PATRICIA E. CAMPBELL-SMITH, Chief Judge.
This is a military pay case in which plaintiff, Timothy J. Hatmaker, seeks review of the decision of a physical disability board of review. Mr. Hatmaker was separated from the United States Air Force in September 2007 after an Informal Physical Evaluation Board (PEB) found him medically unfit. Mr. Hatmaker had one unfitting condition, vertigo, for which the PEB assigned him a disability rating of 10%. The PEB found that Mr. Hatmaker had three other service related conditions, specifically, obsessive compulsive disorder (OCD), asthma, and obstructive sleep apnea. But, the PEB did not find any of the three other service related conditions to be unfitting.
In May 2012, Mr. Hatmaker sought review of the PEB decision from the Department of Defense (DoD) Physical Disability Board of Review (PDBR). In particular, Mr. Hatmaker sought an increase in his disability rating to at least 30%, and a recharacterization of his separation to retirement for disability.
In April 2013, the PDBR issued a decision in which it recommended no change to the 10% disability rating assigned by the PEB. In September 2013, Mr. Hatmaker filed a complaint in this court seeking review of the PDBR's decision. The parties filed cross-motions for judgment on the administrative record, and in July 2014, the court granted defendant's motion in part, and remanded the matter for additional review.
On remand, the PDBR issued a decision in January 2015 in which it found insufficient cause to recommend a change to the PEB disability rating. AR 1014-24 (Remand PDBR). Mr. Hatmaker now asks this court to review the decision of the Remand PDBR.
Pending before the court are the parties' cross-motions for judgment on the administrative record. Both motions are ripe for consideration. The court deemed oral argument unnecessary. For the reasons explained below, plaintiff's motion for judgment on the administrative record is
As specified herein, this matter is
The background for this matter was set forth previously in
On August 10, 2007, a PEB considered whether any of four conditions—vertigo, OCD, asthma, or obstructive sleep apnea requiring use of Continuous Positive Airway Pressure (CPAP)—rendered Mr. Hatmaker unfit for continued service. AR 43. The PEB found that only Mr. Hatmaker's vertigo was unfitting,
In early 2008, Mr. Hatmaker sought disability benefits from the Department of Veterans Affairs (VA). In connection with his application, Mr. Hatmaker had several physical examinations, including a general medical examination on January 24, 2008, AR 181-233, and a psychiatric examination for his OCD on February 2, 2008, AR 171-180.
In September 2012, Mr. Hatmaker applied to the PDBR for a review of the August 2007 PEB decision.
Congress created the PDBR in response to concerns about the consistency, fairness, and accuracy of decisions assigning disability ratings of less than 30% (that is, a disability rating of no more than 20%).
PDBR review is available only to service members who received a disability separation of 20% or less between September 11, 2001 and December 31, 2009. 10 U.S.C. § 1554a(b). Seeking review from the PDBR is an alternative to seeking redress through a board for correction of military records ("correction board"), 10 U.S.C. § 1554a(c)(4), and as summarized in the application form for review (DD Form 294), there are differences between proceeding in the two forums, AR 10. When proceeding before a correction board, the former service member "has the burden of proof to establish error or injustice[, and] [t]here is a presumption of regularity."
The PDBR is authorized to make any of four recommendations to the Service Secretary, including: (1) no recharacterization of the separation or modification of the disability rating previously assigned such individual; (2) recharacterization of the separation to retirement for disability; (3) modification of the disability rating (but not a reduction); and (4) the issuance of a new disability rating for such individual. 10 U.S.C. § 1554a(d). The decision whether to accept the recommendation to recharacterize the separation or modify the disability rating rests with the Service Secretary. 10 U.S.C. § 1554a(e).
The PDBR issued its findings and recommendation on April 9, 2013. AR 3-7 ("first PDBR"). In relevant part, the first PDBR found that,
AR 7. The first PDBR declined to consider whether the overall effect of Mr. Hatmaker's OCD, asthma, and obstructive sleep apnea was unfitting because it erroneously believed it lacked authority to conduct such a review.
The court considered four objections from Mr. Hatmaker to the first PDBR decision.
