Cook v. United States
| Decision Date | 21 October 2015 |
| Docket Number | No. 13-523C,13-523C |
| Parties | RONALD C. COOK, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Motion to Dismiss; Mootness; Failure to State a Claim; Motion for Judgment on the Administrative Record; Waiver; Application of Sections 4.129 and 4.130 of the Veterans Affairs Schedule for Rating Disabilities to Soldiers Discharged With PTSD Prior to the Enactment of the Wounded Warrior Act in 2008; 10 U.S.C. Chapter 61; Authority of the Physical Disability Board of Review Under 10 U.S.C. § 1554a; Army Acted Contrary to Law
Lee F. Berger, Washington, DC, for plaintiff.
Douglas G. Edelschick, United States Department of Justice, Washington, DC, for defendant.
Plaintiff Ronald C. Cook was medically separated from the United States Army ("Army") for posttraumatic stress disorder ("PTSD") resulting from his service in Iraq during Operation Iraqi Freedom. Because the Army determined that plaintiff suffered from mild PTSD, it assigned him a 10% disability rating, which is below the threshold to qualify for disability retirement. Plaintiff now seeks the correction of his military records to reflect a higher disability rating and entitlement to disability retirement. Defendant moves to dismiss one of plaintiff's claims, and the parties cross-move for judgment on the administrative record on both of plaintiff's claims. Defendant further moves to strike a document attached to one of plaintiff's briefs. For the reasons set forth below, the court denies defendant's motion to dismiss, grants in part and denies in part defendant's motion for judgment on the administrative record, grants in part and denies in part plaintiff's cross-motion for judgment on the administrative record, and denies defendant's motion to strike as moot. This case is remanded to the Army for the correction of plaintiff's military records.
When a physical disability renders a member of the military unfit to perform his or her duties, the member may be separated or retired from service. 10 U.S.C. ch. 61 (2006). A member's fitness for duty and eligibility for separation or retirement is governed by regulations promulgated by the Secretary of the military department to which the member belongs.1 Id. § 1216. Relevant here is Army Regulation 635-40, "Physical Evaluation for Retention, Retirement, or Separation" (Feb. 8, 2006) ("Army Regulation 635-40").
The Army's disability evaluation process begins with a soldier's referral to a medical treatment facility for evaluation. Army Regulation 635-40, ¶¶ 4-6 to 4-8. If the commander of the medical treatment facility determines that the soldier may not be "medically qualified to perform duty," the commander will refer the soldier to a Medical Evaluation Board ("MEB"). Id. ¶ 4-9. The MEB documents the soldier's medical condition and duty limitations, and then evaluates the solider's medical condition against specified retention criteria. Id. ¶ 4-10. If it determines that the soldier does not meet the retention standards, the MEB refers the soldier to a Physical Evaluation Board ("PEB"). Id. ¶¶ 4-10, 4-13(a).
PEBs are fact-finding boards charged with "[i]nvestigating the nature, cause, degree of severity, and probable permanency" of a soldier's disability; "[e]valuating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating"; "[p]roviding a full and fair hearing for the Soldier as required by" 10 U.S.C. § 1214; and "[m]aking findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability." Id. ¶ 4-17(a). In making the required findings and recommendations, the PEB must first determine whether the solider is "physically fit or unfit to perform" his or her duties. Id. ¶ 4-19(a)(1), (d)(1). If the PEB determines that the soldier is unfit for duty, it must also determine, among other things, "[w]hether the disability is of a permanent nature," id. ¶ 4-19(a)(2), (h), and "the rating for each compensable disability," id. ¶ 4-19(f)(5), (i); accord id. ¶ B-3(a). The PEB assigns disability ratings, which reflect the severity of the disabilities, using the United States Department of Veterans Affairs Schedule for Rating Disabilities ("VASRD"). Id. ¶¶ 4-19(f)(5), (i), B-3(a).
