WOLLMAN v. USA
Filing
27
ORDER granting in part and denying in part 11 Motion for Judgment on the Administrative Record; denying in part and REMANDED. 17 Cross Motion Case is REMANDED for further proceedings consistent with the court's order. Signed by Judge Nancy B. Firestone. (dpk) Copy to parties.
In the United States Court of Federal Claims
No. 12-125C
(Filed: February 6, 2013)
JAMES H. WOLLMAN,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
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10 U.S.C. §1201 (2006) and 37 U.S.C.
§ 204(a)(2006); Military Disability
Retirement; Existed Prior to Service,
“EPTS”; Presumption of Incurrence
and Aggravation; 28 U.S.C. §
1491(a)(2), Remand.
Jason Ellis Perry, Cheshire, CT, for plaintiff.
Michael Damien Snyder, U.S. Department of Justice, Washington, DC, with whom were
Stuart Delery, Principal Deputy Assistant Attorney General, and Jeanne E. Davidson,
Director, for defendant. Captain Rachel A. Landsee, U.S. Army Litigation Division, Fort
Belvoir, VA, of counsel.
OPINION
FIRESTONE, Judge
In this military pay case, Mr. James H. Wollman (“Mr. Wollman” or “the
plaintiff”) seeks compensation and benefits under 10 U.S.C. § 1201 (2006) and 37 U.S.C.
§ 204(a) (2006) stemming from the Army Physical Disability Review Board’s
(“APDRB”)1 failure to correct what he alleges was the United States Army Physical
Disability Agency’s (“USAPDA”) (1) denial of a full and fair hearing under 10 U.S.C. §
1
Like the Army Board of Corrections for Military Records, the APDRB was established
pursuant to 10 U.S.C. §§ 1552, 1554, and possesses the same powers as those exercised by the
boards whose decisions it reviews. See 32 C.F.R. § 581.1(a) (2006).
1214 (2006); (2) failure to properly apply certain presumptions related to whether his
Ankylosing Spondylitis (“AS”)2 was incurred and aggravated while serving on active
duty; and (3) refusal to properly compensate him in light of his AS, plantar fasciitis, and
wrist fracture. In his pending cross motion for judgment on the administrative record,
Mr. Wollman seeks compensation for denied pay and allowances; out-of-pocket expenses
for medical care incurred since his separation from active duty; restoration to active duty
until his case is finally decided by the Secretary of the Army (in the event that the court
remands the case for further proceedings); and costs and attorneys fees.
The defendant, the United States (“the defendant or “the government”), has moved
for judgment on the administrative record, arguing that the APDRB’s decisions were not
arbitrary, capricious, unsupported by substantial evidence, or contrary to law.
Specifically, the government contends that (1) any procedural errors made by the Medical
Evaluation Board (“MEB”), Physical Evaluation Board (“PEB”), or USAPDA were
corrected by the APDRB; (2) the PEB, USAPDA, and the APDRB properly applied the
presumptions concerning the incurrence and aggravation of Mr. Wollman’s AS; (3)
substantial evidence supported the PEB, USAPDA, and APDRB findings concerning the
incurrence and progression of Mr. Wollman’s AS; and (4) the plaintiff waived his
disability claims related to his plantar fasciitis and wrist fracture.
2
Ankylosing Spondylitis is “a form of degenerative joint disease that affects the spine. It is a
systemic illness of unknown etiology, affecting young persons predominantly, and producing
pain and stiffness as a result of inflammation of the sacroiliac, intervertebral, and costovertebral
joints. . . .” Dorland's Illustrated Medical Dictionary, 1779 (31st ed. 2007).
2
For the reasons discussed below, the government’s motion for judgment on the
administrative record is GRANTED-IN-PART AND DENIED-IN-PART, and the
plaintiff’s motion for judgment on the administrative record is DENIED-IN-PART. The
case is REMANDED to the APDRB for further proceedings consistent with this opinion.
I.
BACKGROUND
A. The Relevant Statutory and Regulatory Provisions
Under 10 U.S.C. Chapter 61, a member of the armed services may be entitled to
disability benefits if, inter alia, the member incurs or aggravates3 a physical disability in
the line of duty. See 10 U.S.C. § 1201. The Departments of Defense (“DoD”) and the
Army have implemented Chapter 61 through complementary regulatory frameworks.
DoD Instruction (“DoDI”) 1332.38 (November 1996) establishes the Disability
Evaluation System (“DES”), which consists of department-wide policies and procedures
for adjudicating claims for disability retirement and severance pay. The DES process
generally includes evaluation(s) by a MEB; physical disability evaluation(s) by Informal
and/or Formal PEBs; service member counseling; and a final disposition regarding
continued service. DoDI 1332.38 ¶ E3.P1 et seq.
The Army has issued tailoring regulations which provide more detailed procedures
to adjudicate disability claims. See Army Regulation (“Army Reg.”) 635-40 (September
3
DoDI 1332.38 defines “Service Aggravation” as “[t]he permanent worsening of a pre-[s]ervice
medical condition over and above the natural progression of the condition caused by trauma or
the nature of [m]ilitary [s]ervice.”
3
1, 1990) (Physical Evaluation for Retention, Retirement, or Separation);4 Slesinski v.
United States, 34 Fed. Cl. 159, 162-63 (1995) (describing the Army's disability
evaluation process under Army Reg. 635-40). See generally Army Reg. 600-8-4 (April
2004) (Line of Duty Policy, Procedures, and Investigations);5 Army Reg. 40-501
(February 2005) (Standards of Military Fitness). Of particular relevance to Mr.
Wollman’s claims, Army Reg. 635-40 dictates how the Army determines whether a
soldier’s medical condition existed prior to service (“EPTS”)6 or was permanently
aggravated by service. Specifically, when determining whether a condition was incurred
or aggravated in the line of duty, DoDI 1332.38 and Army Reg. 635-40 create certain
presumptions based on the nature of the condition and when it was discovered. As
4
The court concludes that the September 1, 1990 update to the August 15, 1990 release of Army
Reg. 635-40 was the operative regulation at the time Mr. Wollman was separated from the Army.
The government cites to Army Reg. 635-40 (August 1990), and the plaintiff cites to a February
8, 2006, update to Army Reg. 635-40. The effective date of the February 2006 release, however,
was March 8, 2006—roughly two weeks after Mr. Wollman’s discharge.
5
Army Reg. 635-40 ¶ 3-4 notes that eligibility for disability benefits is dependent on satisfying
line of duty criteria found in Army Reg. 600-8-1. The introduction to Army Reg. 600-8-4,
however, describes itself as “republish[ing] the guidance for line of duty determinations that was
previously omitted from Army Reg. 600-8-1.” Therefore, the court concludes that the portions
of Army Reg. 600-8-4 that impact line of duty determinations are incorporated into Army Reg.
635-40 by reference.
6
Army Reg. 600-8-4’s glossary defines EPTS as follows: “[a]ny injury, disease, or illness, to
include the underlying causative condition, which was sustained or contracted prior to the
present period of [Active Duty] or authorized training, or had its inception between prior and
present periods of [Active Duty] or training is considered to have existed prior to service. A
medical condition may in fact be present or developing for [some time] prior to the point when it
is either diagnosed or manifests symptoms. Consequently, the time at which a medical condition
‘exists’ or is ‘incurred’ is not dependent on the date of diagnosis or when the condition becomes
symptomatic. (Examples of some conditions which may be pre-existing are slow-growing
cancers, heart disease, diabetes, or mental conditions, which can all be present well before they
manifest themselves by becoming symptomatic.).” Id. at 27.
4
discussed below, if a service member is discharged due to a medical condition that was
EPTS and that was not permanently aggravated by service, the member is not entitled to
disability compensation.
i. Presumptive Determinations Concerning Whether a Disease Is EPTS
Service members are presumed to have been in sound physical and mental
condition upon entering active duty except for medical defects and physical disabilities
noted and recorded at the time of entrance. DoDI 1332.38 ¶ E3.P4.5; Army Reg. 635-40
¶ 3-2(a). As such, a service member is generally entitled to the presumption that a
medical condition discovered after entering active duty was incurred in the line of duty.
DoDI 1332.38 ¶ E3.P4.5.2.2; Army Reg. 635-40 ¶ 3-2(a)(2). This presumption does not
apply, however, to congenital, hereditary, or genetic diseases.7 DoDI 1332.38 ¶
E3.P4.5.2.2.1; Army Reg. 635-40 ¶ 3-2(a)(2). Instead, these conditions are presumed to
have been incurred prior to entry into active duty (i.e., they are presumptively EPTS).
See DoDI 1332.38 ¶ E3.P4.5.2.2; Army Reg. 635-40 ¶ 3-2(a)(2). DoDI 1332.38 and
Army Reg. 635-40 are silent as to whether (or how) a service member with a congenital,
hereditary, or genetic disorder can rebut the presumption that the disorder was EPTS.
