Hall v. Dep't of Def.

FRANKIE D. HALL, Plaintiff, v. DEPARTMENT OF DEFENSE, Defendant.

Civil Case No. 19-2354 (RJL)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Filed: March 17, 2021

March 16, 2021

MEMORANDUM OPINION

[Dkt. ## 11, 12]

Plaintiff Sergeant Frankie D. Hall ("plaintiff" or "Hall"), an Army veteran, brings this suit against the Department of Defense ("defendant" or "DoD"), challenging the Physical Disability Board of Review's ("PDBR" or "Board") decision finding that plaintiff's obstructive sleep apnea was not "unfitting" for continued military service at the time of his medical separation from the Army. Plaintiff contends that the Board's decision was arbitrary and capricious in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. See Compl. ¶¶ 12-14 [Dkt. #1]. Before this Court are the parties' cross-motions for summary judgment. See Pl.'s Mot. for Summ. J. [Dkt. #11] ("Pl.'s Mot."); Def.'s Mot. for Summ. J. [Dkt. # 12] ("Def.'s Mot."). For the following reasons, defendant's motion for summary judgment [Dkt. # 12] is GRANTED, and plaintiff's motion [Dkt. # 11] is DENIED.

BACKGROUND

I. Statutory Scheme.

Under 10 U.S.C. § 1201 et seq., Congress established a statutory framework under which DoD 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 the medically unfitting condition. See Chatman v. DOD, 270 F. Supp. 3d 184, 185 (D.D.C. 2017) (citing 10 U.S.C. §§ 1201-22, 1552-59).

Under DoD's process, a soldier is first referred to the medical evaluation board ("MEB") for evaluation if the soldier has a medical condition "which may render [him] unfit for further military service and which fall below" required medical fitness standards. Army Regulation ("Army Reg.") 40-501, ¶ 3-1. But "[p]ossession of one or more of [the medical conditions] does not mean automatic retirement or separation from the Service." Id. ¶ 3-4. Instead, the MEB evaluates whether the soldier meets the retention standard criteria in Army Regulation 40-501. Id. Relevant here, sleep apnea can be cause for a finding that a soldier does not meet the retention standards when it causes "daytime hypersomnolence [i.e. severe sleepiness] or snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, surgery, or oral prosthesis." Id. 3-41(c).

If the soldier does not meet the retention standard, the MEB refers the soldier to a physical evaluation board ("PEB"). Id. ¶ 3-4; Army Reg. 635-40, ¶¶ 4-10, 4-13 (Sept. 1, 1990). The PEB then "consider[s] the results of the MEB, as well as the requirements ofthe soldier's [military occupational specialty],¹ in determining fitness" or unfitness. Army Reg. 40-501, ¶ 3-4; Army Reg. 635-40, ¶ 4-17. In other words, the PEB conducts "a more thorough investigation into the nature and permanency of the servicemember's condition and makes independent findings as to whether the servicemember is fit for duty and qualifies for disability retirement." Fulbright v. McHugh, 67 F. Supp. 3d 81, 85-86 (D.D.C. 2014). A case so referred begins with an informal evaluation and decision by the PEB. Army Reg. 635-40, ¶ 4-20. Thereafter, a soldier may either concur with the informal PEB decision or demand a formal hearing and present rebuttal findings and recommendations. Id. ¶ 4-21.

At the time of plaintiff's evaluation, the PEB's decision was governed by DOD Instruction 1332.38 Physical Disability Evaluation ("DoDI 1332.38"). Under DoDI 1332.38, a servicemember is unfit "when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating ...." DoDI 1332.38, ¶ E3.P3.2.1. Only soldiers who the PEB determines are "unfit" may be entitled to retirement or separated with disability benefits. Id. ¶ E3.P4.1. The PEB provides a disability rating for each of the unfitting conditions, represented by a percentage. For plaintiff to receive a military disability retirement (and accompanying benefits), he needs a combined disability rating of at least 30%. 10 U.S.C. § 1201.

Congress established the Physical Disability Board of Review to assess the findings and decisions of PEB decisions for former servicemembers who were discharged between September 11, 2002 and December 31, 2009 with a disability rating of 20% or less. 10 U.S.C. § 1554a. The PDBR reviews the PEB's decisions, the evidentiary record, and other evidence submitted by the soldier. Id. § 1554a(c). The Board then submits a recommendation to the Secretary of the Army concerning whether to modify the disability rating or recharacterize the soldier's discharge from a separation to a medical retirement. Id. § 1554a(d). If the Board does not recommend changing the record, the decision is final. Id. § 1554a(e). But if the Board recommends changing the record, the Deputy Assistance Secretary of the Army (Review Boards) is permitted to change the records on behalf of the Secretary. Id.

