  United States Court of Appeals
      for the Federal Circuit
                ______________________

             JUDITH LOUISE CRONIN,
                Plaintiff-Appellant,

                           v.

                  UNITED STATES,
                  Defendant-Appellee.
                ______________________

                      2013-5061
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 06-CV-0633, Senior Judge Eric G. Brug-
gink.
               ______________________

               Decided: August 28, 2014
                ______________________

   JEFFERY M. CHIOW, Rogers Joseph O’Donnell, of
Washington, DC, argued for plaintiff-appellant.

    DOUGLAS G. EDELSCHICK, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and DONALD E. KINNER, Assistant Director. Of
counsel on the brief was MATTHEW R. ROUSH, Lieutenant,
2                                              CRONIN   v. US



Office of the Judge Advocate General, United States
Department of the Navy, of Washington Navy Yard, DC.
                ______________________

    Before TARANTO, SCHALL, and LINN, Circuit Judges. ∗
    Opinion for the court filed by Circuit Judge TARANTO.
 Opinion concurring in part and concurring in part in the
           result filed by Circuit Judge LINN.
TARANTO, Circuit Judge.
    Commander Judith L. Cronin appeals the final judg-
ment of the Court of Federal Claims granting judgment
on the administrative record for the United States and
dismissing her complaint, which alleged a wrongful denial
of a promotion and an unduly low disability rating by the
Navy. Cronin v. United States, 108 Fed. Cl. 39 (Fed. Cl.
2012) (“Opinion”). The Trial Court concluded that her
claims were not time barred but that she had failed to
demonstrate reversible error on the merits. We hold that
most of her claims were time barred, which means that
there was no jurisdiction to decide them. As to one group
of claims, i.e., those alleging post-traumatic stress disor-
der, there is no timeliness issue, but we see no error in
the Trial Court’s rejection of those claims on the merits.
                      I. BACKGROUND
    Commander Cronin was on active duty with the Navy
from 1977 until the Navy placed her on the Temporary
Disability Retired List (sometimes “TDRL” or “List”) on
May 31, 1996. Cronin v. United States, 98 Fed. Cl. 268,
269 (Fed. Cl. 2011) (“Cronin III”). During and after her
service, she experienced a number of physical ailments


     ∗
       Pursuant to Fed. Cir. Rule 47.11, Circuit Judge
Schall has been designated to replace Randall R. Rader,
now retired, on this panel.
CRONIN   v. US                                              3



and injuries. In 1978, she began experiencing problems
with her right heel as a result of a calcaneal spur, and she
had surgeries in 1979, 1993, 1994, and 1995 attempting to
correct the problems. The surgeries were unsuccessful,
and by 1995 the right-heel problem produced ongoing foot
pain, pain in other parts of her body from walking on her
right foot (even with orthotics), and an uneven gait.
Opinion at 53. In 1979 or 1980, she began to experience
other ailments, for which she received treatment from
1984 at least until 1998. Id. at 53–54. She was hospital-
ized for bipolar disorder in 1995. Id. at 57–58. Beginning
in approximately 1998, medical professionals expressed
differing opinions about whether she was suffering from
bipolar disorder, anxiety disorder, post-traumatic stress
disorder (“PTSD”), or some combination of those disor-
ders. Id. at 58–59. In September 1999, she was diag-
nosed with chronic pain. Id. at 57. Commander Cronin
has alleged that during her period of service, she was
subjected to multiple physical and sexual assaults, stalk-
ing, and “extreme sexual harassment.” J.A. 129. At least
one medical professional, a social worker, wrote a report
describing such assaults and harassment as supporting a
PTSD diagnosis. Opinion at 59.
     The Navy’s Medical Evaluation Board reviewed
Commander Cronin’s condition on November 15, 1993,
and April 16, 1994, and each time recommended that she
be placed on limited duty due to the right-heel injury.
J.A. 128. The second period of limited duty had an expi-
ration date of September 12, 1994. Id. In May 1994, the
Navy had selected Commander Cronin, then a Lieutenant
Commander, for promotion to the rank of Commander,
which was set to occur on October 1, 1994. J.A. 75; Opin-
ion at 42. She was “frocked” to the rank of Commander
on August 25, 1994 and, that same month, underwent one
of her heel surgeries. In an August 1994 letter, however,
a Navy physician found that Commander Cronin was not
fit for full duty. Opinion at 42. In a letter that carries the
4                                               CRONIN   v. US



date September 30, 1994, the Chief of Naval Personnel
notified her that she was found not fit for duty—referring
to a Medical Evaluation Board report that did not issue
until October 5, 1994—and announced that her promotion
would be delayed. Id. The letter offered Commander
Cronin the opportunity to challenge the delay of her
promotion within ten days of her receipt of this letter. Id.
She received the letter by October 14, 1994, and she
responded on October 26, 1994. Id.
     The Navy referred Commander Cronin’s case to its
Disability Evaluation System, and in October 1995 the
Navy’s Physical Evaluation Board received the case for
review. Id. at 42–43. That Board evaluated six of Com-
mander Cronin’s physical ailments and placed each into
one of three categories: (1) unfitting conditions; (2) condi-
tions that contribute to unfitting conditions; and
(3) conditions that are not separately unfitting and do not
contribute to unfitting conditions. Based on its disability
findings, the Board found her unfit to perform her duties,
assigned her a disability rating of 60%, and, because her
conditions had not yet stabilized, stated that she was to
be placed on the Temporary Disability Retired List,
according her disability benefits. Id. at 43; J.A. 96–99.
    In January 1996, Commander Cronin challenged the
delay in her promotion before a different Navy board,
namely, the Board for Correction of Naval Records. The
Board for Correction, in mid-May 1996, determined that
the delay was justified based on the concerns over her
fitness for full duty. Id. On May 31, 1996, Commander
Cronin was issued Form DD-214, formally placing her on
the Temporary Disability Retired List and simultaneously
promoting her to Commander. Cronin III at 269.
   Having been placed on the TDRL, Commander Cronin
was subject to reevaluation of her conditions every 18
months in order to continue receiving disability benefits.
Opinion at 43. In March 2000, the Physical Evaluation
CRONIN   v. US                                             5



Board concluded that her conditions had not yet stabilized
but made several adjustments, for various reasons, to her
disability rating. It was during the proceedings in which
those adjustments were made that Commander Cronin
first raised post-traumatic stress disorder as an issue.
Ultimately, in August 2000, the Physical Evaluation
Board declined to find a compensable claim of PTSD
because there had been no finding, at the time she was
placed on the List in 1996, that such a condition rendered
her unfit for duty. The Physical Evaluation Board ap-
pears to have reached the same conclusion with respect to
the chronic pain disorder. And it concluded that her
conditions had stabilized, so that on October 1, 2000, after
the August decision became final, the Navy placed her on
the Permanent Disability Retired List, permanently
retiring her. Id. Commander Cronin challenged the
findings before the Board for Correction, which in 2004
denied her relief. Id. at 43–44.
    Commander Cronin filed suit on September 7, 2006,
challenging the Board for Correction’s 1996 decision
regarding her delayed promotion and its 2004 decision
regarding her disability rating. Cronin III at 269. The
Trial Court initially ruled that all but the PTSD-related
claims were time barred and that the decision related to
PTSD was not arbitrary and capricious, but it remanded
to the Board for Correction for reevaluation of Command-
er Cronin’s annuity payments. Id. On appeal to this
court, we vacated the judgment and remanded for the
Trial Court to consider whether the Servicemembers Civil
Relief Act of 2003, Pub. L. No. 108-189, § 206, 117 Stat.
2835, 2844 (2003) (codified at 50 U.S.C. app. §§ 511(2),
526(a)), tolled the statute of limitations and, if so, wheth-
er the disabling conditions were exacerbated by PTSD.
Cronin v. United States, 363 F. App’x 29 (Fed. Cir. 2010).
    On remand, the Trial Court concluded that the 2003
Relief Act does toll the statute of limitations during the
time a service member is on the Temporary Disability
6                                              CRONIN   v. US



