UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARTREZE JONES,

Plaintiff,

v. Case No. 1:22-cv-1513 (TNM)

UNITED STATES DEPARTMENT OF DEFENSE,

Defendant.

MEMORANDUM OPINION *

The Army found that an injured servicemember did not qualify for disability benefits.

Years later, he appealed that decision to the Army. But the Army did not budge. So the soldier

sued the Army’s parent agency—the Defense Department—alleging that its decision not to

change his initial disability determination violated the Administrative Procedure Act. Both sides

now move for summary judgment. Because the Department’s decision was not arbitrary or

capricious and followed binding law, the Court will grant it summary judgment.

I.

Artreze Jones served honorably in the Army as a Heavy Construction Equipment

Operator. See Administrative Record (AR) 1207, ECF No. 22. He performed well, receiving

various medals and ribbons. See id. But meanwhile, his life outside the Army was crumbling.

Less than two years in, his mother passed away, the fourth death in his family since he

had enlisted. See AR389. And to make matters worse, his girlfriend left him. See id.

* The Memorandum Opinion was issued under seal on May 19, 2023. This version contains redactions of confidential information. Distraught, . See AR388. . See id.

. See AR38. Jones spent

nearly three weeks at his first hospital, followed by a six-week stint in a “

” Id. He was left with “ ” in his “r

AR13.

After leaving the hospital, Jones began the Army’s long disability-review process.

A.

First, an overview of that process. With an injured soldier like Jones, the Army needs to

figure out two related things: if the soldier is unfit to serve, and, if so, whether he qualifies for

disability retirement. The Army does that in a few steps.

The process begins with a Medical Evaluation Board review. If that board determines

that a soldier is unfit to serve, it refers the soldier to the Physical Evaluation Board. See Pillette

v. United States,

(Fed. Cir. 2017). The Evaluation Board then

“conducts a more thorough investigation” to determine “whether the servicemember is fit for

duty and qualifies for disability retirement.” Fulbright v. McHugh,

, 85–86

(D.D.C. 2014). And it rates the soldier’s disabilities on a percent scale.

These ratings carry significant financial implications. A soldier who served for less than

20 years must have at least a 30% disability rating to qualify for disability retirement, a series of

lifetime payments. See

(b)(3). If the soldier falls below that 30% threshold, he

receives only severance pay. See

(a).

Some soldiers are eligible to have that rating reviewed by yet another board—the Army’s

Physical Disability Board of Review. The Review Board examines the Evaluation Board’s

“findings and decisions.” 10 U.S.C. § 1054a(c). And, as part of its process, the Review Board

2 must also consider any other ratings assigned by Veterans Affairs, which also assesses

disabilities. White v. Mattis, No. 18-cv-02867,

, at *2 (D.D.C. Dec. 11, 2019).

Ultimately, the Review Board can recommend that the Army change the soldier’s disability

rating.

B.

Jones began Medical Board review in 2002. See AR1217. For over two years, he saw

many physicians and underwent various tests. The Medical Board eventually diagnosed him

and referred him to the Evaluation Board. See AR16. Only two

conditions are relevant here: (1) . Only

the first was recognized by the Medical Board referral. See

In 2004, the Evaluation Board found that only Jones’s

See AR13. It described that condition as a

See

In conclusion, the Evaluation Board recommended that Jones be discharged

with severance pay. See AR14. And the Army discharged him a few months later. See

AR1029.

After that, Jones applied for disability through the VA. Upon reviewing his medical

records, the VA gave Jones a

See AR5.

And finally, Jones applied to the Review Board, asking it to change the 20% rating from

the Evaluation Board. See AR10. In his view, the Evaluation Board had unreasonably

. See

And under the Evaluation Board’s

3 rating, he did not qualify for Army disability retirement. See

(b)(3). But under

the VA’s rating, he would. See

The Review Board considered Jones’s Army medical records, his VA records, and the

Army and VA disability ratings. See AR9. In a six-page memorandum, it chronicled Jones’s

medical history and compared the dueling disability ratings. Plus, the Review Board sent Jones’s

medical records to a neurology consultant.

AR8. In the end, the Review

Board agreed with the Evaluation Board’s ratings and recommended “no re-characterization of

[Jones’s] disability and separation determination” to the Secretary.

Displeased with the Review Board’s recommendation, Jones sued. He says that the

Review Board’s decision was “arbitrary, capricious, unsupported by substantial evidence and

contrary to law.” Am. Compl. at 15, ECF No. 8. Now, both parties have filed motions for

summary judgment. See Pl.’s Mot. for Summ. J. (Jones MSJ), ECF No. 24; Def.’s Cross-Mot.

for Summ. J. (DoD MSJ), ECF No. 26-1. The Court has jurisdiction. See

.

