Nyan v. United States ( 2021 )

In the United States Court of Federal Claims
)
ISSAC NYAN, )
)
Plaintiff, )
) No. 20-343C
v. ) (Filed: April 5, 2021)
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
)
)
Tyler Evans, Covington & Burling LLP, Washington, DC, for Plaintiff. Jennifer L. Plitsch,
Sarah M. Shepson, Covington & Burling LLP, Washington, DC, Bart Stichman, Rochelle
Bobroff, Esther Leibfarth, and David Sonenshine, National Veterans Legal Services Program,
Washington, DC, Of Counsel.
Douglas G. Edelschick, U.S. Department of Justice, Civil Division, Commercial Litigation
Branch, with whom were Deborah A. Bynum, Assistant Director, Robert E. Kirschman, Jr.,
Director, and Jeffrey Bossert Clark, Acting Assistant Attorney General. Lieutenant Clayton
McCarl, U.S. Department of the Navy, Office of the Judge Advocate General, Washington, DC,
Of Counsel.
OPINION AND ORDER
Kaplan, Chief Judge.
The plaintiff in this case, Isaac Nyan, filed this suit to challenge the determination of the
United States Department of the Navy (the “Navy”) that his lower back pain and chronic
migraines did not render him unfit for continued service as a Hospital Corpsman at the E4 grade.
He seeks correction of his record to reflect a disability retirement, as well as back pay.
The case is currently before the Court on the parties’ cross-motions for judgment on the
administrative record and Mr. Nyan’s motion to supplement the administrative record. For the
reasons set forth below, Mr. Nyan’s motion for judgment on the administrative record is
GRANTED, ECF No. 13, and his motion to supplement the administrative record is DENIED,
ECF No. 14. The government’s motion for judgment on the administrative record is DENIED.
ECF No. 12.
BACKGROUND
I. Overview of Mr. Nyan’s Service
Mr. Nyan enlisted in the Navy Ready Reserve Program on June 13, 2008. Admin. R.
(“AR”) 3297, ECF No. 11-3. On January 7, 2009 he transferred to the Regular Component of the
Navy. Id. at 3348. Mr. Nyan was assigned to the National Naval Medical Center in Bethesda,
Maryland, from 2009 until mid-2011 during which time his occupation (i.e., “rating”) was that of
a “Hospitalman.” Id. at 3254, 3259, 3283, 3285. 1
Mr. Nyan received positive performance evaluations during this assignment. See id. at
3259 (2009–2010 performance evaluation); see also id. at 3255 (2010–2011 performance
evaluation observing that Mr. Nyan was “[r]ecognized among his peers for outstanding patient
care” and “rewarded with a certificate of appreciation from the [traumatic brain injury] unit,”
that he “demonstrated consistent growth,” and “[was] ready to assume roles of greater
responsibility”).
From July 28 to September 30, 2011, Mr. Nyan attended Field Medical Service School to
qualify for service as a Field Medical Service Technician. Id. at 3208; see also id. at 3342
(identifying “Field Medical Service Technician” as his primary specialty for the preceding five
years and nine months as of June 10, 2017). After he completed his training in September of
2011, the Navy placed Mr. Nyan in the First Medical Battalion unit of the First Marine Logistics
Group. Id. at 3208. A year later, on September 16, 2012, the Navy promoted Mr. Nyan to petty
officer third class in the grade of E4 with a rating of a Hospital Corpsman. Id. at 3348. He
remained in the Navy until June 10, 2017 when he was honorably discharged. Id. at 3342.
II. Mr. Nyan’s Service-Related Medical Impairments
During his service, Mr. Nyan developed several medical conditions that affected his
ability to perform his duties. First, during his service at the National Naval Medical Center, Mr.
Nyan injured his lower back while lifting patients. As a result, he developed reoccurring back
pain that worsened in the ensuing years. Id. at 192, ECF No. 11-1; see also id. at 1260. In April
of 2013, Mr. Nyan underwent several months of physical therapy for his lower back pain, which
had been exacerbated in Field Medical Service School and in performing his assigned duties. Id.
at 192.
In the meantime, in or around January of 2013, during company physical training, Mr.
Nyan hit his head on the ground, which caused him to black out. Id. at 192, 1482. A few days
later, he began to experience migraines, which persisted and ultimately became chronic in nature.
Id. at 192.
On August 6, 2013, Mr. Nyan sought mental health treatment for symptoms that began in
2010 after a patient on whom he was performing CPR died. Id. at 167. He met on that date with a
1
See The Department of the Navy Disability Evaluation Manual, SECNAVINST 1850.4E encl.
2, § 2057(d) (defining a member’s “Rating” as “[t]he occupational fields prescribed for Sailors
([e.g.,] BM, Botswain’s Mate; DT, Dental Technician; etc.)”).
2
Licensed Clinical Social Worker, Melissa Marrs, who diagnosed him as suffering from insomnia
and adjustment disorder with depressed mood. Id. at 2747–48. Ms. Mars continued to treat him
over the ensuing months until at least April of 2014. Id. at 1259.
