Legal Case Summary

. It's, you know, I'm going to ask the, every single thing question. They have to find, there has to be a finding of PTSD at that point. Then it's the P.E.B.s or the fiscal evaluation boards job to go and figure out A was an unfit for duty and B if he was unfit for duty. What the percentage of disability is and whether or not he should be retired. And then, and then my next question is, how come the Court of Federal claims say that that Navy found he was fit for duty in spite of PTSD if they, if the, if the board couldn't do that? I, and, and again, this is part of our point judge. I think that the, and I'm pleased. I'm not saying against Judge Smith. He was very sympathetic and I think he, you know, if you read the language, his, his, his, his, his very sympathetic towards sort of the Russell. And I think he feels that he has to do what he did. But without what the Court did initially was to find that the P.E.B. Act acted arbitrarily and capriciously without substantial evidence. And that was a good finding in our opinion

. But since the P.E.B. never actually considered fitness or unfit for duty in light of the P.E., in light of the Court's finding of post-traumatic stress disorder, then what should have happened? Well, in light of, not in light of, they never considered it. That's right. And what they would have done was to create. The page of the record is this discussion by the P.E.B. of the P.E.F.A. or which P.E

.F.A. I'm sorry, Judge. My hearing is going a little bit. Did she say I asked the page of the record, what P.E.A. It would be very important. It would be a report started at A1065. And you bear with me for just a second. If you look at page A10167, Judge. I'm sorry, 10167. Yes, sir. I'm starting down at the third full paragraph. The board determined diagnosis, 3PTSD, Category 3, etc., etc. Well, that doesn't seem to be a finding that you didn't have P

.E.S. here. I'm sorry, Judge. I miss what you said. That paragraph says the board determined diagnosis, 3PTSD, is Category 3, and does not preclude it to continued performance. That seems to be accepting the notion that he had some P.T.S.D. No? Well, later went on to say, though, that in the last paragraph in that column, he was not able to talk about Dr. Ginsburg. He was not able to state definitively whether the member had a diagnosis of P.T.S.D. at that time, with that time being the time of discharge

. I don't think that they disputed the fact that Sergeant Russell had P.T.S.D. their dispute was whether or not it existed at the time of discharge. Didn't you concede that there was nothing in the record showing that Sergeant Russell was unable to function? I think I conceded that he was able to function, but not that he was able to function as a sergeant N.C.O. in charge of a fire team, which is what his M.O.S. was, as a military operational specialist. So he could do woodworking, which in fact is a good therapy for P.T.S.D. He could probably, you know, at that particular time, work in the chapel, which is not a bad therapy for P

.T.S.D. He couldn't go in and lead a squad in a house to house fight in Fallujah. Well, that sounds like a dispute about what fit for duty means. And it seems to be a dispute about whether fit for duty means to the fit for his former duty post as opposed to some other activity. And that's exactly right, sir. If I'm flying aircraft, I actually go shift, but I was flying aircraft and all of a sudden I can't fly aircraft anymore. That doesn't mean that I can't sit around and drive a desk. What it does mean is I can't go back and do what military hired me to do. So you can point if you were flying aircraft and you're disabled from doing that, but you can still perform desk duty. Does that entitle you to disability retirement? Yes, sir, it could. And the reason being I was hired to fly an aircraft to be a jet pilot, there's plenty of desk jockeys around. They don't need me in that particular position. I'm being paid. I've got what they call a designator or in the Marines they call a military operational specialist. And that's what I'm supposed to be doing

. I count against the numbers for that designator or that military operational specialist. And if I can't do that, if I can't be retrained in something else like driving a submarine, then I should be retired and I should be retired because of that disability. Because of that disability that prevented me from flying the airplane. Now I hope that made sense to you. Is there some definition in the regulations as to what fit for duty means? Yes, there is. Where do we find that? And I don't believe it's in the record. It would be in the Secretary of Navy instruction 1850.4 series. And what does that say? I can't answer. I don't remember the exact wording. Basically what it's going to say is fit for duty or worldwide assignment. But I don't have the exact definition with it. Okay. But it's just coming back to this page that you cited. What's the reference to diagnosis three in that first paragraph or the middle paragraph there? The board determined diagnosis three. What is diagnosis three? Diagnosis three would be the PTSD, sir. But are they referring to a particular diagnosis by Dr

. Ginsburg or what's the reference there? That would have been as submitted to the physical evaluation board. It would be on one of the submission documents, Judge. The way they do that is they consider every, and I'm not sure that's in the record. They consider every diagnosis in his particular case. There were two diagnosis that related to his hand and one to the PTSD. So diagnosis three is referring to a particular diagnosis. Yes, sir. And that would be the PTSD. And is that the diagnosis by Dr. Ginsburg? That would be the diagnosis by Dr. Ginsburg and the VA, yes, sir. But that seems to suggest that the Ginsburg diagnosis was category three PTSD. And they don't seem to dispute that in that paragraph. No, again, but what they do is dispute is whether or not it existed at the time of discharge, which their mission is to determine what was there at the time of discharge. So, for example, if I hurt my hand a day before I'm discharged, then that would be within their curvy. If there's no evidence to show that that hand injury didn't occur until six months after discharge, they could say, OK, yes, you have a hand injury, but it did not occur at time of discharge. Mr

