# In the United States Court of Federal Claims

No. 11-90C Filed: January 30, 2014
TO BE PUBLISHED

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* NATHAN T. MEIDL, *

* Plaintiff, *

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v. *

* THE UNITED STATES, *

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Defendant. *

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Jason E. Perry , Cheshire, Connecticut, Counsel for Plaintiff.

Sheryl L. Floyd , United States Department of Jus tice, Civil Division, Washington, D.C.,
Counsel for the Government.

Captain Rachel A. Landsee , United States Army Litigation Division, Of Counsel for the

Government.

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge. 10 U.S.C. § 1201 (retirement or separation for physical disability); 10 U.S.C. § 1216a(b) (medical conditions
considered in disabili ty determinations); 28 U.S.C. § 1491 (Tucker Act Jurisdiction); 32 C.F.R. § 581.3(c)(2)(iii) (ABCMR establishment and functions); Army Regulation 623-3 (evaluation reporting system); Army Regulation 623-105 (officer evaluation reporting system); Army Regulation 635-40 (physical evaluation for separation); Department of Defense Instruction 1332.38 (general criteria for making unfitness determinations); RCFC 52.1 (judgment on the administrative record); RCFC 52.2(a) (remand to “administrative or executive body or official”).2 I. RELEVANT FACTS. 1

On September 8, 1993, Nathan T. Meidl (“Pl aintiff”) enlisted in the Army Reserve Officers’ Training Corps (“Army ROTC”) program while attending th e University of Wisconsin. AR 209. On April 9, 1996, Plaintiff entered active duty in the United States Army. AR 10, 194– 204. On April 30, 2000, he was a ppointed as a commissioned o fficer in the Active Guard Reserve (“AGR”) program. AR 167.

Later in 2000, while serving in the AGR, Plaintiff began to e xperience bilateral foot pain that was aggravated by prolonged standing and ru nning. AR 10. In 2001, he was diagnosed with pes planus

. 2 AR 10. In early 2002, Plaintiff began to ex perience pain in his left wrist that was aggravated by daily activities, as a result of degene rative changes to his left wrist joint. AR 3,

10.

On October 5, 2005, Plaintiff entered into active duty services in Iraq as an Acquisitions Corps Officer. AR 10, 95. In April 2006, while lifting weights, he tore his left pectoralis major and injured his shoulder, requiring surgery. AR 10. Due to th ese injuries, Plaintiff had a limited range of motion and difficulty bearing more than five pounds of weight. AR 10. On April 26, 2006, he was diagnosed with hypertension. AR 11. As a result of his injuries and surgical treatment, Plaintiff reverted to AGR status. AR 10.

Plaintiff’s Officer Ev aluation Report (“OER”) 3 for the period ending May 9, 2008 (“2008 OER”) lists his promotion potential as “outstan ding performance, must promote,” and explains that Plaintiff should be promoted to Lieutenant Colonel “at the first opportunity.” AR 64–65.
That same OER also indicates th at Plaintiff passed hi s Army Physical Fitness Test (“APFT”) on April 15, 2008. AR 64.

1 The relevant facts discusse d below were set forth in Meidl v. United States , 100 Fed. Cl. 1 (2011) (“ Meidl I ”) and Meidl v. United States , 108 Fed. Cl. 570 (2013) (“ Meidl II ”), and are
recited here in sum. These facts were de rived from the May 6, 2011 Administrative Record (“AR 1–211”), as supplemented on June 7, 2011 (“Pl. Ex. at 1–10”), Ju ly 8, 2011 (“SAR 1–16”), February 27, 2012 (“Gov’t SR I at A1–A38”), a nd April 24, 2013 (“Gov’t SR II at 1–14”).

2 Pes planus is the medical term for flatfeet. D ORLAND ’ S I LLUSTRATED M EDICAL
D ICTIONARY at 1441 (31st ed. 2007) (“D ORLAND ’ S ”).

3 OERs are part of the Army’s Officer Ev aluation System, a system that “identifies officers who are best qualified for promotion and assignment to positions of higher responsibility . . . . [based on an evaluation of an officer’s] perf ormance and potential.” Army Reg. 623-105, ¶ 1-8a(1)–(2). Under the OER system , a senior officer evaluates, “rates” and provides a performance evaluation of a subordinate officer, based on an examination of how well the rated officer fulfilled the duties and objectiv es assigned to him or her, how an officer achieved those objectives, and “how well the officer complied with [the] professional standards [of the officer corps].” Army Reg. 623-105, ¶ 1-10a; see also Army Reg. 623-3, ¶ 1-8(4)(a) (explaining that performance ev aluations “focus on a Soldier’s duty performance, or how well a Soldier performs his or her assi gned tasks and meets the Army values as judged by the rating officials”).3 From October 10, 2008 to October 21, 2008, Plaint iff was again deployed to Iraq for a temporary tour of duty. AR 10. Af ter his return, in April 2009, his pes planus was “graded as severe, bilaterally with pronation, intolerance to weight bearing, extende d standing, and extended walking.” AR 10–11. In June 2009, Pl aintiff began to develop bilateral plantar fasciitis 4 that was painful when he wore military foot wear. AR 11. In 2009, Plaintiff’s left Achilles tendon ruptured from playing basketball, requiring or thopedic surgery and resulting in residual heel pain. AR 11. Thereafter, Plaintiff’s military phys icians directed that he be evaluated for physical disability by a Medi cal Evaluation Board (“MEB”). 5

Plaintiff’s OER for the period ending May 9, 2009 (“2009 OER”) explained that “his permanent [physical] profile prevents him fr om deploying, performing the APFT and weapons qualification.” AR 59. The same OER, however, listed his potential for promotion as “best qualified,” and explains that Plaintiff “continued his superb performance as an Assistant Product Manager in Heavy Tactical Ve hicles during this rating peri od.” AR 59. The OER further provided that Plaintiff “e xhibits all the tools nece ssary to perform at the next higher level [of promotion], but his permanent profile pr ohibits him from doing so.” AR 59.