Retired List, so that all of Commander Cronin’s claims
were timely. Cronin III at 278. The Trial Court then
remanded to the Board for Correction for consideration of
her PTSD claims, but the Board for Correction subse-
quently declined to increase her disability rating. Opin-
ion at 42. Commander Cronin appealed that decision to
the Trial Court, which affirmed on cross motions for
judgment on the administrative record. Opinion at 61.
    Commander Cronin appeals. This court has jurisdic-
tion under 28 U.S.C. § 1295(a)(3).
                II. STANDARDS OF REVIEW
    The proper interpretation of the Relief Act’s tolling
provision as it relates to the Temporary Disability Retired
List is a legal issue of first impression for this court. We
decide such issues of statutory interpretation de novo.
Cemex, S.A. v. United States, 384 F.3d 1314, 1319 (Fed.
Cir. 2004).
     We also review the Trial Court’s judgment on the ad-
ministrative record de novo, applying the same standard
of review to the Board for Correction decision as the Trial
Court applied. Melendez Camilo v. United States, 642
F.3d 1040, 1044 (Fed. Cir. 2011). Our review is limited to
determining whether a Board for Correction decision “is
arbitrary, capricious, unsupported by substantial evi-
dence, or contrary to applicable statutes and regulations.”
Id. (internal quotation marks omitted).
CRONIN   v. US                                               7



                      III. DISCUSSION
            A. The Relief Act’s Tolling Provision
    We conclude that, except for the claims based on post-
traumatic stress disorder, Commander Cronin’s claims
were time barred, because the Servicemembers Civil
Relief Act, 50 U.S.C. app. §§ 511(2), 526(a), did not toll the
six-year statute of limitations, 28 U.S.C. § 2501, for the 4
years and five months that she was on the Temporary
Disability Retired List under 10 U.S.C. § 1202. Untimeli-
ness under this statute of limitations is “jurisdictional.”
John R. Sand & Gravel Co. v. United States, 552 U.S.
130, 134 (2008). Accordingly, our conclusion regarding
lack of timeliness requires that we vacate the judgment
on the non-PTSD claims and remand for dismissal of
those claims for lack of jurisdiction.
     Putting aside the PTSD claim, the parties agree that
Commander Cronin’s claims accrued more than six years
before she filed suit in the Court of Federal Claims in
September 2006, which makes them out of time under the
six-year statute of limitations, 28 U.S.C. § 2501, unless
some of the period is excluded from the time counted.
They also agree, however, that all claims here are timely
if the time that Commander Cronin spent on the Tempo-
rary Disability Retired List—from May 31, 1996, to
October 1, 2000—is not counted. The question therefore
is whether time spent on the List is to be excluded in
computing the time from accrual to suit.
    The 2003 Relief Act, updating earlier statutes, de-
clares that “[t]he period of a servicemember’s military
service may not be included in computing any peri-
od . . . for the bringing of any action . . . by . . . the ser-
vicemember.” 50 U.S.C. app. § 526(a). The Act also
defines “military service.”
    The term “military service” means—(A) . . . (i) ac-
    tive duty, as defined in [10 U.S.C. § 101(d)(1)],
8                                                CRONIN   v. US



    and (ii) in the case of a member of the National
    Guard, includes service under a call to active ser-
    vice . . . ; (B) in the case of a servicemember who is
    a commissioned officer of the Public Health Ser-
    vice or the National Oceanic and Atmospheric
    Administration, active service; and (C) any period
    during which a servicemember is absent from du-
    ty on account of sickness, wounds, leave, or other
    lawful cause.
50 U.S.C. app. § 511(2). The parties agree that Com-
mander Cronin was not on “active duty” once she was
placed on the Temporary Disability Retired List. 1 The
matter in dispute is whether she was “absent from duty
on account of sickness, wounds, leave, or other lawful
cause” once she was placed on the List.
     The phrase “absent from duty,” alone and in context,
fairly implies that the clause applies only when the duty
to engage in active service remains in place during, and
fulfillment is excused only by, sickness, wounds, leave, or
other cause. The implication of the phrase “absent from
duty” is that there is a persisting duty, but the member of
the service is, for good reason, temporarily unable to
fulfill it. The context, moreover, indicates that the duty
that persists (subject to the excuse) is one of “active”
service, not, for example, a duty to remain in reserve or
even to show up for two weeks of training as a member of
the National Guard (see Bowen v. United States, 292 F.3d


    1   10 U.S.C. § 101(d)(1) states: “The term ‘active du-
ty’ means full-time duty in the active military service of
the United States. Such term includes full-time training
duty, annual training duty, and attendance, while in the
active military service, at a school designated as a service
school by law or by the Secretary of the military depart-
ment concerned. Such term does not include full-time
National Guard duty.”
CRONIN   v. US                                             9



1383, 1386–87 (Fed. Cir. 2002)). The “absent from duty”
clause follows three clauses all of which are about active
service. This last clause is naturally understood to com-
plement and round out, not fundamentally depart from,
the core condition of being subject to the military’s control
to order active service when conditions permit. In its
language and in context, the “absent from duty” clause
thus fairly encompasses only a situation in which the
active-service duty remains—in which military authority
to compel active service remains—during a period when,
for good cause, the member of the service cannot engage
in the otherwise-required active service.
    A member of the Navy like Commander Cronin who
has been placed on the Temporary Disability Retired
List—for a disability that “may be of a permanent nature”
but that may change, 10 U.S.C. § 1202—is not subject to
an ongoing but suspended duty to serve. Simply, the
military cannot order her back to active service, even if
the sickness, injury, leave, or other cause for having
stopped active service no longer prevents active service.
For the Navy to return her to active duty, she must “con-
sent.” 10 U.S.C. § 1211(b).
     More specifically, the statute provides for periodic
medical examinations to evaluate the status of disabilities
of persons on the Temporary Disability Retired List and
requires a final decision within five years. 10 U.S.C.
§ 1210(a), (b). If the disability is deemed permanent and
stable, retirement or separation follows, depending on the
degree of disability and length of service. Id. § 1210(c)–
(e). If deemed fit, the member is to reenter active service
upon giving consent, or to be discharged, retired, elimi-
nated from active service, or transferred to certain reserve
units (voluntarily, as relevant here). Id. §§ 1210(f), 1211.2


    2  For a naval officer like Commander Cronin, sec-
tion 1210 refers to the Fleet Reserve. Besides other
10                                               CRONIN   v. US