. Wells, the Court of Federal claims opinion states, Plainless Council, conceded in real argument that Sergeant Russell left the Navy because, quote, he wanted to go home. Yes, sir. Unquote. And it refers to Plainless decision as voluntary. And just as part of some of the problems that you get into with PTSD. I mean, what they did, and this is one of the reasons why the NDAA 2010 was passed, or that provision on reviewing some of the discharges, is the kid goes, he's been hurt, he's psychologically hurt, he's confused, he wants to go home. And they say, do you want to go home, or do you want to stick around for upteen months to do a medical evaluation for it? And he's going to go home. It's typical of PTSD. When I was trying to go for my last job in the Navy, I commanded a Navy Marine Corps reserve center. I saw people coming back on crutches. What are you doing back here? Why aren't you getting it fixed? I wanted to go home. They said it would take years. So you wanted to save some rebuttal time? In an order amount to save time and money, and that's what happened. You wanted to save rebuttal argument time? Oh, I'm sorry, yes, sir. We'll do that for you, Mr. Michael Mail. Yes, thank you, Your Honor. Good morning, I may have used the court. The court should affirm the judgment of the court of federal claims. It is not the case that the PEB denied that Sarge of Local Ed PTSD at time of discharge. It looks that at least the PEB accepted for purposes of analysis that he did. And therefore, Karge, you're not sure that that's correct. They seem to be saying that Dr. Ginsburg's I know some with PTSD, but that was December 2003. And that's not evidently that he had PTSD at the time of discharge. And Judge Smith and the court of federal claims looking at the record concluded that that was wrong. And that he did have PTSD at the time of discharge. I guess what Judge Wallach's question suggests is that the PEB went forward on a wrong theory that is lack of PTSD at the time of discharge, shouldn't it be asked to re-examine all of this and determine whether the PTSD that he had at that time was sufficient to disable the rendered him for duty. That's the question. Forgive me. And my square question was, did as I understand, PEB did not make a fitness determination, a fitness determination with regard to PTSD at the time of discharge. Well, to your honest question, the PEB did make a fitness determination with respect to PTSD at time of discharge. And that is reflected in the Category 3 finding, which is a reference to Secretary of Navy Instruction 1850.4D4111

. Good morning, I may have used the court. The court should affirm the judgment of the court of federal claims. It is not the case that the PEB denied that Sarge of Local Ed PTSD at time of discharge. It looks that at least the PEB accepted for purposes of analysis that he did. And therefore, Karge, you're not sure that that's correct. They seem to be saying that Dr. Ginsburg's I know some with PTSD, but that was December 2003. And that's not evidently that he had PTSD at the time of discharge. And Judge Smith and the court of federal claims looking at the record concluded that that was wrong. And that he did have PTSD at the time of discharge. I guess what Judge Wallach's question suggests is that the PEB went forward on a wrong theory that is lack of PTSD at the time of discharge, shouldn't it be asked to re-examine all of this and determine whether the PTSD that he had at that time was sufficient to disable the rendered him for duty. That's the question. Forgive me. And my square question was, did as I understand, PEB did not make a fitness determination, a fitness determination with regard to PTSD at the time of discharge. Well, to your honest question, the PEB did make a fitness determination with respect to PTSD at time of discharge. And that is reflected in the Category 3 finding, which is a reference to Secretary of Navy Instruction 1850.4D4111. And that has four categories, ABCD, and Category 1 is all unfitting conditions. Category 2 are those conditions that are contributing to the unfitting condition. Category 3, which is what the PEB determined, those conditions that are not separately unfitting and do not contribute to the unfitting condition, which is precisely what the PEB says on page A-10167 that Commander Wells was talking about. And finally, Category 4 conditions, which do not constitute a physical disability. If the PEB had neither assigned a category to PTSD or perhaps assigned Category 4 to that condition, then we might say that the PEB did not determine whether PTSD at time of discharge made Sergeant Russell unfit for duty. But it did. It went further. It said that there was no evidence of any PTSD symptoms or diagnosis. So it found no doctors diagnosis of PTSD despite Sergeant Russell having been in the hospital for a month in Bethesda having been in occupational therapy at Pendleton. And in the months prior to discharge, well up until October, I believe. And but more importantly, because this is a question about fitness, which by the way is defined not fitness itself. I've also seen that set definition. I don't have it. But we're in the record of those three those work categories. If not in the record, it's it's well actually it's not it's not even appendix. It is in the administrative record of the whole second ad instruction. Well 1850

. And that has four categories, ABCD, and Category 1 is all unfitting conditions. Category 2 are those conditions that are contributing to the unfitting condition. Category 3, which is what the PEB determined, those conditions that are not separately unfitting and do not contribute to the unfitting condition, which is precisely what the PEB says on page A-10167 that Commander Wells was talking about. And finally, Category 4 conditions, which do not constitute a physical disability. If the PEB had neither assigned a category to PTSD or perhaps assigned Category 4 to that condition, then we might say that the PEB did not determine whether PTSD at time of discharge made Sergeant Russell unfit for duty. But it did. It went further. It said that there was no evidence of any PTSD symptoms or diagnosis. So it found no doctors diagnosis of PTSD despite Sergeant Russell having been in the hospital for a month in Bethesda having been in occupational therapy at Pendleton. And in the months prior to discharge, well up until October, I believe. And but more importantly, because this is a question about fitness, which by the way is defined not fitness itself. I've also seen that set definition. I don't have it. But we're in the record of those three those work categories. If not in the record, it's it's well actually it's not it's not even appendix. It is in the administrative record of the whole second ad instruction. Well 1850.4 East is in is in the administrative record. Are you saying that Category 3 is a category that says he's not unfit for duty? Yes. And that's what yes. And that's what we're in that. That's in the analysis though. Let me walk you back to the finding. It's a couple of pages earlier. Finally, I have to carry with you is unfit to continue to enable service because of a physical disability. Yes. No mention of PTSD. That's because the PEP did not find that he was separately unfit because of PTSD for that PTSD contributed to the unfitting condition, the unfitting condition being his hand. His hand maled to maled forming. So what the PEP was doing here was what it was asked to do on reman, which was to determine whether Sergeant Russell at time of discharge was fit for duty. And if not unfit for duty, what to what rating of disability. And it's because it's first step. And this is also what 411 says. Only category one conditions will be rated by the PEP and category one is all unfitting conditions because it must answer that question first

