Callan v. United States

450 F.2d 1121 | Ct. Cl. | 1971

PeR Curiam :

This case was referred to Chief Trial Commissioner Marion T. Bennett with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Buie 134(b). Tbe commissioner bas done so in an opinion and report filed on December 16,1970. Plaintiff filed exceptions to tbe commissioner’s opinion, findings of fact and recommended conclusion of law and the case bas been submitted to tbe court on the briefs of tbe parties and oral argument of counsel.

Since tbe court agrees with tbe commissioner’s opinion, findings of fact and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as tbe basis for its judgment in this case. Therefore, plaintiff is not entitled to recover and tbe petition is dismissed.

OPINION OP COMMISSIONER

Bennett, Chief Commissioner:

Faced with tbe possibility of mandatory retirement because he bad been passed over for promotion, plaintiff, upon bis own application, was retired from active duty for length of service, as a Chief Warrant Officer in the Regular Air Force on July 1, 1962, under 10 U.S.C. § 1293. He now claims that be should have been retired at that time for disability under 10 U.S.C. § 1201 in bis permanent rank of Major, Air Force Reserve. He applied to the Air Force Board for the Correction of Military Records for relief, which was denied. His allegation here is that the Board decision was unlawful and must be set aside because it was arbitrary, unsupported by substantial evidence, contrary to the evidence, and in violation of Air Force regulations governing disability retirement, including AFM 35-4, February 1,1960, and AFM 160-1, April 30,1953.

Plaintiff’s claim for disability alleges four conditions: partial bilateral deafness, chondromalacia (a disease of the cartilage of the knee joints), skin cancer, and a psychiatric condition arising from the other conditions. Defendant concedes service connection for all but the psychiatric condition which it denies. Defendant denies that any of the conditions were disabling at the time of plaintiff’s retirement, within the meaning of applicable laws and regulations. Defendant insists that the action of the Correction Board was reasonable and fully supported by the evidence.

Plaintiff is a career military man with, long and honorable service from 1941 until his retirement in 1962. His duties in the Air Force were administrative as opposed to combat. He did not have an aeronautical rating. Among other things he was a training instructor, project officer, writer, information officer, supply officer, photographer, and had a demonstrated aptitude for marksmanship. He trained men in gunfire and coached teams for participation in shooting matches and was himself a member of such teams which achieved championship caliber. He was personally the winner of many individual trophies and medals. In this work he was exposed to the noise of intensive gunfire. Cotton was available to put in his ears but he did not always use it. More effective devices were not made available to him nor was he advised of the danger to one’s hearing from prolonged exposure to such noise. His wife first noticed a diminished hearing capacity in plaintiff in 1951-52. He also began to notice a ringing and humming in his ears, on occasion, and difficulty in hearing when background noises were present. He claims that as his condition progressed he suffered a total loss of hearing for short periods on several occasions. This is not corroborated. He alleges also that this condition impeded his social and business contacts but apparently he neither sought nor received medical treatment for the condition and attendant headaches.

Plaintiff did receive examinations in which an audiometer verified a loss of some hearing, which under the provisions of AFM 160-1 would have caused his rejection had he been seeking an initial commission or entry on active duty or flying status. Indeed, his condition was such that under AFR 160-3, October 29,1956, as amended, he should not have been assigned to any further duty involving hazardous noise exposure and should have been referred immediately to a diagnostic hearing center. Plaintiff’s effectiveness reports, however, made no mention at all of his hearing loss or of any of the other conditions alleged and rated him highly upon the performance of his responsibilities. The Air Force physical examinations of plaintiff on January 11 and June 4, 1962, noted specifically that decreased hearing acuity caused plaintiff no difficulty in performance of his assigned duties.

The Veterans Administration examination on November 8, 1962, confirmed permanent partial, bilateral, perceptive-type deafness but it was not deemed sufficient for compensable rating. Plaintiff bad been preparing for a teaching career at the high school or college level, and after he left the service it came as something of a shock to him, in August 1962, to fail the hearing examination for teacher certification by the Los Angeles public schools. He later got a school teaching position at Lompoc, California, where a physical examination is not required.

Plaintiff also began to experience difficulty with his knees in the early 1950’s. They had a tendency to “pop out” of joint and to buckle, according to his testimony. The positions required for shooting produced stiffness and pain in his knees and made it difficult for him either to stand or to walk. He claims he sometimes fell. Some of his sports activities were curtailed and he sought and received medical treatment. The medical diagnosis of plaintiff’s knee condition on June 4, 1962, before his retirement, was chondromalacia, defined above. The right knee was worse than the left. Yet, he was found physically qualified for retirement. On November 8, 1962, over 4 months after plaintiff had been retired, the Veterans Administration gave him a 10-percent, service-connected disability rating for the condition of the right knee. At the trial he disclaimed any trouble with his knees so far as current activities were concerned.

While the hearing and knee conditions were identified by plaintiff and defendant before his retirement, and were not claimed by plaintiff then nor found by defendant to be disabling or to interfere with performance of his assigned duties, plaintiff also had another emerging condition — skin cancer. He experienced small wart or scablike growths about his ears, nose, hands, eyelids and forearms. He did not point them out to defendant’s doctors who did not see or make reference to them in the 1962 examinations. It was not until 1964, after plaintiff had left the military service, that he learned that they were malignant and underwent radiation and chemical treatments and surgery. This condition is said to be continuing. It would not be apparent to the casual observer and does not prevent plaintiff from working now nor ¡has it been shown to have interfered with plaintiff’s military duties. The condition conld become terminal if neglected. The inference is that, possibly, plaintiff’s exposure to the weather while in the service may have caused the condition. He is a man of fair complexion such as said to be susceptible to skin cancer from overexposure to the sun and wind. Plaintiff has received treatment of this condition by the Veterans Administration which has given a zero disability rating to it.

