In a decision issued on July 28, the United States Court of Appeals for the District of Columbia Circuit clarified the standard a PEB must use in determining whether a Service member may be unfit as a result of the combined effect of two or more conditions even though each of them, standing alone, would not be unfitting. Sissel v. Wormuth, --- F.4th ---, 2023 WL 4831196, at *6 (D.C. Cir. Jul. 28, 2023) (copy attached). The court held that if a condition contributes to a Service member’s unfitness – regardless of the level of the significance of that contribution – then that condition must be separately rated. The decision rejects as contrary to law a common PEB practice of combining multiple conditions contributing to unfitness under a single diagnostic code that the PEB determines best reflects the principal basis for the Service member’s unfitness.
Although the facts of Sissel involved a Soldier processed through the Army’s legacy disability evaluation system, it is relevant and applicable to all current and former Service members who were or are being processed through either a legacy process or the Integrated Disability Evaluation System.
The combined effect requirement has a well-established statutory and regulatory basis. 10 U.S.C. § 1216a(b) provides "Consideration of all medical conditions.--In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned shall take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member's office, grade, rank, or rating."
The statute is implemented by Department of Defense Instruction (DoDI) 1332.18, Disability Evaluation System (Nov. 10, 2022), ¶ 6.4.d. (previously DoDI 1332.18 (May 17, 2018), Appx. 2 to Encl. 3, ¶ 4.d.), which provides:
"d. Combined Effect.
(1) A Service member may be determined unfit as a result of the combined effect of two or more conditions even though each of them, standing alone, would not cause the Service member to be referred into the DES or be found unfit because of disability.
(2) The PEB will include in its official findings, in cases where two or more medical conditions (referred or claimed) are present in the service treatment record, that the combined effect was considered in the fitness determination rendered by the PEB, as referred by the MEB.
(3) Combined effect includes the pairing of a singularly unfitting condition with a condition that standing alone would not be unfitting."
Each of the military department’s disability regulations further implements the combined effect requirement. See Army Reg. 635-40, ¶ 5-4.g.; AF Inst. 36-3212, ¶ 3.11, Attach. 1 – Glossary Terms; SECNAVINST 1850.4F, ¶ 4.e.
In Sissel, a legacy DES PEB found the plaintiff unfit for a back and right leg condition, which the PEB combined as a back condition and rated at 10%. Sissel years later sought relief from the DoD Physical Disability Board of Review (PDBR). The PDBR concluded that Sissel’s back condition should have been rated at 20% consistent with a VA rating, but declined to rate the leg condition separately explaining that the combined rating reflected the PEB's judgment that the constellation of his conditions rendered him unfit. The Deputy Assistant Secretary of the Army for Review Boards (DASA-RB) approved the PDBR decision, relying on an Army Review Boards Agency medical opinion that Sissel's right-leg condition would require its own rating if it either “contributed significantly to the finding of unfitness” or was “an absolute stand-alone unfitting condition.”
The court rejected the “significant contribution” combined effect standard used by the DASA-RB as inconsistent with AR 635-40 and 10 U.S.C. § 1216a(b):
"Insofar as the Secretary determined that Sissel's leg condition was not collectively unfitting, though, the Secretary referenced too stringent a standard. The Secretary, echoing the conclusion of the doctor whose informal advice the Secretary reviewed, stated that Sissel's leg condition did not contribute 'significantly' to his unfitness. Sissel, 2021 WL 6062832, at *5. But according to the terms of the Army's regulations, any 'contribution'—regardless of level of significance—calls for a rating. See 1990 Army Regul. 635-40 ¶ 4–19(f)(6)(b); 2017 Army Regul. 635-40 ¶ 5–5. That is also the most natural reading of the relevant statute: when multiple conditions 'collectively ... render the member unfit,' the Secretary 'shall take into account all' of those medical conditions. 10 U.S.C. § 1216a(b). The fact that a condition contributes to a soldier's unfitness is enough, and the Secretary's apparent addition of a 'significantly' criterion naturally raises questions about what degree and manner of contribution is thought to suffice, questions that the terms of the statute and regulations do not make salient."
