Opinion
Civil Action 22-1649 (BAH)
03-28-2024
ERIN CROCKWELL, Plaintiff, v. LLOYD J. AUSTIN, III in his Official capacity as United States Secretary of Defense, et al., Defendants.
MEMORANDUM OPINION
BERYL A. HOWELL United States District Judge
Having served more than eight years in the United States Navy, plaintiff Erin Crockwell was found unfit for duty due to a disability and was medically separated from service on February 11, 2009. The Navy's Physical Evaluation Board (“PEB”) assessed plaintiff's condition and assigned her a 20% disability rating, below the 30% statutory threshold for plaintiff to have been medically retired and eligible for corresponding benefits, and plaintiff was accordingly separated with a one-time severance payment. Within three months of her separation, plaintiff sought disability compensation from the Department of Veterans Affairs (“VA”), which performed its own assessment and determined that plaintiff's disability rating was 40%, i.e., above the threshold to qualify for medical retirement, a conclusion reconfirmed by the VA three times in the four years following her separation. Plaintiff appealed the PEB's 20% disability rating to the Department of Defense's (“DoD”) Physical Disability Board of Review (“PDBR”), which recommended no change in the PEB's disability rating and separation determination.
Plaintiff then initiated this lawsuit against the U.S. Defense Secretary and the U.S. Secretary of the Navy, in their official capacities, and the PDBR, under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq., see Compl. ¶¶ 12-14, 50-53, ECF No. 1, seeking an order that the PDBR decision be “set aside” and “that the case be remanded to the [PDBR] for further proceedings,” Proposed Order for Pl.'s Corrected Cross Mot. for Summ. J., ECF No. 27-2 (capitalization omitted).
Before this Court are the parties' cross-motions for summary judgment. See Defs.' Mot. Summ. J. (“Defs.' MSJ”), ECF No. 21; Defs.' Mem. Supp. Mot. Summ. J. (“Defs.' Mem.”), ECF No. 21; Pl.'s Cross-Mot. Summ. J. (“Pl's Cross-MSJ”), ECF Nos. 24 & 27 (corrected); Pl.'s Mem. Supp. Cross-Mot. Summ. J. & Opp'n Defs.' Mot. Summ. J. (“Pl.'s Opp'n”), ECF No. 27-1; Defs.' Opp'n Pl.'s Cross-Mot. Summ. J. & Reply Supp. Defs.' Mot. Summ. J. (“Defs.' Opp'n”), ECF No. 28; Pl.'s Reply Supp. Cross-MSJ (“Pl.'s Reply”), ECF No. 30.For the reasons stated below, defendants' motion for summary judgment is DENIED, plaintiff's cross-motion for summary judgment is GRANTED, and this case is remanded to the PDBR for further consideration consistent with this Memorandum Opinion.
Plaintiff's corrected cross motion for summary judgment, filed with defendants' consent on August 14, 2023, supersedes her initial cross motion filed on June 29, 2023. See Pl.'s Opp'n at 1 n.1. Certain memoranda and accompanying attachments filed in support of the cross-motions are docketed twice and, to simplify citation, only one of the duplicate submissions is cited. For example, Defendants' Opposition to Plaintiff's Cross-Motion for Summary Judgment and Reply in Support of Defendants' Motion for Summary Judgment is docketed at both ECF Nos. 28 and 29, and only the former is cited.
I. BACKGROUND
The statutory framework and factual and procedural background relevant to the parties' pending cross motions for summary judgment are summarized below.
A. Statutory and Regulatory Framework
An active duty servicemember, who is found “unfit to perform . . . because of physical disability incurred while entitled to basic pay,” 10 U.S.C. §§ 1201(a), 1203(a), “may be either ‘retired' or ‘separated' from service, depending on the degree of disability,” Sissel v. Wormuth, 77 F.4th 941, 942 (D.C. Cir. 2023) (quoting id.). “A retired servicemember is eligible to receive retirement benefits, whereas a separated servicemember receives only severance pay with no retirement benefits.” Sissel, 77 F.4th at 942 (citing 10 U.S.C. §§ 1201(a), 1203(a)). A servicemember, who has served fewer than 20 years, may be eligible for retirement if the Secretary of the relevant military department determines that “the disability is at least 30 percent under the standard schedule of rating disabilities” used by the VA “at the time of the determination,” and one of four other conditions is satisfied. 10 U.S.C. § 1201(b)(3)(B).When the disability is determined to be below this 30% threshold, “the member may be separated from the member's armed force, with severance pay” but without retirement benefits. Id. § 1203(a); see also Sissel, 77 F.4th at 943. These benefits include “lifetime retirement pay, healthcare, and commissary privileges.” U-Ahk-Vroman-Sanchez v. United States Dep't of Def., No. 19-cv-3141 (APM), 2021 WL 394811, at *1 (D.D.C. Feb. 4, 2021) (citing 32 C.F.R. § 199.17; Dep't of Def. Instr. § 1330.17, Enclosure 2, § 3.c(1)).
In conjunction with a 30 percent disability rating, the four alternate conditions for the servicemember to be eligible for medical retirement are: (i) “the disability was not noted at the time of the member's entrance on active duty”; (ii) “the disability is the proximate result of performing active duty”; (iii) “the disability was incurred in line of duty in time of war or national emergency”; or (iv) “the disability was incurred in line of duty after September 14, 1978.” 10 U.S.C. § 1201(b)(3)(B).
1. Medical Evaluation Board (“MEB”)
The Navy makes determinations pursuant to this statutory scheme under the so-called Disability Evaluation System (“DES”), as set forth in Secretary of the Navy Instructions. See Navy Instr. 1850.4E (2002).Under the Navy Instructions used to assess plaintiff's disability, the process proceeds in two steps. A “case usually enters the . . . DES when a Medical Evaluation Board (MEB) is dictated for the purpose of evaluating the diagnosis and treatment of a member who is unable to return to military duty[.]” Id., Enclosure 3, § 3102.a; see also Kelly v. United States, 69 F.4th 887, 890 (Fed. Cir. 2023) (“The Evaluation System process is triggered when a service member is referred for medical evaluation[.]” (citing Navy Instr. 1850.4E, Enclosure 3, § 3106)). If the MEB determines that the “member's fitness for continued naval service [is] questionable by reason of physical or mental impairment,” the MEB refers the servicemember to a PEB, id., Enclosure 3, § 3201.a.
Available at: https://www.secnav.navy.mil/mra/CORB/Documents/SECNAVINST-1850-4E.PDF. In 2019, the Navy promulgated Navy Instruction 1850.4F, which supersedes Navy Instruction 1850.4E. See Navy Instr. 1850.4F (June 2019). Plaintiff cites the DES manual that implements Navy Instruction 1850.4F, see Pl.'s Opp'n at 6-7, but the legacy Instruction 1850.4E is discussed here, as the Instruction used to evaluate plaintiff's disability, see Sissel, 77 F.4th at 943 (relying on the “legacy DES” that was “used to evaluate [plaintiff's] disability”).
2. Physical Evaluation Board (“PEB”)
At this second step, the PEB initially determines whether the member is “fit” or “unfit” to “perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay.” Id., Enclosure 3, § 3301; see also id., Enclosure 1, § 1004. An “informal” PEB first conducts a documentary review of the servicemember's record, including the MEB report, related documents, and “non-medical information,” id., Enclosure 4, §§ 4201, 4209, and issues preliminary findings regarding “[f]itness to continue naval service, degree of disability, and entitlement to disability pay,” id. § 1004.c. If these findings show that the servicemember is “unfit” due to one or more disability, the PEB assigns a percentage rating to each “unfitting condition[]” using the VA's Schedule for Rating Disabilities (“VASRD”), id., Enclosure 3, § 3802.a; see also Sissel, 77 F.4th at 943. “The VASRD contains a schedule of medical conditions, each identified by a diagnostic code and assigned a disability rating percentage or range of percentages.” Sissel, 77 F.4th at 943 (citation omitted). Any “reasonable doubt . . . regarding service origin, the degree of disability, or any other point . . . will be resolved in favor of the [servicemember].” 38 C.F.R. §§ 3.102, 4.3; see also U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *2 (citations omitted); Navy Instr. 1850.4E, Enclosure 3, § 3804.a. The informal PEB's findings “become the PEB final determination upon . . . waiver of the hearing right by the member.” Navy Instr. 1850.4E, Enclosure 1, § 1004.b; see also id., Enclosure 4, § 4213.b(1).As relevant here, however, a servicemember “discharged between September 11, 2001, and December 31, 2009, with a disability rating percentage of 20% or less may appeal to the Physical Disability Board of Review (PDBR).” Sissel, 77 F.4th at 944.
See Navy Instr. 1850.4E, Enclosure 2, § 2033 (“A finding by the PEB [] that the member is Fit” means “that the member is reasonably able to perform the duties of his or her office, grade, rank or rating”); id., § 2085 (“A finding by the PEB that the member is Unfit” means “that the member is unable to reasonably perform the duties of his or her office, grade, rank or rating”).
