     In the United States Court of Federal Claims
                                          No. 11-90C
                                    Filed: January 25, 2013
                                    TO BE PUBLISHED

*************************************            10 U.S.C. § 1201 (2006) (compensable
                                    *                   disabilities);
                                    *            10 U.S.C.A. § 1216a(b) (2012) (medical
NATHAN T. MEIDL,                    *                   conditions considered in disability
                                    *                   determinations);
      Plaintiff,                    *            Army Regulation 635-40 (physical evaluation
                                    *                   for separation);
v.                                  *            38 C.F.R. § 4.3 (resolving reasonable doubt in
                                    *                   disability ratings);
THE UNITED STATES,                  *            38 C.F.R. § 4.7 (choosing between two
                                    *                   disability evaluations);
      Defendant.                    *            RCFC 52.1 (judgment on the administrative
                                    *                   record);
                                    *            RCFC 52.2 (remanding to an administrative
                                    *                   body).
*************************************

Jason E. Perry, Cheshire, Connecticut, Counsel for Plaintiff.

Sheryl L. Floyd, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for Defendant.

Captain Rachel A. Landsee, United States Army Litigation Division, Of Counsel for
Defendant.

                        MEMORANDUM OPINION AND ORDER

I.     RELEVANT FACTS. 1

       On September 8, 1993, Nathan T. Meidl (“Plaintiff”) enlisted in the Army Reserve
Officers’ Training Corps (“Army ROTC”) program while attending the University of Wisconsin.
AR 209. On April 9, 1996, Plaintiff entered active duty in the United States Army. AR 99. On
April 30, 2000, he was appointed as a commissioned officer in the Active Guard Reserve
(“AGR”). AR 167.

       1
         The relevant facts are derived from the May 6, 2011 Administrative Record (“AR 1-
211”), as supplemented on July 8, 2011 (“SAR 1-16”), June 7, 2011 (“Pl. Ex. at 1-10”), and
February 27, 2012 (“Gov’t SR at A1-A38”), and discussed in large part in Meidl v. United States,
100 Fed. Cl. 1 (2011) (“Meidl I”).
         In 2000, while serving in the AGR, Plaintiff began to experience bilateral foot pain that
was aggravated by prolonged standing and running. AR 10. In 2001, he was diagnosed with pes
planus. 2 Id. In early 2002, Plaintiff began to experience pain as a result of degenerative changes
to his left wrist. AR 3, 10.

        On October 5, 2005, Plaintiff entered into active duty in Iraq as an Acquisitions Corps
Officer. AR 10, 95. In April 2006, while lifting weights, Plaintiff tore his left pectoralis major
and injured his shoulder, requiring surgery. AR 10, 95. As a result of these injuries, Plaintiff
had a limited range of motion and difficulty bearing more than five pounds of weight. AR 10.
On April 26, 2006, he was diagnosed with hypertension. AR 11.

        In October 2008, Plaintiff again was deployed to Iraq for a temporary tour of duty. AR
10. After his return to the United States, in April 2009, Plaintiff’s pes planus was “graded as
severe, bilaterally with pronation, intolerance to weight bearing, extended standing, and extended
walking.” AR 10-11. In June 2009, Plaintiff began to develop bilateral plantar fasciitis 3 that
was painful when he wore military footwear. AR 11. In 2009, Plaintiff suffered a basketball
injury; his left Achilles tendon ruptured, requiring orthopedic surgery and resulting in residual
heel pain. AR 11. Thereafter, Plaintiff’s military physicians directed that he be evaluated for
physical disability by a Medical Evaluation Board (“MEB”). 4 AR 1.

       On November 12, 2009, Plaintiff was examined at an orthopedic clinic in preparation for
evaluation by an MEB. 5 AR 1-3. The clinic examined Plaintiff’s left shoulder, his left ankle, a
surgical scar, and his left wrist. AR 2. The clinic concluded that Plaintiff’s left shoulder and
wrist pain did not meet Army retention standards, because they interfered with his ability to
perform military duties, but that Plaintiff’s left ankle pain met retention standards. AR 2. The
orthopedic clinic did not examine Plaintiff’s pes planus or plantar fasciitis. AR 28.

