Keltner v. The United States
| Decision Date | 16 May 2023 |
| Docket Number | 19-663C |
| Parties | JOEL V. KELTNER, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | Court of Federal Claims |
Elizabeth E. Olien, Orrick, Herrington & Sutcliffe LLP Washington, D.C., for Plaintiff. With her on the briefs were Caitlin Kasmar and Graham Gardner. Of counsel were Esther Leibfarth, Rochelle Bobroff, and David Sonenshine, National Veterans Legal Services Program, Washington, D.C.
Joshua W. Moore, Commercial Litigation Branch, Civil Division United States Department of Justice, Washington, D.C., for Defendant. With him on the briefs were Brian M. Boynton Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, and Douglas K. Mickle, Assistant Director. Of counsel was Major Scott W. Medlyn, Civil Law and Litigation Domain, Military Personnel Litigation Branch, United States Air Force.
The Department of Defense ("DoD") and its component agencies - including the Department of the Air Force[1] - manage the Disability Evaluation System ("DES"). Rooted in Chapter 61 of Title 10 of the United States Code, the DES prescribes the standards and processes the military uses to determine whether a service member is fit for duty or should be retired or separated due to a disability. See 10 U.S.C. §§ 1201-22;[2]see also Torres v. Del Toro, 2022 WL 5167371, at *1 (D.D.C. Oct. 5, 2022) ().
Plaintiff, Joel V. Keltner, seeks disability retirement pay and benefits resulting from post-traumatic stress disorder ("PTSD") incurred in the line of duty. Mr. Keltner alleges that the United States - acting by and through the Air Force - has unlawfully denied him such pay and benefits under the DES. The parties filed cross-motions for judgment on the administrative record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims ("RCFC").
For the reasons set forth below, Mr. Keltner prevails. The Air Force Board for Correction of Military Records ("AFBCMR" or the "Board") has the authority to correct Mr. Keltner's record to remedy the Air Force's failure to follow statutory and regulatory procedures in handling his disability. That means, as the government argues, the Board generally has the power to correct a service member's records not only to retroactively add and remove a service member from the Temporary Disability Retired List ("TDRL"), but also to determine his or her disability rating. Based on the administrative record, however, the Board's determination - that Mr. Keltner is entitled only to a ten percent disability rating as of August 31, 2016 - is arbitrary, capricious, or otherwise contrary to law. Whether this Court should remand this matter, yet again, or enter judgment for Mr. Keltner is an issue that requires further input from the parties.
The Court begins with a summary of the DES. Shakespeare was undoubtedly correct that "brevity is the soul of wit,"[3] and although we will attempt to be as brief as possible, there is nothing amusing about this system's complexity. Indeed, describing the DES as byzantine is an understatement that may be unkind even to that ancient empire.
The DES is not described in one central document, but rather its "details . . . are defined through rules generated by the Secretary of Defense and secretaries of the military services pursuant to Congressional authorization." Torres, 2022 WL 5167371, at *1 (citing 10 U.S.C. §§ 1216, 1222(c)); see also Sabo v. United States, 127 Fed.Cl. 606, 610 (2016) (). DoD implements the DES via various directives,[4]instructions,[5] and manuals.[6] Torres, 2022 WL 5167371, at *1.[7] The Air Force, in turn, has issued Air Force Instruction ("AFI") 36-3212, which "prescribes guidance on retiring, discharging, or retaining service members who, because of a physical disability, are unfit to perform the duties required of them" and "provides for the required periodic physical examinations and final disposition of members on the [TDRL]."[8]
Service members with putative disabilities proceed through one of two processes: the Legacy Disability Evaluation System ("LDES") or the Integrated Disability Evaluation System ("IDES"). DoDI 1332.18, § 1.2.b. If a service member is processed through the LDES, the DoD alone determines whether ill or injured service members are fit for continued military service and entitled to disability benefits.[9] The IDES, by contrast, is integrated in that it is jointly implemented by both the DoD and the United States Department of Veterans Affairs ("VA"). In particular, the IDES is "[t]he joint DoD/VA process by which DoD determines whether ill or injured Service members are fit for continued military service, and the DoD and VA determine appropriate benefits for Service members who are separated or retired for disability." Id. § G.2 ("Definitions") (emphasis added).[10] The default path is "through the IDES unless the Secretary of the Military Department concerned" makes certain determinations. Id. § 1.2.c; see also AFI 36-3212, ¶ 1.1.2.1 ("The LDES process is an exception to the IDES policy."). This case implicates the IDES only.