Alternatively, if the servicemember disagrees with those findings, she may “exercise the right to a hearing,” see Navy Instr. 1850.4E, Enclosure 1, § 1004.c(4), 1004.d, and the “Formal PEB” will conduct a hearing “subject to the review of” the PEB president, who “will issue the final determination,” id. § 1004.f.
3. Physical Disability Board of Review (“PDBR”)
Congress established the PDBR as part of the Wounded Warrior Act, see Pub. L. No. 110181, § 1643(a)(1), 122 Stat. 3, 430, 465-67 (2008) (codified as amended at 10 U.S.C. § 1554a), to “address the disparities in the disability ratings issued by the military departments in the [DoD] and the VA during that period,” Sissel, 77 F.4th at 944 (quotation marks and citation omitted). As then-chairman of the Veterans' Disability Benefits Commission testified, the “DoD ha[d] [a] strong incentive to assign ratings less than 30 percent so that only separation pay is required and continuing family health care is not provided,” J. Hearing Before the S. Comm. on Armed Servs. & S. Comm. on Veterans' Affs., 110th Cong. 104 (2007) (statement of Lt. Gen. James Terry Scott (Ret.), Chairman, Veterans' Disability Benefits Commission).
As codified, “[u]pon the request of a covered individual . . . the [PDBR] shall review the findings and decisions of the [PEB]” “based on the records of the armed force concerned and such other evidence” that the former servicemember submits in support of her application. 10 U.S.C. § 1554a(c)(1)-(2). Under DoD Instructions, the PDBR must “conduct reviews of the disability rating(s) . . . in accordance with the VASRD in effect at the time of separation.” DoD Instr. 6040.44, Enclosure 3, § 4.f (2015); see Coleman v. Kendall, 74 F.4th 610, 613 (4th Cir. 2023), cert. denied, No. 23-667, 2024 WL 674827 (Feb. 20, 2024). In addition, the PDBR must (1) “[c]ompare any VA disability rating for the specifically military-unfitting condition(s) with the PEB combined disability rating;” and (2) “[c]onsider any variance in its deliberations and any impact on the final PEB combined disability rating, particularly if the VA rating was awarded within 12 months of the former Service member's separation.” DoD Instr. 6040.44, Enclosure 3, § 4.a(5) (emphasis supplied). “Where there is a question as to which of two evaluations shall be applied,” the Board must assign “the higher evaluation . . . if the disability picture more nearly approximates the criteria required for that rating.” 38 C.F.R. § 4.7. Further, as with the PEB, the PDBR must resolve “any reasonable doubt . . . in favor of [the former servicemember] pursuant to 38 C.F.R. § 4.3.” Coleman, 74 F.4th at 619; see also U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *2 (citing 38 C.F.R. §§ 3.102, 4.3).
Following its review, the PDBR may “‘recommend to the Secretary' the issuance of a new disability rating, the modification of a previous rating, the recharacterization of a [former servicemember's] separation to include medical retirement, or no change.” Sissel, 77 F.4th at 944 (quoting 10 U.S.C. § 1554a(d)(1)-(4)). If the PDBR recommends “‘not to correct the military records,' its recommendation is final.” Id. (quoting 10 U.S.C. § 1554a(e)(3)). If the former servicemember “remains dissatisfied with the Secretary's determination, [they] may seek judicial review under the Administrative Procedure Act.” Id. (citing 5 U.S.C. § 702).
B. Factual Background
Plaintiff enlisted in the U.S. Navy on February 7, 2001, serving on active duty as a Mess Management Specialist (now known as Culinary Specialist) prior to her separation on February 11, 2009. Compl. ¶ 15; Admin. Record (“AR”) 415-17, ECF No. 31-1. Plaintiff's responsibilities varied from “providing operational support to active air and surface units” to “daily preparation and safe handling of food and ensuring outstanding customer service to 234 personnel.” Compl. ¶ 16; AR 407. She earned seven awards, see Compl. ¶ 15; AR 400, 410, and was assessed as a “multi-talented individual . . . head and shoulders above her peers,” AR 408 (June 2007 performance evaluation), “[t]otally devoted to the command's mission,” id., with “unlimited potential to succeed,” AR 412 (June 2008 performance evaluation); see also Compl. ¶ 16. Unfortunately, plaintiff's progressively worsening back condition cut short her promising Navy career.
1. Onset of Plaintiff's Back Pain, Initial Treatment, and Back Surgery
Having served nearly five years in an active-duty role that was “heavily dependent on physical activity, including bending and lifting,” AR 54 (MEB report); Compl. ¶ 17, plaintiff's “back injury gradually onset beginning in January 2006,” Compl. ¶ 17; AR 35.After an initial referral, with the diagnosis of lumbago, to physical therapy in May 2006, plaintiff went on to attend seven sessions over two months, during which she “reported experiencing continuous pain in [the] low back, with pain radiating down into the right buttock, right lower leg and into the right foot,” limiting her functional mobility. AR 35, AR 53.
The record contains reference to plaintiff's complaints of “intermittent low back pain” beginning in December 2001, AR 53, which pain was “treated conservatively,” id. No argument has been raised here that plaintiff's disability was not service connected, consistent with the PEB's determination that plaintiff's disability “was incurred while entitled to receive basic pay.” AR 12.
Experiencing no improvement in her condition, plaintiff was examined at a primary care clinic, on June 28, 2006, and reported “continued [symptoms] of lower back pain.” AR 111. She “was sent for an MRI” of her lumbar spine in July 2006 “and was found to have a large posterior herniation at [the] ¶ 5-S1” joint. AR 53 (MEB report). On August 4, 2006, she received an initial diagnosis of “herniated intervertebral disc.” AR 105; see Pl.'s Opp'n at 3-4. Four months later, on December 21, 2006, plaintiff was examined by neurosurgeon Kevin R. Teal, who diagnosed plaintiff with spondylosis, sciatica (lumbar radiculopathy), and lumbago. AR 245; see also AR 53 (MEB report). During the exam, plaintiff reported “constant (76%-100%) radiating, shooting, stabbing back and right gluteal pain,” which pain plaintiff rated as “4/10,” with “10 being the most severe.” AR 245. Her condition was “aggravated by sitting, standing and lessened by lying down.” Id. Dr. Teal nevertheless reported that plaintiff's “prognosis [was] good.” Id.
Plaintiff, who was “hesitant to undergo surgery,” was “referred out to pain management for nonsurgical intervention.” AR 53. By February 2007, however, after “a series of epidural injections which were of limited success . . . she decided to go ahead with surgery.” Id.
On February 22, 2007, plaintiff was placed on her first period of Limited Duty (“LIMDU”) based on a diagnosis of “lumbar L5-S1 disc herniation.” AR 58. The LIMDU report recorded that plaintiff had “lower back pain radiating down [her] right leg,” id., and was restricted from “deployments,” “transfers to remote areas,” and “prolonged standing,” among other limitations. Id. One month later, on March 28, 2007, plaintiff underwent lumbar laminectomy/discectomy surgery. AR 53, AR 246; see also Compl. ¶ 19.
2. Post-Surgical Continuation of Back Pain
Following her surgery, plaintiff was, again, referred to physical therapy with the diagnosis of spondylosis, sciatica, and lumbago. AR 35, AR 41. The surgery did not remedy the pain plaintiff was suffering and, arguably, aggravated her back issues, with pain now occurring on both sides of her extremities instead of just on her right side. See Pl.'s Opp'n at 28 (describing her “poor back surgery” and pointing out that “before the surgery she only experienced right-sided symptoms but after she experienced symptoms on both sides”); AR 33 (May 2008 neurosurgical evaluation reporting “[m]ild bilat. L4/5 foramial stenosis” and “[p]rior right L5/S1 lami/foram”).
During her initial post-surgery physical therapy evaluation on May 23, 2007, plaintiff's low back flexion was recorded as “70% stretch type pain down the [right] leg,” and her extension, “50% limited by pain.” AR 35, AR 40. Plaintiff went on to attend eight sessions of physical therapy, during which sessions she reported persistent pain. See AR 35 (during reevaluation on July 18, 2007, plaintiff “was still experiencing pain with soft tissue mobility especially in [right] hip/buttock areas and in the low back”); id. (during visit on August 14, 2007, plaintiff “reported she was still experiencing pain in the leg especially with bending activities”); id. (physical therapy clinician reporting, in summary report, dated November 18, 2008, that during subsequent sessions, plaintiff “was able to progress through her activities but was still experiencing pain in leg and cramping in foot with extension activities”). During the August 14, 2007, reevaluation, plaintiff's range of motion (“ROM”) was recorded as flexion “90%, mild discomfort” and extension “60%, mild discomfort.” AR 262.