On November 12, 2009, Plaintiff was examined at an orthopedic clinic in preparation for evaluation by a MEB. 6 AR 1–3. The clinic examined Plainti ff’s left shoulder, his left ankle, a surgical scar, and his left wrist. AR 2. The c linic concluded that Plaintiff’s left shoulder and wrist pain did not meet Army retention standard s because they interfered with his ability to perform military duties. AR 2–3. The clinic concluded that Plai ntiff’s left ankle pain, however,
met retention standards. AR 2. The ort hopedic clinic did not examine Plaintiff’s pes planus or plantar fasciitis . AR 28.

On February 26, 2010, Plainti ff’s Commander recommended th at the Army not retain
Plaintiff due to his left shoulder injury, left wrist pain, bilateral pes planus , and bilateral plantar fasciitis , because Plaintiff could not perform his Mili tary Occupational Specialty (“MOS”) as an acquisition or logist ics officer. AR 8.

On February 28, 2010, a MEB considered Plai ntiff’s medical condition and concluded that his left shoulder, left wrist, pes planus , and plantar fasciitis did not meet the Army’s retention standards. AR 10–13. The MEB found, how ever, that Plaintiff’s left Achilles tendon

4 Plantar fasciitis refers to inflammation of the sole of the foot. See D ORLAND ’ S at 692,
1476.

5 The AR does not contain a document refl ecting the date of this referral.

6 The Army may convene a medical evaluation of a Soldier “when a que stion arises as to the Soldier’s ability to perform the duties of his or her office, grade, rank, or rating because of physical disability.” Army Reg. 635-40 ¶¶ 4-6, 4-7, 4-8. A MEB is c onvened to “document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.” Army Reg. 635-40 ¶ 4-10. If th e MEB finds that a Soldier is not medically qualified for retention, it will recommend referral to a Physical Evaluation Board. Id.4 rupture and hypertension met rete ntion standards. AR 13. As a result, the MEB recommended referral to a Physical Evaluation Board (“PEB”) 7 for further evaluation. AR 13.

On March 9, 2010, before the PEB convened, Plaintiff was afforded an opportunity to have the MEB’s findings reviewed by an impartial medical professional. AR 14. In addition, Plaintiff was afforded the opportunity to revi ew the MEB’s findings to decide whether he concurred, and if not, to submit a statement e xplaining any disagreement. AR 14. Plaintiff declined the opportunity for an impartial medical evaluation and did not dispute the findings and
recommendation of the MEB. AR 15–17.

On March 25, 2010, the PEB considered Plain tiff’s medical records, determined that Plaintiff’s chronic shoulder pain and wrist pain condi tions rendered him unfit for service, and rated each at a ten percent disability for a total of twenty percent disability. 8 AR 19–20. The PEB, however, determined that the bilateral pes planus , bilateral plantar fasciitis , left Achilles tendon, and hypertension were not unfitting conditi ons, and thus were not rated. AR 19. Therefore, the PEB recommended discharge with severance pay at a twenty percent disability

rate. AR 20.

On March 31, 2010, after the PEB issued a dete rmination, the orthopedic clinic issued an Addendum indicating that although it ha d not examined Plai ntiff’s bilateral pes planus and plantar fasciitis , an examination by a podiatrist on April 13, 2009 found that these conditions did
not meet retention standards. AR 28.

On April 7, 2010, Plaintiff acknow ledged that he was informed of his rights by the PEB Liaison Officer (“PEBLO”). AR 21–27. Plainti ff was presented with three options: (1) accept the preliminary findings of the PEB and waive hi s right to a formal hearing; (2) contest the preliminary findings and waive hi s right to a formal hearing; and (3) contest the preliminary findings and demand a formal hearing. AR 21–27. Pl aintiff decided to concur with the result of the PEB and waived a formal hearing of his case. AR 27.

Plaintiff’s OER for the period ending Apr il 15, 2010 (“2010 OER”) stated that Plaintiff exhibited “[e]xceptionally outst anding performance.” AR 38.

On June 27, 2010, Plaintiff was diagnosed with se vere obstructive sleep apnea. Pl. Ex. at

6–7.

7 PEBs have authority to evaluate a Soldier’s physical disability based on the following three factors: (1) whether the Soldier is physi cally fit or unfit to perform the duties of the Soldier’s office, grade, rank, or rating; (2) whether the disability is of a permanent nature; and (3) whether the disability meets the crit eria established by law for compensation. See Army Reg. 635-40 ¶¶ 4-19(a)(1)–(3). If the PEB determines that a Soldier is unf it because of a physical disability and is entitled to benefits, the PEB determines a percentage rating for each disability rendering the Soldier unfit for duty. See Army Reg. 635-40 ¶ 4-19(i).

8 The Veterans Affairs Schedule for Rating Disabilities is us ed in deriving percentage ratings. See Army Reg. 635-40 ¶ 4-19.5 On July 13, 2010, Plaintiff was di scharged from active duty in the Army with disability severance pay, but did not receiv e medical retirement since his di sability rating was less than thirty percent and he had less than twenty years of service. AR 19, 30.

II. PROCEDURAL HISTORY.

On February 10, 2011, Plaintiff filed a Complain t (“Compl.”) in the United States Court of Federal Claims alleging that he was denied di sability retirement pay a nd benefits to which he is entitled under 10 U.S.C. § 1201. Compl. ¶ 22. The Complaint also alleges that the PEB failed
to rate his disabilities at an eighty percent level, provide an ad equate MEB evaluation, and apply applicable evidentiary standards. Compl. ¶ 22.

