        In the United States Court of Federal Claims
                                   No. 12-785C
                            (E-Filed: August 17, 2015)
_____________________________________
                                           )
RICHARD P. WATSON,                         )
                                           )
                  Plaintiff,               )
                                           )
v.                                         )
                                           )
THE UNITED STATES OF AMERICA,              )
                                           )
                  Defendant.               )
_____________________________________ )

                                        ORDER

        Currently pending before the court is defendant’s motion for a voluntary remand
to an Army Medical Evaluation Board (MEB), filed May 26, 2015. Def.’s Mot., ECF
No. 52. In an order dated July 10, 2015, the court advised that it was inclined to grant
defendant’s motion. July 10, 2015 Order at 3, 5, ECF No. 62. The court further advised
that it might reconsider the strict guidelines it imposed upon the Army in an earlier
remand order, dated August 13, 2014. See id. at 3; cf. Watson v. United States (Watson
II or August 2014 remand order), 118 Fed. Cl. 266, 272–73 (2014) (limiting the MEB’s
review “to clinical, health, and other records that existed on or before November 22,
2006” with respect to Mr. Watson’s optic atrophy diagnosis and “to clinical, health, and
other records that existed on or before February 5, 2007” with respect to Mr. Watson’s
optic neuritis diagnosis).

       During a telephonic status conference held on July 21, 2015, counsel for both
parties agreed that this matter should be remanded to an MEB for a third time to
determine whether Mr. Watson met medical retention standards during the relevant time
period.1 See July 21, 2015 Order, ECF No. 64. The parties further agreed to file a Joint
Status Report (JSR) that addressed: (1) the appropriate retention standard that the MEB
should apply on remand; and (2) the time periods (and corresponding records) to which




1
       The telephonic status conference (TSC) held on July 21, 2015 was recorded by the
court’s electronic digital recording (EDR) system. ECF No. 65. The times noted in this
Order refer to the EDR record of the TSC.
the MEB’s review should be limited. Id. The court urged the parties to reach an
agreement as to these two matters. Id.

       The parties filed the JSR on August 11, 2015. JSR, ECF No. 68. As to the first
matter, “[t]he parties agree that the appropriate retention standard to be applied on
remand is Army Regulation 40-501, Chapter 3, which was in effect during Mr. Watson’s
term of service.” JSR at 4; cf. Watson v. United States (Watson I), 113 Fed. Cl. 615, 621
n.7 (2013) (applying the version of Army Regulation 40-501 effective February 1, 2005,
but observing that, “except for differences in capitalization of certain words,” the relevant
provisions of that version of Army Regulation 40-501 was identical to the version
effective December 14, 2007).

        As to the second matter, however, the parties disagree. In defendant’s view, the
MEB’s “review should include all medical records related to Mr. Watson’s optic nerve
atrophy and optic neuritis diagnoses, including his response to treatment, during his
active service.” JSR at 3 (emphasis added). Plaintiff counters that the MEB’s review
“should be limited to the medical records in existence on November 22, 2006, with
respect to [Mr. Watson’s] optic nerve atrophy diagnosis, and February 5, 2007, with
respect to his optic neuritis diagnosis,” id. at 1, as the court had previously instructed in
its August 2014 remand order, see Watson II, 118 Fed. Cl. at 272–73. Plaintiff argues in
the alternative that “if the [c]ourt chooses to modify [its August 2014] remand order to
permit the [MEB] to consider records past February 5, 2007,” the MEB’s review on
remand should include medical records that post-date his discharge—namely, his
Veterans Administration (VA) medical records. JSR at 2.