In general, the DES process is comprised of: (1) a medical evaluation, including a medical evaluation board ("MEB") review, impartial medical reviews, and an opportunity for the service member to provide a rebuttal; and (2) a disability evaluation, including a physical evaluation board ("PEB") review, counseling, case management, adjudication, and a final disposition. DoDI 1332.18, § 3.1.
The MEB "[r]eview[s] all available medical evidence, including examinations completed as part of DES processing, and document[s] whether the Service member has medical conditions that either singularly, collectively, or through combined effect, may prevent them from reasonably performing the duties of their office, grade, rank, or rating." DoDI 1332.18, § 3.2.a(1) (emphasis added). If the MEB determines that a service member has such condition(s), "the MEB will refer the case to the PEB." Id. § 3.2.d.[11]
The purpose of the PEB is to "determine the fitness of Service members with medical conditions that are, either singularly, collectively, or through combined effect, potentially unfitting and, for members determined unfit, determine their eligibility for compensation." DoDI 1332.18, § 3.3.a (emphasis added) (citing 10 U.S.C. Ch. 61). There are two types of PEBs: the informal physical evaluation board ("IPEB") and the formal physical evaluation board ("FPEB"). The IPEB first reviews the service member's "case file to make initial findings and recommendations without the Service member present." Id. § 3.3.b(1). The service member may accept the IPEB's findings, rebut them, "request a [FPEB] if found fit, or, if found unfit, demand a FPEB in accordance with [10 U.S.C. § 1214]." Id. In that regard, 10 U.S.C. § 1214 provides that "[n]o member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it."[12]
As part of the FPEB proceedings, a service member is "entitled to address issues pertaining to their fitness, the percentage of disability, degree or stability of disability, administrative determinations, a determination that their injury or disease was non-duty related, or that their injury or disease was combat-related or took place in a combat-zone." DoDI 1332.18, § 3.3.c(4). The FPEB process also includes several procedural requirements and protections for service members, such as the right: (1) to "[b]e represented by government-appointed counsel provided by the Military Department concerned"; (2) "to remain silent"; and (3) to "[r]equest witnesses and introduce depositions, documents, or other evidence, and to question all witnesses who testify at the hearing." Id. § 3.3.c(5).[13]PEBs "must convey" their "findings and rationale in an orderly and itemized fashion, with specific attention to each issue presented by the Service member regarding their case." DoDI 1332.18, § 3.3.f ("Record of Proceedings").
In general, a service member is unfit for duty where: (1) "[t]he evidence establishes that the member, due to disability, is unable to reasonably perform the duties of their office, grade, rank, or rating"; or (2) the evidence establishes that the disability either (a) "[r]epresents a decided medical risk to their health or to the welfare or safety of other members," or (b) "[i]mposes unreasonable requirements on the military to maintain or protect the Service member." DoDI 1332.18, § 6.2 ("General Criteria for Making Unfitness Determinations"). In assessing fitness for duty, the PEB "will consider all relevant evidence." Id. § 6.3.
If a service member is found to be unfit, "a determination will be made as to the Service member's entitlement to separation or retirement for disability with benefits pursuant to [10 U.S.C. ch. 61]." DoDI 1332.18, § 6.7.[14] Whether a service member is retired or separated depends on the service member's years of service and the assigned disability rating percentage. See 10 U.S.C. § 1201(b) (). A service member receives a disability retirement if he or she has "at least 20 years of service" or a disability of "at least 30...
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