# In th e United States Court of Federal Cl aims

No. 13-523C ( F iled: October 21, 2015)

************************************* Motion to Dismiss; Mootness; F ailure to RONAL D C. COOK, * State a Claim; Motion for J u dg ment on the

* Administrative Record; W aiver; Application Plaintiff, * of Sections 4.129 and 4.130 of the Veterans

* Affairs Schedule for Rating Disabilities to

v. * Soldiers Discharg ed W ith PTSD Prior to the

* Enactment of the W ounded W a rrior Act in THE UNI TED STATES, * 2008; 10 U.S.C. Chapter 61; Authority of

* the Phy sical Disability B o ard of Review Defendant. * Under 10 U.S.C. § 1554a; Army Acted

************************************* Contrary to L aw

L ee F . B erg er, W ashing ton, DC, for plaintiff.

Doug las G. Edelschick, United States Department of J ustice, W ashing ton, DC, for defendant.

OP INION AND ORDER

SWEENEY , J udg e
Plaintiff Ronald C. Cook was medically separated from the United States Army (“Army ” ) for posttraumatic stress disorder (“PTSD”) resulting from his service in I

raq duringOperation I raqi F reedom. B ecause the Army determined that plaintiff suffered from mild PTSD, it assig ned him a 10% disability rating , which is below the threshold to qualify for disability retirement. Plaintiff now seeks the correction of his military records to reflect a hig

h er disability

rating and entitlement to disability

retirement. Defendant moves to dismiss one of plaintiff’s claims, and the parties cross-move for judg ment on the administrative record on both of plaintiff’s claims. Defendant further moves to strike a document attached to one of plaintiff’s briefs. F or the reasons set forth below, the court denies defendant’s motion to dismiss, g rants in part and denies in part defendant’s motion for judgment on the administrative record, g rants in part and denies in part plaintiff’s cross-motion for judgment on the administrative record, and denies defendant’s motion to strike as moot. This case is remanded to the Army for the correction of plaintiff’s military records.I. BACK G ROUND

A. The Arm y’s Disability Evaluation System

W h en a phy sical disability renders a member of the military unfit to perform his or her duties, the member may be separated or retired from service. 10 U.S.C. ch. 61 (2006). A member’s fitness for duty and elig ibility for separation or retirement is g overned by regulations promulg a ted by

the Secretary

of the military

department to which the member belong s. 1 I d. § 1216. Relevant here is Army Reg u lation 635-40, “Phy sical Evaluation for Retention, Retirement, or Separation” (F eb. 8, 2006) (“Army Reg u lation 635-40”).
The Army ’s disability evaluation process beg ins with a soldier’s referral to a medical treatment facility

for evaluation. Army

Reg u lation 635-40, ¶¶ 4-6 to 4-8. I f the commander of the medical treatment facility determines that the soldier may not be “medically

qualified to perform duty ,” the commander will refer the soldier to a Medical Evaluation B oard (“MEB ”). I d. ¶ 4-9. The MEB documents the soldier’s medical condition and duty limitations, and then evaluates the solider’s medical condition ag ainst specified retention criteria. I d. ¶ 4-10. I f it determines that the soldier does not meet the retention standards, the MEB refers the soldier to a Phy sical Evaluation B oard (“PEB ”). I d. ¶¶ 4-10, 4-13(a).

PEB s are fact-finding

boards charg ed with “[ i] nvestig ating the nature, cause, deg ree of severity , and probable permanency ” of a soldier’s disability ; “[ e] valuating the phy sical condition of the Soldier ag ainst the phy sical requirements of the Soldier’s particular office, g rade, rank, or rating ”; “[ p ] roviding a full and fair hearing for the Soldier as required by ” 10 U.S.C. § 1214; and “[ m] aking finding s and recommendations required by law to establish the elig ibility of a Soldier to be separated or retired because of phy sical disability .” I d. ¶ 4-17(a). I n making the required finding s and recommendations, the PEB must first determine whether the solider is “phy sically fit or unfit to perform” his or her duties. I d. ¶ 4-19(a)(1), (d)(1). I f the PEB determines that the soldier is unfit for duty , it must also determine, among other thing s, “[ w] hether the disability is of a permanent nature,” id. ¶ 4-19(a)(2), (h), and “the rating for each compensable disability ,” id. ¶ 4-19(f)(5), (i); accord id. ¶ B -3(a). The PEB assig ns disability rating s, which reflect the severity of the disabilities, using the United States Department of Veterans Affairs Schedule for Rating Disabilities (“VASRD”). I d. ¶¶ 4-19(f)(5), (i), B -3(a).

1 Under 10 U.S.C. § 1216, the “Secretary concerned” is responsible for promulg ating the regulations for his or her military department. See 10 U.S.C. § 101(a)(9) (defining “Secretary concerned” as either the Secretary of the Army , the Secretary of the United States Navy , the Secretary of the United States Air F orce, or the Secretary of the United States Department of Homeland Security

). However, the United States Department of Defense (“Department of Defense”) has also promulg ated relevant reg ulations. Those regulations are discussed in later sections of this Opinion and Order.

-2-A case referred by an MEB is considered first by an informal PEB . I d. ¶ 4-20(a). I nformal PEB s record their finding s and recommendations on a DA F o rm 199, “Phy sical Evaluation B oard (PEB ) Proceeding s,” which is then forwarded to, among others, the soldier and the soldier’s PEB liaison officer. I d. ¶ 4-20(b). Upon receipt of the DA F orm 199, the solider may elect to (1) concur with the finding s and recommendations and waive a formal hearing ; (2) disag ree with the finding s and recommendations, submit a rebuttal statement, and waive a formal hearing ; (3) demand a formal hearing ; and/or (4) have representation by counsel if a hearing

is demanded. I d. ¶ 4-20(c)(1). The soldier’s PEB liaison officer must counsel the soldier reg arding his or her options, the processing procedures, and the benefits that would flow from the informal PEB ’s finding s and recommendations. I d. ¶ 4-20(d)(1). After the soldier makes an election on the DA F orm 199, the PEB liaison officer must sig n the form and then forward it to the PEB . I d. ¶ 4-20(d)(2). I f, as happened in this case, the soldier concurs with the informal PEB ’s finding s and recommendations and waives a formal hearing , “the proceeding s will be approved for the [ Secretary of the Army ] and forwarded to [ the Army ’s Human Resources Command] for final disposition.” I d. ¶ 4-20(e)(1). F inal dispositions include permanent retirement, placement on the temporary disability retirement list (“TDRL ”), and separation. I d. ¶ 4-24(b) (citing 10 U.S.C. §§ 1201-1206). Of particular relevance in this case, a soldier with a permanent and stable disability and at least a 30% disability rating may

be retired with retired pay , 10 U.S.C. § 1201, a soldier who has been assig ned at least a 30% disability rating but whose disability is not permanent and stable may be placed on the TDRL

with retired pay , id. § 1202, and a soldier with a permanent and stable disability and a disability

rating of less than 30% may be separated from service with severance pay , id. § 1203.

B. P laintif

f ’s Military Service
Plaintiff enlisted in the Army on May 1, 2000. Admin. R. Vol. I 194. He served two tours of duty

overseas during

Operation I

raqi F reedom. I d. During his first deploy ment–from April 2003 to F ebruary

2004–plaintiff served at Camp Victory in Kuwait and Al Asad Airbase in I raq. I d . at 88. Upon his return, plaintiff underwent a health assessment in which he reported that during his deploy

ment, he saw an enemy combatant “wounded, killed or dead”; did not eng ag e in direct combat where he discharg ed his weapon; felt that he was “in g r eat dang er of being killed”; and had seen a “destroy ed military

vehicle.” I d. at 89-90. Nevertheless, he indicated that he did not have any mental health concerns. I d. I n deed, he represented that he was not “interested in receiving help for a stress, emotional, alcohol, or family problem” and that he had not soug ht and did not intend to seek “counseling or care for [ his] mental health.” I d. at 90; accord id. at 141 (indicating that plaintiff had not soug ht mental health counselingor care during 2004), 170 (same).
During his second deploy ment–from F ebruary

2005 to F ebruary

2006–plaintiff served in B a g hdad, I raq. I d. at 160. During his F ebruary 16, 2006 postdeploy

ment health assessment, plaintiff indicated that he did not see any one wounded, killed, or dead; did not discharg e his weapon in direct combat; and did not feel in dang er of being killed. I d. He did, however, see a

-3-military

vehicle that had been destroy ed. I d. Despite reporting fewer ex posures to potentially traumatic events, plaintiff reported some mental health issues. Id. Specifically , he reported having an ex perience that “was so frig htening , horrible, or upsetting ” that, in the past month, he had nig htmares or unwanted thoug hts about the ex perience; “[ t] ried hard not to think about” the

ex p erience or “went out of [ his] way to avoid situations that remind[ ed] ” him of the ex p erience; and “[ f] elt numb or detached from others, activities, or [ his] surrounding s.” I d. Nevertheless, he indicated that he was not “interested in receiving help for a stress, emotional, alcohol, or family problem” and that he had not soug ht and did not intend to seek “counseling or care for [ his] mental health.” I d.
Eventually , in J une 2006, plaintiff underwent a comprehensive psy chiatric evaluation. I d. at 15, 134. Over the following eig ht months, plaintiff attended a number of individual psy chiatric therapy

sessions and underwent a second comprehensive psy chiatric evaluation. I d. During these evaluations and therapy sessions, plaintiff was diag nosed with the following “chronic illnesses”: obsessive compulsive disorder (“OCD”), chronic PTSD, depression, insomnia related to a mental disorder, and an anx iety disorder. I d.
Plaintiff was ultimately

referred to an MEB . I n considering whether plaintiff met the relevant retention standards, the MEB considered, among other documents, the results of a mental health ex amination, the results of a phy sical ex amination, and letters from three of plaintiff’s commanding officers. I d. at 8, 15-24, 26-28.

W ith respect to plaintiff’s m e ntal health, plaintiff’s psy cholog ist provided a report to the MEB that described the development of plaintiff’s mental health issues:

I n the past, [ plaintiff (“SM” or “PT”)] has been diagnosed with PTSD, Anx iety Disorder [ N ot Otherwise Specified] , OCD and Major Depressive Disorder. It is clear that SM suffers from both anx iety and depression. . . . SM reported the following

sy mptoms of PTSD: A-on 23 J U N 05 SM was told that SGT Phelps g ot blown up and he lost one arm, both leg s and he suffered g reatly ; on 25 J UL

05 his friend PF C Swany was blown up and killed by the shrapnel from the ex plosion and on 5 J UL 05 SGT B rig ht and PF C Cambridg e [ w ere] killed by an [ improvised ex plosive device] and PT saw their bodies. B -repeated disturbing memories, thoug hts or imag es of stressful events; nig htmares; feeling upset when something reminds him of the stressful military ex perience and having phy sical reactions when something reminds him of the stressful military

ex p erience; C-avoidance of thoug hts, conversations activities or situations that remind him of the stressful military event, anhedonia and feeling distant from other people; D-difficulty sleeping , irritability , [ hy

pervig ilance] and startle response. SM reported the following sy mptoms of depression: feeling s of depression, anhedonia, and loss of energ y , decreased appetite and difficulty sleeping

.

-4-I d. at 15. She also found that plaintiff “was not an imminent dang er to himself or others,” was

“competent for pay

purposes,” and had “the mental capacity to understand and participate in administrative proceeding s.” I d. at 16. F inally
, she provided the following relevant diagnoses:

309.81 Posttraumatic Stress Disorder [ Ex isted prior to service] - No I mpairment for military

duty - marked I mpairment for social and industrial adaptability - mild
296.32 Major Depressive Episode Recurrent [ Ex isted prior to service] - No I mpairment for military

duty - marked I mpairment for social and industrial adaptability - mild

I d.

Plaintiff underwent the MEB phy sical ex amination on May 10, 2007. I d. at 80-82. I n advance of this ex amination, plaintiff completed a medical history report on which he indicated that he had or has “[ n ] ervous trouble,” “[ f] requent trouble sleeping
, ” and “[ d] epression or

ex c essive worry .” I d. at 84. He also indicated that he had received counseling and had “[ b] een evaluated or treated for a mental condition.” I d. He denied having

“[ h ] abitual stammering or stuttering ,” “[ l] oss of memory or amnesia, or other neurolog ical sy mptoms,” “[ a] ttempted suicide,” or “[ u] sed illeg al drug s or abused prescription drug s.” I d. During the ex amination, the phy sician assistant who evalu a ted plaintiff noted the followingdiag noses: PTSD, OCD, and major depression. I d. at 82. He further noted that plaintiff was “not qualified for service.” I d.
The final information considered by the MEB was letters from three of plaintiff’s commanding officers. One letter was from retired Staff Serg eant Steven D. Gain, who commanded plaintiff during both of his deploy

ments to I raq. I d. at 28. He wrote:

SPC Cook was ex posed to small arms and indirect fire during both tours to I raq. Spc Cook was ex posed to wounded and deceased enemy and friendly

during [ Operation I

raqi F reedom] 1. He was sent on raids with his unit and special forces troops. He was not [ e x posed] to any downed aircraft that I

know of. SPC Cook did take part in raids and clearing houses and was [ ex posed] to wounded bodies. He didn’t injure or kill anyone that [ I ] know of. SPC Cook did render first response care to wounded friendly . After deploy ment SPC Cook has had trouble [ controlling ] his ang er.

I d. A second letter was prepared by F irst L ieutenant Ly

ndsey R. Nott. I d

. at 27. She noted:

-5-SPC Cook requests and receives parts, manag es reg istered documents, turn in of

recoverable items [ sic] , and also manag e s the document reconciliation reg ister. SPC Cook works approx imately 30 hours per week. SPC Cook performs his duties to standard. SPC Cook best performs his duties when he works alone. W h en SPC Cook works with others, he easily becomes distracted. SPC Cook maintains a fairly

strong working relationship with his peers. W hile maintaining a strong working relationship with his peers, his superiors recog niz e that SPC Cook is prone to mood swing s.

