Hatmaker v. United States ( 2014 )

In the United States Court of Federal Claims
No. 13-719 C
(E-Filed: July 31, 2014)
)
TIMOTHY J. HATMAKER, )
)
Plaintiff, ) Military Pay; Physical
) Disability Board of Review
v. ) (PDBR); Motion for Judgment
) on the Administrative Record;
THE UNITED STATES, ) RCFC 52.1
)
Defendant. )
)
Jason E. Perry, Cheshire, Conn., for plaintiff.
Devin A. Wolak, Trial Attorney, with whom were Stuart F. Delery, Assistant Attorney
General; Robert E. Kirshman, Jr., Director; and Steven J. Gillingham, Assistant Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington, D.C., for defendant. Todi Carnes, Attorney, U.S. Air Force Litigation
Division, of counsel.
OPINION and ORDER
CAMPBELL-SMITH, Chief Judge
This is a military pay case in which plaintiff, Timothy J. Hatmaker (Mr. Hatmaker
or plaintiff) seeks review of the decision of a military review board regarding the
disability rating he received upon separation. Defendant is Mr. Hatmaker’s former
employer, the United States Air Force (Air Force or defendant). Mr. Hatmaker was
separated from the Air Force in September 2007 after being found medically unfit by an
Air Force Physical Evaluation Board (PEB). Mr. Hatmaker had one unfitting condition,
vertigo, for which he received a disability rating of 10 percent. The PEB found that Mr.
Hatmaker also had three other service related conditions, none of which were determined
to be unfitting at the time of his separation.
Mr. Hatmaker sought review of the PEB decision from the Department of Defense
(DoD) Physical Disability Board of Review (Board). In April 2013, the Board
recommended no change to the PEB decision. Mr. Hatmaker now asks this court to
review the Board’s decision.
Pending before the court are the parties’ cross-motions for judgment on the
administrative record. Both motions are ripe for consideration. Oral argument was
neither requested by the parties nor deemed necessary by the court. For the reasons
explained below, defendant’s motion for judgment on the administrative record is
GRANTED-IN-PART and DENIED-IN-PART. Plaintiff’s cross motion for judgment
on the administrative record is DENIED.
As specified herein, this matter is REMANDED to the United States Department
of Defense Physical Disability Board of Review for additional review.
I. Background
Mr. Hatmaker was expected to be separated from the Air Force on May 31, 2007.
AR 78, ECF No. 12. On May 23, 2007, Mr. Hatmaker had a medical assessment in
connection with his expected separation. AR 103-04. During that assessment, Mr.
Hatmaker indicated that his performance may have been affected by various medical
disabilities, including sleep apnea and asthma. AR 103, block 15. On May 24, 2007, Mr.
Hatmaker had a separation physical examination, AR 84-99, which showed that Mr.
Hatmaker’s medical conditions included asthma, obsessive compulsive disorder (OCD),
vertigo, and obstructive sleep apnea, AR 84-85.
Mr. Hatmaker was then referred to a medical evaluation board (MEB). AR 618.
The purpose of a MEB is to “document . . . the medical status and duty limitations of
Service members referred into the [Department of Defense Disability Evaluation
System].” DoDI 1332.381 ¶ E3.P1.2.1. The MEB convened on June 15, 2007, and
concluded that Mr. Hatmaker’s vertigo, asthma, obstructive sleep apnea, and OCD were
potentially service disqualifying. AR 76. The MEB recommended referral of those
conditions for review by an informal physical evaluation board (PEB). Id.
The purpose of a PEB is to “determine the fitness of a Service members with
medical impairments to perform their military duties; and for members determined unfit
for duty-related impairments, [to determine] their entitlement to benefits.” DoDI
1332.38 ¶ E3.P1.3.1. An informal PEB “conduct[s] a documentary review without the
presence of the Service member for providing initial findings and recommendations.” Id.
at ¶ E3.P1.3.2.
1
U.S. Dep’t of Def. Instruction (DoDI) 1332.38, Physical Disability Evaluation
(Apr. 10, 2013). DoDI 1332.38 implements policy and prescribes procedures for
“[r]etiring or separating Service members because of physical disability.” DoDI 1332.38
¶ 1.1.
2
The Air Force’s Physical Evaluation Board (Informal)
On August 10, 2007, the PEB issued its “Findings and Recommended
Disposition.” AR 43 (PEB decision). The PEB considered the four potentially unfitting2
conditions identified by the MEB, but found that only Mr. Hatmaker’s vertigo was
compensable and ratable. Id. The PEB found that Mr. Hatmaker’s asthma, obstructive
sleep apnea, and OCD were potentially unfitting, but were not currently compensable or
ratable. Id.
The PEB assigned Mr. Hatmaker a VASRD3 diagnostic code for his vertigo which
indicated a “[p]eripheral vestibular disorder.” Id.; see also 38 C.F.R. § 4.87 (2007)4
(code 6204). The PEB recommended that Mr. Hatmaker be medically separated from the
Air Force with a disability rating of 10 percent for his vertigo. AR 43. Mr. Hatmaker
waived his right to a formal PEB hearing. AR 41.
Mr. Hatmaker was separated from the Air Force on September 24, 2007 due to
disability. AR 151. At the time of his separation, Mr. Hatmaker was a captain and had
completed approximately ten years of military service. Id.
Mr. Hatmaker’s Application for Disability Benefits from the Department of Veterans
Affairs
After his separation from the Air Force, Mr. Hatmaker applied for benefits from
the Department of Veterans Affairs (DVA). See AR 152. The DVA issued three
decisions concerning Mr. Hatmaker. In its first decision, issued on April 22, 2008, the
DVA found there was a service connection for several of Mr. Hatmaker’s disabilities, and
provided the following disability ratings: obstructive sleep apnea (50 percent), OCD (10
percent), vertigo (0 percent). AR 152-53. The DVA also found several disabilities not at
2
“A Service member shall be considered unfit when the evidence establishes that
the member, due to physical disability, is unable to reasonably perform [his or her] duties
. . . .” DoDI 1332.38 ¶ E3.P3.2.1.
3
Veterans Affairs Schedule for Rating Disabilities (VASRD), 38 C.F.R. pt. 4, is a
“is primarily a guide in the evaluation of disability resulting from all types of diseases
and injuries encountered as a result of or incident to military service.”
4
DoDI 6044.44 requires the Board to review the service member’s disability rating
in accordance with the VASRD in effect at the time of separation. DoDI 6040.44 encl. 3
¶ 5.e.1. Mr. Hatmaker was separated from the Air Force on September 24, 2007. AR
151. Accordingly, the court uses the VASRD in effect as of July 1, 2007.
3
issue in this case to be service connected, AR 153, and deferred a decision on whether
there was a service connection for Mr. Hatmaker’s asthma, AR 162.
On May 28, 2008, the DVA issued its second decision, in which it determined Mr.
Hatmaker’s asthma was service-connected, and granted him a 10 percent disability rating.
AR 239. On March 30, 2009, the DVA issued its third decision, in which it increased
Mr. Hatmaker’s disability rating for vertigo from 0 percent to 30 percent. AR 247-49.
Plaintiff’s Application to the Department of Defense Physical Disability Board of Review
A service member may apply to the Board for a review of the rating awarded in
connection with a disability (or medical) separation from the military. See 10 U.S.C. §
1554a (2012); DoDI 6040.44 ¶ 4.a.5 The purpose of a review by the Board is to “reassess
the accuracy and fairness of the combined disability ratings assigned [to] Service
members . . . [by] review[ing] the combined disability ratings . . . and, where appropriate,
[by] recommend[ing] that the Military Departments correct discrepancies and errors in
such ratings.” DoDI 6040.44 ¶ 4(a).