.4 East is in is in the administrative record. Are you saying that Category 3 is a category that says he's not unfit for duty? Yes. And that's what yes. And that's what we're in that. That's in the analysis though. Let me walk you back to the finding. It's a couple of pages earlier. Finally, I have to carry with you is unfit to continue to enable service because of a physical disability. Yes. No mention of PTSD. That's because the PEP did not find that he was separately unfit because of PTSD for that PTSD contributed to the unfitting condition, the unfitting condition being his hand. His hand maled to maled forming. So what the PEP was doing here was what it was asked to do on reman, which was to determine whether Sergeant Russell at time of discharge was fit for duty. And if not unfit for duty, what to what rating of disability. And it's because it's first step. And this is also what 411 says. Only category one conditions will be rated by the PEP and category one is all unfitting conditions because it must answer that question first. And by the way, the statute also lays it out that way. The PV was asking itself. According to the record of his conditions at time of discharge, what's the unfit for duty such that a rating would have to be applied? So it answered that question yes with respect to his hand and no with respect to PTSD with respect to his hand is assigned to zero percent rating. It never assigned a rating to PTSD because it never found him unfit for duty. And part of that was that there was no diagnosis from the time. And the second part is there were no symptoms. And that is not surprising. It is not surprising that at time of discharge less than a year from the injury. There were no symptoms of PTSD and Commander Wells explained this to the P to the director of the consult on petition for relief where he he wrote the diagnostic and statistical manual mental disorder. And this by the way is on page 10207. The D he's referring to the DC DSM for both recognized delayed onset onset in delayed onset PTSD at least six months past before the symptoms manifest. In fact, the symptoms may not be evident for years. So although the VA screened him positive for PTSD in June of 2004 in December of 2003 when he was being discharged, nobody had reported any symptoms. Existing at that time of Mr. Sergeant Russell's PTSD not even Sergeant Russell. He was not manifesting any of the symptoms of PTSD that the DC that the DC SN3 which is not in the record. Talks about I bring up the DDSM for I bring that up because Commander Wells does in his brief

. And by the way, the statute also lays it out that way. The PV was asking itself. According to the record of his conditions at time of discharge, what's the unfit for duty such that a rating would have to be applied? So it answered that question yes with respect to his hand and no with respect to PTSD with respect to his hand is assigned to zero percent rating. It never assigned a rating to PTSD because it never found him unfit for duty. And part of that was that there was no diagnosis from the time. And the second part is there were no symptoms. And that is not surprising. It is not surprising that at time of discharge less than a year from the injury. There were no symptoms of PTSD and Commander Wells explained this to the P to the director of the consult on petition for relief where he he wrote the diagnostic and statistical manual mental disorder. And this by the way is on page 10207. The D he's referring to the DC DSM for both recognized delayed onset onset in delayed onset PTSD at least six months past before the symptoms manifest. In fact, the symptoms may not be evident for years. So although the VA screened him positive for PTSD in June of 2004 in December of 2003 when he was being discharged, nobody had reported any symptoms. Existing at that time of Mr. Sergeant Russell's PTSD not even Sergeant Russell. He was not manifesting any of the symptoms of PTSD that the DC that the DC SN3 which is not in the record. Talks about I bring up the DDSM for I bring that up because Commander Wells does in his brief. It's not it's not in the administrative record but. Sergeant Russell did not he did not complain he did not manifest any of the any of the symptoms of PTSD. And even if he had the question would have been would those have with those have made and this is from the general criteria for making unfitness determinations. Would that have made it on it him unable to reasonably perform the duties of his office I'm paraphrasing this is a second half instruction 1850.4 D 3302A where the P.E.B. must determine according to this a service member shall be considered unsit when the evidence establishes that the member due to physical disability. So we can read mental disorder to is unable to reasonably perform the duties of her office grade rank or rate now the P.E.B. The P.E.B. where do I find what Ginsburg said about PTSD what page is that. That is in a latter part of the of the joint appendix Dr. Ginsburg's

. It's not it's not in the administrative record but. Sergeant Russell did not he did not complain he did not manifest any of the any of the symptoms of PTSD. And even if he had the question would have been would those have with those have made and this is from the general criteria for making unfitness determinations. Would that have made it on it him unable to reasonably perform the duties of his office I'm paraphrasing this is a second half instruction 1850.4 D 3302A where the P.E.B. must determine according to this a service member shall be considered unsit when the evidence establishes that the member due to physical disability. So we can read mental disorder to is unable to reasonably perform the duties of her office grade rank or rate now the P.E.B. The P.E.B. where do I find what Ginsburg said about PTSD what page is that. That is in a latter part of the of the joint appendix Dr. Ginsburg's. Dr. Ginsburg's evaluation of Sergeant Russell begins at page 1010171. Where does he talk about the PTSD he talks about it. Well he he talks about it at it looks like 10202. It's right about just at the end. He talks about the discusses access access one post dramatic stresses. Post dramatic stress disorder. I don't see where he says that that Sergeant Russell was manifesting symptoms of PTSD but even if he were the question where he was at some of the discharge. I mean I actually meant this association from others I mean those are PTSD similar. I meant you're on a time of discharge because Dr. Ginsburg started examining Sergeant Russell in 2008. But even if Sergeant Russell had been manifesting symptoms of PTSD that would not answer whether he were unfit for duty. The P.E.B. would have to determine whether he was reasonably reasonably able to perform the duties of his office grade rank. Now with respect to his hand commander Wells what commander Wells was saying is accurate with respect to his hand the P