On May 6, 2011, the Government filed the Administrative Record and a Motion For Judgment On The Administrative Record. On June 7, 2011, Plaintiff filed a Cross-Motion For Judgment On The Administrative Record, together with attached Exhibits. On July 8, 2011, the Government filed a Reply, together with a Supplemental Administrative Record.

On August 10, 2011, the United States Court of Federal Claims remanded the case to the Army Board for Correction of Military Record s (“ABCMR”) for further administrative action pursuant to RCFC 52.2. 9 See Meidl I , 100 Fed. Cl. at 8. Speci fically, the court ordered the ABCMR to consider the following issues: (1) whether Plaintiff’s sepa ration from active duty complied with applicable laws and policies; (2) whether Plaintiff had unfitting physical conditions in addition to shoulder and wrist pain at the time of separation; and (3) whether Plaintiff’s disability ra ting was appropriate. Id. The case was stayed during the remand. Id.

On October 24, 2011, the United States Army P hysical Disability Agency (“USAPDA”) issued an advisory opinion “[r]ecommending no ch ange to the Plaintiff’s military records.”
Gov’t SR I at A35–A38. On December 13, 2011, Plaintiff res ponded that the USAPDA factual findings were incorrect and that the recommendati on to deny relief was contrary to law and did not address the injustices in this case. Gov’t SR I at A18–A34.

On February 2, 2012, the ABCMR denied Plain tiff’s request for relief. Gov’t SR I at A3–A17. The ABCMR found: (1) Pl aintiff’s separation from service complied with applicable laws and policies; (2) Plaintiff properly was pr ocessed through the Army’s physical disability evaluation system; (3) Plainti ff was provided an appropriate disability rating, based on the unfitting conditions identifie d by the PEB; and (4) Plaintiff’s rights were fully protected during the separation process. Gov’t SR I at A15–A17.

On May 18, 2012, Plaintiff filed a Supplementa l Brief In Support Of Plaintiff’s Motion For Judgment On The Administrative Record. On June 22, 2012, the Government filed a Supplemental Brief In Opposition To Plaintiff’s Cross-Motion For Judgment On The

9 The court, sua sponte

, may “order the remand of a ppropriate matters to an administrative or executive body or official.” RCFC 52.2(a).6 Administrative Record And In Support Of Defendant’s Motion Fo r Judgment On The
Administrative Record. On Ju ly 10, 2012, Plaintiff filed a Reply.

On January 25, 2013, the court determined that, by failing to consider whether Plaintiff’s foot conditions “contributed to rendering him unfit,” the February 2, 2012 ABCMR decision was arbitrary and capricious and vi olated 10 U.S.C. § 1216a(b). See Meidl II , 108 Fed. Cl. at 577.
The court also determined that the ABCMR’s failu re to consider whether Plaintiff’s sleep apnea became unfitting after the MEB and PEB evaluations , but before his separation from the Army, was arbitrary and capricious, sinc e it entirely ignored “an importa nt aspect of the problem.” Id. at 577–78 (internal citations omitte d). Accordingly, the court again remanded the case, pursuant to RCFC 52.2, instructing the ABCMR to consider whether: (1) Plaintiff’s foot conditions contributed to rendering him unfit; (2) Plainti ff’s sleep apnea became unfitting after the MEB and PEB proceedings, but before Plaintiff’s separation from the Army; and (3) in light of the resolution of those two issues, whether Plai ntiff’s disability ra ting was appropriate. Id . at 578.

On April 11, 2013, the ABCMR ruled, on re mand, that: (1) there was insufficient
evidence to overturn the PEB’s determination that Plaintiff’s foot conditions did not contribute to his unfitness; (2) Plaintiff’s sleep apnea did not render him unable to perform his duties and was not unfitting, because it was corrected by medicatio n; and (3) Plaintiff’s disability rating was appropriate, in light of the resolution of the preceding issues. Gov’t SR II at 12–13 (“the ABCMR’s decision”).

On July 10, 2013, Plaintiff filed a Motion For Judgment On The Administrative Record (“Pl. Mot. JAR”). On September 4, 2013, the Government filed a Cross-Motion And Response (“Gov’t Opp. & Cross-Mot.”). On October 7, 2013, Plaintiff filed a Reply And Response To Defendant’s Cross Motion For Judgment on the Administrative Record (“Pl. Reply”). On October 31, 2013, the Government file d a Reply (“Gov’t Reply”).

III. DISCUSSION.

A. Jurisdiction and Standing.

The jurisdiction of the United States Court of Federal Claims is established by the Tucker

Act. See 28 U.S.C. § 1491. The Tucker Act aut horizes the court “to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidate d damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional statute; it does not create any substantive right enforceable against the Unite d States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United Stat es Court of Federal Claims] whenever the substantive right exists.” United States v. Testan , 424 U.S. 392, 398 (1976). Therefore, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, or executive agency regulation that provides a substantive right to money damages. See Fisher v. United States , 402 F.3d 1167, 1172 (Fed. Cir. 2005) ( en banc ) (“The Tucker Act itself does not crea te a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source7 of substantive law that creates the right to money damages.”). The burden of establishing jurisdiction falls upon the plaintiff. See FW/PBS, Inc. v. Dallas , 493 U.S. 215, 231 (1990) (holding that the burden is on the plaintiff to a llege facts sufficient to establish jurisdiction); see also RCFC 12(b)(1) (establishing lack of subj ect matter jurisdiction as a defense).

