Finally, Mr. Hassay contends that the Board did not give sufficient weight to the opinion of Dr. Foote, a former Navy psychiatrist, in concluding that the Navy was not required to refer him to an MEB because of his “questionable” fitness. Pl.’s Mot. at 25.
The Board’s most recent decision reflects that it fully considered and reasonably rejected Dr. Foote’s opinion that Mr. Hassay should have been referred for an MEB on one of the four occasions he identified. It found that Dr. Foote’s assertion that he would not have permitted Mr. Hassay to return to full duty if he had evaluated him, knowing what was in his records, “lack[ed] any credibility or support” because, among other things, Dr. Foote had not specified what was in Mr. Hassay’s records that would have led him to that conclusion. AR 2295. In the Board’s view, there was “literally nothing” in Mr. Hassay’s in-service medical records “which would lead any reasonable and objective provider to such a conclusion.”
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Moreover, as described in Hassay I, it is unclear whether the Army’s decision to disqualify Mr. Hassay was based on his perceived mental fitness as opposed to physical ailments. See Hassay I, 150 Fed. Cl. at 482 (observing that the “failure code” assigned to Mr. Hassay read “SPINE, OTHER MUSCULOSKELETAL/Psych left open”); AR Vol. VI at 223, ECF No. 12-6. And in any event, Mr. Hassay was unable to show that the Navy even had notice of the Army’s determination. AR 2282 & n.4.
Mr. Hassay’s contention that the Board erred in failing to find that his separation from the service should have triggered an MEB referral is similarly without merit. See Pl.’s Mot. at 26–27. SECNAVINST 1850.4E states that a member being processed for separation for reasons other than a physical disability is not to be referred for a disability evaluation except in limited circumstances not applicable here. SECNAVINST 1850.4E encl. 3, § 3202.4
Finally, Mr. Hassay contends that the Board did not give sufficient weight to the opinion of Dr. Foote, a former Navy psychiatrist, in concluding that the Navy was not required to refer him to an MEB because of his “questionable” fitness. Pl.’s Mot. at 25. In a 2021 letter he prepared after this Court’s decision in Hassay I, Dr. Foote opined that based on Mr. Hassay’s records, including the reports of Drs. Killian and Smith, it was “unconscionable” that he was not referred for a “full psychiatric evaluation of his fitness for duty in 1998 when he was denied transfer to the Army, in 1999 and 2000 when he sought treatment from the Navy for his mental illness, or immediately prior to his 2002 discharge.” AR 2366.
- The Board’s Decision on Remand from Hassay I
The Board’s most recent decision reflects that it fully considered and reasonably rejected Dr. Foote’s opinion that Mr. Hassay should have been referred for an MEB on one of the four occasions he identified. It found that Dr. Foote’s assertion that he would not have permitted Mr. Hassay to return to full duty if he had evaluated him, knowing what was in his records, “lack[ed] any credibility or support” because, among other things, Dr. Foote had not specified what was in Mr. Hassay’s records that would have led him to that conclusion. AR 2295. In the Board’s view, there was “literally nothing” in Mr. Hassay’s in-service medical records “which would lead any reasonable and objective provider to such a conclusion.”
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Moreover, as described in Hassay I, it is unclear whether the Army’s decision to disqualify Mr. Hassay was based on his perceived mental fitness as opposed to physical ailments. See Hassay I, 150 Fed. Cl. at 482 (observing that the “failure code” assigned to Mr. Hassay read “SPINE, OTHER MUSCULOSKELETAL/Psych left open”); AR Vol. VI at 223, ECF No. 12-6. And in any event, Mr. Hassay was unable to show that the Navy even had notice of the Army’s determination. AR 2282 & n.4.
Mr. Hassay’s contention that the Board erred in failing to find that his separation from the service should have triggered an MEB referral is similarly without merit. See Pl.’s Mot. at 26–27. SECNAVINST 1850.4E states that a member being processed for separation for reasons other than a physical disability is not to be referred for a disability evaluation except in limited circumstances not applicable here. SECNAVINST 1850.4E encl. 3, § 3202.4
Finally, Mr. Hassay contends that the Board did not give sufficient weight to the opinion of Dr. Foote, a former Navy psychiatrist, in concluding that the Navy was not required to refer him to an MEB because of his “questionable” fitness. Pl.’s Mot. at 25. In a 2021 letter he prepared after this Court’s decision in Hassay I, Dr. Foote opined that based on Mr. Hassay’s records, including the reports of Drs. Killian and Smith, it was “unconscionable” that he was not referred for a “full psychiatric evaluation of his fitness for duty in 1998 when he was denied transfer to the Army, in 1999 and 2000 when he sought treatment from the Navy for his mental illness, or immediately prior to his 2002 discharge.” AR 2366.