McCord v. United States
131 Fed. Cl. 333
Fed. Cl.2017Background
- Preston McCord, an Army soldier (2008–2012), developed chronic low‑back pain with left‑leg radicular symptoms after a 2009 basic‑training fall; he was evaluated under the DoD/VA Integrated Disability Evaluation System (DES) pilot.
- The VA (DVA) C&P examiner diagnosed "degenerative disc disease (DDD) of the lumbar spine with radiculopathy of the left lower extremity."
- The Army PEB found McCord unfit for duty for "DDD of the lumbar spine with radiculopathy" but adopted DVA’s proposed single 20% rating tied to spinal range‑of‑motion (diagnostic code 5242) and did not separately rate radiculopathy.
- Because McCord’s combined rating was <30% and he had <20 years’ service, he was separated with severance pay (not retired).
- DVA’s final rating (Sept. 2012) assigned 20% for DDD and a separate 10% for left‑leg radiculopathy (codes 5242 and 8520), producing a 30% combined rating effective 5/29/2012.
- McCord sought correction from the Army Board for Correction of Military Records (ABCMR); the ABCMR denied relief, finding the separate radiculopathy rating reflected post‑discharge worsening. McCord sued in the Court of Federal Claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ABCMR erred by refusing to correct McCord’s military records to reflect DVA’s final separate rating for radiculopathy, producing a 30% combined rating and medical retirement | McCord: PEB labeled the unfitting condition as DDD with radiculopathy and Army regs require consideration of contributing conditions; DVA’s final 20% +10% should be reflected and entitle him to retirement pay | Govt/ABCMR: PEB did not find radiculopathy separately unfitting; DVA’s separate 10% reflects post‑discharge worsening/new evidence, so no error in separation with severance pay | Court: ABCMR’s denial was arbitrary and unsupported. The PEB failed to account for radiculopathy when assigning the 20% rating; DVA’s final decision was based on the same records and did not reflect post‑discharge worsening. Remand to ABCMR to correct records and award retirement and back pay |
Key Cases Cited
- Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299 (Fed. Cir. 2008) (Tucker Act jurisdiction requires a separate money‑mandating source)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (Tucker Act jurisdiction principles)
- Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005) (10 U.S.C. § 1201 is money‑mandating)
- Walls v. United States, 582 F.3d 1358 (Fed. Cir. 2009) (judicial review of military correction boards is based on the administrative record)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (RCFC 52.1: trial‑on‑the‑record standard)
- Heisig v. United States, 719 F.2d 1153 (Fed. Cir. 1983) (arbitrary‑and‑capricious standard; courts should not reweigh when reasonable minds could differ)
- Richardson v. Perales, 402 U.S. 389 (1971) (definition of substantial evidence)
- Chappell v. Wallace, 462 U.S. 296 (1983) (military board decisions reviewable for arbitrariness and substantial evidence)
- Barnick v. United States, 591 F.3d 1372 (Fed. Cir. 2010) (standards for judicial review of military correction board decisions)