In December of 2013, the Navy reassigned Mr. Nyan to the Naval Hospital in Camp
Pendleton. Id. at 3208. Sometime during this period (the administrative record does not reveal
when), the Navy placed him on limited duty because of his lower back pain. Id. at 508, ECF No.
11-2. 2 On March 19, 2014, a medical officer approved him to return to full duty because he had
successfully completed medical treatment and reported being pain free. Id.
In October of 2015, Mr. Nyan was in a car accident that resulted in chronic neck pain and
worsened his migraines. Id. at 192, 1360, 1394. Despite medical treatment, his “chronic” and
“debilitating” migraines escalated. Id. at 192; see also id. at 494 (letter of medical necessity from
neurologist stating Mr. Nyan had “frequent and severe” migraines); id. at 1258, 1261–62
(documenting multiple medical encounters for migraines and headaches beginning as early as
September of 2013 until at least August of 2016); id. at 1269 (noting medical encounters for
traumatic brain injury in October, November, and December of 2016).
On October 29, 2015, a neurologist, Dr. Vijay Hegde, wrote a letter of medical necessity
for Mr. Nyan to “be placed on day shift only, in lieu of alternating between days and nights” as
an accommodation for his “frequent and severe” “chronic migraines.” Id. at 494. While Dr.
Hegde “recognize[d that] this accommodation w[ould] unduly burden his fellow corpsm[en],” he
noted that the day-shift accommodation would be in Mr. Nyan’s best interest. Id.
The next month, during a physical readiness test (“PRT”), Mr. Nyan experienced a
migraine headache, began to feel lightheaded, and then passed out. Id. at 2393. The Navy
subsequently granted him a medical waiver from participation in future PRTs. Id. at 191.
Because of continuing lower back pain, the Navy returned Mr. Nyan to limited duty on
March 14, 2016. Id. at 513. As a result of the limited duty assignment, Mr. Nyan was not allowed
to participate in unit physical training, undergo a PRT, or be deployed. Id. Other limitations from
full duty included no hiking or running, no standing for prolonged periods of time, no
watchstanding, and no participation in field operations. Id.
Thereafter, beginning in June of 2016 until his discharge about a year later, Mr. Nyan
served as the “Quality Management’s Medical Support Staff assistant.” Id. at 3345. His
performance evaluation reveals that as a medical support staff assistant he conducted monthly
audits and verified and maintained credentialing and privileging applications, as well as medical
licenses and certifications for staff of the Naval Hospital. He delivered no patient care. Id.; see
also id. at 186 (statement by his commanding officer that in his assignment to the Naval Hospital
Camp Pendleton’s Quality Management Department, Mr. Nyan served “as a clerk answering
2
A military member is placed on temporary limited duty in “cases in which the prognosis is that
the member can be restored to full duty within the specified period,” which should “normally not
. . . exceed 16 months per career.” SECNAVINST 1850.4E encl. 2, § 2082.
3
phones and taking messages”). In addition, according to his commanding officer, Mr. Nyan was
out of the office attending medical appointments an average of ten hours a week. Id. at 184.
Several months after he began work as a medical support staff assistant, Mr. Nyan was
hospitalized at the Balboa Inpatient Psychiatric Unit at the Navy Medical Center in San Diego
from September 7 to September 9. Id. at 1618–19. He was admitted to the medical center after
expressing suicidal intentions to his wife. Id. The medical center’s psychiatric team diagnosed
him with post-traumatic stress disorder and depressive disorder. Id. at 167. On December 10,
2016 the Navy extended his limited duty status for an additional six months to allow him “to
continue medical treatment, and/or medical board processing.” Id. at 3209.
III. Referral to the Navy’s Disability Evaluation System
A. Overview of the Navy’s Disability Evaluation System
Section 1201(a) of Chapter 61 provides that “[u]pon a determination by the Secretary
concerned that [an eligible service member] is unfit to perform the duties of the member’s office,
grade, rank, or rating because of physical disability incurred while entitled to basic pay . . . the
Secretary may retire the member, with retired pay.” 10 U.S.C. § 1201(a). The Department of the
Navy Disability Evaluation Manual (hereinafter “the Manual”) governs the processing of
disability cases for members of the United States Navy. The 2002 version of the Manual
(SECNAVINST 1850.4E) applies to Mr. Nyan’s case.
Pursuant to the Manual, the disability evaluation process begins with a Medical
Evaluation Board (“MEB”) finding that the service member’s fitness for continued naval service
is “questionable by reason of physical or mental impairment.” SECNAVINST 1850.4E encl. 3,
§ 3201(a) (Def.’s App. Accompanying Mot. for J. upon the Admin. R. (“Def.’s MJAR App.”) at
DA59–359, ECF No. 12-1); see also id. encl. 2, § 2043. The MEB may then refer the case to the
Physical Evaluation Board (“PEB”) for further consideration. See id. encl. 3, § 3102(c). The PEB
acts on behalf of the Secretary of the Navy in making fitness determinations. Id. encl. 1,
§ 1004(a).
