ELAINE D. KAPLAN, District Judge.
Plaintiff Daniel Sokol is a former member of the United States Navy ("Navy"). He has filed this action under the Military Pay Act, 37 U.S.C. § 204 (2012), alleging that he was wrongfully discharged without referral to the Physical Evaluation Board ("PEB") for certain allegedly disabling conditions, specifically headaches, back pain, and a knee injury. He further argues that he qualified for, but was denied, disability retirement under 10 U.S.C. § 1201 (2012) with a minimum rating of fifty percent. He seeks "payment of all wrongfully denied pay and allowances due to him under the law"; "all out of pocket expenses for medical care incurred since his removal from active duty"; "[r]estoration to active duty until such time as Plaintiff's physical disability case is finally decided by the Secretary of the Navy"; "costs and attorney's fees"; and "such other relief as the Court deems just and proper." Am. Coml. at 7-8, ECF No. 23.
On December 20, 2011, Judge Danich, to whom this case was initially assigned, remanded Mr. Sokol's case to the Board for Correction of Naval Records ("BCNR"). Order, Dec. 20, 2011, ECF No. 13. The BCNR denied relief on April 1, 2013. Joint Status Report at 1, April 30, 2013, ECF No. 19. Thereafter, the parties filed cross-motions for judgment on the administrative record. This Court now
Mr. Sokol enlisted in the Navy on August 14, 2000 and served on active duty from 2001 to 2005.
Earlier in his enlistment, in November 2001, Mr. Sokol began complaining of chronic headaches. CAR 354-55. Although the doctors' notes documenting these complaints are practically illegible, it appears that because Mr. Sokol also complained of sinus symptoms, he was diagnosed with a sinus infection and prescribed an antibiotic, which made him "feel[] much better." CAR 45, 352-56.
On November 29, 2004, Mr. Sokol went to the emergency room at the Naval Medical Center Portsmouth, reporting that his right knee "gave out on him" and was causing him significant pain. CAR 60. The next day he saw another physician, Dr. Jennifer Reed, at the Naval Station Norfolk Sports Medicine Clinic. CAR 48. Mr. Sokol explained to Dr. Reed that several weeks earlier, he had experienced a "direct blow" to his right quadriceps "just above [the] patella." CAR 48. More specifically, Mr. Sokol alleges in his complaint that,
Am. Compl. ¶ 7. He explained to Dr. Reed that, although the pain from this injury had gradually improved, he experienced an acute increase in pain on November 29 while attempting an exercise run. CAR 48. Dr. Reed placed Mr. Sokol on light duty for three weeks, instructing him "no ladders," and placed him on Sick-In-Quarters
On January 10, 2005, a medical board placed Mr. Sokol on LIMDU for eight months. CAR 52-53, 61. Accordingly, he was transferred to a Transient Personnel Unit ("TPU") in Norfolk, Virginia, where he reported on January 19, 2005. CAR 61-62. On February 25, 2005, he was transferred to the Mid-Atlantic Regional Maintenance Center onboard Naval Station Norfolk. CAR 64, 171. Five months later, on July 27, 2005, he was cleared for return to medically unrestricted duty, effective on September 10, 2005, although Captain Robert Quigg of the Orthopedic Department recommended "not sea duty suitable" and "no running/no jumping/no impact activity." CAR 802. Despite having been cleared for medically unrestricted duty, Mr. Sokol continued to complain of knee pain, according to records of an ER visit on September 17, 2005 and a follow-up visit on September 29, 2005. CAR 210-13.
On October 19, 2005, Mr. Sokol had a headache, vertigo, and an episode of unconsciousness, and he underwent a spinal tap to rule out meningitis. CAR 30, 288. After that procedure, on October 25, 2005, he reported to the emergency room with complaints of lower back pain. CAR 289-91. He was examined, prescribed Vicodin, and discharged. CAR 287. He continued to complain of back pain during visits to the ER on November 2 and to the primary care clinic on November 4, 2005. CAR 284-85. Records from those visits note that a CT scan of his back had been taken to rule out an epidural abscess, and the results were normal.