. Dr. Ginsburg's evaluation of Sergeant Russell begins at page 1010171. Where does he talk about the PTSD he talks about it. Well he he talks about it at it looks like 10202. It's right about just at the end. He talks about the discusses access access one post dramatic stresses. Post dramatic stress disorder. I don't see where he says that that Sergeant Russell was manifesting symptoms of PTSD but even if he were the question where he was at some of the discharge. I mean I actually meant this association from others I mean those are PTSD similar. I meant you're on a time of discharge because Dr. Ginsburg started examining Sergeant Russell in 2008. But even if Sergeant Russell had been manifesting symptoms of PTSD that would not answer whether he were unfit for duty. The P.E.B. would have to determine whether he was reasonably reasonably able to perform the duties of his office grade rank. Now with respect to his hand commander Wells what commander Wells was saying is accurate with respect to his hand the P.E.B. compared his maled deformity to his MOS and found that he was unfit for duty. Presumably a motive this P.E.B. report seems to be what's bothering me it seems to be somewhat contradictory. In one paragraph it said the PTSD category 3 and that doesn't include the continued performance of duties. In the other paragraph they say well we're going to discount Ginsburg because he didn't have a diagnosis at the time of discharge. Yes I see the tension there and that's why I say it looks like what the P.E.B. did was to accept that Sergeant Russell had PTSD at time of discharge which is reasonable to infer because in June of 2004 which is roughly a year at the time of discharge. After the injury he was screen positive for PTSD and like Miranda Wells said there was nothing else going on. I leave Somalia aside because he was fit for duty and correct well after Somalia but it stands to reason that the only is reasonable to infer that the only cause of the PTSD for which he was screen positive in June was the May 2003. I mean June 2004 was the May 2003 injury to his hand. It might have been arbitrary and it might have been reversible for the P

.E.B. compared his maled deformity to his MOS and found that he was unfit for duty. Presumably a motive this P.E.B. report seems to be what's bothering me it seems to be somewhat contradictory. In one paragraph it said the PTSD category 3 and that doesn't include the continued performance of duties. In the other paragraph they say well we're going to discount Ginsburg because he didn't have a diagnosis at the time of discharge. Yes I see the tension there and that's why I say it looks like what the P.E.B. did was to accept that Sergeant Russell had PTSD at time of discharge which is reasonable to infer because in June of 2004 which is roughly a year at the time of discharge. After the injury he was screen positive for PTSD and like Miranda Wells said there was nothing else going on. I leave Somalia aside because he was fit for duty and correct well after Somalia but it stands to reason that the only is reasonable to infer that the only cause of the PTSD for which he was screen positive in June was the May 2003. I mean June 2004 was the May 2003 injury to his hand. It might have been arbitrary and it might have been reversible for the P.E.B. to have found that he did not have PTSD at time of discharge but it did not do that. It appears to have accepted that he had PTSD at time of discharge. Asked itself the fitness determination question which it answered in the negative that it was not unfit and therefore never got to a rating. But let's say that it actually got to a rating. Oh by the way before I leave that point. Nor does Miranda Wells point to any page in this appendix or anywhere in the record where it shows that that that are even indicates that Sergeant Russell was was was not able to reasonably perform the duties of his office because of PTSD in December 2003. This is not a case like Santiago which one of us site in our brief in which the Pete the I forget whether it was a navy bus the board ignored evidence of hypertension. Nowhere does Sergeant Russell say here's the evidence of Mr. Sergeant Russell's unfitness because of PTSD at time of discharge that the that the Navy in the form of the P.E.B. Disregard about but Sergeant Russell has to go much further and if this were to be remanded it would have to go much further and and demonstrate to the Navy that he was 30% disabled because of PTSD because of course he's not challenging that the handwriting and that was 0% so we have to get 30%. There is no evidence that he meets that he would meet that standard which is at which I would say in my brief at page by I I attended occupational and social payment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tests and there's a list of symptoms including mild memory loss. Now the only the only thing that comes close to a symptom of PTSD during his active duty is on page 10162 which is part of the health assessment in which he answered the question whether he was having difficulty remembering either during both during deployment and and now which was in September 2003 he answered yes he was during his deployment but not now. So I don't say that he didn't have PTSD at that time what I am saying is that even that reflects that there were no symptoms of PTSD upon which what what was the date of diagnosis three the date of diagnosis three

