Sissel v. Esper ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON L. SISSEL,
Plaintiff,
v. No. 19-cv-356 (FYP)
RYAN D. MCCARTHY,
Defendant.
MEMORANDUM OPINION
Plaintiff Jason L. Sissel is a veteran of the United States Armed Forces; he served in the
U.S. Marine Corps from 1994 to 1999, and in the U.S. Army from 1999 until 2005. Sissel was
medically separated with an honorable discharge based on injuries that he sustained in a motor-
vehicle accident while deployed in Iraq during Operation Iraqi Freedom. In reviewing the terms
of Sissel’s separation, the Department of Defense Physical Disability Board of Review
(“PDBR”) twice determined that his injuries rendered him unfit for service and assigned him a
disability rating of 20%. This rating falls short of the 30% disability rating needed for a soldier
to be eligible for medical retirement. Sissel argues that the PDBR’s finding that he should be
assigned a 20% disability rating was arbitrary and capricious, unsupported by substantial
evidence, and contrary to law. He asks the Court to set aside the Secretary of the Army’s
decision adopting the PDBR’s recommendation under 5 U.S.C. § 706(2)(A), and to correct
Sissel’s military records to reflect a higher disability rating.
Before this Court are the parties’ cross motions for summary judgment. For the reasons
stated below, the Court concludes that the Army’s decision was not arbitrary or capricious, was
supported by substantial evidence, and was not contrary to law. Accordingly, the Court will
grant Defendant’s Motion for Summary Judgment and will deny Plaintiff’s Motion for Summary
Judgment.
STATUTORY FRAMEWORK
Under 10 U.S.C. § 1201 et seq., the Department of Defense determines whether a
member of the military is medically fit for duty, and if not, whether that member should receive
a disability rating and compensation for his medical condition. See Chatman v. Department of
Defense, 270 F. Supp. 3d 184, 185 (D.D.C. 2017) (citing 10 U.S.C. §§ 1201–22, 1552–59).
Active duty service members may retire with pay if they are determined to be “unfit to perform
the[ir] duties . . . because of physical disability incurred while entitled to basic pay.” 10 U.S.C.
§ 1201(a). A service member must receive a disability rating of “at least 30 percent under the
standard schedule of rating disabilities” to receive disability retirement. Id. § 1201(b)(3)(B). If a
service member’s disability is rated below 30%, he or she “may be separated from the member’s
armed force, with severance pay,” but is not eligible for disability retirement. Id. § 1203(a).
The Army uses the Physical Disability Evaluation System (“DES”) to evaluate the nature
and extent of service members’ disabilities. See Army Regulation 635-40, ¶ 1-1. At the outset,
an Army physician examines the service member to determine whether he or she is qualified to
perform his or her duties. Id., ¶ 4-10. If the physician concludes that the member is not
medically qualified, the member is referred to the Medical Evaluation Board (“MEB”). Id., ¶ 4-
7, 10. The MEB determines if the soldier’s “medical condition(s) meet medical retention
standards” which are described in Army Regulation 40-501. 1 Id., ¶ 4-7. If the MEB determines
1
Army Regulation 40-501 is a detailed regulation that describes the medical retention standards for varying
conditions and body parts. A solider fails to meet medical retention standards when the condition “[s]ignificantly
limit[s] or interfere[s] with the Soldier’s performance of their duties” or “[r]estrict[s] performance of any of the
profile functional activities listed in Section 4 of the DA Form 3349.” See Army Regulation 40-501, ¶ 3-1; see also
ECF No. 36-2 (Joint Appendix (“AR”)) at 9 (Memorandum from ARBA Medical Advisor, Dr. Holly Kibble)
(stating that conditions are judged under the medical retention standard based on the “impact of the condition on the
ability of the solider to perform his or her duties.”).
2
that the solider does not meet necessary retention standards, it will refer the solider to the
Physical Evaluation Board (“PEB”) for a fitness determination. See Army Regulation 635-40, ¶
4-12(f).
An informal PEB first considers each case. Id., ¶ 4-22. The PEB conducts a “more
thorough investigation into the nature and permanency of the servicemember’s condition,”
Fulbright v. McHugh, 67 F. Supp. 3d 81, 85 (D.D.C. 2014), and determines “fitness for purposes
of Soldiers’ retention, separation or retirement for disability.” See Army Regulation 635-40, ¶ 4-
19. The PEB “conducts a documentary review of the case file” and makes a determination as to
“whether any medical conditions individually or collectively cause[] the Soldier to be unfit for
continued military Service.” Id., ¶ 4-22. “A Solider will be considered unfit when the
preponderance of evidence establishes that the Soldier, due to disability, is unable to reasonably
perform [his or her] duties.” Id., ¶ 5-1. If the PEB determines that a soldier’s conditions render
him or her unfit, the PEB applies ratings to the unfitting conditions. Id., ¶ 4-22. The PEB uses
the Veteran Affairs Schedule for Rating Disabilities (“VASRD”) 2 to assign unfitting conditions a
percentage rating. See 10 U.S.C. § 1216a(b).
After the informal PEB’s decision, a solider may demand a formal hearing. See Army
Regulation 635-40, ¶ 4-23. If the solider concurs with the findings and recommendations of the
informal PEB, thereby waiving a formal hearing, the proceedings are subsequently approved on
behalf of the Secretary of the Army and are processed for final disposition. Id., ¶ 4-22(g)(1).
Regardless of whether the solider concurs with the PEB’s finding, after the final disposition, a
2
The VASRD contains a list of codes that correspond to specific disabilities. Each code is linked to a
disability range of ratings and includes instructions for determining which rating applies in a particular case. See,
e.g., 38 C.F.R. §4.71a (the schedule of ratings for musculoskeletal disabilities).
3
service member may challenge the determination by appealing to the PDBR. 3 See 10 U.S.C.
§ 1554. The PDBR reviews the PEB’s decision, the evidentiary record, and other evidence
submitted by the soldier. Id. § 1554a(c). The PDBR then submits a recommendation to the
Secretary of the Army concerning whether to modify the disability rating and whether to
recharacterize the soldier’s discharge from a separation to a medical retirement. Id. § 1554a(d).
If the PDBR recommends any change, the Secretary of the Army may make the correction. Id.
§ 1554a(e). If the PDBR does not recommend changing the determination, then the decision is
final. Id.
BACKGROUND 4
Sissel served on active duty in the Marine Corps from November 28, 1994, until February
27, 1999. See ECF No. 36-2 (Joint Appendix (“AR”)), at 540 (Certificate of Discharge from
Active Duty, October 24, 2005). Sissel subsequently enlisted in the Army as a Motor Transport
Operator on April 8, 1999. AR 469 (Certificate of Discharge from Active Duty, October 24,
2005). He was deployed to Iraq between February and September 2003. Id. During his
deployment, Sissel was involved in a motor-vehicle accident on June 6, 2003. AR 394
(Correspondence regarding Mr. Sissel’s Motor Vehicle Accident, June 14, 2005). The accident
caused Sissel to sustain injuries to his back and to his right leg. See id. Specifically, Sissel was
diagnosed with “severe degenerative disc disease at L5-S1 with radicular symptoms into the leg
as well as severe low back pain.” AR 403 (Dr. Knetsche Evaluation, June 11, 2004).
Within two weeks of the accident, Sissel experienced increasing back pain and right-leg
numbness; he was unable to walk or get out of bed. See AR 49 (Medical Board Summary,
3
Congress created the PDBR in 2008 to address the disparities in disability ratings issued by the military
departments in the DOD and the VA. See Adams v. United States, 117 Fed. Cl. 628, 665–70 (Fed. Cl. 2014).
