Rock v. United States

• Decision Date: 31 July 2013
• Docket Number: No. 12-818 C,12-818 C
• Parties: KAREEM R. ROCK, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

KAREEM R. ROCK, Plaintiff,

v.THE UNITED STATES, Defendant.

No. 12-818 C

United States Court of Federal Claims

Filed: July 31, 2013

Motion for Judgment on the

Administrative Record; RCFC

52.1; Disability Retirement Pay

Claim Under 10 U.S.C. § 1201

Jason E. Perry, Cheshire, CT, for plaintiff.

William P. Rayel, Trial Attorney, with whom were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Scott D. Austin, Assistant Director, Commercial Litigation Branch, United States Department of Justice, Washington, DC, for defendant. James D. Valentine, Major, General Litigation Division, Office of the Judge Advocate General, Department of the Navy, of counsel.

OPINION

HEWITT, Chief Judge

Kareem R. Rock (plaintiff or Mr. Rock), a Gulf War veteran with more than thirteen years of service in the United States Navy (Navy), brings this suit alleging that he "has been denied the disability retirement pay and benefits which he is entitled to under 10 U.S.C. § 1201." See Compl., Docket Number (Dkt. No.) 1, ¶¶ 1, 7, 27.¹ Specifically, Mr. Rock argues that, based on the severity of his epilepsy, the United States (defendant or the government), acting through the Navy, should have rated him one hundred percentdisabled instead of the twenty percent disability rating that he was assigned. See id. ¶¶ 6, 27-28.

The parties have filed cross-motions for judgment on the Administrative Record (AR). Before the court, in addition to the Complaint, are: Defendant's Motion for Judgment upon the Administrative Record (defendant's Motion or Def.'s Mot.), Dkt. No. 6, and defendant's Appendix (Def.'s App.), Dkt. No. 6-1, both filed January 28, 2013; Plaintiff's Opposition to Defendant's Motion and Cross Motion for Judgment on the Administrative Record (plaintiff's Motion or Pl.'s Mot.), Dkt. No. 12, filed March 28, 2013; Defendant's Response to Plaintiff's Cross-Motion for Judgment on the Administrative Record and Reply to Plaintiff's Response to Defendant's Motion for Judgment upon the Administrative Record (Def.'s Reply), Dkt. No. 13, filed April 26, 2013; and Plaintiff's Reply to Defendant's Response to Plaintiff's Cross-Motion for Judgment on the Administrative Record (Pl.'s Reply), Dkt. No. 14, filed May 7, 2013. The Administrative Record was filed by defendant on CD-ROM on January 28, 2013. See generally Dkt. (noting filing).

For the following reasons, defendant's Motion is GRANTED and plaintiff's Motion is DENIED.

I. Background

A. The Naval Disability Evaluation System

The Secretary of the Navy (the Secretary) is authorized to retire a service member with disability retirement pay if the Secretary determines that the member meets certain requirements and "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." 10 U.S.C. § 1201(a) (2006). Specifically, a service member who has served fewer than twenty years is entitled to disability retirement pay after a finding of unfitness if the member's disability is permanent, was incurred in the line of duty and is rated "at least 30 percent under the standard schedule of rating disabilities used by the Department of Veterans Affairs [(VA)]." Id. § 1201(b).

The VA disability rating schedule is contained in the Code of Federal Regulations. See, e.g., 38 C.F.R. § 4.124a (2012) (VA disability rating schedule for neurological conditions and convulsive disorders). The applicable regulation for epilepsy provides a "General Rating Formula for Major and Minor Epileptic Seizures," with descriptions of the severity and frequency of seizures appropriately rated at each of 10, 20, 40, 60, 80 and 100 percent disabled. Id. For example, a rating of twenty percent is appropriate for a service member who suffers "[a]t least 1 major seizure in the last 2 years[] or at least 2 minor seizures in the last 6 months." Id. "A major seizure is characterized by thegeneralized tonic-clonic convulsion with unconsciousness." Id. "A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ('pure' petit mal), or sudden jerking movements of the arms, trunk, or head (myclonic type) or sudden loss of postural control (akinetic type)." Id. To be counted for ratings purposes, "seizures must be witnessed or verified at some time by a physician." Id. § 4.121. Further, "[a]s to frequency [of seizures], competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted," and frequency "should be ascertained under the ordinary conditions of life (not while hospitalized)." Id.