If she does not consent to reentering active service, and
she is not discharged, retired, or (voluntarily) transferred
to certain reserve units, her “status on the temporary
disability retired list and [her] disability retired pay shall
be terminated as soon as practicable and the member
shall be discharged.” Id. § 1211(c).
     In this statutory scheme, a service member’s obligato-
ry active military service ends upon placement on the
Temporary Disability Retired List. It is her option not to
return to active service even if later found to be physically
fit. The duty to serve has ended. Reflecting the end of
duty, the Navy issued Defense Department Form 214,
Certificate of Release or Discharge from Active Duty, to
Commander Cronin upon placing her on the Temporary
Disability Retired List, effective June 1, 1996. J.A. 104–
05. No new Form 214 was issued when, on October 1,
2000, seven months before the five-year deadline arrived,
the Navy placed her on the Permanent Disability Retired
List. J.A. 51. 3
    Other aspects of the statutes governing the List,
though perhaps not sufficient if they stood alone, reinforce
the point that is crucial given the “duty” language of


conditions, transfer into the Fleet Reserve requires the
officer’s consent. 10 U.S.C. § 6330.
     3   A 2009 Report of the Government Accountability
Office concluded that, across the entire Department of
Defense, “very few who were placed on the list between
calendar years 2000 and 2003 returned to military ser-
vice. Further, about half received a final determination
within 3 years . . . .” United States Government Account-
ability Office, Military Disability Retirement: Closer
Monitoring Would Improve the Temporary Retirement
Process at i (Report to the Ranking Member, Committee
on Oversight and Government Reform, U.S. House of
Representatives) (GAO 29-09-289 April 2009).
CRONIN   v. US                                            11



section 511(2)(C)—that placement on the List is not a
pause in, but a termination of, the active-service duty that
is the subject of section 511(2). Thus, even when a mem-
ber who has been placed on the List consents to return to
active duty, the statutory process is not simple recall but,
generally, reappointment (with Senate advice and consent
if the rank is high enough) or reenlistment. Id. § 1211(b).
A new duty is created, though the military is authorized
(not required) to give credit, for seniority purposes, for
time on the List. Id. § 1211(e).
    Statutory provisions addressing military pay further
reinforce the point. A person placed on the Temporary
Disability Retired List is considered temporarily retired
and therefore receives only retired-member pay.
Id. §§ 1202, 1210(a). That pay status continues unless
and until she “is appointed, reappointed, enlisted, or
reenlisted.” Id. § 1211(d)(3). In contrast, a service mem-
ber who is “absent because of sickness or wounds, or who
is directed . . . to be absent from duty to await orders
pending disability retirement proceedings for a period
that is longer than the leave authorized” by 10 U.S.C.
§ 701 is “entitled to the pay and allowances to which he
would be entitled if he were not so absent.” 37 U.S.C.
§ 502(a). (Pay is, in general, forbidden for overlength
leave for other reasons. Id. § 502(b).) These provisions
underscore the distinction between absences from a still-
extant duty and the status of a service member once
placed on the Temporary Disability Retired List, when no
continuing duty of service exists.
    The statutory statement of purposes does not change
this conclusion. Congress stated that “[t]he purposes of
the” 2003 Act are
   (1) to provide for, strengthen, and expedite the na-
   tional defense through protection extended by this
   Act to servicemembers of the United States to en-
12                                              CRONIN   v. US



     able such persons to devote their entire energy to
     the defense needs of the Nation; and
     (2) to provide for the temporary suspension of ju-
     dicial and administrative proceedings and trans-
     actions that may adversely affect the civil rights
     of servicemembers during their military service.
50 U.S.C. app. § 502. Even by its terms, this statement
does not declare an unqualified purpose to enable a ser-
vice member to focus on improving health to return to
active service. It declares both a purpose to advance the
national defense “through protection extended by this
Act,” that specified degree of protection being intended to
enable service members to concentrate on defense needs,
id. § 502(1), and a purpose to provide for temporary
suspension of certain specified civil proceedings and
transactions during “military service,” a defined term, id.
§ 502(2). Section 502 itself thus reinforces the back-
ground recognition that “no legislation pursues its pur-
poses at all costs,” so that what a statute prescribes in its
operational provisions, fairly construed in light of lan-
guage, structure, and purposes, controls interpretation.
Rodriguez v. United States, 480 U.S. 522, 525–26 (1987);
see, e.g., CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2185
(2014); Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034,
2044 (2012). Here, Congress defined how far civil-
proceeding and other protections would extend by draw-
ing a line defined by the language of 50 U.S.C. app.
§ 511—a line that does not separate those unable to
attend to legal affairs from those able to do so: both
groups may be found among persons on the Temporary
Disability Retired List, just as both groups may be found
among persons who are permanently retired (and thus
undisputedly outside § 511). For the reasons stated, we
do not think that the language Congress adopted covers a
service member who has been formally placed on the
Temporary Disability Retired List.
CRONIN   v. US                                           13



    Precedents on the issue presented are not determina-
tive. One set of decisions supports our conclusion. Thus,
in statutory contexts other than the application of 50
U.S.C. app. §§ 511 and 526, precedents of this court and
others have treated placement on the Temporary Disabil-
ity Retired List as relieving a service member of a duty to
serve. Craft v. United States, 544 F.2d 468, 471, 476 (Ct.
Cl. 1976) (“[a] serviceman who is on the List is separated
from the Army, but his final status is deferred pending
additional medical evidence”; service member on List is
“actually separated from the military”); Dambrava v.
Office of Personnel Mgmt., 466 F.3d 1061, 1063 (Fed. Cir.
2006) (10 U.S.C. § 1211 “indicates that the status of a
member on the [Temporary Disability Retired List] is
akin to inactive duty or retirement, as opposed to ‘active
service’”); Bradley v. United States, 161 F.3d 777, 781–82
(4th Cir. 1998) (Feres doctrine exception to Federal Tort
Claims Act liability); Cortez v. United States, 854 F.2d
723, 726 (5th Cir. 1988) (same); see also Dean v. United
States, 92 Fed. Cl. 133, 152–54 (Fed. Cl. 2010) (adopting
this view under 50 U.S.C. app. §§ 511 and 526), aff’d, 416
F. App’x 908 (Fed. Cir. 2011).
    On the other hand, the contrary conclusion drawn by
Judge Linn in his opinion—that a person on the Tempo-
rary Disability Retired List is absent from duty under
section 511(2)(C)—finds support in two decisions: Mason
v. Texaco Inc., 862 F.2d 242 (10th Cir. 1988); and Cruz v.
General Motors Corp., 308 F. Supp. 1052 (S.D.N.Y. 1970).
The courts in those cases applied the Soldiers’ and Sailors’
Civil Relief Act of 1940, Act Oct. 17, 1940, ch. 888, 54
Stat. 1178, which (in § 101, 54 Stat. 1179) contained the
same “absent from duty” phrase as current section 511
and (in § 205, 54 Stat. 1181) provided for exclusion of
“military service” periods from computations of limita-
tions periods. The Mason and Cruz courts held that time
on the List was excluded for limitations purposes.
14                                               CRONIN   v. US



    In our view, Mason and Cruz, which are not binding
on this court, offer an insufficiently persuasive answer to
the statutory analysis set forth above. Mason draws its
conclusion without any analysis, simply citing Cruz. See
862 F.2d at 245. Cruz, while it recites Title 10 provisions
as making presence on the Temporary Disability Retired
List a kind of “interim status,” ultimately rests on its
treatment of the 1940 Relief Act as governed by its own
distinct purposes and the need to construe that Act liber-
ally for members of the armed services. 308 F. Supp. at
1055–56. 4 That rationale does not seem to us to give
sufficient weight to the natural meaning of the “absent
from duty” clause, given its language and setting, or to
the provisions of Title 10 that make clear that the duty to
serve ends for a service member placed on the List.
     Our conclusion is not changed by the fact that Con-
gress comprehensively amended the 1940 Act in 2003,
after Cruz and Mason were handed down. It made some
changes in section 511, such as adding an express refer-
ence to Title 10, see note 4, supra, but it carried forward