7
The court notes that Dorland’s Illustrated Medical Dictionary (31st ed. 2007) defines these
terms as follows: Congenital: existing at, and usually before, birth; referring to conditions that
are present at birth, regardless of their causation, id. at 410; Hereditary: genetically transmitted
from parent to offspring, id. at 859; Genetic: pertaining to or determined by genes, id. at 781.
DoDI 1332.38 uses the terms “congenital,” “hereditary,” and “genetic” interchangeably.
Compare ¶ E3.P4.5.2.2.1 (presumption applies except for congenital or hereditary conditions),
with ¶ E3.P4.5.2.2.2 (hereditary and/or genetic disease presumed to have been incurred prior to
entry). By contrast, Army Reg. 635-40 consistently uses only the terms “congenital,” or
“hereditary.”
5
Neither DoDI 1332.38 nor Army Reg. 635-40 define “hereditary,” “genetic,” or
“congenital” diseases.8 Instead, the Army has provided broad guidance for determining
whether a condition should be presumed EPTS. Specifically, Army Reg. 635-40 ¶ 3-3(a)
states that “accepted medical principles” have determined that “certain abnormalities and
residual conditions exist that, when discovered, lead to the conclusion that they must
have existed or have started before the individual entered military service.” Scars,
fractures, fibrosis of the lungs, atrophy following disease of the central or peripheral
nervous system are listed as examples of conditions “[w]here medical authorities are in
such consistent and universal agreement as to their cause and time of origin . . . no
confirmation is needed to support the conclusion that they existed prior to military
service.” Army Reg. 635-40 ¶ 3-3(a)(1)(h).
The presumption that a non-congenital, non-hereditary, or non-genetic disease was
incurred in the line of duty does not automatically entitle a service member to be rated9
for a disability retirement or severance pay. See Army Reg. 635-40 ¶ 4-19(e)(2). The
government can still rebut the presumption of service-incurrence by showing that a
preponderance of the evidence, based on accepted medical principles, supports a finding
8
Enclosure 4 of DoDI 1332.38 consists of a non-exclusive list of conditions that are cause for
referral into the DES, some of which are expressly labeled “congenital.” DoDI 1332.38 ¶
E4.2.7.1 lists the following as examples of congenital spinal diseases: Spina Bifida, Coxa Vara,
Spondylolysis/Spondylolisthesis, Kyphosis, and Scoliosis.
9
The disability rating represents, “as far as can practicably be determined, the average
impairment in civilian occupational earning capacity resulting from certain diseases and injuries,
and their residual conditions.” DoDI 1332.39 (November 1996); DoDI 1332.38 ¶ E3.P4.6
(compensable disabilities rated according to the Veterans Administration Schedule for Rating
Disabilities (“VASRD”)).
6
that the soldier’s condition was EPTS. See Army Reg. 635-40 ¶ 3-2(a)(5); ¶ 4-19(e)(2)
(accepted medical principles required even where no other evidence indicates impairment
was EPTS). Accepted medical principles are defined as “[f]undamental deductions,
consistent with medical facts[,] that are so reasonable and logical as to create a virtual
certainty that they are correct.” DoDI 1332.38 ¶ E2.1.1. See also Army Reg. 635-40 at
79 (glossary defining “Accepted Medical Principles” as “[f]undamental deductions that
are consistent with medical facts. They are accepted for treating and practice in current
major text-books and publications”). This evidentiary showing “differs from personal
opinion, speculation, or conjecture.” Army Reg. 635-40 ¶ 3-2(a)(5). If the PEB finds
that a condition was EPTS based primarily on accepted medical principles, then those
principles must be cited as part of the decision. Army Reg. 635-40 ¶ 4-19(e)(2). When
reasonable doubt exists as to whether the condition was EPTS, the government is directed
to investigate further and, in the absence of sufficient evidence, resolve any dispute
concerning the forgoing presumptions in favor of the service member. Army Reg. 63540 ¶ 3-2(a)(5).
Applied to the case at bar, DoDI 1332.38 and Army Reg. 635-40 entitle Mr.
Wollman to the presumption that his AS was incurred in the line of duty if (1) his AS was
neither noted nor recorded at the time he entered active duty; and (2) AS is not a
congenital, hereditary, or genetic disorder. If both conditions are satisfied, then the
government bears the burden of showing by a preponderance of the evidence that Mr.
Wollman’s AS was EPTS. This evidence must be based on accepted medical principles,
7
but need not be confirmed by specific reference to Mr. Wollman’s medical records.10
However, should the government rely primarily on accepted medical principles to reach
the conclusion that Mr. Wollman’s AS was EPTS, then those principles must be cited and
must show “consistent and universal” agreement among medical authorities as to the (1)
cause and (2) time of origin of AS.
ii. Presumptive Determinations Concerning Whether a Disease Is
Aggravated by Service
Even when the government establishes by a preponderance of the evidence that a
disease is EPTS, active duty soldiers are generally entitled to a rebuttable presumption
that any additional disability or aggravation was in the line of duty and therefore
potentially compensable. See DoDI 1332.38 ¶ E3.P4.5.2.2; Army Reg. 635-40 ¶ 32(a)(3). This presumption “may only be overcome by competent medical evidence
establishing by a preponderance of the evidence that the disease was clearly neither
incurred nor aggravated while serving on active duty. . . . Such medical evidence must be
based on well-established medical principles, as distinguished from personal medical
opinion alone.” DoDI 1332.38 ¶ E3.P4.5.2.3. See also Army Reg. 635-40 ¶ 3-2(a)(3)
(“specific findings of natural progression” required to overcome presumption of service
aggravation); Army Reg. 600-8-4 ¶ 4-8(e)(3) (“Specific findings of natural progress of
10
Even if the agency is not required to provide the plaintiff with a citation to an accepted
medical principle, the record must nevertheless be sufficiently developed to allow for meaningful
judicial review. See Deloach v. Shinseki, 2011-7147, 2013 WL 335945, *9 (Fed. Cir. Jan. 30,
2013).
8
the pre-existing injury or disease based upon well-established medical principles alone
are enough to overcome the presumption of [s]ervice aggravation.”).
The presumption that a medical condition that becomes permanently worse during
military service was aggravated by that service is not available for cases of congenital,
hereditary, or genetic diseases. See DoDI 1332.38 ¶¶ E3.P4.5.2.2.2, E3.P4.5.2.3. In such
cases, the member must provide clear documentary evidence that his or her condition was
service-aggravated or that the member was permitted to continue on active duty “after
such a condition, known to be progressive, was diagnosed or should have been
diagnosed.” See Army Reg. 635-40 ¶ B-10(c). The service member may then be entitled
to a disability rating for any aggravation of that disease, incurred in the line of duty,
beyond that determined to be due to natural progression of the disease. DoDI 1332.38 ¶
E3.P4.5.2.2.2.
Applying this framework to the case at bar, Mr. Wollman is entitled to the
presumption that any aggravation of his AS was due to his military service if AS is not a
congenital, hereditary, or genetic disorder. In that case, the government can rebut the
presumption by making a specific finding that a preponderance of the competent medical
evidence establishes that any aggravation of Mr. Wollman’s AS was due to the natural
progression of the disease. This showing can be made by reference to well-established
medical principles alone, and need not specifically refer to Mr. Wollman’s medical
records. By contrast, if AS is a congenital, hereditary, or genetic disease, then Mr.
Wollman bears the burden of showing, with clear documentary evidence, that his
9
condition was service aggravated beyond its natural progression or that he was permitted
to continue on active duty after his AS was diagnosed or should have been diagnosed.
B. Mr. Wollman’s Service History11
Mr. Wollman enlisted in the U.S. Army Reserve as a cadet on August 23, 1993, at
the Oklahoma State University, where he received a scholarship for his education by
training in the Reserve Officer Training Corps (“ROTC”) program. AR 288-96. He was
commissioned into the United States Army on May 8, 1998, where he served on active
duty in the Field Artillery. After having served in Iraq from May 6, 2003 until June 10,
2004, Mr. Wollman was discharged as a Captain on February 24, 2006. AR 283, 297.
C. Mr. Wollman’s Medical Evaluation Board Proceedings
On June 10, 2005, Mr. Wollman received a permanent medical profile that
indicated that he was no longer physically able to perform certain functional activities
(e.g., wear body armor, receive live immunizations, carry a 45-pound pack).12 AR 271.