The court found no error in the first PDBR decision regarding its consideration of either Mr. Hatmaker's DVA rating or his total disability rating.
But the court found that the first PDBR erred in declining to review Mr. Hatmaker's disabilities for their overall effect on his fitness, as it has the authority to conduct such review.
The court granted defendant's motion for judgment on the administrative record in part, and remanded for consideration of the overall effect of Mr. Hatmaker's OCD, asthma, and obstructive sleep apnea on his fitness, as well as further consideration of his vertigo—to include consideration of "all the relevant evidence in the record and . . . an explanation for its decision sufficient for this court to conduct a review, if necessary."
On January 29, 2015, the Remand PDBR issued its decision. AR 1014-1024. The Remand PDBR first considered the 10% disability rating for Mr. Hatmaker's vertigo. AR 1016-1021. In order to assign Mr. Hatmaker the 30% disability rating he seeks, the Remand PDBR would have had to find that the record supports findings of both dizziness and occasional staggering.
The Remand PDBR then considered whether the conditions that were not separately unfitting could be unfitting based on their overall effect. AR 1021-1023. Evaluating the overall effect of Mr. Hatmaker's OCD, asthma, and obstructive sleep apnea, the Remand PDBR found insufficient grounds for recommending that the combination of the three conditions rendered Mr. Hatmaker unfit for continued military service at the time of his separation. AR 1023.
Plaintiff filed a motion for judgment on the administrative record on April 23, 2015, alleging several errors in the Remand PDBR's decision. Pl.'s Mot., ECF No. 44. Defendant filed its cross-motion and response on June 3, 2015. Def.'s Mot., ECF No. 49. Mr. Hatmaker filed his response on June 26, 2015. Pl.'s Resp., ECF No. 50. Defendant filed its reply on July 9, 2015. Def.'s Reply, ECF No. 51.
The record in this matter includes both the administrative record defendant filed for review of the first PDBR decision, ECF No. 12 (AR 1-1013), and a supplemental filing for review of the Remand PDBR decision, ECF No. 41 (AR 1014-1085).
The cross-motions are now ripe for decision.
The court previously determined that it has jurisdiction over this matter.
Rule 52.1(c) of the Rules of the United States Court of Federal Claims (RCFC) addresses motions for judgment on the administrative record. RCFC 52.1(c)(1) (providing that "a party may move for partial or other judgment on the administrative record"). A motion for judgment on the administrative record is "distinguish[able]" from a motion for summary judgment in that the material facts need not be undisputed.
Judicial review of a military review board decision is conducted under the same standard as any other agency action—that is, whether the decision is arbitrary, capricious, unsupported by substantial evidence, or contrary to law.
This deferential standard of review "does not require a reweighing of the evidence, but a determination [of] whether
"Under the substantial evidence rule,
The court considers, in turn, Mr. Hatmaker's objections to the Remand PDBR's decision regarding his vertigo and the overall effect of his three conditions.
Mr. Hatmaker contends that the Remand PDBR "improperly rejected the probative value of [his] lay statements regarding his staggering." Pl.'s Mot. 8-9. Mr. Hatmaker asserts that the Remand PDBR erred in doing so, and for this and other reasons, the Remand PDBR's decision was arbitrary, capricious, contrary to law and regulation, and unsupported by the record.
Mr. Hatmaker adds that the Remand PDBR "erred by not giving proper consideration to the notes and documentation of [his] physicians, Dr. Athni and Dr. Doughten."
Mr. Hatmaker made several statements to his treating physicians and healthcare providers—for the purpose of seeking either a medical diagnosis or treatment—indicating that he felt unbalanced, and that he was experiencing unsteadiness, staggering and difficulty walking. In evaluating whether the record showed support for a finding of occasional staggering, the Remand PDBR decided it would consider Mr. Hatmaker's "subjective reports of staggering," only if the record provided "objective confirmation" of those statements. Because the Remand PDBR determined that the record provided no such corroboration, the Remand PDBR declined to consider any of Mr. Hatmaker's statements.