In Meidl I , the court determined that the Fe bruary 10, 2011 Complaint invoked the jurisdiction of the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491(a)(1), as it challe nged the determination of Plaint iff’s disability status under 10 U.S.C. § 1201. Compl. ¶ 2; see also Sawyer v. United States , 930 F.2d 1577, 1580–81 (Fed. Cir. 1991) (holding that claims challenging disabil ity status under 10 U.S.C. § 1201 may be adjudicated by the United States Court of Fede ral Claims). In addition, although Plaintiff “voluntarily waived judi cial review of the informal PEB, ” he retained the right to seek
administrative review of the informal PEB decisi on and judicial review of that administrative
review. See Meidl I , 100 Fed. Cl. at 8. Therefore, the court had jurisdiction to adjudicate
Plaintiff’s claims.

In addition, in Meidl I , the court determined that the February 10, 2011 Complaint alleged that Plaintiff suffered an injury in fact that can be determined in a specific amount and is traceable to the Army’s allegedly unlawful determination of disability retirement pay and benefits. Compl. ¶ 22; see also Friends of the Earth, In c. v. Laidlaw Envtl. Serv., Inc. , 528 U.S. 167, 180–81 (2000) (“[A] plaintiff must show [that] it has suffered an ‘injury in fact’ that is . . . concrete and particularized and . . . actual or imminent , not conjectural or hypothetical; . . . the injury is fairly traceable to the challenged action of the defendant; and . . . it is likely, as opposed to merely speculative, th at the injury will be redressed by a favorable decision.” (internal citations omitted)). As such, Plaintiff has standing to challenge the
ABCMR’s decision.

B. Standard for Judgment on the Administrative Record.

Review of a military correction board’s decision is “limited to the administrative record before the deciding official or officials.” Wyatt v. United States , 23 Cl. Ct. 314, 319 (1991). The standard for judgment on the administrative r ecord, pursuant to RCFC 52.1, is whether the plaintiff has met the burden of proof to show that the decision was without a rational basis or not in accordance with the law, given all the disput ed and undisputed facts in the administrative
record. See Bannum, Inc. v. United States , 404 F.3d 1346, 1357 (Fed. Cir. 2005) (instructing the court to make “factual findings under RCFC 52.1 from the [limited] record ev idence as if it were conducting a trial on the record”); see also Afghan Am. Army Servs. Corp. v. United States , 90 Fed. Cl. 341, 355 (2009) (“In reviewing cross-motions for judgment on the administrative record, the court must determine ‘whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.’” (citations omitted)).

The standard of review is limited to de termining whether the agency decision is “arbitrary, capricious, not supported by substantial ev idence, or contrary to applicable statutes and regulations.” Porter v. United States , 163 F.3d 1304, 1312 (Fed. Cir. 1998); see also
Hoskins v. United States , 40 Fed. Cl. 259, 271–72 (1998) (“Once a plaintiff has sought relief from a correction board . . . the plaintiff is bound by that board's determination unless he can satisfy the difficult standard of proof that the correction board's decision was illegal because it8 was arbitrary, capricious, or in bad faith, or unsupported by substan tial evidence, or contrary to law, regulation or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced, or money is due.”) (citations omitted). The court, however, may not retry the case on the merits. See Heisig v. United States , 719 F.2d 1153, 1156 (Fed. Cir. 1983) (“Although the court might disagree with the boa rd’s decision, it cannot substitute its own judgment for that of the board if reasonable minds could reach differing resolutions of the disputed matter.”).

The plaintiff bears the burde n of proving any deficien cy by “cogent and clearly convincing evidence.” Wronke v. Marsh , 787 F.2d 1569, 1576 (Fed. Cir. 1986). Such proof must also “overcome the strong, but rebuttable, presumption that the administrators of the military, like other public officials, discharge th eir duties correctly, lawf ully, and in good faith.”

Porter , 163 F.3d at 1316 (quoting Sanders v. United States , 594 F.2d 804, 813 (Ct. Cl. 1979)).

C. Whether The Army Board For Correction Of Military Records’ Determination On Remand Is Arbitrary, Capricious, Not Supported By Substantial Evidence, Or Contrary To Law.

1. The Plaintiff’s Argument.

Plaintiff posits three argu ments for why the ABCMR’s re mand decision is arbitrary, capricious, contrary to law or regulation, or unsupported by substa ntial evidence. First, the ABCMR failed to conduct a “meaningful analys is.” Pl. Mot. JAR 7, 9. Specifically, the ABCMR’s decision “selectively quote[s]” from OE Rs and lists evidence that contradicts its
conclusion that Plaintiff’s bilateral foot conditio ns were not unfitting. Pl. Mot. JAR 5. In that vein, the ABCMR also erred in concluding that there is “no evidence that would support overturning the approved PEB finding regarding hi s foot conditions” (Pl. Mot. JAR 9 (quoting Gov’t SR II at 12)), because it ignored significant evidence to th e contrary, including the MEB’s evaluation, the Commander’s determination that Plaintiff could not pe rform his MOS as an acquisition or logistics officer, and the fact that Plaintiff was unable to wear protective body armor. Pl. Mot. JAR 9. This contrary evidence “demonstrates that [Pla intiff’s] foot condition was unfitting—at least in combinat ion or collectively with his ot her unfitting conditions.” Pl. Mot. JAR 9; see also Pl. Mot. JAR 7 (concludi ng that the ABCMR’s deci sion is arbitrary and capricious, because “it lists evidence and findings supporting that [Plaintiff’s] bilateral foot conditions are actually unfitting”). In sum, the ABCMR’s remand decision failed to “reasonably construe” relevant evidence “about the impact of hi s foot conditions on his fitness.” Pl. Reply 7.