Upon referral by an MEB, an informal PEB (“IPEB”) convenes to “screen incoming
cases for acceptance and, if accepted, perform the initial disability evaluation on the basis of
documentary review of case records.” Id. encl. 4, §4201. The “sole standard” the PEB applies “in
making determinations of physical disability as a basis for retirement or separation is unfitness to
perform the duties of office, grade, rank or rating because of disease or injury incurred or
aggravated while entitled to basic pay.” Id. encl. 3, § 3301. The IPEB reviews all relevant
medical and non-medical records, including medical board reports, non-medical assessments,
performance evaluations, and health records. Id. encl. 1, § 1004(b); id. encl. 4, § 4209. Upon
reviewing the relevant records, the IPEB issues and provides the member with notice of its
“preliminary findings.” Id. encl. 1, § 1004(b); see also id. encl. 4, §§ 4208–11. If the IPEB
concludes that the member is fit to continue naval service, then the preliminary findings become
the final determination of the PEB. Id. § 4123(a)(2)(i). After the IPEB issues its findings, a
claimant may submit “new and/or relevant medical information that may alter the findings.” Id.
§ 4214(b). If the member does so, the IPEB may issue reconsidered findings or, if the IPEB
deems no change in findings is warranted, the case will be finalized. Id.
4
Upon completion of its review, the IPEB refers the case to the President of the PEB for
further processing. Id. § 4212(a). If a member who has been found unfit for service demands a
hearing, the President must assign his or her case to a formal PEB. Id. § 4212(c)(1). In other
cases where a member requests a hearing, the President has discretion to assign the case to a
formal PEB. Id. § 4212(c)(2)–(4).
A claimant is given fifteen days after he receives notification of the IPEB’s preliminary
findings to either accept those findings or request reconsideration from the IPEB “and/or
demand/request a personal appearance before a formal PEB.” Id. encl. 3, § 3102(c). If the
member accepts the findings of the IPEB, the case is finalized and the service’s headquarters will
separate, retire, or return the disability claimant to duty accordingly. Id. If he fails to make an
election within fifteen days, then acceptance of the findings is presumed on the sixteenth day
after he receives them. Id.; see also id. encl. 4, § 4216.
B. Medical Evaluation Board Assessment of Mr. Nyan
Mr. Nyan’s case entered the Navy’s Disability Evaluation System on August 25, 2016.
AR 157–59. An MEB considered whether five separate conditions put into question Mr. Nyan’s
fitness for duty: low back pain, adjustment disorder with mixed anxiety, migraine with aura –
intractable, paresthesia of skin, and chronic pain. Id. at 161. Specialists in sports medicine,
mental health, and neurology at the Naval Medical Center in San Diego evaluated Mr. Nyan as
part of the MEB review process. Id. at 162–65, 167–72, 174–81.
Dr. Todd May, a sports medicine medical evaluator, examined Mr. Nyan on August 22,
2016. Id. at 163. He reported that Mr. Nyan had been suffering back pain since October of 2009
which started “while lifting a patient.” Id. at 163, 1738. Since then, Dr. May observed, Mr. Nyan
“had pain off and on,” and had undergone several forms of treatment, none of which had
succeeded at returning him to full duty. Id. at 163. Dr. May stated that Mr. Nyan’s “pain
limit[ed] his ability” to do his job which “require[d] lifting/transferring patients” and “occasional
prolonged sitting/standing.” Id. Mr. Nyan also was “required to serve with the [Fleet Marine
Force],” wrote Dr. May, but the “demands” of this position “worsen[ed] his pain.” Id. His
impression was that Mr. Nyan was “unable to accomplish these tasks without significant
discomfort and he has exhausted all conservative care.” Id. Dr. May recommended referral to the
PEB for disposition.
In the neurology addendum to the MEB Report, Dr. Hegde (who had treated Mr. Nyan
for his migraines from at least October of 2015 until August of 2016, see, e.g., id. at 1262)
diagnosed Mr. Nyan with “chronic intractable migraine,” id. at 180, 1736. Mr. Nyan’s
“debilitating” headaches had persisted despite various treatment attempts, explained Dr. Hegde,
and caused Mr. Nyan to be unable to physically train with his unit, to perform the PRT, to
“perform the duties on the hospital ward expected of him as a hospital corpsman,” “to stand
overnight duty,” or to deploy. Id. at 183. Dr. Hegde stated that “as an HM3” Mr. Nyan was
“required to do *ALL* of the above duties without difficulty,” but that he had “been unable to do
any of these for well over a year.” Id. Thus, Dr. Hegde recommended “that he be referred to the
PEB for disposition.” Id.
5
On November 21, 2016, the MEB issued a mental health Addendum Report. Id. at 167–
69. In it, Dr. Karis Irving, a psychiatrist, and Dr. Robert Lippy, a psychologist, diagnosed Mr.
Nyan with chronic adjustment disorder with mixed anxiety and depressed mood. Id. at 167.