In September 2012, Mr. Hatmaker applied to the Board to review his August 2007
PEB decision. AR 8-20 (Application for Board Review). The Board issued its findings
and recommendation on April 9, 2013. AR 3-7. In relevant part, the Board found that,
[i]n the matter of the vertigo condition and [in accordance with] VASRD §
4.87 [code 6204], the Board unanimously recommends no change in the
PEB adjudication. In the matter of the contended OCD, asthma, and [sleep
apnea] conditions, the Board unanimously recommends no change from the
PEB determinations as not unfitting.
AR 7.
Plaintiff’s Action before the Court of Federal Claims
Mr. Hatmaker filed a complaint in this court on September 24, 2013, in which he
asserts that the Board’s decision was arbitrary, capricious, contrary to law and regulations
and unsupported by substantial evidence. Compl. ¶ 18, ECF No. 1. Mr. Hatmaker argues
for an increased disability rating which would qualify him for a disability retirement,
rather than the disability separation that he received. Mr. Hatmaker seeks payment of the
pay and benefits to which he would be entitled with a disability retirement. Id. at ¶ 21;
Id., prayer for relief.
5
DoDI 6040.44, Lead DoD Component for the Physical Disability Board of Review
(PDBR) (June 2, 2009).
4
Defendant filed a motion for judgment on the administrative record on February 5,
2014. Def.’s Mot., ECF No. 13. That same day, defendant filed the Administrative
Record. AR, ECF No. 12. Mr. Hatmaker filed his cross motion and response on March
11, 2014. Pl.’s Mot., ECF No. 16. Mr. Hatmaker also filed an appendix, listing
“Evidence and References from the Administrative Record Referencing Vertigo.” Pl.’s
App. A, ECF No. 16-1. Defendant filed its response on April 2, 2014. Def.’s Resp., ECF
No. 23. Mr. Hatmaker filed his reply on April 24, 2014. Pl.’s Reply, ECF No. 26.
II. Legal Standards
A. Jurisdiction
A court must determine at the outset of a case whether it has subject matter
jurisdiction over the claims put before it. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94-95 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir.
2007). The burden is on the plaintiff to show jurisdiction by a preponderance of the
evidence. Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002).
The United States Court of Federal Claims is a court of limited jurisdiction that,
pursuant to the Tucker Act, may hear “any claim against the United States founded . . .
upon . . . any Act of Congress or any regulation of an executive department.” 28 U.S.C.
§ 1491(a) (2012). The Tucker Act serves as a waiver of sovereign immunity and a
jurisdictional grant, but it does not create a substantive cause of action. Jan’s Helicopter
Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). A plaintiff
must, therefore, satisfy the court that “‘a separate source of substantive law . . . creates
the right to money damages.’” Id. (quoting Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005) (en banc in relevant part)).
Title 10 U.S.C. § 1201 requires the payment of disability retirement compensation
once a service member’s disability is found qualifying. See 10 U.S.C. § 1201(a). The
Court of Appeals for the Federal Circuit has held that 10 U.S.C. § 1201 is a money-
mandating statute. See Fisher v. United States, 402 F.3d 1167, 1174 (Fed. Cir. 2005).
As Mr. Hatmaker brought his claim under 10 U.S.C. § 1201 for monies he alleges
are owed to him for a disability retirement, the court is satisfied it has jurisdiction over
his claim.
B. Judgment on the Administrative Record
Rule 52.1(c) of the Rule of the United States Court of Federal Claims (RCFC)
provides for motions for judgment on the administrative record. RCFC 52.1(c)(1)
(providing that “a party may move for partial or other judgment on the administrative
record”). A motion for judgment on the administrative record is “distinguish[able]” from
5
a motion for summary judgment in that there is no requirement that all material facts be
undisputed. Bannum, Inc. v. United States, 404 F.3d 1346, 1355 (Fed. Cir. 2005).
Judicial review of a military review board decision is conducted under the same standard
as any other agency action, that is whether the decision is arbitrary, capricious,
unsupported by substantial evidence, or contrary to law. See Metz v. United States, 466
F.3d 991, 998 (2006); see also Silbaugh v. United States, 107 Fed. Cl. 143, 149 (2012)
(“The court reviews the PDBR decision under a standard . . . [that does] not disturb the
decision of the [board] unless it is arbitrary, capricious, contrary to law, or unsupported
by substantial evidence.”) (internal quotation marks omitted) (last alteration in original).
When applying the substantial evidence standard of review, the court cannot
substitute its judgment for that of the military review board. See Heisig v. United States,
719 F.2d 1153, 1156-57 (Fed. Cir. 1983) (stating that the court should not reweigh the
evidence, but instead, should determine “whether the conclusion being reviewed is
supported by substantial evidence” (emphasis omitted)). This court should not make
independent factual assessments of medical evaluations or determine whether the military
evaluation board came to the correct conclusion. Grooms v. United States, 113 Fed. Cl.
651 (2013) (citing Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009)). Nor is
this court a “super correction board,” with responsibility for determining whether a
service member is fit or unfit to serve. Frey v. United States, 112 Fed. Cl. 337, 346
(2013) (quoting Skinner v. United States, 594 F.2d 824, 830 (Ct. Cl. 1979)).
When determining whether a decision of a military review board is supported by
substantial evidence—or “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477
(1951) (internal quotation marks omitted)—the court must consider “the record in its
entirety, . . . including the body of evidence opposed to the Board’s view,” id. at 488.
III. Discussion
Mr. Hatmaker offers four arguments in support of his position that this court
should not uphold the Board’s decision not to recommend any change from the PEB
decision. Mr. Hatmaker argues that the Board erred: (1) in not giving special
consideration to the DVA rating; (2) in not reviewing Mr. Hatmaker’s disabilities for
their overall effect on his fitness; (3) by not considering a rating of total disability based
on his unemployability; and (4) by failing to award a 30 percent rating for his vertigo.6
6
Mr. Hatmaker had argued initially that the Board applied incorrect, vague, and
erroneous standards of proof when evaluating his claim, and he took particular exception
to what he understood to be the Board’s statement that the VASRD “resolution of
reasonable doubt” rule did not apply in this case. Pl.’s Mot. 18-19 (citing 38 C.F.R. §
4.3). However, after considering defendant’s thorough explanation of the differences
between standards for fitness determinations and disability ratings, Def.’s Resp. 2-8, Mr.
6
Defendant asserts that each of the Board’s decisions regarding plaintiff’s (1)
vertigo, (2) OCD, asthma, and sleep apnea, and (3) total disability due to
unemployability, are correct. Defendant urges the court not to disturb the Board’s
decision.
The parties agree that the scope of Mr. Hatmaker’s claim before this court
encompasses all of the complaints he may have about the Board’s recommendation to
make no changes to the PEB’s fitness determinations and disability ratings. Def.’s Resp.
24; see Def.’s Mot. 24-26; Pl.’s Mot. 35-36.
The court considers the parties’ arguments in the following order: (1) the overall
effect of Mr. Hatmaker’s disabilities on his fitness determination; (2) Mr. Hatmaker’s
vertigo disability rating, including whether the Board was obligated to give special
consideration to the DVA disability rating for vertigo; (3) Mr. Hatmaker’s total disability
due to unemployability, and (4) Mr. Hatmaker’s OCD, asthma, and sleep apnea disability
ratings.
A. The Overall Effect of Mr. Hatmaker’s Disabilities on His Fitness
Determination
As permitted by the pertinent DoD instruction governing the evaluation of
physical disabilities, a “member may be determined unfit as a result of the overall effect
of two or more impairments even though each of them, standing alone, would not cause
the member to be . . . found unfit because of physical disability.” DoDI 1332.38
¶ E3.P3.4.4.
Mr. Hatmaker alleges that the Board “erred by not reviewing [his] disabilities for
[their] combined effect” on his fitness. Pl.’s Mot. 22-24. In his Application for Review,
Mr. Hatmaker requested the Board to consider “that the combined effect of [his] sleep
apnea, asthma, and OCD rendered him unfit to perform his duties.” AR 17.
The Board did acknowledge Mr. Hatmaker’s request for an overall effect review
in its decision. AR 4. But, the Board concluded that it lacked the authority to undertake
such a review.