        On February 26, 2010, Plaintiff’s Commander recommended that the Army not retain
Plaintiff due to his left shoulder injury, left wrist pain, bilateral pes planus, and bilateral plantar

        2
        Pes planus is the medical term for flatfoot. See DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY at 1441 (31st ed. 2007) (“DORLAND’S”).
        3
            Plantar fasciitis refers to inflammation of the sole of the foot. See DORLAND’S at 692,
1476.
        4
            The Administrative Record does not contain a document reflecting the date of this
referral.
        5
          The Army may convene a medical evaluation “when a question arises as to the Soldier’s
ability to perform the duties of his or her office, grade, rank, or rating because of physical
disability.” Army Reg. 635-40 ¶¶ 4-6, 4-7, 4-8. A MEB is convened to “document a Soldier’s
medical status and duty limitations insofar as duty is affected by the Soldier’s status.” Army
Reg. 635-40 ¶¶ 4-10. If the MEB finds that a Soldier is not medically qualified for retention, a
referral is made to a Physical Evaluation Board. Id.

                                                  2
fasciitis, because Plaintiff could not perform his Military Occupational Specialty (“MOS”) as an
acquisition or logistics officer. AR 8.

       On February 28, 2010, however, an MEB considered Plaintiff’s medical condition and
concluded that, due to the condition of his left shoulder and left wrist and his pes planus, and
plantar fasciitis, Plaintiff did not meet the Army’s retention standards, but his left Achilles
tendon rupture and hypertension met retention standards. AR 10-13. As a result, the MEB
recommended a referral to a Physical Evaluation Board (“PEB”) 6 for further evaluation. AR 13.

       On March 9, 2010, before the PEB convened, Plaintiff was afforded an opportunity to
have the MEB’s findings reviewed by an impartial medical professional and to review the
MEB’s findings and submit any disagreement. AR 14. Plaintiff declined the opportunity for an
impartial medical evaluation and did not dispute the findings and recommendation of the MEB.
AR 15-17.

         On March 25, 2010, the PEB considered Plaintiff’s medical records and determined that
his chronic shoulder and wrist pain rendered him unfit for service, at a twenty percent disability. 7
AR 19-20. The PEB, however, determined that the bilateral pes planus, bilateral plantar
fasciitis, left Achilles tendon rupture, and hypertension did not warrant a disability rating. AR
19. Consequently, the PEB recommended a discharge with severance pay at a twenty percent
disability rate. AR 20.

        On March 31, 2010, after the PEB issued a determination, the orthopedic clinic also
issued an Addendum indicating that, although it had not examined Plaintiff’s bilateral pes planus
and plantar fasciitis, an examination by a podiatrist on April 13, 2009 found that these
conditions did not meet retention standards. AR 28.

        On April 7, 2010, Plaintiff acknowledged that he was informed of his rights by the PEB
Liaison Officer. AR 27. Plaintiff was given three options: (1) accept the PEB preliminary
findings and waive his right to a formal hearing; (2) contest the preliminary findings and waive
his right to a formal hearing; and (3) contest the preliminary findings and demand a formal
hearing. AR 27. Plaintiff concurred with the PEB findings and waived a formal hearing of his
case. AR 27.



       6
          PEBs have authority to evaluate a Soldier’s physical disability based on the following
three factors: 1) whether the Soldier is physically fit or unfit to perform the duties of the
Soldier’s office, grade, rank, or rating; 2) whether the disability is of a permanent nature; and 3)
whether the disability meets the criteria established by law for compensation. See Army Reg.
635-40 ¶¶ 4-19(a)(1)-(3). If the PEB determines that a Soldier is unfit because of a physical
disability and is entitled to benefits, the PEB determines a percentage rating for each disability
rendering the Soldier unfit for duty. See Army Reg. 635-40 ¶ 4-19(i).
       7
         The Veterans Affairs Schedule for Rating Disabilities is used to determine disability
ratings. See Army Reg. 635-40 ¶ 4-19.

                                                 3
       On June 27, 2010, Plaintiff was diagnosed with severe obstructive sleep apnea. Pl. Ex. at
6-7.

        On July 13, 2010, Plaintiff was discharged from active duty in the Army with disability
severance pay, but did not receive medical retirement because his disability rating was less than
thirty percent and he had fewer than twenty years of service. AR 19, 30.

II.    PROCEDURAL HISTORY.

         On February 10, 2011, Plaintiff filed a Complaint (“Compl.”) in the United States Court
of Federal Claims alleging that he was denied disability retirement pay and benefits to which he
is entitled under 10 U.S.C. § 1201. Compl. ¶ 22. The Complaint also alleges that the PEB failed
to: rate his disabilities at an eighty percent level; provide an adequate MEB evaluation; and apply
applicable evidentiary standards. Compl. ¶ 22.

