counsel.
William P. Rayel, Civil Division, United States Department of Justice, with whom
were Joyce R. Branda, Acting Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch.
Lt. Matthew Roush, United States Navy, Washington, DC, of counsel.
OPINION
Firestone, Judge.
This case deals with the United States Department of the Navy’s (“the Navy”)
decision to reject the 2012 recommendation of the Physical Disability Board of Review
(“PDBR”), undertaken pursuant to the Wounded Warrior Act of 2008, to increase the
plaintiff’s disability award. Plaintiff Twanya L. Brass (“Ms. Brass”) alleges in her
complaint that the Navy erred when it failed to accept the recommendation of the PDBR
to increase from 10% to 30% the disability rating she received from the Navy when she
was discharged in 2008. The difference between these two ratings is large: the 10%
rating entitled Ms. Brass to a one-time payment of $51,414, while a 30% rating would
entitle her to monthly disability payments, medical care for life, and military commissary
and exchange privileges.
Pending before the court are the motion for judgment on the administrative record
filed by defendant The United States (“the government”) and the cross-motion for
judgment on the administrative record filed by plaintiff. In its motion, the government
argues that the Navy’s 2012 decision to reject the PDBR recommendation to increase her
disability rating was lawful and supported by substantial evidence. Plaintiff, in her
motion, argues that the Navy’s decision to reject the recommendation was arbitrary,
capricious, and not in accordance with law.
For the reasons set forth below, plaintiff’s motion is GRANTED-IN-PART and
DENIED-IN-PART, the government’s motion is DENIED, and the case is
REMANDED for further proceedings consistent with this opinion.
I. BACKGROUND
a. The Navy’s Disability Evaluation Process and The Wounded Warrior
Act
Under the Navy Disability Evaluation Manual (“Navy manual”), the Navy has
created “policies and procedures for evaluation of physical fitness for duty and
disposition of physical disability in the [Navy] . . . .” Secretary of the Navy Instruction
(“SECNAVINST”) 1850.4E ¶ 1. This process has several steps. First, when a service
2
member’s ability to perform his or her duties is called into question as a result of a mental
or physical impairment, a Navy Medical Evaluation Board (“MEB”) is convened “to
evaluate and report on the diagnosis; prognosis for return to full duty; plan for further
treatment, rehabilitation, or convalescence; estimate of the length of further disability;
and medical recommendation for disposition of such members.” Id. at Enclosure 2, §
2043.
If the MEB finds a “member’s fitness for continued naval service questionable by
reason of physical or mental impairment,” the process proceeds to a second step: a Navy
Physical Evaluation Board (“PEB”). Id. at Enclosure 3, § 3201(a). The PEB acts on
behalf of the Secretary of the Navy and makes determinations of fitness to continue naval
service, entitlements to benefits, and disposition of service. Id. at Enclosure 1, § 1004(a).
An informal PEB first performs a record review and issues preliminary findings. Id. at §
1004(b).
If the member disagrees with those findings, she may request a formal hearing. Id.
at § 1004(c)-(d). The formal PEB will then conduct a hearing and make recommended
findings to the President of the PEB, who will issue a final determination. Id. at §
1004(f). Alternatively, the member may accept the findings of the informal PEB, waive
the formal PEB and, if found to be unfit, request a discharge date. See id. at §
1004(c)(3); AR 37-38. According to the Navy manual, “[t]he sole standard to be used in
making determinations of physical disability as a basis for retirement or separation is
unfitness to perform the duties of the office, grade, rank or rating because of disease or
injury incurred or aggravated while entitled to basic pay.” SECNAVINST 1850.4E,
3
Enclosure 3, § 3301. If a member is determined to be unfit for duty based upon one or
more disabilities, those unfitting conditions will be assigned a percentage rating pursuant
to the standards established by the Veterans Administration Schedule for Rating
Disabilities (“VASRD”). Id. at § 3801-3802; 10 U.S.C. § 1216a(a).
In 2008, Congress passed the Wounded Warrior Act, which clarified that in
making a disability determination the Secretary of the branch concerned is authorized to
apply criteria in addition to the VASRD “if the utilization of such criteria will result in a
determination of a greater percentage of disability than would be otherwise determined
through the utilization of the schedule.” 10 U.S.C. § 1216a(a)(2). The Wounded Warrior
Act also established the PDBR to review disability determinations for “covered
individuals” who were separated from the military between September 11, 2001 and
December 31, 2009 due to a medical condition with a disability rating of 20% or less, and
found not eligible for retirement. 10 U.S.C. § 1554a(a)-(b). Covered individuals are
authorized to petition the PDBR to review the findings and decisions of a PEB based
upon existing military records and other evidence presented. Id. at § 1554a(c)(1)-(2).