Although these doctors noted that during his psychiatric hospitalization he had been diagnosed
with “unspecified depressive disorder and posttraumatic stress disorder,” it was their opinion that
“further history and testing did not support these diagnoses as most appropriate.” Id. at 168. 3 In
addition, Drs. Irving and Lippy stated that Mr. Nyan’s mental health symptoms caused only
“mild interference” with his ability to perform his job. Id. at 169.
C. Assessment by the Informal Physical Evaluation Board
The Medical Evaluation Board referred Mr. Nyan to an IPEB in December of 2016. Id. at
166. Mr. Nyan’s commanding officer, Dr. Chad Baasen, completed a non-medical assessment
(“NMA”) for the PEB to consider in its fitness determination. Id. at 184–86. 4 Dr. Baasen
explained that Mr. Nyan’s Navy Enlisted Classification/rate was that of a Field Medical Service
Technician, but that he was currently assigned to an administrative role which was “outside of
[his] specialty because of [a] medical condition.” Id. at 184. He answered “no” to the question
whether Mr. Nyan could perform within his rating. Id. Dr. Baasen stated that Mr. Nyan’s medical
conditions required him to miss work an average of ten hours per week. Id. Further, he stated that
“[d]ue to current medical conditions, chronic migraines, chronic back pain, and mental health
concerns,” Mr. Nyan “cannot perform duties as a Hospital Corpsman.” Id. at 185. Mr. Nyan,
explained Dr. Baasen, “is unable to administer competent patient care,” “unable to participate in
any Military functions such as physical training or formations,” and “is not deployable and so . . .
cannot serve with a [Fleet Marine Force] unit which is an essential function of a Hospital
Corpsman and Sailor.” Id. Dr. Baasen opined that Mr. Nyan’s medical conditions made it
impossible for Mr. Nyan “to perform in the physical and stressful environment required by his
rate as a Hospital Corpsman . . . now or in the future,” and that those conditions had even “made
it difficult for him to perform his administrative duties within the hospital.” Id. at 186. Therefore,
Dr. Baasen recommended “a medical discharge for Petty Officer Third Class Nyan so that he can
continue with his care plan.” Id.
On February 23, 2017, the IPEB convened and recommended that Mr. Nyan be found
“Fit to Continue on Active Duty.” Id. at 135. The Medical Officer based his opinion on Mr.
Nyan’s most recent performance evaluation, covering the period of time when he was on limited
3
The doctors explained that the Clinical Psychologist who had performed mental health tests on
Mr. Nyan had found his MMPI results “invalid” and that the M-FAST revealed “a potential for
malingering.” AR 168. Mr. Nyan wrote a December 20, 2016 “Addendum Rebuttal” in which he
explained, among other things, that he had not understood many of the questions because English
is his third language and he was not offered any translation services to complete the 560-question
test. Id. at 171–72; see also id. at 349. After reviewing Mr. Nyan’s rebuttal, Dr. Irving declined
on behalf the team to make any changes to the Addendum Report. Id. at 173.
4
The NMA is “a statement describing the impact of the service member’s medical condition
upon the member’s ability to perform his/her normal military duties and to deploy.”
SECNAVINST 1850.4E encl. 11, § 11001(a).
6
duty performing clerical work as described above. Id. at 136. The medical officer commented
that, “[p]er the most recent evaluation,” Mr. Nyan was “performing in an above average fashion
and [was] working in rate.” Id.
Similarly, the Presiding Officer relied on Mr. Nyan’s most recent evaluation, noting that
his commanding officer had observed that Mr. Nyan “perform[ed] his duties in an exemplary
manner, demonstrating superior performance.” Id. The Presiding Officer therefore concluded
that, in his view, the “evidence available to the board establishes that the member is able to
reasonably perform duties of his office, grade, rank, or rating,” and was therefore fit for duty. Id.
D. Mr. Nyan’s Request for a Formal Physical Evaluation Board
On February 27, 2017, Mr. Nyan requested a formal PEB hearing to contest the IPEB’s
fitness determination. Id. at 7. He asked the PEB to find him unfit based on his back pain,
migraines, and mental health conditions. Id. Mr. Nyan submitted a memorandum from his
commanding officer, Dr. Corry J. Kucik, in which he apparently attempted to address the IPEB’s
reliance upon Mr. Nyan’s most recent performance evaluation as the basis for its fitness
determination. Id. at 50. Dr. Kucik explained that “[m]edical concerns, conditions, impairments,
etc. are not discussed or annotated on a member’s periodic evaluation” even if they “have an
impact on a member’s performance.” Id. Dr. Kucik stated that Mr. Nyan was a Field Medical
Service Technician who had to be “transferred from an operation unit” to an administrative
position “due to medical concerns.” Id. Mr. Nyan’s 2016 performance evaluation, Dr. Kucik
explained, “was prepared based on his administrative performance as a General Duty Corpsman
within the Patient Administration Department.” Id. He noted that “[a]dministratively, [Mr. Nyan]
performed his job in an exemplary manner,” but that “physical limitations existed due to his
medical conditions.” Id.
