Strahler v. United States

• Decision Date: 18 March 2022
• Docket Number: 20-1469C
• Court: U.S. Claims Court
• Parties: CRAIG M. STRAHLER, Plaintiff, v. THE UNITED STATES, Defendant.

CRAIG M. STRAHLER, Plaintiff,
v.
THE UNITED STATES, Defendant.

No. 20-1469C

United States Court of Federal Claims

March 18, 2022

Jason Ellis Perry, Law Office of Jason Perry, LLC, Wellington, FL, for Plaintiff.

Kyle S. Beckrich, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for Defendant, United States. With him on briefs were Brian M. Boynton, Acting Assistant Attorney General, Patricia M. McCarthy, Director, Martin F. Hockey, Jr., Acting Director, Eric P. Bruskin, Assistant Director, as well as Lt. Col. Jahn Olson, United States Marine Corps, Office of the Judge Advocate General.

OPINION AND ORDER

STEPHEN S. SCHWARTZ JUDGE

Plaintiff Craig M. Strahler, a former rifleman in the U.S. Marine Corps, challenges a decision of the Board for Correction of Naval Records ("BCNR" or "Board") denying his request for medical retirement. Mr. Strahler also seeks combat-related special compensation ("CRSC"). The parties filed cross-motions for judgment on the administrative record under RCFC 52.1(c).^[1] The parties filed supplemental briefs on jurisdiction at the Court's request, ^[2] and the Court held oral argument on all issues.^[3] The matter is now ripe for disposition.

This Court has jurisdiction over Mr. Strahler's claim. However, substantial evidence supports the BCNR's finding that he was fit for continued service when he

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was discharged from active duty. Accordingly, the Court GRANTS Defendant's motion and DENIES Mr. Strahler's cross-motion. The case is DISMISSED.

BACKGROUND

I. The Disability Retirement Process

A military service member may receive disability retirement if the secretary of his branch finds that he 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," and also that:

(1) based upon accepted medical principles, the disability is of a permanent nature and stable

(2) the disability is not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and

(3) [inter alia]-

…

(B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs [("VA")] at the time of the determination; and …

(iv) the disability was incurred in line of duty after September 14, 1978

10 U.S.C. § 1201(a)-(b); see also 10 U.S.C. § 101(a)(9).

Under Department of Defense ("DoD") regulations, a service member will be considered unfit "when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation." See Department of Defense Instruction ("DoDI") 1332.38, E3.P3.2 (Nov. 14, 1996); see also Secretary of the Navy Instruction ("SECNAVINST") 1850.4E encl. 3, § 3301 (Apr. 30, 2002) ("The sole standard to be used in making determinations of physical disability as a basis for retirement or separation is unfitness to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay."). Fitness to separate from the military is evaluated by the same standard as fitness for duty. Department of the Navy, Manual of the Medical Department ("MANMED") Art. 15-29(1) (Dec. 14, 2001).

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Because the Navy is not equipped to provide "prolonged, definitive medical care" for service members with injuries compromising their ability to serve, personnel in various administrative and medical roles - including "line commanders, commanding officers of MTFs [medical treatment facilities] and individual medical and dental officers" - are charged with promptly identifying those individuals "whose physical or mental fitness to continue naval service is questionable." SECNAVINST 1850.4E encl. 1, § 1005; DoDI 1332.38, E3.P1.6.1; DoD 6015.1-M, P13.1.58 (Jan. 3, 1999) (defining medical treatment facility as a "military facility established for the purpose of furnishing medical and/or dental care to eligible individuals"). Members meeting certain diagnostic criteria are processed through the Disability Evaluation System ("DES"). See DoDI 1332.38, E3.P2.1, E3.P7.1.2; see also SECNAVINST 1850.4E encl. 8, § 8001(a). The DES process begins with a medical evaluation board ("MEB"), see DoDI 1332.38, E3.P1.1.1; SECNAVINST 1850.4E encl. 3, § 3102(a), followed if necessary by a physical evaluation board ("PEB"), see DoDI 1332.38, E3.P1.1.2; SECNAVINST 1850.4E encl. 3, § 3102(c), which makes a determination of disability "on behalf of the Secretary of the Navy[.]" SECNAVINST 1850.4E encl. 1, § 1004(a).

If a member's condition is such that he "can be restored to full military duty within a reasonable period of time" (i.e., "16 months or less"), the member may be placed on temporary limited duty for the time he needs to recover. SECNAVINST 1850.4E encl. 1, § 1008(b); see MANMED Art. 18-29 (Sep. 10, 1993). For Marine Corps members, temporary limited duty up to eight months can be granted solely by a medical treatment facility, without approval by the Commandant of the Marine Corps. SECNAVINST 1850.4E encl. 1, § 1008(b)(2)(a)(1).