Mr. Sokol was honorably discharged from active duty on November 16, 2005 based on completion of required service. CAR at 152. In connection with his discharge, he underwent a final medical examination, in which the examiner noted his knee injury as well as his complaints of "constant back pain," severe headaches, and "TMJ disorder," but concluded that Mr. Sokol was "in good health." CAR 273-77.
Later, following his separation, Mr. Sokol filed a disability claim with the Department of Veterans Affairs ("VA"). CAR 703. In connection with his VA disability claim, he underwent various medical examinations by VA doctors.
On March 17, 2006, the VA issued a decision awarding Mr. Sokol disability ratings of ten percent for post-traumatic headaches, ten percent for lumbar strain, and ten percent for his knee injury. CAR 703. On August 30, 2007, the VA increased the rating for his back injury to twenty percent, and on October 16, 2007, the VA increased the rating for his headaches to thirty percent and added ratings for seborrheic dermatitis and tinnitus, both at ten percent.
Mr. Sokol filed this lawsuit on November 15, 2011, some six years after his discharge. Shortly thereafter, the Court granted the parties' joint motion for remand to the BCNR. Order, Dec. 20, 2011, ECF No. 13. In his memorandum accompanying his application to the BCNR, Mr. Sokol argued that under Navy regulations, his knee injury, as well as his headaches and back pain, required referral to the PEB. CAR 31. As relief, he "request[ed] that his records be corrected to show that he was not separated aid that he be referred to a PEB for adjudication or, in the alternative, that he was permanently retired from the U.S. Navy due to physical disability rated at least 50% compensable." CAR 28.
The BCNR sought an advisory opinion from the Secretary of the Navy's Council of Review Boards ("CORB"). On January 8, 2013, the CORB issued its opinion, recommending "a partial grant of relief"—a disability rating of ten percent for patellofemoral pain syndrome with respect to Mr. Sokol's knee. CAR 8. The CORB reasoned that Mr. Sokol's knee injury warranted a disability rating because it caused a need for duty limitations "for almost two years prior to his separation."
On April 1, 2013, the Acting Executive Director of the BCNR issued a memorandum opinion on behalf of a panel of three members, each of whom voted to deny all relief to Mr. Sokol. CAR 1-2. The BCNR found that Mr. Sokol's allegations with respect to his head injury and back pain were unsubstantiated. CAR 3-4. With respect to Mr. Sokol's knee, the BCNR disagreed with the CORB's recommendation largely because, after completing about six months of limited duty, a medical board found Mr. Sokol fit for return to full duty. CAR 4-5. The BCNR also based its denial of relief for Mr. Sokol's knee injury on its judgment that Mr. Sokol lacked credibility. CAR at 3-6. It dismissed the medical records referring to his knee pain as "based on [Mr. Sokol's] representations, which are not reliable." CAR 4. For instance, in addressing records of a January 11, 2006 VA medical exam noting that Mr. Sokol exhibited an antalgic gait, CAR 725, the BCNR gave them no credence, stating that "[a]n antalgic gait is easily feigned, as are subjectively painful motion and motion limited by pain." CAR 6.
After receiving this denial, Mr. Sokol filed an amended complaint, and proceedings resumed in this Court, where the parties filed cross-motions for judgment on the administrative record. On November 25, 2013, Mr. Sokol's case was transferred to the undersigned. On July 25, 2014, this Court ordered supplemental briefs to address a notation in Mr. Sokol's medical record that, as of September 29, 2005, Mr. Sokol was "undergoing [an] MEB process/review." Order for Supplemental Brs., ECF No. 49 (citing CAR 210).
The Court scheduled oral argument on the cross-motions for judgment on the administrative record for February 3, 2015. Counsel for Mr. Sokol failed to either appear at the hearing or notify the Court in advance that he would not be able to appear. Consequently, at the oral argument, the Court heard argument only from counsel for the government.
