Sissel v. McCarthy
| Decision Date | 22 December 2021 |
| Docket Number | 19-cv-356 (FYP) |
| Court | U.S. District Court — District of Columbia |
| Parties | JASON L. SISSEL, Plaintiff, v. RYAN D. MCCARTHY, Defendant. |
JASON L. SISSEL, Plaintiff,
v.
RYAN D. MCCARTHY, Defendant.
No. 19-cv-356 (FYP)
United States District Court, District of Columbia
December 22, 2021
MEMORANDUM OPINION
Florence Y. Pan United States District Judge
Plaintiff Jason L. Sissel is a veteran of the United States Armed Forces; he served in the U.S. Marine Corps from 1994 to 1999, and in the U.S. Army from 1999 until 2005. Sissel was medically separated with an honorable discharge based on injuries that he sustained in a motor-vehicle accident while deployed in Iraq during Operation Iraqi Freedom. In reviewing the terms of Sissel's separation, the Department of Defense Physical Disability Board of Review (“PDBR”) twice determined that his injuries rendered him unfit for service and assigned him a disability rating of 20%. This rating falls short of the 30% disability rating needed for a soldier to be eligible for medical retirement. Sissel argues that the PDBR's finding that he should be assigned a 20% disability rating was arbitrary and capricious, unsupported by substantial evidence, and contrary to law. He asks the Court to set aside the Secretary of the Army's decision adopting the PDBR's recommendation under 5 U.S.C. § 706(2)(A), and to correct Sissel's military records to reflect a higher disability rating.
Before this Court are the parties' cross motions for summary judgment. For the reasons stated below, the Court concludes that the Army's decision was not arbitrary or capricious, was supported by substantial evidence, and was not contrary to law. Accordingly, the Court will
grant Defendant's Motion for Summary Judgment and will deny Plaintiff's Motion for Summary Judgment.
STATUTORY FRAMEWORK
Under 10 U.S.C. § 1201 et seq., the Department of Defense determines whether a member of the military is medically fit for duty, and if not, whether that member should receive a disability rating and compensation for his medical condition. See Chatman v. Department of Defense, 270 F.Supp.3d 184, 185 (D.D.C. 2017) (citing 10 U.S.C. §§ 1201-22, 1552-59). Active duty service members may retire with pay if they are determined to be “unfit to perform the[ir] duties . . . because of physical disability incurred while entitled to basic pay.” 10 U.S.C. § 1201(a). A service member must receive a disability rating of “at least 30 percent under the standard schedule of rating disabilities” to receive disability retirement. Id. § 1201(b)(3)(B). If a service member's disability is rated below 30%, he or she “may be separated from the member's armed force, with severance pay, ” but is not eligible for disability retirement. Id. § 1203(a).
The Army uses the Physical Disability Evaluation System (“DES”) to evaluate the nature and extent of service members' disabilities. See Army Regulation 635-40, ¶ 1-1. At the outset, an Army physician examines the service member to determine whether he or she is qualified to perform his or her duties. Id., ¶ 4-10. If the physician concludes that the member is not medically qualified, the member is referred to the Medical Evaluation Board (“MEB”). Id., ¶ 4-7, 10. The MEB determines if the soldier's “medical condition(s) meet medical retention standards” which are described in Army Regulation 40-501.[1] Id., ¶ 4-7. If the MEB determines
that the solider does not meet necessary retention standards, it will refer the solider to the Physical Evaluation Board (“PEB”) for a fitness determination. See Army Regulation 635-40, ¶ 4-12(f).
An informal PEB first considers each case. Id., ¶ 4-22. The PEB conducts a “more thorough investigation into the nature and permanency of the servicemember's condition, ” Fulbright v. McHugh, 67 F.Supp.3d 81, 85 (D.D.C. 2014), and determines “fitness for purposes of Soldiers' retention, separation or retirement for disability.” See Army Regulation 635-40, ¶ 4-19. The PEB “conducts a documentary review of the case file” and makes a determination as to “whether any medical conditions individually or collectively cause[] the Soldier to be unfit for continued military Service.” Id., ¶ 4-22. “A Solider will be considered unfit when the preponderance of evidence establishes that the Soldier, due to disability, is unable to reasonably perform [his or her] duties.” Id., ¶ 5-1. If the PEB determines that a soldier's conditions render him or her unfit, the PEB applies ratings to the unfitting conditions. Id., ¶ 4-22. The PEB uses the Veteran Affairs Schedule for Rating Disabilities (“VASRD”)[2] to assign unfitting conditions a percentage rating. See 10 U.S.C. § 1216a(b).