While still attending physical therapy, plaintiff returned to work on June 1, 2007, with a 30-pound lifting restriction. AR 29. Two months later, on August 16, 2007, plaintiff, who was then pregnant with twins, was placed on her second period of LIMDU. AR 57. While on LIMDU, plaintiff was diagnosed, on December 10, 2007, with pre-term labor and placed on bed rest until her delivery of twins on March 3, 2008. AR 53, AR 57, 233, 240. Plaintiff returned to Naval service the next month, on April 16, 2008, six weeks after the birth of her twins, AR 233, but continued to suffer from lower back pain, see AR 29 (Dr. Teal reporting, in November 16, 2008, letter to PEB, that plaintiff's “symptoms returned in April 2008 when she resumed work after her pregnancy”). Lumbar MRI and lumbar x-rays taken on May 2, 2008, showed “no new disc bulges but L5/S1 disc degeneration that [could] be aggravated by . . . prolonged sitting, or standing.” Id.; see also AR 235 (Dr. Teal reporting, on May 8, 2008, that MRI and x-rays showed, among other things, “disc degeneration” at the L5-S1 joint and “mild [bilateral] ¶ 4/5 foraminal stenosis” with “prior right [side] ¶ 5/S1 lami/foram” (capitalization omitted)).
During a May 8, 2008, follow-up visit, Dr. Teal, without measuring plaintiff's range of motion, reported that plaintiff had “[n]ormal gait and station,” and that her back suffered “[n]o tenderness to palpation or stepoffs,” but downgraded her “prognosis [as] fair,” AR 235, noting that plaintiff's “treatment progress demonstrate[d] she has recurrent pain,” id. Indeed, at this visit, plaintiff reported “constant (76%-100%) sharp shooting” pain more severe than she had rated during her December 2006 visit, measuring “7/10,” with “10 being the most severe,” AR 233; compare AR 245 (during December 2006 evaluation by Dr. Teal, plaintiff rating severity of pain as “4/10,” with “10 being the most severe”). Having considered plaintiff's condition, Dr. Teal concluded that plaintiff was “not considered [] deployable and should proceed with Medical Board.” AR 235. Shortly thereafter, on May 13, 2008, plaintiff began her third period of LIMDU. AR 56, AR 71.
3. Medical Evaluation Board Referral to Physical Evaluation Board
On June 23, 2008, plaintiff was examined by the MEB, which documented her complaints of “chronic pain in [her] lower back, numbness in both fee[t],” and “[s]hooting pain down both right and left legs.” AR 64-65. The MEB's subsequent September 26, 2008, narrative summary reported that plaintiff's prognosis was “poor.” AR 54 (capitalization omitted). Plaintiff had “permanent significant activity limitations which preclude[d] her from active service, and . . . there [was] no further treatment [to] recommend which would improve her function level or pain symptoms.” Id. The MEB referred plaintiff to the PEB “for further evaluation and disposition.” AR 55.
4. Physical Evaluation Board's Disability Rating of 20% and Determination of Plaintiff's Medical Separation
On December 10, 2008, the PEB determined that plaintiff was “unfit to perform the duties of [her] office . . . due to a physical disability” of “chronic low back pain [post] laminectomy and discectomy L5-S1,” AR 11-12 (capitalization omitted), and assigned her a 20% disability rating for her service-connected disability based on VASRD code 5237, id.; see 38 C.F.R. § 4.71a (ratings schedule for the musculoskeletal system with listing of VA diagnostic codes). On January 15, 2009, the PEB notified the Chief of Naval Personnel of its decision that plaintiff be separated “with severance pay but without further disability benefits.” AR 11. On February 11, 2009, plaintiff was medically separated from the Navy due to her disability. AR 415.
5. VA Evaluation and Disability Rating of 40%
Less than three months after her separation from the Navy, the VA received, on April 22, 2009, plaintiff's application for disability compensation. AR 422. The next month, on May 21, 2009, plaintiff underwent a “Compensation and Pension” (“C&P”) evaluation for her low back condition by VA physician James Irvin, AR 568-69; AR 5 (PDBR decision discussing VA evaluation). During the exam, plaintiff reported that her “low back pain [was] constant,” “radiate[d] down both thighs,” and was “so bothersome that it impair[ed] her ability to take care of her children,” and that while “before the surgery, she experienced only right-sided symptoms . . . after the surgery, she experienced both sides.” AR 568-69. While noting that “military medical records [were] not available . . . for incorporation into [the] report,” Dr. Irvin recorded that plaintiff's “low back demonstrate[d] markedly impaired motion,” finding that her “gait [was] slow but normal and without any assistive device.” AR 569. Dr. Irvin further recorded plaintiff's range of motion measurements as “extension backward to 5 degrees, forward flexion to 10 degrees, lateral flexion to 10 degrees both sides and lateral rotation to 5 degrees both sides,” which “range of motion [was] painful from the start of the motion.” Id. Plaintiff was nevertheless “capable of three slow repeats of that range of motion and on such repetitive motion, the [] range of motion . . . [was] not additionally limited by pain, fatigue, weakness and/or lack of endurance.” Id. While “[i]ncapacitating occurrences of the low back pain [had] not occurred,” plaintiff's “low back pain [was] constant and of variable severity limiting her activities of daily living[.]” Id.
Based on the VA exam results, a review of plaintiff's medical records, and application of the ratings schedule for musculoskeletal system diseases used by the PEB, see 38 C.F.R. § 4.71a, the VA assigned plaintiff a 40% disability rating for service-connected “lumbar degenerative disc disease, L5-S1,” AR 432-34. The VA first explained that under this ratings formula, an “evaluation of 40 percent is granted for forward flexion of the thoracolumbar spine of 30 degrees or less[.]” AR 434. The VA then compared plaintiff's range of motion measurements recorded by Dr. Irvin against normal measurements, noting that the physical exam showed “range of motion of [plaintiff's] lumbar spine after three repetitions as forward flexion from 0 to 10 degrees (normal is from 0 to 90 degrees), with pain; extension from 0 to 5 degrees (normal is from 0 to 30 degrees), with pain; right and left lateral flexion from 0 to 10 degrees each way (normal is from 0 to 30 degrees each way), with pain; and right and left lateral rotation from 0 to 5 degrees each way (normal is from 0 to 30 degrees each way), with pain.” AR 435 (VA rating determination). The VA explained that “since forward flexion of [plaintiff's] lumbar spine [was] shown to be less than 30 degrees,” the “40 percent evaluation [was] assigned.” AR 435.
Under the pertinent ratings schedule for musculoskeletal disabilities, which applies to VASRD diagnostic codes 5237 (applied by the PEB) and 5243 (by the VA), see 38 C.F.R. § 4.71a (ratings schedule for musculoskeletal disabilities); AR 4, a 20% disability rating is applied to “[f]orward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees[,]” and a 40% disability rating is appropriate where there is “forward flexion of the thoracolumbar spine 30 degrees or less[,]” 38 C.F.R. § 4.71a . As plaintiff correctly explains, without dispute from defendants, “[t]he difference in the diagnostic codes is not material here because both [diagnostic codes] 5237 and [] 5243 are evaluated under the same general rating formula for diseases and injuries of the spine.” Pl.'s Opp'n at 10 n.3; see AR 5 (PDBR noting the “PEB rated the chronic low back condition 20%, coded 5237 (lumbosacral strain)” and “[t]he VA rated the low back condition 40%, coded 5243 (intervertebral disc syndrome)”).
Notably, the VA reaffirmed this 40% disability rating based on range of motion measurements recorded by different VA physicians in subsequent rating decisions over the next four years. See AR 463-65 (April 2010 rating decision stating the “[e]valuation of lumbar degenerative disc disease . . . which is currently 40 percent disabling, is continued,” based on recorded “forward flexion of the thoracolumbar spine of 30 degrees or less”); AR 497-98, AR 507, AR 514-15 (April 2011 VA rating decision reporting the same based on January and March 2011 exams by VA Dr. Lenore Quinn showing plaintiff's range of motion as “forward flexion of the thoracolumbar spine of 10 degrees”); AR 541 (October 2013 VA rating decision reaffirming 40 percent disability rating based on recorded range of motion measurements); see also AR 48182 (May 26, 2010 exam by VA Dr. Nina Chychula recording plaintiff's “range of motion with a goniometer” and noting that plaintiff “cannot walk more than one block, stand more than 15 minutes or ascend more than one flight of stairs without needing to stop because of her low back pain”).
6. PDBR Appeal and Navy Determination
After four years of consistent VA disability ratings of 40%, plaintiff applied, on March 20, 2014, to the PDBR for an increase in her prior PEB's 20% disability rating. AR 7. On May 27, 2016, following review of plaintiff's application, military medical records, and VA records, the PDBR recommended “no re-characterization of [plaintiff's] disability and separation determination.” AR 6.
In its three-page decision, the PDBR began by summarizing plaintiff's medical history, including: (1) that, at plaintiff's initial post-surgery physical therapy evaluation on May 23, 2007, plaintiff's “range of motion [] was described as flexion 70% of normal (approximately 60 degrees),” that seemingly improved, upon reevaluation, on August 14, 2007, “as flexion 90% of normal (approximately 80 degrees),” AR 4-5; (2) that plaintiff “was placed on bedrest for preterm labor in December 2007 and delivered twins in March 2008,” AR 5; and (3) that during “reevaluation by neurosurgery in May 2008,” Dr. Teal concluded that plaintiff's “back condition could not be adequately rehabilitated to meet the physical requirements of [her] medical specialty,” id. While noting that, at the May 2008 exam, plaintiff “reported [low back pain] with sharp shooting pain into both [lower extremities],” id., and Dr. Teal's opinion that plaintiff's condition “would be aggravated by strenuous or prolonged physical activities,” the PDBR highlighted that plaintiff had “normal gait and station,” her “[m]uscle tone was normal,” and that “there were no new abnormalities noted on the recent MRI,” id.