I d. The third letter was submitted by Captain J ames W . Otis. I d. at 26. He wrote:
l. SPC Cook’[ s] Duty

performance has been ex e mplary . His work ethic and adherence to standards are in compliance with Army regulations. He has been known as a technically

proficient soldier.
2. SPC Cook was diag nosed as havingPost Traumatic Stress Disorder (PTSD), Chronic Depression, and anx iety . SPC Cook’[ s] visits to Evans Army Hospital rang e from one to two times a week for follow up treatments and therapy . SPC Cook’[ s] Doctors have been unable to develop acceptable forms of treatment. His doctor[ s] have recommended that he be sent to the medical board.
3. The duty

restrictions placed on SPC Cook, due to his condition, limit him in the ty pes of duties in the Company and in his [ primary

Military Occupational Specialty (“MOS”)] . I t also limits his ability to lead and interact with others. He currently spends two hours per week attending appointments. He currently works a 40 hour work week. I

t does not appear that his condition is in any way faked or

ex a g g erated. SPC Cook participates in therapy and it was deemed that little to no prog ress is being made. The severity of the conditions has placed g reat difficulties and stresses on the soldier, severely limiting his ability to work.

I d.

The MEB issued its report on May 25, 2007. I d. at 9. I n

its narrative summary , the MEB described plaintiff’s then-current status in the following manner:
The Soldier is not taking any psy chiatric medications currently

. . . . He is still attending regular psy chotherapy visits. Overall he does not feel that he has made any sig nificant improvement. He is sleeping on averag e “4 to 5 hours per nigh t and a max imum of 5 to 6 hours per nig ht.” He has a recurring dream about

ex p eriences in I

raq. He is easily

startled. He has not required any psy chiatric hospitaliz a tions. He denies any current suicidal or homicidal thoug hts, plans or ideations. He denies having any previous history

of mental health problems. I n reg ards to what he feels is the most sig nificant stressor during his tours in I r aq, he

-6-stated “I t was a 5-week period in 2005 where I lost seven of my

friends.” He did view a few of the friends[ ’] bodies and recalls vividly “SGT B rig ht, who was killed when a 500 bomb went off and his head was like putty .”

I d. at 12. The MEB then described plaintiff’s “functional status and prog nosis”:
This Soldier reports that he is still working in his MOS and he reports that his duties consist of inventory and ordering

parts for the motor pool and working on the administrative side of vehicles. W hen asked how his medical condition affects his ability

to perform the duties of his MOS, he stated that “Sometimes I have recurring thoug hts of my ex periences in I

raq and when this occurs it will interfere with my c oncentration at work. Sometimes thing s at work just remind me of I raq.” Other military training and duties affected: He cannot carry and fire an individual assig ned weapon, perform 3 to 5 second rushes under direct or indirect fire, or be deploy ed.

. . . .
W hen the Soldier was asked if he wanted to continue on active duty , he stated “No.”

I d. at 13. And, the MEB summariz ed Captain Otis’s statement as follows:

. . . CPT Otis confirms the Soldier can no long er do the duties of his [ primary MOS]

. The prog nosis can best be estimated as stable to possible improvement if he were to be separated from the service and out of the military environment where he currently notes reminders that trig g er thoug hts of past ex periences in I raq.
There have been no real compliance issues. He has attended his appointments and the issue with medications is not so much compliance, as his desire not to take medications in g eneral.

I d.
Ultimately , the MEB concluded that plaintiff failed to meet retention standards due to his PTSD and recurrent major depressive episodes, both of which orig inated in 2006. I d . at 9, 13, 16. I t therefore referred plaintiff to a PEB . I d. at 9, 14, 16. Plaintiff indicated his ag r eement with the MEB ’s finding s and recommendations on May 31, 2007. I d . at 10.

-7-An informal PEB convened on J une 12, 2007, to consider plaintiff’s case. I d. at 1-3. I ts

report–set forth on a DA F orm 199–contained the following description of plaintiff’s disability :
Posttraumatic Stress Disorder (PTSD), onset following 2nd combat tour in I raq, F eb 05 - F eb 06 . . . . Sy mptoms include nig htmares, anx iety , depression and flashbacks. Sy

mptoms of major depressive disorder are interrelated and included in this rating . Competent for pay and records. Treated with medication and counseling . Profile restrictions ag ainst weapons prevent further military service. Soldier works 40 hours per week with acceptable duty performance. Rated as mild industrial impairment.

I d. at 1; see also id. (indicating that the relevant United States Department of Veterans Affairs (“VA”) code for PTSD was 9411). B ased on this disability
, the informal PEB deemed plaintiff “medically

unfit” for duty

. I d . The informal PEB further indicated that plaintiff’s disability was not the result of “[ i] ntentional misconduct, willful neg lect or unauthoriz ed absence” by plaintiff; was incurred or ag g ravated while plaintiff was entitled to basic pay ; was incurred in the line of duty ; and was the “[ p ] rox imate result” of plaintiff performing his duty . I d.; see also id. at 2 (noting that plaintiff’s disability resulted from a combat-related injury and was incurred “in the line of duty

as a direct result of armed conflict or caused by an instrumentality

of war” and “during a period of war”). I t assig ned plaintiff a 10% disability rating for his PTSD and

ex p lained that such a rating , combined with plaintiff’s less than twenty y ears of active duty service, would result in plaintiff’s separation from the Army with severance pay

. I d. at 1-2. The informal PEB did not cite the VASRD in its report. See id.

On J une 13, 2007, plaintiff reviewed the DA F orm 199 with his PEB liaison officer, Michelle H. Harris. I d. at 6-7. As required by Army regulation, plaintiff and Ms. Harris completed DA F orm 5893-R, “Acknowledgment of Notification of F ormal Phy sical Evaluation B o ard Hearing .” Section I Iof the form contained the following instructions: “The Phy sical Evaluation B oard L iaison Officer is responsible for counseling soldiers throug hout all phases of disability evaluation. The [ PEB liaison officer] will use this form[ , which] will be forwarded to the PEB with the soldier’s final election for inclusion in the case file. [ The PEB liaison officer] will mark each item completed.” I d. at 6. Section I I Iof the form contained five subsections that each contained a checklist of tasks that were to be performed by the PEB liaison officer; most of the tasks involved providing plaintiff with information reg arding the disability evaluation process, his rig h ts under that process, the consequences of ex ercisingthose rig h ts, his various options, and the consequences of electing a particular option. I d. at 6-7. Ms. Harris did not mark each item completed on the form. I d. Rather, plaintiff sig n ed his name (or, in one instance, initialed) across the check mark box es in each subsection. I d. Plaintiff then sig ned his name at the end of the form to sig nify that he “was counseled on the above marked items as they pertained to my

disability evaluation,” and Ms. Harris sig ned her name to signify that she “counseled [ p laintiff] on those items listed in the above checklist as they pertained to this case.” I d. at 7.

-8-After Ms. Harris had counseled plaintiff, plaintiff elected–the same day –to accept the informal PEB ’s finding s and recommendations and waive a formal hearing . I d. at 5. He sig nified his election by

initialing the appropriate option on the DA F orm 199. I d. He then sig ned the form, representing that he had “been advised of the finding s and recommendations of the phy sical evaluation board, and [ had] received a full ex planation of the results of the finding s and recommendations and leg a l rig hts pertaining thereto . . . .” I d. Ms. Harris also sig ned the form, representing

that she had “informed [ plaintiff] of the finding s and recommendations of the Phy sical Evaluation B oard and ex p lained to him[ ] the result of the finding s and recommendations and his[ ] leg al rig hts pertaining thereto.” I d.

I n accordance with the informal PEB ’s recommendation, plaintiff was honorably discharg ed from the Army on J uly 30, 2007, with a 10% disability rating . I d . at 194, 197. Upon his separation he was entitled to severance pay . I d.

C. P laintif

f ’s Claim s f

or Veterans Disability Benef its and Continuing Mental Health Issues

On J uly 2, 2007, plaintiff submitted a claim to the VA for disability benefits. Admin. R. Vol. I I(“ARI I ” ) 362. I n evaluatingplaintiff’s claim, the VA considered, among other documents, plaintiff’s military service treatment records, the results of an October 15, 2007 VA medical ex amination, and a notification that plaintiff had not reported for a mental disorders/ PTSD ex amination. I d. at 363-64; cf. id. at 599-600 (indicating that plaintiff reported, during the October 15, 2007 medical ex amination, a history of the following psy c hiatric sy mptoms: “interpersonal relationship difficulties,” “depression,” “loss of control/violence potential,” “anx iety ,” and “sleep impairment”). I n its November 26, 2007 rating decision, the VA determined that plaintiff had several service-connected disabilities: PTSD with insomnia and depression, tinnitus, a sebaceous cy st on his neck, and a left shoulder labral tear. Id. at 363, 371. I t assig ned disability

rating s of 50% for the PTSD (VA code 9411) and 10% for each of the other impairments, with a combined disability rating of 60%. I d. W ith respect to its PTSD decision, the VA ex plained:

Your service treatment records show a diag nosis of PTSD with insomnia and depression due to y

o ur ex periences in I

raq including the loss of seven friends. Your Medical Evaluation B oard (MEB ) shows that y ou were discharg ed from service due to PTSD and received severance disability pay for this condition.
Our letter to y ou requested y ou tell us about any

evidence or information that would show continuity of sy mptoms or treatment since discharg e from active duty for the claimed condition. To date, no such evidence has been received.
You failed to report for a VA ex amination. Evidence ex p ected from this

ex amination which mig ht have been material to the outcome of y our claim could not be considered.

-9-According to [ V ASRD §] 4.129: W hen a mental disorder that develops in service as a result of a hig hly stressful event is severe enoug h to bring about the veteran’s release from active military service, the rating

ag e ncy shall assig n

an evaluation of not less than 50 percent and schedule an ex amination within the six month period following the veteran’s discharg e to determine whether a chang e in evaluation is warranted. Service connection for PTSD with insomnia and depression (also claimed as neurosis, anx iety disorder) has been established as directly related to military

service. An evaluation of 50 percent is assig n ed from J uly 31, 2007 based on [ V ASRD §] 4.129.

. . . . Since there is a likelihood of improvement, the assig ned evaluation is not considered permanent and is subject to a future review ex amination.

I d. at 364-65.

B e tween F ebruary

and October 2008, plaintiff had four outpatient “face-to-face” appointments at the VA Medical Center in Reno, Nevada, for PTSD treatment. I d. at 583; accord id. at 226 (“Veteran had [ PTSD Clinical Team] intake 3/24/2008 with Dr. B oardman.”), 282 (“Vet started w/PTSD Clinical Team 10/08. . . . Vet did attend 2 individual therapy sessions.”).
The VA issued a second rating decision for plaintiff on J anuary 8, 2009, proposing to decrease plaintiff’s disability rating for his PTSD from 50% to 0% due to plaintiff’s failure to report for scheduled VA ex aminations. I d. at 358-59. The VA explained:

The evaluation of PTSD with insomnia and depression (also claimed as neurosis, anx iety

disorder) is proposed to be decreased to 0 percent disabling because y ou failed to report for a scheduled VA reex amination without g ood cause (38 CF R 3.65 (c)(2)).
You failed to report for two scheduled medical ex aminations to evaluate the current level of y

o ur service connected PTSD. W e sent letters dated Aug ust 14, 2008; October 22, 2008; and November 4, 2008. A VA employ e e informed y ou via telephone conversation on November 4, 2008 that y ou were g o ing to be scheduled for a VA ex amination. The evidence does not provide documentation of a just cause for missing y our ex aminations.
A noncompensable evaluation is assig ned whenever there are sy mptoms that are not severe enoug

h either to interfere with occupational and social functioning or to require continuous medication. A hig her evaluation of 10 percent is not warranted unless there are mild or transient sy mptoms which

- 10-decrease work efficiency and ability

to perform occupational tasks only during periods of sig nificant stress; or sy mptoms controlled by

continuous medication.

I d. at 359; see also id. (noting that the VA’s Aug ust 14, 2008 letter to plaintiff was returned due to an incorrect address). The VA sent a letter to plaintiff describing its proposed action on J anuary 14, 2009. I d. at 353. That letter was returned due to an incorrect address for plaintiff. I d. The VA sent a second letter to plaintiff on March 10, 2009, and contacted plaintiff on April 27, 2009. I d.
Plaintiff eventually

underwent a VA PTSD review ex amination on May 21, 2009. I d. at 353. The ex aminer summariz ed plaintiff’s PTSD sy mptoms as follows:

PERSI STENT RE-EXPERI ENCI NG THE TRAUMATI C EVENT B Y:
Recurrent and intrusive distressing recollections of the event, including imag es, thoug hts, or perceptions, Recurrent distressing dreams of the event, Actingor feeling

as if the traumatic event were recurring , I ntense psy cholog ical distress at ex p osure to internal or ex ternal cues that sy mboliz e or resemble an aspect of the traumatic event, Phy siolog ical reactivity on ex posure to internal or ex ternal cues that sy mboliz e or resemble an aspect of the traumatic event

PERSI STENT AVOI DANCE OF STI MUL IASSOCI A TED W I TH THE TRAUMA AND NUMB I NG OF GENERAL

RESPONSI VENESS:
Efforts to avoid thoug hts, feeling s, or conversations associated with the trauma, Efforts to avoid activities, places, or people that arouse recollections of the trauma, Markedly diminished interest or participation in sig n ificant activities, F eeling of detachment or estrang ement from others, Restricted rang e of affect (e.g ., unable to have loving feeling s), Sense of a foreshortened future (e.g ., does not ex pect to have a career, marriag e, children, or normal life span)

PERSI STENT SYMPTOMS OF I NCREASED AROUSAL :
Difficulty falling or staying asleep, I rritability or outbursts of ang er, Difficulty concentrating , Hy

pervig ilance, Ex ag g erated startle response

DESCRI PTI O N OF THE ONSET OF SYMPTOMS: Chronic

F REQUENCY, SEVERI TY AND DURATI ON OF PTSD SYMPTOMS F OUND:

- 11-“I t has become my life. I don’t know what it would be like without this.” Veteran described reex

periencing

phenomena, avoidance, and hy perarousal daily
, with hig h intensity , and variable duration. He ex p lained that he is ex tremely bothered by

his sy mptoms of PTSD.

L ENGTH OF REMI SSI ONS AND CAPACI TY F OR ADJ USTMENT DURI NG REMI SSI ON:
Veteran denied any

remissions. He indicated that these sy mptoms started while he was stationed in I raq and have continued since his discharg e. He

ex plained that the sy

mptoms have become worse since discharg e that he feels like he is spiraling

downhill.