Second, the ABCMR’s reliance on the OERs is “erroneous,” because the OERs do not address any of Plaintiff’s specif ic physical disabilities and are “irrelevant to the question of which conditions are unfitting.” Pl. Mot. JAR 8. The OERs simply state that Plaintiff is being medically discharged from the Army and cannot ta ke the APFT, but do not relate that assessment to any of Plaintiff’s specific physic al impairments. Pl. Mot. JAR. 8. In fact, the OERs cite Plaintiff’s performance rating as “outstanding performance, must promote.” Pl. Reply 4 (citing Gov’t SR II at 12 (OER s describing Plaintiff’s “outstanding performan ce”)). Accordingly, the ABCMR erred in relying on Plaintiff’s “outstandi ng OERs as evidence that [Plaintiff’s] foot conditions were not unfitting,” because the OERs do not address any specific medical condition9 directly. Pl. Reply 4. Nevertheless, on rema nd, the ABCMR used the positive comments in the 2008, 2009, and 2010 OERs to conclude that Plai ntiff’s bilateral foot conditions were not unfitting , but his shoulder and wrist conditions were unfitting . Pl. Reply 4; Pl. Mot. JAR. 8. This was illogical, arbitrary, a nd capricious. Pl. Reply 4–5 (“ Simply put, the OERs are not indicative of [Plaintiff’s] fitness for any cond itions and, therefore, cannot be the basis to
differentiate between c onditions being fitting or unfitting.” ). Therefore, the ABCMR acted erroneously in relying on the OERs to find that Plaintiff’s bilateral foot conditions were “not unfitting,” and to simultaneously justify a finding of “unfitness” as to his shoulder and wrist impairments.

Third, the ABCMR failed to analyze the collective impact of all of Plaintiff’s disabilities on his overall fitness, but inst ead focused on his bilateral f oot conditions individually, in contravention of the court’s January 25, 2013 Order and 10 U.S.C. § 1216a(b). 10 Pl. Reply 3 (“Nowhere in the [ABCMR’s] decision does it discu ss, analyze, or even reference the impact of [Plaintiff’s] bilateral foot conditions in concert with, collectively, or in combination with other conditions (including his shoulder and wrist conditions).”). 11 Instead, the ABCMR’s remand decision “repackaged” what the PEB previously found, to appear as the holis tic analysis that the court ordered. Pl. Reply 1–4; see also Pl. Mot. JAR. 10–11 (“[T]he ABCMR never undertook, or stated, how or under what stan dards, it analyzed the issue [of Plaintiff’s unfitness] under a
‘collective’ or ‘combi ned’ standard.”).

In sum, contrary to the ABCMR’s remand decision, under either the standards imposed by relevant Army Regulations, or in Rieth v. United States , 462 F.2d 530 (Ct. Cl. 1972),
Plaintiff’s bilateral foot conditi ons were “contributory or collec tively unfitting.” Pl. Mot. JAR 11–12 (citing Army Reg. 635-40, ¶ 3-5d). 12 Because the MEB determined that Plaintiff’s foot

10 Section 1216a(b) provides that disabi lity ratings “shall take into account all medical conditions, whether indivi dually or collectively , that render the member unfit to perform the duties of the member's office, grade, rank, or rating.” 10 U.S.C. § 1216a(b) (emphasis added).

11 Plaintiff also contends that on remand th e ABCMR erred in analyzing this issue in
terms of the “combined” effect of his conditi ons on overall fitness, and implies that the
“combined” effect is distinct from the “collectiv e” effect of conditions. Pl. Mot. JAR 10.

12 Army Regulation 635-40 provides:

There is no legal requirement in arrivi ng at the rated degree of incapacity to rate a physical condition which is not in itself consid ered disqualifying for military service when a Soldi er is found unfit because of another
condition that is disqualifying . Only the unfitting conditions or defects and
those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Any non-ratable defects or conditions will be listed in item 8 of DA Form 199 (Physical Evaluation Bo ard Proceedings), but will be
annotated as non-ratable.

Army Reg. 635-40, ¶ 3.5d (emphasis added).10 conditions were disqualifying and the ABCMR previously decided that Plaintiff’s shoulder and wrist conditions were unfitting, the ABCMR was re quired to rate Plaintiff’s bilateral foot conditions. Pl. Mot. JAR 11. In the alternative, Plaintiff’s bilateral foot conditions were contributory or collectively unfittin g conditions, even if they are not disabling in isolation. Pl. Mot. JAR 12. A disabling defect is “one which renders the member unfit to perform military duty,” while a contributory def ect is one that, a lthough not disabling, is ratable under the
Veterans Administration Schedule because it contri butes to unfitness. Pl. Mot. JAR 12 (quoting
Rieth , 462 F.2d at 535). Since the MEB findings a nd statements from Plaintiff’s Commander
demonstrate that Plaintiff had functional limita tions “on his duty perf ormance,” Plaintiff’s
bilateral foot conditions contri buted to his unfitness and the A BCMR was required to “address[] this issue directly.” Pl. Mot. JAR 12; see also Pl. Reply 6–7 (Since “the Army MEB found [Plaintiff] medically disqualified based on his bilateral foot c onditions . . . [those conditions were] certainly collectively and in combin ation with his other conditions unfitting.”). 13

2. The Government’s Response.

The Government responds that, on rema nd, the ABCMR reasonably concluded that
Plaintiff’s foot conditions did no t contribute to his unfitness, ba sed on a thorough review of all relevant evidence, and appropriately affirmed th e PEB’s determination that Plaintiff’s physical conditions warranted a twenty pe rcent disability rating. Gov’t Opp. & Cross-Mot. 6–7. Plaintiff “simply disagrees” with the ABCMR’s decision, and “impermissibly invi tes the [c]ourt to substitute its judgment for that of the ABCMR.” Gov’t Opp. & Cross-Mot. 9 (citing Taylor v. United States , 106 Fed. Cl. 443, 451 (2012) (explaining th at the United States Court of Federal Claims “should not substitute its judgment for that of [a board fo r correction of military records] when reasonable minds might differ on the conclusions to be drawn from the evidence”)).

