D.C. Circuit rejects heightened deference to PDBR decisions and clarifies ratings for multiple conditions

Elizabeth J. Jonas of DLA Piper LLP has kindly written this account of a noteworthy recent decision.

On July 28, 2023, the D.C. Circuit issued its noteworthy decision in Sissel v. Wormuth, No. 22-5045.  First, it rejects heightened deference to decisions by the Physical Disability Board of Review (“PDBR”), holding that typical arbitrary-and-capricious review under the Administrative Procedures Act applies.  Second, it finds that when multiple conditions are implicated, the PDBR must separately identify each condition in issuing ratings decisions, even in cases where two or more conditions collectively render a servicemember unfit and one of these conditions separately renders a servicemember unfit.  

Several amici curiae participated in this important case in support of Mr. Sissel, including Military-Veterans Advocacy, Inc., the Connecticut Veterans Legal Center, and Professors Eugene R. Fidell and Franklin D. Rosenblatt.  We had the privilege of representing Professors Fidell and Rosenblatt in their brief arguing that heightened deference should not apply to PDBR decisions. 

The Sissel decision is an important development in disability benefits law, as it rejects any sort of heightened deference to PDBR decisions—the type of deference typically afforded to military corrections boards.  The court reasons that such deference does not make practical sense because the PDBR performs distinct functions that do not concern active personnel, “such as performance reviews and promotion decisions.”  Additionally, the court is guided by the premise that less deference is warranted where an agency is afforded less discretion under a governing statute.  The court reasons that the PDBR is afforded less discretion under its operating statute, 10 U.S.C. § 1554a—which says the agency “may” act—than the statute which governs the correction of military records, 10 U.S.C. § 1552, which provides that an agency can act “when the Secretary considers it necessary.”   

Further, the court found that the PDBR erred in failing to separately rate each of Mr. Sissel’s injuries, instead lumping two injuries under a single diagnostic code and fitness rating.  To the extent one injury was non-ratable, the PDBR should have notated this condition as not separately unfitting and not contributing to unfitness; to the extent the second condition contributed to the first condition to render Mr. Sissel collectively unfit, the PDBR was obligated to separately rate the second condition.  Relatedly, the court held that a condition does not need to “significantly” contribute to a finding of collective unfitness to be separately rated; if it contributes at all to the unfitness determination, it must be separately determined. 

The decision in Sissel has significant implications for servicemembers appealing decisions of the PEB and PDBR, including opening the way to more circumspect review of disability-related agency decisions by courts.