The PDBR next reviewed the MEB and VA exam reports. As to the MEB exam, the PDBR acknowledged plaintiff's “reported chronic [lower back pain] and numbness in her feet,” AR 5, which she also reported at the May 2009 VA exam, id., “performed 3 months after [her] separation,” id. Also, at the VA exam, plaintiff “reported constant [low back pain] that radiated to the backs of both knees and numbness in all of her toes,” and plaintiff's back range of motion was recorded as “flexion of 10 degrees and combined [range of motion] ¶ 45 degrees, with painful motion.” Id. The VA physician's range of motion findings were couched in other observations that “there was no additional loss of [range of motion] with three repetitions”; plaintiff “denied flare-ups, incapacitating episodes, or use of an assistive device for walking”; and the exam “noted a slow, but normal gait.” Id.
The PDBR then compared the Navy and VA's rating determinations, summarizing basic details in a chart, and offered three principal reasons for its decision to accord less weight to the VA's disability rating determination. AR 4-6. First, the VA's disability rating was based on a VA exam conducted in May 2009 that contained “no mention of measurement with a goniometer, as required by the VASRD.” AR 5. Second, “ROM values based on subjective pain responses as recorded by the VA examiner were not consistent with a normal gait and with the objective absence of spasm, guarding, or abnormal contour which was documented in the same examination.” AR 6. Finally, “[t]here was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements,” compared to the 2007 physical therapy evaluation measurements. AR 5.
By contrast, “[p]hysical therapy evaluations after the laminectomy” in May and August 2007, i.e., one and a half years prior to plaintiff's separation date, “showed flexion of greater than 60 degrees and flexion of 90%.” AR 5. Despite acknowledging that, for one and a half years from August 2007 until plaintiff's separation, “there [were] no [range of motion] evaluations in record from that time period,” AR 5-6, the PDBR relied on a “neurosurgical evaluation in May 2008,” which “did not note [range of motion]” and found “no evidence of new abnormalities on MRI,” AR 6. Further, at that May 2008 neurosurgical evaluation, plaintiff “denied joint pain, stiffness, swelling or weakness of muscles or joints or difficulty walking,” and her “[g]ait was normal and there was no tenderness.” AR 6. The PDBR gave no significance to other developments in this interim period, including that plaintiff had a difficult twin pregnancy, requiring placement “on months of bed rest,” then gave birth to twins, and “reported worsening [low back pain] and right leg pain” after returning to work the month after giving birth to twins. AR 5.
After concluding that plaintiff's disability “more nearly approximated the 20% rating,” the PDBR also determined that the evidence did not support increasing the disability rating above 20% using an “alternate rating formula.” AR 6. First, “an additional disability rating” under an “alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome . . . was not justified” because, while plaintiff had “intervertebral disc disease, there were no incapacitating episodes requiring bed rest . . . to warrant consideration under the alternate VASRD formula.” Id. Next, an additional disability rating was not “justified for peripheral nerve impairment due to radiculopathy,” since, although plaintiff “reported radiating pain to both legs” and “radiating pain from nerve involvement,” and although “MRI findings supported some level of nerve irritation,” id., “examinations proximate to separation noted normal examinations of the lower extremities” and “electrodiagnostic studies performed 13 months after separation were normal.” Id. Moreover, “radiating pain from nerve involvement . . . [was] subsumed under the general spine rating criteria, which specifically states ‘with or without symptoms such as pain,'” and “[t]here [was] no evidence . . . that objective motor or sensory deficits existed to any degree that could be described as functionally impairing.” Id. The PDBR accordingly concluded that “there was insufficient cause to recommend a change in the PEB fitness determination for the chronic low back pain condition.” Id.
On June 10, 2016, the Assistant Secretary of the Navy accepted the PDBR's recommendation, and on June 30, 2016, that determination was communicated to plaintiff. AR 12.
C. Plaintiff's Lawsuit and Pending Cross Motions for Summary Judgment
Nearly six years after receipt of the Navy's determination, plaintiff initiated the instant suit on June 8, 2022. See Compl. In a single-count complaint, plaintiff challenges the Navy's decision to “adopt the PDBR's recommendation” as “arbitrary, capricious, unsupported by substantial evidence, or contrary to law,” in violation of the APA, 5 U.S.C. § 706. See id. ¶¶ 50-53. With the filing, in December 2023, of the parties' Joint Appendix of Relevant Portions of the Certified Administrative Record, ECF No. 31, the pending cross-motions for summary judgment are ripe for resolution.
The Administrative Record totals just over 630 pages, and includes the PDBR application and decision, the PEB notification of decision, plaintiff's reconsideration request, the MEB report, medical records, military personnel records, VA records, VA exams, and civilian medical records. See Cert. of Admin. Rec. Index, ECF No. 16-1; see also D.D.C. Civ. R. 7(n)(1) (requiring, for motions involving judicial review of administrative agency actions, that the agency “file a certified list of the contents of the administrative record with the Court ....”). The Office of the Secretary of the Navy certified that the docketed index of the administrative record was a “true and accurate redacted copy of the administrative files of the Department of the Navy relating to the case of Erin K. Crockwell[.]” Cert. of Admin. Rec. Index at 1. The parties' Joint Appendix totals 158 pages, and includes a subset of records from the same categories, save plaintiff's civilian medical records. See AR; Joint App'x of Relevant Portions of the Certified Admin. Rec., ECF No. 31.
II. LEGAL STANDARD
A. Administrative Procedure Act
The APA provides for judicial review of any “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704, and “directs courts to ‘hold unlawful and set aside agency action' that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[,]'” Transportation Div. of Int'l Ass'n of Sheet Metal, Air, Rail v. Fed. R.R. Admin., 40 F.4th 646, 656 (D.C. Cir. 2022) (quoting 5 U.S.C. § 706(2)). This standard “‘requires agencies to engage in reasoned decisionmaking' . . . [and] to reasonably explain to reviewing courts the bases for the actions they take and the conclusions they reach.” Bhd. of Locomotive Engineers & Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 115 (D.C. Cir. 2020) (quoting Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S.Ct. 1891, 1905 (2020)). “[J]udicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action,'” Regents, 140 S.Ct. at 1907 (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)), and the agency, too, “must defend its actions based on the reasons it gave when it acted,” id. at 1909. The agency's decision will be reversed if it “is not supported by substantial evidence, or the agency has made a clear error in judgment.” Spirit Airlines, Inc. v. U.S. Dep't of Trans., 997 F.3d 1247, 1255 (D.C. Cir. 2021) (quoting J.A. Jones Mgmt. Servs. v. FAA, 225 F.3d 761, 764 (D.C. Cir. 2000)). “[T]he substantial evidence standard [] require[s] ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion' . . . something ‘more than a scintilla' but ‘less than a preponderance of the evidence,'” California Pub. Utilities Comm'n v. FERC, 20 F.4th 795, 802 (D.C. Cir. 2021) (citations omitted); see also Phoenix Herpetological Soc'y, Inc. v. United States Fish & Wildlife Serv., 998 F.3d 999, 1005 (D.C. Cir. 2021) (“[T]he arbitrary and capricious standard does not substantively differ from the substantial evidence test when ‘performing [the] function of assuring factual support.'” (second alteration in original) (citation omitted)).
The “ordinary arbitrary-and-capricious” standard applies to PDBR determinations. Sissel, 77 F.4th at 947 (citation omitted). “Of course, even ordinary arbitrary-and-capricious review is ‘highly deferential' and ‘presumes the validity of agency action.'” Id. (brackets omitted) (quoting AT&T Corp. v. FCC, 220 F.3d 607, 616 (D.C. Cir. 2000)).
B. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment only if there is no genuine issue of material fact and judgment in the movant's favor is proper as a matter of law.” Soundboard Ass'n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006)); see also Fed. R. Civ. P. 56(a). In APA cases such as this one, involving cross-motions for summary judgment, “the district judge sits as an appellate tribunal. The entire case on review is a question of law.” Oceana, Inc. v. Locke, 670 F.3d 1238, 1240 (D.C. Cir. 2011) (quoting Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). Thus, a court need not and ought not engage in fact finding, since “[g]enerally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep't of Homeland Sec., 726 F.3d 170, 171 (D.C. Cir. 2013) (noting, in an APA case, that “determining the facts is generally the agency's responsibility, not [the court's]”). Judicial review, when available, is typically limited to the administrative record, since “[i]t is black-letter administrative law that in an Administrative Procedure Act case, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.” New LifeCare Hosps. of N. Carolina, LLC v. Becerra, 7 F.4th 1215, 1224 (D.C. Cir. 2021) (quoting CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014)). III. DISCUSSION
Plaintiff challenges, as arbitrary, capricious, contrary to law, and unsupported by substantial evidence, the PDBR's decision not to modify her disability rating. Pl.'s Opp'n at 1330; Pl.'s Reply at 6-16. Specifically, plaintiff challenges the PDBR's decision on three grounds, for failing (1) “to adequately articulate its reasoning for assigning [plaintiff] a disability rating of 20%,” Pl.'s Opp'n at 24; (2) to “consider record evidence showing the actual degree of her back disability,” id.; and (3) to comply with the legal requirement “to give particular consideration to [plaintiff's] VA rating within 12 months of discharge,” id. at 18. Defendants counter that the PDBR “issued its decision based on a review of the evidence in the record, adequately explained the basis for its decision, and made its decision consistent with the relevant law.” Defs.' Opp'n at 1. For the reasons that follow, plaintiff persuades that the PDBR's decision-making falls short of satisfying the APA's requirements.