     4  “[T]he definitions of Title 10 which are not, by
their terms, applicable to the Relief Act, cannot be dispos-
itive here. The provisions of Title 10 concern primarily
the structure, manpower authorization and pay and
retirement scale of the armed forces. The definitions in
that title are constructed accordingly. Since the tolling
provision of the Relief Act is contained in a different title
which was enacted for the benefit of those in military
service, the Act’s definitions and purpose control.” 308 F.
Supp. at 1055 (footnote omitted).
    The 1940 Relief Act version of section 511 that was
applied in Cruz did not contain the express reference to
Title 10 that is part of the current provision, which refers
to “active duty, as defined in section 101(d)(1) of title 10.”
50 U.S.C. app. § 511(2)(A)(i).
CRONIN   v. US                                            15



the “absent from duty” clause. Sometimes reenactment
without relevant change has been understood to incorpo-
rate settled judicial interpretations. See Jerman v. Car-
lisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573,
589–90 (2010) (“We have often observed that when ‘judi-
cial interpretations have settled the meaning of an exist-
ing statutory provision, repetition of the same language in
a new statute indicates, as a general matter, the intent to
incorporate its . . . judicial interpretations as well.’”)
(citations omitted). We do not believe, however, that
there is a sufficient basis for drawing such a conclusion
here, even aside from the changes made in 2003.
    “Settled” is not justified as a characterization of pre-
2003 determinations of how the “absent from duty” clause
applies to Temporary Disability Retired List status. Cruz
and Mason are too small a foundation for that characteri-
zation, especially in light of the treatment of Temporary
Disability Retired List status in other precedents, as
discussed above. Moreover, while the 2003 House Report
108–81 cites a large number of judicial decisions in its
descriptions of existing standards, reflecting the scope of
the recodification effort, the report mentions neither Cruz
nor Mason nor the conclusion they reached; nor does
anything else from the legislative history we have seen.
In these circumstances, we do not see a basis in the pre-
2003 judicial decisions, or in the legislative history gener-
ally, for overcoming our inference about the fairest read-
ing of section 511 as applied to a person placed on the
Temporary Disability Retired List.
   For the foregoing reasons, we conclude that all of
Commander Cronin’s claims except her claim alleging
16                                            CRONIN   v. US



post-traumatic stress disorder were untimely and thus
must be dismissed for lack of jurisdiction. 5
         B. Commander Cronin’s PTSD Claims
    There is no timeliness issue as to Commander Cro-
nin’s claims based on post-traumatic stress disorder.
Evidently the government accepts that the claims based
on PTSD accrued sufficiently late that the 2006 assertion
of those claims was timely without need for a tolling of
the limitations period by the 2003 Relief Act.
    Commander Cronin challenges her disability rating
with respect to PTSD. She argues that the Navy ignored
evidence of her PTSD condition, failed to recognize that
the evoking stressors occurred before she was placed on
the Temporary Disability Retired List, and failed to
recognize that the Physical Evaluation Board itself
acknowledged in 2000 that she suffered from PTSD and,
at least in part, compensated her for her PTSD. She also
argues that her PTSD worsened her migraines and chron-
ic pain and other conditions.
    The legal background for consideration of Commander
Cronin’s claims includes the Veterans Affairs Schedule for
Ratings Disability (“VASRD”) established by the Depart-
ment of Veterans Affairs as the standard for assigning
percentage ratings for disabilities. U.S. Dep’t of Navy,
Sec’y of the Navy Instr. 1850.4E (“DES”) § 3801(b). “The
percentage ratings represent, as far as can practicably be
determined, the average impairment in civilian occupa-
tional earning capacity resulting from certain diseases


     5  Although we conclude that the Trial Court lacked
jurisdiction over the non-PTSD claims, we note that,
having reviewed the Trial Court’s rulings on the merits of
those claims, we see no error in those rulings, for the
reasons laid out by Judge Linn in his discussion of the
merits of those claims.
CRONIN   v. US                                           17



and injuries, and their residual conditions.” Id. But there
are “differences between military department and DVA
applications of rating policies for specific cases, [and]
differences in ratings may result.” DES § 3802(a). Im-
portantly, the mere presence of a VASRD-rated condition
is not sufficient to justify a disability rating from the
Navy because “[c]onditions that do not themselves render
a service member Unfit for military service will not be
considered for determining the compensable disability
rating unless those conditions contribute to the finding of
unfitness.” DES § 3802(g).
    Accordingly, Physical Evaluation Board findings re-
garding disabilities are arranged in three categories:
unfitting conditions (category I); conditions that contrib-
ute to unfitting conditions (category II); and conditions
that are not separately unfitting and do not contribute to
the unfitting condition (category III). DES § 4111. Only
conditions in categories I and II receive a rating. Id.
Further, DES § 3804(k) provides that “[a] member may be
determined Unfit as a result of the overall effect of two or
more impairments even though each of them, standing
alone, would not cause the member to be referred into the
DES or found Unfit because of physical disability.”
    With respect to the Temporary Disability Retired List,
DES § 3618 provides the procedure for rating conditions
that were not found unfitting at the time the service
member was placed on the List but that are identified
while the service member is on the List. Specifically, the
“new” condition is compensable if it is (a) unfitting and
either (b) caused by the condition for which the service
member was placed on the List (or directly related to its
treatment) or (c) incurred while the member was entitled
to basic pay and was “an unfitting disability at the time
the member was placed on the TDRL.” Id. Otherwise,
even if the condition is traced back to the period of ser-
vice, “such conditions shall be deemed unfitting due to the
18                                            CRONIN   v. US



natural progression of the condition and noncompensa-
ble . . . .” Id.
    On May 31, 1996, when Commander Cronin was
placed on to the Temporary Disability Retired List, none
of the Navy’s medical boards had evidence, or made any
determination, that she was unfit for duty by virtue of
PTSD. Evidence that she suffered from PTSD began to
appear in 1998. Opinion at 58–59. Under the governing
regulation, PTSD must be considered a new condition
because it was not found to be an unfitting condition at
the time she was placed on the List. DES § 3618. Such a
condition is compensable only if it was caused by one of
the conditions that was found to be unfitting at that time
(or treatment of such a condition) or if it was separately
an unfitting disability itself at that time.
    Commander Cronin does not appear to argue to this
court that her PTSD was caused by one of the conditions
found to be unfitting at the time she was placed on the
TDRL. In any event, when she previously argued that
PTSD resulted from her bipolar disorder, the Board for
Correction considered the argument and rejected it.
Although a social worker considered her hospitalization
for bipolar disorder in 1995 to be a factor contributing to
the PTSD, numerous other medical professionals did not.
Opinion at 60. Accordingly, the Board for Correction’s
decision is supported by substantial evidence.
    Commander Cronin gives a detailed account of the
egregious evoking stressors that may have contributed to
the eventual PTSD diagnosis. None of the evidence,
however, indicates that the PTSD condition was unfitting
at the time she was placed on the List in 1996, which is
the only other way her PTSD could be compensable under
DES § 3618. Although it is possible that the medical
professionals misdiagnosed her before May 31, 1996, the
medical evidence even from 1998 and later demonstrates
a lack of consensus with respect to a PTSD diagnosis.
CRONIN   v. US                                          19



