Torres v. Toro

• Decision Date: 23 September 2022
• Docket Number: 1:21-cv-00306-RCL
• Parties: OSCAR D. TORRES, on behalf of himself and others similarly situated, Plaintiffs, v. CARLOS DEL TORO, in his official capacity as Secretary of the Navy, Defendant.
• Court: U.S. District Court — District of Columbia

OSCAR D. TORRES, on behalf of himself and others similarly situated, Plaintiffs,
v.
CARLOS DEL TORO, in his official capacity as Secretary of the Navy, Defendant.

No. 1:21-cv-00306-RCL

United States District Court, District of Columbia

September 23, 2022

MEMORANDUM OPINION

ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE

From time to time, servicemembers in the United States Armed Forces are separated from service due to medical disability. The Department of Defense (“DoD”) and the Navy have created a system, consisting of two primary parts, to evaluate Navy servicemembers for disabilities that render them unfit. The first part is a “medical evaluation” of the seryicemember for potentially unfitting conditions. If the Navy servicemember advances to the second part, he or she will be subject to a “disability evaluation” and then, if applicable, a disability rating that affects benefits upon separation. Between 2016 and 2018, the Navy implemented a new procedure to govern this process, called the “Properly Referred Policy.” That policy ensured that only conditions “properly referred” by the medical evaluation phase would be considered during the disability evaluation phase. The Navy rescinded the Properly Referred Policy in 2018. Sergeant Oscar Torres subsequently filed this class-action lawsuit arguing that the Navy's policy unlawfully prevented him and similarly situated servicemembers from receiving full consideration during their disability evaluations. He seeks declaratory and injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. After considering the administrative record (“AR”), the applicable law,

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and the parties' briefing, this Court will GRANT Mr. Torres's motion for summary judgment and DENY the Secretary of the Navy's motion for summary judgment.

I. BACKGROUND

This Court has already addressed at length the background facts, procedural history, and relevant statutes for this lawsuit. See Torres v. Del Toro, No. 1:21-cv-306 (RCL), 2021 WL 4989451, *1-4 (D.D.C. Oct. 27, 2021), ECF No. 36. Therefore, the Court will only overview what is most directly relevant to the Court's decision on the cross-motions for summary judgment.

A. Overview of the Disability Evaluation System and Statutory Constraints

When a military servicemember is set to be discharged from service due to medical disability, Chapter 61 of Title 10 of the U.S. Code provides the general guidelines for the process that the servicemember is due. Most of the details, however, are defined through rules generated by the Secretary of Defense and secretaries of the military services pursuant to Congressional authorization. See 10 U.S.C. §§ 1216, 1222(c). The Disability Evaluation System (“DES”), created by the DoD, governs the process for servicemembers facing separation or retirement due to disability. AR 1942-1999. That system involves several steps that together determine whether a servicemember is unfit to continue serving. See id. The Navy has further built on the DoD's general DES framework with more specific procedures for servicemembers within the Navy's purview. See AR 2000-2300.

To enter the Navy's DES, a servicemember is referred by a commanding or medical officer for medical evaluation. See AR 1967-70, 2054-56. That referral is memorialized in Department of Veterans Affairs (“VA”) Form 21-0819. AR 370-71, 2335. VA Form 21-0819 contains a section for a referrer to list medical conditions for which the servicemember is being referred as well as a section for the servicemember to list additional claimed conditions. AR 370-72, 2335.

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From there, the servicemember has entered the DES process. A diagram of the usual DES timeline is provided by the DoD.

(Image Omitted)

AR 2371.

During the medical evaluation phase of the DES process, a Medical Evaluation Board (“MEB”), comprising two or more physicians, assesses the servicemember's individual conditions and combination of conditions to decide whether to refer the servicemember to the physical evaluation board (sometimes referred to as “PEB”) phase. See AR 1957-59, 2308; Pl.'s Mem. 1. If a servicemember is referred by the MEB, the first step of the physical evaluation board phase is an Informal Physical Evaluation Board (“IPEB”). AR 2371. The IPEB makes an initial assessment of whether a servicemember is unfit for continued naval service. AR 1959,

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2027. That determination is based on a records review, and the IPEB's “preliminary finding[ will] become the PEB final determination upon a finding of Fit to continue naval service or upon waiver of the hearing right by the member.” AR 2027 Servicemembers who are found unfit by the IPEB may subsequently request a Formal Physical Evaluation Board (“FPEB”) hearing to contest the findings, including the disability rating assigned to them. See AR 1959-60.