Following its review, the PDBR “may . . . recommend to the Secretary concerned”
changes to the covered individual’s disability rating and status. Id. at § 1554a(d). The
Wounded Warrior Act further provides that the Secretary concerned may correct the
covered individual’s military records in accordance with the PDBR recommendation or
reject the PDBR recommendation. See id. at § 1554a(e)(1); Department of Defense
Instruction 6040.44, Enclosure 3, ¶ 6(d). The Secretary is given final decision-making
authority.
4
b. Facts
1. Plaintiff’s Naval Service and Medical History
Ms. Brass served on active duty in the Navy from September 9, 1998 to May 31,
2008 as an Operations Specialist, reaching the rank of Second Class Petty Officer. AR
1361, 1430-85. In June 2006, Ms. Brass was assigned to the USS Mobile Bay, a guided
missile cruiser. Id. at 1429. Shortly thereafter, in July 2006, Ms. Brass began to have
difficulty at work. Id. at 1352. Around January 2007, she began to experience
psychological symptoms, including depressed mood, low energy, irritability, thoughts of
hurting others, and hypersomnolence. Id. at 86, 1352. In April 2007, an Independent
Duty Corpsman referred her to the Psychiatry Clinic at Naval Branch Health Clinic Naval
Station San Diego because she had expressed thoughts of hurting others, including
coworkers and members of her immediate family. Id. at 1362.
A Navy doctor diagnosed Ms. Brass as suffering from Depressive Disorder NOS
and assigned her a Global Assessment Functioning (“GAF”) rating of 48. Id. at 558-59,
1347-50. Such a rating suggests some “serious impairment in social, occupational, or
school functioning[.]” 34 American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, 4th ed., Text Revision. As a result of this diagnosis, Ms.
Brass was not considered fit for full duty and was placed on Limited Duty. Id. at 1350.
This meant that she could not participate in deployments, night duties, or the handling of
firearms or heavy machinery. Id. Additionally, Ms. Brass was referred to in-group and
individual therapy. Id.
5
Ms. Brass participated in therapy from April 2007 through January 2008, see, e.g.,
id. at 554, 555, 1214, 1217, 1233, 1246, 1259, 1298, 1310, 1319, 1325, 1345, and was
prescribed Wellbutrin to manage her symptoms, id. at 1302. She began to show some
improvement in June-October 2007, averaging GAF ratings of around 63. Id. at 32,
1246, 1253, 1259, 1290, 1298, 1301, 1307, 1310, 1313, 1316, 1319. In October 2007,
Ms. Brass was re-evaluated to determine whether she was fit to return to full duty. Id. at
1252-54. While the doctor found that she reported an improvement in her depression, the
doctor also noted that she had ongoing interpersonal issues at work and was having
difficulty addressing those problems. Id. at 1253. The doctor reaffirmed the earlier
diagnosis and found that Ms. Brass was still unfit for full duty. Id.
2. MEB and PEB Evaluations
That same month, Ms. Brass was evaluated by a MEB, the first step in the
disability evaluation process. Id. at 26-33. The MEB found that Ms. Brass had depressed
mood with constricted ranging affect. Id. at 26, 29. In its report, the MEB found that,
despite some improvements, plaintiff continued to complain about hypersomnolence,
depressed mood, and low energy. Id. at 26. The examiner noted that her “personality
structure has interfered with full recovery and is a factor of why she is unlikely to do well
if returned to operational duty. She has limited ability to cope and adapt to stressful
events especially when related with interpersonal relationships. Id. at 31. The MEB
recommended a medical discharge because of the “high likelihood of an exacerbation of
symptoms in an operational environment,” id., and recommended that the case be
referred to a PEB for further proceedings, id. at 33.
6
On January 9, 2008, an informal PEB consisting of a Navy medical officer, a
Marine Corps line officer, and a Marine Corps Reserve line officer was convened to
evaluate Ms. Brass. Id. at 40-41. The PEB determined that her depressive disorder was
an unfitting condition and assigned her a disability rating of 10%. Id. at 40. Later that
month, Ms. Brass requested reconsideration of the determination, claiming that relevant
information was not included in the medical records reviewed by the PEB. Id. at 42-46.