Opinion at 59–61. Moreover, while the Board for Correc-
tion commented in 2004 that a 2000 Physical Evaluation
Board rating of Commander Cronin’s bipolar disorder
stated that the disorder “likely” included some impair-
ment “incident” to her diagnosed PTSD, this is not suffi-
cient evidence that her PTSD was unfitting as of May 31,
1996. Accordingly, the Board for Correction’s decision to
deny compensability for the PTSD is supported by sub-
stantial evidence.
    Commander Cronin relatedly argues that her PTSD
has worsened her migraines, chronic pain, fibromyalgia,
temperomandibular joint disorder, and carpal tunnel
syndrome. This argument does not add anything to her
basic PTSD argument. Those conditions were not found
unfitting before May 31, 1996; indeed, all were either
raised and rejected, or could have been raised but were
not, by that time. Commander Cronin has shown nothing
establishing that the Board for Correction committed
reversible error, under our deferential standard of review,
in not finding that the PTSD, either directly or through
worsening of these other conditions, rendered her unfit for
duty before she was placed on the Temporary Disability
Retired List.
                     IV. CONCLUSION
   For the forgoing reasons, the decision of the Trial
Court is affirmed respecting the PTSD claims but other-
wise vacated, with the matter remanded so that the non-
PTSD claims may be dismissed for lack of jurisdiction.
AFFIRMED IN PART, VACATED AND REMANDED
                IN PART
   Each party shall bear its own costs.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

              JUDITH LOUISE CRONIN,
                 Plaintiff-Appellant,

                            v.

                   UNITED STATES,
                   Defendant-Appellee.
                 ______________________

                       2013-5061
                 ______________________

    Appeal from the United States Court of Federal
Claims in No. 06-CV-0633, Senior Judge Eric G. Brug-
gink.
               ______________________
LINN, Circuit Judge, concurring in part and concurring in
part in result.
    I concur in the majority’s determination of the PTSD
claim, which is not affected by the timeliness issue. With
respect to the remaining claims, I respectfully disagree
with the majority’s determination that they were time
barred, but addressing the merits, concur in the result.
                      I. DISCUSSION
           A. The Relief Act’s Tolling Provision
    The majority interprets the Relief Act in effect to dis-
tinguish between servicemembers suffering injuries
expected to heal in a few months from servicemembers
suffering potentially more serious injuries that could take
2                                               CRONIN   v. US



an indeterminate period of time to heal and warrant
placement on the List. In the majority’s view, the Relief
Act protects only the former. The first stated purpose of
the Relief Act is “to provide for, strengthen, and expedite
the national defense through protection extended by this
Act [said sections] to servicemembers of the United States
to enable such persons to devote their entire energy to the
defense needs of the Nation.” 50 U.S.C. app. § 502(1). I
find that neither the text of the Relief Act nor its legisla-
tive history provides any principled reason to make the
distinctions the majority would make.
    Statutory interpretation begins with the text of the
statute. Turtle Island Restoration Network v. Evans, 284
F.3d 1282, 1291 (Fed. Cir. 2002), cert. denied, 538 U.S.
960, 123 S.Ct. 1748, 155 L.Ed.2d 511 (2003). The Relief
Act’s tolling provision excludes a servicemember’s period
of “military service” from “any period limited by law,
regulation, or order for the bringing of any action or
proceeding in a court, or in any board, bureau, commis-
sion, department, or other agency of the . . . United States
by or against the servicemember . . . .” 50 U.S.C. app. §
526(a). The Relief Act’s Section 511(2) provides four sub-
definitions of “military service,” including “active duty” as
defined by 10 U.S.C. § 101(d)(1), “a call to active service”
for a member of the National Guard under 32 U.S.C. §
502(f), and “active service” of commissioned officers of the
Public Health Service or the National Oceanic and At-
mospheric Administration. Section 511(2)(C), the fourth
and final sub-definition, merely states that “military
service” includes periods of an absence from the three
prior listed “duties” on account of sickness, wounds, leave,
or other lawful cause. A servicemember is placed on the
List, and therefore authorized to be removed from active
duty, as a result of a physical disability. 10 U.S.C. app. §
1202. Periodic medical exams are used to assess whether
the service member should remain on the List. 10 U.S.C.
app. § 1210(a)–(f). Because time spent on the List is an
CRONIN   v. US                                             3



absence from duty on account of sickness, wounds, or
otherwise lawful cause, on its face, the Relief Act’s tolling
provisions apply.
    The Navy’s arguments to the contrary are not persua-
sive. The Navy first argues that “absent from duty on
account of sickness, wounds, leave, or other lawful cause”
under the Relief Act is best understood as the converse of
“absence without leave” (“AWOL”). However, the defining
characteristic of AWOL is leave without authority. 10
U.S.C. app. § 886. Placement on the List comes with
authorization for the servicemember to be absent from
duty. The Navy also contends that the “more natural and
plain reading” of the statute is that “absent from duty on
account of sickness, wounds, leave, or other lawful cause”
refers to a temporary absence from a duty post without
separating from active duty. Appellee’s Br. 27–28. How-
ever, that ignores that fact that the statute’s definition of
“military service” includes not only “active duty” but
separately also includes time “absent from duty on ac-
count of sickness, wounds, leave, or other lawful
cause.” 50 U.S.C. app. § 511(2)(C). This statute draws a
distinction between time on active duty and time during
which there is an absence of duty on account of sickness,
wounds, leave, or other lawful cause; and both are consid-
ered to be military service.
    The Navy next argues that time spent on the List is
total separation from the military more akin to an ab-
sence of duty as with retirement as opposed to an absence
from duty as contemplated by the Relief Act’s definition of
military service. The majority places great emphasis on
the fact that servicemembers on the list must consent to
reinstatement or reappointment in order to return to
active duty. Majority at 9–10. While there is a degree of
separation from the military when on the List, significant
connections to the military nonetheless remain. For
example, placement on the List provides active duty
allowances for travel in connection with the requisite
4                                                   CRONIN   v. US



medical examinations. 10 U.S.C. app. § 1210(g). Also, if
the servicemember does consent to be “recalled to active
duty” or reenlisted, the time spent on the List may count
as years of service for purposes of future promotions. 10
U.S.C. app. § 1211(e). Although I recognize that to return
to active duty, a servicemember on the List must be
“reappointed” or “reenlist,” under 10 U.S.C. app. §
1211(a), a servicemember is not actually discharged or
retired while on the List. Discharge or retirement from
military service occurs only if the servicemember’s physi-
cal disability becomes permanent or the servicemember
declines to return to duty when the disability abates. See,
e.g., 10 U.S.C. app. §§ 1210(c) (If it is “determined that the
member’s physical disability is of a permanent nature and
stable and is at least 30 percent under the standard
schedule of rating disabilities in use by the Department of
Veterans Affairs at the time of the determination, his
name shall be removed from the temporary disability
retired list and he shall be retired under section 1201 or
1204 of this title . . . .”); 1210(f) (“(1) [i]f, as a result of a
periodic examination . . . or upon a final determination . . .
it is determined that the member is physically fit to
perform the duties of his office, grade, rank, or rating, the
Secretary shall (A) treat the member as provided in
section 1211 of this title [for reappointment or reenlist-
ment with the servicemember’s consent]; or (B) discharge
the member, retire the member, or transfer the member
to the Fleet Reserve, Fleet Marine Corps Reserve, or
inactive Reserve under any other law if, under that law,
the member (i) applies for and qualifies for that retire-
ment or transfer; or (ii) is required to be discharged,
retired, or eliminated from an active status.”).
    The Navy argues that the Relief Act’s tolling provision
applies only to the “period of military service,” which it
contends ends upon release from activity duty. The Navy
relies on Diamond v. United States, 344 F. 2d. 703, 706
(Ct. Cl. 1965) (holding that under the Relief Act’s prede-
CRONIN   v. US                                              5