.E.B. to have found that he did not have PTSD at time of discharge but it did not do that. It appears to have accepted that he had PTSD at time of discharge. Asked itself the fitness determination question which it answered in the negative that it was not unfit and therefore never got to a rating. But let's say that it actually got to a rating. Oh by the way before I leave that point. Nor does Miranda Wells point to any page in this appendix or anywhere in the record where it shows that that that are even indicates that Sergeant Russell was was was not able to reasonably perform the duties of his office because of PTSD in December 2003. This is not a case like Santiago which one of us site in our brief in which the Pete the I forget whether it was a navy bus the board ignored evidence of hypertension. Nowhere does Sergeant Russell say here's the evidence of Mr. Sergeant Russell's unfitness because of PTSD at time of discharge that the that the Navy in the form of the P.E.B. Disregard about but Sergeant Russell has to go much further and if this were to be remanded it would have to go much further and and demonstrate to the Navy that he was 30% disabled because of PTSD because of course he's not challenging that the handwriting and that was 0% so we have to get 30%. There is no evidence that he meets that he would meet that standard which is at which I would say in my brief at page by I I attended occupational and social payment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tests and there's a list of symptoms including mild memory loss. Now the only the only thing that comes close to a symptom of PTSD during his active duty is on page 10162 which is part of the health assessment in which he answered the question whether he was having difficulty remembering either during both during deployment and and now which was in September 2003 he answered yes he was during his deployment but not now. So I don't say that he didn't have PTSD at that time what I am saying is that even that reflects that there were no symptoms of PTSD upon which what what was the date of diagnosis three the date of diagnosis three. Well if your honor is referring to a doctor's diagnosis that was the one referred to yes it is a three what's the date of the well the PEP found that in January 2010 well that was in the order one. Well referring to a diagnosis by Dr. Ginsburg what was the date of the Ginsburg diagnosis that was referring to a specific diagnosis diagnosis three right yes I assume that's correct that was that was a data that must been 2008 because Dr. Ginsburg didn't hadn't seen but there was a June hadn't seen until 2008 there was a June 2004 positive screening if that is a diagnosis I that that could be what the. It could be what the PEP was referring to or the PEP what must could have been referring to the Sergeant Russell's position that he had had a diagnosis I see that I'm on. Thank you Mr. McElmail thank you. Yes thank you your honor you know the date of diagnosis three I would have been June of four June of 2004 that would have been the VA diagnosis after that three times three yes that's PTSD come along waste is George Pat and slapped soldier and but it's still not a perfect determination you can't find PTSD with a blood test it's not a good thing to some extent is it's as much art as science what we do know is the PTSD will not manifest itself immediately but it does go back to the stressor it's a the stressor which in this case could have been bearing the debt Somalis or could have been his hand being mangled by a grenade either one of those would constitute a stressor it won't manifest itself immediately that's why there was no diagnosis immediately now I would point your honor however how do you get around this paragraph. Which says the board determined the diagnosis three which you say is June of 2004 is category three and doesn't preclude continued performance of duties so aren't they saying that maybe he had category three PTSD at the time of the discharge but that didn't prevent the performance of the duties again that's a problem of being somewhat more art than science because you don't know when it's going to be triggered as makes an example I had an individual who was a first responder on the start that was hit with an Iraqi missile went for about two different tours with no problems then there was a small stack fire on another ship and he just tripped off line it's it's a lot of ways it's an accident waiting to happen somebody comes back normally spends six eight months a year two years and then wakes up in the middle of the night try to sprinkle his wife because he believes that it's the enemy coming through the wire and those are some of the problems with the judge I would ask if you get a chance because I'm almost out of time to look at a one zero two zero nine it's the comments of the denial of the petition review and basically says there's no evidence is pre separation med records a document either symptoms or diagnose a PTSD and while the possibility of existence or Russell may currently suffer from delayed onset there was no evidence of significant impairment and that's the truth but there would not have been in the delayed onset that's what so so terrible about this disorder your honors I'm out of time I thank you for your patience and Sergeant Russell thank you also