Ms. Brass included her health records for April 2007 through November 2007 with her
request. Id. at 47-84. Additionally, she demanded a formal PEB in the event that the
second PEB did not change the determination to what she believed her condition
warranted. Id. at 45.1
On February 13, 2008, a second informal PEB, consisting of a Navy medical
officer, a Navy Reserve line officer, and a Marine Corps Reserve line officer, was
convened. Id. at 35-36. The results of this PEB were identical to the first, with the PEB
determining a disability rating of 10%. Id. While Ms. Brass had earlier indicated that
she would demand a formal PEB if the second informal PEB reached the same result, she
accepted the result and waived her right to a formal hearing. Id. at 38.
1
Ms. Brass also sought a disability rating for other health-related problems, including migraine
headaches. See AR 35, 40.
7
In making its disability determination, the Navy applied its own manual
interpreting the VASRD.2 The VASRD provides the following standard for a 30%
disability rating:
Occupational and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic
sleep impairment, mild memory loss (such as forgetting names, directions,
recent events).
38 C.F.R. § 4.130. The Navy manual provides the following gloss on the VASRD
standard:
Since the 30% rating in the VASRD requires “. . . intermittent periods of
inability to perform occupational tasks,” the following definition of
vocational functional impairment is provided: Symptoms of a psychiatric
condition causing a period or periods of “inability to perform occupational
tasks” should be of such severity as to result in a pattern of job loss,
demotion, disqualification from obtaining employment, or inability to
engage in or maintain reasonable employment. “Reasonable employment”
is determined, in part, by considering the service member’s premorbid
vocational adjustment, education, and accomplishments.
SECNAVINST 1850.4E, Enclosure 9 § 9011(k)(1)(b) (emphasis added). The Navy
manual thus requires evidence of job loss, demotion or the inability to maintain
employment in order to meet the “intermittent period of inability to perform occupational
tasks” requirement in the VASRD.
3. VA Evaluation
2
As noted above, under 10 U.S.C. § 1216a(a)(2), the Navy is permitted to apply its own
standards so long as they do not impose a higher standard than that set in the VASRD.
8
Two months prior to leaving the Navy, on March 11 and 14, 2008, the VA
conducted an evaluation of Ms. Brass. AR 114-15. The VA issued a rating decision,
based on those evaluations and other evidence, on July 9, 2008. Id. The examiner
diagnosed depressive disorder, noting that Ms. Brass reported “major depression and 14
hours of sleep a day” and found a GAF rating of 65. Id. at 115. The VA examiner noted
that the effect of her depressive disorder also had an effect on her occupation and social
functioning, which resulted in a 30% disability rating. Id. at 115-16. She was also
evaluated for a disability based on migraine headaches, which was found to be 0%
disabling. Id. at 129. On June 2, 2010, she sought a rating increase from the VA for
migraine headaches and was examined again. Id. at 133. After this review, her rating
was increased to the 10% level. Id. at 130. Several months later, on December 13, 2010,
Ms. Brass was reevaluated for her depressive disorder. Id. at 22-25. Following that
examination, the VA determined that Ms. Brass’s disability rating for depression should
continue at 30%. Id. The 2010 decision noted that Ms. Brass reported having insomnia
and depression that caused difficulties with work. Id. at 149. The evaluation indicated
that she had been unemployed for several years upon leaving the Navy and had been
employed for less than one year in her current position. Id. at 148. The evaluation
further stated that she had missed 3 weeks of work since starting the job because of her
depressive symptoms, id. at 149, and that she did not expect her contract to be renewed,
id. at 145. The examiner assigned a GAF rating of 55, noting a diagnosis of “Major
Depression.” Id.
4. PDBR Review
9
On October 11, 2011, Ms. Brass submitted an application to the PDBR for review
of the Navy’s 2008 10% disability rating determination. Id. at 19-22. The application
stated that she “would like the findings of [her] PEB re-evaluated in accordance with the
VASRD. According to the VA[S]RD and [her] medical records, at the time of discharge
[she] should have been rated differently.” Id. at 19. The PDBR convened on June 14,
2012. Id. at 13.
On June 29, 2012, the PDBR issued a written decision in which it recommended
that Ms. Brass’s disability rating “be recharacterized to reflect permanent disability
retirement with a combined disability rating of 30% rather than 10%. Id. The 30%
recommendation was based solely on her depression. The PDBR did not recommend any
change with regard to the 0% rating attributable to her migraine headaches. The President
of the PDBR informed the Assistant Secretary of this recommendation on the same day.
