Hatmaker v. United States
117 Fed. Cl. 560
Fed. Cl.2014Background
- Timothy Hatmaker was medically separated from the Air Force on Sept. 24, 2007 after an informal PEB found vertigo to be the only compensable/rateable unfitting condition and assigned a 10% VASRD rating; asthma, obstructive sleep apnea, and OCD were found not unfitting.
- Hatmaker applied to the DoD Physical Disability Board of Review (PDBR) in Sept. 2012; the PDBR in April 2013 recommended no change to the PEB decision (including denial of a higher vertigo rating and no change for the non-unfitting conditions).
- VA decisions: initially rated vertigo 0% (Apr. 2008) then increased vertigo to 30% (Mar. 2009); VA also rated sleep apnea 50%, OCD 10%, and asthma 10% at various times post-separation.
- Hatmaker sued in the Court of Federal Claims seeking remand/increased rating (to obtain disability retirement pay) and argued (inter alia) the PDBR erred by not: (1) giving special consideration to the VA rating, (2) reviewing combined effect of conditions, (3) considering total disability for unemployability, and (4) awarding 30% for vertigo.
- The court found PDBR erred by refusing to conduct an overall-effect review and found the PDBR’s explanation for denying a 30% vertigo rating inadequate; it upheld PDBR decisions on OCD, asthma, sleep apnea and on unemployability, but remanded for further PDBR consideration on overall-effect and vertigo issues and ordered a stay pending remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| PDBR authority to review "overall effect" of multiple conditions | Hatmaker: PDBR must evaluate combined effect of sleep apnea, asthma, OCD on fitness | DoD/PDBR initially said it lacked authority; Government later conceded PDBR may review such conditions | Court: PDBR erred in refusing overall-effect review; remand required for PDBR to consider combined effect |
| Consideration of VA disability rating for vertigo | Hatmaker: PDBR should give "particular"/heightened deference to VA 30% rating and treat VA rating itself as controlling evidence | PDBR/DoD: PDBR must review the underlying VA evidence de novo; heightened consideration applies only when VA rating issued within 12 months of separation (not here) | Court: No error in PDBR treating VA evidence de novo; VA 30% rating was awarded 18 months post-sep so no special 12-month deference; but PDBR’s vertigo analysis lacked sufficient explanation; remand required |
| Whether PDBR adequately supported denial of increased vertigo rating (10% → 30%) | Hatmaker: medical record supports more frequent dizziness, staggering, objective disequilibrium, absences from work and driving limitations consistent with 30% | Government: PDBR appropriately evaluated records and relied on absence of consistent objective findings and intermittent/occasional symptoms | Court: PDBR failed to explain its weighing of conflicting evidence (omitted discussion of work absences, physical‑therapy findings, medication entries, and the distinction between "occasional dizziness" vs "dizziness"/"staggering"); remand for fuller explanation and consideration |
| Claim for total disability due to unemployability (TDIU) | Hatmaker: PDBR should consider entitlement to 100% based on unemployability; urged reliance on DoD instruction allowing 100% where VASRD does not provide it | Govt: Under VASRD (38 C.F.R. § 4.16) single-condition TDIU requires a schedular 60% rating; DoDI 1332.39 (which had broader TDIU guidance) was rescinded and PDBR could not rely on it for separations before Jan. 28, 2008 | Court: PDBR properly limited review under VASRD; denial of TDIU review upheld (no error) |
Key Cases Cited
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (jurisdictional burdens)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (substantial-evidence review requires considering whole record)
- Heisig v. United States, 719 F.2d 1153 (Fed. Cir.) (courts must not substitute their judgment for military fitness determinations)
- Wagner v. United States, 365 F.3d 1358 (Fed. Cir.) (limits of harmless-error review when agency discretion is unfettered)
- Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (remand appropriate where agency failed to consider relevant factors)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir.) (10 U.S.C. § 1201 is money-mandating)