cessor, a service member’s “release from active duty
terminated his ‘period of military service’”) and Lowe v.
United States, 79 Fed. Cl. 218, 225 (2007) (holding that,
“[o]n plaintiff’s release from active duty, the tolling provi-
sion of the [Relief Act] ceased to operate, and the six-year
statutory period of limitations began to run”). The Navy
further contends that receipt of Defense Department
Form 214 (“DD-214”) relieves a servicemember from
active duty, and Cronin received that form when she was
placed on the List. However, neither Diamond nor Lowe
involved time on the List, which as discussed above
defines “military service” as not only “active duty” but
also separately as an absence from duty on account of
sickness, wounds, leave, or other lawful cause. 50 U.S.C.
app. § 511(2)(C). The argument that “TDRL is not active
service,” Dambrava, 466 F.3d at 1063, thus falls short.
See also Bradley, 161 F.3d at 782 (concluding that time on
the List “was not active duty” without addressing the
Relief Act’s tolling provision or whether time on the TDRL
nonetheless would be “military service”).
    Likewise, the majority relies on Commander Cronin’s
receipt of DD-214 as evidence that Commander Cronin
was not “absent from duty” once placed on the List.
Majority at 10. However, while receipt of Form 214 may
reflect that Commander Cronin’s “active duty” ended
when she was placed on the List, that does not answer the
question of whether her “military service” had ended or
whether she was absent from that duty on account of
sickness, wounds, leave, or other lawful cause. The
majority notes that no new DD-214 was issued when
Commander Cronin was placed onto the Permanent
Disability Retired List, but there is no contention that she
resumed “active duty” such that a new DD-214 would
have been appropriate. Nor is there any contention that
receipt of DD-214 permanently retired or discharged
Commander Cronin, which as discussed above would
occur only at the conclusion of her time on the List.
6                                                 CRONIN   v. US



    Courts previously have recognized that time spent on
the List is difficult to categorize, referring to the status as
a “limbo status.” See Craft, 544 F.2d at 476. Given that
the state of limbo and the Supreme Court’s repeated
direction for the need to construe the act liberally in favor
of the serviceman, Le Maistre v. Leffers, 333 U.S. 1, 68
S.Ct. 371, 92 L.Ed. 429 (1948); Boone v. Lightner, 319
U.S. 561, 575, 63 S.Ct. 1223, 87 L.Ed. 1587, reh’g denied,
320 U.S. 809, 64 S.Ct. 26, 88 L.Ed. 489 (1943), I would
find that the Relief Act’s tolling provision applies here.
     The weight of authority concerning the tolling provi-
sion of the Relief Act’s predecessor similarly supports the
view that time on the List is military service under the
Relief Act. The Relief Act is the 2003 recodification of
the Soldiers’ and Sailors’ Civil Relief Act of 1940. 149
Cong. Rec. E14-02, E14. That act contained a similar
tolling provision, in which “[t]he period of military service
shall not be included in computing any period now or
hereafter to be limited by any law for the bringing of any
action by or again any person in military ser-
vice . . . .” Act of October 17, 1940, ch. 888, 54 Stat.
1181. Applying that act, the Tenth Circuit concluded
that “placement on the ‘temporary disability retired list’
constitutes ‘absen[ce] from duty on account of sickness’
under the Act . . . .” Mason, 862 F.2d at 245. A district
court in the Southern District of New York reached the
same conclusion. See Cruz, 308 F. Supp. at 1055–56. The
Navy points out that neither case involved the United
States as a party. The reasoning and conclusions reached
are nonetheless informative. The majority discounts Cruz
and Mason because they “rest” on the predecessor act’s
“own distinct purposes and the need to construe that Act
liberally for members of the armed services.” Majority at
13–14. However, Cruz concluded that the purpose of the
predecessor act was to provide “protection of a serviceman
who is unable to attend to his affairs, whether because he
is stationed away from home in active service or is recov-
CRONIN   v. US                                            7



ering from injuries incurred while in such active service.”
Cruz, 308 F. Supp. at 1057. The stated purpose of the
successor Relief Act hardly compels a different result. See
50 USC app. § 502(1) (The purpose of the Relief Act is “to
provide for, strengthen, and expedite the national defense
through protection extended by this Act [said sections] to
servicemembers of the United States to enable such
persons to devote their entire energy to the defense needs
of the Nation.”).
    The majority supports its decision by referring to cas-
es holding that time on the List is not “active service.”
Majority at 13. However, none of these cases addressed
whether time on the List should be considered “military
service” for purposes of the Relief Act, of which “active
service” is only one aspect.
    Finding the statutory language unambiguous, review-
ing the legislative history is unnecessary. Moreover, I
note that the legislative history, as often is the case, is
largely inconclusive but recent history supports my con-
clusion. The Navy argues that historically, “[p]ersons
absent from duty on account of sickness, wounds, or other
lawful cause are considered as still on active du-
ty.” O’Keefe v. United States, 174 Ct. Cl. 537, 549 n.5 (Ct.
Fed. Cl. 1966) (citing the military’s 1944 Dictionary of
U.S. Army Terms).        Thus, it contends that Section
511(2)(C) must be understood in that light. The original
version of 10 U.S.C. app. § 1211, enacted in 1956 reinforc-
es the notion that historically, time on the List was not
considered active duty and thus was not an absence on
account of sickness, wounds, or other lawful cause. The
original statute referred to officers on the List needing to
be “recalled to active duty,” 70A Stat. 96 (1956), suggest-
ing that a servicemember on List was not already on
active duty and therefore would not be considered as
“absent from duty on account of sickness, wounds, or
other lawful cause.”
8                                               CRONIN   v. US



     The current Relief Act, however, restructured the def-
inition of “military service” and defines “active duty”
separately from “any period during which a servicemem-
ber is absent from duty on account of sickness, wounds,
leave, or other lawful cause.” 50 U.S.C. app. § 511(2)(A)(i)
and (C). The legislative history is silent as to why the
drafters separated “active duty” from an absence on
account of sickness, wounds, leave, or other lawful causes.
Nonetheless, the statute clearly separates the two con-
cepts. Thus time during a period under Section 511(2)(C)
is now considered distinct from active duty but is still part
of “military service” and thus falls within the Relief Act’s
tolling provision.
     Indeed, when the predecessor act was recodified as
the Relief Act, Mason and Cruz had been decided for
fifteen years, and the Relief Act, which was the product of
“more than 10 years” of preparation, was intended to be a
“complete restatement” of its predecessor, “including a
gathering of the relevant judicial interpretations and a
measured casting aside of those few interpretations that
do not comport with the author’s understanding of the
law’s intent,” 149 Cong. Rec. H3688-03, H3696. The
“restatement” was necessary to, among other things,
“incorporate over 60 years of case law . . .” since the
predecessor act was enacted. H.R. Rep. 108-81. Though
the record does not indicate Congress directly discussed
Mason or Cruz, I find it inconceivable that Congress,
specifically setting out to survey the case law, could have
been unaware of these cases or that it would have restruc-
tured the definition of “military service” as it did if it
believed that Mason and Cruz did not comport with the
author’s understanding of the law’s intent. The majority
concludes that Mason and Cruz did not “settle” the law
regarding the application of the Relief Act’s tolling provi-
sion to members on the List, “especially in light” of Craft,
Dambrava, Bradley; and Cortez. Majority at 12–13, 15.
However, while these cases considered “active duty” with
CRONIN   v. US                                             9