      On May 6, 2011, the Government filed the Administrative Record and a Motion For
Judgment On The Administrative Record. On June 7, 2011, Plaintiff filed a Cross-Motion For
Judgment On The Administrative Record, together with attached Exhibits. On July 8, 2011, the
Government filed a Reply, together with a Supplemental Administrative Record.

        On August 10, 2011, the United States Court of Federal Claims remanded the case to the
Army Board for Correction of Military Records (“ABCMR”) for further administrative action
pursuant to RCFC 52.2. 8 See Meidl I. Specifically, the court ordered the ABCMR to consider
the following issues: (1) whether Plaintiff’s separation from active duty complied with applicable
laws and policies; (2) whether Plaintiff had unfitting physical conditions in addition to shoulder
and wrist pain at the time of separation; and (3) whether Plaintiff’s disability rating was
appropriate. Id. at 8. The case was stayed during the remand. Id.

       On October 24, 2011, the United States Army Physical Disability Agency (“USAPDA”)
issued an advisory opinion “[r]ecommending no change to the Plaintiff’s military records.”
Gov’t SR at A35-A38. On December 13, 2011, Plaintiff responded that the USAPDA factual
findings were incorrect and that the recommendation to deny relief was contrary to law and did
not address the injustices in the case. Gov’t SR at A18-A34.

        On February 2, 2012, the ABCMR denied Plaintiff’s request for relief. Gov’t SR at A3-
A17. The ABCMR found: (1) Plaintiff’s separation from service complied with applicable laws
and policies; (2) Plaintiff properly was processed through the Army’s physical disability
evaluation system; (3) Plaintiff was provided an appropriate disability rating based on the
unfitting conditions identified by the PEB; and (4) Plaintiff’s rights were fully protected during
the separation process. Gov’t SR at A15-A17.

       On May 18, 2012, Plaintiff filed a Supplemental Brief In Support Of Plaintiff’s Motion
For Judgment On The Administrative Record in the United States Court of Federal Claims (“Pl.
       8
          The court, sua sponte, may “order the remand of appropriate matters to an
administrative or executive body or official.” RCFC 52.2(a).

                                                4
Supp.”). On June 22, 2012, the Government filed a Supplemental Brief In Opposition To
Plaintiff’s Cross-Motion For Judgment On The Administrative Record And In Support Of
Defendant’s Motion For Judgment On The Administrative Record (“Gov’t Supp.”). On July 10,
2012, Plaintiff filed a Reply (“Pl. Reply”).

II.    DISCUSSION.

       A.      Jurisdiction And Standing.

        The jurisdiction of the United States Court of Federal Claims is established by the Tucker
Act. See 28 U.S.C. § 1491. The Tucker Act authorizes the court “to render judgment upon any
claim against the United States founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or implied contract with the
United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28
U.S.C. § 1491(a)(1). The Tucker Act, however, is “a jurisdictional statute; it does not create any
substantive right enforceable against the United States for money damages. . . . [T]he Act merely
confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive
right exists.” United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must
identify and plead an independent contractual relationship, constitutional provision, federal
statute, or executive agency regulation that provides a substantive right to money damages. See
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (“The Tucker Act itself
does not create a substantive cause of action; in order to come within the jurisdictional reach and
the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that
creates the right to money damages.”). The burden of establishing jurisdiction falls upon the
plaintiff. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (holding that the burden is on
the plaintiff to allege facts sufficient to establish jurisdiction); see also RCFC 12(b)(1)
(establishing lack of subject matter jurisdiction as a defense).

        In Meidl I, the court determined that the February 10, 2011 Complaint invoked the
jurisdiction of the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. §
1491(a)(1) as it challenged the determination of Plaintiff’s disability status under 10 U.S.C. §
1201. Compl. ¶ 2; see also Sawyer v. United States, 930 F.2d 1577, 1580-81 (Fed. Cir. 1991)
(holding that claims challenging disability status under 10 U.S.C. § 1201 may be adjudicated by
the United States Court of Federal Claims). In addition, although Plaintiff “voluntarily waived
judicial review of the informal PEB[,]” he retained the right to seek administrative review of the
informal PEB decision and judicial review of that administrative review. See Meidl I, 100 Fed.
Cl. at 8. The court remanded the case to the ABCMR. Id.