As discussed below, the court finds that the Remand PDBR erred as a matter of law by applying an elevated evidentiary standard as it considered Mr. Hatmaker's statements, and thereby excluding those statements from consideration. Accordingly, this matter must be remanded for further consideration under the appropriate legal standard.
The court now reviews Mr. Hatmaker's statements, the authority governing the Remand PDBR, and the Remand PDBR's findings regarding whether Mr. Hatmaker exhibited occasional staggering. The court also considers additional allegations of error by Mr. Hatmaker.
The administrative record includes medical records from five appointments in which Mr. Hatmaker was either evaluated or treated for his vertigo. During each appointment, he described the symptoms he was experiencing. The relevant portions of those records are provided below.
During an initial neurological evaluation on May 23, 2007, Sudhir Athni, M.D. noted:
AR 323 (emphasis added).
During a follow-up visit on June 11, 2007, Dr. Athni remarked:
AR 325 (capitalization in original; other emphasis added).
During a videonystagmorgraphy (VNG) test on July 5, 2007, the audiologist wrote: Mr. Hatmaker "[s]tates he continues to
During an office visit on July 6, 2007, Mr. Hatmaker's general practitioner, Paul Doughten, M.D., made note: "He has had problems with his balance [nausea/vomiting] for 2 months. He continues to not drive (his girlfriend is driving him around) and has frequent feelings of N/V. At times he finds
During a VA compensation & pension (C&P) audio examination on January 24, 2008, the examiner wrote: "Veteran reports feeling unbalanced or dizzy nearly all the time." AR 166. "His symptoms include room spinning type dizziness occasionally with
A member's fitness for duty and eligibility for separation or retirement is governed by instructions or directives promulgated by the Secretary of the military department to which the member belongs. 10 U.S.C. § 1216 (2012). For Air Force service members, Air Force Instruction (AFI) 36-3212 governs separation or retirement for disability.
According to AFI 36-3212, "[f]itness [d]eterminations . . . are the most important findings made by the PEB. The standards and criteria for making this determination are in DoDD 1332.18, paragraph C." AFI 36-3212 ¶ 3.16 (citing DoDD 1332.18,
DoDD 1332.18 ¶ C.7 (citing DoDI 1332.38, Physical Disability Evaluation (Nov. 14, 1996, incorporating Change 1, July 10, 2006)).
The military evaluates service members for continued fitness to serve. Upon a finding that a service member is unfit to do so, the military seeks to "ensure fair compensation to members whose military careers are cut short due to a service-incurred or service-aggravated physical disability," AFI 36-3212 ¶ 1.1.1, and to "assign[] a percentage rating to a medical defect or condition when the member is physically unfit for duty,"
The Remand PDBR is governed by procedures set forth in DoDI 6040.44, which provides that for every case referred to the PDBR, it shall "
The August 2007 PEB conducted its evaluation according to the procedures set forth in DoDI 1332.38. That particular instruction also addresses what evidence the PEB is to consider in its disability evaluation. The standards for determining unfitness due to physical disability or medical disqualification require the PEB to consider "[a]ll relevant
Hearsay evidence is permissible in an administrative proceeding. "It has long been settled . . . that hearsay evidence may be used in Board proceedings and may be accepted as preponderant evidence even without corroboration if, to a reasonable mind, the circumstances are such as to lend it credence."
Prior to its evaluation of the evidence, the Remand PDBR discussed whether it would consider Mr. Hatmaker's statements—which it termed "subjective reports of staggering," and which Mr. Hatmaker terms as "lay statements." The Remand PDBR wrote:
AR 1020-21 (emphasis added).
The Remand PDBR represented that it "carefully [had] scrutinized [the record] for
AR 1021 (footnotes added).
In defendant's view, the Remand PDBR was justified in its treatment of Mr. Hatmaker's statements. Defendant argues that DoDI 6040.44 "provides that PDBR review of conditions like Mr. Hatmaker's [is] governed by the VASRD," which in turn requires "objective" evidence to support a disability rating. Def.'s Mot. 20 (citing 38 C.F.R. § 4.87 (code 6204 Peripheral vestibular disorders)). Defendant, however, misses the mark.