4
Materials in this case were sealed because they concerned medical records. Any information included in
this opinion is hereby unsealed.
4
March 31, 2005). 5 Despite undergoing a spinal fusion in December 2003, Sissel still had leg
pain and weakness, as well as significant back pain. AR 50; AR 59 (Evaluation of Dr. Knetsche,
May 14, 2004). During an August 12, 2004, neurosurgery examination, Sissel’s right-leg
strength showed a weakness of 5-/5 in the right hamstring, which is below normal strength. AR
444 (Neurosurgery Examination). During a February 2, 2005, neurosurgery examination, Sissel
reported intermittent right-leg pain, as well as significant back pain; and the examiner concluded
that Sissel was “unable to run or do sit ups,” has difficulty “lifting and bending,” and that he was
“non-deployable because he can’t carry . . . weights.” AR 60 (Medical Evaluation Board
Summary, February 2, 2005). A March 29, 2005, Commander’s Statement notes similar
functional restrictions. AR 440 (Army Commander’s Statement, March 29, 2005) (“It is
doubtful that [Sissel] would be able to complete a forced road march of several miles with field
equipment.”). Notably, the 2005 neurosurgery examination and the Commander’s Statement do
not specifically attribute Sissel’s inability to perform certain tasks to either his back injury or his
leg injury. An additional report, a 2005 Physical Profile Restriction, notes Sissel’s inability to
perform certain activities due to his back injury. AR 438 (2005 Physical Profile Restriction)
(specifying “[n]o duties requiring bending, twisting, or stooping”).
Sissel went before the MEB on March 31, 2005. He was evaluated by Dr. Robert C.
Harvey, who found that Sissel had “tenderness to palpation in the lumbar spine associated with
paraspinous muscle spasms, a reduced range of motion in the lumbar thoracic spine, a dense
hypesthesia [numbness] of the lateral aspect of the plantar surface of the right foot and hip
flexion weakness at 5-/5 for the right hip flexor.” AR 455 (MEB Narrative Summary, March 31,
2005). 6 The MEB diagnosed Sissel with (1) degenerative disc disease of the lumbar spine; and
5
AR 49–52 contains the Medical Board Summary, dated March 31, 2005.
6
AR 454–57 contains the Medical Evaluation Board Narrative Summary, dated March 31, 2005.
5
(2) mild right-leg weakness. AR 457. Dr. Harvey opined that Sissel could not perform the
essential tasks of his military duties as a Motor Transport Operator. Id. (stating that “[h]e cannot
run; lift more than 30 pounds; stand longer than 20 minutes; or ride in tactical vehicles.”). On
April 4, 2005, the MEB found that Sissel’s back and leg conditions both “fail[ed] to meet
retention standards” before referring him to the PEB for a determination of his fitness for duty.
AR 457, 453 (MEB Proceedings, April 4, 2005).
Prior to the PEB evaluation, Sissel underwent a “Compensation and Pension”
examination by the Department of Veterans Affairs (“VA”), in support of his request for
disability benefits. See AR 66 (VA Physical Examination, May 16, 2005). 7 On May 16, 2005,
Sissel was evaluated by Dr. Edward B. Freyfogle, who diagnosed Sissel with “chronic back pain
status post degenerative disc disease L5-S1 with residual sensory changes of his right lateral
lower leg.” AR 71. On November 21, 2005, the VA rated Sissel as 20% disabled for his back
injury (lumbar spine degenerative disc disease under VASRD Code 5242), 8 AR 79 (VA Rating
Decision, November 21, 2005); and 10% disabled for his leg injury (right lower extremity
hypesthesia under VASRD Code 8599-8520). 9 Id.On June 14, 2005, the PEB convened on an informal basis to evaluate Sissel’s fitness to
serve. See generally AR 365–66, AR 381–82. 10 The PEB characterized Sissel’s condition as
“chronic back pain and right leg weakness” and noted that Sissel “can forward flex to 55 degrees
with pain.” AR 365. The PEB further noted that Sissel’s “strength in the right leg was 5/5 and
there was absent sensation to light touch and pin prick in the lateral aspect of [Sissel’s] right
7
AR 66–75 contains the Veterans Administration Physical Examination, dated May 16, 2005.
8
VASRD Code 5242 is for “degenerative disc disease other than intervertebral disc syndrome.” See 38
C.F.R. § 4.71a.
9
VASRD Code 8599-8520 includes complete, incomplete, severe, moderately severe, moderate, or mild
paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a.
10
AR 365–66 and 381–82 contain the Physical Evaluation Board Informal Proceedings, dated June 14, 2005.
6
foot.” AR 381. The PEB concluded that Sissel’s medical condition rendered him physically
unfit to perform his military duty. See id. It rated him 10% disabled under VASRD Code 5241
for both his back and leg injuries, citing “chronic back pain and right-leg weakness post vehicle
accident in Iraq which led to L5/S1 discectomy and fusion.” Id. After initially demanding a
formal PEB hearing, Sissel decided to concur with the informal PEB decision. See AR 385
(Sissel’s Concurrence with Informal PEB Proceedings, July 19, 2005). Sissel was honorably
discharged from the Army on October 24, 2005. AR 469.
More than nine years later, on December 1, 2014, Sissel applied to the PDBR for an
increase in his disability rating to 30% and for his discharge status be “re-characterized to reflect
permanent disability retirement.” See AR 36–37 (Brief in Support of PDBR Application). 11
Specifically, he asked the PDBR to assign a disability rating of 20% for his back pain, and a
separate disability rating of 10% for his leg pain, for a combined total of 30%. AR 41 (arguing
that his back condition should be rated at least 20% because he demonstrated forward flexion of
the thoracolumbar spine of greater than 30 degrees but less than 60 degrees); AR 42 (arguing that
his right-leg condition should have been separately rated and given a 10% disability rating
because the right-leg condition was a neurologic abnormality associated with his back condition
that was to be evaluated separately under an appropriate diagnostic code).
The PDBR’s scope of review is “limited to those conditions determined by the [PEB] to
be unfitting for continued military service.” AR 27 (PDBR Record of Proceedings, November
17, 2016). 12 Thus, the PDBR focused on “determining if the PEB’s approach of combining
[Sissel’s back and leg] conditions under a single rating was justified in lieu of separate ratings
[for each injury].” AR 27–28. The PDBR noted that when considering separate ratings, it must
11
AR 36–42 contains Sissel’s Brief in Support of PDBR Application, dated December 31, 2014.
12
AR 27–29 contains the PDBR Record of Proceedings, dated November 17, 2016.
7
determine if each of the “bundled condition[s]” is “reasonably justified as separately unfitting,”
and that the Board will not assign such separate ratings where “the preponderance of the
evidence” indicates that the condition “would not cause the [service] member to . . . be found
unfit because of physical disability.” Id. The PDBR recognized that the PEB had combined the
back pain and right-leg weakness as a single unfitting condition under VASRD Code 5241. Id.