        In addition, in Meidl I, the court determined that the February 10, 2011 Complaint
alleged that Plaintiff suffered an injury in fact that can be determined in a specific amount and is
traceable to the Army’s unlawful determination of disability retirement pay and benefits. Compl.
¶ 22; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81
(2000) (“[A] plaintiff must show [that] it has suffered an ‘injury in fact’ that is . . . concrete and
particularized and . . . actual or imminent, not conjectural or hypothetical; . . . the injury is fairly
traceable to the challenged action of the defendant; and . . . it is likely, as opposed to merely



                                                   5
speculative, that the injury will be redressed by a favorable decision.” (internal citations
omitted)).

       B.      Standard For Judgment On The Administrative Record, Pursuant To RCFC
               52.1.

        A motion for judgment on the administrative record, pursuant to RCFC 52.1, is akin to an
expedited trial on the record and has no counterpart in the Federal Rules of Civil Procedure. See
RCFC 52.1, Rules Committee Note (July 13, 2009); see also Bannum, Inc. v. United States, 404
F.3d 1346, 1356 (Fed. Cir. 2005) (“[T]he judgment on an administrative record is properly
understood as intending to provide for an expedited trial on the record.”). Accordingly, on a
motion for judgment on the administrative record, the court is required to determine whether the
plaintiff has met the burden of proof to show that the relevant federal agency decision was
without a rational basis or not in accordance with the law. Id. at 1348 (instructing the trial court
to make “factual findings under RCFC [52.1] from the [limited] record evidence as if it were
conducting a trial on the record”); see also Afghan Am. Army Servs. Corp. v. United States, 90
Fed. Cl. 341, 355 (2009) (“In reviewing cross-motions for judgment on the administrative
record, the court must determine ‘whether, given all the disputed and undisputed facts, a party
has met its burden of proof based on the evidence in the record.’” (citations omitted)). The
existence of a material issue of fact, however, does not prohibit the court from granting a motion
for judgment on the administrative record, nor is the court required to conduct an evidentiary
proceeding. See Bannum, 404 F.3d at 1353-54 (“RCFC [52.1] requires the [United States] Court
of Federal Claims, when making a prejudice analysis in the first instance, to make factual
findings from the record evidence as if it were conducting a trial on the record.”).

        The United States Court of Federal Claims “reviews a [board for correction of military
records] decision to determine if it is arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.” Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004). A plaintiff
must “show by cogent and clearly convincing evidence” that the board’s decision failed by at
least one of those standards. Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986).

       The court now applies this standard of review to the ABCMR’s February 2, 2012 remand
decision.

       C.      Whether The Army Board For Correction Of Military Records’ Finding
               Regarding Plaintiff’s Pes Planus And Plantar Fasciitis Was Contrary To
               Law, Arbitrary, Capricious, Or Unsupported By Substantial Evidence.

        Plaintiff asserts that the ABCMR decision violated 10 U.S.C. §§ 1201, 1216a; 38 C.F.R.
§§ 4.3, 4.7; and Army Reg. 635-40 ¶ 4-19 and was arbitrary and capricious. Pl. Supp. at 5-6.

        Plaintiff asserts that the ABCMR was arbitrary and capricious in pointing to the
longstanding nature of Plaintiff’s foot conditions as evidence that they did not make him unfit for
service. Pl. Supp. at 5 (“There is no statutory or regulatory reason why the timing of these
disabilities . . . was a disqualifying factor for compensability.” (citing 10 U.S.C. § 1201 (2006)
(basing disability determinations on conditions “not noted at the time of the [service] member’s
entrance on active duty”) and Army Reg. 635-40 ¶ 4-19 (compensating disabilities “incurred or

                                                 6
aggravated while the Soldier was entitled to basic pay”))). The Government responds that
Plaintiff’s ability to continue performing his duties after his foot conditions were diagnosed
evidences that they did not render him unfit to serve. Gov’t Supp. at 8 (quoting Army Reg. 635-
40 ¶ 3-1 (“[I]t is necessary to compare the nature and degree of physical disability present with
the requirements of the duties the Soldier reasonably may be expected to perform because of
their office, grade, rank, or rating.”)). The ABCMR also quoted Army Reg. 635-40 ¶ 3-1 and, by
implication, applied it when noting Plaintiff’s “outstanding duty performance record over the
period he suffered from the conditions.” Gov’t SR at A13, A15. For these reasons, the court has
determined that the ABCMR’s consideration of the timing of Plaintiff’s disabilities was not
arbitrary or capricious.