I DENTI F I ED B EHAVI ORAL , COGNI T I VE, SOCI AL , AF F ECTI V E, OR SOMATI C CHANGE THE VETERAN ATTRI B UTES TO STRESS EXPOSURE:
Veteran described isolating from others and avoiding activities to the point where he is “almost reclusive” and introverted, which is a sig nificant chang e from his outg oing and sociable personality prior to I raq. He is prone to outbursts of ang er toward co-workers, family , and others. He

ex periences “ex treme[ ] mood swing s” that are “very intense,” which he

ex plained as being

easily ang ered/enrag ed. He ex periences phy siolog ical arousal on a daily

basis and is distressed by this. He feels sad, ang ry , and moody each day and has difficulty

caring about others or forming relationships. He feels emotionally and psy cholog ically

distanced from others, “like an outcast. L ike I don’t belong .” He has lost interest in thing s that used to matter to him. He ex p lained that he has pushed most of the people out of his life without really knowing why

and asked, “W hat is wrong with me that makes me think this way ? W hy are people running away from me? ”

I d. at 588-90. The ex aminer also noted that plaintiff was taking colleg e classes, id. at 583, and was employ ed full time in casino security , id. at 591. W ith respect to plaintiff’s employ ment, the

ex aminer noted that plaintiff had missed less than one week of work, for medical reasons unrelated to his PTSD. I d. The ex aminer further noted the following problems related to plaintiff’s “occupational functioning ”: “Decreased concentration, Difficulty following instructions, I nappropriate behavior, Memory loss, Poor social interaction.” I d.

I n an Aug ust 6, 2009 rating decision, the VA increased plaintiff’s disability rating for his PTSD from 50% to 70%. I d. I t ex plained:

- 12-[ During y our PTSD review ex amination, y ] ou described y o ur relationship with y our family

as spiraling downhill since y our military discharg e. You reported that y

ou are arg u mentative with y ou[ r ] father and have ha[ d ] thoug hts of harming y our father and his wife. Then y ou have associate[ d] feeling s of g uilt. You described a turbulent relationship with y o ur live-in g irlfriend characteriz ed with verbal and phy sical abuse. You noted that the two of y ou eng ag e in phy sical violence toward one another and y ou noted that y ou don’t hit one another in the face but mainly

ex chang e “body

shots.” Your g irlfriend was recently arrested during a domestic violence episode for striking y ou in the face. You also detailed the use of ex cessive force at work. You have found it difficult to control y our ang er while at y

our job and have been ag g ressive/assaultive toward others. You described yelling /arg uing with others, but ex plained that y ou believed that they deserved it. You said that y ou slammed a person ag ainst the wall. You also reported to the ex aminer that y ou have eng ag ed in phy sical altercations with y our g irlfriend’s father. During the ex amination y ou[ r] affect was described as constricted and flat. Your mood was anx ious and depressed. You were shown to understand the outcomes of y our behavior. You reported intermittent auditory and visual hallucinations. You reported experiencing “ex treme mood swing s” that are “very intense,” which y

ou ex plained as being

easily ang ered/enrag ed. You

ex p erience phy siolog ical arousal on a daily basis and are distressed by this. You feel sad, ang

ry , and moody

each day and have difficulty

caring about others or forming relationships.
You feel emotionally

and psy cholog ically distanced from others, “like an outcast.” The ex aminer assig ned a Global Assessment of F unction (GAF ) score of 53 due to y our PTSD sy mptoms. You reported y ou are so distressed by how y our life has chang e d

that y ou have considered suicide and have described some plans, but denied specific intent at the time of the interview.

W hile the evidence demonstrates that y ou[ r] PTSD sy

mptoms have increased in severity

bey o nd y our 50 percent evaluation, there is no evidence of record sug g esting y ou warrant a[ ] total evaluation of 100 percent.

. . . . Since there is a likelihood of improvement, the assig ned evaluation is not considered permanent and is subject to a future review ex amination.

I d. at 354-55; accord id. at 583-95 (containing the results of the May

21, 2009 PTSD review

ex amination). I n conjunction with the increased PTSD disability rating , the VA increased plaintiff’s combined disability rating to 80%. I d. at 356.

- 13-On November 29, 2010, after two y ears without mental health treatment, id. at 282, plaintiff contacted the VA Medical Center in Reno:
Veteran phoned [ an] RN y esterday and was having suicidal thoug hts, depression, phy sical and emotional abuse towards wife (x 2 y rs ‘on and off’), arg

uing w/wife, unhappy w/job @ [ redacted] doing security (12am-8am). 2 Veteran endorsed the following chief complaints: ‘Suicidal thoug hts’, ‘Mood swing s’, and ‘Depressed mood’. 3

I d. at 282 (footnotes added); accord id. at 303. He had an intake appointment the following day
, and sporadically

attended appointments and therapy sessions throug h March 2011. See id. at 143, 210-12, 226, 244-46, 253, 256-58, 265-68, 273-79.
Then, in both March 2011 and April 2011, plaintiff was hospitaliz ed for PTSD treatment. I d. at 110, 345. Shortly

after his April 2011 hospitaliz ation, he submitted a claim to the VA for an increased disability

rating . I d. at 344. He then underwent another PTSD review ex amination on April 27, 2011. I d. at 577-81. The ex aminer reported:
Veteran’s previous [ Compensation and Pension (“C& P”)] ex am was on 5/21/09 . . . . He was diagnosed with PTSD at that time and is currently70% serviceconnected for this condition. Since his previous C& P ex am, veteran has had 2 psy chiatric admissions at the Reno[ ] VA. He reported that about a month ag o, he and his wife of one y

ear g o t into an arg ument in their home and he beg an choking her. He said that she started bleeding from her nose and mouth and at that time he stopped choking her and went into the bathroom where he g ot the belt from a robe and was g oing to strang le himself. His wife called the police. He was on suicide watch in jail for two day s, and transferred to the Reno VA. His wife left him at that time and went to [ r edacted] to stay with a friend. Veteran became suicidal ag ain several weeks later due to the separation from his wife and was ag ain on W a rd 5C for a nig ht. He was charg ed with a felony and 2 misdemeanors. He has a lawy er. Veteran said that he has lost 30 pounds in the past month due to the stress of these incidents. . . .
Veteran reported that the day before this ex am, he broug h t his wife home from [ redacted] . He ex pressed a lot of ang er toward the friend that she was

2 Defendant redacted certain information in the administrative record prior to filing it with the court. The court indicates these redactions with a “[ redacted] ” notation.

3 A later medical record, dated F ebruary 2, 2011, indicates the reason that plaintiff “entered care” was because he called the VA Medical Center in November 2008. I d. at 226. Given that the record of the telephone call reflects that it occurred on November 29, 2010, it is reasonable to conclude that the “November 2008” date is a ty pog raphical error.

- 14-stay ing with, and said that if her or another friend (“a fag g ot”) of his wife came to his house he would kill them. He said that as longas they stay away , he will not g o after them. He said that he has had all the firearms removed from his home because he does not trust himself with them. I asked what he would do if his wife left ag ain and went to [ redacted] to stay w ith this friend, and his reply was that “she won’t.” Veteran reported a history of many phy sical altercations, including one in [ redacted] in late 2009 where he beat an ex of his wife “within an inch of his life.” He said that he contemplated killing him, but did not. He said that he has also g ot into other phy sical altercations, but he has not been arrested for them. His impulse control is very poor. He said that the big g est difference between his previous C& P ex am and the ex am today is that back then he “had the restraint to control my self.” He has threatened his manag er at work which has resulted in his shift time being chang e d.
Veteran reported that he is 6 classes away from a degree in criminal justice throug h the University of Phoenix . He had to drop out of his classes this semester due to his psy chiatric and leg al problems. He does not drink or use drug s. He works full time in security at [ redacted] Casino. He said that he often calls in sick because he does not want to work with his co-workers. He worked at [ redacted] in security

until the summer, when he was fired due to personality conflicts.
Veteran reported some benefit with his psy chotherapy

with Dr. Golden in late 2010. He said that he connected well with Dr. Golden. Dr. Golden moved so this was terminated. Veteran currently takes praz osin, citalopram, mirtaz apine, and valproic acid. He reported that the praz o sin helps his nig htmares, and the rest of medications help to bring him to a “calmer state.”
Veteran reported that he speaks with his mother, stepfather, and g randmother on occasion, but he has been avoiding them lately

because he does not want to talk. He said that he has a “handful of friends.”
Veteran was on time for the appointment. He was dressed casually . His affect was constricted, and his mood was irritable. He answered all questions presented. He used chew and tex ted during the interview. He reported that he was not having suicidal ideation today . He reported that he has homicidal ideation toward friends of his wife, but he is not planning to g o after them in any way ; however, if they

come to his home he said that he would kill them (“slit their throats, cut their face off.”)[

. ] He endorsed paranoia and auditory hallucinations of someone say

ing his name. Veteran reported a very quick temper and has a history of violent behavior. There was no obvious impairment in his cog n itive

- 15-functioning , althoug hhe reported that his short-term memory is not as g ood as it

once was.

I d. at 578-79.
Upon reviewing

plaintiff’s treatment records and the results of the PTSD review

ex amination, the VA denied plaintiff’s claim. I d. at 344. I n an Aug ust 10, 2011 rating decision, the VA ex plained:
VA records show hospitaliz [ ation] for posttraumatic stress disorder treatment from March 21, 2011 to April 4, 2011, which is a period of less than 21 day s. This admission does not meet the 21 day criterion for a temporary total evaluation for hospitaliz ation. Treatment records show complaints of violent behavior including domestic violence, ang er control issues, depressed mood, irritability
, startle reaction, and intrusive thoug hts. VA ex amination noted history of domestic violence, serious ang er control issues, nig htmares, poor impulse control, avoidance of relatives in recent months, with ong oing therapy and medication manag e ment, as well as two recent hospital admissions. Veteran had been able to obtain and maintain employ ment in security . On ex amination, veteran had adequate dress and g

rooming . Affect was constricted and mood was irritable. Cog nition appeared intact. Veteran did report homicidal ideation and paranoia. Cog nitive functioning was g o od. Memory was indicated as somewhat impaired. Veteran also endorsed sleep impairment and panic attacks less than weekly

. Diag nosis was posttraumatic stress disorder. I n termittent ex plosive disorder and psy chotic disorder were ruled out. Ex aminer indicated occupational and social impairment with deficiencies in most areas, with assessment of functioning indicated as 48. F inding s meet the criteria for a 70 percent evaluation, but not hig her, so we have continued the ex isting 7 0 percent evaluation.

I d. at 345-46.

D. P roceedings Bef

ore This Court and the P hysical Disability Board of Review

Plaintiff filed suit in this court on J uly 29, 2013, 4 seeking the correction of his military records to reflect the assig n ment of a 50% disability rating effective July

30, 2007–the date of his discharg e from the Army

–and the receipt of the benefits that would follow from such a correction. More specifically
, plaintiff contended that the PEB should have assig ned him a disability rating of at least 50% and recommended that he be permanently retired. Compl. ¶¶ 55- 57. He relied upon VASRD § 4.129, “Mental disorders due to traumatic stress,” which provides:

4 The administrative record does not contain any medical records or other documents dated between Aug

ust 2011 and J uly

2013.

- 16-W h en a mental disorder that develops in service as a result of a hig hly stressful event is severe enoug

h to bring a

bout the veteran’s release from active military service, the rating

ag ency shall assig n an evaluation of not less than 50 percent and schedule an ex amination within the six month period following the veteran’s discharg e to determine whether a chang e in evaluation is warranted.

38 C.F .R. § 4.129 (2006). 5

Proceeding s in this case were subsequently stay ed to permit plaintiff to seek relief before the Phy sical Disability

B oard of Review (“PDB R”). Created by Cong ress in J anuary

2008, the PDB R is charg ed with reviewing the finding s and decisions of PEB s for former service members, like plaintiff, who were medically separated from service between September 11, 2001, and December 31, 2009, with a disability rating of 20% or less. 10 U.S.C. § 1554a(a)-(b) (2012). Upon such a review, the PDB R may make the followingrecommendations to the Secretary of the pertinent military

department:
(1) No recharacteriz ation of the separation of such individual or modification of the disability

rating previously

assig n ed such individual.
(2) The recharacteriz ation of the separation of such individual to retirement for disability

. (3) The modification of the disability rating previously

assig ned such individual by the Phy sical Evaluation B oard concerned, which modified disability rating may not be a reduction of the disability rating previously

assig n ed such individual by that Phy sical Evaluation B oard.
(4) The issuance of a new disability rating for such individual.

I d. § 1554a(d). The Secretary concerned is authoriz ed to correct the military records of the former service member in accordance with the PDB R’s recommendation. I d. § 1554a(e)(1).
Plaintiff submitted his application to the PDB R on November 4, 2013, along with a supporting brief, the records described above, his declaration, and a declaration submitted in a related case by

another individual. See g enerally A RI I 12-340. I n his supporting brief, plaintiff advanced two main arg

uments. See id. at 24-33. F irst, he contended that he was entitled, as a matter of law, to a 50% disability rating for his PTSD beg inning on the date of his discharg e in 2007, and continuing until the Army provided him with a follow-up PTSD ex amination and subsequent PEB

. I d . at 24-29. Second, he contended that he was entitled to a 50% disability

5 The court cites to the 2006 version of the VASRD–the version in effect at the time of plaintiff’s discharg e. However, the sections of the VASRD discussed in this Opinion and Order were not substantively amended between 2006 and the date that plaintiff filed his complaint.

- 17-rating for his PTSD based on the deg ree of his social and occupational impairment, as reflected

in his VA records. I d. at 29-32.

I n his declaration, plaintiff described his ex posure to three dead enemy combatants and close prox imity

to an improvised ex p losive device detonation during his first deploy

ment to I raq, id. at 37-39, and the death of seven of his friends and fellow soldiers over a five-week period during his second deploy

ment to I raq, id. at 39. He also described the effects that PTSD had on his life after he was separated from the Army :

18. F ollowing my

discharg e from the Army and even during and after the second VA RatingDecision in Aug ust 2009, I noticed that my PTSD and depression g ot worse and my relationships with family members, co-workers and friends continued to deteriorate.
19. After my

discharg e from the Army , Iinitially found employ

ment as a member of the security

team at [ redacted] casino. However, I found my self frequently

ang ry or annoy ed at co-workers and even customers at work, and was informed by

my supervisors that I

was at times too ag g ressive at my job, which they did not like. I n J uly

2010, Iwas dismissed from this job due to “personality conflicts.”