II.

Normally, summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). But when reviewing a challenge

to an administrative decision, the Court instead reviews that decision under the APA. Sierra

Club v. Mainella,

, 89–90 (D.D.C. 2006). Thus, “the district judge sits as an

appellate tribunal” and the “entire case on review is a question of law.” Am. Bioscience, Inc. v.

Thompson,

(D.C. Cir. 2001) (cleaned up). The Court must “hold unlawful

4 and set aside” a decision that is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.”

(2)(A).

The parties dispute how much deference the Court should grant to Review Board

decisions. The Department says it should be heightened. Jones says it should be normal.

Courts more deferentially review decisions from some military boards. See, e.g., Cone v.

Caldera,

(D.C. Cir. 2000) (Army Board for Correction of Military Records);

Kreis v. Sec’y of the Air Force,

(D.C. Cir. 1989) (Air Force Board for

Correction of Military Records). And the Court finds that Review Board decisions merit

heightened deference too.

To figure out whether to give heightened deference, courts look to “the extent to which

the relevant statute . . . constrains agency action.” Kreis,

. Here, the relevant

statute is 10 U.S.C. § 1554a. Under § 1554a(d), the Review Board “may, as a result of its

findings under a review under subsection (c), recommend to the Secretary concerned the

following [outcomes].” (emphasis added). And under 1554a(d)(1), “[t]he Secretary concerned

may correct the military records . . . in accordance with a recommendation made by the [Review

Board].” (emphasis added). The Review Board does not have to recommend a change to the

veteran’s disability rating because of the provision’s use of the word “may,” which suggests that

it retains discretion not to. See Jama v. ICE,

(2005) (“The word ‘may’

customarily connotes discretion.”); Antonin Scalia & Brian A. Garner, Reading Law: The

Interpretation of Legal Texts 112 (2012) (“[M]ay is permissive,” and “permissive words grant

discretion.”). And for the same reason, the Secretary need not follow the Review Board’s

recommendation. Thus, the scheme is doubly deferential: The Review Board need not

5 recommend anything, and the Secretary can ignore any recommendation and choose to make no

changes.

This scheme thus appears even more discretionary than the one at issue in Cone and

Kreis, both of which warranted heightened deference. The statute in those cases,

(a)(1), allowed the Secretary of a military department to change a record “when the

Secretary considers it necessary to correct an error or remove an injustice.” In contrast, the

statute here does not constrain the Review Board to fixing only errors or injustices. And it is

coupled with a provision granting sizeable discretion to the Secretary. Because of this, the

scheme here presents an even stronger case for deference. But see U-Ahk-Vroman-Sanchez v.

DOD, No. 19-cv-3141,

, at *6 (D.D.C. Feb. 4, 2021) (finding no heightened

deference). Thus, the Court agrees with the Department that it deserves heightened deference.

III.

The Department says that it is entitled to summary judgment because the Review Board’s

decision was not arbitrary and capricious, unsupported by substantial evidence, or contrary to

law. DoD MSJ at 1, 21. Jones disagrees. The Court takes each in turn.

A.

The Department argues that the Review Board’s decision was reasoned and supported by

substantial evidence. That is correct.

1.

To engage in reasoned decisionmaking, the Review Board must have “examine[d] the

relevant data and articulate[d] a satisfactory explanation for its action including a rational

connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Ins. Co.,

(1983) (cleaned up). The Court’s review is

6 “narrow,” and thus it may not “substitute its judgment for that of the agency.”

Still, the

Court must set aside an agency decision that relies on irrelevant considerations or ignores

important ones. See

And an agency’s conclusions must be plausible. See

Like the VA, the Review Board uses the

Veteran Affairs Schedule for Rating Disabilities to determine disability ratings. See 10 U.S.C.

§ 1216a(a)(1)(A). Under the VA Schedule, conditions like Jones’s are rated either “severe,”

“moderate,” or “mild.” See

.124a. And each of those ratings has a corresponding

disability percentage: 70, 40, or 20. See

Jones’s Review Board faced competing ratings. The Army’s Evaluation Board had rated

AR5. After reviewing the evidence, the

Review Board sided with the Evaluation Board,

AR9.

The Review Board explained that Jones had

AR8. And it noted that Jones

The Review Board also explained why it found the VA rating less compelling: “[T]he

VA rater cited findings in the record in the 2003 timeframe in determining the 40% rating. . . .

[T]he 2003 findings did not reflect his condition” when he was discharged.