        Next, Plaintiff argues that “there is no statutory or regulatory requirement that a condition
be ‘aggressively treated with appropriate medication’ before being compensable.” Pl. Supp. at 5.
The Government does not challenge that assertion. Gov’t Supp. at 6-9. But, Plaintiff cites no
statute nor regulation that barred the PEB from considering the treatment of Plaintiff’s condition
as evidence of the condition’s impact on his fitness for duty. Pl. Supp. 3-6. For this reason, the
court also has determined that the ABCMR’s consideration of Plaintiff’s medical treatment was
not contrary to law.

      Plaintiff also asserts that the ABCMR failed to consider evidence from Plaintiff’s
Commander as to the consequences of Plaintiff’s foot conditions. Pl. Supp. at 5-6. The record,
however, confirms that the ABCMR did consider that evidence:

       Although the [C]ommander included these conditions in his statement regarding
       the applicant’s fitness for duty, the limitation on the applicant’s duty performance
       only became apparent with the progression of the left shoulder and wrist pain.
       The medical evidence related to these conditions do [sic] not show his bilateral
       foot pain disqualified the applicant from taking an alternate [Army Physical
       Fitness Test] or rendered him unfit to perform his duties as a field grade
       acquisition officer.

Gov’t SR at A15. Instead of failing to consider the evidence from Plaintiff’s Commander, the
ABCMR merely reached a conclusion with which Plaintiff disagreed, and that disagreement does
not establish that the ABCMR was arbitrary or capricious in its consideration of the
Commander’s statement.

        Plaintiff adds that the ABCMR also failed to consider that the Veterans Affairs Schedule
for Rating Disabilities required a fifty percent disability rating for Plaintiff’s pes planus and
plantar fasciitis. Pl. Supp. at 6 (citing 38 C.F.R. § 4.3 (stating that doubt regarding a disability
should be resolved in favor of the claimant); 38 C.F.R. § 4.7 (“Where there is a question as to
which of two evaluations shall be applied, the higher evaluation will be assigned if the disability
picture more nearly approximates the criteria required for that rating.”); and AR 28 (Medical
Board Addendum recommending that, based on Plaintiff’s Apr. 13, 2009 podiatry evaluation, the
PEB consider Plaintiff’s foot conditions in evaluating him for a disability)). Because the
ABCMR concluded that Plaintiff’s foot conditions were not unfitting, the ABCMR had no
reason to address the appropriate disability rating for those conditions. See 10 U.S.C.A. §
1216a(b). For these reasons, the court has further determined that the ABCMR’s failure to
                                                 7
address the appropriate disability rating for Plaintiff’s foot conditions was neither arbitrary nor
capricious.

         Section 1216a provides that disability ratings “shall take into account all medical
conditions, whether individually or collectively, that render the member unfit to perform the
duties of the member’s office, grade, rank, or rating.” 10 U.S.C.A. § 1216a(b) (2012) (emphasis
added). Plaintiff argues that although the ABCMR concluded that his foot conditions alone did
not render him unfit for duty, it failed to consider whether his foot conditions contributed to
rendering him unfit for duty. Pl. Supp. at 6; Pl. Reply at 10. The Government does not counter
this argument; in fact, it replaces the words “whether individually or collectively” with an
ellipsis when it quotes from section 1216a(b). Gov’t Supp. at 8-9 (“[T]he statute provides that,
in making rating determinations, the military will ‘take into account all medical conditions . . .
that render the member unfit to perform the duties of the member’s office, grade, rank, or
rating.’”). The ABCMR Record of Proceedings supports Plaintiff’s contention. Gov’t SR at A3-
A17. The ABCMR reviewed “whether [Plaintiff] had unfitting physical conditions in addition to
the shoulder and wrist pain at the time of separation,” instead of whether Plaintiff had physical
conditions in addition to his shoulder and wrist pain that contributed to rendering him unfit for
service. Gov’t SR at A14; see also Gov’t SR at A15 (discussing whether Plaintiff “had other
unfitting physical conditions in addition to shoulder and wrist pain,” rather than whether other
conditions contributed to rendering Plaintiff unfit for service). The ABCMR’s review of the
PEB’s reasoning reflects this focus on whether the foot conditions, in isolation, were unfitting.
Gov’t SR at A15. The fact that the conditions were “long standing” and had not previously
rendered Plaintiff unfit for service (Gov’t SR at A15) had no bearing on whether they
contributed to his unfitness, once he incurred his shoulder and wrist injuries. Furthermore, the
ABCMR concluded that Plaintiff’s initial concurrence with the PEB’s findings “shows he
understood his unfitness was primarily related to his left shoulder and wrist pain.” Gov’t SR at
A15 (emphasis added). Section 1216a(b), however, does not limit disability ratings to the
primary cause of a soldier’s unfitness; it requires that disability ratings “take into account all
medical conditions, whether individually or collectively, that render the member unfit.” 10
U.S.C.A. § 1216a(b).