DoDI 6040.44 points to the VASRD
Defendant also misreads code 6204, which is silent about the evidence to be considered for either dizziness or occasional staggering. The VASRD text on which defendant relies is provided below in its entirety.
38 C.F.R. § 4.87 (code 6204) (emphasis added).
The note to which defendant adverts provides that "[o]bjective findings" are necessary to support a
In the alternative, defendant argues that contrary to Mr. Hatmaker's assertions, the Remand PDBR did consider his statements in evaluating whether the record supported a finding of occasional staggering. Defendant explains: "[T]he PDBR did not disregard Mr. Hatmaker's `lay statements.'. . . [Rather] it . . . found his self-reporting to be less credible than physician evaluations, due to the inherently subjective nature of self-reporting." Def.'s Mot. 20 (citing AR 1021). The Remand PDBR's awareness of Mr. Hatmaker's statements is reflected by the mention of his statements in the fact section of the Remand PDBR's decision.
Defendant suggests that the Remand PDBR weighed the evidence, and simply accorded Mr. Hatmaker's statements less weight in its decision, as is proper with a fact finding. But a review of the Remand PDBR's decision shows no evidence of such weighing. The Remand PDBR never evaluated Mr. Hatmaker's statements or made findings about his reliability as a historian. Nor did the Remand PDBR discuss the view expressed by Mr. Hatmaker's various treating physicians that he was a reliable historian.
The Remand PDBR's decision indicates that Mr. Hatmaker's statements were categorically discounted, based solely on the type of evidence they represented rather than the content of the statements or the reliability of Mr. Hatmaker. Mr. Hatmaker's statements are undeniably hearsay evidence. As defined by the Federal Rules of Evidence, hearsay is a statement that "the declarant [did] not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c).
It appears that the Remand PDBR effectively set an elevated standard for considering hearsay by requiring "objective confirmation." On finding such confirmation wanting, the Remand PDBR gave no credence to Mr. Hatmaker's statements.
Nothing about the hearsay nature of Mr. Hatmaker's statements, however,
In finding otherwise, the Remand PDBR missed the mark. "When the military is given unlimited discretion by Congress, it is nevertheless bound to follow its own procedural regulations if it chooses to implement some."
On remand, the PDBR examined the record before it to determine whether Mr. Hatmaker experienced occasional staggering at the time of his separation. Mr. Hatmaker repeatedly made statements to his treating physicians about his symptoms that tended to make the fact of his reported symptoms more probable.
By establishing its own evidentiary standard for the consideration of hearsay statements, rather than considering all relevant evidence, the Remand PDBR erred as a matter of law. The impact of the error turns on whether or not it was harmless.
A harmless error analysis has applicability in military pay cases.
Such is the case here. The court does not, and cannot, speculate as to whether the Remand PDBR would have found that Mr. Hatmaker suffered from occasional staggering at the time of his separation, if it had properly considered all the relevant evidence in the record.
Mr. Hatmaker argues that the Remand PDBR made additional errors in its evaluation of his occasional staggering. In order to provide as much clarity as possible to the PDBR on remand, the court considers these arguments by plaintiff.
Plaintiff first argues that the August 2007 PEB decision contains a finding of occasional staggering that the Remand PDBR failed to adopt. Pl.'s Mot. 6-7 (citing AR 43). The text of the PEB decision to which Mr. Hatmaker points is as follows.
AR 43 (emphasis added).
Defendant insists that the PEB made no such finding. Def.'s Mot. 16-17.
The court need not resolve this particular dispute between the parties because the January 2015 Remand PDBR decision, not the August 2007 PEB decision, is now on review. The Remand PDBR issued its decision after conducting a de novo review of Mr. Hatmaker's record.
Next, Mr. Hatmaker complains that the Remand PDBR mischaracterized a medical record in which a licensed physical therapist evaluated him for the purpose of treating his vertigo. Pl.'s Mot. 7-8 (citing AR 353-55,
Mr. Hatmaker had an initial therapeutic evaluation on July 16, 2007, which included an assessment of seven different functional measures. As to each of the functional measures, Mr. Hatmaker exhibited problems. AR 353-55. The portion of that evaluation pertaining to his balance and walking is included below in its entirety.