The profile referred him to a MEB for “Spondyloarthropathy (Sacroiliitis); History of
right wrist fracture.” AR 271. Over the next two months he underwent further medical
evaluation, including a rheumatology consultation on July 19, 2005. AR 264-70. The
11
The statement of facts are taken largely from the unopposed portions of the government’s
motion for judgment and supplemented with the administrative record (“AR”). Pursuant to Rule
5.4(a)(3) of the Rules of the United States Court of Federal Claims (“RCFC”), with certain
exceptions the plaintiff stipulated to the facts presented in the government’s motion for judgment
on the administrative record. Plaintiff’s Mot. 4-5.
12
In a June 29, 2005 memorandum for the Commander of the Landstuhl Regional Medical
Center, the Army stated that Mr. Wollman had been unable to complete the 2-mile run as part of
the Army Physical Fitness Test for more than two years. AR 273. As recently as October 24,
2002, however, Mr. Wollman had been described as “maintain[ing] a good level of physical
fitness[,] scoring a 190 on the Army Physical Fitness Test.” AR 315.
10
consulting rheumatologist reviewed Mr. Wollman’s history13 and symptoms, evaluated
him through a physical exam, evaluated his laboratory data and imaging studies, and
evaluated his pulmonary function. AR 262-64. In his narrative summary prepared for
the MEB, the rheumatologist stated that Mr. Wollman had suffered from back discomfort
for seven to eight years without a history of injury and that the discomfort was first noted
while undergoing a ROTC evaluation.14 AR 262. The rheumatologist further stated that
Mr. Wollman received a “waiver” for back pain upon entry into service, and was
suspected to have AS in 1995.15 AR 262.
13
In late 1994 Mr. Wollman had consulted with civilian orthopedic specialists to determine the
cause of his back discomfort. AR 153. Following a positive test result for the HLA-B27 antigen
in early 1995, his civilian treating physician wrote that, “I have reviewed his LS spine films
again and he may have some minor changes at his SI joints however I think [sic] difficult to
make the diagnosis of Ankylosing Spondylitis.” AR 153. In a March 9, 1995 entry in his
civilian medical records, his treating physician states, “X-rays brought in by the patient showed a
pelvis X-ray. Difficult to interpret the SI joints on this film. They were not well-placed on the
film. Hips look unremarkable. Lumbosacral spine did not show any signs of squaring or
characteristic changes of Ankylosing Spondylitis.” AR 158.
14
On March 17, 1995, Mr. Wollman received a military “fitness for duty” evaluation. AR 160.
The military physician noted that Mr. Wollman’s civilian physicians had interpreted the results
of his prior bone scan as “showing possibly early Ankylosing Spondylitis on the right SI joint
and [was] otherwise normal.” Ultimately, however, the military physician concluded that,
“[given] the physical exam results, patient has symptoms consistent with poor exercise tolerance
and finds himself incapable of doing the required physical training in college.” AR 160. The
physician recommended against commissioning Mr. Wollman “secondary to his lack of objective
findings and persistent subjective complaints of low back pain and right hip pain.” AR 161-62.
Despite this recommendation, Mr. Wollman was subsequently determined to be “medically
qualified for scholarship retention, appointment, combat arms assignment, and Airborne/Ranger
training when otherwise qualified.” AR 163-64.
15
The report from Mr. Wollman’s June 12, 1996 military physical does not indicate that he
received a waiver for any then-existing physical condition. To the contrary, it describes him as a
“normal healthy male,” and specifically lists both his upper extremities and spine as being
normal. AR 338.
11
The rheumatologist noted that despite improvements with medication, Mr.
Wollman still stated that he had difficulty with prolonged standing, sitting, and wearing
the equipment required for his military occupational specialty. AR 262. He diagnosed
Mr. Wollman with AS manifested by HLA-B27 positivity,16 bilateral sacroiliitis, and
history of plantar fasciitis.17 AR 264. Although the rheumatologist found that Mr.
Wollman’s prognosis was good with performance in a non-physically demanding job, he
found that Mr. Wollman was unable to perform the physical requirements of his military
occupational specialty and that he failed to meet regulatory retention criteria. AR 264.
On July 20, 2005, Mr. Wollman’s MEB was conducted and memorialized in a
standard form. AR 260-61. The board indicated that Mr. Wollman had been diagnosed
with “Ankylosing Spondylitis manifested by HLA positivity, bilateral [s]acroiliitis and
history of plantar fasciitis.” AR 260. Mr. Wollman did not present views on his own
behalf. AR 260. The MEB indicated that the condition was EPTS and was permanently
aggravated by service. AR 260. The form, which did not contain additional narrative,
was signed by Colonel Hess, a physician with the United States Air Force. AR 261. On
July 21, 2005, Mr. Wollman indicated that he agreed with the MEB’s findings and
16
The HLA B-27 antigen is strongly associated with the development of arthritic processes.
Although the presence of the antigen indicates increased susceptibility to AS, “most HLA-B27
positive persons never develop AS or related diseases.” Muhammad Asim Khan, Ankylosing
Spondylitis: Clinical Features, in 2 Rheumatology 16 (John H. Klippel & Paul A. Dieppe eds.,
1998). See n.29, infra.
17
Although the rheumatologist noted that Mr. Wollman sustained a wrist fracture in 2000, this
was not listed as one of the conditions of diagnosis. AR 263-64.
12
recommendation and that he did not desire to continue on active duty. AR 261. His
matter was forwarded to a PEB. AR 260.
D. Mr. Wollman’s Physical Evaluation Board Proceedings
On September 2, 2005, an Informal PEB found that Mr. Wollman was physically
unfit and recommended separation from the service without disability benefits. AR 25455. In the description of Mr. Wollman’s disability, the Informal PEB stated, “Chronic
[b]ack [p]ain first noted while undergoing ROTC evaluation. The Soldier received a
waiver for the back discomfort as he was suspected in 1995 of having Ankylosing
Spondylitis, which is the current unfitting diagnosis. There is no history of trauma/injury
while on active duty. . . . There is no evidence of permanent service aggravation. (MEB
Dx)[.]”18 AR 254. The narrative then stated that, “[t]he PEB has reviewed the medical
evidence of record and concludes that there is sufficient evidence to substantiate an EPTS
. . . condition for which you are now unfit. Your condition has not been permanently
aggravated by service but is the result of natural progression.” AR 254. The PEB did not
mention either Mr. Wollman’s prior wrist fracture or his history of plantar fasciitis as
separate disabling conditions. AR 254.
Mr. Wollman indicated that he did not concur, AR 255, and on September 20,
2005, he submitted a statement and supporting evidence to the Formal PEB to explain
why he felt the AS was not a preexisting condition. AR 247-49. Mr. Wollman stated that
18
The court understands the phrase, “MEB Dx” as referring to the earlier MEB diagnosis, which
was contradicted by the PEB, that Mr. Wollman’s condition had been permanently aggravated by
his military service.
13
his AS diagnosis was made in January 2005, and that, although he had previous back
alignment problems in 1995 while he was in ROTC, he did not believe the two were
related. AR 247. He also stated that the doctor who examined him in 1995 said it was
unlikely that he had AS based on X-rays and a bone scan, which the doctor stated would
have picked up the earliest symptoms of AS. AR 247. Mr. Wollman appended to his
petition multiple imaging reports from 2001, including a report dated October 3, 2001 in
which the physician stated that “[t]here is no evidence . . . suggestive of ankylosing
spondylitis presently.” AR 244.
Mr. Wollman also stated that he did not have a significant change in his health
until 2003 to 2004, during the time when he was stationed in Iraq. AR 248. Based on an
Internet article by Dr. Gabe Mirkin, Mr. Wollman hypothesized that his service in the
Army either triggered or aggravated his condition as a result of an intestinal disease that
he claimed to have received in Iraq. AR 247-48, 275. The article stated that, “[n]obody
really knows why you have this condition, but the overwhelming evidence is that you
inherited your susceptibility from your parents and you got this condition from an
infection.” AR 275. The article proceeded to review medical literature from 1996-1999
supportive of the hypothesis that AS is triggered by infection. AR 275-76.19
19
Mr. Wollman’s statement did not object to the absence of a PEB finding related specifically to
either his wrist fracture or prior history of plantar fasciitis. AR 247-49.
14
On October 7, 2005, Mr. Wollman’s Formal PEB met and came to the same result
as the Informal PEB.20 AR 237-39. In the description of his disability, the Formal PEB
repeated the Informal PEB’s statements concerning the existence of Mr. Wollman’s AS
prior to entering service, absence of service aggravation, and receipt of a “waiver.”21 AR
237. On October 21, 2005, Mr. Wollman indicated his non-concurrence with the
decision and submitted a rebuttal. AR 233-34. In his rebuttal, Mr. Wollman explained
that the Formal PEB suggested that he provide further documentation of the intestinal
condition that he had in Iraq or submit a letter from his current doctor in support of his
arguments that the intestinal condition aggravated his AS. AR 233. Mr. Wollman then
explained that, despite his efforts, his evaluating physician assistant from Iraq was unable
to locate his medical records and that, without the records from Iraq, his current doctor
was unwilling to submit a statement regarding the possibility that his intestinal problem
made his AS worse. AR 233. On November 2, 2005, the President of the PEB stated
that, although Mr. Wollman’s case had been carefully reviewed, his rebuttal did not
provide information as to any new diagnosis or changes in his currently rated disability.