Id.
The PDBR found that “the GAF assignments of 55, and 65, symptom description,
and clinical course argue against a characterization of the severity as mild or transient,”
instead finding that VASRD’s 30% description was “a better fit” and that the
“occupational functioning in evidence is consistent with decreased efficiency, reliability,
and productivity at the time of separation and . . . 19 months after separation.” Id. at 6-7.
Comparing the VASRD with the standards applied by the PEB, the PDBR found that the
PEB’s “reliance on SECNAVINST 1850.4E for rating depressive disorder, NOS was
operant in this case and the condition was adjudicated independently of that instruction
by the Board.” Id. at 17. In other words, the PDBR found that the PEB had not relied on
10
the VASRD in reaching its determination and therefore was unable to determine whether
the decision comported with the VASRD.
The PDBR further found that “both the MEB and VA exams were complete, well
documented, and similar in terms of ratable data; and, therefore assign[ed] them equal
probative value.” Id. at 16. The PDBR found that Ms. Brass’s depressive disorder could
have been rated as high as 50% when she was originally referred to the MEB in 2007, but
that a 30% rating was a better fit as of June 2012. Id.
5. Rejection of PDBR Recommendation by Navy
On July 11, 2012, a senior medical advisor for the Secretary of the Navy Council
of Review Boards (“CORB”) reviewed the PDBR recommendation. Id. at 9-12. The
medical advisor sent a memorandum to the Director of CORB stating that “the available
evidence appears insufficient to warrant recommending the requested relief.” Id. at 10-
12. To come to this conclusion, the advisor reviewed the PDBR memorandum, the
January 2008 PEB determination, and a December 2007 nonmedical assessment, but did
not appear to consider the findings of the MEB. Id. at 10-11. The advisor further found
that the VA determination from 2008 contained a “weak” explanation and stated that it
“did not establish the necessary intermittent periods of inability to perform occupational
tasks at the time of her discharge.” Id. at 12. The advisor went on to conclude that Ms.
Brass was able to maintain a job while suffering from difficulties caused by migraines.
Id. The advisor also found that the most likely cause of plaintiff’s issues was not
depression but rather “Chronic (ACDU) Adjustment Disorder,” an unratable condition
which the MEB, PEB, and VA had not considered. Id.
11
On July 12, 2012, the Director of CORB sent a memorandum to the Assistant
Secretary recommending non-concurrence with the PDBR recommendation, based on the
review by the CORB advisor. Id. at 9. On July 24, 2012, the Secretary rejected the
PDBR recommendation and maintained Ms. Brass’s disability rating. On July 25, 2012,
CORB informed Ms. Brass of its decision. Id. at 1.
II. STANDARD OF REVIEW
The Tucker Act provides the court with jurisdiction over “any claim against the
United States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the
United States, or for liquidated or unliquidated damages in cases not sounding in tort.”
28 U.S.C. § 1491(a). Although the Tucker Act does not provide a substantive right to
damages from the United States, this right has been found in the Military Pay Act, 37
U.S.C. § 204 and 10 U.S.C. § 1201. Martinez v. United States, 333 F.3d 1295, 1315
(Fed. Cir. 2003) (37 U.S.C. § 204 is money-mandating); Fisher v. United States, 402 F.3d
1167, 1174 (Fed. Cir. 2005) (10 U.S.C. § 1201 is money-mandating).
When reviewing a motion for judgment on the administrative record under Rule 52.1(c)
of the Rules of the United States Court of Federal Claims (“RCFC”), the court makes
factual findings based on record evidence “as if it were conducting a trial on the record.”
See Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005). Therefore,
unlike a motion for summary judgment, the existence of a disputed material fact does not
preclude the court from reaching a decision. Id. at 1355. Should the administrative
record be silent as to some disputed facts, the court may still render judgment if the
12
agency provided an adequate discussion of the bases of its decision. See Rebosky v.
United States, 60 Fed. Cl. 305, 311-13 (2004).