AR 354-55. In addition, Mr. Hatmaker was found to have "severe limitation[s]" in his tolerance of the independent activities of daily living, work activities, and recreation activities. AR 355. The physical therapist set Mr. Hatmaker's short-term goals as improving balance "by 50% in 2 weeks," and improving "[p]ostural control . . . in 2 weeks." AR 355.
The Remand PDBR described the July 16, 2007 physical therapy record in two sections of its decision: first, in its review of Mr. Hatmaker's different medical records, AR 1018, and then, in its deliberation of the evidence pertaining to Mr. Hatmaker's occasional staggering, AR 1021. The two sections of the decision are included below in their entirety.
AR 1018 (footnote omitted; record citation added).
AR 1021 (record citation added).
In its decision, the Remand PDBR noted that "a physical therapist did not conduct an evaluation or make an independent assessment of the vertigo condition, to include observation for any gait abnormalities." AR 1021. Mr. Hatmaker challenges that particular statement as incorrect because the physical therapist did perform that assessment during the July 16, 2007 visit. Pl.'s Mot. 7-8 (citing AR 1021).
But plaintiff misreads the Remand PDBR's decision. The Remand PDBR made that statement in characterizing plaintiff's February 2008 physical therapy records, AR 1061-62, 1064-66,
The court does find other problems, however, with the Remand PDBR's consideration of the July 16, 2007 physical therapy evaluation. First, in its description of this medical record, the Remand PDBR stated that "there was no indication [that] a test such as the DixHallpike maneuver (which could precipitate vertigo symptoms) was performed prior to walking." AR 1018.
The Dix-Hallpike maneuver is a "test used to diagnose benign positional vertigo." Maneuver (Dix-Hallpike),
But what is unclear to the court is why the Remand PDBR engaged in speculation as to whether the physical therapist evaluating Mr. Hatmaker had administered a test that "could precipitate vertigo symptoms" before the therapist could observe Mr. Hatmaker's balance and walking. That test is used to
In its decision, the Remand PDBR cast doubt on the results of the physical therapy evaluation, that otherwise served to bolster Mr. Hatmaker's claim of occasional staggering. In determining that the physical therapy evaluation on July 16, 2007 was insufficient to support a finding of occasional staggering, the Remand PDBR relied on "multiple contemporaneous evaluations [that] convincingly indicate[d] the absence of staggering." AR 1021.
The record, however, does not include "multiple contemporaneous evaluations" of Mr. Hatmaker's balance and gait. Rather, the July 16, 2007 physical therapy evaluation is the sole record in which the two symptoms were evaluated. Other medical records include observations by treating physicians as to his normal gait.
Putting aside whether the records to which the Remand PDBR pointed were "evaluations" or not, the Remand PDBR appears to have required a showing of staggering, rather than occasional staggering. In its deliberation, the Remand PDBR correctly pointed out that the VASRD does not define the term staggering, AR 1020, before it consulted several dictionaries to define staggering "as unsteadiness during walking or on standing, or reeling from side-to-side (as in `tottering')," AR 1020-21. The Remand PDBR reasonably interpreted the term staggering. But the Remand PDBR does not appear to have considered what was necessary for a finding of "
In failing to consider what was required for a showing of "occasional staggering," and in dismissing the probative value of the results of the physical therapy evaluation, the Remand PDBR appears to have required a showing that is greater than was required for Mr. Hatmaker to establish his occasional staggering claim. A lack of evidence in the record of
In dismissing the physical therapist's evaluation of Mr. Hatmaker's walking as "vague," AR 1021, the Remand PDBR suggested that Mr. Hatmaker could exhibit difficulty walking independently on both even and uneven terrain—as the physical therapist found he did— without also experiencing "unsteadiness during walking or [up]on standing, or [in] reeling from side-to-side (as in tottering),"—which symptoms the Remand PDBR deemed to be indicative of staggering.
The Remand PDBR did not provide its thinking on this point, and the court does not discern the distinction drawn by the Remand PDBR. The court will not disturb a decision—even if it is wanting in clarity—unless the court is unable to discern the agency's reasons for its decision.