The ABCMR’s remand decision is supported by substantial and relevant evidence, including Plaintiff’s OERs and a November 2009 orthopedic consu lt. Gov’t Opp. & Cross-Mot. 6–7. The 2008, 2009, and 2010 OERs recorded Plai ntiff’s “outstanding performance” and promotion potential as “best qualified.” Gov’ t Opp. & Cross-Mot. 7–8. The November 2009 orthopedic consult, conducted as part of the ME B process, concluded that Plaintiff’s left shoulder and left wrist pain did not meet retention standards. Gov’t Opp. & Cross-Mot. 7. The same report, however, did not suggest that Plainti ff’s foot conditions affected his fitness for duty. Gov’t Opp. & Cross-Mot. 7. Contra ry to Plaintiff’s argument, th e OERs are highly probative in determining fitness (or a lack thereof), since they detail precisely how well a service member performs and the impact of any medical condi tions on that performance. Gov’t Reply 4–5 (citing, e.g. , Army Reg. 623-3 (stating th at OERs “focus on a Soldier’s duty performance, or how well a Soldier performs his or her assi gned tasks and meets the Army Values”); see also

13 The court also directed th e ABCMR on remand to consider “whether Plaintiff’s sleep apnea became unfitting after the MEB and PEB proceedings, but before Plaintiff’s separation from the Army.” Meidl II , 108 Fed. Cl. at 578. That issue was considered on remand. Gov’t SR
II at 13. Plaintiff’s Motion Fo r Judgment On The Administrativ e Record does not challenge the ABCMR’s remand decision regarding this issue. Accordingly, this issue is waived. See United
States v. Ford Motor Co. , 463 F.3d 1267, 1276–77 (Fed. Cir. 2006) (“Arguments raised for the first time in a reply brief are not properly be fore th[e] court.” (internal citation omitted)).11 Rebosky v. United States , 60 Fed. Cl. 305, 311–13 (2004) (r eviewing plaintiff’s OERs to evaluate the lawfulness of the ABCMR’s decision)). In fact, “no document in [Plaintiff’s] file is more relevant to his fitness for duty than his OER.” Gov’t Reply 5. And, Plaintiff offered no rationale for why the ABCMR cannot rely on the sa me evidence to find certain distinct physical conditions fitting and unfitting. Gov’t Opp. & Cross-Mot. 11

The Government recognizes that certain eviden ce is contrary to the ABCMR’s decision, including the February 2010 MEB report a nd February 26, 2010 recommendation from
Plaintiff’s Commander that identified pes planus and plantar fasciitis , among others, as conditions affecting Plaintiff’s fitness for duty. Gov’t Opp. & Cross-Mot. 7–8. That evidence, however, was reviewed by the ABCMR and co ntradicted by the 2008, 2009, and 2010 OERs, as well as the PEB’s determination that subsequent ly was approved by the USAPDA. Gov’t Opp. & Cross-Mot. 8. In drawing a co nclusion about the cumulative import of this evidence, the ABCMR reasonably concluded that , although Plaintiff “had a me dical condition that did not meet retention standards, he was able to achie ve an outstanding perfor mance rating in his duty position, and, therefore, [his] f oot conditions were not unfitting.” Gov’t Opp. & Cross-Mot. 11 (citing Gov’t SR II at 12(1)(c)–(e)). That th e MEB found Plai ntiff’s foot conditions to be disqualifying and failed retentio n standards is “beside the point. ” Gov’t Opp. & Cross-Mot. 10. “Nothing in the MEB’s analysis can substitute fo r the decision of the PEB, which has the sole purview of deciding fitness for duty.” Gov’t Reply 7; see also id. (“The MEB simply narrows the field of a service member’s possible conditi ons to those that the PEB can consider as disqualifying[.]”); Gov’t Opp. & Cross-Mot. 10 (“[A]lthough the MEB found that [Plaintiff’s] foot conditions were disqualifying, its findin gs are not conclusive[.]”). Because the PEB reviewed the MEB findings, February 26, 2010 r ecommendation from Plai ntiff’s Commander, and provided a reasoned analysis as to why Plaint iff’s foot conditions did not contribute to his unfitness, the ABCMR’s decision is lawful. G ov’t Reply 7; Gov’t Opp. & Cross-Mot. 11.

Moreover, the ABCMR analyzed “the combined and collective impact of [Plaintiff’s]
foot conditions” on his overall fitness. Gov’t Reply 3. Th erefore, the ABCMR’s remand decision is fully justified by pertinent stat utory, regulatory, and Department of Defense Instructions. Gov’t Opp. & Cross-Mot. 9 (citi ng Gov’t SR II at 8–12). Because Plaintiff’s OERs showed that he excelled in his duty positi on, despite having substa ntial bilateral foot impairments, both the PEB and the ABCMR “consid ered whether [Plaintiff’s] foot conditions contributed to rendering him unf it and found that it did not.” Gov’t Op p. & Cross-Mot. 15; see also Gov’t Reply 3 (“[T]he PEB found [Plaintiff’s] foot conditions not to be unfitting . . . [and that was] central to the ABCMR’s determination that the combined and collective effect of [Plaintiff’s] foot conditions did not contribute to his unfitness[.]”); Department of Defense Instruction 1332.38(E3.P3.2) (defini ng unfitness as the inability, due to physical disability, to “reasonably perform the duties of [one’s] office, grade, rank, or rating”); Army Reg. 635-40, ¶ 3- 1 (“The mere presence[] of an impairment doe s not, of itself, justify a finding of unfitness because of physical disability.”). Moreover, th e ABCMR’s review of the PEB findings is limited to determining whether “the comp lainant has demonstrat ed an error or inju stice.” Gov’t Opp. & Cross-Mot. 14 (quoting Taylor , 106 Fed. Cl. at 456). The scope of review is not whether the
ABCMR “could have reached a different result” th an the PEB. Gov’t Opp. & Cross-Mot. 12–13.
Because the ABCMR’s decision was r easonable in light of the totality of the evidence and issued after considering “all aspects of the fitness issue,” the court has no basis to overturn that12 decision. Gov’t Opp. & Cross-Mot. 15 (citing Van Cleave v. United States , 70 Fed. Cl. 674, 679 (2006) (“When substantial evidence supports a boar d’s action, and when that action is reasonable in light of all the evidence pres ented, the court will not disturb the result.” (internal citations omitted)).

