Fuentes v. United States

Decision Date10 December 2021
Docket Number20-230C
CourtCourt of Federal Claims
PartiesBRANDON FUENTES, Plaintiff, v. UNITED STATES, Defendant.

Reissued for Publication: December 20, 2021[1]

Evan R. Sherwood, Covington & Burling LLP, Washington D.C. for plaintiff. With him were Esther Leibfarth, National Veterans Legal Services Program, Washington, D.C., David Sonenshine, National Veterans Legal Services Program Washington, D.C., and Shelby Anderson, Covington &amp Burling LLP, Washington, D.C. Andrew J. Henley, Covington & Burling LLP, Washington D.C., and Steven J. Rosenbaum, Covington & Burling LLP, Washington D.C., of counsel.

Vincent D. Phillips, Jr., Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Douglas K. Mickle, Assistant Director, Patricia M. McCarthy, Director, Commercial Litigation Branch, and Brian M. Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C. Jahn C. Olson, Lieutenant Colonel, United States Marine Corps, General Litigation Division, Office of the Judge Advocate General, of counsel.

OPINION

MARIAN BLANK HORN JUDGE

The above captioned case was filed by Brandon Fuentes, a former rifleman in the United States Marine Corps (USMC) on February 28, 2020. In his original complaint, plaintiff alleged that the United States Navy (the Navy) incorrectly determined plaintiff's 10% disability rating when he was medically discharged from the USMC on February 1, 2019. The case was remanded to the Board for Corrections of Naval Records (BCNR), and the BCNR issued a decision on May 3, 2021 rejecting his claims to revise his allegedly incorrect disability rating and benefits compensation under 10 U.S.C. § 1201 (2018). Plaintiff filed an amended complaint in this court on July 30, 2021 seeking review of the May 3, 2021 BCNR decision. In his first amended complaint, plaintiff alleges that

[o]n remand, the Navy's failure to consider the collective effect of Mr. Fuentes' injuries under 10 U.S.C. § 1216a(b) when determining his medical unfitness was arbitrary, capricious, unsupported by substantial evidence, or contrary to law, and thus the Navy unreasonably calculated his disability rating percentage based on less than all of those injuries, and thereby deprived him of disability retirement pay and benefits to which he was entitled under 10 U.S.C. § 1201.
FINDINGS OF FACT

Plaintiff served in the USMC from January 2012 until February 2019 when he received an honorable discharge on medical grounds. Plaintiff served as a rifleman for approximately six years and on limited duty as a security guard for a year. In recognition of his service, plaintiff was awarded the Navy and Marine Corps Achievement Medal, Navy Unit Commendation, Marine Corps Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Extraordinary Medal (Bahrain), Global War on Terrorism Service Medal, Korean Defense Service Medal, Sea Service Deployment Ribbon, multiple letters of Appreciation, and a Meritorious Mast.[2] During his service, plaintiff "was diagnosed with three conditions - temporomandibular joint syndrome or disorder ('TMJ'), low back strain, and left knee pain."

Plaintiff alleges in January 2014, he "injured his back during a training exercise." Plaintiff asserts that while he did not immediately seek treatment for the injury, "it caused him pain during physical activity and would continue to do so throughout his career." Plaintiff also indicates he was injured on April 9, 2014 when he underwent surgery to remove three wisdom teeth, suffering severe complications including complete kidney failure, a sepsis infection, and an embolism.[3] Plaintiff states that, as a result of the sepsis, he developed Temporomandibular Joint syndrome (TMJ), a jaw lockage condition that causes severe pain and frequent numbness on the left side of his face. He was officially diagnosed with TMJ on August 21, 2017, by Dr. Kurt Uyehara, a year and a half before his discharge.