With regard to disability claims, the court’s task is limited. The military is
afforded substantial deference in adjudicating disability claims. Heisig v. United States,
719 F.2d 1153, 1156 (Fed. Cir. 1983), and the court’s role is limited to determining
whether the Secretary’s decision was arbitrary, capricious, unsupported by substantial
evidence, or contrary to law. Cameron v. United States, 550 F. App’x 867, 872 (Fed. Cir.
2013); Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010).
Notwithstanding this deferential standard of review, the Navy, in this case, is still
“bound to follow its own procedural regulations [once] it chooses to implement some.”
Murphy v. United States, 993 F.2d 871, 873 (Fed. Cir. 1993); Cameron, 550 F. App’x at
873. Additionally, the Secretary’s decision must be supported with “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Crawford v. Dep’t of the Army, 718 F.3d 1361, 1365 (Fed. Cir. 2013) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
III. DISCUSSION
The main dispute in this case centers on whether the Navy properly rejected the
recommendation of the PDBR and in particular whether the rejection was based on the
application of a standard more stringent than that set in the VASRD. Plaintiff argues that
the standards applied by the Navy violate 10 U.S.C. § 1216a, which requires the criteria
set by agencies for rating disabilities to be in accordance with the VASRD or less
stringent. According to plaintiff, the standard set forth in the Navy’s internal guidance
13
with regard to “intermittent periods of inability to perform occupational tasks” by
requiring proof of job loss, demotion, or inability to maintain employment, creates an
impermissibly higher standard for finding a 30% disability than provided for in the
VASRD and thus violates 10 U.S.C. § 1216a. Plaintiff also argues that no reasonable
mind could find that Ms. Brass is not entitled to a 30% rating under the VASRD. In
response, the government argues that the Navy properly relied on its own internal
guidance in construing the VASRD and that Ms. Brass has failed to demonstrate that she
would be entitled to a 30% rating even under her reading of the VASRD.
The court turns first to the legal issue of whether the Navy applied the proper legal
standard in evaluating Ms. Brass’ disability claim. Under 10 U.S.C. § 1216a, the
Secretary of the Navy must use the VASRD in making a disability rating, with one
exception:
In making a determination described in paragraph (1), the Secretary
concerned may utilize in lieu of the schedule described in that paragraph
such criteria as the Secretary of Defense and the Secretary of Veterans
Affairs may jointly prescribe for purposes of this subsection if the
utilization of such criteria will result in a determination of a greater
percentage of disability than would be otherwise determined through the
utilization of the schedule.
10 U.S.C. § 1216a(a)(2). It is undisputed that the Navy applied its own manual in
determining Ms. Brass’ disability rating in 2008 and presumably in 2012 when it
reviewed the PDBR’s recommendation.3 Thus, the court must determine whether use of
3
At oral argument, the government argued for the first time, and contrary to representations in its
brief, that the Secretary applied only the VASRD standard when he rejected the PDBR decision.
However, the government did not identify—and the court is not aware of any—evidence in the
record stating which standard the medical advisor, the Director of CORB, or the Secretary
14
this internal guidance comports with 10 U.S.C. § 1216a(a)(2) and the prohibition against
imposing a more stringent standard than provided for in the VASRD.
The government argues that the definition in the Navy manual that it applied in
this case, SECNAVINST 1850.4E, Enclosure 9, § 9011(k)(1)(b), is consistent with the
VASRD and thus lawful. In response, plaintiff asserts that the manual includes more
stringent criteria to establish a disability rating than provided for in the VASRD because
the manual requires proof of significant job interference that is not required in the
VASRD. The court agrees with plaintiff that the criteria for recommending a 30%
disability rating under the Navy manual are more stringent than the VASRD;
accordingly, the Navy’s evaluation based on that standard cannot be sustained.
Deviation from the VASRD is only permitted by § 1216a to the extent that it
results in “a greater percentage of disability” than would otherwise be available under the
VASRD. Under the VASRD, a 30% disability rating is required where there is evidence
of
occupational and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic
sleep impairment, mild memory loss (such as forgetting names, directions,
recent events).
applied in reviewing the recommendation. In this connection, given the defense presented, it is
unclear why the Navy would disregard its own manual in favor of the VASRD when it reviewed
the PDBR recommendation. Thus, while it is possible that the VASRD standard was applied, the
court finds that it is more likely that the Navy applied its own standard in deciding to reject the
PDBR recommendation.