Finally, Plaintiff’s reliance on Rieth is not warranted. In that case, the plaintiff “was found to have an unfitting condition,” whereas, in this case, neither the PEB nor the ABCMR found Plaintiff’s foot condition unfitting. Gov’t Opp. & Cross-Mot. 15 (citing Rieth , 462 F.2d at 535–37). Moreover, in Rieth , the Court of Claims determined that an increase in plaintiff’s disability rating was proper, because his shoulde r injury “contributed to weakness and temporary paralysis several years” after his di scharge. Gov’t Reply 6 (citing Rieth , 462 F.2d at 536–37). Therefore, Rieth is inapposite. The issue before the ABCMR on remand was to reexamine the
PEB’s determination of Plaintiff’s fitness at the time of discharge, not the impact of any disabilities “several years down th e road.” Gov’t Reply 6 (citing Bosch v. United States , 27 Fed. Cl. 250, 263 (1992), aff’d , 11 F.3d 1070 (Fed. Cir. 1993) (clarifying that the military’s disability rating determinations are “directed to the sole que stion of whether the particular member . . . is unfit to perform the duties of his office”)).

3. The Court’s Resolution.

The United States Court of Appeals for the Fede ral Circuit has held th at the United States
Court of Federal Claims “will not disturb the decision of [a board for correction of military records] unless it is arbitrary, capricious, co ntrary to law, or unsupported by substantial
evidence.” Chambers v. United States , 417 F.3d 1218, 1227 (Fed. Cir. 2005). “It is equally settled that responsibility for determining who is f it or unfit to serve in th e armed forces is not a judicial province[.]” Heisig , 719 F.2d at 1156. That the court “might disagree” with the decision of a board for correction of military records, in and of itself, is insufficient to overturn a
correction board’s decision. See Storey v. United States , 531 F.2d 985, 987 (Ct. Cl. 1976) (A decision of a “[c]orrection [b]oard is entitled to finality and may not be overturned, even if the court might disagree with it[.]”). The ABCMR, in turn, “decide[s] cases on the evidence of record,” and “is not an investigative body.” 32 C. F.R. § 581.3(c)(2)(iii). Thus, in reviewing the decision of a PEB, the ABCMR is limited to ascertaining whether the PEB committed a “material error or injustice” and only if “su fficient evidence exists on the record [will the ABCMR] direct or recommend changes in military records to correct the error or injustice.” Id. § 581.3(b)(4)(ii).

Plaintiff’s first argument must fail, b ecause although “the ABCMR . . . reached a conclusion with which Plaintiff disagreed . . ., that disagreement does not establish that the ABCMR was arbitrary or capricious.” Meidl II , 108 Fed. Cl. at 576. In this case, the ABCMR reviewed the relevant evidence, including Plai ntiff’s military records, OERs, November 2009 Orthopedic consult, February 28, 2010 MEB deci sion, and March 25, 2010 decision by the PEB.

Gov’t SR II at 1–7. A lthough Plaintiff characterizes the ABCM R’s decision as flawed because it “lists evidence and findings supporting” a contrary conclusion (Pl. Mot. JAR 7), that contention represents a fundamental misapprehension: the ABCMR must review all relevant evidence, whether that evidence supports the ABCMR’s determination or not. See Jordan v. United States

, 205 Ct. Cl. 65, 84 (1974) (holding that the corr ection board’s decisi on was arbitrary and capricious, in part, because it was “not base d upon a complete and balanced consideration of all13 the relevant evidence available and presented ” (emphasis added)); see also Heisig , 719 F.2d at 1157 (“Under the substantial evidence rule, all of the competent evidence must be considered, whether original or supplement al, and whether or not it suppor ts the challenged conclusion.” (emphasis in original)); Chisolm v. United States , 41 Fed. App’x. 394, 398–99 (Fed. Cir. 2002) (holding that a board for correction of military reco rds must actually review “evidence [that] is in
direct conflict with the evidence on which the [c]orrections [b]oard re lied for its ultimate decision”). That is what the ABCMR di d on remand, as evidenced by the explicit acknowledgment that the record presented different “account[s] of [Plainti ff’s] ability to perform
his duties.” Gov’t SR II at 12. The fact that Plaintiff, after reviewing this same record, would
have reached a different conclusion than the ABCM R is immaterial. For these reasons, the court
has determined that the ABCMR’s decision wa s not an “unreasonabl[e] constru[ction]” of relevant evidence, and therefore is not arbitrary or capricious. See Joslyn v. United States , 110 Fed. Cl. 372, 392 (2013).