. . . . 22. After my

return from I

raq and subsequent discharg e from the Army
, my personal relationships with friends and family members deteriorated sig nificantly , and I started to notice that I was the common denominator in all these failed relationships. W here I once enjoy ed g oing out with friends and being social, I became introverted and did not like g o ing out any more. I did not feel like Ifit in, and felt like an outcast. My quality of life suffered g

reatly . Icould not sleep for more than a couple hours at a time, waking frequently and feeling

anx ious. I often had nig h tmares when asleep and was anx ious and ang ry when awake. Suicide had crossed my mind during this time. I remembered the violent deaths of my

friends in the Army

.
23. F ollowing my

return from I

raq and discharg e, I

had particular difficulty in manag ing and keeping my close relationships. I

had ang er control issues and was often in a depressed mood, and was easily irritated.
24. A critical point duringmy marriag e, which was a wake up call for me, was in March 2011, when I g ot into a phy sical fig ht with my wife. I tried to strang le her. During

the fig ht, I saw blood on her, which made me stop and put a robe belt around my

neck in an attempt to suffocate and kill my self. I knew I was wrong and specifically

asked the police to arrest me and take me to jail.

- 18-25. The March 2011 incident was the first time I had ever been arrested, and the ex perience of g oing to jail was very toug h for me. I

n jail, I was placed in isolation and on suicide watch.

. . . . 27. Also following the March 2011 incident with my wife, I was admitted to a VA hospital two times within the span of two weeks between March and April 2011, for treatment of mental issues relating to my PTSD.

28. F ollowing my

return from I

raq and subsequent discharg e from the Army , another relationship that was important to me, my relationship with my father, also deteriorated. Specifically
, Ihad a g enerally g ood relationship with my father while growing up; however, after returning from I raq and being

discharg ed from the Army in 2007, my relationship with my

father suffered to a point where I became estrang ed from my father and his wife. During that time, I found my self at times contemplating phy sical violence ag ainst my father, which was strang e because I had not had those kinds of thoug hts before. W e stopped speaking on J anuary 11, 2008, and did not speak ag a in until more than four y ears later.

29. Ifeel responsible for the deterioration of the relationship with my father because I

purposefully

said hurtful thing s to him. I also feel responsible for the other failed relationships that I have had since returning from I raq and being discharg ed from the Army

.

I d. at 41-44. Plaintiff also provided an explanation for why he did not show up for two scheduled PTSD review ex aminations in 2008, after the VA issued its first rating decision:

Idon’t specifically

recall the circumstances surrounding why Imissed those appointments, however I

recall there was a lot of uncertainty and instability

g oing on in my life at that time, which may have had something

to do with my

PTSD. I n particular, during

the time between the [ November 2007 and Aug ust 2009 disability ] rating s, Iwas stay ing with my

cousin, who I

was not g etting along with very well at the time. Therefore, I only stay ed with him intermittently , and otherwise spent most of my time at my g irlfriend’s home. Therefore, I did not g et most of my mail on a timely basis, if at all.

I d. at 41. The remaining

information contained in plaintiff’s declaration was consistent with the contents of his VA medical records, as described above.

The PDB R convened on March 20, 2014, to review plaintiff’s case. I d. at 5-6. In its April 4, 2014 report, the members of the PDB R unanimously ag reed to recommend the correction of plaintiff’s military records to reflect a 50% disability rating and placement on the

- 19-TDRLfor six months. I d . at 8. After summariz ing the evidence before it, id. at 7-8, the PDB R

ex p lained:

The B oard . . . directed its attention to the question of §4.129 applicability and the rating

recommendations based on the evidence just described. The PEB rated the [ mental health] condition(s) at 10% . . . (likely [ in accordance with Department of Defense I

nstruction (“DoDI ” ) 1332.39, “Application of the Veterans Administration Schedule for Rating Disabilities” (Nov. 14, 1996)] [ rescinded] and/or [ Army Reg ulation] 635-40 in effect at the time). The VA . . . assig ned a 50% rating based on §4.129. . . . The PEB rating . . . preceded the promulg ation of the National Defense Authoriz ation Act (NDAA) 2008 mandate for Department of Defense (DoD) adherence to Veterans Administration Schedule for Rating Disabilities (VASRD) §4.129. The B oard, [ in accordance with] DoDI 6040.44 and DoD guidance (which applies current VASRD §4.129 to all B oard cases as appropriate), accepts the §4.129 specification that it is applicable to any “mental disorder that develops in service as a result of a hig hly stressful event [ that] is severe enoug

h to bring about the veteran’s release from active military service”; and[ ] the B oard unanimously ag reed that the operant definition was met by the psy chiatric conditions evidenced in this case.
. . . . All members ag reed that the §4.130 criteria for a rating hig her than 50% were not met at the time of separation and therefore the minimum Temporary Disability Retired L ist (TDRL ) ratingis applicable[ , and] will thus recommend a 50% PTSD rating for a retroactive six -month period on the TDRL

.

I d. at 8-9 (“[ rescinded] ” notation in the orig inal); see also 38 C.F .R. § 4.130 (containing VASRD § 4.130, “Schedule of rating s–mental disorders,” which sets forth the “g eneral rating formula for mental disorders,” in other words, g u idance for assig

ning 10%, 30%, 50%, 70%, and 100% disability rating s).

However, the members of the PDB R were unable to arrive at a unanimous recommendation reg arding the disability r ating that should have been assign ed to plaintiff six months after his separation. See ARI Iat 8-11. The majority of the PDB R members recommended that plaintiff’s disability rating be set at 30%, ex plaining :
Reg arding the rating at the beg inning of a constructive TDRL period, the mental health addendum evaluation performed 3 months prior to separation recorded a completely

normal [ mental status evaluation] and a GAF of 60 (borderline moderate to mild). There were no recorded visits to the emerg ency room, no suicidal or homicidal ideations, no panic attacks, and no psy chiatric hospitaliz a tions. There was no evidence of impairment in thin king or judg ment. The B oard considered the commander’s statement that “the severity of the conditions has placed g reat difficulties and stresses on the soldier, severely

- 20-limiting his ability to work” in his primary

MOS, but when reassig ned the [ covered individual’s (“CI ’s”)] duty performance had “been ex emplary”; he worked a 40-hour work week and attended therapy appointments. As previously noted, the VA psy chiatric C& P ex amination was approx imately 2 y ears after separation and was assig

n ed less probative value as related to the CI ’s functional status at the start of the constructive [ TDRL ] period. The B oard majority felt that the [ MEB narrative summary (“NARSUM”)] ex amination and record of evidence was most consistent with the g eneral description for a §4.130 rating of 30% for “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks,” as demonstrated by

such sy mptoms as depressed mood, suspiciousness, mild memory impairment and anx iety

. . . . Reg arding the rating at the end of a constructive six month TDRL period (30 J anuary

2008), the B oard placed hig her probative value to the NARSUM and less to the delay ed VA C& P mental ex amination (completed approx imately 16 months after the rating

timeframe)[ ] in deliberating the permanent disability rating . The B oard noted that at the time of the NARSUM and within 12 months of separation, the CI

had no history

of psy chiatric hospitaliz ations, had minimally eng ag ed in therapy , was not taking psy chotropic medications, made no suicidal or homicidal attempts and had no visits to the emerg ency room for suicidal, homicidal ideations, or panic attacks. W hile noting the VA C& P ex amination indicated increasing

violence (history

indicated that police were called in the F a ll of 2008 resulting in the arrest of his g irlfriend) and deficiencies in family relations beg inning in early

2008 (prox imate to the end of TDRL rating timeframe), there was no evidence of leg al charg es or leg a l consequences to the CI , he was working full-time, and had been a student. The B oard adjudg ed that the CI ’s condition at the remote VA ex am was post-separation worsening and not indicative of the CI ’s level of impairment at the 6-month post-separation timeframe for permanent rating determination following constructive TDRL . After due deliberation, and in consideration of all the evidence and VASRD §4.3 (reasonable doubt), the B o ard majority recommends a 30% permanent disability rating

.

I d. at 8-9. A minority

of the PDB R members disag reed, finding that a 10% disability

rating for plaintiff’s PTSD after six months was appropriate:

The B oard correctly

placed the applicant on the TDRL using §4.129 at 50%; however, there were no evaluations at or near the 6 month time period that could be effectively

used to rate the applicant. The applicant failed to report for his initially scheduled VA C& P Mental Disorders Ex am following separation; therefore, the VA invoked §4.129 at 50% citing service treatment records identify ing a diag nosis of PTSD. The applicant also failed to report for a second Mental Disorders ex am in late 2008, approx imately 14 months after separation.

- 21-B a sed on this second missed ex am, the VA proposed reducing the PTSD award from 50% to 0%. The applicant responded to this proposed reduction and a C& P review for PTSD was conducted in May 2009, 22 months after separation.

Review of the PEB ’s discussion for the applicant’s PTSD indicates that he was workinga full 40 hour week with acceptable duty performance. That comment most likely

came from the commander’s statement, written one month prior to the PEB in which he wrote, “SPC Cook’s duty performance has been

ex e mplary . His work ethic and adherence to standards are in compliance with Army regulations. He has been known as a technically proficient soldier.” The commander further stated that he was working a 40-hour work week.
The mental health addendum to the narrative summary (NARSUM), written 2 months prior to the PEB was difficult to follow with respect to definitively categ oriz ing the applicant at either the 10% or 30% rating categ ory

. The NARSUM, written a month later, states that the applicant was not taking any psy chiatric medications, had not required any psy chiatric hospitaliz a tions, and denied any current suicidal or homicidal thoughts, plans or ideations.

The PEB adjudicated the PTSD as unfitting , rating the condition at 10% and havingmild industrial impairment. Given the documentation available, the minority voter believes that 10% was a fair and equitable rating at the time of separation. However, there is no documentation [ that] can be used at the end of the 6-month TDRLperiod to adequately , effectively , and fairly rate the applicant as the first evidence we have of continued problems with PTSD are not documented until 22 months after separation.
Once a service member is [ medically ] separated or retired from the Military because of an unfitting

condition(s), the current sy stem is desig ned to support any

deterioration of the unfitting condition(s) via the VA. The initial VA award was based on the Army ’s unfitting diag n osis of PTSD and §4.129. However, we do not know what that award would have been if the applicant had reported for his initial C& P ex am. To compound matters, the applicant missed a second C& P ex am and did not g et a “true” VA rating until he was ex amined 22 months after separation. The minority voter opines that there are no probative

ex ams at 6, 12, or 18 months after separation time period upon which to rate the applicant at the end of the TDRL p e riod. Therefore, minority voter believes that the PEB ’s rating of 10% would be the fairest adjudication of the applicant’s condition at the end of the 6-month TDRL period.

I d. at 11.

- 22-The president of the PDB R forwarded the PDB R’s finding s and recommendations to the

Director of the Army

Review B oards Ag ency , the Secretary of the Army ’s desig nee for acting on the recommendations of the PDB R. I d. at 3-5. In an April 14, 2014 memorandum, the Director wrote:

Ihave reviewed the enclosed Department of Defense Phy sical Disability

B oard of Review . . . recommendation and record of proceeding s pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I reject the B oard’s recommendation and accept the B oard’s minority opinion as accurate that the individual be constructively placed on the Temporary Disability Retired L ist . . . at 50% disability for six months effective the date of the individual’s orig inal medical separation for disability with severance pay

and then following this six month period no recharacteriz ation of the individual’s separation or modification of the permanent disability rating of 10%. There is insufficient justification to support the B oard’s recommendation in accordance with Army

and Department of Defense reg ulations.

I d. at 3. She then directed that plaintiff’s military records be corrected in accordance with her decision. I d.
Plaintiff was not satisfied with the relief provided by the Army . According ly , he filed an amended complaint in this action on May 9, 2014, setting forth two claims for relief. F irst, plaintiff alleg es that the Army ’s failure in 2007 to (1) assig n him a 50% disability

rating for his PTSD upon his discharg e, (2) place him on the TDRL , (3) schedule a reex amination within six months after his discharg e, and (4) “afford him a subsequent PEB with all the associated procedural rig

hts required for a full and fair hearing” was “arbitrary , capricious, and contrary to law.” Am. Compl. ¶ 83; see also id. ¶ 82 (alleg ing that the Army acted in contravention of 10 U.S.C. § 1201, 10 U.S.C. § 1203, and the VASRD). Second, plaintiff alleg es that the Army ’s decision in 2014 “to reject the PDB R’s majority recommendation to recharacteriz e Plaintiff’s separation as a permanent retirement by assig ning Plaintiff a PTSD disability rating of 30% at the six month mark following Plaintiff’s discharg e , despite substantial evidence in the record warranting

such rating
, was arbitrary , capricious, and contrary to law.” I d. ¶ 88. Plaintiff according ly

requests that his military records be corrected to reflect that he was assig ned (1) “a 50% permanent disability rating for unfitting PTSD effective at discharg e from the military and awarded monetary

benefits associated with this records correction” or (2) “a 50% temporary disability rating for his unfitting PTSD at discharg e and a 30% permanent disability rating for his unfitting PTSD effective at the six month mark following [ his] discharg e from the military and awarded monetary

benefits associated with this records correction.” I d. at 24-25.
Defendant moves to dismiss plaintiff’s first claim for relief, and the parties cross-move for judg ment on the administrative record with respect to both of plaintiff’s claims for relief. Defendant also moves to strike a declaration attached to plaintiff’s reply brief. All motions have been fully briefed and the court deems oral arg u ment unnecessary

.

- 23-II. DEF ENDANT’S MOTION TO DISMISS

Defendant initially

moves, pursuant to Rule 12(b) of the Rules of the United States Court of F ederal Claims (“RCF C”), to dismiss plaintiff’s first claim for relief as moot or, in the alternative, for failure to state a claim upon which relief can be g ranted. I n ruling on such a motion, the court assumes that the alleg ations in the complaint are true and construes those alleg ations in the plaintiff’s favor. Henke v. United States, 60 F .3d 795, 797 (F ed. Cir. 1995).