       At this time, the court is persuaded that the MEB should be permitted to consider
records that post-date February 5, 2007. As noted in its July 10, 2015 order, “[t]he Army
Regulations provide that an MEB narrative summary should include a statement
‘regarding the prognosis for functional status,’ and that ‘[t]he stability of the current
clinical condition and functional status should be addressed.’” July 10, 2015 Order at 3
(second alteration in original) (citing Army Reg. 40–400 ¶ 7-24d(3)–(5) (effective Oct.
13, 2006)). Thus, on remand, the MEB may consider medical and other records that bear
on the prognosis of Mr. Watson’s diagnoses of optic neuritis and atrophy of the optic
nerve—to include records that post-date February 5, 2007. Whether those records should
be limited to those in existence on or before July 11, 2008—the date of Mr. Watson’s
discharge from active duty service—or some later date is the subject of the parties’
disagreement. Cf. Watson I, 113 Fed. Cl. at 625 (observing that “Mr. Watson was
discharged on July 11, 2008”).

      As support for its position that the MEB’s review should not include Mr. Watson’s
VA records (or any other records that post-date Mr. Watson’s July 11, 2008 discharge),
defendant contends that such “records would not, and could not have been considered by
the MEB in determining whether Mr. Watson met retentions standards for active duty,


                                              2
which is the focus of the MEB’s inquiry on remand.” JSR at 3 (citing Army Reg. 40-400,
Ch. 7).

       As support for plaintiff’s position that the MEB’s review “be extended to include
his evaluation and diagnosis by the [VA],” plaintiff points to Stuart v. United States, 108
Fed. Cl. 458 (2013), which provides, in relevant part:

       The petitioner may prevail if he can show that if the complete facts
       concerning his condition had been known at that time he would have been
       entitled to retirement by reason of physical disqualification under the
       pertinent laws and regulations . . . . To this end, reference must of necessity
       be made to his subsequent medical history insofar as it sheds light on the
       nature of his physical condition while in service. Evidence of progressive
       deterioration and later discovered symptoms and disabilities may be decisive
       if it can establish that plaintiff's incapacity while in service was substantially
       more serious than suspected and that previous diagnoses were inadequate or
       incorrect.

108 Fed. Cl. at 472 (alteration in original) (quoting Walters v. United States, 358 F.2d
957, 962–63 (Ct. Cl. 1966)); see Cole v. United States, 32 Fed. Cl. 797, 804 (1995)
(observing that a service member’s “condition after he left the military might be relevant
evidence of his condition at the time of his discharge”); cf. Jordan v. United States, 205
Ct. Cl. 65, 81 (1974) (observing that “a Correction Board considering a man’s application
for correction of his records to show him disabled and entitled to disability retirement at
the time of his discharge, may properly consider evidence of his medical history
following his separation, as such evidence may be highly pertinent to the Board’s
inquiry”).

       The court considers both parties’ positions reasonable. The court also wishes to
afford the Army the latitude to conduct its affairs in the manner to which it is entitled.
See Skinner v. United States, 594 F.2d 824, 830 (Ct. Cl. 1979). The court therefore
remands this matter to the Secretary of the Army for a determination as to the time
periods to which the MEB’s review should be limited. Cf. 28 U.S.C. § 1491(a)(2)
(“[T]he court shall have the power to remand appropriate matters to any administrative or
executive body or official with such direction as it may deem proper and just.”).

        Thus, consistent with the Army Regulations on remand, the Secretary of the Army
shall direct the MEB to evaluate whether Mr. Watson’s optic atrophy and optic neuritis
diagnoses met medical retention standards during the relevant time period.2 The
2
      In Watson I, the court stated that if, on remand, “an MEB determines that Mr.
Watson did not meet medical retention standards in the fall of 2006 or early 2007, the
MEB shall refer Mr. Watson to a PEB, which is solely responsible for determining
whether Mr. Watson was fit for duty.” Watson v. United States, 113 Fed. Cl. 615, 639

                                               3
Secretary of the Army shall direct the MEB to apply the retention standard set forth in
Army Regulation 40-501, Chapter 3 (effective February 1, 2005). The Secretary of the
Army shall also determine whether the MEB should limit its review to clinical, health,
and other records that existed on or before Mr. Watson’s discharge from active duty
service, or, in the alternative, whether the MEB review can be extended to include Mr.
Watson’s post-discharge VA records.