Plaintiff’s challenge to the ABCMR’ s reliance on the 2008, 2009, and 2010 OERs has
some merit. It is true that a correcti on board’s reliance on OERs in making fitness determinations generally is justified. See Rebosky , 60 Fed. Cl. at 311–14 (relying extensively on plaintiff’s OERs to conclude that “substa ntial evidence [supports] the ABCMR’s conclusion to separate the plaintiff from service”); see also Joslyn , 110 Fed. Cl. at 392–93 (same re: fitness determination). In this case, however, while Pl aintiff’s OERs are overwhelmingly positive, they do not directly address which of Plai ntiff’s specific physical impairments, i.e., his bilateral foot impairments, shoulder injury, or wr ist injury, were or were not unf itting. As such, Plaintiff is correct that, had the ABCMR merely analyzed his OERs and draw n contradictory conclusions
that his shoulder and wrist conditions were unfitti ng, but that his bilateral foot conditions were not, the ABCMR’s decision would be implausible and, therefore, arbitr ary and capricious. Cf.
Van Cleave v. United States , 66 Fed. Cl. 133, 136 (2005) (explai ning that where a “rational connection[] between the facts f ound and the choices made” is lack ing, or the correction board’s decision is “implausible,” th at decision is unlawful).

In this case, however, neither the PEB nor the ABCMR relied solely on Plaintiff’s OERs to justify the fitness de terminations as to his shoulder, wr ist, and bilateral foot conditions. Instead, the PEB (and by implication the ABCMR) relied on, inter alia , Plaintiff’s surgical history, difficulty lifting objects over five pounds, X-rays sh owing degenerative changes in the scapholunate joint, and functional loss limitati ons, as evidence that his shoulder and wrist conditions were unfitting. AR 19 (March 25, 2010 PEB decision). Th at same evidence, however, did not address Plaintiff’s bilateral f oot conditions. Therefore, the PEB (and the ABCMR by implication) relied on Plaintiff’s November 2009 ort hopedic consult, Plaintiff’s passage of the APFT as late as April 2008, despite suffering from pes planus since “at least 2002,” “minimal analgesic us e on an occasional basis,” and his “outstanding” OERs through 2009 as evidence that his bilateral foot conditions were not unfitting. AR 19

. In other words, the
ABCMR did not differentiate betw een Plaintiff’s conditions excl usively on the basis of his

OERs.

In light of evidence before the PEB and ABCMR showing Plaintiff’s bilateral foot conditions were not unfitting, it was not “erroneous ” for the ABCMR to reference the OERs as supporting evidence, since they were probative of th e impact of Plaintiff’s foot conditions on his14 performance. See Army Reg. 623-105 ¶ 1-8 (explaining that OERs are part of the Officer Evaluation System, a system that evaluates pot ential for promotion based on an officer’s “performance”); Army Reg. 623-3 (Performance evaluations analyze “how well a Soldier performs his or her assigned tasks.”). Th e 2008, 2009, and 2010 OERs demonstrate that Plaintiff
suffered from bilateral foot conditions while e xhibiting “outstanding” (G ov’t SR II at 12) or “superb” performance (AR 59), and thus it was not arbitrary or capricious for the ABCMR to rely, in part, on that information as evidence th at Plaintiff’s bilateral foot conditions were not unfitting. See Rebosky , 60 Fed. Cl. at 311–14 (reviewing OERs to evaluate lawfulness of ABCMR’s decision); see also Joslyn , 110 Fed. Cl. at 392–93 (upholding correction board’s fitness determination because plaintiff’s OERs were evidence “that a reasonable mind might accept as adequate to support a conclusion” (int ernal quotation omitted)). Although the court might have found the OERs less probative than the ABCMR, that is not the court’s role. For these reasons, the court has determined that the ABCMR’s reliance on Plaintiff’s OERs was not arbitrary or capricious; and, mindf ul that the “question is not whether substantial evidence weighs against the [ABCMR’s] decision but whether substantial evidence supports it,” Joslyn

, 110 Fed. Cl. at 392, the court has determined that the ABCMR’s decision was supported by
substantial evidence.

Finally, the court’s January 25, 2013 Order di rected the ABCMR to “consider whether
Plaintiff’s foot conditions cont ributed to rendering him unfit.” Meidl II , 108 Fed. Cl. at 578; see also 10 U.S.C. § 1216a(b) (providing that disability ratings “shall take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member's office, grade, rank, or ra ting”). Plaintiff has not shown by “cogent and clearly convincing evidence” that the ABCMR failed to comply with the court’s Order, or with section 1216a(b). See Wronke , 787 F.2d at 1576. Th e court is satisfie d that the ABCMR on remand reviewed the relevant regulatory and stat utory requirements, all relevant evidence, and
came to a reasonable conclusion that the PEB act ed within its discretion and authority in concluding that Plaintiff’s “foot conditions did not contribute to his unfitness” (Gov’t SR II at 12). See Volk v. United States , 111 Fed. Cl. 313, 325 (2013) (“Th e arbitrary and capricious standard . . . is highly deferent ial and requires a reviewing court to sustain an agency action evincing rational reasoning and consideration of relevant fact ors.”). Although the court would
have been inclined in this case to have decided matters differently, it “is not the role of the court to reweigh this evidence.” Id. at 330; see also Taylor , 106 Fed. Cl. at 451 (The United States
Court of Federal Claims “will not substitute its judgment for that of the [correction] board’s when reasonable minds might differ[.]”). Plain tiff’s remaining arguments amount to a request that the court decide the merits of Plaintiff’s fitness for duty. As it must, the court declines to do

so. See Heisig , 719 F.2d at 1156 (“[R]esponsibility for determ ining who is fit or unfit to serve in
the armed services is not a judicial province.”).

IV. CONCLUSION.

For the reasons stated herein, Plaintiff’ s July 10, 2013 Motion For Judgment On The Administrative Record is denied, and the G overnment’s September 4, 2013 Cross-Motion For15 Judgment On The Administrative Record is grante d. The Clerk of Court is directed to enter judgment in favor of the Government.

IT IS SO ORDERED

.

/s/ Susan G. Braden
SUSAN G. BRADEN Judge