With regard to counsel’s request for Board consideration of the DoDI
1332.38 principle of overall effect to achieve ratings of [Mr. Hatmaker’s]
Hatmaker withdrew this challenge. Pl.’s Reply 2. Accordingly, the court gives no
further consideration to this aspect of his claim.
7
Category II7 conditions; the Board must heed the PEB’s comments (Block
15, AF Form 356 dated 10 August 2007) that OCD, asthma, and sleep
apnea were individually considered and individually determined to be not
unfitting. DoDI 6040.44 does not offer the latitude, explicit or implied, for
the Board to consider individual conditions determined to be not unfitting
by the PEB to be unfitting in the context of overall effect; but rather, each
condition so adjudicated by the PEB must be considered separately
unfitting to be recommended for disability rating.
Id. (emphasis added) (footnote added) (citing AR 43).
The Board, however, was mistaken regarding the limit of its authority, as
defendant concedes in its briefing. Def.’s Resp. 13-14. Defendant explains:
[T]he PDBR was technically incorrect in its statement that “DoDI 6040.44
does not offer the latitude, explicit or implied, for the Board to consider
individual conditions determined to be not unfitting by the PEB to be
unfitting in the context of overall effect . . . .” AR 4. . . . The regulation . . .
provides that, “[a]s a part of its review, the PDBR may, at the request of an
eligible member as provided for in Reference (b), review conditions
identified but not determined to be unfitting by the PEB of the Military
Department concerned.” [DoDI 6040.44, Encl. 3 ¶ 1.] It also states:
The following will be subject to review by the PDBR: . . .
(b) Those instances when the covered individual requests the
PDBR to review conditions identified but not determined to
be unfitting by the PEB of the Military Department
concerned. [DoDI 6040.44, Encl. 3 ¶ 5.e.(2)(b).]
Thus, the regulation permits the PDBR to review fitness determinations.
Additionally, DoDI 1332.38 ¶ E3.P3.4.4 permits a PEB to conclude that
two or more individually unfitting conditions have the “overall effect” of
rendering the service member unfit to perform military duties.
Id. (some alterations in original).
Review of DoDI 6040.44 also shows that it expressly provides that PDBR
operating procedures are to comply with DoDI 1332.38. DoDI 6040.44 Encl. 2 ¶
6.h.
7
Category II conditions are those that can be unfitting, but are not currently
compensable or ratable for the service member. AR 38.
8
Thus, as defendant recognizes, the relevant regulations make clear: (1) the
Board did, and does, have authority to consider conditions not found to be
unfitting by the PEB; (2) the Board, like the PEB, must consider such conditions
according to DoDI 1332.38; and (3) under DoDI 1332.38 ¶ E3.P3.4.4, a service
member may be found unfit as the result of the overall effect of more than one
disability.
Defendant asserts, however, that the Board’s failure to conduct on overall effect
review in Mr. Hatmaker’s case was a harmless error and as such, constitutes an
insufficient ground for the court to disturb the Board’s decision. Def.’s Resp. 15 (citing
Silbaugh v. United States, 107 Fed. Cl. 143, 154 (2012)). Although defendant is correct
that the doctrine of harmless error applies in military pay cases, see Christian v. United
States, 337 F.3d 1338, 1343 (Fed. Cir. 2003) (“This court and its predecessor court have
applied the harmless error analysis to military back pay cases.”), the Court of Appeals for
the Federal Circuit has also stated that not every error is amenable to harmless error
review.
Where reviewable standards or factors constrain the exercise of discretion,
harmless error continues to be the appropriate test. See, e.g., Carmichael
[v. United States, 298 F.3d 1367, 1375-76 (Fed. Cir. 2002)] (remanding for
evaluation of, inter alia, whether the Navy would have denied a
serviceman’s religious accommodation request under the factors set out by
the Navy’s accommodation procedures); Sargisson [v. United States, 913
F.2d 918, 922-23 (Fed. Cir. 1990)] (contrasting review of standardless
discretionary decisions with review of compliance with statutory procedural
requirements). Where the effect of an error on the outcome of a proceeding
is unquantifiable, however, we will not speculate as to what the outcome
might have been had the error not occurred.
Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (emphasis added).
In Wagner, the Federal Circuit declined to apply harmless error review to a case in
which the Army committed a procedural error when it failed to secure the required
approval from the Secretary of the Army before involuntarily discharging an officer from
service. Id. at 1360, 1365. As the Federal Circuit explained, “a finding of harmlessness
would require [the court] to approximate the absolute discretion afforded the Secretary of
the Army on personnel matters with a determination of our own.” Id. Such a
determination would exceed the court’s review authority. See id.
For this court to find harmless error in the Board’s failure to conduct an overall
effect review of Mr. Hatmaker’s disabilities, it would have to find that the Board would
not have found Mr. Hatmaker unfit as a result of such a review. Defendant endeavors to
assure the court that this would have been the case. Def.’s Resp. 16. But, it is the
9
province of the Board—not this court, and not defendant—to determine Mr. Hatmaker’s
fitness.
The Federal Circuit has made clear that “[i]t is . . . settled that [the] responsibility
for determining who is fit or unfit to serve in the armed services is not [within the]
judicial province; and that courts cannot substitute their judgment for that of the military
departments when reasonable minds could reach differing conclusions on the same
evidence.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (footnotes
omitted). Thus, this court may not make the determination inherent in the harmless error
review, as defendant proposes.
The Board’s refusal to conduct an overall effect review of Mr. Hatmaker’s
disabilities, as he requested, violated the written procedures under which the Board was
obligated to conduct its review. See DoDI 6040.44, Encl. 3 ¶ 5.e.(2)(b); DoDI 1332.38 ¶
E3.P3.4.4. The pertinent regulations clearly outlined the PDBR’s review protocol, and an
agency is bound by its own regulations. Wagner, 365 F.3d at 1361 (citing, inter alia,
Service v. Dulles, 354 U.S. 363, 388 (1957)). The Board erred in refusing to conduct an
overall effect review of Mr. Hatmaker’s disabilities, and that error may not be excused as
harmless.
Moreover, the court has no authority to correct the Board’s error through its own
de novo review of Mr. Hatmaker’s medical records. See Heisig, 719 F.2d at 1156. As
the Supreme Court has explained:
[i]f the record before the agency does not support the agency action, if the
agency has not considered all relevant factors, or if the reviewing court
simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation. The
reviewing court is not generally empowered to conduct a de novo inquiry
into the matter being reviewed and to reach its own conclusions based on
such an inquiry.
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Rollock Co. v.
United States, 115 Fed. Cl. 317, 334 (2014) (remanding case to the agency where it failed
to consider all of plaintiff’s claims).
The Court of Federal Claims has authority under the Tucker Act to remand a case
to the PDBR. See 28 U.S.C. § 1491(a)(2) (“In any case within its jurisdiction, the court
shall have the power to remand appropriate matters to any administrative or executive
body or official with such direction as it may deem proper and just.”); see also Martinez
v. United States, 94 Fed. Cl. 176, 180 (2010) (remanding case to PDBR). Further to the
rules of the court, the court may remand a case on its own initiative. RCFC 52.2(a) (“In
10
any case within its jurisdiction, the court, on motion or on its own, may order the remand
of appropriate matters to an administrative or executive body or official.”).
Accordingly, the court remands this matter to the PDBR for consideration of Mr.
Hatmaker’s request to review the overall effect of his disabilities on his fitness
determination.
B. Vertigo Disability Rating
Mr. Hatmaker argues that the Board further erred when it declined to recommend
an increase in his disability rating for vertigo from 10 percent to 30 percent. Pl.’s Mot.
19-21, 26-34. Mr. Hatmaker disagrees with the Board’s findings on two grounds. First,
he contends it failed to give appropriate consideration to the DVA disability rating for
vertigo. Second, he asserts that the Board did not properly consider the evidence or
appropriately apply the VASRD reasonable doubt rule, 38 C.F.R. § 4.3 (2007).
