Porter v. United States
| Decision Date | 18 April 2017 |
| Docket Number | No. 15-576C,15-576C |
| Parties | CHRISTOPHER PORTER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | Court of Federal Claims |
ORIGINAL
(Pro Se)
Keywords: Pro Se Complaint; Military Pay Act; Disability Retirement Pay; VA Benefits Estimate; Combat-Related Special Compensation.
Christopher A. Porter, Miramar, FL, Plaintiff pro se.
Sonia M. Orfield, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, with whom were Steven J. Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General, for Defendant. Lt. Zachary Dembo, Office of the Judge Advocate General, United States Navy, Washington, DC, Of Counsel.
In 2011, Plaintiff Christopher Porter was discharged from the United States Navy due to a combination of service-connected disabling conditions. In 2013, Mr. Porter asked the Board for Correction of Naval Records (BCNR) to correct his naval discharge records to reflect a diagnosis of post-traumatic stress disorder (PTSD) and to correct a reduction of his disability rating for a combat-related disability, which had been downgraded from 50% to 40%. The BCNR denied his requests.
In this action, Mr. Porter challenges the BCNR's decision, seeks compensatory damages for a series of wrongs he alleges were committed by the Navy, and requests payment of certain amounts of per diem to which he believes he was entitled but which he never received. The government has filed a partial motion to dismiss Mr. Porter's complaint and a motion for judgment on the administrative record.
For the reasons discussed below, the government's partial motion to dismiss is GRANTED as to most of Mr. Porter's claims, and its motion for judgment on the administrative record is GRANTED with respect to his remaining claims.
Mr. Porter enlisted in the United States Navy in 2005. Admin. R. (AR) 187, Docket No. 13. In early 2008, Mr. Porter was injured on three occasions during trainings and war simulations. See id. at 271. First, in February 2008, he injured his right shoulder while climbing a ladder during a war simulation. Id. Next, in early March 2008, he hurt his right shoulder and lower back when he fell during a martial arts training session. Id. Finally, in early April 2008, Mr. Porter injured his back, right knee, and right ring finger during another war simulation when a large man knocked him to the ground and landed on his back. Id. During this same exercise, a simulated charge exploded near him. Id. at 196.
After he suffered these injuries, Mr. Porter was assigned to a duty station in San Diego, where he received treatment at a Navy medical center. See Compl. ¶¶ 4, 10, Docket No. 1. Over the next two years, Mr. Porter underwent several medical procedures to treat his injuries, including arthroscopic surgeries on his right shoulder and right knee and the insertion of a rod to stabilize his lumbar spine. See AR 188-94. Despite these interventions, Mr. Porter continued to suffer pain related to his injuries in his back and in both legs. See id.
In March 2010, a Navy medical evaluation board (MEB) determined that Mr. Porter's medical conditions might render him unfit for continued service and referred him to the joint VA/DOD Disability Evaluation System (VA DES) for a full assessment. See id. at 180. At the start of that process, on March 25, 2010, Mr. Porter submitted a claim to the VA DES. Id. at 181-83. In it, he claimed to have numerous "disabling conditions" beyond the injuries described above that he felt were "caused by, or aggravated by, [his] active military service." Id. at 182. In particular, he claimed to suffer from "post traumatic stress disorder due to IED." Id.
After he submitted his claim, VA doctors examined Mr. Porter on several occasions in April 2010. See id. at 197-201 (general medical exam); id. at 187-95 (); id. at 186-87 (auditory exam); id. at 195-97 (evaluation for PTSD).
On February 26, 2011, the VA DES completed its evaluation. Id. at 4-31. It noted that its evaluation and recommendations would be used for two purposes. See id. at 4. First, the Navy would use the evaluation "in determining [Mr. Porter's] final dispositionfor unfit conditions." Id. Second, the VA would use it "to determine [Mr. Porter's] potential entitlement to [VA] disability compensation." Id.
The VA DES then proposed disability ratings for Mr. Porter in two overlapping categories: (1) ratings related to the conditions that made him unfit for military service (i.e., "unfitting conditions"); and (2) ratings for conditions for which he might be entitled to VA disability compensation following his separation from the military (i.e., "disabilities"). See id. at 5-8. In terms of unfitting conditions, the VA DES proposed ratings of 20% for "residuals of lumbar L4-5 fusion"; 20% for "right lower extremity radiculopathy" (i.e., nerve pain in the right leg); and 10% for "left lower extremity radiculopathy" (i.e., nerve pain in the left leg). Id. at 5.