Jurisdiction over Mr. Sokol's claim arises from the Tucker Act, 28 U.S.C. § 1491(a)(1) (2012) and the Military Pay Act, 37 U.S.C. § 204.
RCFC 52.1, which governs motions for judgment on the administrative record, "provide[s] for trial on a paper record, allowing fact-finding by the trial court."
The BCNR's authority arises from 10 U.S.C. § 1552 (2012) and 32 C.F.R. § 723.3, and its decisions are entitled to deference.
Mr. Sokol argues that the BCNR's decision in his case cannot survive this standard of review, both because the BCNR's conclusion was unreasonable and because it failed to comply with applicable procedures. As explained in the following analysis, Mr. Sokol's arguments are unpersuasive.
The heart of Mr. Sokol's complaint is that he should have been referred to the PEB and should have received disability ratings for his knee injury, headaches, and back pain and that the BCNR's decision to the contrary was arbitrary and capricious. Considering the deferential standard of review applicable to military decisions, however, the BCNR's conclusion that Mr. Sokol's ailments justified neither a PEB nor a disability rating must be upheld.
Secretary of the Navy Instruction (SECNAVINST) 1850.4E § 3201(a) sets forth the criteria for referral to the PEB for active duty members:
To clarify this somewhat broadly written rule, SECNAVINST 1850.4E § 3202 lists circumstances
Once a member is referred to the PEB, standards set forth in Enclosure 3, Part 3 of SECNAVINST 1850.4E govern determinations of unfitness, which in turn constitutes "[t]he sole standard to be used in making determinations of physical disability as a basis for retirement or separation." § 3301. In general, "[e]ach case is considered by relating the nature and degree of physical disability of the member to the requirements and duties that member may reasonably be expected to perform in his or her office, grade, rank or rating."
"Once unfitness has been determined, the PEB [determines] if the member is statutorily eligible to receive disability benefits before rating an individual." § 3405(b). Chapter 61 of title 10 of the United States Code requires, for instance, "that the disability is: (a) of a permanent nature or such a degree to preclude return to military duty within a reasonable period of time, and (b) not the result of intentional misconduct or willful neglect and was not incurred during a period of unauthorized absence." SECNAVINST 1850.4E § 3405.
Given the standards above, to find that Mr. Sokol was wrongly denied a PEB, the Court would have to conclude at the very least that, at some time before his separation from the Navy, each of his injuries was supported by "objective medical data" and that those injuries, either standing alone or in combination, called into question his ability to perform the duties of his office, grade, rank or rating. In particular, the Court would have to conclude that the BCNR's finding to the contrary was arbitrary and capricious. This is an extremely difficult hurdle that the Court concludes has not been overcome in this case.
Regarding Mr. Sokol's claim of post-traumatic headaches, as the BCNR noted, his medical record contains very little evidence that such headaches affected his ability to perform his duties. CAR 3. In support of his claim, Mr. Sokol has identified only (1) the records from a mental health assessment and a mental health follow-up in November 2001, which note that he "hit [his] head" but that he "fe[lt] much better," CAR 45-46; (2) notes from doctors' appointments in November 2001, which suggest that his headaches were related to a sinus infection, CAR 352-55; and (3) records from a post-separation compensation and pension exam by a VA doctor, which recount his history of head injuries but note that his headaches "were not debilitating," CAR 86.
The evidence upon which Mr. Sokol relies differs markedly from the evidence that has led courts to reverse denials of relief by the BCNR. For example, the court in
The evidence that Mr. Sokol identifies in support of his claim of back pain similarly lacks the "cogent and clearly convincing" quality necessary to find that the BCNR's conclusion was arbitrary and capricious.