The Board also understood that the VA had rated the back pain and right-leg weakness
separately. See id. After reviewing the record, the PDBR determined that a separate disability
rating for Sissel’s right leg was not justified because the leg condition would not, in itself, render
Sissel unfit for duty. AR 28–29 (stating that after “the Board deliberated if the objective findings
of [right-leg pain] in this case would impact the duty performance,” it found that “there was no
evidence in this case that motor weakness existed to any degree that could be described as
functionally impairing.”). The PDBR ultimately recommended an increase in Sissel’s disability
rating for his combined back and leg conditions to 20%. AR 29. One member of the PDBR
issued a contrary “minority opinion,” voting instead to recommend separate disability ratings of
20% for Sissel’s back and 10% for his leg, which would have resulted in a total disability rating
of 30%. AR 30 (PDBR Record of Proceedings, Minority Opinion). 13
On March 30, 2017, the Deputy Assistant Secretary of the Army (“DASA”) Review
Board accepted the PDBR’s recommendation to modify Sissel’s disability to 20% without
recharacterizing his separation. AR 25 (Memorandum from the DASA accepting the PDBR’s
13
The PDBR minority opinion stated that
[T]he listed limitations on the profile could not be separated between the back and leg conditions.
The commander’s statement additionally listed restrictions from climbing on vehicles which would
most likely be attributable to the leg condition rather than the back condition, as well as other profile
limitations which could equally apply to the back and leg conditions.
AR 30.
8
recommendation). On February 12, 2019, Sissel brought this action challenging the Army’s
decision. See ECF No. 3. On May 10, 2019, the parties jointly requested that the case be
remanded to PDBR for reconsideration of Sissel’s disability rating. See ECF No. 8. The Court
granted the parties’ request and remanded the case on May 14, 2019. See ECF No. 9.
On remand, the PDBR unanimously recommended that Sissel be assigned a total
disability rating of 20% for his combined conditions and did not recommend a separate rating for
Sissel’s leg injury. AR 16 (PDBR Proceedings, September 25, 2019). 14 In the PDBR’s “de novo
reconsideration” of Sissel’s disability rating, the PDBR noted first that the PEB’s decision to
combine Sissel’s back and leg injuries under a single disability rating reflected the PEB’s
judgment that “the constellation of conditions” rendered him unfit for duty. AR 14. The Board
then reaffirmed that it could consider separate disability ratings for each of Sissel’s conditions
only if each condition was “reasonably justified as separately unfitting.” Id. Thereafter, the
Board proceeded to review Sissel’s medical history, including information from his service
treatment record, PEB evaluation, the MEB narrative summary, the MEB examination, a 2004
neurosurgery examination, a 2005 neurosurgery examination, the 2005 Commander’s Statement,
the 2005 Profile Restriction, and the VA examination. See AR 14–16. Notably, the PDBR
considered and discussed ample evidence related to the condition of Sissel’s leg. 15 After
considering the entire record — including evidence that the leg was at normal strength and that
Sissel walked with a normal gait — the PDBR determined that Sissel’s right-leg condition alone
14
AR 14–16 contains the PDBR Proceedings, dated September 25, 2019.
15
See, e.g., AR 14 (considering the MEB narrative summary which stated that Sissel continued to have right
leg numbness), id. (discussing the 2004 neurosurgery examination finding that right-leg strength was normal except
for hamstring and gastrocnemius muscle strength which was graded 5/-5), id. (the 2005 neurosurgery examination
stating that Sissel had intermittent right-leg pain); AR 15 (the MEB examination where Sissel reported numbness in
the right foot, decreased sensation of the lateral right foot, and hip flexor strength graded at 5/-5), id. (considering
the VA examination which noted that Sissel had diminished sensation of the lateral aspect of the right-leg down to
the foot but could still walk on his heels and toes).
9
would not render him unfit for duty, and that there was no evidence that the right-leg condition
would have any impact on his duty performance. See AR 15. 16 Thus, the PDBR declined to
assign a separate disability rating for Sissel’s leg condition. AR 16. The PDBR assigned a
rating of 20% for the combined conditions of “back pain and right leg weakness.” Id.
On October 3, 2019, Dr. Holly Kibble, a medical advisor for the Army Review Boards
Agency (“ARBA”), provided an informal review of Sissel’s case, before the DASA decided
whether to adopt the PDBR’s recommendation. See AR 9 (Memorandum from ARBA Medical
Advisor). 17 Dr. Kibble acknowledged that the VA rated Sissel’s back and leg conditions
separately, while the PEB bundled the two conditions under a single diagnostic code. See AR
10, ¶ 3. 18 She noted that the PEB would be obligated to separately rate the two conditions if it
16
The PDBR fully explained its reasoning, as follows:
Panel members first considered if the back and right leg conditions, having been de-coupled from
the combined PEB adjudication, remained separately unfitting as established above. The back
condition was profiled, but the RLE [right lower extremity] condition was not, and the commander’s
statement did not specifically identify the back or RLE conditions. However, both the back and
RLE conditions were judged by the MEB to fail retention standards. The panel deliberated if the
objective findings of the RLE radiculopathy in this case would impact the duty performance of a
Motor Transport Operator. The panel opined that the decreased RLE sensation would not be
anticipated to have any impact on the CI’s duty performance and there was no evidence in the record
that it did. The slight weakness of the right hip flexion (5-/5) was noted on the MEB NARSUM
[narrative summary] examination, but the neurosurgery examination and pre-separation VA
examination (the most proximate examination to separation) showed normal RLE strength and a
normal gait. There was no performance based evidence that the RLE condition impaired the CI’s
duty performance at the time of separation. Panel members concluded the back condition was
reasonably considered unfitting at separation, but the preponderance of the evidence showed the
RLE condition would not have, on its own, caused the CI to be referred into the DES or to be found
unfit.
* * *
Panel members agreed that a 20% rating, but no higher, was justified for limitation of flexion
(greater than 30 degrees but not greater than 60 degrees) . . . While [Sissel] may have suffered
additional pain from the nerve involvement, this is subsumed under the general spine rating criteria,
which specifically states “with or without symptoms from pain (whether or not it radiates).” There
was no documentation of incapacitating episodes, which would provide for a higher rating under
the formula for intervertebral disc syndrome. After due deliberation, considering all the evidence
and mindful of VASRD § 4.3 (reasonable doubt), the panel recommends a disability rating of 20%
for the back condition, coded 5241.
AR 15–16.
17
AR 9–12 contains the Memorandum from ARBA Medical Advisor, Dr. Holly Kibble.
18
Dr. Kibble explained that
10
determined that the right-leg condition “contributed significantly to the finding of unfitness” or if
it was an “absolute stand-alone unfitting condition.” Id. Therefore, she presumed that because
PEB bundled the conditions, it did not find the right-leg weakness to be a stand-alone unfitting
condition. Id.
Dr. Kibble reviewed the relevant evidence and provided three reasons why Sissel’s right-
leg condition should not be rated separately. First, she noted that Sissel’s 2005 Profile
Restriction lists only back pain as a reason to restrict Sissel’s activities and does not list the right-
leg condition. AR 10–11, ¶ 5. Second, Sissel’s service treatment records do not support finding
the right-leg condition unfitting. See id. (noting that the post-surgery medical records do not
mention leg pain, and in disability exams, the right-leg shows mild or no functional deviation
from normal). 19 Third, Dr. Kibble noted that the Commander’s Statement listed several
activities that would be affected by both the back and right-leg conditions, including not being
able to climb on vehicles. AR 11, ¶ 6. Dr. Kibble opined that the most important restriction for
a Motor Transport Operator is not being able to climb on vehicles, but this restriction cannot be
unequivocally attributed to or even mostly attributed to a right-leg condition, because climbing
involves significant back rotation which could produce back pain. Id.
