Wollman v. United States
108 Fed. Cl. 656
| Fed. Cl. | 2013Background
- Disability entitlement under 10 U.S.C. §1201 and 37 U.S.C. §204(a) arising from AS, plantar fasciitis, and wrist fracture after active duty service.
- DES/DoDI 1332.38 framework governs MEB/PEB/USAPDA review of preexisting conditions and presumptions.
- MEB found AS EPTS and permanently aggravated by service; Informal and Formal PEBs adopted same posture.
- USAPDA review upheld PEB findings; Chief declined new Formal PEB and relied on literature showing AS progression.
- Wollman sought retroactive compensation, hearing, and potential restoration to active duty; APDRB remanded for etiological determination.
- Court remand to APDRB to adjudicate whether AS is congenital/hereditary/genetic and to apply presumptions properly; claims for wrist fracture/plantar fasciitis deemed waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APDRB applied presumptions of service-incurrence and aggravation correctly. | Wollman argues presumptions require evidence-based rebuttal by government. | USAPDA argues presumption overcome by established medical literature on AS natural progression. | Remand needed to resolve etiological basis before applying presumptions. |
| Whether AS is congenital/hereditary/genetic or not, affecting EPTS status. | AS may not be congenital/hereditary/genetic; Wollman contends government bears burden. | AS presumed congenital/hereditary/genetic only if proven; otherwise rebuttable by government. | Record insufficient to determine etiology; remand required. |
| Whether the record shows a fair hearing and proper documentation of accepted medical principles. | Procedural flaws and lack of explicit cite to accepted medical principles. | Proceedings and documentation sufficient under governing regs. | Remand for explicit articulation of medical principles relied upon. |
| Whether Wollman waived claims for wrist fracture and plantar fasciitis independent of AS. | Record cited to preserve these claims. | Waived due to lack of timely, specific challenge. | Waiver found; claims deemed waived. |
| Whether Wollman is entitled restoration to active duty during adjudication. | Constructive service doctrine may apply to allow back pay. | Bamick controls; no entitlement to restoration for disability evaluation period. | Not entitled to restoration; remedy limited to disability payments on remand. |
Key Cases Cited
- Metz v. United States, 466 F.3d 991 (Fed.Cir. 2006) (money-mandating disability retirement; board review standards)
- Conant v. OPM, 255 F.3d 1371 (Fed.Cir. 2001) (breach/administrative review; not waived issues raised before review board)
- Bamick v. United States, 591 F.3d 1372 (Fed.Cir. 2010) (constructive service doctrine; limited to disability payments remedy)
- Peterson v. United States, 104 F.3d 196 (Fed.Cir. 2012) (factors informing Bamick applicability beyond status at discharge)
- Lowe v. Derwinski, 2 Vet.App. 495 (Vet.App. 1992) (etology and pre-entry conditions; genetic/congenital distinctions)