Pursuant to Secretary of the Navy Instruction (SECNAVINST) 1850.4E (2002), the Secretary has delegated the authority to make fitness and disability retirement decisions to four elements of the Naval Disability Evaluation System: (1) informal physical evaluation boards (PEB), (2) formal PEBs, (3) the PEB president and (4) the director of the Secretary of the Navy Council of Review Boards (the director).² Def.'s App. A2 (SECNAVINST 1850.4E). The procedures by which these elements evaluate a service member's physical fitness for duty and determine the proper disposition with respect to any physical disability are set forth in SECNAVINST 1850.4E. See id. Disability evaluation for active service members generally commences only after a referral by a medical evaluation board (MEB), based on the MEB's finding that "the member's fitness for continued naval service [is] questionable by reason of physical or mental impairment." Id. at A10 (§ 3201(a)).

Once a member is referred for a disability evaluation, an informal PEB reviews the member's record and makes preliminary findings as to the member's "Fitness to continue naval service, degree of disability, and entitlement to disability pay" (the preliminary findings). See id. at A3 (§ 1004(b)-(c)). The preliminary findings are issued by the PEB president "based on a preponderance of the evidence of the record." See id. (§ 1004(b)). "The preliminary findings become the PEB final determination upon a finding of Fit to continue naval service or upon" the member's waiver of his or her right to a formal hearing. Id.

If a member disagrees with the preliminary findings, he or she may request a formal hearing, to be conducted by a formal PEB. See id. at A4 (§ 1004(c)(4)). The formal PEB is obligated to "conduct a full and fair hearing," id. (§ 1004(f)), after which it recommends a final determination to the PEB president, see id. (§ 1004(c)(4)). The PEB president then issues the final determination of the PEB. Id. (§ 1004(f)).

If the PEB final determination is that a member is unfit for service, each unfitting disability is assigned a percentage rating based on the VA disability rating schedule. See id. at A12 (§ 3801)). If a member is found unfit but has a disability "not yet determined to be stabilized or permanent," the member may be placed on the temporary disability retired list. Id. at A8 (§ 2081).

In certain limited circumstances, a member may submit a petition for relief to the director with respect to a formal PEB's final determination. See id. at A5 (§ 1004(h)). A petition for relief may be submitted only if: (1) the member has new or newly discovered evidence that would have warranted a different decision by the PEB and that, by due diligence, could not have been presented during the prior PEB proceeding; (2) the member can show that the decision of the PEB was based on fraud, misrepresentation or other misconduct; or (3) the PEB decision was based on a mistake of law, for example, because it was "contrary to the great weight of evidence of record." Id. at A16 (§ 5001(a)).

As discussed in detail below, Mr. Rock's processing through the Navy's disability evaluation system proceeded as follows: After referral by an MEB in March 2009, an informal PEB found Mr. Rock unfit for duty and he was placed on the temporary disability retired list, effective October 31, 2009. See infra Part I.B. Nearly two years later, in October 2011, Mr. Rock underwent a routine periodic medical examination by Dr. Albert John Martins (Dr. Martins), after which, in November 2011, Mr. Rock was referred to a second informal PEB for reevaluation. See id. Mr. Rock rejected the preliminary findings of the second informal PEB, was granted a hearing before a formal PEB (the Board) in January 2012 and submitted a petition for relief from the final PEB determination, which the director denied on March 16, 2012. See id. The findings of the formal PEB and the director's denial of Mr. Rock's petition for relief are the subject of this suit. See infra Part III.B.

B. Mr. Rock's Naval Disability Evaluation System Processing

On February 9, 2009, after testing for a gastric disorder, Mr. Rock suffered what was described by a witness as a "convulsive seizure." See AR 246 (Mar. 10, 2009 MEB report). The following day at work, Mr. Rock was twice observed to suspend his activity, extend his right arm, and sit unresponsive and motionless (with a blank expression) for about a minute. Id. Mr. Rock was treated at his local emergency department and sent forfurther evaluation before an MEB. See id.; see also AR 272 (chronological documentation of care) (showing that an MEB request was submitted following a consultation on March 3, 2009).

Mr. Rock's MEB review was conducted on March 10, 2009. AR 246-47 (Mar. 10, 2009 MEB report); see also AR 262-69 (record of MEB physical exam). The MEB diagnosed Mr. Rock with "partial complex seizures with secondary generalization" based on its finding that he "had three, if not four seizures in the course of the past several months." AR 246-477 (Mar. 10, 2009 MEB report); see also id. at 246 (recording, in addition to the three seizures suffered on February 9 and 10, 2009, Mr. Rock's description of a possible fourth seizure, based on an incident that occurred four or five...