[T]he PEB function does not perfectly align with the function of the VA and the MEB. The primary
function of the PEB is fitness determination and the foundation of the PEB's decision is performance
based. . . . The PEB only rates the conditions it determines are unfitting. Therefore[,] the PEB may
not rate all of the conditions that the VA rates.
AR 10, ¶ 4.
19
Specifically, Dr. Kibble stated:
[O]bjective findings of the right leg condition show mild or no functional deviation from normal:
Motor strength is recorded as normal (5/5) or mildly decreased (5-/5) depending on which exam is
cited; deep tendon reflexes are normal; gait is normal as well as toe/heel and tandem walk.
Decreased sensation on the lateral aspect of the plantar surface would not be expected to and did not
demonstrably contribute to functional impairment.
AR 11, ¶ 5.
11
Sissel submitted comments in response to Dr. Kibble’s advisory opinion on November 1,
2019. AR 3–6. On December 9, 2019, the DASA approved the second PDBR recommendation,
assigning a 20% disability rating to Sissel’s overall condition and declining to assign a separate
rating for Sissel’s leg. AR 2 (Memorandum from the DASA). It is the agency’s adoption of the
second PDBR recommendation that is now disputed by the parties.
STANDARD OF REVIEW
I. Summary Judgment
When reviewing cross-motions for summary judgment under the APA, courts do not
apply the summary judgment standard contained in Federal Rule of Civil Procedure 56. See
Stewart v. Stackley, 251 F. Supp. 3d 138, 155 (D.D.C. 2017). Instead, “the function of the
district court is to determine whether or not . . . the evidence in the administrative record
permitted the agency to make the decision it did.” Sierra Club v. Mainella, 459 F. Supp. 2d 76,
89–90 (D.D.C. 2006) (citation omitted). Summary judgment thus serves as the mechanism for
deciding, as a matter of law, whether an agency action is supported by the administrative record
and otherwise consistent with the APA standard of review. Bloch v. Powell, 227 F. Supp. 2d 25,
31 (D.D.C. 2002) (citing Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)).
Accordingly, this Court need not and ought not engage in lengthy fact finding, since
“[g]enerally speaking, district courts reviewing agency action under the APA’s arbitrary and
capricious standard do not resolve factual issues, but operate instead as appellate courts resolving
legal questions.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996).
The court’s role in an APA action is to “determine whether or not as a matter of law the evidence
in the administrative record permitted the agency to make the decision it did.” Charter
12
Operations of Alaska v. Blank, 844 F. Supp. 2d 122, 127 (D.D.C. 2012) (quoting Occidental
Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir. 1985)).
II. Administrative Procedure Act
Under the APA, a reviewing court must “hold unlawful and set aside agency action,
findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” See 5 U.S.C. § 706(2)(A). Under this “narrow” standard of review, an
agency is required to “examine the relevant data and articulate a satisfactory explanation for its
action including a ‘rational connection between the facts found and the choice made.’” Motor
Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
Arbitrary and capricious review is “highly deferential” and “‘presumes the agency action
to be valid.’” Defs. of Wildlife & Ctr. for Biological Diversity v. Jewell, 815 F.3d 1, 9 (D.C. Cir.
2016) (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976)). It is not enough, then, that
the court would have come to a different conclusion from the agency. See State Farm, 463 U.S.
at 43. The reviewing court “is not to substitute its judgment for that of the agency,” id., nor to
“disturb the decision of an agency that has examine[d] the relevant data and articulate[d] . . . a
rational connection between the facts found and the choice made.” Americans for Safe Access v.
DEA, 706 F.3d 438, 449 (D.C. Cir. 2013) (internal quotation marks and citation omitted). A
decision that is not fully explained, moreover, may be upheld “if the agency’s path may
reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.
281, 286 (1974). Particularly when “an agency has acted in an area in which it has ‘special
expertise,’ the court must be particularly deferential to [the agency’s] determinations.” Sara Lee
13
Corp. v. Am. Bakers Ass’n Ret. Plan, 512 F. Supp. 2d 32, 37 (D.D.C. 2007) (quoting Bldg. &
Constr. Trades Dep’t, AFL–CIO v. Brock, 838 F.2d 1258, 1266 (D.C. Cir. 1988)).
In evaluating agency actions under the “arbitrary and capricious” standard, courts “must
consider whether the [agency’s] decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” Marsh v. Ore. Nat. Res. Council, 490 U.S.
360, 378 (1989) (citation and internal quotation marks omitted). When an agency “fail[s] to
provide a reasoned explanation, or where the record belies the agency’s conclusion, [the court]
must undo its action.” BellSouth Corp. v. FCC, 162 F.3d 1215, 1222 (D.C. Cir. 1999).
Moreover, when review of an agency’s action is “bound up with a record-based factual
conclusion,” the reviewing court must determine whether that conclusion “is supported by
substantial evidence.” Dickinson v. Zurko, 527 U.S. 150, 164 (1999) (internal quotation marks
omitted); see also Kappos v. Hyatt, 566 U.S. 431, 436 (2012) (affirming review of “factual
findings under the APA’s deferential ‘substantial evidence’ standard”). “Substantial-evidence
review is highly deferential to the agency fact-finder, requiring only ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Rossello ex rel. Rossello v.
Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008) (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988)). An agency decision “may be supported by substantial evidence even though a plausible
interpretation of the evidence would support a contrary view.” Morall v. DEA, 412 F.3d 165,
176 (D.C. Cir. 2005). A decision will be reversed for lack of substantial evidence “‘only when
the record is so compelling that no reasonable factfinder could fail to find to the contrary. ’”
Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697, 704 (D.C. Cir. 2009) (quoting Highlands
Hosp Corp. v. NLRB, 508 F.3d 28, 31 (D.C. Cir. 2007)).
14
Notably, “an agency’s refusal to consider evidence bearing on the issue before it
constitutes arbitrary agency action within the meaning of § 706,” as does ignoring “evidence
contradicting its position.” Butte County v. Hogan, 613 F.3d 190, 194 (D.C. Cir. 2010).
Consequently, “the substantial evidence test and the arbitrary or capricious test are one and the
same.” Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys., 745
F.2d 677, 683 (D.C. Cir. 1984).
III. Review of Military Decisions
Decisions of military correction boards receive an “unusually deferential application of
the arbitrary and capricious standard” of the APA. Kreis v. Sec’y of Air Force, 866 F.2d 1508,
1514 (D.C. Cir. 1989); see also McDonough v. Stackley, 245 F. Supp. 3d 1, 4 (D.D.C. 2017).
Here, however, the parties disagree about whether the PDBR decision should receive the
heightened deference standard, as courts have distinguished between “military judgment
requiring military expertise,” which requires heightened deference, and the “review of the
[agency’s] application of a procedural regulation,” which only requires standard APA deference.
See Kreis v. Sec’y of Air Force , 406 F.3d 684, 686 (D.C. Cir. 2005). “[T]he exact level of
deference that this Court owes to the [PDBR’s] decision has yet to be established in our Circuit.”
Hall v. DOD, No. 19-cv-2354, 2021 WL 1026123, at *5 (D.D.C. Mar. 17, 2021). Only one case
in this jurisdiction has addressed the appropriate level of deference for the review of PDBR
decisions. See U-Ahk-Vroman-Sanchez v. DOD, No. 19-cv-3141, 2021 WL 394811, at *6
(D.D.C. Feb. 4, 2021) (finding that that the statute that governs the PDBR, 10 U.S.C. § 1554a,
does not merit heightened deference, because concerns over interference in military affairs are
not present). This Court need not determine at this time whether PDBR decisions should receive
15
a heightened level of deference because applying either standard in the instant case leads to the
same outcome.
