MCCORD v. United States
1:16-cv-00310
Fed. Cl.Apr 19, 2017Background
- Preston McCord, an Army soldier (2008–2012), sustained a lumbar back injury in 2009 and developed left‑leg radicular symptoms; he was evaluated under the DoD/VA joint Disability Evaluation System (DES) pilot.
- The DES Compensation & Pension (C&P) examiner diagnosed “degenerative disc disease (DDD) of the lumbar spine with radiculopathy of the left lower extremity.” The Army MEB/PEB found him unfit for duty for “DDD of the lumbar spine with radiculopathy” and relied on DES materials in adjudication.
- DVA’s DES Proposed Rating (Dec. 2011) proposed a single 20% rating for “DDD of the lumbar spine with radiculopathy.” The PEB adopted a 20% rating (diagnostic code 5242) and recommended separation with severance pay, not retirement.
- After separation, DVA’s Final Rating Decision (Sept. 2012) assigned 20% for DDD (code 5242) and separately 10% for left‑leg radiculopathy (code 8520), yielding a combined 30% rating effective 5/29/2012.
- McCord applied to the Army Board for Correction of Military Records (ABCMR) to have his record corrected to reflect the combined 30% (and medical retirement). ABCMR denied relief, reasoning the separate radiculopathy rating reflected post‑discharge worsening.
- McCord sued in the Court of Federal Claims. The court reviewed the administrative record and granted McCord’s motion, finding the ABCMR’s denial arbitrary and capricious and remanding for correction and back pay.
Issues
| Issue | McCord's Argument | United States' Argument | Held |
|---|---|---|---|
| Jurisdiction to hear claim for military retirement pay | Court of Federal Claims has Tucker Act jurisdiction to adjudicate claims under 10 U.S.C. §1201 | Government does not dispute jurisdiction for relief sought | Court: jurisdiction proper under Tucker Act and §1201 |
| Whether ABCMR’s denial was supported by substantial evidence | ABCMR erred: PEB’s diagnosis included radiculopathy; PEB/Army regs require considering all contributing conditions; DVA final separately rated radiculopathy based on same record, so PEB rating should reflect it | ABCMR claimed radiculopathy was not separately unfitting and DVA’s final rating reflected post‑discharge worsening/new evidence | Court: ABCMR decision not supported by substantial evidence; PEB failed to account for radiculopathy when assigning rating |
| Whether DVA’s Final Rating reflected post‑discharge worsening (thus inapplicable to PEB outcome) | DVA’s Final Rating used the same medical records as the DES Proposed Rating; no record evidence shows worsening after separation, and DVA applied ratings retroactively to 5/29/2012 | ABCMR/Gov’t argued Final Rating reflected progression after discharge, justifying denial | Court: record does not support worsening theory; Final Rating reflects DVA’s final view based on pre‑discharge records |
| Remedy: correction and retroactive benefits | McCord seeks correction to combined 30% and medical retirement pay/back pay | Government opposed correcting records and awarding retirement pay | Court: GRANTS relief; remands to ABCMR to correct records, award retirement and back pay within 60 days |
Key Cases Cited
- Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299 (Fed. Cir.) (Tucker Act jurisdiction and separate substantive source required)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir.) (Tucker Act requires money‑mandating source)
- Chambers v. United States, 417 F.3d 1218 (Fed. Cir.) (10 U.S.C. §1201 is money‑mandating for disability retirement pay)
- Walls v. United States, 582 F.3d 1358 (Fed. Cir.) (judicial review of military correction boards under APA standard)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir.) (standard for judgment on the administrative record)
- Heisig v. United States, 719 F.2d 1153 (Fed. Cir.) (deferential review in military fitness decisions; substantial‑evidence standard)
- Chappell v. Wallace, 462 U.S. 296 (U.S.) (military board decisions subject to review for arbitrary and capriciousness)
- Barnick v. United States, 591 F.3d 1372 (Fed. Cir.) (judicial review standard for military correction boards)
- Richardson v. Perales, 402 U.S. 389 (U.S.) (definition of substantial evidence)