A. P laintif

f ’s F irst Claim f

or Relief Is Not Moot
Defendant raises its mootness arg ument in a motion to dismiss for lack of jurisdiction pursuant to RCF C 12(b)(1). “[ A] case is moot when the issues presented are no long er ‘live’ or the parties lack a leg a lly

cog niz a ble interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). W hen a case is moot, there are no justiciable issues upon which the court can render a decision. 6 F last v. Cohen, 392 U.S. 83, 95 (1968); see also F isher v. United States, 402 F .3d 1167, 1176 (F ed. Cir. 2005) (panel portion) (noting that justiciability “encompasses a

6 The “lack of jurisdiction to review moot cases derives from the requirement of Article I I Iof the Constitution under which the ex ercise of judicial power depends upon the ex istence of a case or controversy .” L iner v. J afco, I nc., 375 U.S. 301, 306 n.3 (1964); see also U.S. Const. art. I I I , § 2 (“The judicial Power shall ex tend to all Cases, in L aw and Equity , arising under this Constitution, the L aws of the United States, and Treaties . . . [ and] to Controversies to which the United States shall be a Party . . . .”). B ut see Honig v. Doe, 484 U.S. 305, 329-32 (1988) (Rehnquist, C.J ., concurring ) (questioning the constitutional orig ins of the mootness doctrine by arguing that despite federal courts’ recog nition of ex ceptions to mootness, such ex c eptions cannot be read into Article II I ’ s “case or controversy ” requirement); W inz ler v. Toy ota Motor Sales U.S.A., I nc., 681 F .3d 1208, 1209 (10th Cir. 2012) (“Mootness has many moods. . . . I n some cases mootness bears a constitutional countenance, acting as a jurisdictional bar ag ainst even entertaining

a case. Other times mootness carries a more prudential complexion, permitting us to withhold relief we have the authority to g rant. Other times still, a case finds itself mooted by a tang le of constitutional and prudential considerations. . . . W hether, when, and to what deg ree mootness can boast of being a constitutional command, a true jurisdictional limit on the federal courts, has tax ed g r eat minds.”); Matthew I . Hall, The Partially Prudential Doctrine of Mootness, 77 Geo. W ash. L . Rev. 562, 575 (2009) (arg uing “that if the mootness bar were truly a mandatory , jurisdictional rule imposed by the Constitution, then the ex ceptions . . . could not

ex ist”). The United States C ourt of F ederal Claims (“Court of F ederal Claims”), as a court established under Article I of the United States Constitution, 28 U.S.C. § 171(a) (2012), is not bound by the “case or controversy ” requirement of Article I I I , Z evalkink v. B rown, 102 F .3d 1236, 1243 (F ed. Cir. 1996). Nevertheless, the Court of F ederal Claims and other Article I courts traditionally

have applied the “case or controversy ” justiciability

doctrines. See id.; Anderson v. United States, 344 F .3d 1343, 1350 n.1 (F e d. Cir. 2003); CW Gov’t Travel, I nc. v. United States, 46 F ed. Cl. 554, 558 (2000); cf. 28 U.S.C. § 2519 (using the phrase “case or controversy ” in describingthe finality

of judg ments of the Court of F ederal Claims).

- 24-number of doctrines under which courts will decline to hear and decide a cause,” including the “doctrines of standing , mootness, ripeness, and political question”). The court’s inquiry into the justiciability

of a case is distinct from its inquiry into whether it has jurisdiction over the case’s subject matter. Powell, 395 U.S. at 512; B aker v. Carr, 369 U.S. 186, 198 (1962); Prasco, L L C v. Medicis Pharm. Corp., 537 F .3d 1329, 1335 n.3 (F ed. Cir. 2008); Murphy v. United States, 993 F .2d 871, 872 (F ed. Cir. 1993). I n other words, the court may find that it possesses jurisdiction over the subject matter of a case but conclude that the dispute is nevertheless nonjusticiable. Thus, while mootness is jurisdictional in that it trig g ers the court’s inquiry as to whether it has the ability

to adjudicate a case, 7 an RCF C 12(b)(1) motion has not been universally accepted by

federal courts as the appropriate vehicle by which to dismiss a case as moot. 8 Ultimately , however, the court need not determine whether defendant should have asserted, in its motion to dismiss plaintiff’s first claim for relief as moot, that plaintiff failed to state a claim upon which relief can be g ranted, that plaintiff failed to state a nonjusticiable claim, or that

7 See, e.g ., Steel Co. v. Citiz ens for a B etter Env’t, 523 U.S. 83, 102-10 (1988) (characteriz ing the justiciability issue of standing as a jurisdictional issue); North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (“Mootness is a jurisdictional question because the Court is not empowered to decide moot questions or abstract propositions . . . .” (internal quotation marks omitted)); My ers Investig a tive & Sec. Servs., Inc. v. United States, 275 F .3d 1366, 1369 (F ed. Cir. 2002) (“[ M] ootness . . . is a threshold jurisdictional issue.”); W hite v. L ee, 227 F .3d 1214, 1242 (9th Cir. 2000) (“B ecause standing and mootness both pertain to a federal court’s subject-matter jurisdiction under Article I I I , they are properly

raised in a motion to dismiss under F ederal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6).”); CB Y Desig n B u ilders v. United States, 105 F ed. Cl. 303, 328 (2012) (“The mootness of a case is properly the subject of an RCF C 12(b)(1) motion.”).

8 See, e.g ., B ak er, 369 U.S. at 196 (holding that a case that is “unsuited to judicial inquiry or adjustment” should be dismissed for “a failure to state a justiciable cause of action” and not for “a lack of jurisdiction of the subject matter”); Ory sz ak v. Sullivan, 576 F .3d 522, 526-27 (D.C. Cir. 2009) (Ginsburg , J

. , concurring ) (noting that when “a plaintiff makes a claim that is not justiciable . . . a court should dismiss the case for failure to state a claim” and that “it is important to disting uish among failure to state a claim, a claim that is not justiciable, and a claim over which the court lacks subject matter jurisdiction”); F . Alderete Gen. Contractors, I nc. v. United States, 715 F .2d 1476, 1480 (F ed. Cir. 1983) (reciting “the long -standing rule in the F ederal courts that jurisdiction is determined at the time the suit is filed and, after vesting , cannot be ousted by subsequent events, includingaction by the parties” (emphasis added)); see also Kontrick v. Ry an, 540 U.S. 443, 455 (2004) (“Clarity would be facilitated if courts and litig ants used the label ‘jurisdictional’ . . . only for prescriptions delineating the classes of cases (subjectmatter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority .”); Sierra Club v. J ackson, 648 F

. 3 d 848, 853 (D.C. Cir. 2011) (“The distinction between a claim that is not justiciable because relief cannot be g ranted upon it and a claim over which the court lacks subject matter jurisdiction is important.”).

- 25-plaintiff asserted a claim outside the court’s subject matter jurisdiction because plaintiff’s first

claim for relief is not moot.

I n his first claim for relief, plaintiff challeng es the informal PEB ’s failure to apply VASRD § 4.129 to his circumstances, depriving him of a 50% disability

rating for his PTSD, a

reex amination within six months to determine whether the disability rating should be adjusted, and a second PEB to address his disability rating

. 9 Defendant contends that this claim for relief is moot because the Army , relying on the PDB R’s minority opinion, has retroactively corrected plaintiff’s military

records to provide plaintiff with the relief contemplated by VASRD § 4.129. As such, defendant arg

ues, there is no long er a live controversy reg arding the application of VASRD § 4.129 to plaintiff. Plaintiff disag rees, arg u ing that a live controversy remains because notwithstanding the Army ’ s correction of his military records, the Army

has not fully

complied with the relevant statutes and reg ulations. I n particular, plaintiff asserts that the Army has not provided him with the postdischarg e reex amination required by VASRD § 4.129 or followed the proper procedures for reviewing and/or chang ing p laintiff’s disability rating following the required postdischarg e reex amination. I n a nutshell, plaintiff contends that the Army ’s correction of his records did not provide him with the full relief to which he was entitled.
A court “will determine only actual matters in controversy essential to the decision of the particular case before it.” United States v. Alaska S.S. Co., 253 U.S. 113, 115 (1920). The controversy

must ex ist at all stag es of the litig ation; it is not enoug h that the controversy was alive when the complaint was filed. Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974). A party ’s subsequent acts will render a case moot if those acts make it impossible for the court to g rant “‘effectual relief.’” Church of Scientolog y of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). However, because the “[ m] ootness of an action relates to the basic dispute between the parties” and “not merely the relief requested,” a case will not be rendered moot by subsequent acts if some of the requested relief remains

9 Soldiers placed on the TDRL must underg o a phy sical ex amination at least once every eig hteen months “to determine whether there has been a chang e in the disability for which he was temporarily

retired.” 10 U.S.C. § 1210(a); Army Reg ulation 635-40, ¶ 7-4. The phy sical

ex amination is conducted at a medical treatment facility . Army Reg ulation 635-40, ¶ 7-13. The results of the ex amination are forwarded to the PEB , id. ¶ 7-19(c), which determines whether the soldier’s condition has chang ed since being placed on the TDRL , id. ¶ 7-20(b) to (c). The PEB may only chang e a soldier’s disability rating upon the soldier’s removal from the TDRL . I d. ¶ 7- 20(b). I f the PEB recommends a soldier’s removal from the TDRL , the soldier is entitled to counseling from a PEB liaison officer and may make any of the elections set forth on DA F orm 199. I d. ¶ 7-20(e)(1), (3); see also id. ¶ 4-20(c)(1) (describing the available options on DA F orm 199 as (1) concurring

with the finding s and recommendations and waiving a formal hearing ; (2) disag reeing

with the finding s and recommendations, submitting a rebuttal statement, and waiving a formal hearing ; (3) demandinga formal hearing ; and/or (4) having representation by

counsel if a hearing is demanded). Removal of a soldier from the TDRL upon the PEB ’ s recommendation is done by

the Army ’s Human Resources Command. I d. ¶ 7-11(a).

- 26-available. I ntrepid v. Pollock, 907 F .2d 1125, 1131 (F ed. Cir. 1990); accord Church of Scientolog y

of Cal., 506 U.S. at 12 (holding that a case is not moot so long as the “court can fashion some form of meaning ful relief” for the injured party ).
The subsequent act at issue here is the Army ’s correction of plaintiff’s military records. W ith this act, the Army

provided plaintiff with some of his requested relief–it retroactively assig ned him a 50% disability rating for his PTSD and constructively placed him on the TDRL for six months. However, the Army ’s correction of plaintiff’s military records did not affect the remaining relief that plaintiff requests–a reex amination of his mental health condition pursuant to VASRD § 4.129, and the convening of a PEB to review and, if necessary , chang e the 50% disability rating for his PTSD. I f plaintiff prevails on his claim that the Army ’s failure to order a

reex amination of his mental health and convene another PEB was “arbitrary , capricious, and contrary to law,” the court has the authority to remand plaintiff’s case to the Army to correct the defect. 28 U.S.C. § 1491(a)(2). Moreover, if the court concludes that the Army violated the relevant statutes and reg

ulations by

not requiring a phy sical ex amination and convening a PEB , and that, as a result, plaintiff is entitled to be permanently retired under 10 U.S.C. § 1201, then it is authoriz e d to issue an order directing the Army

to place plaintiff in the appropriate retirement status and correct plaintiff’s miliary records according ly

. I d. I n sum, because relief remains available for plaintiff’s first claim for relief, that claim is not moot.

B. P laintif

f ’s F irst Claim f

or Relief States a Claim Upon Which Relief Can Be G ranted
Defendant moves, in the alternative, to dismiss plaintiff’s first claim for relief for failure to state a claim upon which relief can be g ranted pursuant to RCF C 12(b)(6). To survive such a motion, a plaintiff must include in his complaint “enoug h facts to state a claim to relief that is plausible on its face.” B ell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). I n other words, a plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleg ed.” Ashcroft v. I q bal, 556 U.S. 662, 678 (2009) (citing B ell Atl., 550 U.S. at 556). I ndeed, “[ t] he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other g rounds by Harlow v. F itz g e rald, 457 U.S. 800, 814-19 (1982).
As previously

noted, plaintiff’s first claim for relief concerns the actions taken, and not taken, by the Army in 2007 when it assig ned plaintiff a 10% disability rating for his PTSD and separated him with severance pay . Defendant arg ues that plaintiff fails to state a claim upon which relief can be g

ranted because the Army

was not required, prior to 2008, to apply VASRD § 4.129 to soldiers deemed unfit for duty due to PTSD. Defendant is mistaken.

1. The P re-2008 Statutory and Regulatory F ram e w ork

I n 2007, when plaintiff was discharg ed from the Army , a soldier with at least thirty day s of active duty

service who was deemed unfit for duty could either be permanently retired

- 27-pursuant to 10 U.S.C. § 1201, placed on the TDRL pursuant to 10 U.S.C. § 1202, or separated pursuant to 10 U.S.C. § 1203. I f the Secretary of the Army

determined that the soldier’s “disability [ was] at least 30 percent under the standard schedule of rating disabilities in use by

the Department of Veterans Affairs at the time of the determination,” the soldier could be permanently retired, 10 U.S.C. § 1201(b)(3)(B ) (2006), or placed on the TDRL
, id. § 1202 (incorporating

the standards set forth in 10 U.S.C. § 1201). I f the Secretary of the Army determined that the soldier’s “disability [ was] less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination,” the soldier could be separated. I d. § 1203(b)(4)(A)-(B ); see also id. § 1203(b)(4)(C) (noting that separation was possible in certain circumstances if a soldier’s “disability [ w as] at least 30 percent under the standard schedule of rating disabilities in use by

the Department of Veterans Affairs at the time of the determination”). I n other words, the Army

was statutorily required to utiliz e the VASRD to determine the disability rating of a soldier with an unfittingmedical condition. 1 0 Accord Army

Reg ulation 635-40, ¶ B -1 (“Cong ress established the VASRD as the standard under which percentag e rating decisions are to be made for disabled military personnel.”); DoDI 1332.39, ¶ 4.2 (“Chapter 61 of [ title 10 of the United States Code] establishes the [ VASRD] as the standard for assig

ning percentag e rating s.”).
The Secretary

of the Army

is charg ed with promulg ating regulations to carry out the provisions of chapter 61 of title 10 of the United States Code. 10 U.S.C. § 1216(a). Moreover,

ex c ept in circumstances not relevant in this case, the Secretary of the Army has “all powers, functions, and duties incident to the determination” of:
(1) the fitness for active duty of any member of an armed force under his jurisdiction;
(2) the percentag e of disability of any such member at the time of his separation from active duty ;
(3) the suitability

of any member for reappointment, reenlistment, or reentry upon active duty

in an armed force under his jurisdiction; and
(4) the entitlement to, and pay ment of, disability

severance pay

to any member of an armed force under his jurisdiction.