ANALYSIS
Sissel argues that the agency’s decision should be reversed, and that he is entitled to
summary judgment because (1) the PDBR’s assignment of a 20% disability rating was not
supported by substantial evidence; (2) the PDBR’s recommendation was arbitrary and
capricious; and (3) the PDBR’s findings were not in accordance with the law. See ECF No. 37
(Plaintiff’s Motion), at 10. In response, Defendant argues that the PDBR’s recommendation,
which was adopted by the Secretary of the Army, articulated a rational connection between the
facts found and the choice made; is supported by substantial evidence in the administrative
record; and does not violate the law. See ECF No. 40 (Defendant’s Motion), at 17.
I. The PDBR’s Recommendation was Supported by Substantial Evidence.
Sissel first argues that the PDBR’s recommendation is unsupported by substantial
evidence because (1) it failed to consider contradictory evidence detailing right-leg weakness and
functional limitations; (2) the evidence the PDBR did consider weighed against its conclusion;
and (3) it failed to account for Sissel’s pain when assessing his right-leg condition. See Pl. Mot.
at 11.
Specifically, Sissel argues that the PDBR’s recommendation ignored evidence in every
evaluation in his record, including in the most proximate-to-separation VA evaluation, that
detailed his right-leg weakness and functional limitations. See id. at 12. Sissel contends that
every characterization of his condition and capabilities revealed right-leg weakness and
functional loss, id. at 14, and yet, the PDBR stated that “there was no performance based
evidence that the [right-leg condition] impaired [Sissel’s] duty performance.” AR 15. Sissel
16
submits a table detailing how each evaluation in the record discussed or implicated his right-leg
condition. See Pl. Mot. at 12–14. 20 According to Sissel, this evidence shows that the PDBR
performed a “cursory and inadequate review of the record,” failing to consider the evidence that
contradicted its conclusions. Id. at 14–15. Sissel further asserts that the evidence the PDBR did
consider weighs against its conclusions. Id. at 16. Sissel contends that the PDBR improperly
dismissed the 2005 Commander’s Statement and the 2005 Profile Restriction, documents that he
believes support his position. Id. at 16–17; see AR 15.
Sissel’s complaints about the sufficiency of the PDBR’s review of the evidence lack
merit. As an initial matter, the PDBR expressly cited Sissel’s treatment and evaluation records,
and discussed the information in many of the records, including the 2004 and 2005 neurosurgery
examinations; the 2005 Commander’s Statement; the 2005 Profile Restriction, and the MEB,
PEB, and VA examinations. See AR 14–16. Although Sissel claims that the PDBR’s general
statements that it considered all the records fails to prove that the PDBR in fact considered all the
relevant evidence, the agency is not required to explicitly address every bit of evidence that
Sissel considers favorable to his case. See Naimabadi v. Holder, 597 F.3d 983, 990 (9th Cir.
2010) (stating that an agency is not required to “write an exegesis on every contention”)
(citation omitted); see also Tourus Recs., Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001) (“the
core requirement is that the agency explain why it chose to do what it did.”) (citation omitted).
The PDBR’s extensive and detailed discussion of the evidence related to Sissel’s leg condition
belies Sissel’s claim that the Board ignored or failed to weigh evidence regarding the leg injury.
20
These evaluations include the 2004 Knetsche Evaluation stating that Sissel has restrictions limiting “lifting,
running, [and] sitting,” AR 63, the 2005 Commander’s Statement finding that Sissel has restrictions against
climbing on vehicles, stopping, and lifting, AR 440, the 2005 MEB Summary, stating that Sissel has “weakness at
5/-5 in the right hamstring” and that “he cannot run; lift more than 30 pounds, [or] stand longer than 20 minutes,”
AR 49, and the 2005 PEB Evaluation finding Sissel has “right leg weakness,” AR 47.
17
The relevant inquiry is whether the PDBR’s finding that the right-leg condition was not
separately unfitting was supported by substantial evidence. With respect to this finding, the
PDBR cited evidence in the record that (1) the strength in Sissel’s leg was “normal” except for
the strength in his hamstring muscle, which was rated 5-/5, AR 14, 444; (2) even though
sensation to light touch was absent in the lateral aspect of Sissel’s right foot, his reflexes were
normal, AR 14, 444 ; (3) the neurosurgery and VA examinations showed normal strength in the
leg, normal reflexes, and a normal gait while walking, AR 15, 71, 444, 455; and (4) the VA
examination stated Sissel could walk on his toes and heels, AR 15, 71. Although Sissel attempts
to rely on other evaluations that discussed how Sissel’s injuries negatively impacted his
performance, those reports did not specifically attribute his functional deficits to the condition of
his right leg, and therefore do not necessarily militate in favor of a separate rating for the leg
injury. See AR 15 (discussing how the 2005 Commander’s Statement does not specifically
identify the back or right-leg conditions as affecting duty performance and how the 2005 Profile
Restriction only lists the back condition). 21 Indeed, Dr. Kibble’s independent review of the
record revealed that Sissel’s right-leg condition was “of such mild severity that it did not
demonstrably impair function.” AR 11, ¶ 7. Thus, the PDBR’s finding relies on “such relevant
21
Sissel’s contention that the PDBR improperly dismissed the 2005 Commander’s Statement, and the 2005
Profile Restriction falls short. The PDBR found the Commander’s Statement “vague” because it did not specifically
identify whether it was Sissel’s back condition or right-leg condition that was affecting his duty performance. See
AR 440 (“It is my judgment that [Sissel] would have considerable difficulties performing some basic soldiering
skills due to his profile . . . Current profile restricts routine climbing on vehicles, stooping and lifting.”). Likewise,
the PDBR noted that the 2005 Profile Restriction only listed the back condition. See AR 14; see also AR 438
(stating that the “medical condition” is “back pain s/p back fusion surgery”). The Court agrees with the PDBR that
these pieces of evidence do not support, let alone compel, a finding that Sissel’s right-leg condition separately
rendered him unfit. Sissel insists that the Commander’s Statement and the Profile Restriction support his position
that the right-leg injury is separately unfitting because the types of restricted activities enumerated in those
documents — such as climbing, stooping, lifting, bending, twisting, and prolonged standing — necessarily implicate
the functioning of his leg. See Pl. Mot. at 17. Although Sissel’s interpretation of the evidence is certainly plausible,
the PDBR’s contrary view is not unreasonable or unsupported. See Morall, 412 F.3d at 176 (stating that a
“plausible alternative interpretation of the evidence” does not preclude an agency finding being supported by
substantial evidence).
18
evidence as a reasonable mind might accept as adequate to support a conclusion” that Sissel’s
right-leg condition is not separately unfitting. Rossello, 529 F.3d at 1185. The finding therefore
is supported by substantial evidence. 22
Finally, the parties dispute whether the PDBR adequately took into account the pain that
Sissel felt in his leg, 23 and the medication that he took to alleviate that pain. Compare Pl. Mot. at
18–19, ECF No. 39 (Plaintiff’s Reply) at 15–18 with Def. Mot. at 27. Under the VASRD
regulations, the “examination on which ratings are based” must adequately portray functional
loss, which “may be due to . . . pain.” 38 C.F.R. § 4.40. Both the Court of Appeals for Veterans
Claims and the Federal Circuit have found that under 38 C.F.R. § 4.40, pain must be considered
when assessing a disability. See Saunders v. Wilkie, 886 F.3d 1356, 1365 (Fed. Cir. 2018)
(“[P]ain often warrants separate and even additional consideration during the course of a rating a
disability.”) (citing Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (Vet. App. 1999)); see also
White v. Mattis, No. 18-2867, 2019 WL 6728448, at *5 (D.D.C. Dec. 11, 2019) (finding PDBR’s
decision unsupported by substantial evidence in part because PDBR failed to consider how
plaintiff’s pain may have affected PEB evaluation).