Separately, during an Advanced Infantry Course between October and December 2015, plaintiff states he fell down a hill and displaced a small rock that had been asymptomatically lodged in his left knee since childhood. Plaintiff sought medical treatment from the corpsman, [4] who, according to plaintiff, advised plaintiff to "take it up after deployment so it wouldn't affect my leadership abilities in my platoon and my position." After experiencing pain for approximately eight months, plaintiff sought treatment for his knee on June 23, 2016. Plaintiff went through two procedures to remove the object in July and August 2016, respectively. Following the procedures, plaintiff received physical therapy for his increased knee pain, and was placed on Temporary Limited Duty in December 2016. Plaintiff's injury did not improve during physical therapy, and he was referred to Dr. Quattrone, a Sports Medicine specialist, in February 2017, to have his injury evaluated. Dr. Quattrone referred plaintiff to a recovery specialist, who performed a "dynamic" ultrasound analysis of plaintiff's left knee and reported no obvious cause of the pain and ordered a magnetic resonance imaging (MRI) to "definitively evaluate" the presence or absence of left distal quadriceps tendinopathy. He also recommended applying Capsaicin cream to the knee, 3-4 weeks of lidocaine steroid injections, and prolotherapy injections.[5] Plaintiff went to a follow-up appointment with Dr. Constantini on March 23, 2017, during which plaintiff reported that, despite multiple treatments and therapy, plaintiff's "pain has not improved with any treatment thus far. He states he is unable to walk/run without an increase in pain." Plaintiff reported during this exam that he was not able to return to his prior activity level.

In April 2017, plaintiff followed up with Dr. Quattrone regarding his limited duty status, reporting persistent back and knee pain. Plaintiff again sought treatment for his back pain in May 2017 with Dr. Constantini, who noted that plaintiff was "NOT deployable" based on his medical profile. (capitalization in original). Dr. Constantini reported that plaintiff's back pain was "most consistent" with injury due to increased exercise. In June 2017, plaintiff once again reported back pain during his limited duty status follow up visit, and subsequently restarted physical therapy. Further, Dr. Quattrone recommended a second round of limited duty status to give plaintiff's prolotherapy more time to work or, in the alternative, to consider referring plaintiff to the Physical Evaluation Board (PEB) for medical separation.

Section 1201 of Title 10 provides that the Secretary of the Navy, upon finding that a 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 or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay." 10 U.S.C. § 1201(a) (2018). To qualify for medical retirement, as opposed to medical separation, the Service member must receive a 30 percent disability rating for the conditions that impair the Service member's ability to perform his or her military duties. See id. § 1201(b)(3)(B). The Department of the Navy Disability Evaluation Manual contained in SECNAVINST 1850.4E governed the disability process for members of the USMC. See SECNAVINST 1850.4E (2002).[6] SECNAVINST 1850.4E states that the disability evaluation process begins with a Medical Evaluation Board (MEB), which must find that the Service member's fitness for continued service in the USMC is "questionable by reason of physical or mental impairment." SECNAVINST 1850.4E Encl. 3, § 3201(a). As explained in SECNAVINST 1850.4E, an MEB is comprised of physicians and is convened to "evaluate and report on the diagnosis; prognosis for return to full duty; plan for further treatment, rehabilitation, or convalescence; estimate of the length of further disability; and medical recommendation for disposition of such members." SECNAVINST 1850.4E Encl. 2, § 2043. As further explained on the MEB page of the Military Health System (MHS) website:

The Medical Evaluation Board (MEB) is a process designed to determine whether a Service member's long-term medical condition enables him/her to continue to meet medical retention standards, in accordance with military service regulations. It also provides an opportunity for military physicians to clearly document all care and treatments received prior to MEB referral and any duty limitations their condition may cause.
The MEB is considered an informal board because, by itself, it does not drive any personnel actions. The findings of the MEB are referred to the Physical Evaluation Board (PEB), which formally determines fitness for continued service and eligibility for disability compensation. The MEB is convened once the medical retention decision point is reached or when the Service member's physician thinks the Service member will not be able to return to duty for medical reasons. The board evaluates a Service member's medical history and condition, documents the extent of the injury or illness, and decides whether the Service member's medical condition is severe enough to impede his/her ability to continue serving in a full duty capacity.[7]

(capitalization in original).

According to the MHS website, if the MEB "determines the Service member does not meet retention standards for his/her military occupational specialty (MOS)/military occupational classification (MOC), then the Service member will be referred to a Physical Evaluation Board (PEB)."[8] The MHS website further notes that the PEB also determines...

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