At the time relevant to this case, if the member recovered before his temporary limited duty ended, his physician could return him to full duty. See MANMED Art. 18-29(3)(f). The physician was required to document a reasonably detailed report of the member's condition, including "findings, prognosis, and any residual effects that may be apparent." Id. "A note stating 'Fit for Full Duty' [was] not sufficient." Id. The physician was also required to counsel the member on his medical findings. Id. But if a member was deemed unlikely to return to full duty and had obtained optimal medical treatment, he would be referred to the DES. SECNAVINST 1850.4E encl. 1, § 1009(a). A revision to those procedures, effective January 10, 2005, added a requirement that the physician obtain the approval of the convening authority or his designee before returning a member to full duty. See MANMED Art. 18-10(11)(a) (Jan. 10, 2005). A "convening authority" is an officer with authority to convene a medical board. MANMED Art. 18-3(1) (describing the convening authority's

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responsibilities with respect to the medical boards). But that requirement was not in effect when the events underlying this case occurred.

Separate from military disability retirement benefits, a veteran may obtain CRSC under 10 U.S.C. § 1413a. A member is entitled to CRSC when he "(1) is entitled to retired pay (other than by reason of section 12731b of this title); and (2) has a combat-related disability." 10 U.S.C. § 1413a(c)(1); see also 10 U.S.C. § 1413a(e) (defining "combat-related disability").

A member of the Navy who believes he was erroneously denied disability retirement or CRSC may petition the BCNR for correction of his military record. See Chambers v. United States, 417 F.3d 1218, 1222 (Fed. Cir. 2005) (discussing the BCNR's Army counterpart); Porter v. United States, 131 Fed.Cl. 552, 559 (2017). The BCNR grants relief upon finding an error or injustice. 10 U.S.C. § 1552(a)(1). The BCNR may also "make a disability determination in the first instance." Sawyer v. United States, 930 F.2d 1577, 1581 (Fed. Cir. 1991); O'Hare v. United States, 155 Fed.Cl. 364, 378 (2021). Members who are dissatisfied with the decision of the BCNR may obtain judicial review. Chambers, 417 F.3d at 1224-25.

II. Facts

Mr. Strahler is a former sergeant in the U.S. Marine Corps. Administrative Record ("AR") 20. In late 2001 and early 2002, he was deployed to Afghanistan, where, among other decorations, he received a Combat Action Ribbon. AR 20, 190. His active service was scheduled to end on July 7, 2002. AR 20.

Upon his return from Afghanistan, he self-reported several debilitating physical ailments. AR 1019, 1021. On April 24, 2002 - less than three months before the end of his enlistment - Mr. Strahler was placed on temporary limited duty for eight months by Dr. R.T. VanHook, Assistant Battalion Surgeon of Naval Hospital Camp Lejeune in North Carolina. AR 37. Dr. VanHook prepared a treatment plan for Mr. Strahler that involved referrals to specialists, diagnostic tests, and restrictions on strenuous activity. AR 37, 841.

During a check-up appointment early that summer, Dr. VanHook recorded updates on six physical complaints previously reported by Mr. Strahler: dyspepsia, breathing problems, hemorrhoids, shoulder pain, lower back pain, and chest pain with shortness of breath. AR 458. According to Dr. VanHook's notes, Plaintiff disclaimed most symptoms either to specialists or to Dr. VanHook directly. Id. Mr. Strahler's evaluations were normal, except for a spine MRI that showed an L4/5 and L5/S1 disc bulge with L5 and S1 nerve root impingement. AR 754-56. Dr. VanHook addressed Mr. Strahler's lower back pain as follows:

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Completed back school. Continues to deny problems since returning from deployment. MRI reveals posterior disc bulge at L4/5 w/ L5 and S1 nerve root impingement in the right lateral recess. [Patient] has NEVER [complained of symptoms] that were [consistent with] radiculopathy, ^[4] and the pain he describes has always been [consistent with] mechanical LBP/lumbar strain/lumbar spasm.

AR 458. In short, Dr. VanHook summed up, "[a]ll labs and radiological studies have been normal (except for the MRI which is NOT [consistent with] his [complaints])." Id.

Dr. VanHook concluded on that basis that Mr. Strahler's reported ailments represented "malingering for the secondary gain of disability benefits." Id. He wrote that he had originally suspected malingering because Mr. Strahler was "extremely paranoid and interested more in medico-legal issues...