In other words,

because Jones had improved, those old medical records were less probative of his condition at

the time that counts for disability ratings—when he was discharged in 2004. The Review Board

also acknowledged contrary evidence while explaining why that evidence did not disturb its

overall conclusion. See

7 In short, the Review Board “examine[d] the relevant data and articulate[d] a satisfactory

explanation for its” arm rating. State Farm,

. It made “no clear error of

judgment.”

(cleaned up).

from the Evaluation Board, and the Review Board

recommended no change. See AR9. In reaching that conclusion, the Review Board chronicled

the relevant evidence.

cf. Fred Meyer Stores, Inc. v. NLRB,

(D.C. Cir. 2017) (remanding a decision for “a complete failure to . . . grapple with contrary

evidence”).

AR8. And the Review Board explained

that

AR8–9. So this decision was sound

too.

2.

Jones urges that the Review Board’s decision was unreasoned and not supported by

substantial evidence. And he levies many arguments in support. Yet none persuade.

First, a preliminary issue. Underlying many of Jones’s arguments is a common point:

the Review Board erred by failing to apply a section from the VA’s internal manual, M21-1

8 Adjudication Procedures, See Jones MSJ at 16; see also

U.S. Dep’t of Veterans Affs., M21-1 Adjudication Procedures. In Jones’s view, the Review

Board’s failure to do so infected its decision with many problems. See Jones MSJ at 13.

Jones’s argument runs as follows: By statute, the Review Board must use the VA

Schedule, “including any applicable interpretation of the schedule by the United States

Court of Appeals for Veterans Claims.” See Pl.’s Reply and Opp’n (Jones Reply) at 13, ECF

No. 30-2 (quoting 10 U.S.C. § 1216a(a)(1)(A)). And he cites two cases from the Court of

Appeals for Veterans Claims for the rule that “evaluators of veteran disability ratings must

consider and discuss . . . [the Manual].” Id. at 12–13.

But neither case holds that. Overton v. Wilkie,

, 264 (2018), held that

the Board of Veterans’ Appeals must consider the Manual. Healey v. McDonough,

, 321 (2021), held likewise for a different VA internal guidance document. As Healey

explained, its holding fit “with a longstanding practice of requiring an agency to follow its own

internal guidance and policies.”

(emphasis added). Both cases involved the Board of

Veterans’ Appeals, not the Army’s Review Board. And more critically, neither case was an

“applicable interpretation of the [VA Schedule].” 10 U.S.C. § 1216a(a)(1)(A). Instead, both

cases involved the VA’s obligation to consider other guidance documents. And because neither

case was interpreting the VA Schedule, neither case bound the Review Board. So the Review

Board need not have considered the Manual.

The Court now takes Jones’s specific objections in turn.

Fact disputes. Jones claims that the Review Board got some facts wrong. First, he says

that the Review Board was wrong in finding that “the VA rating was based only on medical

records from 2003.” Jones MSJ at 14. Not so. The Review Board never said that the VA

9 considered only 2003 evidence. Rather, it stated that

AR8. That is (1) true and (2) different from

what Jones claims it says. See AR1033 (VA rating decision citing evidence from 2003). So this

raises no problem.

. See Jones MSJ at 14–15. But the Review

Board did note that some symptoms had persisted. See AR8 (noting that Jones

Thus, the

Review Board “reasonably reflect[ed] upon [record evidence] and grapple[d] with contrary

evidence.” Fred Meyer Stores,

.

Rational connection. Jones also claims that the Review Board “failed to explain how

[the] evidence fit into” its recommendation. Jones MSJ at 16. In his view, it needed to “set forth

a standard for comparing and assessing terms of degree.”

In particular, it needed to apply the

Manual. The Court disagrees. Recall that the Review Board was not bound by the Manual. And

the VA Schedule left the rating options loosely defined, giving the Review Board three choices:

severe, moderate, or mild. It chose mild. And, based on each term’s common meaning, that

choice was reasonable.

Irrelevant considerations. Next, Jones protests that the Board relied on irrelevant

considerations. First, the Review Board wrongly considered

. Jones MSJ at 18. That was wrong, he says, for two reasons:

10

at 19 (quoting DoD Instruction 6040.44, Encl. 3 § 1(b) (DoDI

6040.44), Physical Disability Board of Review, July 2, 2015).

But neither argument helps him. Knowing the correct cause of Jones’s symptoms could

have helped the Review Board assess his condition’s severity. So it was potentially probative

and thus a valid consideration. Nor did the Review Board violate Army regulations. In Jones’s

view, those “explicitly limit[] the [Review Board’s] review to identified conditions.” Jones MSJ

at 19 (internal quotation marks omitted). True enough. But that is exactly what the Review

Board did: it reviewed his identified condition. And Jones points to nothing that says the Review

Board cannot consider the accuracy of a diagnosis when doing so.