The court considers each argument in turn.
1. DVA Disability Rating
Under DoDI 6040.44, the Board is required to consider a DVA disability rating for
a condition that the PEB has found unfitting, such as Mr. Hatmaker’s vertigo. The
instruction provides in pertinent part:
[T]he PDBR should compare any DVA disability rating for the specifically
military unfitting condition(s) with the PEB combined disability rating and
consider any variance in its deliberations and any impact on the final PEB
combined disability rating, particularly if the DVA rating was awarded
within 12 months of the Service member’s separation.
DoDI 6040.44 encl. 3 ¶ 5.a.(4).
The DVA issued two decisions in which it rated Mr. Hatmaker’s vertigo. In its
first decision, issued on April 22, 2008, the DVA found a service connection for Mr.
Hatmaker’s vertigo, but granted him a disability rating of 0 percent. AR 153. In its third
decision, issued on March 30, 2009, the DVA increased Mr. Hatmaker’s disability rating
for vertigo from 0 percent to 30 percent. AR 247. The DVA did not address vertigo in
its second decision, which issued on May 28, 2008. AR 239-40.
Mr. Hatmaker argues that the Board erred by considering the evidence the DVA
relied on when it assigned Mr. Hatmaker a 30 percent disability rating, rather than
considering the DVA’s disability rating itself. Pl.’s Mot. 20-21 (“[T]he special
consideration is not as to evidence created within a 12 month separation period, but it is
11
rather to DVA ratings awarded within a 12 month post separation period.”). Mr.
Hatmaker further argues that the Board should have given “heightened deference” to the
DVA disability rating, as DoDI 6040.44 directs the Board to “particularly” consider any
variance between the PEB and DVA ratings if the DVA disability rating was “awarded
within 12 months” of separation. Id. at 21.
Review of DoDI 6040.44 shows error in both of Mr. Hatmaker’s arguments
regarding the DVA disability rating, not in this aspect of the Board’s
consideration.
a. Disability Rating Versus Evidence
Nothing in DoDI 6040.44 suggests that the Department of Defense intended the
Board to consider the DVA disability rating, as Mr. Hatmaker asserts, in lieu of the
evidence upon which the DVA based its disability rating. Instead, the instruction
indicates that DoD had the contrary intention. DoDI 6040.44 contains numerous
directions that task the Board with conducting a de novo review of the evidence before
the PEB and the DVA, as well as a review of any other evidence presented to the Board.
As provided in DoDI 6040.44,
[t]he PDBR shall . . . impartially readjudicate cases upon which review is
requested or undertaken on its own motion.
DoDI 6040.44 ¶ 4.b. Moreover,
[t]he PDBR shall . . . [r]eview the PEB record of findings and the combined
disability rating decisions regarding the specifically military unfitting
medical conditions with respect to the covered individual. The review shall
be based on the records of the Military Department concerned and such
other evidence as may be presented to the PDBR, in accordance with the
information requirements prescribed in paragraph 6.i. of Enclosure 2 and
paragraph 5.a. of this enclosure.
Id. at encl. 3 ¶ 4.c.
Information required for the Board’s review of cases includes, but is not
limited to:
(1) The complete record of medical and non-medical material and evidence
contained in the Service member’s PEB records that served as the basis for
the original determination of unfitness and disability rating(s) assigned;
(2) Rating determinations by the DVA, as applicable to the case under review;
and
12
(3) New or newly discovered evidence not previously included in official
records.
Id. at encl. 2 ¶ 6.i (emphasis added).
The Board discussed in its decision pertaining to Mr. Hatmaker how it would
consider post-separation evidence, including evidence considered by the DVA.
The Board utilizes DVA evidence proximal to separation in arriving at its
recommendations; and, DoDI 6040.44 defines a 12-month interval for
special consideration to post-separation evidence. The Board’s authority as
defined in DoDI 6040.4[4],8 however, resides in evaluating the fairness of
DES [Disability Evaluation System] fitness determinations and rating
decisions for disability at the time of separation. Post-separation evidence
therefore is probative only to the extent that it reasonably reflects the
disability and fitness implications at the time of separation.
AR 4 (emphasis and footnote added).
As set forth in DoDI 6040.44, the Board was to consider the DVA “rating
determinations,” which it did. DoDI 6040.44 encl. 2 ¶ 6.i. The Board compared the PEB
and DVA disability ratings in a side-by-side table of the disability ratings awarded for
each of Mr. Hatmaker’s disabilities, including vertigo. AR 4. The Board also described
the various medical examination reports created during the DVA-arranged visits between
January and February 2008. AR 5.
The Board then frankly discussed the “inconsistencies in the record,” including the
reports issued after three different DVA medical examinations. Id. These particular
inconsistencies presented a “challenge[]” for the Board as it conducted its review. Id.
[1] At the C&P exam [Mr. Hatmaker] indicated [his] symptoms had
resolved, but at the [2] post-separation audiology evaluation he reported
feeling unbalanced or dizzy “nearly all the time.” Also, [Mr. Hatmaker]
reported difficulty driving due to dizziness prior to separation, and
informed VA examiners that this condition continued to prevent him from
driving. Yet the MEB and [3] VA psychiatric reports strongly suggest that
he was driving . . . .
Id. at 5-6 (emphasis and enumeration added). The Board clearly considered the
8
The Board cited to DoDI 6040.40, Military Health System Data Quality
Management Control Procedures (Nov. 2002). This is evidently a typographical error
that the court corrects here.
13
information in the DVA treatment record, and the Board’s consideration of the DVA
disability rating in this case was consistent with the consideration accorded in other cases.
See, e.g., Petri v. United States, 104 Fed. Cl. 537, 567 (2012) (stating that the Board gave
“attention to the VA examination reports upon which the VA rating was based”). To the
extent, plaintiff asserts otherwise, he is in error, not the Board.
b. Heightened Deference
Mr. Hatmaker also posits that the language in DoDI 6040.44 compelled the Board
to “particularly” consider the DVA disability rating if it was “awarded within a 12 month
post separation period.” Pl.’s Mot. 21. But Mr. Hatmaker’s argument misses the mark,
because the DVA did not award his disability rating for vertigo within 12 months of his
September 24, 2007 separation. The DVA awarded Mr. Hatmaker a 30 percent disability
rating for vertigo on March 30, 2009, AR 247, 18 months after his separation. The DVA
awarded the disability rating effective as of his separation date. Id. Thus under DoDI
6040.44 encl. 3 ¶ 5.a.(4), the Board was not required to “particularly” consider the DVA
disability rating. See, e.g., Petri, 104 Fed. Cl. at 567 (declining to provide particular
consideration to the DVA disability rating where the service member’s separation was on
March 13, 2006 and the VA issued its disability rating more than 12 months later, on
March 27, 2007).
Nevertheless, as discussed supra Part III.B.1.a., the Board did consider the DVA
evidence in the record, and the court finds no error in the Board’s consideration of the
DVA disability rating.
2. The Board’s Review of Mr. Hatmaker’s Vertigo Disability Rating
In determining whether there was substantial evidence to support the Board’s
decision not to increase Mr. Hatmaker’s disability rating from 10 percent to 30 percent,
the court must evaluate whether the Board considered the relevant information and
whether the Board explained its decision. Numerous courts have spoken to what a court
needs to conduct its review of a board’s decision.
A military review board “must examine relevant data and articulate satisfactory
explanations for their decisions. This includes making rational connections between the
facts found and the choices made.” Van Cleave v. United States, 70 Fed. Cl. 674, 679
(2006) (internal citation omitted). “(T)he orderly functioning of the process of review
requires that the grounds upon which the administrative agency acted be clearly disclosed
and adequately sustained.” Fed. Trade Comm’n v. Sperry & Hutchinson Co., 405 U.S.