On March 27, 2017, the IPEB recommended that Mr. Nyan’s request for a formal PEB be
denied. Id. at 2. According to the IPEB, Mr. Nyan had not supplied it with any new information.
Id. Specifically, the Presiding Officer explained, there was “[n]o new information from
command to show how diagnoses are unfitting or explain why great evals but [cannot] perform.”
Id.
On April 4, 2017, the President of the PEB notified the Chief of Naval Personnel that the
PEB had found Mr. Nyan “FIT to perform the duties of his[] office, grade, or rank on active
duty.” Id. at 1.
IV. Discharge from the Navy
Mr. Nyan was honorably discharged from the Navy several months later, on June 10,
2017. Id. at 3342. At the time of his discharge, Mr. Nyan was a Hospital Corpsman Third Class
with a pay grade of E4. Id. His Navy Enlisted Classification specialty was Field Medical Service
Technician (NEC code HM-8404). Id.
V. The Present Case
Mr. Nyan filed his complaint in this Court on March 25, 2020. ECF No. 1. In Count I of
his Complaint, Mr. Nyan claims the Navy’s decision finding him fit for duty was “arbitrary,
7
capricious, unsupported by substantial evidence, and contrary to law because it failed to consider
the complete factual record and to properly weigh relevant evidence.” Id. ¶¶ 99–101. In Counts
II, III, and IV, Mr. Nyan claims that the Navy failed to apply the correct legal standard in
evaluating whether his medical conditions interfered with his ability to perform in his rating as a
Hospital Corpsman and in his specialty qualification as a Field Medical Service Technician. Id.
¶¶ 102–11; id. ¶¶ 112–18; id. ¶¶ 119–24. Mr. Nyan asks the Court to correct his military records
to reflect a medical retirement which would entitle him to disability pay and benefits as provided
by 10 U.S.C. § 1201. Id. at 23. In the alternative, Mr. Nyan asks the Court to “remand Plaintiff’s
case to a PEB for a proper determination of his fitness for duty according to his rating at the time
of his discharge, provide Plaintiff with his right to a hearing as guaranteed by 10 U.S.C. § 1214,
and, if the PEB finds he was unfit, medically retire him effective on the date of his discharge.”
Id. at 23–24.
The government filed the administrative record on July 31, 2020, ECF No. 11, and filed
its motion for judgment on the administrative record (“MJAR”) on September 11, 2020, ECF
No. 12. Plaintiff filed his cross-MJAR and response to the government’s motion on October 23,
2020. ECF No. 13. Plaintiff filed a motion to supplement the administrative record on October
23, 2020. ECF No. 14. The government filed a combined reply in support of its MJAR and
response to the Plaintiff’s motion to supplement on November 20, 2020. ECF No. 15. Plaintiff
filed his reply in support of his MJAR and reply in support of his motion to supplement the
administrative record on December 11, 2020. ECF No. 16. Oral argument was held via
videoconference on March 9, 2021.
DISCUSSION
I. Jurisdiction
Under the Tucker Act, the Court of Federal Claims has jurisdiction to hear “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)(1). While the Tucker Act waives the sovereign immunity of the United States to allow
a suit for money damages, United States v. Mitchell, 463 U.S. 206, 212 (1983), it does not confer
any substantive rights on a plaintiff, United States v. Testan, 424 U.S. 392, 398 (1976).
Therefore, a plaintiff seeking to invoke the court’s Tucker Act jurisdiction must identify an
independent source of a substantive right to money damages from the United States arising out
of a contract, statute, regulation, or constitutional provision. Jan’s Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008).
It is well established that Section 1201 of Title 10 of the United States Code—which
governs military disability retirement—is a money-mandating statute. Fisher v. United States,
402 F.3d 1167, 1174 (Fed. Cir. 2005) (citing Sawyer v. United States, 930 F.2d 1577 (Fed. Cir.
1991)). Accordingly, this Court has jurisdiction over Plaintiff’s claims seeking monetary relief
based on the Military Pay Act.
8
II. Standard of Review
In deciding a motion pursuant to Rule 52.1 of the Rules of the Court of Federal Claims
(“RCFC”), the court makes “factual findings . . . from the record evidence as if it were
conducting a trial on the record.” Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir.
2005). Thus, “resolution of a motion respecting the administrative record is akin to an expedited
trial on the paper record, and the Court must make fact findings where necessary.” Baird v.
United States, 77 Fed. Cl. 114, 116 (2007). The Court’s inquiry is “whether, given all the
disputed and undisputed facts, a party has met its burden of proof based on the evidence in the
record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006). Unlike a summary
judgment proceeding, genuine issues of material fact will not foreclose judgment on the
administrative record. Bannum, Inc., 404 F.3d at 1356.