Mr. Sokol's knee injury warrants more discussion. In contrast to his headaches and back pain, Mr. Sokol's knee pain has significant documentation in the record, starting with his ER visit on November 29, 2004. CAR 60. Medical records from December 2004 and from January, March, and April 2005 demonstrate that his knee pain persisted, and his naval records show that his doctors and superiors placed him on SIQ status, light duty, and eventually LIMDU for a period of eight months. CAR 295-98, 300-15, 802-817. Moreover, after being taken off LIMDU, Mr. Sokol re-aggravated his knee injury, and his doctor recommended pain management and "possible patella surgery if no other option." CAR 212-13. Likely because Mr. Sokol was nearing his separation date, his doctor also "recommend[ed] continued care/f[ollow] up at [the] VA for this condition/issue." CAR 212. Later, the VA attributed his knee condition a ten percent disability rating, CAR 638, as did the CORB in its advisory opinion to the BCNR. CAR 8.
Nevertheless, the BCNR concluded that Mr. Sokol's knee injury did not render him unfit for naval service, and the Court cannot say that this conclusion was arbitrary and capricious. The BCNR relied largely upon the finding in July 2005 that Mr. Sokol was fit to be returned from LIMDU to medically unrestricted duty. CAR 4-5. Further, there is additional evidence in the record that supports the BCNR's conclusion. Specifically, in his pre-separation medical examination, although the examining physician acknowledged that Mr. Sokol suffered a knee injury and had been "sent to pain management," the physician ultimately found that Mr. Sokol was "in good health." CAR 277. Particularly under the deferential standard that the Court must apply here, the Court cannot find that the BCNR acted arbitrarily and capriciously in accepting the opinions of medical professionals that Mr. Sokol was fit for duty in July 2005 and just prior to his separation in November 2005.
Mr. Sokol contends that the BCNR committed the following list of procedural errors, which he says render its decision arbitrary and capricious: it did not make written findings, conclusions, and recommendations, as required by 32 C.F.R. § 723.6, Pl.'s Am. Mot. for J. on AR 6; it did not fully consider Mr. Sokol's response to the advisory opinion,
32 C.F.R. § 723.6(a)(3). This provision, however, applies only to BCNR decisions "following a hearing" or "recommend[ing] that the record be corrected without a hearing."
§ 723.3(e)(4).
The BCNR's decision in Mr. Sokol's case met these requirements. For instance, as the primary "reason[] for the determination that relief should not be granted," the BCNR noted that it "was not persuaded that . . . any of your three claimed disabilities, either singly or in combination with any of the other conditions, rendered [Mr. Sokol] unfit for duty on the date of your release from active duty." CAR 3-4. As "the essential facts upon which the denial [was] based," the BCNR cited Mr. Sokol's medical records and observed, for example, that medical tests and examinations performed in response to his complaints of pain yielded nothing but normal results.
Like his first claim of procedural error on the part of the BCNR, Mr. Sokol's second claim, that the BCNR did not consider his letter in response to the CORB's advisory opinion, lacks merit. In fact, the BCNR referred to the response letter explicitly and noted that the letter merely "reiterated" the same "erroneous" arguments that Mr. Sokol presented in his original application. CAR 6. Although the BCNR misidentified the date of the letter as 13 March 2013, instead of 22 March 2014, the context makes clear that the BCNR was referring to Mr. Sokol's response to the CORB's advisory opinion. CAR 6. As even Mr. Sokol recognizes was a possibility, "the BCNR simply made a scrivener's error." Pl.'s Am. Mot. for J. on AR 11.
Mr. Sokol's third claim of procedural error regards the BCNR's request addressed to the VA for copies of VA rating decisions, copies of Mr. Sokol's original service record, and "[p]hotographs of all VA medical/compensation examinations, hospital summaries, other medical evaluation reports, VA statements of case, and [Board of Veterans Appeals] decisions." CAR 22. Mr. Sokol contends that the BCNR improperly obtained these records from the VA, in violation of three separate legal provisions. First, Mr. Sokol emphasizes that, under 32 C.F.R. § 723.2(b), the BCNR "is not an investigative body." Pl.'s Am. Mot. for J. on AR 7, 12 (quoting § 723.2(b)). He argues that, when the BCNR sought and obtained documents from the VA, it conducted an investigative activity, thereby exceeding the bounds of its authority under section 723.2(b). Pl.'s Am. Mot. for J. on AR 7, 12. The government responds that the BCNR, while "not an investigative body," "is also granted broad authority to `require the applicant or military authorities to provide such further information as it may consider essential to a complete and impartial determination of the facts and issues.' Def.'s Mot. 29 (quoting 32 C.F.R. § 723.6). "Here," the government contends, "the BCNR determined that the very limited set of materials provided by Mr. Sokol in support of his application was insufficient and, thus, acted in accordance with its regulatory authority to acquire the appropriate records necessary to accurately evaluate his application." Def.'s Mot. 29-30.