I d. § 1216(b). Pursuant to this authority , the Secretary of the Army

promulg ated Army Reg ulation 635-40. That reg ulation provided:

1 0 Other sections of the pre-2008 version of chapter 61 of title 10 of the United States Code contain languag e similar to that appearing in sections 1201 and 1203 directing the military to utiliz e the VASRD to determine disability rating s. See, e.g ., 10 U.S.C. §§ 1204(4)(B ), 1206(5), 1210(c)-(e).

- 28-a. The percentag e assig ned to a medical defect or condition is the disability

rating . A rating is not assig ned until the PEB determines the Soldier is phy sically unfit for duty . Under the provisions of 10 USC [ c h.] 61 these rating s are assig ned from the Department of Veterans Affairs Schedule for rating disabilities (VASRD).
b. Special g uidance concerning Army use of the VASRD, as well as modifications and ex ceptions to it as prescribed by [ Department of Defense Directive (“DoDD”) 1332.18, “Separation or Retirement for Phy sical Disability ” (Nov. 4, 1996)]
, 1 1 are set forth in appendix B of this reg ulation.

Army Reg ulation 635-40, ¶ 3-5 (footnote added); accord id. ¶ 4-19(f)(5) (“I f the Soldier is entitled to disability

benefits, the PEB decides the rating for each compensable disability from the VASRD, as modified by Appendix B .”); DoDI

1332.38, ¶ E3.P4.6 (“W h en a disability is established as compensable, the disability shall be rated according

to the VASRD, as implemented by

DoD I nstruction 1332.29 . . . and federal law.”). Another parag raph of the regulation contained additional g uidance reg arding the Army ’s modifications and ex ceptions to the use of the VASRD:
The VASRD, as modified by appendix B of this reg ulation, is used in deriving percentag e rating s. The first 31 parag raphs of the VASRD, which provide g eneral policies, do not apply

and have been replaced by section I and I Iof appendix B of this reg ulation. [ PEB liaison officers] , raters, and reviewers must be familiar with the VASRD, including introductory parag raphs to sections and italiciz ed footnotes. Appendix B sets forth Army policies (including modifications) on use of the VASRD when rules or rating s provided by the VA schedule are improper for Army use or do not provide a rating basis.

Army Reg ulation 635-40, ¶ 4-19(i); accord id. ¶ B -2 (noting that section I of appendix B “replace[ d] or modifie[ d] parag raph[ s] 1-31 of the VASRD”); DoDI 1332.39, ¶ 4.2 (“[ N] ot all the g eneral policy

provisions in Sections 4.1 - 4.31 of the VASRD are applicable to the Military Departments. . . . This I

nstruction replaces these sections of the VASRD. The remainder of the VASRD is applicable ex cept those portions that pertain to [ VA] determinations of Service connection, refer to internal [ VA] procedures or practices, or are otherwise specifically identified in Enclosure 2 as being

inapplicable.” 1 2 ).

1 1 Parag raph 3.8 of DoDD 1332.18 provided that “[ t] he assig nment of disability rating s shall be based on the Veterans Administration Schedule for Rating Disabilities (VASRD) . . . as implemented by ” DoDI

1332.38, “Phy sical Disability Evaluation” (Nov. 14, 1996), and DoDI 1332.39, “Application of the Veterans Administration Schedule for Rating Disabilities.”

1 2 The portions of the VASRD pertaining to PTSD and other mental disorders were not mentioned in Enclosure 2.

- 29-One of the policies set forth in the first thirty -one parag raphs of the VASRD that was rejected by

the Army

concerned convalescent rating s. VASRD § 4.30 provides:
Convalescent rating s.
A total disability

rating (100 percent) will be assig ned without reg ard to other provisions of the rating schedule when it is established by report at hospital discharg e (reg

u lar discharg e or release to non-bed care) or outpatient release that entitlement is warranted under parag raph (a) (1), (2) or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharg e or outpatient release. . . .
(a) Total rating s will be assig ned under this section if treatment of a serviceconnected disability

resulted in:
(1) Surg ery

necessitating a t least one month of convalescence. . . .
(2) Surg ery

with severe postoperative residuals such as incompletely healed surg ical wounds, stumps of recent amputations, therapeutic immobiliz ation of one major joint or more, application of a body cast, or the necessity

for house confinement, or the necessity for continued use of a wheelchair or crutches (reg ular weig ht-bearing

prohibited). . . .
(3) I mmobiliz a tion by

cast, without surg ery , of one major joint or more.

. . .
38 C.F .R. § 4.30. And, with respect to mental disorders, VASRD § 4.128 further provides:
Convalescence rating s following ex tended hospitaliz ation.

I f a mental disorder has been assig ned a total evaluation due to a continuous period of hospitaliz ation lasting six months or more, the ratingag e ncy shall continue the total evaluation indefinitely and schedule a mandatory

ex amination six months after the veteran is discharg ed or released to nonbed care.

I d. § 4.128. The Army

rejected the VASRD’s use of convalescent rating s in appendix B of Army Reg ulation 635-40:
Convalescent rating s
Under certain diag

nostic codes, the VASRD provides for convalescent rating s to be awarded for specified periods of time without regard to the actual

- 30-deg ree of impairment of function. Such rating s do not apply to the Military Departments since the purpose of convalescent rating s is accomplished by other means under disability

laws. Convalescence will ordinarily have been completed by the time optimum hospital improvement (for disposition purposes) has been attained.

Army Reg ulation 635-40, ¶ B -7; accord DoDI 1332.39, ¶¶ 6.7-6.8. Of particular importance in this case, the Army

issued substantially

identical policy

memoranda to the presidents of its PEB s in 2002 and 2005 in which it declared that the 50% disability rating set forth in VASRD § 4.129 was a convalescent rating , and that, therefore, it would not use VASRD § 4.129 when assig ning disability rating s to soldiers deemed unfit for duty due to PTSD. See United States Army Phy sical Disability Ag ency , Memorandum for Phy sical Evaluation B oard Presidents, “Policy / Guidance Memorandum #7: The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Rating s for Mental Disorders, Narcolepsy
, and Sleep Apnea Sy

ndrome,” Enclosure 1, ¶ 1(e) (F eb. 25, 2005) (“The Army does not use convalescent rating s. Parag raph 4.129 . . . is essentially

a convalescent rating

and will not be used.”); United States Army Phy sical Disability Ag ency , Memorandum for Phy sical Evaluation B oard Presidents, “Policy / Guidance Memorandum #7: The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Rating s for Mental Disorders, Narcolepsy
, and Sleep Apnea Sy

ndrome,” ¶ 4(a)(5) (Apr. 8, 2002) (same). I t further bears noting

that the Army

disting uished convalescent rating s from observation rating s and minimum rating s, both of which it would apply in the appropriate circumstances. See Army Reg ulation 635-40, ¶¶ B -7 (“The rating s for observation periods, as disting uished from convalescence, such as those “for one y ear” following

treatment . . . , are not affected by

this policy .”), B -15(b) (“I n some instances the VASRD provides a ‘minimum rating ’ without qualification as to residuals or impairment. . . . Diag nosis alone is sufficient to justify the minimum rating providing the condition is unfitting . Hig her rating s may be awarded in consonance with deg ree of severity . No rating lower than the ‘minimum may be used if the diag nosis is satisfactorily established unless specifically ex empted by

this reg ulation or by hig her authority .’”); accord DoDI 1332.39, ¶¶ 6.8 (indicating that observation rating s apply to the military

departments), 6.10.2 (“I

n some instances the VASRD provides a ‘minimum rating ’ without qualifications as to residuals or impairment. Diag nosis alone is sufficient to justify the minimum rating . . . . Althoug h hig her rating s may be awarded in consonance with deg ree of severity , no rating lower than the ‘minimum’ may be used if the diagnosis is satisfactorily

established.”).

2. The National Def

ense Authorization Act f or F iscal Year 2008 and Related Regulations

On J anuary

28, 2008, Cong ress enacted the National Defense Authoriz a tion Act for F iscal Year 2008, Pub. L . No. 110-181, 122 Stat. 3. Title XVI of that Act was the W ounded W a rrior Act, id. § 1601, 122 Stat. at 431, in which Cong ress, among other thing s, directed the Secretaries of the VA and the Department of Defense to “develop a policy on improvements to the processes, procedures, and standards for the conduct of phy sical disability

evaluations of recovering

service members by

the military

departments and by

the Department of Veterans

- 31-Affairs,” id. § 1612(b)(1), 122 Stat. at 422. The policy was to be developed by J uly 1, 2008, id., and to include the following :
[ P] rocedures to eliminate unacceptable discrepancies and improve consistency among disability

rating s assig ned by

the military departments and the Department of Veterans Affairs, particularly in the disability

evaluation of recovering

service members, which procedures shall be subject to the following requirements and limitations:

. . . . (ii) Under such procedures, each Secretary of a military

department shall, to the ex tent feasible, utiliz e the standard schedule for rating disabilities in use by the Department of Veterans Affairs . . . .

I d. § 1612(b)(2)(B ), 122 Stat. at 422. I n conjunction with this provision, Cong ress added a new section to chapter 61 of title 10 of the United States Code–10 U.S.C. § 1216a. I d. § 1642, 122 Stat. at 465. The new section provided:

Utiliz ation of VA Schedule for Rating Disabilities in Determinations of Disability .– (1) In making a determination of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned–
(A) shall, to the ex tent feasible, utiliz e the schedule for rating disabilities in use by the Department of Veterans Affairs, including any applicable interpretation of the schedule by the United States Court of Appeals for Veterans Claims; and
(B ) ex c ept as provided in parag raph (2), may not deviate from the schedule or any

such interpretation of the schedule.
10 U.S.C. § 1216a(a) (2012). F inally , Cong ress created the PDB R, which, as noted above, was charg ed with reviewing the finding s and decisions of PEB s for former service members, like plaintiff, who were medically separated from service between September 11, 2001, and December 31, 2009, with a disability rating of 20% or less. Pub. L . No. 110-181, § 1643, 122 Stat. at 465-67 (codified at 10 U.S.C. § 1554a).
On October 14, 2008, the Department of Defense issued a policy memorandum reg arding implementation of the W ounded W arrior Act. See Under Secretary of Defense for Personnel and Readiness, Memorandum for Secretaries of the Military Departments et al., “Policy Memorandum on I mplementing Disability -Related Provisions of the National Defense

- 32-Authoriz ation Act of 2008 (Pub. L . 110-181)” (Oct. 14, 2008). B y this memorandum, the

Department of Defense rescinded DoDI 1332.39, “Application of the Veterans Administration Schedule for Rating

Disabilities,” and directed the military departments to follow the guidance attached to the memorandum. I d. Of particular note, the g uidance attached thereto amended DoDD 1332.18, “Separation or Retirement for Phy sical Disability ,” to remove references to DoDI 1332.39 and to add a new enclosure, Enclosure 7, “Application of the Veterans Affairs Schedule for Rating

Disabilities.” I d. Enclosure 7 provided:
The Secretaries of the Military Departments may

not deviate from the schedule or any interpretation of the schedule, including any applicable interpretation of the VASRD by

the United States Court of Appeals for Veterans Claims. . . .

E7.1. GENERAL

. . . . E7.1.2. The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) shall be used in making rating s determinations for each of the medical conditions determined to be unfitting independently

or due to combined effect, to include in combination with an independently unfitting condition. . . . F or purposes of establishing a rating , the VASRD will be used in relation to the Service member’s physical disability at the time of the evaluation. I f use of convalescent rating s and/or other interim rating s (i.e[ .] prestabiliz ation rating s) applies, the Service member may be placed on the Temporary

Disability

Retired L ist (TDRL ) for reevaluation purposes.
E7.1.3. Use of the VASRD is statutorily required, “to the ex tent feasible.” I n apply ing the VASRD, any determination of infeasibility would have to be based on statutory

differences between the DoD and VA disability sy stems, compelling differences in mission grounded in statute, or some other major difference in the 2 sy stems. A policy

disag reement or different medical opinion would not constitute infeasibility

.

I d. Enclosure 7 also provided:
E7.2. Mental Disorders Due to Traumatic Stress[ .] The Military Department Secretary concerned will abide by

10 USC 1216a and 38 CF R 4.129, VASRD for disposition of Service members found unfit because of a mental disorder due to traumatic stress. W hen a mental disorder that develops on active duty as a result of a hig hly

stressful event is severe enoug h to bring about release from active military service, the rating

ag ency shall assig n an evaluation of not less than 50 percent and schedule an ex amination within the 6 month period following

- 33-discharg e to determine whether a chang e in rating and disposition is warranted.

The disposition of Service members diag nosed with a mental disorder due to traumatic stress found to be an unfitting condition in the [ disability evaluation sy stem] process will be as follows:

E7.2.1. F or members found unfit with a rating of 80% or g r eater for a permanent and stable condition (or conditions) not related to diag nosis of the mental disorder due to traumatic stress, the member will be permanently

retired.
E7.2.2. All other such members must be placed on the Temporary Disability Retirement L ist (TDRL ) and re-evaluated within a timeframe that is not less than 90 day s, but within 6 months, from the date of placement on the TDRL [ .]

I d.
The Department of Defense issued another memorandum on J uly 17, 2009, to clarify

how the PDB R should apply

VASRD § 4.129 to former service members seeking a review of their disability rating s. See Office of the Under Secretary of Defense for Personnel and Readiness, Memorandum for Secretary of the Army

et al., “Requests for Correction of Military Records Relating to Disability

Rating s for Post Traumatic Stress Disorder” (J uly 17, 2009) (“J uly

2009 Memorandum”). That memorandum provided:

DoD I nstruction 6040.44, “L ead DoD Component for the Phy sical Disability B oard of Review,” J

une 27, 2008 (incorporating chang e 1, J une 2, 2009), directs the PDB R in reviewing prior disability

rating s to disreg ard any Military Department g

uidelines that were inconsistent with the VASRD. W hile reliance on section 4.130, rather than section 4.129, was arg uably consistent with the VASRD, 1 3 the PDB R has concluded that equity favors g iving applicants the benefit of section 4.129. Consultations with the [ boards for correction of military records (“B CMRs”)] indicate recog nition of the desirability

of consistency

among the B CMRs and PDB R in adjudicating these cases.
Therefore, as a matter of policy , the PDB R and all three B CMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharg ed after September 11, 2001, and in such cases, where a g r ant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting

1 3 The Department of Defense’s use of the word “arg u a bly ” strong ly

sug g e sts that it recog niz ed the lack of statutory and reg ulatory support for the pre-2008 application of VASRD § 4.130 over VASRD § 4.129, and, consequently , that the military departments’ prior disability rating s were–at their members’ ex pense–contrary

to statute and reg

u lation.