For purposes of VA disability compensation, the VA DES similarly proposed 20%/20%/10% ratings for the disabilities caused by Mr. Porter's lumbar fusion and ongoing pain in both legs. See id. In addition, it proposed ratings for thirteen other disabilities that Mr. Porter claimed. Id. at 5-8. It did not, however, propose a rating for PTSD. See id. Instead, it proposed a 10% rating for "adjustment disorder with mixed anxiety and depression (also claimed as post-traumatic stress disorder . . .)." Id. at 6.
On the same day that the VA DES completed its evaluation, the VA provided Mr. Porter with a benefits estimate by letter. See id. at 170-78. The letter noted that the estimate set forth only "what disabilities VA is proposing for service connection, your estimated VA entitlement amount, and approximate VA payment start date." Id. at 170 (emphasis in original). Thus, it "d[id] not constitute a final decision by VA." Id.
In accordance with the VA DES's evaluation, the VA proposed a combined rating for the disabilities resulting from Mr. Porter's unfitting conditions of 50%. Id. at 170-71. Further, based on the combination of those disabilities and Mr. Porter's thirteen other claimed disabilities, the VA proposed a "total combined rating" of 90% for purposes of his entitlement to VA disability benefits. Id. at 173. The letter also informed Mr. Porter that "[u]nless we receive additional medical evidence, we will implement the proposed Rating Decision when the Service Department notifies us that you have separated." Id. at 178.
Soon thereafter, on March 4, 2011, a Navy physical evaluation board (PEB) issued findings regarding Mr. Porter's fitness for continued service. Id. at 32-33. Adopting the VA DES's recommendations, it found Mr. Porter unfit for continued service and recommended his "[p]ermanent [d]isability [r]etirement from [a]ctive [d]uty." Id. at 32. In accordance with the VA DES's evaluation, the PEB determined that Mr. Porter's unfitting conditions included "back pain, S/P L4-5 fusion"; "radicular leg pain, right"; and "radicular leg pain, left." Id. Applying a "[b]ilateral [f]actor" to his right and left radicular leg pain ratings, the PEB assigned him a combined disability rating of 50%.Id. Further, it found that the disability was "permanent" and "incurred in the line of duty under conditions simulating war." Id.
On March 8, 2011, Mr. Porter formally received the PEB's findings, and on March 9, 2011, he underwent separation counseling. Id. at 35-36. During the counseling, he was informed that he had ten days in which to respond to the findings if he wished to request reconsideration or a formal PEB (i.e., a hearing). Id. at 35. Mr. Porter was warned that "[f]ailure to respond [within ten days] constitutes a presumption of acceptance and the case will be automatically finalized according to the current findings of the PEB." Id.
Mr. Porter responded to the findings on March 18, 2011. Id. at 37-40. In his response, he formally "accept[ed] and request[ed that] the PEB finalize [his] case." Id. at 37 (emphasis omitted). He also "waive[d] [his] right to submit new/additional information or to request a formal hearing." Id.
On April 7, 2011, Mr. Porter submitted a claim to the Navy for combat-related special compensation. Id. at 153-55. He apparently based his claim on the ratings found in the PEB's March 4, 2011 findings. Thus, he stated that the "Title of [his] Disability" was "50% PDRL/COMBAT RELATED." Id. at 154.
After submitting this claim, Mr. Porter was discharged from active duty and medically retired effective June 12, 2011. Id. at 42. Mr. Porter's DD-214 discharge form listed "Permanent Disability Retired List" as his "Type of Separation," and it stated that the "Narrative Reason For [his] Separation" was "Disability, Permanent." Id. The form also noted, in Box 18, that his disability "ha[d] been determined to be combat related." Id. (emphasis omitted).
On September 13, 2011, the Navy's Combat-Related Special Compensation Board (CRSC Board) approved Mr. Porter's request for combat-related special compensation. Id. at 51-54. The decision noted that he had received ratings for three combat-related disabilities: "Residuals of lumbar L4-5 fusion," rated 20%; "Right lower extremity radiculopathy," rated 20%; and "Left lower extremity radiculopathy," rated 10%. Id. at 51. Using the VA's combined ratings table (set forth at 38 C.F.R. § 4.25), the CRSC Board assigned him a combined CRSC rating of 40%. Id. at 53.
The CRSC Board noted, however, that Mr. Porter's "actual compensation amount w[ou...
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