AR 232. Accordingly, the PEB affirmed the decision finding him unfit. AR 232.
20
The findings did not refer to the series of imaging tests conducted on Mr. Wollman from April
28, 2000 through October 29, 2001, none of which diagnosed Mr. Wollman as suffering from
AS. Notably, the findings did not address Mr. Wollman’s October 3, 2001 X-rays, which had
been ordered specifically to identify “changes seen with Ankylosing Spondylitis,” and which
concluded that “[t]here [was] no evidence of bambooing of the lumbar spine or changes
suggestive of [AS.]” AR 244.
21
The October 7, 2005 letter from the PEB did not mention either the wrist fracture or plantar
fasciitis, and Mr. Wollman did not address the absence of these conditions in his October 21,
2005 request for relief.
15
E. Mr. Wollman’s Correspondence with the USAPDA
On November 28, 2005, Mr. Wollman submitted a request for a new PEB to the
Commander of the USAPDA.22 AR 221-31. Mr. Wollman stated that throughout the
PEB and rebuttal process, the PEB told him that he needed to provide evidence to prove
that the condition did not exist prior to military service or that it was aggravated by
military service. AR 221. He argued that, pursuant to DoDI 1332.38, the burden was on
the Army to rebut the presumption of service-incurrence and aggravation and that the
PEB failed to share the basis of its diagnosis of EPTS during the Formal PEB and in the
written proceedings, which is required by DoDI 1332.38. AR 222. He stressed that
thorough civilian and military medical examinations from 1994 through 2001 had failed
to confirm a diagnosis of AS. He noted that his AS diagnosis was not conclusively made
until January 2005, when X-rays showed that the disease was still in an early stage. AR
221.
Mr. Wollman also argued that the PEB failed to provide specific, accepted medical
principles that were the basis of finding his disease was not service-aggravated, as
required by DoDI 1332.38 ¶ E3.P1.3.4.1.3.1. AR 222. As such, he argued that he was
denied those presumptions as well as a fair hearing. AR 222. He stated that the lack of
22
The USAPDA reviews PEB actions, including but not limited to general officers who are
found unfit and Formal PEBs with which the soldier non-concurs. The purpose of USAPDA
review is to ensure, among other things, that (1) the soldier received a full and fair hearing; (2)
the proceedings of the MEB and PEB were conducted according to governing regulations; (3) the
MEB and PEB findings and recommendations were just, equitable, and consistent with the facts
and governing law; and (4) due consideration was given to the facts and requests contained in
any rebuttal; and (5) records of the case are accurate and complete. See Army Reg. 635-40 ¶ 422(b).
16
documentation presented by the PEB fatally impaired his ability to rebut its findings or
for another review authority to properly adjudicate his case. AR 222. He closed by
requesting written documentation on the specific accepted medical principles used by the
PEB to overcome the presumption of service-connection or aggravation. AR 222. He
also requested the right to refute the medical principles in person at a new formal board.
AR 222.23
On November 30, 2005, the Chief of the Operations Division for USAPDA (“the
Chief”) denied Mr. Wollman’s request for a new Formal PEB. AR 195. The denial
stated that after reviewing his request, along with its enclosures and the entire case file,
the review resulted in no change to the PEB’s findings. AR 195. As to the EPTS
finding, the Chief noted that Mr. Wollman had not consistently argued that his disease
was service-incurred. Specifically, the Chief stated that Mr. Wollman had initially
concurred with the MEB’s finding of EPTS, then rebutted that finding before the
Informal PEB, then accepted the finding in his presentation to the Formal PEB and in his
October 21, 2005 rebuttal to the PEB.24 AR 195. The Chief also quoted part of a
sentence from the Mirkin article, stating that there “‘was overwhelming evidence that
23
Mr. Wollman did not, however, object to the absence of plantar fasciitis or wrist fracture from
the list of disqualifying conditions in the PEB decision. AR 221-22.
24
The court notes that, contrary to the USAPDA’s statement, nothing in Mr. Wollman’s October
21, 2005 rebuttal suggests that he conceded that his disease was EPTS. AR 233. To the
contrary, Mr. Wollman contested the EPTS finding when he referenced the theory, espoused by
Dr. Mirkin, that AS is triggered in people with the HLA-B27 gene following an infection. AR
233. Mr. Wollman argued to the USAPDA that although he did not expressly challenge the
EPTS finding to the Formal PEB, neither did he concede that his AS was EPTS. AR 141.
17
[Mr. Wollman had] inherited [his] susceptibility’ to this disease, but there is no evidence
that this disease started by any infection during [his] recent active duty period.” AR 195.
As to the question of service-aggravation, the Chief explained that Mr. Wollman’s
complaint of pain in his lower back was not associated with any trauma, either currently
or in 1995, and was consistent with his present diagnosis. AR 195. She also explained
that the natural progression of the AS condition was one of a gradual progression of
symptoms, with increasing signs of bone involvement by X-rays. AR 195. She stated
that “medical sources and literature uniformly confirm” that the progression of Mr.
Wollman’s AS was normal for the condition. AR 195. Although she acknowledged that
the PEB had not specifically cited to medical resources in its findings, the Chief asserted
that “such literature was unnecessary because of the almost universal acknowledgment
concerning the natural progression” of AS. AR 195. As such, she concluded that the
presumption of service aggravation had been overcome. AR 195.
On December 23, 2005, Mr. Wollman submitted a congressional inquiry to
Senator James Inhofe, in which he presented substantially similar arguments as he had
presented to the USAPDA. AR 188-20. He added that Army Reg. 635-40 provided for
the compensation of soldiers with preexisting conditions who are allowed to serve with
the condition after the condition had, or should have been, diagnosed. AR 192. He
argued to the Senator that if the PEB found that he had the condition while in ROTC,
then it had a regulatory duty to compensate him. AR 192.
On January 11, 2006, the Deputy Commander from USAPDA replied to the
Senator. AR 186-87. He provided a short history of the case, and stated that the Formal
18
PEB, following a complete and thorough review of the case, upheld the findings of the
Informal PEB based on the testimony of Mr. Wollman, arguments from his attorney, and
the medical evidence presented. AR 186. He noted that USAPDA upheld the Formal
PEB decision. AR 186. He explained that Mr. Wollman’s comments regarding Army
Reg. 635-40 were misplaced, because it applies to conditions that are otherwise
disqualifying but have been fully treated (in that case, if the military still takes no action
to separate the soldier, then the soldier’s condition is compensable). AR 187. The
Deputy Commander explained that in Mr. Wollman’s case, however, Mr. Wollman’s
back condition was only recently found to not meet medical retention standards and that,
after a reasonable period passed in attempting to correct the condition, the separation
action commenced as required. AR 187. The Deputy Commander then stated that Mr.
Wollman was not entitled to another formal hearing, as Mr. Wollman was fully counseled
and adequately notified of the basis of the PEB’s findings and recommendations. AR
187. Although he did not provide a specific citation, the Deputy Commander stated that
the findings were fully supported by established medical literature. AR 187.
Also on January 11, 2006, Mr. Wollman requested that the USAPDA again review
the physical evaluation process that occurred from July 2005 through October 2005. AR
136-85. Mr. Wollman argued that he never received a medical waiver to join the Army
and that his medical evaluation in 1995 found that he was medically qualified for
retention and for appointment to a combat arms assignment. AR 136-37. As such, he
claimed that the PEB’s determination that his condition was EPTS was based upon
erroneous information (i.e., a non-existent entry waiver) and that it failed to follow DoD
19
standards for determinations of conditions that are EPTS.25 AR 136. He stated that
under DoD guidance, there must be clear and unmistakable evidence that the disease or
injury, or the underlying condition producing the disease or injury, existed prior to the
individual’s entry into military service, AR 137, and that the PEB completely ignored the
overwhelming evidence that indicated that his AS manifested some years after his entry
onto active duty. AR 136. Although Mr. Wollman conceded that he had signed the MEB
form acknowledging that his condition was EPTS, he claimed that he did so assuming
that he would have a subsequent opportunity to present facts rebutting that finding. AR
141.
The plaintiff also stated that even if his condition was EPTS, there was substantial
medical documentation that his military service aggravated his condition. AR 136.
Specifically, he argued that his condition was aggravated by either incurrence of an
intestinal disease in Iraq, or by the physically demanding nature of military service.26 He
claimed that under Army Reg. 635-40, even if the PEB continued to insist that his
condition was EPTS, and was not aggravated by military service, he was still due
25
Mr. Wollman’s request for review did not take issue with the Army’s decision not to rate him
for either his wrist fracture or history of plantar fasciitis. AR 221-22.