A case referred by an MEB is considered first by an informal PEB. Id. ¶ 4-20(a). Informal PEBs record their findings and recommendations on a DA Form 199, "Physical Evaluation Board (PEB) Proceedings," which is then forwarded to, among others, the soldier and the soldier's PEB liaison officer. Id. ¶ 4-20(b). Upon receipt of the DA Form 199, the solider may elect to (1) concur with the findings and recommendations and waive a formal hearing; (2) disagree with the findings and recommendations, submit a rebuttal statement, and waive a formal hearing; (3) demand a formal hearing; and/or (4) have representation by counsel if a hearing is demanded. Id. ¶ 4-20(c)(1). The soldier's PEB liaison officer must counsel the soldier regarding his or her options, the processing procedures, and the benefits that would flow from the informal PEB's findings and recommendations. Id. ¶ 4-20(d)(1). After the soldier makes an election on the DA Form 199, the PEB liaison officer must sign the form and then forward it to the PEB. Id. ¶ 4-20(d)(2). If, as happened in this case, the soldier concurs with the informal PEB's findings and recommendations and waives a formal hearing, "the proceedings will be approved for the [Secretary of the Army] and forwarded to [the Army's Human Resources Command] for final disposition." Id. ¶ 4-20(e)(1). Final dispositions include permanent retirement, placement on the temporary disability retirement list ("TDRL"), and separation. Id. ¶ 4-24(b) (citing 10 U.S.C. §§ 1201-1206). Of particular relevance in this case, a soldier with a permanent and stable disability and at least a 30% disability rating may be retired with retired pay, 10 U.S.C. § 1201, a soldier who has been assigned at least a 30% disability rating but whose disability is not permanent and stable may be placed on the TDRL with retired pay, id. § 1202, and a soldier with a permanent and stable disability and a disability rating of less than 30% may be separated from service with severance pay, id. § 1203.
Plaintiff enlisted in the Army on May 1, 2000. Admin. R. Vol. I 194. He served two tours of duty overseas during Operation Iraqi Freedom. Id. During his first deployment-from April 2003 to February 2004-plaintiff served at Camp Victory in Kuwait and Al Asad Airbase in Iraq. Id. at 88. Upon his return, plaintiff underwent a health assessment in which he reported that during his deployment, he saw an enemy combatant "wounded, killed or dead"; did not engage in direct combat where he discharged his weapon; felt that he was "in great danger of being killed"; and had seen a "destroyed military vehicle." Id. at 89-90. Nevertheless, he indicated that he did not have any mental health concerns. Id. Indeed, he represented that he was not "interested in receiving help for a stress, emotional, alcohol, or family problem" and that he had not sought and did not intend to seek "counseling or care for [his] mental health." Id. at 90; accord id. at 141 (), 170 (same).
During his second deployment-from February 2005 to February 2006-plaintiff served in Baghdad, Iraq. Id. at 160. During his February 16, 2006 postdeployment health assessment, plaintiff indicated that he did not see anyone wounded, killed, or dead; did not discharge his weapon in direct combat; and did not feel in danger of being killed. Id. He did, however, see amilitary vehicle that had been destroyed. Id. Despite reporting fewer exposures to potentially traumatic events, plaintiff reported some mental health issues. Id. Specifically, he reported having an experience that "was so frightening, horrible, or upsetting" that, in the past month, he had nightmares or unwanted thoughts about the experience; "[t]ried hard not to think about" the experience or "went out of [his] way to avoid situations that remind[ed]" him of the experience; and "[f]elt numb or detached from others, activities, or [his] surroundings." Id. Nevertheless, he indicated that he was not "interested in receiving help for a stress, emotional, alcohol, or family problem" and that he had not sought and did not intend to seek "counseling or care for [his] mental health." Id.
Eventually, in June 2006, plaintiff underwent a comprehensive psychiatric evaluation. Id. at 15, 134. Over the following eight months, plaintiff attended a number of individual psychiatric therapy sessions and underwent a second comprehensive psychiatric evaluation. Id. During these evaluations and therapy sessions, plaintiff was diagnosed with the following "chronic illnesses": obsessive compulsive disorder ("OCD"), chronic PTSD, depression, insomnia related to a mental disorder, and an anxiety disorder. Id.
Plaintiff was ultimately referred to an MEB. In considering whether plaintiff met the relevant retention standards, the MEB considered, among other documents, the results of a mental health examination, the results of a physical examination, and letters from three of plaintiff's commanding officers. Id. at 8, 15-24, 26-28.
With respect to plaintiff's mental health, plaintiff's psychologist provided a report to the MEB that described the development of plaintiff's mental health issues:
In the past, [plaintiff ("SM" or "PT")] has been diagnosed with PTSD, Anxiety Disorder [Not Otherwise Specified], OCD and Major Depressive Disorder. It is clear that SM suffers from both anxiety and depression. . . . SM reported the following symptoms of PTSD: A-on 23 JUN 05 SM was told that SGT Phelps got blown up and he lost one arm,...
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