The court concluded: “Any assumption that a medical condition, to receive a rating, must contribute ‘significantly’ to unfitness thus is contrary to law.” Id. at *7.
The Sissel decision may be helpful in convincing a PEB that is must separately rate all referred or claimed conditions that are found to contribute to a Service member's unfitness, even if one or more of those conditions alone may be unfitting.
Although the facts of Sissel involved a Soldier processed through the Army’s legacy disability evaluation system, it is relevant and applicable to all current and former Service members who were or are being processed through either a legacy process or the Integrated Disability Evaluation System.
The combined effect requirement has a well-established statutory and regulatory basis. 10 U.S.C. § 1216a(b) provides "Consideration of all medical conditions.--In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned shall take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member's office, grade, rank, or rating."
The statute is implemented by Department of Defense Instruction (DoDI) 1332.18, Disability Evaluation System (Nov. 10, 2022), ¶ 6.4.d. (previously DoDI 1332.18 (May 17, 2018), Appx. 2 to Encl. 3, ¶ 4.d.), which provides:
"d. Combined Effect.
(1) A Service member may be determined unfit as a result of the combined effect of two or more conditions even though each of them, standing alone, would not cause the Service member to be referred into the DES or be found unfit because of disability.
(2) The PEB will include in its official findings, in cases where two or more medical conditions (referred or claimed) are present in the service treatment record, that the combined effect was considered in the fitness determination rendered by the PEB, as referred by the MEB.
(3) Combined effect includes the pairing of a singularly unfitting condition with a condition that standing alone would not be unfitting."
Each of the military department’s disability regulations further implements the combined effect requirement. See Army Reg. 635-40, ¶ 5-4.g.; AF Inst. 36-3212, ¶ 3.11, Attach. 1 – Glossary Terms; SECNAVINST 1850.4F, ¶ 4.e.
In Sissel, a legacy DES PEB found the plaintiff unfit for a back and right leg condition, which the PEB combined as a back condition and rated at 10%. Sissel years later sought relief from the DoD Physical Disability Board of Review (PDBR). The PDBR concluded that Sissel’s back condition should have been rated at 20% consistent with a VA rating, but declined to rate the leg condition separately explaining that the combined rating reflected the PEB's judgment that the constellation of his conditions rendered him unfit. The Deputy Assistant Secretary of the Army for Review Boards (DASA-RB) approved the PDBR decision, relying on an Army Review Boards Agency medical opinion that Sissel's right-leg condition would require its own rating if it either “contributed significantly to the finding of unfitness” or was “an absolute stand-alone unfitting condition.”
The court rejected the “significant contribution” combined effect standard used by the DASA-RB as inconsistent with AR 635-40 and 10 U.S.C. § 1216a(b):
"Insofar as the Secretary determined that Sissel's leg condition was not collectively unfitting, though, the Secretary referenced too stringent a standard. The Secretary, echoing the conclusion of the doctor whose informal advice the Secretary reviewed, stated that Sissel's leg condition did not contribute 'significantly' to his unfitness. Sissel, 2021 WL 6062832, at *5. But according to the terms of the Army's regulations, any 'contribution'—regardless of level of significance—calls for a rating. See 1990 Army Regul. 635-40 ¶ 4–19(f)(6)(b); 2017 Army Regul. 635-40 ¶ 5–5. That is also the most natural reading of the relevant statute: when multiple conditions 'collectively ... render the member unfit,' the Secretary 'shall take into account all' of those medical conditions. 10 U.S.C. § 1216a(b). The fact that a condition contributes to a soldier's unfitness is enough, and the Secretary's apparent addition of a 'significantly' criterion naturally raises questions about what degree and manner of contribution is thought to suffice, questions that the terms of the statute and regulations do not make salient."
The court concluded: “Any assumption that a medical condition, to receive a rating, must contribute ‘significantly’ to unfitness thus is contrary to law.” Id. at *7.
The Sissel decision may be helpful in convincing a PEB that is must separately rate all referred or claimed conditions that are found to contribute to a Service member's unfitness, even if one or more of those conditions alone may be unfitting.