After the informal PEB's decision, a solider may demand a formal hearing. See Army Regulation 635-40, ¶ 4-23. If the solider concurs with the findings and recommendations of the informal PEB, thereby waiving a formal hearing, the proceedings are subsequently approved on behalf of the Secretary of the Army and are processed for final disposition. Id., ¶ 4-22(g)(1). Regardless of whether the solider concurs with the PEB's finding, after the final disposition, a
service member may challenge the determination by appealing to the PDBR.[3] See 10 U.S.C. § 1554. The PDBR reviews the PEB's decision, the evidentiary record, and other evidence submitted by the soldier. Id. § 1554a(c). The PDBR then submits a recommendation to the Secretary of the Army concerning whether to modify the disability rating and whether to recharacterize the soldier's discharge from a separation to a medical retirement. Id. § 1554a(d). If the PDBR recommends any change, the Secretary of the Army may make the correction. Id. § 1554a(e). If the PDBR does not recommend changing the determination, then the decision is final. Id.
BACKGROUND[4]
Sissel served on active duty in the Marine Corps from November 28, 1994, until February 27, 1999. See ECF No. 36-2 (Joint Appendix (“AR”)), at 540 (Certificate of Discharge from Active Duty, October 24, 2005). Sissel subsequently enlisted in the Army as a Motor Transport Operator on April 8, 1999. AR 469 (Certificate of Discharge from Active Duty, October 24, 2005). He was deployed to Iraq between February and September 2003. Id. During his deployment, Sissel was involved in a motor-vehicle accident on June 6, 2003. AR 394 (Correspondence regarding Mr. Sissel's Motor Vehicle Accident, June 14, 2005). The accident caused Sissel to sustain injuries to his back and to his right leg. See Id. Specifically, Sissel was diagnosed with “severe degenerative disc disease at ¶ 5-S1 with radicular symptoms into the leg as well as severe low back pain.” AR 403 (Dr. Knetsche Evaluation, June 11, 2004).
Within two weeks of the accident, Sissel experienced increasing back pain and right-leg numbness; he was unable to walk or get out of bed. See AR 49 (Medical Board Summary,
March 31, 2005).[5] Despite undergoing a spinal fusion in December 2003, Sissel still had leg pain and weakness, as well as significant back pain. AR 50; AR 59 (Evaluation of Dr. Knetsche, May 14, 2004). During an August 12, 2004, neurosurgery examination, Sissel's right-leg strength showed a weakness of 5-/5 in the right hamstring, which is below normal strength. AR 444 (Neurosurgery Examination). During a February 2, 2005, neurosurgery examination, Sissel reported intermittent right-leg pain, as well as significant back pain; and the examiner concluded that Sissel was “unable to run or do sit ups, ” has difficulty “lifting and bending, ” and that he was “non-deployable because he can't carry . . . weights.” AR 60 (Medical Evaluation Board Summary, February 2, 2005). A March 29, 2005, Commander's Statement notes similar functional restrictions. AR 440 (Army Commander's Statement, March 29, 2005) (“It is doubtful that [Sissel] would be able to complete a forced road march of several miles with field equipment.”). Notably, the 2005 neurosurgery examination and the Commander's Statement do not specifically attribute Sissel's inability to perform certain tasks to either his back injury or his leg injury. An additional report, a 2005 Physical Profile Restriction, notes Sissel's inability to perform certain activities due to his back injury. AR 438 (2005 Physical Profile Restriction) (specifying “[n]o duties requiring bending, twisting, or stooping”).
Sissel went before the MEB on March 31, 2005. He was evaluated by Dr. Robert C. Harvey, who found that Sissel had “tenderness to palpation in the lumbar spine associated with paraspinous muscle spasms, a reduced range of motion in the lumbar thoracic spine, a dense hypesthesia [numbness] of the lateral aspect of the plantar surface of the right foot and hip flexion weakness at 5-/5 for the right hip flexor.” AR 455 (MEB Narrative Summary, March 31, 2005).[6] The MEB diagnosed Sissel with (1) degenerative disc disease of the lumbar spine; and (2)
mild right-leg weakness. AR 457. Dr. Harvey opined that Sissel could not perform the essential tasks of his military duties as a Motor Transport Operator. Id. (stating that “[h]e cannot run; lift more than 30 pounds; stand longer than 20 minutes; or ride in tactical vehicles.”). On April 4, 2005, the MEB found that Sissel's back and leg conditions both “fail[ed] to meet retention standards” before referring him to the PEB for a determination of his fitness for duty. AR 457, 453 (MEB Proceedings, April 4, 2005).
Prior to the PEB evaluation, Sissel underwent a “Compensation and Pension” examination by the Department of Veterans Affairs (“VA”), in support of his request for disability benefits. See AR 66 (VA Physical Examination, May 16, 2005).[7] On May 16, 2005, Sissel was evaluated by Dr. Edward B. Freyfogle, who diagnosed Sissel with “chronic back pain status post degenerative disc disease L5-S1 with residual sensory changes of his right lateral lower leg.” AR 71. On November 21, 2005, the VA rated Sissel as 20% disabled for his back injury (lumbar spine degenerative disc disease under VASRD Code 5242), [8] AR 79 (VA Rating...
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