Mr. Hatmaker next challenges the Remand PDBR's finding that the overall effect of his various conditions—OCD, asthma, and obstructive sleep apnea ("overall effect") —did not render him unfit. Pl.'s Mot. 10-12 (citing AR 1021-23). Defendant argues that Mr. Hatmaker has waived any argument as to whether his OCD was an unfitting condition, and thus he is precluded from arguing about the overall effect of his OCD, asthma, and obstructive sleep apnea. Def.'s Mot. 10-11. Defendant adds that Mr. Hatmaker can show no error in the Remand PDBR's decision.
The court first considers defendant's waiver argument, and then plaintiff's challenge to the Remand PDBR's decision as to the overall effect of his three health conditions.
Defendant asserts that plaintiff cannot argue that his OCD was an "
It is true that Mr. Hatmaker made no such argument when the court reviewed the first PDBR decision issued on May 20, 2013.
Here, the court reviews Mr. Hatmaker's claim that the overall effect of his OCD, asthma and sleep apnea is unfitting. The pertinent instruction permits a service member to argue about the overall effect of various conditions only if the individual conditions were found not to be unfitting, such as Mr. Hatmaker's OCD, asthma, and obstructive sleep apnea.
Because the first PDBR declined to review the overall effect of Mr. Hatmaker's OCD, asthma, and obstructive sleep apnea, the court remanded the case to the PDBR for consideration of the issue.
A service member may be found unfitting not only based on the effect of a single condition—such as vertigo in Mr. Hatmaker's case—but also based on the overall effect of two or more conditions. The relevant instruction provides:
DoDI 1332.38 ¶ E3.P3.4.4.
The Remand PDBR considered whether the overall effect of Mr. Hatmaker's OCD, asthma, and obstructive sleep apnea rendered him unfit for duty, and concluded that the three conditions in combination did not. AR 1021-23. Mr. Hatmaker does not object to the consideration given by the Remand PDBR to his asthma and his obstructive sleep apnea. Rather, he argues that the Remand PDBR did not give proper consideration to the severity of his OCD. Pl.'s Mot. 10-12.
Mr. Hatmaker was twice examined by a psychiatrist in connection with his OCD: first in June 2007 for his MEB, and later in February 2008 for his VA benefits. AR 81-83 (MEB psychiatric examination); AR 171-80 (VA psychiatric examination). The date of Mr. Hatmaker's separation, September 24, 2007, fell midway between these two psychiatric examinations.
The Remand PDBR attributed the deterioration of Mr. Hatmaker's OCD to temporary post-transition stress. AR 1023. Because the Remand PDBR was tasked with determining whether the overall effect of certain health conditions—including Mr. Hatmaker's OCD—was unfitting at the time of service separation, it properly could have disregarded any post-separation changes in Mr. Hatmaker's condition.
But, Mr. Hatmaker alleges that the Remand PDBR erred in its decision. Mr. Hatmaker argues that in evaluating the severity of his OCD before his separation, the Remand PDBR did not consider the evidence that showed "his driving was limited by his OCD." Pl.'s Mot. 10. Mr. Hatmaker adds that by attributing the deterioration of his OCD to temporary post-transition stress, the Remand PDBR relied on "speculative findings about [his] OCD" rather than the record evidence showing that his OCD led to his unemployability.
The court considers plaintiff's arguments regarding his decision not to drive and his unemployability in turn.
Plaintiff argues that the Remand PDBR failed to properly consider evidence that he discontinued driving due to the effects of his OCD. Pl.'s Mot. 10-12. According to plaintiff, when the Remand PDBR considered his vertigo, it attributed his decision not to drive to the effects of his OCD; but when the Remand PDBR considered his OCD, it attributed his decision not to drive to his vertigo.
Defendant responds that the Remand PDBR correctly interpreted the record by finding that it was Mr. Hatmaker's vertigo-related dizziness that precluded him from driving, not his OCD. Def.'s Mot. 11. Defendant adds that the Remand PDBR made reference in its decision to the checking behaviors Mr. Hatmaker described that interfered with his driving.