Sissel argues that the evaluations that showed normal leg strength and gait occurred when
he was on pain medication, and that the PDBR failed to explain whether it considered that fact.
See Pl. Mot. at 22. As an initial matter, the Court agrees with Defendant that Sissel waived this
argument because he never raised it before the PDBR. See Hatmaker v. United States, 138 Fed.
Cl. 471, 482 (Fed. Cl. 2018) (finding that a plaintiff waived his right to bring an argument before
22
Although Sissel argues that the PDBR failed to consider evaluations that detailed his right-leg weakness,
see Pl. Mot. at 12–14, the PDBR addressed every event that Sissel recounts in his tabular summary of the evidence.
See generally AR 14–16, Def. Mot. at 22–26 (providing record citations for the PDBR’s consideration of each piece
of evidence cited by Sissel).
23
Sissel points to evidence, including the 2005 Dr. Knetsche Evaluation, which notes intermittent right-leg
pain, AR 60; the MEB evaluation where Sissel explained his pain can be as high as 6/10, AR 50; and the VA
evaluation where he complained of knee pain, AR 66.
19
the court when it was not raised in his PDBR review application); Metz v. United States, 466
F.3d 991, 999 (Fed. Cir. 2006) (holding that the failure to assert an argument in either the initial
or reconsideration petition before the Board waived the ability to challenge the Board’s decision
on those grounds). Plaintiff’s application for PDBR review does not argue that his use of pain
medication affected his evaluations and that those evaluations therefore should be discounted.
See AR 36–43. Nor did Sissel make this argument when his case was remanded for
reconsideration by the PDBR, or when he filed objections to Dr. Kibble’s advisory opinion. He
thus may not raise the argument for the first time before this Court.
Even assuming, arguendo, that the issue is properly before the Court, the record reflects
that the PDBR adequately considered Sissel’s leg pain and his use of pain medication. With
respect to pain medication, the PDBR noted that the MEB stated that Sissel had a decreased
sensation of the right foot and hip flexor when he was not taking any pain medication. See AR
15 (considering the VA examination, which showed normal leg strength when taking pain
medication). As for the pain itself, the PDBR found that “while [Sissel] may have suffered
additional pain from nerve involvement, this is subsumed under the general spine rating criteria,
which specifically states ‘with or without symptoms such as pain.’” AR 16 (further stating that
“there was no documentation of incapacitating episodes, which would provide for a higher rating
under the formula for intervertebral disc syndrome.”); see also AR 14 (noting that Sissel reported
intermittent leg pain after a 2005 neurosurgery examination); AR 14–16 (considering the MEB
Summary where Sissel stated he has pain located in the “lower back and right leg” that can
become as bad as 6/10 intensity, and the VA examination where one of Sissel’s main complaints
was “bilateral knee pain”). 24 While the PDBR could have been even more explicit in detailing
24
Sissel argues that 38 C.F.R. § 4.71a cannot be used to subsume his leg pain because it applies to conditions
“with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine
20
its consideration of Sissel’s right-leg pain, any oversight may well have been due to Sissel’s
failure to bring the issue to the Board’s attention; and in any event, Sissel is not entitled to an
exhaustive review. See Dickson v. Sec’y of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995) (“an
agency’s decision” is not required to be “a model of analytic precision to survive a challenge.”).
The PDBR, therefore, adequately considered Sissel’s leg pain and use of pain medication when
finding that his leg weakness was not separately unfitting. 25
In sum, the PDBR’s determination that Sissel’s leg injury was not separately unfitting,
and that he therefore was not entitled to a separate disability rating for it, was supported by
substantial evidence. Even though Sissel presents a plausible, alternative view of the evidence,
the PDBR’s determination is adequately supported and is entitled to deference. See Morall, 412
F.3d at 176 (stating that a “plausible alternative interpretation of the evidence” does not preclude
an agency finding being supported by substantial evidence). The PDBR decision addresses the
evidence in the record in detail and explains how the agency evaluated and weighed the evidence
affected by residuals of injury or disease.” 38 C.F.R. § 4.71a (emphasis added); see Pl. Reply at 18. Therefore,
Sissel argues, only back pain can be subsumed under the spine rating criteria. Id. As an initial matter, it appears
that Sissel waived this argument by failing to raise it in his application for PDBR review. See AR 36–43. Sissel
also could have brought this point to the PDBR’s attention on remand, or in his response to Dr. Kibble’s evaluation,
but he did not do so. Sissel’s failure to preserve this argument precludes this Court’s consideration of it. The Court
notes that Sissel is challenging the PDBR’s interpretation of a regulation concerning the rating of a disability, an
area in which the PDBR has experience and expertise. The PDBR interpreted the regulation to allow Sissel’s
additional pain from nerve involvement — which presumably refers to the pain and numbness in Sissel’s leg — to
be subsumed under the general rating. See Def. Mot. at 30, AR 16. This Court is required to give appropriate
deference to the agency’s interpretation and must decline to sit as a “super correction board,” see Coburn v.
McHugh, 77 F. Supp. 3d 24, 31 (D.D.C. 2014). This holds particularly true where Sissel’s failure to raise this
argument before the PDBR deprived the agency of an opportunity to consider his position.
25
Plaintiff invokes White v. Mattis, No. 18-cv-2867, 2019 WL 6728448 (D.D.C. Dec. 11, 2019), in arguing
that the PDBR’s decision was not supported by substantial evidence. See Pl. Mot. at 11–19. In White, the PDBR’s
decision was reversed because it “failed to mention, let alone consider, [functional limitations] in its analysis.” See
White, 2019 WL 6728448, at *6. The court in White further found that the PDBR considered evidence that appeared
to undercut its ultimate conclusion and failed to account for pain medications. See id. The facts in White are
distinguishable from those in the case at bar. First, as discussed, supra, the PDBR considered all the evidence in the
record, including the allegedly contradictory evidence. Second, as discussed, supra, the PDBR did account for
Sissel’s pain medication and pain in evaluating his examinations, and Sissel waived any argument that the PDBR’s
consideration should have been more detailed or explicit because he failed to request such consideration before the
Board. Therefore, Plaintiff’s reliance on White is unavailing.
21
when reaching its conclusion. See generally AR 14–16. Because the Court may not substitute
its judgment for that of the agency, see State Farm, 463 U.S. at 43, Defendant is entitled to
summary judgment on this issue.
II. The PDBR’s Recommendation Was Not Arbitrary and Capricious
Sissel also argues that the PDBR’s disability determination was arbitrary and capricious
because the Board failed to adequately explain (1) “why it decided to attribute [Sissel’s] inability
to perform physical activities implicating his right leg use solely to his back condition;” and (2)
“why [Sissel’s] right leg pain and hypesthesia would not impair his performance.” See Pl. Mot.
at 20. Sissel contends that the PDBR analyzed whether his right-leg condition was separately
unfitting in a single paragraph, making its explanation too cursory to pass muster. Id. at 20–21.