- 34-conditions for an initial period of six months following separation, with

subsequent fitness and PTSD rating s based on the applicable evidence.

I d. at 1-2 (footnote added).

3. The Arm y Was Required to Apply VASRD § 4.129 P rior to 2008
Defendant concedes that prior to 2007, the Army was g enerally

required to apply

the VASRD when assig ning disability rating s to soldiers deemed unfit for duty . However, defendant contends that 10 U.S.C. § 1201, the statute reg arding disability retirement determinations, does not address whether the Army “should utiliz e the VASRD for purposes of convalescent or temporary rating s.” Def.’s Mot. 23. As a result, defendant asserts, t he Department of Defense and the Army

issued regulations rejecting the use of convalescent rating s, and the Army issued two substantially identical policy memoranda specifically

identify ing VASRD § 4.129 as a convalescent rating

that its PEB s should not apply

. 1 4 According ly , defendant arg u es, the Army ’s decision not to apply VASRD § 4.129 to plaintiff was permissible.
There are several flaws with defendant’s position. F irst, the Army ’s interpretation of VASRD § 4.129 as a convalescent rating was not contained in a statute or an Army regulation, but instead appeared in two substantially identical policy

memoranda that were sent to the presidents of the Army ’ s PEB s. Such internal memoranda lack the force of law and are therefore not entitled to deference. See Christensen v. Harris Cnty ., 529 U.S. 576, 587 (2000). I nstead, the interpretations contained in the policy memoranda “are ‘entitled to respect’ . . . , but only to the ex tent that those interpretations have the ‘power to persuade.’” I d. (citation omitted).
The court does not find the Army ’s interpretation of VASRD § 4.129 as a convalescent rating to be persuasive because that interpretation is belied by the plain lang u ag e of the VASRD. As described in VASRD § 4.30, a convalescent rating is a 100% total disability rating assig ned without reg ard to other provisions of the VASRD when treatment for a disability resulted in (1) “[ s] urg ery necessitatingat least one month of convalescence”; (2) “[ s] urg e ry with severe postoperative residual[ ] ” effects; or (3) “[ i] mmobiliz ation by cast, without surg ery ,” of at least one major joint. 38 C.F .R. § 4.30. VASRD § 4.129 neither requires a 100% total disability rating nor concerns a disability that requires treatment with surg e ry or a cast. F urther, the portion of the VASRD related to mental disorders includes a section ex pressly dealing with convalescent

1 4 I n its J u ly

2009 Memorandum, the Department of Defense noted: “Historically , the practice of the Military

Departments[ ’] disability ag encies was to complete the comprehensive section 4.130 mental health assessment prior to the member’s separation, and therefore dispense with section 4.129.” Defendant did not provide the court with documentation from the other military departments specifically

indicating their decisions not to apply VASRD § 4.129. I ndeed, plaintiff reports that–aside from the Army policy memoranda from 2002 and 2005–he was unable to locate any military regulation or policy

memorandum in which a military department interpreted VASRD § 4.129 as a convalescent rating

.

- 35-rating s, separate and distinct from VASRD § 4.129, which describes a convalescent rating for a mental disorder as a 100% total disability rating “due to a continuous period of hospitaliz ation lasting six months or more . . . .” See id. § 4.128. As previously noted, VASRD § 4.129 does not require a 100% total disability rating . Nor does VASRD § 4.129 contain a hospitaliz ation requirement. And finally , unlike VASRD § 4.30 and VASRD § 4.128, VASRD § 4.129 does not refer to either convalescent rating s in particular or convalescence more g enerally . I n fact, VASRD § 4.129 appears to be a minimum rating

– a ty pe of VASRD disability

rating that the Army has embraced–rather than a convalescent rating . See Army Reg u lation 635-40, ¶ B -15(b); DoDI 1332.39, ¶ 6.10.2. I n

short, the Army

mischaracteriz ed and misinterpreted VASRD § 4.129 as a convalescent rating in its 2002 and 2005 policy memoranda.
Second, neither federal statute nor the specific binding regulation promulg ated by the Army to g o vern its disability

evaluation sy stem classified VASRD § 4.129 as a convalescent rating or prevented a PEB from apply ing VASRD § 4.129 to soldiers deemed unfit for duty due to PTSD. See g enerally 10 U.S.C. ch. 61 (2006); Army Reg ulation 635-40. The relevant Department of Defense reg ulations also lack such provisions. See g enerally DoDD 1332.18; DoDI 1332.38; DoDI

1332.39. Thus, there were no statutory or reg ulatory prohibitions to apply ing VASRD § 4.129 to those soldiers deemed unfit for duty due to PTSD at the time of plaintiff’s discharg e.
Third, the decision relied upon by defendant in support of its position, Petri v. United States, 104 F ed. Cl. 537 (2012), is neither binding on this court nor persuasive. I n Petri, the court remarked:

[ I ] t appears that in 2006, the Air F orce was not required, by regu lation, to place plaintiff on the Temporary Disability

Retired L ist pursuant to Veterans Administration Schedule for Rating Disabilities § 4.129, before separating him from the Air F orce in 2006. The VA reg u lation, Veterans Administration Schedule for Rating

Disabilities § 4.129, was not applied to the Department of Defense until 2008. See Policy Memorandum on I mplementing Disability

– Related Provision[ s] of the National Defense Authoriz a tion Act of 2008, Oct. 14, 2008 (2008 Memorandum).

I d. at 553. The court further ex plained in a footnote:
The 2008 Memorandum provided: “The Military Department Secretary concerned will abide by

10 USC 1216a and 38 CF R § 4.129, VASRD [ Veterans Administration Schedule for Rating Disabilities] for disposition of Service members found unfit because of a mental disorder due to traumatic distress.” [ sic] A subsequent memorandum, DoDI Memorandum, J uly

17, 2009, “Requests for Correction of Military

Records Relating to Disability Rating s for Post Traumatic Stress Disorder” (2009 Memorandum), stated: “Policy Memorandum on I mplementing Disability

–Related Provisions of the National Defense

- 36-Authoriz ation Act for 2008 (Pub. L . 110–181), October 14, 2008, directed the

application of VASRD [ Veterans Administration Schedule for Rating Disabilities] section 4.129 to PTSD unfitting conditions, effective as of the date of enactment of that law, J anuary

28, 2008.” Therefore, prior to the enactment of the 2008 law, Veterans Administration Schedule for Rating Disabilities § 4.129 was not required to be applied.

I d. at 553 n.22. Thus, the court in Petri relied solely upon the Department of Defense’s statements that VASRD § 4.129 did not apply to the Department of Defense until the enactment of the W ounded W arrior Act on J a nuary 28, 2008. However, the mere fact that the Department of Defense stated that it was not required to apply VASRD § 4.129 until J anuary 28, 2008, does not mean that the military departments were not oblig ated by statute and reg

ulation to apply VASRD § 4.129 before that date. According ly , the court declines to follow Petri.

I n sum, when plaintiff was discharg ed from the Army in 2007, the Army was required to apply VASRD § 4.129 to soldiers, like plaintiff, who met its criteria. Defendant’s motion to dismiss must therefore be denied.

III. THE P ARTIES’ CROSS-MOTIONS F OR JUDG MENT ON THE

A DMINISTRATIVE RECORD
Having denied defendant’s motion to dismiss, the court turns to the parties’ cross-motions for judg ment on the administrative record, filed pursuant to RCF C 52.1(c). In ruling on such motions, the court must decide whether the moving party is entitled to judg ment based on the evidence in the administrative record. See B annum, I n c. v. United States, 404 F

. 3d 1346, 1356 (F ed. Cir. 2005) (“[ J ]udg ment on the administrative record is properly understood as intending to provide for an expedited trial on the administrative record.”).

A . P laintif

f ’s F irst Claim f

or Relief
As discussed above, plaintiff’s first claim for relief concerns the Army ’s conduct in 2007 when it assig ned plaintiff a 10% disability rating for his PTSD and separated him with severance pay

. I n his motion for judg ment on the administrative record, plaintiff contends that the Army ’s failure to apply

VASRD § 4.129 to him when he was diag nosed with PTSD and deemed unfit for duty was contrary

to law. I n response, defendant contends that plaintiff has waived his challeng e to the Army ’s 2007 disability determination and, in the alternative, that the Army ’s decision to assig n plaintiff a 10% disability rating for his PTSD was supported by substantial evidence. The court first addresses defendant’s threshold waiver arg ument.
Defendant contends that the Army ’s assig nment of a 10% disability rating for plaintiff’s PTSD is not reviewable by this court because plaintiff voluntarily accepted the recommendation of the informal PEB and waived his rig ht to a hearing before a formal PEB . As defendant notes, it is well settled in this court that a former service member’s knowing and voluntary decision to

- 37-waive a hearing before a formal PEB precludes judicial review of the informal PEB ’s recommendation. See, e.g

. , W atson v. United States, 113 F ed. Cl. 615, 632 (2013) (“Courts have indeed consistently

held that a service member’s waiver of the rig ht to challeng e an informal PEB ’s finding s before a formal PEB is also a waiver of the service member’s rig ht to judicial review of the informal PEB decision.”), clarified, 118 F ed. Cl. 266 (2014), modified, No. 12-785C, 2015 W L4914966 (F ed. Cl. Aug . 17, 2015); W arner v. United States, 103 F ed. Cl. 408, 413 (2012) (“[ T] he waiver of a formal PEB review also acts as a waiver of judicial review of the [ informal PEB ] .”); W illiams v. United States, 100 F ed. Cl. 263, 277 (2011) (“Having voluntarily

accepted his thirty

percent disability

rating s by

concurring with the informal PEB s’ determinations and waiving his rig ht to formal PEB hearing s, [ the plaintiff] ag reed to be bound by the informal PEB s’ decisions.”); Stine v. United States, 92 F e d. Cl. 776, 791-94 (2010), aff’d per curiam, 417 F . App’x 979 (F ed. Cir. 2011) (mem.); Van Cleave v. United States, 66 F ed. Cl. 133, 136 (2005) (“Plaintiff’s voluntary waiver of a formal PEB precludes judicial review of the informal PEB ’s determination.”); Gant v. United States, 63 F ed. Cl. 311, 316-19 (2004), aff’d per curiam, 417 F .3d 1328 (F ed. Cir. 2005). W hen addressing a claim of waiver, the court must first determine whether the former service member actually waived his rig ht to a hearing before a formal PEB . See Van Cleave v. United States, 402 F .3d 1341, 1343-44 (F ed. Cir. 2005) (recogniz ing that the plaintiff’s sig ning of the Election of Options form amounted to a waiver). I f such a waiver ex ists, then the court must make two additional determinations: the scope of the waiver, id. at 1344, and whether the waiver was knowing and voluntary , id.; Gant, 417 F .3d at 1332.
Defendant arg

ues, and the court ag

rees, that plaintiff did waive a hearing before the formal PEB . That waiver is evidenced by plaintiff’s initials and sig natures on the DA F orm 5893-R, “Acknowledgment of Notification of F ormal Phy sical Evaluation B oard Hearing ,” and the DA F orm 199, “Phy sical Evaluation B oard (PEB ) Proceeding s.” Moreover, plaintiff’s sig natures and initials on those forms reflect that his waiver was knowing and voluntary ; he indicated that he received counseling and understood all of his options and the consequences of choosing each of those options. 1 5 The remaining issue–the scope of plaintiff’s waiver–is not as straig htforward.
Plaintiff arg ues that even if the evidence in the administrative record reflects a knowing and voluntary

waiver of a hearing

before a formal PEB , that waiver does not preclude judicial review of the informal PEB ’s recommendation. Specifically , he contends that it would have been futile to demand a hearing before a formal PEB because the Army had a blanket policy

of

1 5 I n his reply

brief, plaintiff arg

ues, for the first time, that his waiver was not voluntary

. B e cause plaintiff did not raise this arg ument in his opening brief, he has waived it. See SmithKline B eecham Corp. v. Apotex Corp., 439 F .3d 1312, 1319 (F ed. Cir. 2006) (“[ A] r g uments not raised in the openingbrief are waived.”); Novosteel SA v. United States, 284 F .3d 1261, 1274 (F ed. Cir. 2002) (“Raising the issue for the first time in a reply brief does not suffice; reply

briefs reply

to arg u ments made in the response brief–they do not provide the moving party

with a new opportunity

to present y et another issue for the court’s consideration.”).