A. PDBR's Discounting of May 2009 VA Examination
Plaintiff argues that defendants' “decision to disregard the proximate-in-time May 2009 VA examination while also placing greater weight on other outdated and flawed examinations” was arbitrary, capricious, contrary to law, and unsupported by substantial evidence. Pl.'s Reply at 7; see also Pl.'s Opp'n at 24-29. This Court agrees.
The parties do not dispute that the “the substantial evidence standard of review . . . does not apply here,” since the standard “applies only to formal adjudications” and the PDBR's “review of a disability rating is informal[.]” Defs.' Mem. at 16 n.6 (citing McKinney v. Wormuth, 5 F.4th 42, 46 (D.C. Cir. 2021) (Army Board for Correction of Military Records' “adjudication of a denial of a Purple Heart is informal and so that [substantial evidence] standard does not apply here”)); Defs.' Opp'n at 1 n.1; see, generally, Pl.'s Opp'n; Pl.'s Reply. At the same time, as defendants concede, “the arbitrary and capricious standard does not substantively differ from the substantial evidence test when ‘performing [the] function of assuring factual support,'” Defs.' Mem. at 16 n.6 (quoting Phoenix Herpetological Soc'y, Inc., 998 F.3d at 1005); see also White v. Mattis, No. 18-cv-2867 (ESH), 2019 WL 6728448, at *6 (D.D.C. Dec. 11, 2019) (“Because the [PDBR] ignored this seemingly significant evidence that conflicted with its conclusion, the Court cannot conclude that the [PDBR's] decision is supported by substantial evidence.” (citation omitted)).
When making decisions, including, as here, approving a PEB rating determination, the PDBR is “required to ‘examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.'” Nasdaq Stock Mkt. LLC v. Sec. & Exch. Comm'n, 38 F.4th 1126, 1135 (D.C. Cir. 2022) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). The agency “must ‘explain why it decided to act as it did' by providing a ‘statement . . . of reasoning' rather than a mere ‘conclusion.'” Cboe Futures Exch., LLC v. Sec. & Exch. Comm'n, 77 F.4th 971, 980 (D.C. Cir. 2023) (citation omitted); see also AmerijetInt'l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (“[C]onclusory statements will not do; ‘an agency's statement must be one of reasoning.'” (emphasis in original) (quoting Butte Cnty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010)). While the agency's decision “need not be ‘a model of analytic precision to survive a challenge' . . . it must be ‘reasonable and reasonably explained.'” In re NTE Connecticut, LLC, 26 F.4th 980, 988 (D.C. Cir. 2022) (citations omitted). “The Board's decision is arbitrary if it ‘entirely fail[s] to consider an important aspect of the problem' or ‘offer[s] an explanation for its decision that runs counter to the evidence before the agency.'” Fred Meyer Stores, Inc. v. Nat'l Lab. Rels. Bd., 865 F.3d 630, 638 (D.C. Cir. 2017) (alterations in original) (quoting State Farm, 463 U.S. at 43).
Defendants urge that special deference be accorded to the PDBR decision, citing cases applying the “‘unusually deferential application of the arbitrary or capricious standard' of the APA” to review decisions of military Boards for Correction of Military Records. Defs.' Mem. at 12-14, 16-17 (quoting Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000), and collecting cases); Defs.' Opp'n at 13 (citing additional case of Escobedo v. Green, 602 F.Supp.2d 244, 248 (D.D.C. 2009)). Yet, as defendants acknowledge, see Defs.' Opp'n at 2 n.2, the D.C. Circuit has clarified that this “unusually deferential” standard does not apply to review of PDBR determinations, Sissel, 77 F.4th at 946-47.
Here, the PDBR's decision giving less weight to plaintiff's May 2009 VA exam's findings, in favor of her 2007 physical therapy and 2008 neurosurgical exams, each of which was marked by limitations the PDBR failed adequately to consider, was arbitrary, capricious, and unsupported by substantial evidence.
1. Disregard of Proximate-In-Time May 2009 VA Examination
First, by according less weight to the 2009 VA exam than to less proximate-in-time data, the PDBR did not “reasonably reflect upon the information contained in the record and grapple with contrary evidence-disregarding entirely the need for reasoned decisionmaking.” Fred Meyer Stores, Inc., 865 F.3d at 638 (citation omitted). The parties agree that the PDBR accorded “the VA rating less weight,” Defs.' Opp'n at 7-9, due principally to three considerations: (1) the VA exam made “no mention of measurement with a goniometer, as required by the VASRD,” AR 5; (2) related to the first reason, the PDBR apparently assumed that the VA exam's range of motion, or ROM, values were “based on subjective pain responses” that “were not consistent with a normal gait and with the objective absence of spasm, guarding, or abnormal contour which was documented in the same examination,” AR 6; and (3) the PDBR discerned “no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements” relative to the less proximate-in-time 2007 physical therapy examinations, AR 5; see Pl.'s Reply at 7; Defs.' Opp'n at 7-9.Each justification is seriously flawed.
The PDBR also highlighted that the Joint Disability Evaluation Tracking System (“JDETS”) indicated that plaintiff “was only missing 2-3 hours of work per week,” AR 6; see also AR 19-20 (JDETS October 21, 2008, handwritten notes), which the PDBR found in tension with plaintiff's reported pain, AR 6. This PDBR finding simply ignores by failing to address the MEB's assessment recorded one month earlier, that plaintiff's “command and co-workers [] have to do over 75% of [plaintiff's] duties, as her activity limitations preclude her from doing most [of] the activities required for a culinary specialist of her rate,” AR 54 (September 26, 2008, MEB report), or the Navy's assessment that plaintiff was additionally “unable to fully perform her job” when working due to her disability, AR 71 (Navy commanding officer's August 19, 2008, non-medical assessment).
a) PDBR's Flawed Conclusion About Use of Goniometer.
As context for the PDBR's first justification, VA regulations provide that “use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs.” 38 C.F.R. § 4.46; see Goniometer, Attorneys' Dictionary of Medicine (defining goniometer as an “instrument for measuring the range of motion of a joint”). The PDBR inferred that, notwithstanding this regulation, Dr. Irvin, the VA medical doctor performing plaintiff's VA exam in May 2009, did not use a goniometer because the exam report made “no mention of measurement with a goniometer.” AR 5, AR 568-69. The record of the May 2009 VA exam does not indicate that Dr. Irvin eschewed use of a goniometer or used an alternative device to take the appropriate measures, but simply is silent on the device used to obtain the range of motion measurements. From this silence, the PDBR leaps to the conclusion that a medical physician for the VA failed to comply with a VA regulation to use a specific medical device to measure range of motion. This is a leap too far into pure speculation. Omitting mention of the specific device or methodology used to obtain measurements or results relevant to a medical examination does not mean, as the PDBR assumes, that such device or methodology was not used.
Indeed, the PDBR's assumption that Dr. Irvin did not use a goniometer is gravely undercut by the fact that the exam contained “range-of-motion measurements [] recorded in degrees,” which, as plaintiff argues, “would be identified by a goniometer,” and defendants do not contend otherwise. Pl.'s Reply at 8-9; see AR 569. Indeed, the PDBR noted that during the VA exam, “‘low back' ROM was recorded as 10 degrees of flexion” and a “combined ROM of 45 degrees.” AR 5; see also AR 435 (VA rating decision reporting that VA exam showed “forward flexion from 0 to 10 degrees . . . extension from 0 to 5 degrees . . . right and left lateral flexion from 0 to 10 degrees each way . . . and right and left lateral rotation from 0 to 5 degrees each way”). Considering these ROM measurements recorded in degrees, the PDBR's conclusion that a goniometer was not used merely because the VA exam report does not expressly “mention [] measurement with a goniometer,” AR 5, is akin to the faulty conclusion that no thermometer or weighing scales were used during a medical examination, in the face of a patient's recorded temperature in precise degrees or a patient's weight in precise pounds and ounces, simply because no mention is made of the actual use of a thermometer or scales. Such reasoning falls short of the PDBR's duty to engage in “reasoned decisionmaking.” Bhd. of Locomotive Engineers & Trainmen, 972 F.3d at 115 (citation omitted).