If either the IPEB or FPEB concludes that a servicemember is unfit for continued military service, it will also assign a disability rating to the servicemember. The level of disability rating determines the payment that a servicemember receives after separation. See Schmidt v. Spencer, 319 F.Supp.3d 386, 389 n.1 (D.D.C. 2018), aff'd sub nom. Schmidt v. McPherson, 806 Fed.Appx. 10 (D.C. Cir. 2020). A 0% to 20% rating will result in a “medically separated” designation leading to a one-time lump sum disability severance payment. See 10 U.S.C. §§ 1203, 1212. A 30% or greater rating will result in a “medically retired” designation. See id. §§ 1201, 1203. A medically retired individual receives monthly disability payments as well as certain rights for the servicemember and family members. See id. When determining a disability rating, the FPEB and IPEB must consider what combination of the servicemember's medical conditions, if any, merit a combined disability rating. AR 1972-73.

Congress has also imposed both general and specific statutory requirements on the DES process. For example, the relevant statute requires a “full and fair hearing” if requested by the servicemember. 10 U.S.C. § 1216. Additionally, “[t]he Secretary concerned” in a determination of disability is directed to consider “all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member's office, grade, rank, or rating.” 10 U.S.C. § 1216a(b) (emphasis added). And of particular relevance to the Court's decision is a statutory requirement that Congress imposed to govern the conduct of physical evaluation boards.

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Response to applications and appeals.--The Secretary of each military department shall ensure, in the case of any member of the armed forces appearing before a physical evaluation board under that Secretary's supervision, that documents announcing a decision of the board in the case convey the findings and conclusions of the board in an orderly and itemized fashion with specific attention to each issue presented by the member in regard to that member's case. The requirement under the preceding sentence applies to a case both during initial consideration and upon subsequent consideration due to appeal by the member or other circumstance.

10 U.S.C. § 1222(a) (emphases added).

B. The Navy's Properly Referred Policy

The present lawsuit arises from the Navy's Properly Referred Policy. The Navy created the policy in order to limit the range of conditions that the IPEB and FPEB would need to consider at the physical evaluation board phase of the DES. See AR 3, 20-24. Specifically, the Navy instructed the IPEB and FPEB to “only assess conditions that have been properly referred by an MEB.” AR 21. That meant medical conditions presented by a servicemember at the physical evaluation board stage would “not be considered” unless the medical conditions were:

(i) specifically addressed in a MEB report, narrative summary, or Medical Addendum;

(ii) supported by a VA disability examination; and

(iii) appearing on a single Navy Medical Department (“NAVMED”) form (Form 6100) used by the MEB, dated and signed by the authority convening the disability review.

AR 21-22. As the Secretary explains, “[a]ny medical conditions that the MEB did not find to be individually or collectively unfitting” would not be properly referred and thus “were not considered by the PEB.” Def.'s Mem. 1. Therefore, conditions presented by a servicemember on an early VA Form 21-0819 would not be considered by the IPEB or FPEB if the MEB decided not to “properly refer” those conditions. See Def.'s Mem. 5-6; AR 54-56.

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Oscar Torres's case well illustrates the effect of the challenged policy. Mr. Torres's DES process began with a referral by his medical provider for chronic low back pain, sacroiliitis (inflammation of the sacroiliac joint), and spondyloarthropathy (inflammatory rheumatic disease). AR 380. In addition to those conditions identified by his referrer, Mr. Torres also added twenty-five conditions to his VA Form 21-0819. AR 372. Mr. Torres was subsequently evaluated by the MEB, which properly referred only two conditions to the physical evaluation board phase: sleep apnea and spondyloarthropathy. AR 374-78. The remaining conditions were not referred because they were found to be fitting. AR 375-77. Evaluating only those two referred conditions, the IPEB rated him unfit based on spondyloarthropathy at ¶ 10% disability level and found his sleep apnea fitting. AR 141-42. Mr. Torres then requested an FPEB and argued that his combined disability rating should be at least 30%-enabling the benefits associated with a medically retired designation-because of his spondyloarthropathy alongside additional conditions previously raised. AR 175, 282. Nevertheless, the FPEB assigned him a 10% rating for spondyloarthropathy alone, because the other conditions “were not properly referred and were [thus] not considered by the Formal PEB.” AR 137-40.

The Navy canceled the Properly...