respect to the List, none assessed the full scope of “mili-
tary service” with respect to the Relief Act and thus none
are particularly germane to the specific issue presented
here.
    Finally, I note that while the Trial Court in this case
correctly held that the Relief Act does toll the statute of
limitations during the time spent on the List, a recent
decision in a separate case reached the opposite conclu-
sion. See Dean, 92 Fed. Cl. 133. I first observe that in
Dean, the claim was filed more than six years after the
veteran was removed from the List and permanently
discharged from the military by reason of physical disabil-
ity. Id. at 153. Accordingly, the Relief Act’s tolling provi-
sion could not have salvaged his claim in any event.
Moreover, though Dean thoughtfully surveyed the statu-
tory framework and this court’s precedent, I respectfully
find the analysis unpersuasive. Dean correctly noted that
under the statutory framework and this court’s prece-
dents, time on the List was not active service. Id. at 152–
152. However, as discussed above, the Relief Act distin-
guishes between active duty and “any period during
which a servicemember is absent from duty on account of
sickness, wounds, leave, or other lawful cause.” Dean
“decline[d] to make a determination that a sickness, as
noted in 50 U.S.C. appl. § 511(2)(C), rises to the level of a
disability.” Id. at 153. However, as discussed above, I
conclude that under the statute’s plain language, within
the definition of 50 U.S.C. appl. § 511(2)(C) are sicknesses
or wounds so severe as to rise to the level of a disability
resulting in an absence from duty for a lawful cause, such
as the List. A servicemember is not actually retired or
discharged while on the List, events which occur only
after the servicemember’s disability recedes and the
servicemember refuses to consent to return to active duty.
Accordingly, a servicemember placed on the List because
of a disability, though not on “active duty,” continues to be
10                                               CRONIN   v. US



engaged in “military service” for purposes of the tolling
provision.
    For the foregoing reasons, I would hold that the Relief
Act’s tolling provision applies to time served on the List
and would conclude that Cronin’s claims are not time
barred by the Tucker Act’s six year statute of limitations.
               B. Cronin’s Promotion Claim
    On the merits, I would affirm the Trial Court’s deter-
mination that Cronin failed to demonstrate reversible
error. Cronin’s first claim is that she is owed backpay
because she should have received, but illegally was de-
nied, a promotion to Commander as of October 1, 1994.
     Cronin contends that she was promoted to Command-
er automatically on October 1, 1994 without the need for
any other action. She contends that October 1, 1994 was
the date of her appointment and the Navy failed to follow
the regulations that might have permitted a delay of that
promotion. She argues further that because she was
frocked as a Commander, she could not be denied promo-
tion unless some restriction imposed by law allowed for
that denial. See MILPERSMAN 2220130(5)(e) (“Frocked
officers will be entitled to military identification cards and
all privileges for the higher pay grade except entitlements
restricted by law.”). She concedes that SECNAVINST
1420.1A(23), a Navy regulation, outlines such a “re-
striction,” allowing the Navy to delay a promotion but
only if “[t]here is cause to believe that the officer is men-
tally, physically, morally, or professionally unqualified”
and allowing that delay “only if the officer has been given
written notice of the grounds for the delay before the
effective date of the appointment, unless it is impractical
to do so, in which case such written notice shall be given
as soon as practicable.” J.A. 265; see also 10 U.S.C. §
624(d)(2)–(3) (providing for the same and incorporated by
MILPERSMAN 2220130(5)(b) for frocked officers). She
contends that the Navy failed to follow SECNAVINST
CRONIN   v. US                                           11



1420.1A and 10 U.S.C. § 624(d)(2)–(3) because she was
not given the required notice. She also points to her
personnel file that in fact notes a promotion to Command-
er effective October 1, 1994 that later was struck through
with a note that she was not promoted “as she was not
physically qualified.” J.A. 82.
    The Navy responds that Cronin was not actually pro-
moted because she did not receive the standard appoint-
ment form and the Navy announced the delay of her
promotion before October 1, 1994 in accordance with the
applicable regulations. The Navy further contends that it
properly delayed Cronin’s promotion because it had cause
to believe that she was physically unqualified, which
under the Navy’s regulations allows for a delay of promo-
tion. The Navy finally asserts that to the extent regula-
tions were not strictly followed, the error was harmless.
    Cronin’s arguments are unpersuasive. The Navy gave
Cronin the required notice of a delay in her promotion in
the form of a letter dated September 30, 1994. The letter
informed Cronin that her promotion would be delayed
because she was not fit for duty. See J.A. 88; Opinion at
42. Cronin contends that this letter must have been
backdated from at least October 5, 1994 (and thus after
her promotion was to occur) because the letter refers to a
Medical Evaluation Board (“MEB”) report that did not
issue until October 5, 1994. The Trial Court “declined to
presume falsification of the September 30 date” and
“presume[d] that the Chief of Naval Personnel saw an
earlier version of the medical board report.” Id. This
finding is not clearly erroneous. See Richey v. United
States, 322 F.3d 1317, 1326–27 (Fed. Cir. 2003) (The
plaintiff in military records correction case must “over-
come the presumption of regularity that attaches to all
administrative decisions . . . .”).
    Cronin next contends that the letter was ineffective
regardless of the date because she did not receive it before
12                                              CRONIN   v. US



the effective date of her promotion. However, even as-
suming the regulation requires Cronin to actually receive
the written notice before the effective date, Cronin was
provided a full opportunity to respond to the letter, so any
procedural error as to the date she received it, and thus
with respect to SECNAVIST 1420.1A and 10 U.S.C. §
624(d)(2)–(3), was harmless. Barnes v. United States, 473
F.3d 1356, 1363 (Fed. Cir. 2007) (finding any procedural
defect with respect to notice of a promotion delay to be
harmless when the serviceman was provided an oppor-
tunity to respond and no action or decision is made
against him in the interim).
    Lastly, though her personnel record at one point indi-
cated the promotion had occurred, the Trial Court noted
that Cronin never received or executed an appointment
form regarding the actual promotion, a form that she had
received and executed in connection with all previous
promotions and that “normally” carries the “authority to
effect promotion.” Opinion at 45 (quoting the announce-
ment of the promotion list bearing Cronin’s name). For
these reasons, I cannot conclude that the Board’s deter-
mination that Cronin was not actually promoted to com-
mander on October 1, 1994 was clearly erroneous,
arbitrary and capricious, unsupported by substantial
evidence, or otherwise not in accordance with the law.
    Cronin next attacks the basis on which the promotion
was delayed, but that attack also fails. SECNAVINST
1420.1A(23)(a)(5) allows for delay if “[t]here is cause to
believe that the officer is mentally, physically, morally, or
professionally unqualified.” MEBs in 1993 and 1994
found Cronin was unfit for full duty and recommended
limited duty assignments. J.A. 128. The last period of
limited duty recommended by the MEB was set to expire
on September 12, 1994—before the October 1, 1994 pro-
motion. However, a Navy physician in a letter in August
1994 again opined that Cronin was not fit for full duty.
Opinion at 3.
CRONIN   v. US                                               13