Second, Jones argues the Review Board should have ignored that his condition had

improved over time. He claims that improvement is “wholly irrelevant to [the Review Board’s]

rating criteria,” which is “based on the veteran’s condition at the time of separation.” Jones MSJ

at 20. But improvement was relevant; it suggested that medical reports from closer to the time of

his discharge were more probative. See, e.g., AR8 (Jones

Third, Jones insists that the Review Board should have ignored whether

See Jones MSJ at 20–21. But why? He says that “nothing in the

[VA Schedule] requires” the Review Board to consider such things. Id. at 21 (emphasis added).

But neither does the VA Schedule foreclose it. Indeed, it would have been odd for the Review

Board to disregard that evidence.

Jones also argues that if this was an appropriate consideration, then the Review Board

weighed it improperly because

11 See id. Not so. Jones points to nothing that foreclosed the Review Board from

considering, among other things, . Indeed, that is

rationally connected to the Review Board’s finding that Jones’s condition was mild.

Fourth, Jones nitpicks the following statement from the Review Board:

Jones

MSJ at 21 (quoting AR8) (alterations in original).

But nothing prohibits the

Review Board from placing medical records in context. Its decision need not “be a model of

analytic precision to survive a challenge.” Dickson v. Sec’y of Def.,

(D.C.

Cir. 1995).

Substantial evidence. Jones also claims that the Review Board’s decision was not

supported by substantial evidence. He faults the Review Board for failing to apply the Manual,

which it need not have considered. And he alleges that the Review Board ignored contradictory

evidence, particularly a

Jones MSJ at 24.

AR8.

C.

Jones also claims that the Review Board’s decision must be overturned because it was

“not in accordance with law.” See Jones MSJ at 26 (quoting

(2)(A)). But the

12 Review Board complied with its obligations under 10 U.S.C. § 1554a and DoDI 6040.44. And

Jones points to no binding law that it violated.

Jones first claims that the Review Board disregarded an Army guidance document. DoDI

6040.44 directs the Review Board to:

(a) Compare any VA disability rating for the specifically military-unfitting condition(s) with the PEB combined disability rating; and (b) Consider any variance in its deliberations and any impact on the final PEB combined disability rating, particularly if the VA rating was awarded within 12 months of the former Service member’s separation.

Enclosure 3 § 4(a)(5) (emphasis added). Under Jones’s reading, the Review Board needed to

give “particular consideration to the 2006 VA decision.” Jones MSJ at 27. By this, Jones seems

to argue that the Review Board needed to give the VA decision some type of deference. But that

is not what the provision says. Under that section, the Review Board needed to particularly

consider “any variance” in deliberations between the VA and Army disability reviews. The

Review Board did so, noting that the VA had relied more on outdated examinations from 2003.

Thus, the Review Board followed this instruction.

Next, Jones says the Review Board flouted regulations. Both

and

require that reasonable doubt about a disability “be resolved in [the veteran’s] favor.”

And

requires the Review Board to recommend the higher disability score “if the

disability picture more nearly approximates the criteria required for that [higher] rating.” But

this argument is little more than a rehash of Jones’s others.

His argument goes like this: DoDI 1332.38 lists various criteria that the Review

Board may consider, including whether a condition poses a risk to other servicemembers and

whether a condition makes keeping the servicemember too burdensome. See E3.P3.2.2. Plus, 13 the Instruction says that the Review Board must consider “[a]ll relevant evidence.” DoDI

1332.38, E3.P3.3. He says the Review Board failed to consider all relevant evidence when it did

not specifically mention part of a 2003 exam,

AR1231.

Not so. The Review Board noted the exam that Jones highlights. See AR8 (“[T]he

[Medical Board] psychiatrist noted that [Jones] was at risk of recurrence . . . [and] argued that he

did not meet retention standards.”).

See AR9. So even if the

Review Board were bound by those instructions, which the Department disputes, the Review

Board satisfied them.

IV.

For these reasons, the Court will grant summary judgment for the Department and deny

Jones’s motion for summary judgment. The Review Board’s decision was reasoned, supported

by substantial evidence, and followed the law. Its conclusion was reasonable under any standard

of review, but particularly given the heightened deference its decisions warrant.

A separate, unredacted Order has issued.

2023.06.07 17:07:12 -04'00' _____________________________ Dated: June 7, 2023 TREVOR N. McFADDEN, U.S.D.J.

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