26
In his request for review, Mr. Wollman cited, among other medical sources, Michael M. Ward,
et. al., Risk Factors for Functional Limitations in Patients with Long-Standing Ankylosing
Spondylitis, 53 Arthritis & Rheumatism (No. 5) 710 (2005) (functional limitations in patients
with AS for 20 years are greater among those with a history of more physically demanding jobs).
AR 142-49.
20
disability compensation because he was allowed to enter onto active duty with a
condition that should have diagnosed and deemed disqualifying.27 AR 136.
He also argued that service members must be granted presumptions of fitness and
service-aggravation for their disabilities, and that PEBs must use and document the
medical principles relied upon to overcome these presumptions. AR 138-39 (citing DoDI
1332.38). He then demanded that the USAPDA produce the medical sources and
literature supporting its opinion, and claimed that the USAPDA’s failure to offer these
sources prevented him from producing medical sources to rebut the USAPDA’s
contention that there is a uniform medical opinion concerning the natural progression of
AS. AR 139.
On January 26, 2006, the USAPDA denied Mr. Wollman’s request for review,
stating that USAPDA had again reviewed his entire case file, and that although the PEB
erroneously stated that Mr. Wollman received a medical waiver to enter the military, the
PEB did not consider the waiver to have invoked a different standard regarding the
presumption of service-aggravation found in DoDI 1332.38.28 AR 134. The USAPDA
also noted that it had not considered the waiver in its review of the PEB’s finding, nor
27
Army Reg. 635-40 ¶ B-10(c) states “Hereditary, congenital and other EPTS conditions
frequently become unfitting through natural progression and should not be assigned a disability
rating unless service aggravated complications are clearly documented or unless a soldier has
been permitted to continue on active duty after such a condition, known to be progressive, was
diagnosed or should have been diagnosed.”
28
DoDI 1332.38 ¶ E3.P4.5.5 states that members who are determined unfit for service due to a
condition for which the member received a waiver upon entry into service are not entitled to
disability separation or retired pay unless service permanently aggravates the condition or
hastens its rate of progression.
21
had the USAPDA cited to the waiver in its November 30, 2005 response to Mr.
Wollman’s initial appeal. AR 134.
After reiterating elements of the USAPDA’s November 30, 2005 letter, the Chief
stated that any preliminary confusion by prior medical reviews or initial inaccurate
diagnoses were overcome by the present universally-accepted diagnosis of AS. AR 134.
She also explained that the course of AS varies among patients and that there may be
different natural progressions for different people, and that the failure of AS to follow a
single course did not mean that there was an unnatural progression of AS. AR 134. She
stated that for most diseases or medical conditions, one or several courses are seen more
frequently than others, and that in Mr. Wollman’s case, the symptoms’ progression and
diagnostic confirmation supports the PEB’s conclusion that the AS began prior to service.
AR 134. She also included a medical reference in support of the USAPDA’s position.
AR 134 (citing “Rheumatology, 2nd ed. Eds. John Klippel and Paul Dieppe. Volume 2:
16.14.1 thru 6.19.10. Mosby”) (“Rheumatology”).29
Although she did not address the discrepancy between the MEB and PEB findings
concerning service aggravation, the Chief stated that the PEB finding was supported
because “nothing in [Mr. Wollman’s] duty history overcomes the conclusion that the
natural course (and variations) of [Mr. Wollman’s] condition can account for [the PEB’s]
medical findings.” AR 135. She also suggested that the condition may be more disabling
29
Pursuant to this court’s order, on December 19, 2012 the government supplemented the
administrative record with a copy of this treatise. See ECF No. 25. The government clarified
that the treatise cited to Mr. Wollman by the USAPDA should have read, “6.14.1 through
6.19.10.”
22
in heavy physical laborers because laborers make more use of the spine in their jobs, not
because the work caused or unduly accelerated their condition. AR 135. She also stated
that exercise, except in rare circumstances, was important in a treatment program. AR
135. She recognized that his comments about pain with increased activity were likely
accurate, but that such increased pain, with increased activity, was not abnormal and did
not represent a permanent aggravation. AR 135.
Lastly, the Chief stated that Mr. Wollman’s reliance on AR 635-40 was misplaced
because the provision only applies when the Army fails to separate an unfit service
member after treatment for an unfitting condition is unsuccessful. She stated that in Mr.
Wollman’s case, his AS had only recently been found not to meet retention standards and
that, after a reasonable time had passed in which the Army attempted to correct the
condition, the separation action was initiated as required. AR 135.
F. The Dominguez Letter
On January 30, 2006, Lieutenant Colonel Marie Dominguez (“Dr. Dominguez”),
the Division Surgeon from Mr. Wollman’s unit, sent a memorandum to the President of
the PEB requesting that his “PEB be withdrawn and re-submitted with a comprehensive
and factual Narrative Summary of his disease process and evaluation.”30 AR 129-30.
The request stated that the PEB had considered an incomplete medical history and
included factual errors that, in Dr. Dominguez’s opinion, were undoubtedly prejudicial to
a fair and unbiased hearing. AR 129. Specifically, Dr. Dominguez asserted that no
30
Dr. Dominguez sent the letter through Colonel Todd Hess, who was one of the medical
officers who signed Mr. Wollman’s MEB report. AR 130.
23
entry-waiver was required or given for Mr. Wollman’s AS because detailed examinations
found that no disease processes were present when he entered service. She claimed that
although Mr. Wollman signed his MEB form that stated his AS was EPTS, Mr. Wollman
had done so with a misunderstanding of the term “waiver” and only after his request to
change the wording on the MEB form had been denied. AR 129. The letter also stated
that the narrative summary, which was written in preparation for the MEB, did not
include the comprehensive clinical evaluations that Mr. Wollman received in ROTC as
part of his evaluation for entry into the service, which specifically found no evidence of
arthritis or disease. AR 129. Dr. Dominguez asserted that these evaluations were
detailed in scope, because Mr. Wollman was known to be positive for the HLA B-27
antigen, which is sometimes associated with arthritic processes. AR 129.
Dr. Dominguez also wrote that Mr. Wollman was a victim of poor representation,
arguing that Mr. Wollman was stationed in Germany, which did not have an attorney
trained to represent soldiers in matters of disability processing, and that the first time Mr.
Wollman had legal representation was at his Formal PEB hearing. AR 129. She also
stated that, at that hearing, Mr. Wollman’s attorney (1) failed to identify that detailed
medical evaluations were completed prior to Mr. Wollman’s commissioning, which
found him fit and without any disqualifying condition; (2) failed to state that no waiver
was required, and that the waiver did not exist; and (3) allowed the proceedings to be
sidetracked by theoretical discussions on the etiology of AS. AR 129.
The letter concluded by stating that, “[p]erhaps through retrospection, we could
say that the back pain he experienced in his earlier years was attributable to his disease,
24
but this is speculation.” AR 130. She noted that at least four separate physicians,
including a rheumatologist, evaluated Mr. Wollman prior to entry into the service and
found no evidence of an unfitting condition, let alone clear and unmistakable evidence.31
AR 130. On February 3, 2006, Dr. Dominguez’s letter was passed to Army Human
Resources Command by Major General Robinson, who was Mr. Wollman’s Division
Commander at the time. AR 131-32.
Apparently in response to this memorandum, Dr. David Armitage, from the Walter
Reed Army Medical Center, sent an email to the Deputy Commander of the USAPDA to
explain that the USAPDA had already reviewed Dr. Dominguez’s concerns. AR 122.
Dr. Armitage stated that the issues raised had already been considered and that the
USAPDA recognized that the file contained no waiver and explained that the absence of
a waiver did not alter the adjudication of the case. AR 122. Dr. Armitage also stated
that, even absent a waiver, the PEB’s finding that Mr. Wollman was unfit because of a
medical condition that had its onset prior to entry was supportable, even though it was not
fully diagnosed at entry. AR 122. Dr. Armitage further stated that the referenced records
in Dr. Dominguez’s letter already were provided to the USAPDA by Mr. Wollman and
were given due consideration in the review process. AR 122.
31
Dr. Dominguez may have been referring to the definition for EPTS found in DoD 6015.1-M ¶
P5.1.23 (“A term used to signify there is clear and unmistakable evidence that the disease or
injury, or the underlying condition producing the disease or injury, existed prior to the
individual's entry into military service.”). The court addresses the proper standard of evidence
for rebutting the presumptions of service-incurrence and aggravation, infra.