    Cronin’s argument relies on MILPERSMAN
2220150(2), which provides that an officer “shall be con-
sidered physically qualified provided the officer is not in
one of the following situations:
    a. Undergoing hospitalization.
    b. On sick leave.
    c.   Awaiting appearance before a physical evaluation
         board.
    d. Classified as fit for limited duty based on the rec-
       ommendations of a medical board.
    e.   Awaiting final action on the recommended find-
         ings of a physical evaluation board or a medical
         board.”
She contends that none of those conditions applied as of
October 1, 1994 and that therefore the Navy must consid-
er her physically qualified. However, MILPERSMAN
2220150(1) provides that the reference point of the of-
ficer’s physical qualification is “as reflected by the officer’s
most recent physical examination,” and MILPERSMAN
2220150(2) further provides that the enumerated list
above also is “[s]ubject to any further review of the rec-
ords in the Navy Department which may be indicated and
action resulting from that review . . . .” The report of the
MEB in April 1994 and the August 1994 letter from a
Navy physician fully support the Navy’s actions and are
in accordance with MILPERSMAN 2220150(1) and (2).
   Cronin next points to MILPERSMAN 2220150(3)
which provides that:
    The foregoing criteria [from MILPERSMAN
    2220150(2)(a)–(e)] may not exclude from promo-
    tion an officer who, if otherwise eligible, is deter-
    mined to be not physically qualified for promotion
    when the Chief, Bureau of Medicine and Surgery
    determines that the officer’s physical disqualifica-
14                                              CRONIN   v. US



     tion was by reason of wounds received in the line
     of duty and that such wounds do not incapacitate
     the officer for the performance of useful service in
     the higher grade.
However, it is undisputed that the Chief, Bureau of
Medicine and Surgery made no such determination.
    Cronin also argues that the Navy failed to follow its
regulations with respect to the length of time for the
delay. SECNAVINST 1420.1A(23)(d) initially allows a
delay of six months, which can be extended. There is no
dispute that a formal request for a permissible extension
was made, Opinion at 12, but Cronin contends that there
is no indication as to whether the request was approved
or disapproved. The Board determined that the request
was approved, and given that the delay in fact continued,
that finding is not clearly erroneous. Kaneko v. United
States, 122 F.3d 1048, 1053–54 (Fed. Cir. 1997) (“Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly errone-
ous.”)
     Cronin similarly argues that the Navy failed to follow
its own regulations when it delayed her promotion beyond
18 months, the absolute limit allowed by SECNAVINST
1420.1A(23)(d). Cronin was set to be promoted on October
1, 1994. Within the statutory 18-month period, the Navy
took action to end the delay of her promotion by issuing
her formal TDRL order placing her on the List and simul-
taneously promoting her to Commander as of May 31,
1996. J.A. 139. The Trial Court concluded that the
retirement order was effective as the “last possible action
the Navy could take with respect” to Cronin’s promotion.
Opinion at 47. I see no clear error in that determination
and find no basis to conclude that the Navy’s actions were
contrary     to   the    provisions    of   SECNAVINST
1420.1A(23)(d).
CRONIN   v. US                                         15



             C. Cronin’s Disability Rating Claim
    Cronin separately challenges her disability rating.
Specifically, she challenges her ratings with respect to
migraines, her right heel injury, and chronic pain. Re-
garding migraines, she argues that they should have been
found unfitting before she was placed on the List and that
the Navy ignored the rating under the Veterans Affairs
Schedule for Ratings Disability (“VASRD”) for the mi-
graines from which she suffered. Regarding her right
heel injury, she contends that the Navy ignored the record
evidence, instead substituting its own lay opinion. She
lastly contends that the Navy generally failed to consider
her medical records and their descriptions of her condi-
tions, instead substituting its own opinions.
                        1. Migraines
    There is no dispute that Cronin suffered migraines at
the time she was placed on the List. Cronin therefore
contends that under the VASRD, the migraines should
have been rated at 30%. See 38 C.F.R. § 4.124(a). How-
ever, at the time she was placed on the TDLR, her mi-
graines were assigned to category III as not separately
unfitting and not contributing to any unfitting condition.
Based on evidence in the record, the PEB and the Board
found that the migraines were not unfitting because they
appeared to be well controlled with medication and
treatment. Opinion at 53–54. There is sufficient evidence
in the record to support the decision that the migraines
were not unfitting and therefore not ratable.
                    2. Right-Heel Injury
    Cronin’s right-heel injury was considered unfitting
and compensable at the time Cronin was placed on the
List. Id. at 52. Subsequently, a physician determined
prior to the 2000 Physical Evaluation Board that Cronin’s
right heel had full range of motion and “minimal tender-
ness to palpation” and re-diagnosed the injury from a
16                                             CRONIN   v. US



calcaneal spur to calcaneal pain. Id. The 2000 Physical
Evaluation Board observed Cronin in heeled sandals
rather than orthopedic footwear, and based on its own
observation and the recent physician’s report reduced the
rating from 30% to 0%, though still finding the condition
to be unfitting. See DES § 3804(l)(1) (“[o]ccasionally, a
medical condition that causes or contributes to Unfitness
for military service is of such mild degree that it does not
meet the criteria for even the lowest rating provided in
the VASRD [and a] zero percent rating may be ap-
plied . . . .”). Cronin protests the Physical Evaluation
Board and subsequent Board decisions for basing the
rating on their own “subjective opinions,” but the physi-
cian’s report of full range of motion and only minimal
tenderness provides substantial evidence to support the
Board’s decision.
                     3. Chronic Pain
    Cronin argues that her chronic pain is a “‘new condi-
tion’ related to the treatment of other conditions for which
she was placed on the TDRL . . . .” Appellant’s Br. 5. To
be compensable, the condition must itself be unfitting,
DES § 3618, and Cronin merely points to evidence that
she receives treatment for chronic pain rather than devel-
oping sufficient argument or pointing to sufficient evi-
dence here capable of demonstrating that her chronic pain
is unfitting.
    Related to her chronic pain claim, Cronin argues that
the Board erred by refusing to adequately consider
whether multiple conditions, each not unfitting in isola-
tion, together should be considered unfitting in combina-
tion, including her complaints of migraines, chronic pain,
fibromyalgia, TMJ, and carpal tunnel syndrome. DES §
3804(k) provides that a “member may be determined
Unfit as a result of the overall effect of two or more im-
pairments even though each of them, standing alone,
would not cause the member to be referred into the DES
CRONIN   v. US                                           17



or be found Unfit because of physical disability.” Howev-
er, fibromyalgia and TMJ are new conditions relative to
when Cronin was placed on the List, and Cronin has not
demonstrated that they could satisfy the conditions of
DES § 3618. The conditions do not appear related to a
condition unfitting at the time she was placed on the
List—or its treatment—or are themselves conditions that
were unfitting at the time she was placed on the List.
Without either showing, the conditions could not be
compensable the first instance. Cronin did complain of
migraines and carpal tunnel syndrome at the original
1995 PEB, and as discussed above she contends that her
chronic pain is related to her unfitting conditions, but she
raises no argument as to how these conditions when
considered together somehow render her unfit when
separately they do not. Even if the statute allows for
what Cronin argues, on this record I cannot conclude that
the Board’s conclusion lacks substantial evidence or was
arbitrary and capricious.
    Finally, Cronin makes a global argument that the
Navy must have failed to consider all of the evidence
when it decided against her. Though I find that the
record reflects that Cronin unfortunately suffers from
numerous ailments, for the reasons described above, the
record also provides substantial evidence to support the
Board’s conclusions that her PTSD, migraines, right-heel
injury, and chronic pain are non-compensable under the
DES despite the fact that Cronin may suffer from them.
                     II. CONCLUSION
     For the foregoing reasons, while I concur in the major-
ity’s determination of the PTSD claim and concur in the
majority’s disposition of the remaining claims, I would
reach that result on the merits of all of the issues on
appeal.