While Sissel may have preferred a more thorough explanation of the PDBR’s decision, “nothing
more than a brief statement is necessary,” stating “why [the agency] chose to do what it did.”
Tourus Recs., Inc., 259 F.3d at 737 (internal quotation and citation omitted); see also Bowman
Transp., Inc., 419 U.S. at 286 (a decision that is not fully explained may be upheld “if the
agency’s path may be reasonably discerned.”).
The PDBR’s ultimate rating of Sissel’s disability was based on both “back pain and right
leg weakness,” see AR 16, but the PDBR also stated that Sissel’s functional limitations are
attributable to his back condition. That statement was based on evidence and was not arbitrary
and capricious. The PDBR examined the record and found that the right-leg condition “would
not have, on its own, caused [Sissel] to be . . . found unfit.” AR 15. In coming to this
conclusion, the PDBR noted the lack of evidence that Sissel’s unfitness was caused by his leg
injury. See id. The 2005 Commander’s Statement was “vague and did not specifically identify
the back or [right-leg] conditions as affecting duty performance.” AR 15. Moreover, the 2005
22
Profile Restriction only “listed the back condition” and not the leg condition. Id. The PDBR’s
conclusion is validated by Dr. Kibble, who also determined that Sissel’s functional limitations
“cannot be unequivocally endorsed to be solely or even mostly attributable to the right leg
condition.” AR 11, ¶ 6.
The PDBR also found that Sissel’s right-leg condition did not impair his performance,
relying on the MEB’s summary, which noted only a slight weakness of the right hip flexion. See
AR 15. Further, the PDBR cited the neurosurgery exams and the VA exams that showed normal
right-leg strength and a normal gait. Id. Dr. Kibble concurred with the PDBR’s assessment,
noting in her review that Sissel’s right-leg condition showed mild or no functional deviation
from normal. See AR 11; see also id (reasoning that right-leg condition would not impact his
ability to climb on vehicles because it was mild or indistinguishable from normal). The PDBR’s
finding in this regard was reasonable and explicitly connected to the record evidence. See AR 15
(opining that “the decreased [right-leg] sensation would not be anticipated to have any impact on
[Sissel’s] duty performance and there was no evidence in the record that it did.”).
In sum, the PDBR sufficiently articulated a “rational connection between the facts found
and the choice made.” Burlington Truck, 371 U.S. at 168. The PDBR connected the evidence in
the record to its finding that Sissel’s unfitness is attributable to his back injury, as well as to its
finding that Sissel’s right-leg condition does not impair his duty performance. See generally AR
14–16. Thus, the PDBR’s determinations were not arbitrary or capricious.
III. The PDBR’s Recommendation Is Not Contrary to Law.
Finally, Sissel challenges the PDBR’s recommendation as contrary to the law, arguing
that: (1) the PDBR had no authority to deem a condition fitting that the PEB deemed unfitting;
(2) the PDBR failed to give special consideration to Sissel’s VA disability rating; and (3) the
23
PDBR failed to give Sissel the benefit of the doubt when evaluating his limitations. See Pl. Mot.
at 22–23. The Court addresses these arguments in turn.
A. The PDBR did not illegally contradict the PEB’s finding.
Sissel contends that the PDBR improperly decided that his leg condition legally was
“fitting” when the PEB concluded it was “unfitting.” See Pl. Mot. at 23. Sissel insists that the
PDBR does not have authority to make such a contrary finding. Id. at 25. Defendant responds
the PDBR did not reverse any finding by the PEB that Sissel’s leg injury, in and of itself,
rendered Sissel unfit. See Def. Mot. at 29. Rather, Defendant argues, the PDBR agreed with the
PEB’s decision that the combined conditions rendered Sissel unfit under a single diagnostic
code. Id.Defendant does not dispute that the PDBR may not recommend the reduction of a
disability rating previously assigned by the PEB. See Department of Defense Instruction
(“DoDI”) 6040.44, Enclosure 3, ¶ f (providing that a PDBR recommendation to modify a
combined disability rating “may not be a reduction of the disability rating previously assigned
such covered individual by the PEB”). Indeed, it is important to emphasize that the PDBR
ultimately recommended a higher disability rating of 20%, as compared to the PEB assignment
of a 10% rating. See AR 16, 29. The Army argues that it agreed with the PEB’s determination
that the right-leg condition was not independently unfitting. See Def. Mot. at 28–29. The PDBR
noted in its report that the PEB had combined Sissel’s leg and back conditions and had found
that the “constellation of conditions” rendered Sissel unfit for duty. AR 14. Moreover, Dr.
Kibble interpreted the PEB’s combined rating to indicate that the PEB found the leg, by itself,
not unfitting. See AR 11, ¶ 7. She reasoned that because the PEB was obligated to give the leg
condition a separate rating if it found that the condition significantly contributed to unfitness or
24
was stand-alone unfitting, the PEB’s failure to give a separate rating indicated that the PEB
found leg injury was not unfitting. See AR 10, ¶ 3. Thus, the record simply does not support
Sissel’s contention that the PEB found his leg injury independently unfitting. 26
The Court agrees with Defendant that the PDBR’s recommendation complied with the
law and was consistent with the PEB’s recommendation. The Army can only consider unfitting
conditions in rating the degree of incapacity for retirement, or separation for disability. See 10
U.S.C. § 1216a(b). Thus, because the PEB and the PDBR both found that Sissel’s leg condition
was not separately unfitting, they did not have the authority to separately rate it. See also AR 10,
¶ 3 (Dr. Kibble presumed that the PEB bundled the two conditions together because it did not
find that the right-leg weakness was a stand-alone unfitting condition). The PEB specifically
rated both the back and leg conditions under a single diagnostic code and did not rate the leg
condition as separately unfitting. See AR 47. The PDBR then made a finding that was
consistent with the PEB’s determination — it also found that the right-leg by itself was not
unfitting. See AR 16. The PDBR, like the PEB, determined that the disability rating should
reflect both the back and the leg conditions. Id. (identifying the unfitting conditions together as
26
Sissel relies on McCord v. United States, a case where the Court of Federal Claims found a decision by the
Army Board for Correction of Military Records (“ABCMR”) arbitrary and capricious where the ABCMR declined
to increase the plaintiff’s disability rating under circumstances similar to those presented by the case at bar. See 131
Fed. Cl. 333 (Fed. Cl. 2017). Sissel contends that the facts of McCord are identical to the facts of his case, and thus,
the PDBR also erred in not increasing his disability rating. See Pl. Mot. at 25. This Court, however, does not find
McCord convincing. First, the court in McCord held that the ABCMR decision was not supported by substantial
evidence, see McCord, 131 Fed. Cl. at 347–49, while Sissel invokes McCord to support his argument that the
PDBR’s decision was not in accordance with the law. Second, the court in McCord found that the VASRD Code
that the PEB used was inappropriate because while the PEB cited McCord’s leg condition as contributing to his
unfitness, the assigned rating of 5242 only related to McCord’s spine injury. See McCord, 131 Fed. Cl. at 347–48.
In contrast, the PEB here specifically accounted for Sissel’s leg pain, see AR 47, and the PDBR concluded that the
rating that the PEB assigned to Sissel’s conditions, VASRD Code 5241, encompassed both his back condition and
any additional leg pain — because the leg pain was subsumed under the general spine rating criteria. See AR 16
(citing 38 C.F.R. § 4.71a), see supra n.24. Thus, in Sissel’s case, the VASRD code accounted for his leg injury, and
the final rating assigned by the PDBR did not omit consideration of the leg condition — the rating expressly was
based on “back pain and right leg weakness.” See AR 16.