25
Dr. Armitage explained that “the mere failure or inability to diagnose a medical
condition in the past does not mean that the condition–later correctly diagnosed–was not
in an early phase of its existence. Many medical conditions develop gradually over time
and are obscured from a definitive diagnosis until time and additional symptoms or
testing later support a specific diagnosis as was the case [with] C[aptain] Wollman.” AR
122. He further stated that “[r]etrospection in such a case is not only permissible, but
aids both the diagnostic and the adjudicative process.” AR 122.
Dr. Armitage concluded that the reasons cited by Dr. Dominguez to have the case
recalled were not justified, and that issues of that kind are managed with written addenda,
clarifying memoranda, or other documented forms of communication. AR 122. On
February 24, 2006, Mr. Wollman was discharged from the Army. AR 116-18.
G. Actions by the Army after Mr. Wollman’s Discharge
On February 20, 2007, pursuant to 10 U.S.C. § 1554, the APDRB convened to
hear Mr. Wollman’s case. AR 19. Mr. Wollman submitted a sworn statement along with
additional medical records to the APDRB. AR 21-115. These records included, inter
alia, a January 23, 2007 opinion from a rheumatologist that Mr. Wollman did not begin to
show signs of an inflammatory disease until at least 2002. AR 115. Argument was also
heard from Mr. Wollman’s representative from the American Legion. AR 21-24, 28-92.
The plaintiff raised the following issues: (1) that Mr. Wollman never signed a waiver to
join the Army, the misrepresentation of which biased the PEB and USAPDA’s findings;
(2) that the PEB erred when it did not apply the burden of proof set out by DoDI 1332.38
to show that Mr. Wollman’s condition was EPTS and was not aggravated by service; (3)
26
that Mr. Wollman was precluded from formulating a precise rebuttal to the PEB and
USAPDA because the PEB and USAPDA did not properly document, per DoDI 1332.38,
the accepted medical principles supporting their findings; and (4) that the MEB erred
when it did not address other diagnoses for the cause of Mr. Wollman’s early back pain.32
AR 21-24.
On March 9, 2007, the APDRB affirmed the findings of the October 7, 2005 PEB
and the USAPDA’s November 2, 2005 review of that decision.33 AR 19. In his decision
memorandum, the Acting Deputy Assistant Secretary for Army Review Boards stated
that, after reviewing all of the records, including Mr. Wollman’s submissions, as well as
his testimony and that of his representative, the board unanimously denied Mr.
Wollman’s request that he be medically retired from the Army.34 AR 19. The
memorandum also stated that the board had unanimously denied Mr. Wollman’s request
to find service-aggravation for his condition, and denied his request to find that his
condition was service-connected. AR 19. The Acting Deputy Assistant Secretary further
determined that Mr. Wollman had received a full and fair hearing and that the
proceedings had conformed to law and regulation. AR 19.
The plaintiff timely filed this suit in the United States Court of Federal Claims on
32
Mr. Wollman did not address the absence of a separate rating for his history of plantar fasciitis
or a wrist injury at the MEB, PEB, or USAPDA. AR 21-24.
33
The government notes that the APDRB misstated the USAPDA review date as occurring on
November 7, 2005.
34
The parties dispute whether the voting record, AR 20, reflects a unanimous vote by the
APDRB. Pl. Mot. 5. The court need not reach this question to address the merits of Mr.
Wollman’s claims.
27
February 23, 2012. Compl. at 1. Briefing was completed on October 2, 2012 and
argument was held on January 28, 2013.35
II.
DISCUSSION
A. Standard of Review
The Tucker Act provides the court with jurisdiction over “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 unliquidated damages in cases not sounding in tort.”
28 U.S.C. § 1491(a) (2006). Although the Tucker Act does not provide a substantive
right to damages from the United States, this right has been found in the Military Pay
Act, 37 U.S.C. § 204 (2006) and 10 § U.S.C. § 1201. Martinez v. United States, 333 F.3d
1295, 1315 (Fed. Cir. 2003) (37 U.S.C. § 204 is money-mandating); Fisher v. United
States, 402 F.3d 1167, 1174 (Fed. Cir. 2005) (10 U.S.C. § 1201 is money-mandating).
The Court of Federal Claims acquires jurisdiction over claims for military
disability retirement after an appropriate military board has evaluated the service
member’s entitlement to such retirement in the first instance. See Chambers v. United
35
Prior to filing his complaint with the United States Court of Federal Claims, Mr. Wollman
filed a complaint in the Eastern District of Virginia stemming from a November 2005 decision of
the Army Discharge Review Board that the board lacked authority to review whether he should
have been discharged with pay. See Wollman v. Geren, 603 F. Supp. 2d 879, 880-81 (E.D. Va.
2009) (granting government’s motion to dismiss because Army Discharge Review Board
decision was not final agency action).
Although Mr. Wollman initially requested that the Court of Federal Claims review the actions of
the Army Discharge Review Board as part of the instant litigation, the plaintiff subsequently
withdrew this argument. Pl. Reply 7. Therefore the court considers these arguments waived and
does not reach the question of whether the Army Discharge Review Board committed error.
28
States, 417 F.3d 1218, 1225 (Fed. Cir. 2005); Scarseth v. United States, 52 Fed. Cl. 458,
479-80 (2002) (claim not ripe until considered by MEB, PEB, or Army Board for
Correction of Military Records). The court’s task is limited to determining whether the
board’s decision was arbitrary, capricious, unsupported by substantial evidence, or
contrary to law.36 The substantial evidence standard is satisfied when the record reflects
“relevant evidence [sufficient for] a reasonable mind [to] accept as adequate to support a
conclusion.” Gossage v. United States, 394 F. App’x 695, 697 (Fed. Cir. 2010) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Verbeck v. United States, 89
Fed. Cl. 47, 63 (2009). The court will not engage in a reweighing of the evidence that
was before the board. Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983).
Moreover, the board is entitled to a presumption that its members acted in good faith in
executing their duties. See Van Cleave v. United States, 70 Fed. Cl. 674, 679 (2006).
Thus, as long as the APDRB followed applicable law in reaching a reasonable conclusion
36
The court applies the same deferential standard of review regardless of whether the plaintiff
seeks relief directly from a decision of a PEB, from an intermediate board authorized to fully
grant the plaintiff’s claim, or from a board of corrections for military records. Compare Barnick
v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010) (decision of Air Force Board for the
Correction of Military Records), Fisher v. United States, 402 F.3d 1167, 1184 (Fed. Cir. 2005)
(decision of Air Force Board for the Correction of Military Records), Chambers v. United States,
417 F.3d 1218, 1227 (Fed. Cir. 2005) (decision of Army Board for the Correction of Military
Records), Peoples v. United States, 101 Fed. Cl. 245, 262-63 (2011) (decision of Board for
Correction of Naval Records), and Loomis v. United States, 68 Fed. Cl. 503, 508 (2005)
(decision of Army Board for Correction of Military Records); with Bernard v. United States, 59
Fed. Cl. 497, 500-01 (2004) (decision of PEB and USAPDA) aff’d, 98 F. App’x 860 (Fed. Cir.
2004), Santiago v. United States, 71 Fed. Cl. 220, 229-30 (2006) (decision of Army PEB),
Pomory v. United States, 39 Fed. Cl. 213, 216-17 (1997) (decision of USAPDA), and Randolph
v. United States, 31 Fed. Cl. 779, 782 (1994) (decision of Navy PEB).
29
after considering the relevant evidence in the record, the court will not disturb its
decision. See Petri v. United States, 104 Fed. Cl. 537, 550 (2012).
B. Evidentiary Standards Related to the Presumptions of Service-Incurrence
and Aggravation
Before turning to the merits of the case, the court must address the appropriate
evidentiary standard for rebutting the presumptions of service-incurrence and
aggravation.37 The plaintiff contends that the Army must come forward with “clear and
unmistakable evidence” in order to rebut the presumption that a service member was
healthy upon entry. Pl. Mot. 7-8; Pl. Reply 2. In support of this proposition, Mr.
Wollman argues that that court should adopt the definition of “Existed Prior to Service”
that is listed in DoD 6015.1-M (January 1999). This manual, which is titled “Glossary of
Healthcare Terminology,” defines “Existed Prior to Service” as “signify[ing that] there is
clear and unmistakable evidence that the disease or injury, or the underlying condition
producing the disease or injury, existed prior to the individual’s entry into military
service.” Pl. Mot. 7-8. In essence, the plaintiff argues that because this instruction was
37
The government contends that the plaintiff has waived the right to dispute this standard. Def.