The record does support the Remand PDBR's statement that "[f]rom the time of the VNG testing on 5 July 2007, the CI consistently informed providers that
In its decision, the Remand PDBR considered both Mr. Hatmaker's election not to drive and his dizziness. The Remand PDBR recognized that the record contained "conflicting evidence" regarding the "frequency and severity of [his] dizziness;" yet the Remand PDBR found that Mr. Hatmaker's dizziness was more than occasional. AR 1020. Concluding that Mr. Hatmaker suffered from dizziness at the time of his separation, the Remand PDBR found that he met this 30% disability rating criterion. AR 1020.
Also in the record are Mr. Hatmaker's reports that his OCD manifested as checking behaviors while he was driving and caused him to retrace his course. Reflected specifically in the history section of the June 13, 2007 MEB psychiatric examination are Mr. Hatmaker's "mild obsessions about . . . causing injury with his car, with resultant checking compulsions . . .
Contrary to plaintiff's assertions, the record supports the Remand PDBR's findings. Thus, the court finds no error in the Remand PDBR's consideration of Mr. Hatmaker's decision not to drive.
The VA psychiatrist found that Mr. Hatmaker's "contention that he is currently unemployed due to the effects of a mental disorder" was "supported by the [recorded] diagnoses and findings." AR 176. The phsyciatrist also found that Mr. Hatmaker's "impairments and behaviors became evident to those around him on active duty and resulted in poor performance reports." AR 177. The VA psychiatrist opined that "[t]he prognosis for improvement in [Mr. Hatmaker's] condition [was] guarded." AR 179.
The Remand PDBR did not question the VA psychiatrist's determination as to the severity of Mr. Hatmaker's OCD.
AR 1023 (emphasis added). By attributing Mr. Hatmaker's deterioration to the temporary "stress of transition to civilian life," the Remand PDBR found that the onset of the deterioration began only after his separation.
Mr. Hatmaker complains that the Remand PDBR failed to consider evidence that the worsening of his OCD was not merely temporary, but permanent. Pl.'s Mot. 12-13. And if the worsening of his condition was not a temporary response to his transition to civilian life, then it follows that the onset of the deterioration may not have been entirely a post-separation process.
Mr. Hatmaker argues that the Remand PDBR erred by making a "speculative finding that the `transition' to civilian life temporarily exacerbated [his] OCD, without considering that the record evidence shows that his OCD had been chronic and severe and had kept him from working since 2007."
On January 21, 2010, Dr. Malagon, opined that Mr. Hatmaker had been unemployable since his separation, due to the overall effect of his OCD, asthma, and obstructive sleep apnea. AR 30. According to Dr. Malagon,
AR 30.
The Remand PDBR never mentioned this letter, and the court does not discern the reason for the omission.
On May 4, 2012, Mr. Hatmaker sought a PDBR review of his disability rating. He specifically requested a review of the overall effect of his OCD, asthma, and obstructive sleep apnea. AR 16-17. Mr. Hatmaker relied primarily on Dr. Malagon's letter as evidence of his long-term unemployability due to the severity of his health conditions. AR 16. In his application for review, Mr. Hatmaker explained:
The PEB characterized [my] OCD as mild. However, this is belied by Dr.
AR 16-17.
While the Remand PDBR was not required to discuss each of Mr. Hatmaker's medical records, it was required to "review the complete case record." DoDI 6040.44 encl. 3 ¶ 5.d. It also was required to consider "[a]ll relevant evidence." DoDI 1332.38 ¶ E3.P3.3. The Remand PDBR attributed the deterioration of Mr. Hatmaker's OCD to temporary post-transition stress without considering the 2010 Malagon letter that addressed the duration of the decline in Mr. Hatmaker's condition.
Defendant does not dispute the Remand PDBR's failure to consider this evidence. Instead, defendant argues that the evidence would not have supported Mr. Hatmaker's claims:
Def.'s Mot. 12.
Defendant's counsel's interpretation of this medical record, however, cannot be imputed to the Remand PDBR. The law is well-settled that neither the court nor counsel may provide a reason for the Remand PDBR's failure to consider certain evidence that the Remand PDBR did not provide for itself.