233, 249 (1972) (internal quotation marks omitted). “The . . . board’s decision must also
be sufficiently detailed for the court to ascertain the reasoning behind the denial of relief
to the applicant.” Keller v. United States, 113 Fed. Cl. 779, 787 (2013), aff’d, No. 2014-
5051, 2014 WL 1814016 (Fed. Cir. May 8, 2014). “The court must be satisfied that the
14
Board considered all of the relevant evidence and provided a reasoned opinion that
reflects a contemplation of the facts and circumstances pertinent to the case before it.”
Verbeck v. United States, 111 Fed. Cl. 744, 749 (2013) (internal quotation marks
omitted).
“Even where the agency has failed to adequately support its interpretation, it is not
for the Court to review de novo the agency’s interpretation and guess at its supporting
rationale, as the agency is better suited to understand the facts and reasons for its own
interpretation.” Towne v. United States, 106 Fed. Cl. 704, 713 (2012). But “[i]f the
reviewing court simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.” Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 744 (1985). “In sum, the court must satisfy itself that the Board considered
all of the relevant evidence and provided a reasoned opinion that reflects a contemplation
of the facts and circumstances pertinent to the case before it.” Petri, 104 Fed. Cl. at 551.
In declining to increase Mr. Hatmaker’s disability rating, the Board concluded that
“[a]lthough the first neurology exam in May 2007 recorded complaints of staggering and
dizziness, follow-up neurology visits noted dizziness to be at most occasional; and
staggering was not reported again. And finally, physician examinations consistently
documented the absence of any objective findings of disequilibrium.” AR 6.
As discussed more fully below, the court is not satisfied that the Board has
provided a sufficient explanation for its decision from which the court can evaluate
whether the Board’s decision was supported by substantial evidence. More particularly,
the court cannot “evaluate the challenged agency action on the basis of the [decision]
before it.” Fla. Power & Light Co., 470 U.S. at 744.
a. Dizziness
The Board concludes that Mr. Hatmaker’s episodes of dizziness were “at most
occasional,” id., which satisfies the VASRD requirement for a 10 percent disability
rating, but not that for a 30 percent disability rating. The VASRD does not define the
difference between occasional dizziness and dizziness. See 38 C.F.R. § 4.87 (code
6204). Nor does the Board discuss what is necessary for a finding of dizziness, or the
lesser finding of occasional dizziness.
The Board examined what the record showed regarding dizziness. The Board
noted that:
at the June 2007 neurology follow-up visit [AR 325], [Mr. Hatmaker]
stated that [his] vertigo was completely resolved and there was no
dizziness. At the final neurology visit in evidence 2 months prior to
15
separation, [on July 10, 2007, AR 356,] he stated that [this] dizziness was
intermittent. At the C&P exam [, on January 24, 2008, AR 185,] he
indicated [his] symptoms had resolved, but at the post-separation audiology
evaluation [that same day, AR 166-67,] he reported feeling unbalanced or
dizzy “nearly all the time.” Also [Mr. Hatmaker] reported difficulty driving
due to dizziness prior to separation, and informed [the] VA examiners
[during his C&P visit on January 24, 2008, AR 207] that this condition
continued to prevent him from driving. Yet the MEB [visit on June 13,
2007, AR 81-83,] and VA psychiatric reports [, dated February 2, 2008, AR
171-80] strongly suggest[ed] that he was driving and that it was his mental
condition that caused some issues with driving (although not an inability to
drive).
AR 5-6 (emphasis added).
Omitted from the Board’s discussion, however, was any mention of Mr.
Hatmaker’s documented absence from work due to dizziness, and any explanation
regarding why the Board chose to credit general discussions of symptoms for his OCD,
rather than Mr. Hatmaker’s repeated reports that he was not driving due to dizziness.
i. Absence from Work
Although, there are several reports in the record for the period of time between
June and July 2007 that Mr. Hatmaker was absent from work due to his vertigo, the
Board made no reference to these reports.
The record reflects that on June 11, 2007, Mr. Hatmaker’s neurologist reported
that “[h]is vertigo is completely resolved, with no dizziness, BUT, he continues to have
unsteadiness and feels ‘off.’ His nausea is much improved; [yet] [h]e remains on short
term leave from work.” AR 325 (emphasis added). Mr. Hatmaker returned to his
neurologist on July 10, 2007, with the following update: “He has been using the
[s]copolamine patch, which he finds very beneficial. Overall, he feels better, although he
continues to have intermittent dizziness. He is still unable to drive. He has not returned
to work due to the dizziness.” AR 356 (emphasis and footnote added). The neurologist
observed that “[i]t is difficult to estimate a ‘return to work’ date[]. I am hopeful that once
he starts vestibular therapy, the recovery process will be hastened.” Id. (emphasis
added).
Mr. Hatmaker’s noted absence from work was confirmed by his commanding
officer in a statement he provided to the MEB. AR 372. As of June 13, 2007, Mr.
Hatmaker had “missed 48 days within the past 90 days which were physician directed.”
Id. (emphasis added).
16
As informed by the neurologist’s July 10, 2007 notes—the last date for which
information is in the record prior to the August 10, 2007 PEB—Mr. Hatmaker was
continuously absent from work between mid-June and mid-July 2007. In evaluating
whether the record showed that Mr. Hatmaker’s dizziness was merely occasional, the
court cannot discern why the Board chose not to address the impact on its decision of Mr.
Hatmaker’s well-documented and extended absence from work—which his neurologist
attributed “to . . . dizziness,” AR 356, and his commanding officer acknowledged was
“physician directed,” AR 372.
ii. Driving
As Mr. Hatmaker points out in his briefing, the Board seemed to associate his
inability to drive with his OCD, rather than with his vertigo. Pl.’s Reply 6. But in
discussing his OCD, the Board failed to draw the same conclusion. Id. Mr. Hatmaker
asserts that the PDBR cannot have it both ways; it cannot attribute his driving disability
to one condition (his OCD) for the purpose of discounting the impact of his vertigo on his
driving difficulties, and then not consider its own findings regarding his OCD when
addressing his driving limitations. Id. Mr. Hatmaker is correct that when the Board
discussed his OCD, it acknowledged that “[t]he psychiatrist noted no significant
impairment with work or driving.” AR 6. Yet, for reasons that are not entirely clear to
the court, the Board associated Mr. Hatmaker’s driving difficulties principally with his
OCD.
The record contains several explicit statements that Mr. Hatmaker was not driving
due to his dizziness. In a June 13, 2007 statement given to the MEB, Mr. Hatmaker’s
commanding officer stated that “a vertigo condition ha[d] limited [Mr. Hatmaker] from
being able to drive.” AR 372. In a July 5, 2007 testing appointment ordered by his
neurologist, Mr. Hatmaker self-reported that he “ha[d] discontinued driv[ing].” AR 357.
During his July 10, 2007 neurology appointment, Mr. Hatmaker again reported that “he
[was] still unable to drive.” AR 356. Subsequently after his separation from the service,
Mr. Hatmaker reported during a February 2, 2008 mental health examination that “he
cannot drive with vertigo.” AR 174. The examining doctor during that visit regarded
Mr. Hatmaker as “a reliable historian for purposes of th[e] examination.” AR 171.
While the Board acknowledged some of these representations, the Board focused
on statements contained in two mental health records, respectively dated June 2007 and
February 2008, concerning Mr. Hatmaker’s OCD and his driving.
From the MEB psychiatry consultation record, dated June 13, 2007, the Board
recognized that Mr. Hatmaker “periodically wondered [while driving] ‘if he ha[d] run
over anything.” AR 5 (quoting AR 81). Although the record showed Mr. Hatmaker’s
continued “anxiety regarding others’ opinions of him” and his periodic worry about
running over things, AR 81, the record did not indicate whether, at that time, Mr.
17
Hatmaker was still driving.