Defendants defend the reasonableness of the PDBR “to infer that Plaintiff's range of motion had not necessarily been performed with a goniometer at the May 22, 2009, evaluation” because the VA's subsequent exams of plaintiff “specifically recorded that they had measured Plaintiff's range of motion with a goniometer.” Defs.' Opp'n at 8 (citations omitted). Yet, the PDBR did not articulate this explanation in its determination. Moreover, this argument only hurts rather than supports the PDBR's decision, since this same reasoning strongly supports a finding that, just as plaintiff's subsequent VA exams recorded range of motion measurements in degrees using a goniometer, the range of motion measurements recorded at the 2009 VA exam were similarly obtained through use of goniometer, even though this device was “not expressly referenced.” Pl.'s Reply at 9; compare AR 569 (May 21, 2009, VA exam recording range of motion measurements in degrees), with AR 481-82 (May 26, 2010, VA exam recording “range of motion with a goniometer,” with measurements recorded in degrees). This strong support for this finding is only bolstered by that fact that “VA guidelines make clear the use of a goniometer is an ‘indispensable' part of the examination” and “there is no evidence from the report or anywhere else that the VA physician failed to use a goniometer.” Pl.'s Reply at 9 (quoting 38 C.F.R. § 4.46).
In short, the PDBR failed to “articulate a satisfactory explanation” for its conclusion that a goniometer was not used at the 2009 VA exam. See Butte Cnty., 613 F.3d at 194 (“The agency's statement must be one of ‘reasoning'; it must not be just a ‘conclusion.'” (citation omitted)); Duncan v. Peake, No. 5-3700, 2008 WL 1884039, at *6 (Vet. App. Apr. 25, 2008), aff'd sub nom. Duncan v. Shinseki, 333 Fed.Appx. 571 (Fed. Cir. 2009) (rejecting argument that VA “examination was inadequate because the report did not specify that the examiner had performed range of motion testing with a goniometer,” for “[a]lthough there is no mention of the use of a goniometer, there is likewise no statement in the report that it was not used, or that the examiner was unable to accurately determine the ranges of motion”).
Defendants urge this Court to ignore “VA regulations and caselaw,” see Defs.' Opp'n at 2-which would include Duncan v. Peake, 2008 WL 1884039, cited by plaintiff, see Pl.'s Reply at 9-arguing that the PDBR “is only required to apply . . . Court of Appeals for Veterans Claims cases that specifically interpret the VA schedule for rating disabilities,” and is “not required to interpret the evidence in the same way or reach the same conclusion as the VA,” Defs.' Opp'n at 3-4 (citations omitted). As support, defendants cite Jones v. U.S. Department of Defense, No. 22-cv-1513 (TNM), 2023 WL 3863800 (D.D.C. June 7, 2023), which held that the PDBR was not required to “apply a section from the VA's internal manual,” id. at *4 (citations omitted). Defendants' argument misses the mark, for whether or not the Court of Appeals for Veterans Claims' decision in Duncan binds the PDBR, that court's reasoning remains persuasive authority to be considered by this Court, as well as the PDBR, which must, consistent with the APA, “engage in reasoned decisionmaking.” Bhd. of Locomotive Engineers & Trainmen, 972 F.3d at 115 (citation omitted).
b) PDBR's Unsupported Conclusion of Inconsistencies in VA Physician's Reports of Plaintiff's Condition.
The PDBR's second justification, that range of motion “values based on subjective pain responses as recorded by the VA examiner were not consistent with a normal gait and with the objective absence of spasm, guarding, or abnormal contour which was documented in the same examination,” similarly falls short. AR 6. At the outset, insofar as the PDBR reasoned that the VA exam's range of motion measurements were “based on [plaintiff's] subjective pain responses,” rather than objective measurements taken with a goniometer, AR 6; see also Pl.'s Opp'n at 28, that analysis suffers for the reasons already discussed, supra, in Part III.A.1.a. To the extent the PDBR found that plaintiff's “subjective pain responses during the examination (while indicative of pain) were nonetheless inconsistent with the VA examiner's own observation,” Defs.' Opp'n at 8, the PDBR offers little by way of explanation or reasoning as to precisely why plaintiff's “pain responses” and limited range of motion “as recorded by the VA examiner” Dr. Irvin, AR 6, were inconsistent with her “slow, but normal gait” “documented in the same examination,” AR 5-6.
Dr. Irvin found no inconsistency in plaintiff having both a “normal” gait when moving “slow[ly],” and also a severely limited range of motion that was “painful from the start” and throughout the motion, AR 435, AR 569 (recording plaintiff's range of motion as “forward flexion to 10 degrees,” below the normal range of 0 to 90 degrees, with pain continuous “from the start”). The VA likewise noted no inherent tension in Dr. Irvin's exam when assigning plaintiff a disability rating of 40 percent. See AR 434-35. Departing from Dr. Irvin's expert medical assessment and the VA's determination, the PDBR reached the unsupported conclusion that an individual cannot exhibit both a “slow, but normal gait” and also such pain and compromised range of motion as to substantiate a 40% disability rating. AR 5-6.
The PDBR's failure to explain its conclusion, which ran counter to a medical doctor's judgment, “does not withstand scrutiny.” United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1285 (D.C. Cir. 2019) (agency's “unsupported explanation” of why recordkeeping requirement satisfied statutory standard was arbitrary and capricious, where the agency “offered no basis for its conclusion” (citation omitted)); see also Hensley v. United States, 292 F.Supp.3d 399, 411-12 (D.D.C. 2018) (Air Force Board for Correction of Military Records (“AFBCMR”) acted arbitrarily and capriciously, where AFBCMR's “analysis consisted of a conclusory statement ‘without providing an account of how it reached its results'” (citation omitted)).
c) PDBR's Flawed Finding of No Record of Intervening Injury or Development.
Finally, in stating that “[t]here was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements,” see AR 5, the PDBR failed “to reasonably reflect upon the information contained in the record,” Fred Meyer Stores, Inc., 865 F.3d at 638 (citation omitted). Here, the PDBR was plainly aware that plaintiff was placed on a months-long period of bed rest in December 2007 for pre-term labor, then she delivered twins in March 2008, and, upon returning to work the next month following the birth of these twins, she “reported worsening [low back pain] and right leg pain.” AR 5 (PDBR Decision); see also AR 233, 53 (May 2008 neurosurgery exam and MEB report summarizing same events, including that at her re-evaluation “by Neurosurgery in May 2008” she still had “persistent low back pain”). For the PDBR to conclude that no intervening events between plaintiff's 2007 physical therapy exams and her May 2009 VA exam could explain the further impairment found by the VA measurements means the PDBR simply discounted as a potential cause a difficult pregnancy with, and delivery of, twins, and returning to work shortly thereafter. The reasons given by the PDBR for such discounting is at issue here.
Plaintiff argues that her “poor back surgery” is an additional intervening development, since “before the surgery she only experienced right-sided symptoms but after she experienced symptoms on both sides,” Pl.'s Opp'n at 28 (citing AR 568); see also AR 33 (May 2008 neurosurgical evaluation reporting “mild bilat. L4/5 foraminal stenosis” and “prior right L5/S1 lami/foram” (capitalization omitted)), but given that plaintiff's surgery was performed before the 2007 physical therapy exams, the PDBR reasonably did not consider the surgery itself as an intervening development between the 2007 physical therapy and 2009 VA exams.
To be sure, the PDBR acknowledged that plaintiff “was placed on months of bed rest for a twin pregnancy” and had “reported worsening [low back pain] and right leg pain” after returning to work, AR 5, but the PDBR discounted these events because “there [were] no [range of motion] evaluations in record from that time period,” AR 5-6. This is incorrect, since there was a range of motion evaluation “from that time period.” AR 6. The VA examining physician recorded range of motion measurements in May 2009, just over one year after plaintiff returned to work after delivering twins in April 2008. See AR 569 (May 21, 2009, VA exam recording that plaintiff's “low back demonstrates markedly impaired motion with . . . forward flexion to 10 degrees”).
At the same time, as support for its conclusion that “the more marked impairment reflected by the VA measurements” was an outlier, AR 5, the PDBR cited the May 2008 neurosurgery exam, even though, as the PDBR itself acknowledged, that “examination did not note ROM” measurements-i.e., the same measurements the PDBR had stated were necessary to corroborate plaintiff's worsened “[low back pain] and right leg pain” following her return to work after childbirth, AR 5-6. In any event, given plaintiff's condition of degenerative disc disease, see AR 4-5, AR 235, which degenerative condition “by definition . . . can and often does get worse with time,” Pl.'s Reply at 13, common sense instructs that “there does not . . . need to be some outside, intervening event,” id., to explain plaintiff's “more marked impairment” recorded during the 2009 VA exam as compared to the physical therapy exams performed two years before, AR 5.