Charles Russell versus United States 2013 507. We will hear from Mr. Wells when he is ready. Hi, John. I am John Wells. I am appearing on behalf of Sargent Charles Russell, United States Marine Corps, former Marine Corps. I am looking at the information that was being sent to the North American Army. I am looking at the information that was sent to the North American Army. I am looking at the information that was sent to the North American Army. I am looking at the information that was sent to the North American Army. We know the story of the US Army. Do you agree that someone can suffer from PTSD and still be fit for duty? Hypothetically, yes. It depends on the degree of PTSD. I think, in the course of our line, a lot of us do suffer from PTSD. I live through Katrina, so I probably have some PTSD myself and I am also a veteran, so I am sure I have some. But my degree of PTSD, and perhaps a degree of everybody else, is not to the point where it would make us unfit for duty, unable to function. In Sargent, Russell's case had had. I would support that with the evidence of Dr. Ginsburg, which was included. The fact that the VA now has found him disabled for PTSD. As his life continues, it gets worse. We are in the situation having to put in for 100% total disability on him. It isn't that a finding of fact as to whether he was unfit at the time of his discharge. It is your honor. Do we owe deference to the court with respect to a finding of fact? I think you do owe a deference to the court of federal claims who found that in fact he was. I was suffering from PTSD at the time of discharge. They, as you remember in their opinion. But the question is unfit for duty at that time. Did the, did the, did the, did the, did the, did the, did the, let me ask you this because I think I'll lead to what you, yes sir, your answer. Did the, the fiscal evaluation board make a fitness determination with regard to PTSD? No, they did not. The reason they didn't is because they found that there was no evidence of PTSD. Well, what, what, what, wait a minute. If, if they, they, but they didn't make a finding about PTSD. That's correct. So if they didn't, how did they find he was fit for duty in spite of PTSD if they hadn't found that, that there was PTSD? That's the point, you know, I can't. It's, you know, I'm going to ask the, every single thing question. They have to find, there has to be a finding of PTSD at that point. Then it's the P.E.B.s or the fiscal evaluation boards job to go and figure out A was an unfit for duty and B if he was unfit for duty. What the percentage of disability is and whether or not he should be retired. And then, and then my next question is, how come the Court of Federal claims say that that Navy found he was fit for duty in spite of PTSD if they, if the, if the board couldn't do that? I, and, and again, this is part of our point judge. I think that the, and I'm pleased. I'm not saying against Judge Smith. He was very sympathetic and I think he, you know, if you read the language, his, his, his, his, his very sympathetic towards sort of the Russell. And I think he feels that he has to do what he did. But without what the Court did initially was to find that the P.E.B. Act acted arbitrarily and capriciously without substantial evidence. And that was a good finding in our opinion. But since the P.E.B. never actually considered fitness or unfit for duty in light of the P.E., in light of the Court's finding of post-traumatic stress disorder, then what should have happened? Well, in light of, not in light of, they never considered it. That's right. And what they would have done was to create. The page of the record is this discussion by the P.E.B. of the P.E.F.A. or which P.E.F.A. I'm sorry, Judge. My hearing is going a little bit. Did she say I asked the page of the record, what P.E.A. It would be very important. It would be a report started at A1065. And you bear with me for just a second. If you look at page A10167, Judge. I'm sorry, 10167. Yes, sir. I'm starting down at the third full paragraph. The board determined diagnosis, 3PTSD, Category 3, etc., etc. Well, that doesn't seem to be a finding that you didn't have P.E.S. here. I'm sorry, Judge. I miss what you said. That paragraph says the board determined diagnosis, 3PTSD, is Category 3, and does not preclude it to continued performance. That seems to be accepting the notion that he had some P.T.S.D. No? Well, later went on to say, though, that in the last paragraph in that column, he was not able to talk about Dr. Ginsburg. He was not able to state definitively whether the member had a diagnosis of P.T.S.D. at that time, with that time being the time of discharge. I don't think that they disputed the fact that Sergeant Russell had P.T.S.D. their dispute was whether or not it existed at the time of discharge. Didn't you concede that there was nothing in the record showing that Sergeant Russell was unable to function? I think I conceded that he was able to function, but not that he was able to function as a sergeant N.C.O. in charge of a fire team, which is what his M.O.S. was, as a military operational specialist. So he could do woodworking, which in fact is a good therapy for P.T.S.D. He could probably, you know, at that particular time, work in the chapel, which is not a bad therapy for P.T.S.D. He couldn't go in and lead a squad in a house to house fight in Fallujah. Well, that sounds like a dispute about what fit for duty means. And it seems to be a dispute about whether fit for duty means to the fit for his former duty post as opposed to some other activity. And that's exactly right, sir. If I'm flying aircraft, I actually go shift, but I was flying aircraft and all of a sudden I can't fly aircraft anymore. That doesn't mean that I can't sit around and drive a desk. What it does mean is I can't go back and do what military hired me to do. So you can point if you were flying aircraft and you're disabled from doing that, but you can still perform desk duty. Does that entitle you to disability retirement? Yes, sir, it could. And the reason being I was hired to fly an aircraft to be a jet pilot, there's plenty of desk jockeys around. They don't need me in that particular position. I'm being paid. I've got what they call a designator or in the Marines they call a military operational specialist. And that's what I'm supposed to be doing. I count against the numbers for that designator or that military operational specialist. And if I can't do that, if I can't be retrained in something else like driving a submarine, then I should be retired and I should be retired because of that disability. Because of that disability that prevented me from flying the airplane. Now I hope that made sense to you. Is there some definition in the regulations as to what fit for duty means? Yes, there is. Where do we find that? And I don't believe it's in the record. It would be in the Secretary of Navy instruction 1850.4 series. And what does that say? I can't answer. I don't remember the exact wording. Basically what it's going to say is fit for duty or worldwide assignment. But I don't have the exact definition with it. Okay. But it's just coming back to this page that you cited. What's the reference to diagnosis three in that first paragraph or the middle paragraph there? The board determined diagnosis three. What is diagnosis three? Diagnosis three would be the PTSD, sir. But are they referring to a particular diagnosis by Dr. Ginsburg or what's the reference there? That would have been as submitted to the physical evaluation board. It would be on one of the submission documents, Judge. The way they do that is they consider every, and I'm not sure that's in the record. They consider every diagnosis in his particular case. There were two diagnosis that related to his hand and one to the PTSD. So diagnosis three is referring to a