- 38-not apply ing VASRD § 4.129 to soldiers deemed unfit for duty due to PTSD; in other words, it would have been useless to ask a formal PEB to apply VASRD § 4.129 to him.
Plaintiff premises his futility argument on the fact that in nearly all of the decisions in which this court stated that a knowing and voluntary

waiver of a hearing

before a formal PEB precludes judicial review of the informal PEB ’s recommendation, the court relied upon the decision of the United States Supreme Court (“Supreme Court”) in United States v. L .A. Tucker Truck L ines, I nc., 344 U.S. 33 (1952), or another decision that itself relied upon L

. A. Tucker Truck L ines, I nc. I n L .A. Tucker Truck L ines, I nc., the Supreme Court held: “Simple fairness to those who are eng ag ed in the tasks of administration, and to litig ants, requires as a g eneral rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred ag ainst objection made at the time appropriate under its practice.” I d. at 37; see also id. (remarking that “orderly

procedure and g ood administration require that objections to the proceeding s of an administrative ag ency be made while it has opportunity for correction in order to raise issues reviewable by the courts”).
However, as plaintiff notes, the United States Court of Appeals for the F ederal Circuit, in apply ing the administrative ex haustion requirement set forth in L .A. Tucker Truck L ines, I nc., has recogniz ed an ex ception to that requirement for futility . See Mittal Steel Point L isas L td. v. United States, 548 F .3d 1375, 1384 (F ed. Cir. 2008) (citing Corus Staal B V v. United States, 502 F .3d 1370, 1378-79 & n.4 (F ed. Cir. 2007)). “To show futility , a party must demonstrate that it ‘would be required to g o throug hobviously useless motions in order to preserve [ its] rig hts.’” Mittal Steel Point L isas L td., 548 F .3d at 1384 (quoting Corus Staal B V, 502 F .3d at 1379). Courts apply

the futility

ex ception narrowly . I d.; Corus Staal B V , 502 F .3d at 1379. “The mere fact that an adverse decision may have been likely

does not ex c use a party from a statutory or regulatory

requirement that it ex haust administrative remedies.” Corus Staal B V , 502 F .3d at 1379.
Plaintiff’s futility

argument does not survive close scrutiny . F irst, there is no alleg ation or evidence that plaintiff was aware at the time of his discharg e that the Army

had a policy

of not apply ing VASRD § 4.129 to soldiers deemed unfit for duty due to PTSD. Thus, when he was discharg ed, plaintiff had no reason not to challeng e the Army ’s application of VASRD § 4.130, rather than VASRD § 4.129, to him. Stated differently , plaintiff could not have understood that such a challeng e would be futile.
Second, even had plaintiff been aware of the Army ’s policy , binding precedent reflects that the futility

ex ception should not be applied merely because an adverse decision from the relevant ag ency

is ex pected. To the ex tent that plaintiff ex p ected an adverse decision from a formal PEB due to the Army ’s policy and therefore opted not to seek a hearing before a formal PEB , that ex p ectation is insufficient to satisfy the narrowly

applied futility

ex ception to the

ex h austion requirement. I ndeed, in L .A. Tucker Truck L ines, I nc., the Supreme Court specifically

rejected the contention that administrative ex haustion can be ex cused if an ag ency has “a predetermined policy . . . which would have required it to overrule the objection if made,”

- 39-because the ag ency “ deal[ t] with a larg e number of like cases” and “[ r] epetition of the objection

in [ those cases] mig ht [ have] lead to a chang e of policy
, or, if it did not, the [ a g ency ] would at least [ have been] put on notice of the accumulating risk of wholesale reversals being incurred by its persistence.” 344 U.S. at 37. Plaintiff never put the Army on notice that he believed that it was misapply ing the VASRD, an action that may have provided the Army

with the impetus to chang e its policy

.

I n sum, plaintiff knowing ly and voluntarily

waived his rig ht to a hearing before a formal PEB . As a result, he is precluded from challeng ing , in this court, the Army ’ s 2007 assig nment of a 10% disability

rating for his PTSD, which was based on the finding s and recommendations of an informal PEB

. 1 6 According ly , with respect to plaintiff’s first claim for relief, the court g rants defendant’s motion for judg ment on the administrative record and denies plaintiff’s cross-motion for judg ment on the administrative record.

B. P laintif

f ’s Second Claim f

or Relief

I n his second claim for relief, plaintiff challeng es the Army ’s 2014 decision to reject the PDB R majority ’s recommendation that plaintiff be retired with a 30% PTSD disability rating

. Defendant arg

ues that the Army ’ s decision was supported by substantial evidence. Plaintiff responds that the Army

acted contrary

to law by failing to resolve reasonable doubt in his favor and that the Army

failed to consider relevant evidence. Upon reviewing the pertinent statutes and reg ulations, the court concludes that the Army acted contrary

to law.

1. Standard of

Review
The Secretary

of the Army ’s decision to reject the PDB R’s recommendation was authoriz ed by

10 U.S.C. § 1554a(e)(1), and is entitled to deference. See B ray v. United States, 515 F .2d 1383, 1391 (Ct. Cl. 1975) (per curiam) (noting that in a “trial de novo, deference is accorded the judg

ment and ex pertise of the administrative decision-maker”); see also Heisig v. United States, 719 F .2d 1153, 1156 (F ed. Cir. 1983) (noting that a court is not to substitute its judg ment for that of a military department “when reasonable minds could reach differing conclusions on the same evidence”). According ly , the court may

only “review the rationale underlying the Secretary ’s decision to determine if the decision was arbitrary
, capricious, unsupported by

substantial evidence, or in violation of law.” Strickland v. United States, 423 F .3d 1335, 1339 (F ed. Cir. 2005); accord B oy d v. United States, 207 Ct. Cl. 1, 4 (1975) (“The court . . . may

reject the decision of a Secretary only if he has ex ercised his discretion arbitrarily
, capriciously , in bad faith, contrary to substantial evidence, or where he has g one outside the board record, or fails to ex plain his actions, or violates applicable law or reg ulations.”); see also Silbaug h v. United States, 107 F ed. Cl. 143, 149 (2012) (“The court reviews the PDB R decision

1 6 As a result of this conclusion, the court need not address whether the Army ’s assig nment of a 10% disability rating for plaintiff’s PTSD was arbitrary , capricious, an abuse of discretion, or contrary

to law.

- 40-under a standard that is no more strict than the baseline deferential standard g overning the decision of a correction board–the court “will not disturb the decision of the [ board] unless it is arbitrary , capricious, contrary to law, or unsupported by substantial evidence.” (quoting B arnick v. United States, 591 F .3d 1372, 1377 (F ed. Cir. 2010))).

2. The Arm y’s Decision to Assign P laintif f a 10% Disability Rating f or His P TSD Af

ter Six Months of

Constructive P lacem ent on the TDRL Was Contrary to Law

I n the brief that he submitted in support of his application to the PDB R, plaintiff argued–correctly
, as discussed above–that the Army should have applied VASRD § 4.129 to him at the time of his discharg e in 2007. However, the PDB R’s recommendations, and the Army ’s final decision rejecting

these recommendations, were not premised on plaintiff’s arg ument that the Army should have applied VASRD § 4.129 to him in 2007. Rather, the PDB R and the Army were proceeding

pursuant to the Department of Defense’s J uly 2009 Memorandum, in which the Department of Defense instructed the PDB R to
apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharg ed after September 11, 2001, and in such cases, where a g r ant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD rating s based on the applicable evidence.

J uly 2009 Memorandum 2. The final portion of this instruction is contrary to law.

W h en plaintiff was referred to the PEB in 2007, the PEB was required to assess whether plaintiff was unfit for duty and, if so, assig n an appropriate disability rating . The informal PEB determined that plaintiff was unfit for duty due to his PTSD. Consequently , as noted above, the informal PEB should have used VASRD § 4.129 to assig n plaintiff a disability rating of 50%. B a sed on the mandatory 50% disability rating , the Army

then had two options: retire plaintiff pursuant to 10 U.S.C. § 1201 or place plaintiff on the TDRL pursuant to 10 U.S.C. § 1202. I f the Army chose the latter option, then it was required, pursuant to VASRD § 4.129 and/or 10 U.S.C. § 1210, to schedule one or more follow-up ex aminations to determine whether plaintiff’s condition had chang e d since beingplaced on the TDRL . Accord Army Reg ulation 635-40, ¶ 7- 17(a). The results of those follow-up ex aminations would have been forwarded to a PEB for review. I d. ¶¶ 7-19(c), 7-20(b) to (c). I f, at any point, the PEB recommended that plaintiff be removed from the TDRL , then plaintiff would have been entitled to the same procedural protections available to him when the informal PEB initially found him unfit for duty

due to his PTSD. I d. ¶ 7-20(e)(1), (3). Depending upon the final disability

rating assig ned by the Army
, plaintiff would have either been separated with severance pay , 10 U.S.C. § 1210(e), or permanently retired, id. § 1210(c). I f plaintiff was not removed from the TDRL after five y

ears and his disability

still ex isted, then the Army would have been required to deem the disability permanent and stable, effectively requiringplaintiff’s removal from the TDRL . I d. § 1210(b).

- 41-Upon reviewing plaintiff’s application in 2014, the PDB R recommended, and the Army ag reed, that plaintiff should be constructively placed on the TDRL

for six months with a 50% disability rating for his PTSD in accordance with VASRD § 4.129. Notwithstanding its constructive nature, the Army ’ s placement of plaintiff on the TDRL trig g ered the statutory

and regulatory

requirements that flow from a soldier’s placement on the TDRL . These requirements include arrang ing a follow-up ex amination and convening a new PEB to reassess plaintiff’s 50% disability rating . Of course, these are impossible tasks. The Army constructively

placed plaintiff on the TDRL

for six months effective J uly 30, 2007; it cannot g o back in time to J anuary 2008 (six months) or J anuary

2009 (eig hteen months) to schedule a follow-up ex amination and convene a new PEB . B ut the fact that it is impossible for the Army to schedule a follow-up

ex amination and convene a new PEB within the time required by statute and/or reg

u lation does not authoriz e the Army

to disreg ard the statutory and reg ulatory requirements that g o vern the administration of the TDRL . J ust as the Army required a leg al basis for constructively placing plaintiff on the TDRL , it required a leg al basis for constructively removing plaintiff from the TDRL . According ly , because the Army failed to schedule a follow-up ex amination and convene a new PEB for plaintiff–the statutory and reg ulatory prerequisites for removing a soldier from the TDRL –it was required to retain plaintiff on the TDRL for as longas was leg ally authoriz ed. I n other words, the Army was not permitted to constructively remove plaintiff from the TDRL after six months. I ndeed, allowingthe Army to remove plaintiff from the TDRL –even constructively

– due to its failure to comply with the law would reward the Army for its own errors.
Moreover, it was improper for the PDB R to recommend, and the Army to assig n , a new disability rating to plaintiff based on the mental health ex amination that lead to plaintiff’s constructive placement on the TDRL in the first instance. The purpose of the periodic

ex aminations that follow a soldier’s placement on the TDRL is to determine whether the soldier’s condition had chang ed since the previous ex amination and diag n osis. I d. § 1210(a) (2012); Army

Reg u lation 635-40, ¶ 7-20(b) to (c). L og ically
, the Army could not have determined whether plaintiff’s condition had chang ed based solely on the ex amination that preceded his discharg e and the absence of an ex amination six months after his discharg e. Allowing the Army

to make a determination with such evidence (and lack of evidence) is, once ag ain, tantamount to rewarding the Army

for its own error–its failure to schedule the follow-up

ex amination for plaintiff pursuant to statute and reg ulation.

I n sum, plaintiff did not obtain the relief to which he was entitled from the PDB R or the Army under the controllingstatutes and reg ulations. Once the Army constructively placed plaintiff on the TDRL

effective J

uly 30, 2007, it could not constructively remove plaintiff from the TDRL

in the absence of a follow-up ex amination and a new PEB . Moreover, the fact that plaintiff underwent VA PTSD review ex aminations on May 21, 2009, and April 27, 2011, is not sufficient to satisfy

the statutory

and reg ulatory requirements, for two reasons. F irst, the Army did not convene PEB s following the VA’s ex aminations. Second, the PDB R is not empowered to sit as a PEB ; it is only

authoriz ed to review the preex isting finding s and decisions of a PEB

. See 10 U.S.C. § 1554a(a)(1), (c)(1). Thus, because a PEB did not review the VA PTSD review

- 42-ex aminations and issue finding s and recommendations based on its review, the PDB R could not

have issued a new or modified disability rating based on those ex aminations.

B e cause the Army

failed to schedule a follow-up ex amination and convene a new PEB for plaintiff, it was leg ally required to constructively retain plaintiff on the TDRLfor the fivey ear max imum period provided by 10 U.S.C. § 1210(b)–in other words, until J uly 30, 2012. And, ag ain, because the Army failed to schedule a follow-up ex amination and convene a new PEB at the end of plaintiff’s constructive five-y ear term on the TDRL
, the Army , upon consideringplaintiff’s application to the PDB R, should have constructively removed plaintiff from the TDRL

with his orig inal 50% PTSD disability rating . See 10 U.S.C. § 1554a(d)(3) (indicating that the PDB R cannot recommend a reduction of the disability rating assig ned by

the PEB ).
The court concludes that the Army acted contrary

to law when it assig ned plaintiff a 10% disability rating for his PTSD after six months of constructive placement on the TDRL

. 1 7 Consequently , with respect to plaintiff’s second claim for relief, the court denies defendant’s motion for judg ment on the administrative record and g r ants plaintiff’s cross-motion for judg ment on the administrative record.

IV. CONCLUSION

F or the reasons set forth above, the court DENIES defendant’s motion to dismiss, G RANTS IN P ART and DENIES IN P ART defendant’s motion for judg ment on the administrative record, and G RANTS IN P ART and DENIES IN P A RT plaintiff’s cross-motion for judg ment on the administrative record. F urther, because the court did not consider the declaration attached to plaintiff’s reply brief in reaching

its decision, the court DENIES defendant’s motion to strike as M OOT

.
This case is REMANDED to the Army for the correction of plaintiff’s military records in accordance with the following instructions:

• The Army

shall correct plaintiff’s military records to reflect the following :

• Plaintiff was constructively placed on the TDRL

beg inning on the date of his discharg e–J uly

30, 2007–and ending five y ears from that date, in accordance with 10 U.S.C. § 1210(b).

• At the time of plaintiff’s constructive removal from the TDRL , plaintiff was assig ned a 50% disability rating for his PTSD.

1 7 Due to this conclusion, the court need not address whether the Army ’s decision was supported by

substantial evidence, whether the Army disreg arded relevant evidence, or whether the Army failed to resolve reasonable doubt in plaintiff’s favor.

- 43-• Plaintiff was permanently retired upon his removal from the TDRL pursuant to 10 U.S.C. § 1210(c) and 10 U.S.C. § 1201 (so longas plaintiff met the remainingcriteria set forth in 10 U.S.C. § 1201 on the date of his constructive removal from the TDRL ).

• The Army

may make any

other corrections that are required to carry out the court’s instructions.

• The Army

shall issue any

orders required to ensure that plaintiff receives the retired pay

and other benefits to which he is entitled.

• The remand period shall terminate on Thursday, April 21, 2016 . The court STAYS proceeding s in the instant case during that time. I f the Army

has not corrected plaintiff’s records and provided the relief to which plaintiff is entitled in accordance with those corrections by April 21, 2016, the parties shall follow the procedures set forth in RCF C 52.2(d).

• Pursuant to RCF C 52.2(b)(1)(D), defendant shall file a status report every ninety day s, with the first one due no later than Tuesday, January 19, 2016 , indicating the status of the proceeding s at the Army

.

• W hen the Army

has corrected plaintiff’s military records and awarded plaintiff the retired pay

and other benefits to which he is entitled due to those corrections, it shall forward two copies of its documentation that those tasks have been completed to the clerk of the Court of F ederal Claims pursuant to RCF C 52.2(e). The parties shall then file, w ithin thirty days of the filing of the Army ’s documentation, the notices required by RCF C 52.2(f)(1).

IT IS SO ORDERED.
s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

- 44-