The Board also described in some detail, in its review of a post-separation
February 2, 2008 mental health examination, the checking behavior that Mr. Hatmaker
exhibited in connection with his OCD; that checking behavior involved a compulsive
need to retrace his path to satisfy himself that he had not accidentally hit someone or
something while driving. AR 5 (citing 175-76). During that mental health examination,
Mr. Hatmaker also reported that “he [could not] drive with vertigo.” AR 174.
From these reports, the Board found a “strong[] suggest[ion] that [Mr. Hatmaker]
was driving and that it was his mental condition that caused some issues with driving
(although not an inability to drive).” AR 5-6.
When conducting its review of the Board’s decision, “[t]he court must be satisfied
that the Board considered all of the relevant evidence and provided a reasoned opinion
that reflects a contemplation of the facts and circumstances pertinent to the case before
it.” Verbeck, 111 Fed. Cl. at 749 (internal quotation marks omitted). Here, the Board’s
reasoning seems to have gaps and the court is unable to discern, and thus improperly
would have to infer, the Board’s rationale. Of specific concern to the court is the Board’s
omitted mention of, and lack of explanation for, the diminished weight it appears to have
given to certain relevant and informative evidence, namely Mr. Hatmaker’s documented
absences from work due to dizziness. Nor does the Board’s decision clarify what it
needed for a finding of dizziness, rather than occasional dizziness. Absent any guidance
on the subject of the difference between occasional dizziness and dizziness, and a
discussion of how the Board viewed the, at times, conflicting elements of the evidence,
the court is unable to determine whether the Board’s decision concerning Mr. Hatmaker’s
dizziness was supported by substantial evidence.
b. Staggering
The Board concluded that “staggering” was not reported in the medical records
after May 23, 2007. AR 6 (citing AR 323). A 30 percent disability rating requires
“occasional staggering.” 38 C.F.R. § 4.87 (code 6204).
The medical records show, however, that Mr. Hatmaker continued to have
unsteadiness after May 2007. During a June 11, 2007 neurology appointment, the doctor
recorded, “[h]is vertigo is completely resolved, with no dizziness, BUT, he continues to
have unsteadiness and feels ‘off.’” AR 325. During a July 5, 2007 appointment for an
additional neurologic evaluation, Mr. Hatmaker reported that “he continue[d] to feel
unsteady with no vertigo.” AR 357. And finally, during a July 16, 2007 physical therapy
appointment, Mr. Hatmaker was evaluated as walking “with difficulty.” AR 355.
The Board appears to have drawn a distinction between staggering and either
18
unsteadiness or walking with difficulty, and thus credited only those medical records
expressly reporting the symptom of staggering as supportive evidence for the 30 percent
disability rating it accorded under 38 C.F.R. § 4.87 (code 6204). Unclear to the court
from the record before it is whether reports of staggering and unsteadiness are materially
different for the purpose of determining disability ratings. The dictionary upon which
defendant relies in making another argument in this case, see infra Part III.B.2.c., defines
stagger to mean “mov[ing] or caus[ing] (someone) to move unsteadily from side to side.”
Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/stagger (last
visited July 30, 2014). If this definition is appropriate here, Mr. Hatmaker conceivably
may have exhibited symptoms of staggering. The court does not purport to decide this
issue; rather the court observes that without an explanation of why the Board credited
only reports that expressly used the term “stagger,” it is unable to determine whether
substantial evidence supported the Board’s decision that Mr. Hatmaker did not show
occasional staggering, as required for a 30 percent disability rating.
c. Objective Findings of Disequilibrium
According to the Board, the “physician[s’] examinations consistently documented
the absence of any objective findings of disequilibrium” for Mr. Hatmaker. AR 6. The
Board did not indicate whether it was referring specifically to objective findings of
dizziness, staggering, or both. Plaintiff points to a neurologic medical record in which he
was diagnosed with ‘“a vestibular etiology for his dizziness”’ as objective evidence of a
finding of disequilibrium. Pl.’s Mot. 26-27 (quoting AR 55). Defendant challenges Mr.
Hatmaker’s effort to equate disequilibrium with dizziness; defendant asserts that
disequilibrium is defined as “a loss or lack of balance,” and is distinguishable from the
sensation of dizziness. Def.’s Resp. 23 n.8 (quoting www.merriam-webster.com).
Whether defendant’s definition of disequilibrium is the same as the definition
employed by the Board is not discernable from the record. A widely-used medical
dictionary does define disequilibrium as “any derangement of the sense of equilibrium [to
include] . . . dizziness and vertigo.” Dorland’s Illustrated Medical Dictionary 577 (32d
ed. 2012).
If the Board did apply the definition proposed by defendant, it is not clear that the
medical records in evidence support the Board’s assessment that “objective findings of
disequilibrium” were absent. The Board appears to have omitted any discussion of one
specific medical record, a July 16, 2007 initial evaluation of Mr. Hatmaker by a physical
therapist that was prompted by his vertigo, AR 353-55; that record makes reference to
difficulties Mr. Hatmaker experienced that could be consistent with a finding of
disequilibrium. As reflected in the medical record, the physical therapist evaluated Mr.
Hatmaker’s ability to ambulate on both even terrain and uneven terrain, and described his
ability as “[i]ndependent with difficulty.” AR 355. He was noted to be able to walk
about 180 feet on even terrain, and 35 feet on uneven terrain. Id. The goals for Mr.
19
Hatmaker were to be able to walk independently (without difficulty) on both types of
terrain, for a distance greater than 500 feet on even terrain, and an unlimited distance on
uneven terrain. Id. Although a review board is not required to discuss every medical
record in evidence, Rebosky v. United States, 60 Fed. Cl. 305, 312 (2004), the Board’s
failure to discuss this relevant medical record that potentially contravenes the Board’s
finding is not readily understood and has not been explained.
The record of that July 16, 2007 physical therapy evaluation is Mr. Hatmaker’s
last medical evaluation prior to his August 10, 2007 PEB. See Pl.’s App. A 2. The
purpose of the office visit was to treat Mr. Hatmaker’s vertigo. AR 353 (Physical
Therapy Diagnosis: Vertigo). The Board’s silence on this record is puzzling because it
has considered every other medical record for Mr. Hatmaker between March 2007 and
August 2007, including the ones related to his vertigo and those related to his other
disabilities. Compare AR 4-5, with Pl.’s App. A 1-2. The Board also discussed the
January and February 2008 medical evaluations conducted for the DVA Compensation
and Pension (C&P) evaluation. See AR 5.
On review the court finds the record to contain a document that speaks to Mr.
Hatmaker’s difficulty walking on various surfaces, but no discussion by the Board
regarding its significance, if any. Without further explanation of what the Board meant
when it pronounced its finding of an “absence of any objective findings of
disequilibrium,” the court cannot determine whether the Board’s decision is supported by
substantial evidence. Thus, the court remands the matter to the Board for consideration
of all the evidence regarding Mr. Hatmaker’s vertigo, and for an explanation of the
decision it reaches.
3. Remarks Regarding Remand
Because the court is remanding this matter to the Board for further consideration,
it does not consider Mr. Hatmaker’s argument regarding the Board’s application of the
VASRD reasonable doubt rule. Pl.’s Mot. 28-32 (citing 38 C.F.R. § 4.3).
Two additional matters that might be considered on remand include the following.
the first matter involves a February 2008 physical therapy record. Mr. Hatmaker faults
the Board for not considering the February 9, 2008 physical therapy treatment report
considered by the DVA. Id. at 32-33. He expresses concern that the text of the Board’s
decision refers to “a post separation physical therapy note that stated he experienced
episodes of dizziness and staggering;” that note is followed by a parenthetical that
documents the date of the therapy as February 2008, and observes that the note is “not in
evidence.” AR 5. Mr. Hatmaker does not dispute that the February 2008 physical
therapy report was not before the Board. Pl.’s Mot. 33. And the Board did not indicate
whether it considered the DVA’s report of the February 2008 physical therapy note. For
the sake of record completeness, Mr. Hatmaker may renew his request, on remand, that
20
the record be provided to the Board. See DoDI 6040.44 encl. 2 ¶ 6.i; AR 20.