particular diagnosis. Yes, sir. And that would be the PTSD. And is that the diagnosis by Dr. Ginsburg? That would be the diagnosis by Dr. Ginsburg and the VA, yes, sir. But that seems to suggest that the Ginsburg diagnosis was category three PTSD. And they don't seem to dispute that in that paragraph. No, again, but what they do is dispute is whether or not it existed at the time of discharge, which their mission is to determine what was there at the time of discharge. So, for example, if I hurt my hand a day before I'm discharged, then that would be within their curvy. If there's no evidence to show that that hand injury didn't occur until six months after discharge, they could say, OK, yes, you have a hand injury, but it did not occur at time of discharge. Mr. Wells, the Court of Federal claims opinion states, Plainless Council, conceded in real argument that Sergeant Russell left the Navy because, quote, he wanted to go home. Yes, sir. Unquote. And it refers to Plainless decision as voluntary. And just as part of some of the problems that you get into with PTSD. I mean, what they did, and this is one of the reasons why the NDAA 2010 was passed, or that provision on reviewing some of the discharges, is the kid goes, he's been hurt, he's psychologically hurt, he's confused, he wants to go home. And they say, do you want to go home, or do you want to stick around for upteen months to do a medical evaluation for it? And he's going to go home. It's typical of PTSD. When I was trying to go for my last job in the Navy, I commanded a Navy Marine Corps reserve center. I saw people coming back on crutches. What are you doing back here? Why aren't you getting it fixed? I wanted to go home. They said it would take years. So you wanted to save some rebuttal time? In an order amount to save time and money, and that's what happened. You wanted to save rebuttal argument time? Oh, I'm sorry, yes, sir. We'll do that for you, Mr. Michael Mail. Yes, thank you, Your Honor. Good morning, I may have used the court. The court should affirm the judgment of the court of federal claims. It is not the case that the PEB denied that Sarge of Local Ed PTSD at time of discharge. It looks that at least the PEB accepted for purposes of analysis that he did. And therefore, Karge, you're not sure that that's correct. They seem to be saying that Dr. Ginsburg's I know some with PTSD, but that was December 2003. And that's not evidently that he had PTSD at the time of discharge. And Judge Smith and the court of federal claims looking at the record concluded that that was wrong. And that he did have PTSD at the time of discharge. I guess what Judge Wallach's question suggests is that the PEB went forward on a wrong theory that is lack of PTSD at the time of discharge, shouldn't it be asked to re-examine all of this and determine whether the PTSD that he had at that time was sufficient to disable the rendered him for duty. That's the question. Forgive me. And my square question was, did as I understand, PEB did not make a fitness determination, a fitness determination with regard to PTSD at the time of discharge. Well, to your honest question, the PEB did make a fitness determination with respect to PTSD at time of discharge. And that is reflected in the Category 3 finding, which is a reference to Secretary of Navy Instruction 1850.4D4111. And that has four categories, ABCD, and Category 1 is all unfitting conditions. Category 2 are those conditions that are contributing to the unfitting condition. Category 3, which is what the PEB determined, those conditions that are not separately unfitting and do not contribute to the unfitting condition, which is precisely what the PEB says on page A-10167 that Commander Wells was talking about. And finally, Category 4 conditions, which do not constitute a physical disability. If the PEB had neither assigned a category to PTSD or perhaps assigned Category 4 to that condition, then we might say that the PEB did not determine whether PTSD at time of discharge made Sergeant Russell unfit for duty. But it did. It went further. It said that there was no evidence of any PTSD symptoms or diagnosis. So it found no doctors diagnosis of PTSD despite Sergeant Russell having been in the hospital for a month in Bethesda having been in occupational therapy at Pendleton. And in the months prior to discharge, well up until October, I believe. And but more importantly, because this is a question about fitness, which by the way is defined not fitness itself. I've also seen that set definition. I don't have it. But we're in the record of those three those work categories. If not in the record, it's it's well actually it's not it's not even appendix. It is in the administrative record of the whole second ad instruction. Well 1850.4 East is in is in the administrative record. Are you saying that Category 3 is a category that says he's not unfit for duty? Yes. And that's what yes. And that's what we're in that. That's in the analysis though. Let me walk you back to the finding. It's a couple of pages earlier. Finally, I have to carry with you is unfit to continue to enable service because of a physical disability. Yes. No mention of PTSD. That's because the PEP did not find that he was separately unfit because of PTSD for that PTSD contributed to the unfitting condition, the unfitting condition being his hand. His hand maled to maled forming. So what the PEP was doing here was what it was asked to do on reman, which was to determine whether Sergeant Russell at time of discharge was fit for duty. And if not unfit for duty, what to what rating of disability. And it's because it's first step. And this is also what 411 says. Only category one conditions will be rated by the PEP and category one is all unfitting conditions because it must answer that question first. And by the way, the statute also lays it out that way. The PV was asking itself. According to the record of his conditions at time of discharge, what's the unfit for duty such that a rating would have to be applied? So it answered that question yes with respect to his hand and no with respect to PTSD with respect to his hand is assigned to zero percent rating. It never assigned a rating to PTSD because it never found him unfit for duty. And part of that was that there was no diagnosis from the time. And the second part is there were no symptoms. And that is not surprising. It is not surprising that at time of discharge less than a year from the injury. There were no symptoms of PTSD and Commander Wells explained this to the P to the director of the consult on petition for relief where he he wrote the diagnostic and statistical manual mental disorder. And this by the way is on page 10207. The D he's referring to the DC DSM for both recognized delayed onset onset in delayed onset PTSD at least six months past before the symptoms manifest. In fact, the symptoms may not be evident for years. So although the VA screened him positive for PTSD in June of 2004 in December of 2003 when he was being discharged, nobody had reported any symptoms. Existing at that time of Mr. Sergeant Russell's PTSD not even Sergeant Russell. He was not manifesting any of the symptoms of PTSD that the DC that the DC SN3 which is not in the record. Talks about I bring up the DDSM for I bring that up because Commander Wells does in his brief. It's not it's not in the administrative record but. Sergeant Russell did not he did not complain he did not manifest any of the any of the symptoms of PTSD. And even if he had the question would have been would those have with those have made and this is from the general criteria for making unfitness determinations. Would that have made it on it him unable to reasonably perform the duties of his office I'm paraphrasing this is a second half instruction 1850.4 D 3302A where the P.E.B. must determine according to this a service member