The Court reviews the administrative record to determine whether the decision of military
disability evaluation boards, including the PEB, is arbitrary, capricious, unsupported by
substantial evidence, or contrary to law. See Chappell v. Wallace, 462 U.S. 296, 303 (1983);
Strand v. United States, 951 F.3d 1347, 1351 (Fed. Cir. 2020), cert. denied, No. 20-111, 2020
WL 7132264 (U.S. Dec. 7, 2020) (citing Strickland v. United States, 423 F.3d 1335, 1343 (Fed.
Cir. 2005)); see also Joslyn v. United States, 110 Fed. Cl. 372, 387 (2013) (citing cases for the
proposition that the same standard of review applies to judicial review of decisions of the PEB
and of the military correction boards).
The scope of this judicial review is a deferential one, as “determining who is fit or unfit
to serve in the armed services is not a judicial province.” See Heisig v. United States, 719 F.2d
1153, 1156 (Fed. Cir. 1983). The arbitrary and capricious standard of review “does not require a
reweighing of the evidence, but a determination whether the conclusion being reviewed is
supported by substantial evidence.” Id. at 1157. In determining whether the conclusion is
supported by substantial evidence, “all of the competent evidence must be considered . . . and
whether or not it supports the challenged conclusion.” Id. (emphasis omitted). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). This Court may not “substitute [its] judgment for that of the
military departments when reasonable minds could reach differing conclusions on the same
evidence.” Heisig, 719 F.2d at 1156.
III. Merits
The issue before the Court is whether substantial evidence supports the Navy’s
determination that Mr. Nyan was not unable, “due to physical disability . . . to reasonably
perform the duties of his[] office, grade, rank, or rating.” SECNAVINST 1850.4E encl. 3,
§ 3302(a). 5 It is clear on the record that three of the four remaining factors to be considered when
5
Paradoxically, this is both the standard for a finding of unfitness and one of the four factors that
must be considered in making the fitness determination. See SECNAVINST 1850.4E encl. 3,
§ 3304(a)(1) (“The member, due to physical disability, is unable to reasonably perform the duties
of his or her office, grade, rank, or rating.”).
9
determining “whether a member can reasonably perform his or her duties” tip in favor of a
finding of unfitness. Id. § 3304(a). Specifically: (1) a medical treatment facility found that Mr.
Nyan’s medical conditions prohibited him from taking all or a portion of the Navy’s physical
readiness test; (2) the Navy determined that he was not deployable; and (3) he could no longer
perform his specialized duties because of his medical conditions. See id. § 3304(a)(2)–(4). 6
The Navy nonetheless found Mr. Nyan was not unfit for duty because it concluded that he could
still reasonably perform the duties of a Hospital Corpsman at the E4 grade. This conclusion is
not supported by substantial evidence.
Because this case was never brought before a review board, the Court’s review is of the
findings of the IPEB, which are recorded on a form entitled “Findings of Physical Evaluation
Board Proceedings.” AR 135–36. The form includes a section in which the Presiding Officer and
the Medical Officer provided brief comments to support their conclusions that Mr. Nyan was fit,
as well as “work cards” on which they each wrote a sentence or two summarizing the findings of
the MEB and the recommendations contained in the NMA. Id. at 135–40.
Based on the limited explanation that can be derived from the form, the IPEB’s
conclusion that Mr. Nyan was fit—i.e., that he was able “to reasonably perform the duties of
[his] office, grade, rank, or rating,” SECNAVINST 1850.4E encl. 3, § 3302—appears to have
been based largely if not entirely on comments contained in his most recent performance
evaluation, which characterized as “exceptional” Mr. Nyan’s performance of administrative tasks
during his limited duty assignment, AR 3345. See id. at 136 (IPEB Medical Officer’s comments)
(“Per the most recent evaluation, the member is performing in an above average fashion and is
working in rate.”); id. (IPEB Presiding Officer’s comments) (“HM3 Nyan’s most recent
evaluation . . . shows him as an above average performer.”).
So far as the Court can discern, the IPEB did not make any findings regarding what
duties a Hospital Corpsman at the E4 grade is expected to perform, notwithstanding that the
Manual states that “[e]ach case [involving a fitness determination] is considered by relating the
nature and degree of physical disability of the member to the requirements and duties that
member may reasonably be expected to perform in his or her office, grade, rank or rating.”