15
38 C.F.R. § 4.130. Building on this standard, the Navy manual defines “intermittent
periods of inability to perform occupational tasks” to require proof of actual interference
with job performance “of such severity as to result in a pattern of job loss, demotion,
disqualification from obtaining employment, or inability to engage in or maintain
reasonable employment.” SECNAVINST 1850.4E, Enclosure 9 § 9011(k)(1)(b). A
pattern of job loss, demotion, or the inability to maintain employment, by its plain terms,
sets a higher bar for establishing a 30% disability rating than the VASRD. While the
government argues that it is possible to generally function satisfactorily but intermittently
suffer from issues so severe as to cause job loss, demotion, or disqualification, the
examples provided by the VASRD for a 30% rating involve far less extreme job issues.
The VASRD contemplates that the person being evaluated will be “generally functioning
satisfactorily,” and will have only the occasional decrease in work efficiency and limited
periods of work performance problems. 38 C.F.R. § 4.130. It does not require evidence
of job loss, demotions or the inability to either obtain or keep a job.4 Accordingly, this
provision of the manual violates 10 U.S.C. § 1216a(a)(2).
Because it is not clear whether the Secretary’s rejection of the PDBR was based on
application of the VASRD alone or on the additional criteria identified in the Navy
manual, the Secretary’s decision must be set aside and the matter remanded for a new
decision based solely on the VASRD. The court recognizes that the Secretary is not
4
Additionally, it is not clear how it would be possible for a member of the Navy to demonstrate
a pattern of job loss prior to separation.
16
required to give deference to the recommendation of the PDBR when undertaking the
review on remand. However, the Secretary cannot ignore the PBDR’s findings in the
final decision. On remand, the Secretary must not only ensure that the VASRD is
properly applied but that any rejection of the PDBR’s findings are identified and
supported with evidence from the record. In this connection, the court notes that the
medical advisor made several errors in his recommendation to the Secretary. For
example, the medical advisor stated that “[s]ubsequent VA records covering the next 1-2
years indicate an ability to sustain employment with the major occupational impairment,
apparently, related to Petitioner’s Migraine Headaches.” AR at 12. This conclusion is
contrary to the facts in the record, as the VA evaluation on which the PDBR relied clearly
stated that she had lost 3 weeks of work in her current position due to her depression. Id.
at 149. Further, the record demonstrates that Ms. Brass was actually unemployed for 1-2
years following her separation. Id. at 148. Similarly, the medical advisor’s contention
that the primary cause of Ms. Brass’s problems is more likely to be “Chronic (ACDU)
Adjustment Disorder” than depression is contradicted by the record. While Ms. Brass
received a preliminary diagnosis of adjustment disorder, id. at 51, all of her rating
decisions are based on a diagnosis of depression—a diagnosis which is not disputed by
any examination of Ms Brass. Indeed the Navy gave her a disability rating based on a
depression diagnosis.
In sum, the Secretary on remand must examine the record before the PDBR, as
well as all other evidence that is part of Ms. Brass’s Navy record, to determine whether or
17
not she is entitled to a higher disability rating based on the VASRD alone, as the PDBR
had recommended.5
IV. CONCLUSION
Based on the foregoing, plaintiff’s cross-motion is GRANTED-IN-PART and
DENIED-IN-PART and the government’s motion is DENIED. This case is
REMANDED to the Secretary for a period of 90 days to determine whether the decision
of the PDBR to increase Ms. Brass’ disability rating from 10% to 30% should be
accepted based on the standard set in the VASRD.6 Pursuant to RCFC 52.2(b), the
government shall submit a status report on or before the conclusion of the 90-day remand
period informing the court of the status of the remand proceedings.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge
5
The parties also dispute whether the Secretary erred in seeking advice from CORB in reaching
a decision. On remand, the Secretary is authorized to seek advice from the Navy’s medical
corps. While plaintiff argues that the Secretary is not permitted to receive a recommendation
from CORB concerning the PDBR recommendation because CORB was involved in the PEB
determination and therefore biased against altering the decision, the court is aware of no bar to
such advice.
6
Having remanded the matter for a new decision, the court does not have occasion to rule on Ms.
Brass’ objections to the PEB decisions. The court finds that her claim is moot following
enactment of the Wounded Warrior Act and her right to a re-evaluation of her claim based on the
standard set in the VASRD.
18