25
“back pain and right leg weakness”). 27 The Court therefore discerns no illegality in the PDBR’s
findings and recommendation. See DoDI, 6040.44, Enclosure 3, ¶¶ (f)–(g).
B. The PDBR gave appropriate consideration to the VA ratings.
Sissel argues that the PDBR decision was contrary to law because it failed to give
“particular consideration” to the VA disability determination, which separately rated his right-leg
condition. Sissel also complains that the PDBR did not provide an explanation for why it
deviated from the VA rating. See Pl. Mot. at 26–27.
Sissel is correct that the PDBR is required to consider the VA’s disability rating.
According to a DoD regulation, the
PDBR should compare any [VA] disability rating for the specifically military
unfitting condition(s) with the PEB combined disability rating and consider any
variance in its deliberations and any impact on the final PEB combined disability
rating, particularly if the [VA] rating was awarded within 12 months of the Service
member’s separation.
Hatmaker v. United States, 117 Fed. Cl. 560, 569 (Fed. Cl. 2014) (quoting DoDI 6040.44,
Enclosure 3 ¶ 5(a)(4)); see also DoDI 6040.44, Enclosure 3, ¶ 4(a)(5)(b). Sissel asserts that
because the VA evaluation that separately rated his right-leg condition was only five months
prior to his separation, it was entitled to “particular” consideration. See Pl. Mot. at 26.
The record reflects that the PDBR appropriately considered the VA disability rating. In
evaluating the record evidence, the PDBR expressly stated: “At the 16 May 2005 VA
Compensation and Pension (C&P) examination, 5 months before separation, the CI reported he
could easily walk 2 miles for exercise, but could not run or perform other vigorous physical
27
The Court recognizes that the PDBR’s statements that Sissel’s leg injury did not impair his fitness for duty,
see AR 15, appear to contradict the PEB’s finding that Sissel’s unfitness was attributable to a combination of the
back and leg conditions, see AR 47. But the PDBR’s ultimate rating was based on both “back pain and right leg
weakness” and was twice as high as the rating assigned by the PEB for the same combined conditions — i.e., the
PDBR assigned a rating of 20%, while the PEB assigned a rating of only 10%. See AR 16; see also AR 47. Thus,
the PDBR did not find a condition “fitting” that the PEB found “unfitting,” and the PDBR did not assign a lower
rating to the combined conditions than the PEB did.
26
activity without immediate distress.” AR 15. 28 Although the PDBR did not conform its
disability rating to those of the VA, the PDBR was not required to do so. As Dr. Kibble
explained, “the PEB function does not perfectly align with the function of the VA,” and the PEB
“may not rate all of the conditions that the VA rates.” AR 10, ¶ 4. This is because the VA
conducted a “Compensation and Pension” examination to determine Sissel’s disability benefits,
whereas the PEB focused solely on Sissel’s fitness for duty and could only rate conditions that
are unfitting. The record thus reflects that the PDBR noted and compared the VA disability
rating with the PEB rating, as required. Moreover, the PDBR’s failure to adopt the same ratings
as the VA does not render the PDBR’s decision unlawful.
C. The PDBR was not required to give Sissel the benefit of the doubt.
Lastly, Sissel argues that the PDBR decision was contrary to law because it failed to
resolve evidentiary ambiguities in his favor. See Pl. Mot. at 28. Sissel notes that many of the
restrictions on his activities described in the Commander’s Statement and in the 2005 Profile
Restriction could have been equally or substantially attributed to the right-leg condition; he
argues that the PDBR was obligated to resolve any ambiguity on this point in his favor. See Pl.
Mot. at 28–29.
28
The PDBR goes on to detail the VA examination, noting that
Physical examination showed normal gait, posture and spinal contour without tenderness or muscle
spasm. Reflexes were normal and symmetric, strength was normal (5/5) with strong dorsiflexion of
the foot and great toe. Although there was diminished sensation of the lateral aspect of the RLE
down to the foot and the fourth and fifth toes, the CI would walk on his toes and heels. Back ROM
testing showed forward flexion of 50 degrees and combined ROM of 155 degrees, after repetition,
with painful motion. Straight leg raise testing to elicit lower extremity radicular symptoms was
negative bilaterally. The examiner noted that during a flare-up or with repetitive motion there was
no additional effect on ROM or joint function due to pain, weakness or incoordination.
AR 15.
27
Sissel is correct that the PDBR was required to resolve any reasonable doubt in his favor.
See 38 U.S.C. § 5107(b) (“When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of a matter.”); see also 38 C.F.R.
§ 3.102 (“When, after careful consideration . . . a reasonable doubt arises . . . the degree of
disability, or any other point . . . will be resolved in favor of the claimant.”). Here, however, the
Court agrees with Defendant that there were no evidentiary contradictions to resolve. See Def.
Mot. at 31. As Defendant notes, the 2004 neurosurgery exam showed right lower extremity
strength was normal; the MEB evaluation similarly showed hip flexor strength measured at 5-/5;
and the VA examination showed normal reflexes and normal strength in Sissel’s leg. Id.; see
also AR 444, 456, 66. That evidence was not inconsistent with the Commander’s Statement and
the Profile Restriction because the latter two documents did not specifically consider whether
Sissel’s leg weakness — independent of his back injury — affected his duty performance. See
AR 440, 438. Because the Commander’s Statement and Profile Restriction shed no light on the
relative effect of Sissel’s leg injury on his fitness, the PDBR reasonably placed greater weight on
the medical exams. See Def. Mot. at 33, AR 15. The PDBR considered the Commander’s
Statement and Profile Restriction but characterized those documents as “vague” because they did
not separately evaluate Sissel’s leg condition. AR 15; see also AR 440, 438, supra, Section II.
The cited evidence was not ambiguous and did not present a dispute that should have been
resolved in favor of Sissel. 29
29
Plaintiff once again invokes White v. Mattis to support his argument that the PDBR failed to give him the
benefit of the doubt. See Pl. Mot. at 28. In White, the court found the PDBR decision arbitrary and capricious
because there was no evidence about whether the PDBR resolved evidentiary imbalances in plaintiff’s favor. See
White, 2019 WL 6728448, at *6. The Court finds White distinguishable because here, unlike in White, there were no
contradictions in the evidence to resolve.
28
CONCLUSION
Although Sissel’s challenges to the PDBR’s findings and recommendation are largely
framed as procedural arguments under the APA, his claims actually reflect his understandable
dissatisfaction with the substantive outcome of the Army’s review of his case. Notably, the
record reflects that Sissel was afforded ample procedural protections that went beyond the
normal administrative process of review: The PDBR reviewed his case not once, but twice, and
the Army agreed to a remand from this Court in order for the second review to occur. Moreover,
after the second review, Sissel received the benefit of an independent assessment of his case by
Dr. Kibble; and he was given an opportunity to submit a response to her report before the DASA
decided whether to adopt the PDBR’s recommendation. Although the outcome of this process
was not the one that Sissel desired, the Court’s careful review of the record reveals that there
were no procedural defects under the APA. The Court also concludes that the Army’s decision
complied with the law. The Court therefore will grant Defendant’s Motion for Summary
Judgment and will deny Plaintiff’s Motion for Summary Judgment. A separate Order will issue
this day.
____________________________
Florence Y. Pan
United States District Judge
Date: December 22, 2021
29