SECNAVINST 1850.4E encl. 3, § 3301. To the contrary, the comments on the form reflect
consideration only of whether Mr. Nyan could perform the administrative tasks which the Navy
gave him to do as part of his limited duty assignment. But the Navy assigned him limited duties,
6
The government concedes that Mr. Nyan was unable to deploy or to take a physical readiness
or fitness test. See Def.’s Reply in Support of Mot. for J. upon the Admin. R., Resp. to Pl.’s
Cross-Mot. for J. upon the Admin. R., and Resp. to Pl.’s Mot. to Suppl. the Admin R. (“Def.’s
Resp. & Reply”) at 5, ECF No. 15. Further, the Navy requires Hospital Corpsmen with a Field
Medical Service Technician specialty to “[p]rovide[] medical . . . services for personnel in field
units.” NAVPERS 18068F, vol. II, ch. 40 at 190 (Def.’s MJAR App. at DA370–660). The
evidence shows that Mr. Nyan could not perform these duties. See, e.g., AR 186 (NMA)
(“Because of his medical conditions [Mr. Nyan] is not able to perform his duties as a Fleet
Marine Force Corpsman”); id. at 163 (medical record stating that Mr. Nyan was required to
“serve with the [Fleet Marine Force], and these demands would worsen his pain”).
10
the Court presumes, precisely because his physical disabilities prevented him from performing
the full range of duties that he would otherwise have been expected to perform as a Hospital
Corpsman at the E4 grade. See AR 513 (stating Mr. Nyan’s limitations from full duty, among
other things, required him not to engage in heavy lifting, prolonged standing, watchstanding, or
field operations).
Further, the scope of a Hospital Corpsman’s duties as set forth in the Navy’s official
issuances includes a broad range of functions consisting of, among other things, “assist[ing] in
the prevention and treatment of disease, disability, and injury using first aid and preventive
medicine procedures”; “assist[ing] in the prevention and treatment of dental conditions”; and
“provid[ing] patient care” and “assist[ance] in the administration of medicinal and parenteral
solutions.” NAVPERS 18068F, vol. I, ch. 40 at HM-3 (Def.’s MJAR App. at DA360–69). The
functions also include “the transportation of the sick and injured,” id., as well as “serv[ice] as
battlefield Corpsmen with Marine Corps and Naval Construction Forces, rendering emergency
medical treatment to include initial treatment in a combat environment,” id. at HM-5.
The government emphasizes that the occupational standards for Hospital Corpsmen states
that they “function as clinical or specialty technicians, administrative personnel, and healthcare
providers, assisting health care professionals in providing medical care to Navy, Marine Corps,
and Joint Services personnel of the operational forces, shore activities, and other beneficiaries.”
Id. (emphasis added). Therefore, according to the government, Mr. Nyan was working within the
scope of his rating when he was performing purely administrative duties. Def.’s Mot. for J. Upon
the Admin. R. at 9, ECF No. 12.
There are two problems with this argument. First, the question is not whether Mr. Nyan
was disabled from performing any and all work that a Hospital Corpsman might be assigned to
perform, but rather whether he was disabled from performing work that a Hospital Corpsman at
the E4 grade could “reasonably be expected to perform.” SECNAVINST 1850.4E encl. 3, §
3301. Second, even if some Hospital Corpsman serve as “administrative personnel,” there is
nothing in the record to show that to be true for those Hospital Corpsmen who have attained the
E4 grade. To the contrary, the evidence of record shows that, as a Hospital Corpsman at the E4
grade, Mr. Nyan was expected to perform a wide range of duties that went beyond sitting at a
desk doing paperwork. According to the Manual of the Medical Department of the United States
Navy (“NAVMED”) P-117, at Article 9-9 (entitled “Duties of Hospital Corps Rates”), a Hospital
Corpsman Third Class (HM3) “is normally assigned to duties involving direct patient care and to
clinical services or [on-the-job training] in the more advanced clinical procedures.” NAVMED
P-117, ch. 9 at 9-7, https://www.med.navy.mil/directives/Pages/NAVMEDP-MANMED.aspx. In
fact, Article 9-10 states that “Hospital Corps personnel who cannot perform effectively in the
patient care environment should be recommended for administrative discharge or change in
rating as appropriate, rather than arbitrarily reassigning them to non-patient care functions.” Id.
at 9-8. 7
7
The government observes that the Manual of the Medical Department “is a reference manual
that does not purport to be, and is not, a binding Navy regulation with the force of law,” and that
it does not, in any event, govern the disability evaluation process. Def.’s Resp. & Reply at 3. The
Court agrees that the Manual of the Medical Department does not have the force and effect of
11
Additionally, it does not appear that the IPEB took into consideration Mr. Nyan’s grade
level when it rendered its fitness determination. The Navy’s Enlisted Occupational Standards for
Hospital Corpsmen provide an extensive list of the “core tasks” of Hospital Corpsmen at various
grade levels, including those at Mr. Nyan’s grade (E4). NAVPERS 18068F, vol. I, ch. 40 at HM-
5–HM-10. The vast majority of the core tasks specified for Hospital Corpsmen, E4, involve the
provision of direct patient care, preventative occupational medicine, and other medical services.
While the core tasks also include some administrative work (i.e., archiving records and preparing
reports), those tasks appear to be incidental to the core patient care tasks.