Reply 3. At the APDRB, the plaintiff argued, inter alia, that “[t]he PEB and USAPDA failed to
produce clear and unmistakable evidence, using well established medical principles to establish
their claim that [Mr. Wollman’s] condition existed prior to service and was not permanently
aggravated by service.” AR 17. The crux of the plaintiff’s argument was that the Army had
applied an incorrect evidentiary standard and not—as the government apparently contends—the
precise source of that evidentiary standard. This situation contrasts sharply with the case cited
by the government, Metz v. United States, 466 F.3d 991, 999 (Fed. Cir. 2006) (ineffective
assistance of counsel argument waived when not first raised before the review board), and is
instead consistent with the other case that the government cites, Conant v. OPM, 255 F.3d 1371,
1375 (Fed. Cir. 2001) (arguments consistently raised concerning breach of settlement agreement
not waived). Because the plaintiff consistently raised this issue with “sufficient specificity and
clarity” to put the APDRB on notice, id. at 1376, the court rejects the government’s argument
that Mr. Wollman waived the right to challenge the evidentiary standard in this court.
30
released after the 1996 version of DoDI 1332.38 (which applies to the instant case), it
served to raise the evidentiary standard for an EPTS finding for the entire DoD and for all
purposes. Id. The plaintiff also notes that the “clear and unmistakable evidence”
standard is consistent with the standard used by the Department of Veterans Affairs
(“VA”), as well as with 2008 changes to DoDI 1332.38. Pl. Reply 3-4.
Although the forward to DoD 6015.1-M states that the manual is mandatory and
applies to all DoD components, the court is persuaded by the government’s argument
that, absent evidence of a contrary intention of DoD, a definition appearing in a DoD
glossary should be read as limited to the purposes of its authorizing regulation, in this
case DoDI 6015.23 (December 1996) (Delivery of Healthcare at Military Treatment
Facilities). Def. Reply 3-4. Equally important, there is strong evidence that suggests that
the Army knew that it could raise the evidentiary standard for EPTS to “clear and
unmistakable,” but chose not to. Army Reg. 600-8-4, which was published in 2004,
includes a definition for EPTS that does not contain “clear and unmistakable” as part of
any evidentiary standard. Army Reg. 600-8-4 at 27. Moreover, Army Reg. 600-8-4 does
use “clear and unmistakable” in connection with overcoming the presumption that a death
is not by suicide. Army Reg. 600-8-4 ¶ B10 Rule 10.
The cited VA statute provides similarly little support to the plaintiff, as it is well
established that the VA “operates under different laws and standards and for different
purposes than the military when it comes to deciding disability entitlements.” Hinkle v.
United States, 229 Ct. Cl. 801, 804-05 (1982) (VA determinations not binding on the
court when determining claims for military disability retirement). Nor can this court
31
accept the plaintiff’s argument that a subsequently released DoD instruction, in this case
DoDI 1332.38 (October 2008), should have retroactive effect. As this court has
previously observed, “[c]oncerns about retroactivity arise when the government
endeavors to apply a new regulation to a condition that arose before the regulation was in
effect.” Poole v. United States, No. 02-454(c) 2006 WL 5625386, at *3 (Fed. Cl. July 20,
2006) (citing Kearfott v. United States, 320 F.3d 1369,1374 (Fed. Cir. 2003)). In this
case, as in Poole, the government was free to apply the regulations that were in force at
the time the plaintiff entered the DES. Id.
In sum, the court holds that DoD 6015.1-M did not raise the evidentiary standard
that applied when the Army evaluated Mr. Wollman’s claims. The court now turns to
whether the Army properly applied those standards in adjudicating Mr. Wollman’s
claims.
C. The Court Is Unable to Determine on This Record Whether the APDRB
Correctly Applied the Proper Presumptions for Service Incurrence and
Aggravation
When reviewing a motion for judgment on the administrative record under RCFC
52.1(c), the court may make factual findings based on record evidence “as if it were
conducting a trial on the record.” See Bannum, Inc. v. United States, 404 F.3d 1346,
1353-56 (Fed. Cir. 2005). Unlike a motion for summary judgment under RCFC 56, the
existence of a disputed material fact does not preclude the court from reaching a decision.
Id. at 1355. Even when the administrative record is silent as to some disputed facts, the
court may still render judgment if the agency provided an adequate discussion of the
bases of its decision. See Rebosky v. United States, 60 Fed. Cl. 305, 311-13 (2004)
32
(corrections board does not need to discuss every piece of evidence presented in its
decision).
Remanding a case may be appropriate, however, when a corrections board’s
decision is so conclusory or so lacking in discussion that the court is prevented from
determining the bases for the board’s decision. See, e.g., Deloach v. Shinseki, 20117147, 2013 WL 335945, at *9 (Fed. Cir. Jan. 30, 2013) (remand appropriate if court
cannot understand the precise basis for board action and conduct informed review);
Verbeck v. United States, 97 Fed. Cl. 443, 457 (2011) (remand appropriate where board’s
failure to discuss conflicting evidence prevented court from determining whether errors
and omissions were harmless); Santiago v. United States, 71 Fed. Cl. 220, 229 (2006)
(remand appropriate where PEB provided no rationale for not compensating servicemember’s diagnosed illness); Pomory v. United States, 39 Fed. Cl. 213, 215-16 (1997)
(discussing remand where PEB reversed MEB determination of service-aggravation
without sufficient explanation); Craft v. United States, 210 Ct. Cl. 170, 181-82 (1976)
(conclusory determinations that do not discuss any details or specify precisely what items
of evidence were considered cannot be sustained); see also Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985) (“[I]f the reviewing court simply cannot evaluate the
challenged agency action on the basis of the record before it, the proper course, except in
rare circumstances, is to remand to the agency for additional investigation or
explanation.”). Here a remand is necessary for the reasons that follow.
As discussed, supra, the presumption that a member was fit on entry applies unless
either (1) the condition was noted and recorded on entry to active duty, or (2) the disease
33
is congenital, hereditary, or genetic. In this case, there is no serious contention that Mr.
Wollman had been diagnosed with or received a waiver for AS upon entering service.
The parties do dispute, however, whether or not AS is a congenital, hereditary, or genetic
condition. If AS is a congenital, hereditary, or genetic disease—as the government
contends—then Mr. Wollman’s disease was presumptively EPTS. Moreover, the
plaintiff would bear the burden to produce clear documentary evidence that any
permanent worsening was due to his military service, rather than the natural progression
of the disease. On the other hand, if the disease is not congenital, hereditary, or genetic,
then the government would have the burden to rebut the presumption of serviceincurrence and the presumption that any permanent worsening of his disease was due to
his military service. Therefore, resolving the question of AS’s etiology is critical to
determining whether the Army properly applied its regulatory presumptions. 38
Although the court may resolve factual disputes on a motion for judgment on the
administrative record, Bannum, 404 F.3d at 1354, the record in this case is too sparse to
proceed. See Deloach v. Shinseki, 2011-7147, 2013 WL 335945, at *9 (Fed. Cir. Jan. 30,
2013) (citing Fla. Power & Light Co., 470 U.S. at 744); Adams v. Principi, 256 F.3d
1318, 1322 (Fed. Cir. 2001). Neither the record before the APDRB nor the APDRB’s
written statement clearly indicate whether—and on what basis—the MEB, PEBs or the
38
The court disagrees with the plaintiff that the government is making a post-hoc rationalization
by arguing that AS is a congenital, hereditary, or genetic disease. Pl. Reply 8 (citing Burlington
Truck Lines v. United States, 371 U.S. 156, 168-69 (1962)). The crux of the instant dispute is
whether or not the Army properly applied regulatory presumptions concerning serviceincurrence and aggravation. That a particular disease is congenital, hereditary, or genetic is a
factual question that must be answered before the reviewing court can competently consider the
Army’s treatment of Mr. Wollman’s claims.
34
USAPDA might have determined AS to be a congenital, hereditary, or genetic
condition.39 Indeed, the court cannot say, based on the record before the court, that such
a conclusion would have been supported by substantial evidence. The medical article
submitted by Mr. Wollman as part of his rebuttal does not expressly state that AS is a
congenital, hereditary, or genetic disease. AR 195. To the contrary, the article states that
there is “overwhelming evidence that [AS patients] inherited [their] susceptibility from
[their] parents and . . . got the condition from an infection.” AR 275 (underline
provided). It is not clear to the court that “genetic susceptibility,” alone, is sufficient to
establish a “genetic disease” for the purpose of applying the disability presumptions. In
this connection, the medical treatise to which the USAPDA eventually cited,
Rheumatology, states that the etiology of AS is unclear.40 Further, the court lacks the
expertise to conclude—as the government invites—that AS is similar to the spinal
diseases listed as “congenital” in DOD 1332.38.41 Def. Mot. 28. The evidence in the
39
The discussion of service-aggravation in the USAPDA’s January 26, 2006 letter to Mr.
Wollman suggests that the USAPDA had assumed that Mr. Wollman’s disease was congenital,
hereditary, or genetic. Specifically, the USAPDA stated that “nothing in [Mr. Wollman’s] duty
history . . . overcomes the conclusion that the natural course (and variations) of [his] condition
can account for the medical findings.” AR 135. The court understands this statement as
meaning that the USAPDA had shifted the burden of proving service-aggravation to Mr.