By failing to consider whether plaintiff's difficult pregnancy, which required bed rest, childbirth to twins and return to work the next month, were intervening developments that could explain “the more marked impairment reflected by the VA measurements,” AR 5; see also Pl.'s Opp'n at 28, compounded by plaintiff's degenerative condition that “can and often does get worse with time,” Pl.'s Reply at 13, the PDBR ignored evidence without explaining its reasons for doing so. This falls short of the bare minimum requirement to provide discernible reasons for the final decision, even if the decision-making path has less than ideal clarity. See Keltner v. United States, 165 Fed.Cl. 484, 503, 507 (2023) (finding that Air Force Board for Correction of Military Records' “decision to assign [plaintiff] a final disability rating of only ten percent [was] arbitrary, capricious, contrary to law, or unsupported by substantial evidence,” where “the Board did not address, or even acknowledge, that [prior] VA exam [was] replete with contrary findings supporting a higher disability rating”).
* * *
Considered individually or taken together, the PDBR's three bases for discounting the 2009 VA exam-the exam's lack of express reference to “measurement with a goniometer,” AR 5; perceived inconsistencies in the exam's results, AR 6; and the apparent lack of “recurrent injury or other development” to explain the “more marked impairment reflected by the VA measurements,” AR 5-do not withstand scrutiny and thus fail to satisfy the PDBR's obligation to “engage in reasoned decisionmaking,” Fred Meyer Stores, Inc., 865 F.3d at 638.
2. Greater Weight Given to 2007 Physical Therapy and 2008 Neurosurgical Exams
Intertwined with the PDBR's flawed decision to discount the 2009 VA exam, is the PDBR's failure adequately to explain its reasoning for placing greater weight on plaintiff's postsurgery physical therapy exams conducted in May and August 2007, and the neurosurgery exam conducted in May 2008, notwithstanding factors calling into question the PDBR's greater reliance on these exams. See AR 5-6.
Plaintiff contends, in an argument not reasserted on Reply, that the PDBR also erroneously “rel[ied] on . . . the results of [plaintiff's] 2010 imaging results,” Pl.'s Opp'n at 26, where the PDBR noted that plaintiff's lumbar MRI was “similar to [the] previous post-operative” lumbar MRI, and “[e]lectrodiagnostic studies of the right lower extremity . . . did not show evidence of a lumbar radiculopathy,” AR 5. Yet, the PDBR noted these exams only in the portion of its decision reviewing plaintiff's medical history, such that, as defendants correctly respond, the “2010 exam was not the basis of the PDBR's decision.” Defs.' Opp'n at 10 (citing AR 6).
In explaining its decision to discount the VA exam's range of motion measurement as an outlier, the PDBR relied on reported results from plaintiff's physical therapy exams in 2007, but, critically, those results were not reported in a format corresponding to a disability rating, leaving the PDBR to perform that task. Specifically, the 2007 physical therapy exams recorded plaintiff's range of motion measurements in percentages, not degrees. See AR 40 (initial post-surgery May 23, 2007, physical therapy evaluation reporting flexion as “70% stretch type pain down the [right] leg” and extension as “50% limited by pain”); AR 262 (August 14, 2007, evaluation reporting flexion as “90%, mild discomfort” and extension as “60%, mild discomfort”). The PDBR then, concededly, “converted the . . . percentage measurement into a measurement in degrees for purposes of its review,” Defs.' Opp'n at 7 (citing AR 4), resulting in the PDBR's summary of the May 2007 exam as showing “flexion 70% of normal (approximately 60 degrees),” AR 4, and the August 2007 exam as showing “flexion 90% of normal (approximately 80 degrees),” AR 5, with the parenthetical percentages produced not by the physical therapists performing the exams, but as calculated by the PDBR. This necessary conversion of percentages to degrees by the PDBR likely indicated that a goniometer may not have been used in those physical therapy exams. While lack of express use of a goniometer was identified as a key deficiency in the 2009 VA exam, the PDBR does not acknowledge this as even a possible and more likely deficiency in the 2007 physical therapy exams. Moreover, the PDBR does not address whether the conversions done by the PDBR were appropriate or whether the PDBR has sufficient expertise to do such conversions. See Pl.'s Reply at 14 (noting PDBR's failure to “address the propriety of the PDBR, as opposed to the [physical therapy] examiner,” making these conversions).
The PDBR also relied on the May 2008 “neurosurgical evaluation” as a counter to plaintiff's “reported worsening [low back pain] and right leg pain” upon her return to work following childbirth, AR 5-6, even though the PDBR itself acknowledged, “the examination did not note ROM” measurements” at all, AR 6; see supra, Parts I.B.6 and III.A.1. (c). Meanwhile, the regulatory provision governing the rating of plaintiff's condition dictates that disability ratings are to correspond to specific range of motion measurements in degrees. See 38 C.F.R. § 4.71 (ratings schedule for musculoskeletal system providing that, for disabilities of the spine, a rating of 40% is appropriate if there is “forward flexion of the thoracolumbar spine 30 degrees or less”).
Particularly given this requirement, and considering that the PDBR placed less weight on the VA exam's range of motion measurements because “[t]here was no mention of measurement with a goniometer,” AR 5, and discounted plaintiff's “reported worsening [low back pain] and right leg pain” because there were “no [range of motion] evaluations in record from that time period,” AR 5-6, the PDBR erred in reaching the unsupported conclusion that the physical therapy and neurosurgery exams were more authoritative than the VA exam, when only the latter exam recorded plaintiff's range of motion measurements in degrees, see Pl.'s Reply at 14-16.
The PDBR likewise failed to address other questionable aspects of the 2007 physical therapy and 2008 neurosurgical exams. First, the physical therapy exams were “performed by a non-physician, physical therapist” and were “not done for purposes of assessing [plaintiff's] disability under military rules.” Pl.'s Opp'n at 26; see also Pl.'s Reply at 16. While DoD instructions “allow the [PDBR] to consider ‘medical and non-medical material' contained in the [MEB's] records, such as the 2007 physical therapy examinations,” Defs.' Opp'n at 6 (quoting DoD Instr. 6040.44, Enclosure 2, § 5.i. (1)), exams performed by a physician for the specific purpose of “assessing [plaintiff's] disability under military rules,” Pl.'s Opp'n at 26 (citations omitted), would be expected to offer more utility and be of greater relevance to the PDBR's determination of plaintiff's disability rating than exams not reflecting these conditions, and yet the PDBR failed to explain, let alone acknowledge, these limitations.
Most glaringly, although noting the dates of the 2007 physical therapy and 2008 neurosurgical exams, the PDBR failed to address the fact that both of these exams were more remote in time from plaintiff's separation date than the VA exam, “performed 3 months after separation,” AR 5, and accordingly would not have captured “the various events that intervened between 2007 and separation,” Pl.'s Reply at 15, including, as to the physical therapy exams, plaintiff's months-long placement on bed rest in December 2007, difficult pregnancy, delivery of twins in March 2008, and return to work the next month, AR 53; see White, 2019 WL 6728448, at *5-6 (finding PDBR's decision arbitrary and capricious where “the Board stated that the VA examination occurred closer in time to [plaintiff's] separation than the PEB examination” but “failed to explain how it weighed this fact, if at all,” precluding the Court from “discern[ing] if the Board's decision [was] the product of reasoned decisionmaking”).
The parties do not dispute that the Navy's disability determination is based on “a snapshot of the service member's condition at the time of separation from the service.” Gregory v. United States, 151 Fed.Cl. 209, 231 (2020) (citation omitted); see also Barnick v. United States, 591 F.3d 1372, 1381 (Fed. Cir. 2010) (“[T]he extent of a service member's disability is to be determined at the time that he is found unfit for duty and separated from the service.” (citations omitted)); Defs.' Mem. at 21; Defs.' Opp'n at 3-4; Pl.'s Reply at 15. Notwithstanding this temporal mandate, the PDBR did not consider that the 2009 VA exam may have “serve[d] as a better ‘snapshot' of the Plaintiff's injury” than the 2007 physical therapy and 2008 neurosurgical exams, which were more removed in time from plaintiff's separation date, and which could not account for the intervening developments of plaintiff's placement on bed rest, delivery of twins, and fairly prompt return to work. Pl.'s Reply at 15.
Certainly, “it was entirely appropriate . . . for the [PDBR] to consider the results of” the 2007 physical therapy and 2008 neurosurgical exams, Defs.' Opp'n at 5; Pl.'s Reply at 15-16, along with all other “records of the armed force concerned,” in reaching its determination, 10 U.S.C. § 1554a(c)(2); see also DoD Inst. 6040.44, Enclosure 3, § 3.d (“The PDBR will review the PEB record of findings and the combined disability rating decisions . . . based on the records of the Military Department concerned and such other evidence as may be presented to the PDBR[.]”). Nevertheless, given the shortcomings of the 2007 physical therapy and 2008 neurosurgical exams relative to the VA exam, and the PDBR's failure to acknowledge, let alone meaningfully consider, these shortcomings, the PDBR's justifications for discounting the 2009 VA exam in lieu of these exams fail to demonstrate that the PDBR “exercise[d] its judgment in a reasoned way.” Epsilon Elecs., Inc. v. United States Dep't of Treasury, Off. of Foreign Assets Control, 857 F.3d 913, 927 (D.C. Cir. 2017) (citation omitted).