Second, Mr. Sokol argues that the BCNR's procurement of his records from the VA violated the Privacy Act. Pl.'s Am. Mot. for J. on AR 12. The government, however, counters that the BCNR's use of the records "in addressing the transition, health care, benefits, and administrative support needs of or for . . . [a] veteran[]" falls within the "routine use exception" to the Privacy Act under the VA's regulations, 94 Fed. Reg. 60,040, 60,046 (Nov. 19, 2009). Def.'s Mot. 30.
Third, Mr. Sokol argues that the BCNR's request for and receipt of Mr. Sokol's VA medical records violated HI PAA. Pl.'s Mot. for J. on AR 12. In response, the government contends that the VA entity that provided the records, the Board of Veterans Appeals, is not covered by HIPAA, and "once protected individually identifiable health information is in the hands of a non-covered entity, the regulations provide that such information is no longer subject to the provisions of the HIPAA privacy rule." Def.'s Reply 3-4, ECF No. 48 (citing Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,567 (Dec. 28, 2000)).
The Court is not persuaded that the BCNR's decision is vulnerable on any of these three grounds. First, as the government observes in its Cross-Motion and Response at 9, to the extent that Mr. Sokol seeks redress for the alleged HI PAA and Privacy Act violations, this Court lacks jurisdiction to grant it.
Moreover, to the extent that Mr. Sokol argues that the BCNR's decision is contrary to law because of its alleged reliance on illegally obtained evidence, this argument also founders. At the outset, the Court notes that Mr. Sokol has failed to explain how the BCNR's retrieval of his VA records prejudiced him or how the Court should remedy this alleged wrong. From the Court's perspective, even had the BCNR erred in retrieving records from the VA, this error would have been a harmless one. The BCNR's decision hinged primarily upon the fact that Mr. Sokol's physician found him fit for duty after his stint on limited duty and prior to his discharge—a fact that the BCNR did not need Mr. Sokol's VA records to discern, because that fact is revealed in his service records.
Furthermore, the Court rejects Mr. Sokol's argument that the BCNR committed error by seeking Mr. Sokol's VA records. A reasonable reading of 32 C.F.R. § 723.6 is that the VA, under these circumstances, constitutes one of the "military authorities" whom "the Board may require . . . to provide such further information as it may consider essential to a complete and impartial determination of the facts and issues." Even if this reading of the regulation is incorrect, had the BCNR not requested the records itself, the BCNR simply could have refused to consider Mr. Sokol's case until Mr. Sokol provided all relevant records, including those in the custody of the VA.
In his final claim of procedural error, Mr. Sokol cites a number of instances in the BCNR's opinion in which it dismisses Mr. Sokol's complaints of injury based on its judgment that Mr. Sokol lacks credibility.
The Court recognizes and agrees that "[t]he BCNR's credibility determinations are afforded the same level of deference as any of its fact-based determinations."
Nonetheless, the bottomline for the Court in this case is that, even leaving aside the BCNR's comments about Mr. Sokol's credibility, its conclusion that there was no error in the Navy's failure to refer Mr. Sokol to a PEB rests on substantial evidence that is, Mr. Sokol's return to medically unrestricted duty in July 2005 and a finding of fitness from his pre-separation medical examination in November 2005. For that reason, and in light of the Court's deferential standard of review, the government is entitled to judgment on the administrative record.
Based on the foregoing, Mr. Sokol's motion for judgment on the administrative record is