shall be considered unsit when the evidence establishes that the member due to physical disability. So we can read mental disorder to is unable to reasonably perform the duties of her office grade rank or rate now the P.E.B. The P.E.B. where do I find what Ginsburg said about PTSD what page is that. That is in a latter part of the of the joint appendix Dr. Ginsburg's. Dr. Ginsburg's evaluation of Sergeant Russell begins at page 1010171. Where does he talk about the PTSD he talks about it. Well he he talks about it at it looks like 10202. It's right about just at the end. He talks about the discusses access access one post dramatic stresses. Post dramatic stress disorder. I don't see where he says that that Sergeant Russell was manifesting symptoms of PTSD but even if he were the question where he was at some of the discharge. I mean I actually meant this association from others I mean those are PTSD similar. I meant you're on a time of discharge because Dr. Ginsburg started examining Sergeant Russell in 2008. But even if Sergeant Russell had been manifesting symptoms of PTSD that would not answer whether he were unfit for duty. The P.E.B. would have to determine whether he was reasonably reasonably able to perform the duties of his office grade rank. Now with respect to his hand commander Wells what commander Wells was saying is accurate with respect to his hand the P.E.B. compared his maled deformity to his MOS and found that he was unfit for duty. Presumably a motive this P.E.B. report seems to be what's bothering me it seems to be somewhat contradictory. In one paragraph it said the PTSD category 3 and that doesn't include the continued performance of duties. In the other paragraph they say well we're going to discount Ginsburg because he didn't have a diagnosis at the time of discharge. Yes I see the tension there and that's why I say it looks like what the P.E.B. did was to accept that Sergeant Russell had PTSD at time of discharge which is reasonable to infer because in June of 2004 which is roughly a year at the time of discharge. After the injury he was screen positive for PTSD and like Miranda Wells said there was nothing else going on. I leave Somalia aside because he was fit for duty and correct well after Somalia but it stands to reason that the only is reasonable to infer that the only cause of the PTSD for which he was screen positive in June was the May 2003. I mean June 2004 was the May 2003 injury to his hand. It might have been arbitrary and it might have been reversible for the P.E.B. to have found that he did not have PTSD at time of discharge but it did not do that. It appears to have accepted that he had PTSD at time of discharge. Asked itself the fitness determination question which it answered in the negative that it was not unfit and therefore never got to a rating. But let's say that it actually got to a rating. Oh by the way before I leave that point. Nor does Miranda Wells point to any page in this appendix or anywhere in the record where it shows that that that are even indicates that Sergeant Russell was was was not able to reasonably perform the duties of his office because of PTSD in December 2003. This is not a case like Santiago which one of us site in our brief in which the Pete the I forget whether it was a navy bus the board ignored evidence of hypertension. Nowhere does Sergeant Russell say here's the evidence of Mr. Sergeant Russell's unfitness because of PTSD at time of discharge that the that the Navy in the form of the P.E.B. Disregard about but Sergeant Russell has to go much further and if this were to be remanded it would have to go much further and and demonstrate to the Navy that he was 30% disabled because of PTSD because of course he's not challenging that the handwriting and that was 0% so we have to get 30%. There is no evidence that he meets that he would meet that standard which is at which I would say in my brief at page by I I attended occupational and social payment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tests and there's a list of symptoms including mild memory loss. Now the only the only thing that comes close to a symptom of PTSD during his active duty is on page 10162 which is part of the health assessment in which he answered the question whether he was having difficulty remembering either during both during deployment and and now which was in September 2003 he answered yes he was during his deployment but not now. So I don't say that he didn't have PTSD at that time what I am saying is that even that reflects that there were no symptoms of PTSD upon which what what was the date of diagnosis three the date of diagnosis three. Well if your honor is referring to a doctor's diagnosis that was the one referred to yes it is a three what's the date of the well the PEP found that in January 2010 well that was in the order one. Well referring to a diagnosis by Dr. Ginsburg what was the date of the Ginsburg diagnosis that was referring to a specific diagnosis diagnosis three right yes I assume that's correct that was that was a data that must been 2008 because Dr. Ginsburg didn't hadn't seen but there was a June hadn't seen until 2008 there was a June 2004 positive screening if that is a diagnosis I that that could be what the. It could be what the PEP was referring to or the PEP what must could have been referring to the Sergeant Russell's position that he had had a diagnosis I see that I'm on. Thank you Mr. McElmail thank you. Yes thank you your honor you know the date of diagnosis three I would have been June of four June of 2004 that would have been the VA diagnosis after that three times three yes that's PTSD come along waste is George Pat and slapped soldier and but it's still not a perfect determination you can't find PTSD with a blood test it's not a good thing to some extent is it's as much art as science what we do know is the PTSD will not manifest itself immediately but it does go back to the stressor it's a the stressor which in this case could have been bearing the debt Somalis or could have been his hand being mangled by a grenade either one of those would constitute a stressor it won't manifest itself immediately that's why there was no diagnosis immediately now I would point your honor however how do you get around this paragraph. Which says the board determined the diagnosis three which you say is June of 2004 is category three and doesn't preclude continued performance of duties so aren't they saying that maybe he had category three PTSD at the time of the discharge but that didn't prevent the performance of the duties again that's a problem of being somewhat more art than science because you don't know when it's going to be triggered as makes an example I had an individual who was a first responder on the start that was hit with an Iraqi missile went for about two different tours with no problems then there was a small stack fire on another ship and he just tripped off line it's it's a lot of ways it's an accident waiting to happen somebody comes back normally spends six eight months a year two years and then wakes up in the middle of the night try to sprinkle his wife because he believes that it's the enemy coming through the wire and those are some of the problems with the judge I would ask if you get a chance because I'm almost out of time to look at a one zero two zero nine it's the comments of the denial of the petition review and basically says there's no evidence is pre separation med records a document either symptoms or diagnose a PTSD and while the possibility of existence or Russell may currently suffer from delayed onset there was no evidence of significant impairment and that's the truth but there would not have been in the delayed onset that's what so so terrible about this disorder your honors I'm out of time I thank you for your patience and Sergeant Russell thank you als