Wollman. As discussed at length, supra, DoDI 1332.38 ¶¶ E3.P4.5.2.2.2, E3.P4.5.2.3 places the
burden on the government to rebut the presumption of service-aggravation, with the narrow
exception of congenital, hereditary, or genetic diseases.
40
“As in other diseases where the etiology is not clearly defined, the diagnosis of AS is based on
clinical (including radiographic) features.” AR Supp. at 16.3 (emphasis added). Accord
Dorland's Illustrated Medical Dictionary, 1779 (31st ed. 2007) (stating AS “is a systemic illness
of unknown etiology”).
41
The court notes that the record does not demonstrate that AS is a disease existing at, and
usually before, birth. See Dorland's Illustrated Medical Dictionary 410 (31st ed. 2007) (defining
35
current record is simply not sufficient to support the government’s claim that AS is
“hereditary in nature.” Def. Reply 4 n.3.
Understanding the etiology of a disease, for the reasons discussed above, is critical
to properly applying the presumptions of service-incurrence and aggravation. Without a
record that meaningfully addresses this question, the court will not speculate as to that
etiology. In this connection, the court notes that this is not the first time that the
unresolved etiology of a medical condition or proof of its existence prior to service has
been at issue in a disability case. See, e.g., Lipp v. United States, 181 Ct. Cl. 355, 361
(1967) (multiple sclerosis); Reese v. United States, 180 Ct. Cl. 932, 942 (1967) (hip
injury); Siegel v. United States, 148 Ct. Cl. 420, 428 (1960) (syringomyelia); Finn v.
Shinseki, 11-1835, 2012 WL 2476799, at *5-6 (Vet. App. June 29, 2012) (multiple
myeloma). Indeed, in Lowe v. Derwinski, 2 Vet. App. 495, 498-99 (1992), the United
States Court of Veterans Appeals held that, in the absence of contrary evidence or
medical treatises, the Board of Veterans Appeals failed to demonstrate that AS was a
genetic disease.42
congenital disease). For example, the treatise on which the government relies, Rheumatology,
indicates that clinical manifestations usually begin in late adolescence or early adulthood, and
that only a small subset of patients have onset before age 16. Rheumatology at 16.2.
42
Notably, the plaintiff’s physicians in Lowe acknowledged that, “although ankylosing
spondylitis is associated with genetic predisposition, it is well known that it is initiated by
external stimuli such as infection and/or trauma.” Id. at 498 (internal quotations omitted).
36
It is for these reasons that, the court finds that a remand to the APDRB to address
the issue of etiology is proper.43 On remand, the APDRB must determine whether AS
can be properly characterized as a congenital, hereditary, or genetic disease and, if so, the
basis for that conclusion. If the APDRB concludes that “genetic predisposition” or
“susceptibility” is not synonymous with a genetic disease, then the APDRB will need to
carry its burden of showing that Mr. Wollman’s AS was EPTS and that any worsening of
his disease was not due to military service. Should this analysis prove necessary, the
board should also address (1) the undisputed fact that the plaintiff continued to pass his
Army Physical Fitness Tests until at least October 24, 2002; and (2) that the plaintiff’s
military physicians concluded that Mr. Wollman’s X-ray, CT, and MRI results did not
indicate that he had contracted AS until January 2005. In addition, Mr. Wollman should
be provided an opportunity to respond to the board’s findings. To the extent that the
APDRB primarily relies on “accepted medical principles” to reach its conclusions, the
board should provide the sources or principles relied upon to Mr. Wollman prior to
rendering a final decision. 44
D. The Plaintiff Waived his Claims to Disability Stemming from his Wrist
Fracture and Plantar Fasciitis Independent of his AS
43
The court stresses that the APDRB’s decision to affirm the USAPDA’s opinion very well may
prove to be correct. At this time, however, the record is not sufficiently developed to determine
the basis and exact justification for the APDRB’s decision.
44
Because of the remand, the plaintiff’s objections to the delay in citing to Rheumatology and to
the MEB and PEB’s prior error regarding receipt of a “waiver” upon entering service are moot
and need not be addressed.
37
The government contends that Mr. Wollman waived any claims regarding his
plantar fasciitis and his wrist disability separate from his AS because he did not present
these claims to the APDRB. Def. Mot. 20. In response, the plaintiff argues that he
preserved those claims because the record before the APDRB included documents from
the evaluation boards and correspondence with Senator Inhofe that had mentioned these
conditions. Further, the plaintiff notes that, in his arguments to the APDRB, he stated
that he was suffering from reactive arthritis manifested by inflammation and arthritic
symptoms of the wrists. Pl. Mot. 4-5; Pl. Reply 8.
The court concludes that the plaintiff’s mere reference to these conditions did
constitute proper challenges to adverse administrative action. Each decision letter from
the Informal PEB, Formal PEB, and the voluminous correspondence with the USAPDA
put Mr. Wollman on notice that the Army did not intend to grant a disability retirement
for these conditions. See Metz v. United States, 466 F.3d 991, 999 (Fed. Cir. 2006). Nor
can the court reasonably conclude that vague references in the record submitted to the
APDRB regarding his plantar fasciitis or a prior wrist injury were sufficiently specific,
clear, or timely to put the APDRB on notice that it should consider rating these
conditions. See Conant v. OPM, 255 F.3d 1371, 1375 (Fed. Cir. 2001). Therefore, the
court holds that Mr. Wollman waived any argument he might have had for claims related
to his plantar fasciitis or a prior wrist injury independent of his claim for AS. Murakami
v. United States, 398 F.3d 1342, 1354 (Fed. Cir. 2005).
E. The Plaintiff Is not Entitled to Be Restored to Active Duty
38
The court also denies Mr. Wollman’s request to be restored to active duty and to
receive active-duty pay during for the period of alleged wrongful government action.
Compl. at 14. Mr. Wollman appears to be invoking the constructive service doctrine,
under which “military personnel who have been illegally or improperly separated from
service are deemed to have continued in active service until their legal separation.”
Barnick v. United States, 591 F.3d 1372, 1379 (Fed. Cir. 2010) (citing Christian v.
United States, 337 F.3d 1338, 1347 (Fed. Cir. 2003)). In Barnick, the Federal Circuit
expressly held that for this doctrine to apply, the plaintiff must allege that he or she
would have remained in the military on active duty but for some wrongful act by the
government. Id. The court in Barnick further held that the constructive service doctrine
is not applied in instances where the plaintiff seeks to be “retained on active duty merely
for disability evaluation.” Id.
At oral argument, counsel for Mr. Wollman asserted that Barnick does not apply
because unlike the plaintiff in Barnick, who was a member of the Air Force reserves, Mr.
Wollman was an active duty Captain at the time of his discharge. In a recently decided
case applying Barnick, this court rejected that application of Barnick turned on the status
of the service member at the time of discharge. Peterson v. United States, 104 Fed. Cl.
196, 206 (2012). As the court noted in Peterson, “[s]everal factors, only one of which
included the service member’s status, informed the Barnick court’s determination that the
constructive service doctrine was inapplicable.” Id. at 207. Among those factors were
whether the member was arguing that, but for the wrongful act of the agency, he would
have continued on active duty. Id. In this case, the government correctly points out that
39
Mr. Wollman has not alleged that he was fit for duty at the date of his discharge.
Furthermore, the plaintiff’s prayer for relief seeks “[r]estoration to active duty until such
time as [the plaintiff’s] physical disability case is finally decided . . .” Because the
plaintiff fails to allege that he could remain on active duty after receipt of a proper
disability evaluation, he cannot maintain a claim for back pay under 37 U.S.C. § 204 and
this court may not grant his ancillary request to be restored to active duty. Rather, as the
Federal Circuit explained in Barnick, if Mr. Wollman prevails his exclusive remedy will
be for disability payments. Id. at 1380.
III.
CONCLUSION
For the foregoing reasons, the government’s motion for judgment upon the
administrative record is GRANTED-IN-PART AND DENIED-IN-PART, and the
plaintiff’s cross-motion for judgment on the administrative record is DENIED-INPART. Pursuant to its authority under 28 U.S.C. § 1491(a)(2), this case is remanded for
90 days to the APDRB for further proceedings consistent with the order. The
government shall provide the court with a copy of the decision on remand within 10 days
of the decision. The plaintiff shall notify the court within 30 days after receipt of the
APDRB’s decision on remand as to whether he will accept or object to the APDRB’s
decision. If the APDRB requires additional time, the government should file a report
setting forth the status of the APDRB proceeding at the conclusion of the 90 day period
or, not later than May 8, 2013.
IT IS SO ORDERED.
40
s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge
41
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