         By failing to consider whether Plaintiff’s foot conditions contributed to rendering him
unfit, the ABCMR violated the applicable statute and acted arbitrarily and capriciously. See Ala.
Aircraft Indus. Inc.-Birmingham v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009) (“Courts
have found an agency's decision to be arbitrary and capricious when the agency ‘entirely failed
to consider an important aspect of the problem[.]’” (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).

       D.      Whether The Army Board For Correction Of Military Records’ Finding
               Regarding Plaintiff’s Sleep Apnea Was Arbitrary, Capricious, Contrary To
               Law, Or Unsupported By Substantial Evidence.

        Plaintiff raises two arguments regarding his sleep apnea: it was unfitting at the time of
Plaintiff’s MEB and PEB and should have been rated then; or it became unfitting after Plaintiff’s
MEB and PEB, but before his separation from the Army, so that the MEB and PEB decisions
were legally insufficient. Pl. Supp. at 8 (citing Army Reg. 635-40 ¶ 2-8, requiring MEBs be

                                                8
“complete, accurate, and fully documented”). The Government argues that “[i]t is evident from
the fact that Mr. Meidl did not raise any concerns about his sleep apnea before the MEB or the
PEB that this condition was not unfitting at the time of his separation from the Navy [sic].”
Gov’t Supp. at 11. But this is a non sequitur, because the MEB and PEB evaluations occurred
months before Plaintiff’s separation from the Army. AR 1-3 (stating that the orthopedic
evaluation for Plaintiff’s MEB occurred on Nov. 12, 2009); AR 16-17 (stating that Plaintiff’s
MEB proceedings were on Mar. 2, 2010); AR 19-20 (stating that the PEB considered Plaintiff’s
case on Mar. 25, 2010); AR 19, 30 (stating that Plaintiff was discharged on July 13, 2010). The
ABCMR addressed only whether Plaintiff’s sleep apnea was unfitting at the time of his MEB
and PEB evaluations. Gov’t SR at A16 (stating that the evidence available to the MEB and PEB
did not support the conclusion that Plaintiff’s sleep apnea was unfitting, and listing that
evidence). Although the ABCMR wrote that “the medical evidence related to this condition is
not sufficiently compelling to show this condition was unfitting at the time of his separation,”
the evidence cited for that proposition is that Plaintiff did not raise sleep apnea “before the MEB
or PEB . . . during the [Physical Disability Evaluation System] process.” Gov’t SR at A16
(emphasis added). The ABCMR report also fails to document any consideration given to the
possibility that Plaintiff’s condition became unfitting after the MEB and PEB but before his
separation from the Army. By failing to consider whether Plaintiff’s sleep apnea became
unfitting after the MEB and PEB evaluations but before his separation from the Army, the
ABCMR acted arbitrarily and capriciously. See Ala. Aircraft Indus. Inc.-Birmingham, 586 F.3d
at 1375 (“Courts have found an agency's decision to be arbitrary and capricious when the agency
‘entirely failed to consider an important aspect of the problem[.]’” (quoting Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43)).

III.   CONCLUSION.

        For these reasons, the court has determined that this case must be remanded to the
ABCMR for further administrative action, pursuant to RCFC 52.2. The case is stayed for the
duration of remand proceedings. The Government is directed to report to the court 90 days
hereafter as to on the status of the remand proceedings. The ABCMR is directed to provide the
court with a decision within 180 days.

        On remand, the ABCMR is to consider the following issues: whether Plaintiff’s foot
conditions contributed to rendering him unfit; whether Plaintiff’s sleep apnea became unfitting
after the MEB and PEB proceedings, but before Plaintiff’s separation from the Army; and, in
light of its resolution of those two issues, whether, Plaintiff's disability rating was appropriate.
The ABCMR is directed to take any corrective action deemed appropriate based on its review
and to advise the court of the same.

       IT IS SO ORDERED.

                                                      s/ Susan G. Braden
                                                     SUSAN G. BRADEN
                                                     Judge




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