        The court further observes that during the July 21, 2015 telephonic status
conference, counsel for the parties agreed that this case would benefit from a “fresh set of
eyes.” 15:06:40–59 (Chief Judge); see 14:58:7–17 (Def.’s Counsel) (stating that Mr.
Watson “is really going to get . . . justice if this is referred to another set of eyes”);
14:59:03–18 (Def.’s Counsel) (referring to plaintiff’s “suggestion that [the case] go to a
new MEB,” and stating that “at a minimum . . . there be a new set of eyes”); 14:59:44–50
(Pl.’s Counsel) (stating that he has had “a lingering concern that the deck was stacked
against Mr. Watson at the Fort Gordon MEB”); cf. Watson II, 118 Fed. Cl. at 272
(denying plaintiff’s earlier request to have “his case . . . considered anew by an MEB at a
different Army installation” (internal quotation marks omitted)). Accordingly, the
Secretary of the Army shall refer this matter to an MEB not located at the Fort Gordon,
GA Army installation.

        If plaintiff is dissatisfied with any of the processes or procedures on remand,
plaintiff is directed exhaust all administrative remedies prior to seeking review in this


(2013). Although the court definitively determined that Mr. Watson should have been
referred to an MEB when he was diagnosed with optic neuritis and atrophy of the optic
both diagnoses in the fall of 2006 or early 2007, id. at 636–38; accord Watson v. United
States, 118 Fed. Cl. 266, 270 (2014) (clarifying that “[t]he court identified the fall of
2006 as a parameter” because Mr. Watson was diagnosed “with optic atrophy four times
in the fall of 2006” and further clarifying that “[t]he court identified early 2007 as a
parameter because the last date on which Mr. Watson was diagnosed with optic neuritis
was February 2, 2007”), the court did not, and does not, intend to impose artificial time
constraints on the MEB.

       Further to the court’s instructions that the parties be prepared to address “the time
frame by which a medical retention standard determination is normally made after a
Soldier has been referred to an MEB,” July 10, 2015 Order at 4, ECF No. 62, counsel for
defendant represented that there was no standard time frame for application of the
medical retention standard after a solider has been referred to an MEB—rather, such
determinations are “done on a case-by-case basis.” 14:55:25-54 (Def.’s Counsel); cf.
Army Reg. 40-400 ¶ 7-1 (effective Oct. 13, 2006) (“MEBs must be completed
expeditiously.”). Thus, the court defers to the Army’s determination as to the relevant
time period within which the MEB should examine whether Mr. Watson’s optic atrophy
and optic neuritis diagnoses met medical retention standards.

                                              4
court. The court advises plaintiff’s counsel that it will defer to the Army decisions
regarding medical retention standards (and, ultimately, fitness for duty determinations).
See Orloff v. Willoughby, 345 U.S. 83, 94 (1953) (“Orderly government requires that the
judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must
be scrupulous not to intervene in judicial matters.”); Heisig v. United States, 719 F.2d
1153, 1156 (Fed. Cir. 1983)(“[R]esponsibility for determining who is fit or unfit to
service in the armed services is not a judicial province . . . .”); Fuentes v. United States,
107 Fed. Cl. 348, 356–57 (2012) (“[T]o the extent Plaintiff substantively challenges the
Army’s finding that Plaintiff satisfied retention standards, the Court finds that that is a
nonjusticiable matter that is best left to the Army.”).

        Further to the foregoing, defendant’s motion for voluntary remand is GRANTED,
the court’s August 2014 remand order is MODIFIED, and the decisions of the Fort
Gordon MEB are VACATED. This case is REMANDED for six months to the
Secretary of the Army for further proceedings consistent with the specific directions
provided. The parties shall file joint status reports every ninety days informing the court
of the status of the remand. See RCFC 52.2(b)(1)(D).

      Should the parties have any questions regarding the content of this order, counsel
may contact chambers at 202-357-6357.

       IT IS SO ORDERED.

                                                  s/ Patricia E. Campbell-Smith
                                                  PATRICIA E. CAMPBELL-SMITH
                                                  Chief Judge




                                             5