Moreover, defendant's counsel's offered interpretation of the 2010 Malagon letter lacks proper support. Defendant's counsel asserts that Dr. Malagon mentions the date September 25, 2007 "only as a recitation of the effective date of the DVA's 90 percent disability rating." Def.'s Mot. 12. But a careful reading of the 2010 Malagon letter shows that Dr. Malagon found Mr. Hatmaker to be disabled due to his inability to function and to gain meaningful employment, as a result of multiple medical problems— including severe OCD, asthma, and uncontrolled sleep apnea. Dr. Malagon observed that his opinion of disability was corroborated by the VA's 90% disability rating of September 25, 2007. That Dr. Malagon referred to the VA's earlier disability rating as corroboration of his own findings undercuts defendant's argument that the 2010 Malagon letter supported a finding of prospective unemployability only.
Mr. Hatmaker alleges that in its review, the Remand PDBR relied on its own view of the severity of his OCD in February 2008, and excluded contradictory evidence. He asserts that: "[t]he PDBR made a speculative finding that the "transition" to civilian life temporarily exacerbated [his] OCD, without considering . . . the record evidence demonstrat[ing] that his OCD [had] been chronic and severe and . . . kept him from working since 2007." Pl.'s Mot. 12-13.
At no point in discussing the deterioration of Mr. Hatmaker's OCD did the Remand PDBR reference any record support for its finding that temporary post-transition stress caused his deterioration.
As is any fact finder, the Remand PDBR was expected to evaluate and weigh the evidence, and to exercise sound discretion in reaching its conclusions.
The Remand PDBR disregarded the prognosis of the VA psychiatrist who examined Mr. Hatmaker in February 2008. AR 171, 180. The ten-page report prepared by that examining psychiatrist included a thorough evaluation of Mr. Hatmaker's condition and a careful review of Mr. Hatmaker's earlier psychiatric examination for the MEB in June 2007. AR 172. The VA staff psychiatrist had knowledge of both Mr. Hatmaker's history of OCD and his presenting condition when he made his findings in February 2008. Moreover, given that his practice was limited to treating veterans, the VA staff psychiatrist is presumed to have been knowledgeable about the effects of a recent service separation and the prognostic impact, if any.
The VA staff psychiatrist did not indicate that Mr. Hatmaker's condition in February 2008 was a temporary exacerbation attributable to the stress of transition to civilian life.
The MEB psychiatrist's note in June 2007 that Mr. Hatmaker exhibited an increase in OCD symptoms also failed to receive attention from the Remand PDBR. The MEB psychiatrist wrote: "The [OCD] symptoms had all been present for 1-2 years to mild degree since stopping Zoloft in about 2005, not requiring treatment, but then steadily increased in intensity as he began having some medical problems (inguinal hernia, respiratory problems) and occupational stress (passed over for Maj[or] several times)." AR 81. At that time, the MEB psychiatrist found "no information in [Mr. Hatmaker's] history to suggest that his OCD could worsen rapidly to such a degree so as to result in significant impairments in judgment or reliability." AR 83.
In June 2007, the symptoms of Mr. Hatmaker's OCD were more frequent, even though they were still only "mildly impairing." AR 83. By February 2008, however, those symptoms had overwhelmed Mr. Hatmaker. AR 176. The Remand PDBR was tasked with making a determination as to whether Mr. Hatmaker's OCD had rendered him unfit at the time of his separation, which occurred midway between his psychiatric examinations in 2007 and 2008.
The Remand PDBR does not appear to have evaluated the relevant evidence of the 2010 Malagon letter, the February 2008 VA psychiatric examination, and the June 2007 MEB psychiatric examination. Instead, the Remand PDBR made, and relied on, its own finding that the transition to civilian life "
"Under the substantial evidence rule, all of the competent evidence must be considered, . . . whether or not it supports the challenged conclusion."
On remand, the PDBR is advised to consider carefully any use of negative evidence. In certain circumstances, negative evidence is admissible evidence.
Plaintiff's motion for judgment on the administrative record is
Pursuant to its authority under 28 U.S.C. § 1491(a)(2) (2012), the court
This case shall be
IT IS SO ORDERED.