Moreover, the Court finds instructive that the duties Mr. Nyan performed before the
Navy placed him on limited duty were not administrative in nature. The record shows that his
regular responsibilities involved a broad range of the patient care duties encompassed by his
rating and grade. For example, his performance evaluation for the period between June 16, 2012
to June 15, 2013 stated that, “[a]s Senior Corpsman assigned to Sick Call Section,” Mr. Nyan
had “spearheaded the team that had over 5000 patient encounters” and had “[p]ersonally
examined and treated over 600 patients.” AR 3243. Similarly, his performance evaluation from a
year later (June 16, 2014 to June 15, 2015) reflects that during that time he had “provided care to
over 200 patients per month,” “supervised [three Hospitalmen] on completion of daily tasks,”
and “[led] his team in over 2000 patient encounters.” Id. at 3219.
By comparison, during Mr. Nyan’s limited duty assignment, he served as “Quality
Management’s Medical Support Staff assistant.” Id. at 3345 (performance evaluation from June
16, 2016 to June 10, 2017). In that capacity, he conducted monthly audits, and verified and
maintained credentialing and privileging applications, as well as medical licenses and
certifications for staff at the Naval Hospital. Id.
Additionally, the Navy physicians who examined Mr. Nyan seemed to have understood
that Hospital Corpsmen at the E4 grade are expected to do more than sit at a desk. They
remarked that his back pain “limit[ed] his ability to” perform certain requirements of his job like
“lifting/transferring patients” and “prolonged sitting/standing.” Id. at 163. Additionally, the
neurology addendum to the MEB report stated that Mr. Nyan’s chronic migraines rendered him
“unable to perform the duties on the hospital ward expected of him as a hospital corpsman.” Id.
at 181.
Perhaps most importantly, the IPEB also appears to have ignored Navy regulations that
required it to give significant weight to the NMA submitted by Mr. Nyan’s commanding officer,
Dr. Baasen. The NMA is “a statement describing the impact of the service member’s medical
condition upon the member’s ability to perform his/her normal military duties and to deploy.”
SECNAVINST 1850.4E encl. 11, § 11001(a). The Manual provides that the portion of the NMA
that “contains the commanding officer’s comments . . . is the most critical and influential
information in the NMA” because these comments “capture his/her observations and those of
other senior command personnel as to how the service member’s medical impairments have or
law. But Mr. Nyan is not seeking to enforce its provisions. Rather, he cites the Manual of the
Medical Department as evidence of what duties the Navy expects Hospital Corpsmen to perform.
Such evidence is directly relevant to the fitness determination under section 3301 of the Manual.
12
have not impacted the member’s ability to function within the command.” Id. § 11001(d)(2).
“These comments are vital in assisting the PEB to make the proper determination of medically
Fit or Unfit.” Id.
Here, Dr. Baasen confirmed in his NMA that, during his limited duty assignment, Mr.
Nyan was performing outside of his Hospital Corpsman rating and further that he was unable to
perform within his rating. See AR 184. Dr. Baasen observed that Mr. Nyan’s medical conditions,
including his “chronic migraines, chronic back pain, and mental health concerns,” did “not allow
him to fully perform all duties and aspects of his rate at shore or sea commands.” Id. at 186.
The Court notes that the work card that the Presiding Officer of the IPEB filled out
reflects that he understood that the NMA stated that Mr. Nyan was not working in rate and was
unable to work in rate. See id. at 139. But there is no explanation why he did not follow the
NMA’s recommendation. Worse, the other member of the IPEB, the Medical Officer, appears to
have believed that the NMA indicated that Mr. Nyan was, in fact, working in rate. See id. at 138.
And he also commented on his “work card” that based on the MEB report there was “insufficient
evidence of missed work,” even though Mr. Nyan’s commanding officer stated that he missed an
average of ten hours a week due to his ailments. Id. 8
In short, the IPEB’s fitness determination is inconsistent with the standards set forth in
the Manual and is not supported by substantial evidence in the record before the Court. For that
reason, the Court will grant Mr. Nyan’s motion for judgment on the administrative record.
CONCLUSION
On the basis of the foregoing, Mr. Nyan’s motion for judgment on the administrative
record is GRANTED, ECF No. 13, and the government’s motion for judgment on the
administrative record is DENIED, ECF No. 12. Mr. Nyan’s motion to supplement the
administrative record is DENIED as moot, ECF No. 14.
The Court DIRECTS the United States Department of the Navy to correct Mr. Nyan’s
military records to reflect retirement based on medical disability on June 10, 2017 (the date of
his discharge) and to award him the appropriate backpay and other benefits. The Clerk is directed
to enter judgment accordingly.
8
Both the Presiding Officer and the Medical Officer noted on their work cards that the MEB had
indicated that Mr. Nyan had “over-reported” his mental health symptoms. See AR 138–39. At
the oral argument on the cross motions for judgment on the administrative record, the
government conceded that the over-reporting concern is relevant only to the appropriate mental
health diagnosis and not to Mr. Nyan’s fitness for duty based on his lower back problems and
migraine headaches. Oral Arg. Tr. at 12:5–13:8, ECF No. 20.
13
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Chief Judge
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