II. Procedural History.

Plaintiff served in the U.S. Army from July 1995 until he was honorably discharged as a Sergeant in June 2003. Pl.'s Mot. at 3 (Administrative Record ("AR") 20); Def.'s Mot. at 4 (AR 600). While in the Army, plaintiff served as a signals intelligence analyst. Pl.'s Mot. at 4 (AR 20); Def.'s Mot. at 4-5 (AR 600). His last duty assignment in the Army was at the National Security Agency ("NSA"). Pl.'s Mot. at 4; Def.'s Mot. at 28.

According to plaintiff's annual evaluations, he was an exemplary soldier. Between November 2000 and April 2001, plaintiff received the highest rating of "1-1" and a rating of "excellence (exceeds standards)" in "Physical Fitness & Military Bearing." AR 264-65. Plaintiff maintained his 1-1 ranking the following year, exceeded the battalion fitness goal, and even completed courses at the National Cryptologic School and University ofMaryland. AR 262-63. Plaintiff was recommended for early promotion because he "perform[ed] all duties to the highest standards." Id.

Plaintiff's claim here concerns his obstructive sleep apnea ("OSA"). OSA is a breathing disorder that occurs "during sleep due to narrowing or total closure of the airway," resulting "in fatigue, excessive daytime sleepiness and more serious physiological problems including irregular heartbeat, high blood pressure and occasionally heart attack or stroke." AR 324.

Plaintiff was first referred to a medical evaluation board in August 2002, after a basketball injury in 1998 resulted in ongoing knee issues. Pl.'s Mot. at 4; Def.'s Mot. at 5 (AR 244-46). During plaintiff's MEB examination on August 12, 2002, plaintiff completed a "Report of Medical History," in which he did not report having frequent trouble sleeping or any complaints attributable to OSA. AR 449-51. But the next day, plaintiff told the physician conducting his interview that he would wake up once or twice a month and be unable to fall back to sleep, woke up feeling tired once or twice a week, and reported that his wife noted his snoring and her difficulty waking him up. Pl.'s Mot. at 4 (AR 51); Def.'s Mot. at 5 (AR 448).

As part of the MEB examination, plaintiff's commanding officer drafted a memorandum that included his observations on plaintiff's performance as related to his knee injury. AR 255. The commanding officer's report does not, however, mention plaintiff's OSA or any concerns related to fatigue. Id. The report concludes that plaintiff's "current physical condition [did] not prevent him from performing any of his assigned duties." Id.

Plaintiff underwent a series of sleep evaluations between September 2002 and January 2003 while the MEB process was still pending. Plaintiff scored between a 6 and a 10 out of 24 on the Epworth Sleepiness Scale, which is a self-assessment that rates sleepiness, with the higher scores indicating more sleepiness. AR 458, 439, 440. In October 2002, the MEB referred plaintiff to a physical evaluation board to assess his OSA further. AR 231.

A month later, in November 2002, plaintiff was diagnosed with severe OSA and opted to try a continuous positive airway pressure ("CPAP") device to treat his OSA. Pl.'s Mot. at 5 (AR 52); Def.'s Mot. at 5 (AR 440).

In February of 2003, the informal PEB found plaintiff fit for duty, stating that he could "train for and perform an alternate aerobic event for the [Army Physical Fitness Test] and perform all the functional activities of a soldier." AR 237. This PEB, however, did not address OSA. Id.

Plaintiff appealed the PEB's findings and informed the PEB of his OSA diagnosis. AR 239-40. Plaintiff included a letter from his treating sleep disorder provider, who stated that plaintiff was diagnosed with OSA and—although his CPAP usage was improving—was having trouble adjusting to CPAP. AR 240. Notably, the sleep disorder specialist stated that plaintiff "could be deemed deployable" if plaintiff used—and showed improvement with—an oral device, which he was in the process of obtaining. Id. Apart from this comment on deployability, the provider's letter does not mention any daytime symptoms or limitations from plaintiff's OSA. Id.

In response to plaintiff's appeal of the PEB findings, the Army conducted an informal reconsideration PEB on March 6, 2003. AR 229-30. The informal reconsideration PEB concluded that plaintiff's OSA was "not unfitting," and plaintiff concurred with these findings and waived a formal hearing on March 14, 2003. AR 230. Plaintiff voluntarily separated from the Army in June 2003. Pl.'s Mot. at 6 (AR 20); Def.'s Mot. at 7 (AR 600).

After he left the Army, plaintiff worked as a system engineer for Titan Corporation. AR 221. In December 2003, plaintiff underwent a Department of Veterans Affairs ("VA") Compensation and Pension Examination ("C&P Exam"). AR 40-44, 221-24. During the C&P Exam, plaintiff discussed his OSA and shared his wife's complaints that he snored loudly and would stop breathing at...