Defendants rely on Hall v. Department of Defense, No. 19-cv-2354 (RJL), 2021 WL 1026123 (D.D.C. Mar. 17, 2021) and Silbaugh v. United States, 107 Fed.Cl. 143 (2012), to support their position that “even under the less deferential APA standards, the [PDBR]'s decision was neither arbitrary nor capricious,” but both cases are inapposite. Defs.' Mem. at 13 & n.5. In Hall, the court found no error in the PDBR's decision upholding the PEB's determination that plaintiff's obstructive sleep apnea was not an “unfitting” condition, notwithstanding the VA's award of “a 50% rating for sleep apnea,” 2021 WL 1026123at *2-3, since the decision “was well supported by the evidentiary record,” including that plaintiff was able “to continue working as a system engineer . . . after he left the Army” and sought VA benefits, id. at *5, and “the only objective evidence in [plaintiff's] medical records evincing a limitation on plaintiff's ability to perform his duties was the sleep specialist's opinion that plaintiff's [obstructive sleep apnea] was an impediment to deployment,” which “was insufficient to demonstrate that plaintiff's [obstructive sleep apnea] rendered him unfit,” id. at *6. Here, unlike in Hall, plaintiff was “missing 2-3 hours of work per week,” AR 6, and was unable to continue working as a mess management specialist or in any other capacity following her separation due to disability, see AR 507 (VA examining physician reporting on March 28, 2011, that plaintiff “has not been employed since she was discharged from the Navy”), and “there is ample evidence-radiologic and otherwise-that create[s] a clear record of [plaintiff's] recurrent injury and developments that further exacerbated her disability” prior to her 2009 VA exam, Pl.'s Opp'n at 29. In Silbaugh, 107 Fed.Cl. 143, the Court of Federal Claims held that the PDBR had “properly considered the [VA's] ratings of plaintiff's conditions” under DoD Instr. § 6040.44, and “properly declined to separately rate plaintiff's conditions,” since “these conditions were never determined to be military unfitting,” so “an extensive analysis of the [VA's] rating and deliberations regarding these conditions was not required under [DoD Instr.] 6040.44,” id. at 144, 152-53, and “[s]ubstantial evidence [] support[ed] the PDBR's determination that plaintiff's . . . conditions were not separately unfitting,” id. at 154. Silbaugh has no relevance here, where no issue of “overlapping symptoms” calling for a combined rating of plaintiff's condition, id. at 146, has been raised.
B. Contrary to Law
The PDBR's discounting of the VA exam also renders the decision “not in accordance with law.” 5 U.S.C. § 706(2)(A). DoD instructions direct the PDBR to, first, “[c]ompare any VA disability rating . . . with the PEB combined disability rating,” and second, “[c]onsider any variance in its deliberations and any impact on the final PEB combined disability rating, particularly if,” as here, “the VA rating was awarded within 12 months of the former Service member's separation.” DoD Instr. 6040.44, Enclosure 3, § 4.a(5); see also Coleman, 74 F.4th at 613-14 (outlining this DoD instruction). As the PDBR has explained in another rating determination, this means that for the twelve-month post-separation period, the PDBR must give “special consideration to VA findings,” Adams v. United States, 117 Fed.Cl. 628, 637 (2014) (quoting 2011 PDBR majority decision); see also U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *7 (“To ‘consider' something requires one ‘to think about [it] carefully' or ‘to take [it] into account' ....‘Deliberation,' as relevant here, means ‘a discussion and consideration by a group of persons . . . of the reasons for and against a measure.'” (quoting Consider, MERRIAM-WEBSTER'S DICTIONARY (last visited Feb. 4, 2021); Deliberation, id.)). The PDBR's task, therefore, “was not merely to acknowledge the VA's ratings, but to evaluate and weigh them and, if the Board ultimately disagreed with them, to say why.” U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *7.
The PDBR satisfied the first requirement by taking note of the VA rating determination and providing a side-by-side comparison of the ratings assigned by the Navy and the VA. See AR 4-6. This is not enough, however. As another Judge on this Court reasoned under similar circumstances, the PDBR here “failed to meaningfully ‘consider' the variance between the VA and PEB ratings in its ‘deliberations,' even though it was ‘particularly' required to do so because the VA issued its ratings on” November 12, 2009, i.e., within 12 months of plaintiff's separation date of February 11, 2009. U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *7 (holding that given the PDBR's “cursory treatment of the VA's ratings,” “its decision was ‘not in accordance with law'” (quoting 5 U.S.C. § 706(2)(A) (citation omitted))); see AR 431-35 (VA's November 2009 rating decision).
Defendants counter that the PDBR satisfied the DoD Instruction by “correctly comparing] the two ratings of the VA and Evaluation Board” and “specifically explain[ing] why it did not give the VA disability rating more weight than the other examinations.” Defs.' Opp'n at 12 (citations omitted).Indeed, the PDBR “referenced the VA's findings and conclusions,” U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *7, including that the “VA rated [plaintiff's] low back condition 40% . . . based on the VA C&P examination,” which recorded plaintiff's “‘low back' ROM . . . as 10 degrees of flexion,” and plaintiff's “reported constant [low back pain] that radiated to the backs of both knees and numbness in all of her toes,” AR 5. In explaining its reasoning, however, the PDBR failed adequately to “‘consider' [] competing evidence,” U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *7 (citation omitted), and instead discounted the VA's determination predicated on a more proximate-in-time medical examination for reasons that are, at worse, speculative and, at best, conclusory and incomplete. The PDBR accordingly fell short of its obligation under DoD Instruction 6040.44 not only to “acknowledge the VA's ratings, but to evaluate and weigh them,” U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *7, in a fair and conscientious manner. Failure to do so was contrary to law.
Defendants, citing the non-binding district court case Jones v. U.S. Department of Defense, argue that DoD Instruction 6040.44 contains no requirement that the PDBR “give the VA disability rating any ‘deference,' let alone ‘heightened deference.'” Defs.' Opp'n at 11 (citing Jones, 2023 WL 3863800, at *6, and DoD Instruction 6040.44, Enclosure 3, § 4.a(5)(b)). While Jones rejected the argument that under DoD Instruction 6040.44, the PDBR “needed to give the VA decision some type of deference,” Jones, 2023 WL 3863800, at *6, Jones recognized that this Instruction did impose an obligation on the PDBR “to particularly consider ‘any variance' in deliberations between the VA and Army disability reviews,” id., and held that the PDBR satisfied the standard by explaining “that the VA had relied more on outdated examinations,” id. In stark contrast to the facts at issue in Jones, the PDBR here gave less weight to the more proximate-in-time VA exam for reasons that do not withstand scrutiny, see supra Part III.A.1(a)-(c), and thus flunks the legal test requiring “particular[]” attention to variances between the VA and PEB's determinations.
Plaintiff challenges the PDBR's decision as contrary to law on two additional grounds, arguing: first, that “the PDBR relied on a 2007 physical therapy examination conducted more than a year prior to [plaintiff's] discharge that failed to express [plaintiff's] range of motion loss in degrees,” Pl.'s Opp'n at 18; and, second, that the PDBR's decision “violated the VASRD's requirement in 38 C.F.R. §§ 4.40 and 4.45 to consider the effect of pain on range of motion” since neither “the MEB, PEB, [nor] PDBR performed or requested even a cursory examination of [plaintiff's] pain,” id. at 18, 20. The substance of the first argument is addressed, supra, in Part III.A.2, as a reason that the PDBR's decision cannot be sustained under arbitrary and capricious APA review, and the second argument need not be considered, given the finding on alternative grounds that the PDBR's decision is contrary to law.
IV. CONCLUSION
For the reasons set forth above, defendants' Motion for Summary Judgment, ECF No. 21 is DENIED, plaintiff's Corrected Cross-Motion for Summary Judgment, ECF No. 27, is GRANTED, and this case is remanded to the Physical Disability Board of Review for further consideration consistent with this Memorandum Opinion.
While plaintiff requests, in various places in the record, an order directing “the Secretary to correct [plaintiff's] medical records to reflect the correct combined disability rating,” Pl.'s Opp'n at 30; see also Compl. at 18 (“Prayer for Relief”) (“request[ing] the Court to . . . Order the Navy to correct [plaintiff's] military records to reflect the correct disability rating of at least 30 percent for her unfitting disability”), this is not the relief granted here. “The Supreme Court has explained that ‘[i]f the record before the agency does not support the agency action, . . . the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation,'” since “the agency must first be ‘afford[ed] . . . an opportunity to articulate, if possible, a better explanation.'” Banner Health v. Price, 867 F.3d 1323, 1356 (D.C. Cir. 2017) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985), and Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 60 (D.C. Cir. 2015)). This Court “follow[s] that usual course here.” Id.; see also U-Ahk-Vroman-Sanchez, 2021 WL 394811, at *9 (“[T]he court does not opine on the [PDBR's] ultimate conclusions regarding Plaintiff's eligibility for medical retirement. It holds only that the [PDBR's] process in reaching that decision falls short of the APA's requirements.”).
An Order consistent with this Memorandum Opinion will be entered contemporaneously.