The second matter involves Mr. Hatmaker’s active medication list. The court’s
record review has revealed a discrepancy regarding Mr. Hatmaker’s prescriptions that
merits attention. Based on its review of the January 2008 DVA C&P exam, the Board
accurately observed that Mr. Hatmaker’s “active medication list included no medications
for vertigo or dizziness.” AR 5 (citing AR 186). But identified during Mr. Hatmaker’s
evaluation for vertigo—which was conducted as part of the same DVA C&P exam—
were two medications for the treatment of vertigo, specifically a “scopolamine patch
[and] meclizine.” AR 185. In addition, earlier records showed that Mr. Hatmaker had
been prescribed a scopolamine patch for the “control of vertigo symptoms.” AR 356
(July 10, 2007 neurology appointment). No explanation can be found in the record
regarding why the medication prescribed to Mr. Hatmaker was not included in the active
medication list. But, more importantly, the court cannot determine from the record what,
if any, impact the Board’s awareness (or lack thereof) of plaintiff’s vertigo medication
had on its decision.
C. Total Disability Due to Unemployability
Mr. Hatmaker requested that the PDBR consider his conditions “for a total rating
for unemployability, [an evaluation, he believes would have] result[ed] in an award of
100% disability.” AR 14. Mr. Hatmaker asserts that he was entitled to be considered for
a total disability rating under both DoDI 1332.399 ¶ 6.5 and 38 C.F.R. § 4.16 (2007).
Pl.’s Mot. 24-26; Pl’s Reply 16-18.
While Mr. Hatmaker is correct that a service member may be awarded a total
disability rating based on his inability to secure a substantially gainful occupation, due to
his unemployability, the VASRD provides clear thresholds for such a rating. Under 38
C.F.R. § 4.16, a service member with one service-connected disabling condition may
only be considered for a total disability rating if that disabling condition is ratable at 60
percent or more. 38 C.F.R. § 4.16(a) (2007).
Under DoDI 1332.39 ¶ 6.5, however, there is no similar threshold. “[I]in cases in
which the VASRD does not provide a 100 percent rating under the appropriate (or
analogous) code, a member may be assigned a disability rating of 100 percent if the
member’s impairment is sufficient to render it impossible to engage a substantially
gainful occupation.” DoDI 1332.39 ¶ 6.5.
Mr. Hatmaker’s one service-connected disabling condition is vertigo. AR 43
(PEB decision); AR 7 (PDBR Recommendation). Vertigo is ratable at either 10 percent
9
DoDI 1332.39, Application of the Veterans Administration Schedule for Rating
Disabilities (Nov. 14, 1996).
21
or 30 percent. 38 C.F.R. § 4.87 (code 6204). Because vertigo is not ratable at 60 percent
or more, Mr. Hatmaker could not qualify for total disability under 38 C.F.R. § 4.16, but
under certain circumstances, he could qualify for such a rating under DoDI 1332.39 ¶ 6.5.
The problem for Mr. Hatmaker, however, is that the Department of Defense
rescinded DoDI 1332.39, and it was not applicable to the Board’s review of his case. The
court first addresses, for the sake of clarity, the inapplicability of DoDI 1332.39 to the
Board’s review, and then considers the parties’ arguments under 38 C.F.R. § 4.16.
1. Inapplicability of DoDI 1332.39 to the Board’s Review
On June 2, 2009, “Change 1” was incorporated into DoDI 6040.44, which
expressly provides that DoDI 1332.39 does not apply to the Board’s review of a service
member’s disability rating if that service member was separated from the military prior to
January 28, 2008.10 DoDI 6040.44 encl. 3 ¶ 5.e.1. The relevant text is included below,
with the text newly added in “Change 1” denoted by italics, and the deleted text denoted
by strike throughs.
If the case was adjudicated by the final Military Department PEB and the
covered individual was separated from military service prior to January 28,
2008, the PDBR shall also review the disability rating(s) of the covered
individual, in accordance with the DoD application of the VASRD under
DoDI 1332.39 (Reference (m)) and applicable Service regulations, if any,
in effect at the time of separation for the covered individual. Provisions of
DoD or Military Department regulations or guidelines relied upon by the
PEB will not be considered by the PDBR to the extent they were
inconsistent with the VASRD in effect at the time of the adjudication.
DoDI 6040.44 encl. 3 ¶ 5.e.(1).
Mr. Hatmaker was separated from military service on September 24, 2007.
AR 151. Hence under DoDI 6040.44, the Board was to review his disability rating
10
The Department of Defense rescinded DoDI 1332.39 on October 14, 2008. David
S.C. Chu, Office of the Under Sec’y for Pers. & Readiness, U.S. Dep’t of Def., Policy
Memorandum on Implementing Disability-Related Provisions of the National Defense
Authorization Act of 2008 (Pub L. 110-181) 1 (Oct. 14, 2008) (“DoD Mem.”),
http://prhome.defense.gov/Portals/52/Documents/WCP%20Documents/NDAA%2008%2
02%20PM%20sm.pdf. See also DoD Mem. attach. 1 (“The policies below . . . rescind
DoDI 1332.39, Application of the Veterans Administration Schedule for Rating
Disabilities, November 14, 1996.”).
22
under only the VASRD. DoDI 6040.44 encl. 3 ¶ 5.e.(1).
DoDI 6040.44 provides that the PDBR was permitted to consider regulations or
guidelines relied upon by the PEB, in certain circumstances. Id. Such permissive
consideration would not have extended to DoDI 1332.39.
It is unclear whether the PEB did rely on DoDI 1332.39 ¶ 6.5 during its August
2007 evaluation of Mr. Hatmaker. Although this instruction still would have been in
effect, the Board expressed doubt that the PEB considered this, or any other instruction,
stating that it “[had] not surmise[d] from the record or PEB ruling in this case that any
prerogatives outside the VASRD were exercised.” AR 7.
Whether or not the PEB actually relied on DoDI 1332.39 ¶ 6.5, the Board was not
permitted to consider Mr. Hatmaker’s claim under DoDI 1332.39. DoDI 6040.44 encl. 3
¶ 5.e.(1). The two regulations, DoDI 1332.39 ¶ 6.5 (the departmental instruction still in
effect) and 38 C.F.R. § 4.16(a) (the operative VASRD), were not consistent on the issue
of whether a service member with one service-connected disabling condition that is
ratable at less than 60 percent, like Mr. Hatmaker, might be rated as totally disabled due
to unemployability. Because DoDI 1332.39 ¶ 6.5 was “inconsistent with the VASRD in
effect at the time of the adjudication,” id., the Board was precluded from relying on DoDI
1332.39 in its review.
Although he was aware that the Department of Defense had rescinded DoDI
1332.39, Mr. Hatmaker nonetheless argued to the Board that 38 C.F.R. § 4.16 was “in
harmony” with DoDI 1332.39 and thus he urged the Board to consider his claim under
DoDI 1332.39. AR 17 (citing DoDI 6040.44 ¶ 5.e.(1)).
Mr. Hatmaker has made no similar argument before this court. But, as discussed
more fully above, DoDI 1332.39 ¶ 6.5 and 38 C.F.R. § 4.16(a) are not consistent on the
issue of the unemployability of a member with one service-connected disabling condition
that is ratable at less than 60 percent. Because any contention otherwise is incorrect, the
court does not consider the parties’ unemployability arguments based on DoDI 1332.39.
2. The Board’s Review Under 38 C.F.R. § 4.16
The court does consider the parties’ arguments based on 38 C.F.R. § 4.16. That
regulation is excerpted in relevant part below.
Total disability ratings for compensation may be assigned, where the
schedular rating is less than total, when the disabled person is, in the
judgment of the rating agency, unable to secure or follow a substantially
gainful occupation as a result of service-connected disabilities: Provided
[t]hat, if there is only one such disability, this disability shall be ratable at
23
60 percent or more, and that, if there are two or more disabilities, there shall
be at least one disability ratable at 40 percent or more, and sufficient
additional disability to bring the combined rating to 70 percent or more.
38 C.F.R. § 4.16(a).
Because Mr. Hatmaker’s vertigo is ratable at no more than 30 percent, he fails to
qualify, under 38 C.F.R. § 4.16(a), for consideration of total disability due to
unemployability.
Nonetheless, Mr. Hatmaker requested review of his rating determination. In
response to his request, the Board explained that a determination of total disability due to
unemployability was a “consequential entitlement determination,” that fell within the
province of the Secretary of the Air Force. AR 3. The Board specifically stated,
[i]t is noted that the applicant asks the Board for . . . specified consequential
entitlements of 100% disability. By law the Board authority is limited to
making recommendations on correcting disability determinations. The
actual . . . consequential entitlement determinations [are] the responsibility
of the applicable Secretary and Accounting service.
Id. (emphasis added).
Notwithstanding the Board’s response, Mr. Hatmaker argues that the Board erred
in not considering his claim for a total disability rating. Pl.’s Mot. 24-26; Pl.’s Reply 14-
20. Mr. Hatmaker evidently believes that the Board’s brief statement was inadequate to
serve as consideration of his claim. See Pl.’s Mot. 24.
Defendant contends that the Board’s statement that “total disability is a
‘consequential entitlement’” is a correct one, and sufficed as a response to Mr.
Hatmaker’s request. Def.’s Resp. 20-21 (quoting AR 3).
Mr. Hatmaker characterizes defendant’s explanation as a post-hoc rationalization,
because the Board did not point explicitly to the 60 percent threshold set forth in 38
C.F.R. § 4.16 as the reason for not engaging in further review of Mr. Hatmaker’s claim.
See Pl.’s Mot. 24-25. Mr. Hatmaker urges the court to reject defendant’s
rationalization as impermissible. Id. at 25 (quoting Burlington Truck Lines v. United
States, 371 U.S. 156, 168-69 (1962) (“[C]ourts may not accept appellate counsel’s post
hoc rationalizations for agency action; [SEC v. Chenery Corp., 332 U.S. 194 (1995)]
requires that an agency’s discretionary order be upheld, if at all, on the same basis
articulated in the order by the agency itself . . . .”)).
Plaintiff’s argument goes too far. The Board has articulated with sufficient clarity
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the basis for its decision. But, even if the Board’s decision was not a model of clarity on
this issue, the court must stay its hand if the Board’s decisional path can “reasonably be
discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281,
285-86 (1974) (citing Colo. Interstate Gas Co. v. Fed. Power Comm’n, 324 U.S. 581, 595
(1945) (“[W]e will uphold a decision of less than ideal clarity if the agency’s path may
reasonably be discerned.”)).
The Board has a duty to review a service member’s disability rating, and where
appropriate, “recommend that the Military Departments correct discrepancies and errors
in such ratings.” DoDI 6040.44 ¶ 4.a. Because 38 C.F.R. § 4.16(a) governs total
disability ratings based on unemployability, and provides thresholds for such a rating, the
Board clearly and properly limited its review of Mr. Hatmaker’s case and explained that
the disability rating was a “consequential entitlement determination” to be made by the
appropriate Secretary.
The court finds that the Board committed no error in its decision regarding Mr.
Hatmaker’s request to be rated as 100 percent disabled based on unemployability.
D. OCD, Asthma, and Sleep Apnea Disability Ratings
Defendant argued that the Board was correct in its decision to make no changes to
the PEB decision that Mr. Hatmaker’s OCD, asthma, and sleep apnea were not unfitting
disabilities. Def.’s Mot. 29-32.
In his response to defendant’s argument, Mr. Hatmaker did not assert that the
Board had committed an error in its review of these disabilities. See Pl.’s Mot. 38.
Rather, he challenged defendant’s argument before this court that he had accepted the
August 2007 PEB decision that his OCD, asthma, and sleep apnea were not unfitting. Id.
(citing Def.’s Mot. 32).
In its motion before this court, defendant contended that “at the time
contemporaneous with his separation, Mr. Hatmaker expressly agreed with the PEB that
these three conditions were not unfitting.” Def.’s Mot. 32 (citing AR 43, block 15; AR
41 § 4). As reflected in the record, the PEB stated that “the sleep apnea and asthma are
not unfitting. . . .[and] [i]mpairment from your OCD is Mild, indicating that it is not
unfitting.” AR 43.
The PEB decision indicates that Mr. Hatmaker checked a box that said “I agree
with the Findings and Recommended Disposition of the PEB and understand I am
waiving the right to a formal PEB hearing.” AR 41. He then signed his name as a
supplementary indication of his agreement with that statement. Id.
The record makes clear that the Board did not consider Mr. Hatmaker’s
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acceptance of the PEB decision in its review of his OCD, asthma, and sleep apnea claims.
AR 6-7. Because the court reviews the Board’s decision, and does not accept
defendant’s counsel’s arguments as dispositive, no further discussion of Mr. Hatmaker’s
acceptance of the August 2007 PEB decision is necessary.
Mr. Hatmaker alleged no other error in the Board’s review of his OCD, asthma, or
sleep apnea, and the court finds no error with the Board’s decision to make no changes to
the PEB fitness determinations for Mr. Hatmaker’s OCD, asthma, or sleep apnea.
IV. Conclusion
The court GRANTS defendant’s motion for judgment on the administrative record
for the issues of (1) OCD, asthma, and sleep apnea, and (2) total disability due to
unemployability. Defendant’s motion is otherwise DENIED. Plaintiff’s cross motion
for judgment on the administrative record is DENIED.
Pursuant to its authority under 28 U.S.C. § 1491(a)(2), the court REMANDS this
matter to the United States Department of Defense Physical Disability Board of Review
for additional review, as specified below.
The Physical Disability Board of Review shall consider Mr. Hatmaker’s request to
review the overall effect of his disabilities on his fitness determination.
In addition, the Physical Disability Board of Review shall review the PEB
decision assigning Mr. Hatmaker a 10 percent disability rating for vertigo. As more fully
explained in this opinion, the Physical Disability Board of Review shall consider all the
relevant evidence in the record and provide an explanation for its decision sufficient for
this court to conduct a review, if necessary.
In particular, the Physical Disability Board of Review shall provide an explanation
of the showing needed to satisfy a finding of dizziness, rather than occasional dizziness.
The Physical Disability Board of Review shall address the evidence that Mr. Hatmaker
was absent from work due to dizziness. The Physical Disability Board of Review shall
provide an explanation of why it credited post-separation discussions by Mr. Hatmaker of
OCD symptoms as providing a stronger indication of whether Mr. Hatmaker was driving,
at the time of separation, than express statements Mr. Hatmaker made during June and
July 2007. The Physical Disability Board of Review shall provide an explanation for
whether it considers reports of unsteadiness or difficulty walking as evidence to be
considered in evaluating whether Mr. Hatmaker showed occasional staggering. The
Physical Disability Board of Review shall explain its statement that “physician
examinations consistently documented the absence of any objective findings of
disequilibrium.” AR 6. And the Physical Disability Board of Review shall address the
significance of Mr. Hatmaker’s vertigo medication during his January 2008 DVA C&P
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examination.
Moreover, Mr. Hatmaker should be provided an opportunity to add the February 9,
2008 physical therapy report to the record in this matter.
This case shall be STAYED pending remand. See RCFC 52.2(b)(1)(C). The
remand shall last no longer than six months, RCFC 52.2(b)(1)(B), and the parties shall
file joint status reports every ninety days informing the court of the status of the remand,
RCFC 52.2(b)(1)(D). Accordingly, joint status reports shall be due no later than
October 31, 2014 and January 30, 2015. “The results of the proceedings on remand are
subject to this court’s review,” Santiago v. United States, 71 Fed. Cl. 220, 230 n.17
2006).
IT IS SO ORDERED.
s/ Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Chief Judge
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