Plaintiff claims that while in the Air Force he suffered from nervous tremors and a personality change now claimed to be a psychiatric condition of a disabling character. It is described as arising from his other physical disabilities and as interfering with his work and social contacts. He relies on tranquilizers for relief and testified to taking them since 1956 or 1957. During his military career plaintiff never claimed this as a disability, and there is no persuasive evidence that it interfered with his military duties. The Veterans Administration did have a neuropsychiatrist examine plaintiff but his findings were all within normal limits. Plaintiff was given a zero-percent rating for the alleged condition. The claim for service connection for this condition, if it exists, is not supported by the evidence.

When plaintiff’s request, after retirement, for a physical evaluation board appearance was denied, he sought relief in January 1963 from the Air Force Board for the Correction of Military ¡Records. The Surgeon General confirmed the mild hearing loss and chondromalacia of the knees but stated that the conditions were not severe enough to merit disability retirement. The Board then denied plaintiff’s application without a hearing on the grounds that he had not submitted sufficient evidence to establish the required showing of probable error or injustice in his case. In 1968, with the assistance of counsel, plaintiff sought reconsideration of this ruling by the Board. The results were the same. Plaintiff’s counsel then challenged the Surgeon General’s advice to the Board in detail, but to no avail. All of the arguments and authorities there presented are now before the court and have been carefully considered.

The Act of August 10, 1956, 70 A Stat. 91, as amended, 72 Stat. 1451, 10 U.S.C. § 1201, provides, in pertinent part:

Upon a determination by the Secretary concerned that a member of a regular component of the armed forces entitled to basic pay, * * * is unfit to perform the duties of his office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the Secretary may retire the member, with retired pay * * * if the Secretary also determines that—

(1) based upon accepted medical principles, the disability is of a permanent nature;

(2) * * *; and

(3) either—

(A) the member has at least 20 years of service computed under section 1208 of this title; or

(B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Veterans’ Administration at the time of the determination; * * *

10 U.S.C. § 1216 provides in pertinent part:

(a) The Secretary concerned shall prescribe regulations to carry out this chapter within Ms department.

(b) The Secretary concerned has all powers, functions, and duties incident to the determination under tMs chapter of—

(1) the fitness for active duty of any member of an armed force under his jurisdiction;

(2) the percentage of disability of any such member at the time of Ms separation from active duty; * * *.

Since it is clear from the applicable statute that plaintiff can get disability retirement pay only after a finding by the Secretary that he is permanently disabled to such an extent that he could not perform Ms duties, which the Secretary has not found, and since plaintiff, despite a recognized hearing loss, trouble with his knees and skin cancer, has never been found unfit for duty and never claimed that he was prior to Ms retirement, but on the contrary Ms military physical examinations found Mm qualified and his effectiveness reports reflect an above-average performance of assigned duties, the decision of the Correction Board does not appear to be unwarranted. Plaintiff says, however, that the Board action, in denying him the relief sought, cannot be sustained because it f ailed to apply Air Force Manual 35-4 standards and that this was legal error. AFM 35-4, February 1, 1960, sets forth the standards prescribed by the Secretary in determining-unfitness for military duty for the purpose of retirement, retention or separation. Physical unfitness is defined as:

Physical inability to perform the duties of the grade held, which are required during the performance of full military duty, field as well as garrison, in both peace and war.

Plaintiff argues that the Surgeon General did not speak in the terms employed by AFM 35-4, when he advised the Correction Board, but rather spoke in such terms as to whether plaintiff was unfit “to perform the duties of his grade,” or “to reasonably perform the duties of his grade,” or whether plaintiff was fit to perform “general service” or “normal world-wide service.” It is true that the Surgeon General did not use the manual language relating to capacity required to perform “full military duty, field as well as garrison, in both peace and war.” It would have provoked less controversy, perhaps, had he done so but he is not a lawyer. It does not follow though that this is not the standard he had in mind for plaintiff’s counsel certainly put it squarely to the Correction Board which submitted plaintiff’s brief to the Surgeon General. Nor is this the first time that the administrative authorities concerned have had the problem. AFM 35-4 was promulgated on February 1, 1960. The cases thereunder are legion and the criteria well understood. It is more pertinent to consider whether at any time defendant’s medical officers or the Board found that plaintiff was qualified only for limited service, which would have been contrary to AFM 35-4. They did not do so. The full duty standard was not violated. Woodard v. United States, 167 Ct. Cl. 306 (1964).

The uncontested fact is that at the time of plaintiff’s retirement he was performing all duties assigned to him in a manner satisfactory to his superiors. There was nothing in the record to indicate that he was impaired in doing so by his admitted physical disabilities. Of course, a man may have ailments which are of concern to him and annoying in the extreme, and still not be incapacitated to the extent of being unable to meet the full duty standard of AFM 35-4. That is plaintiff’s situation. It is plaintiff’s burden to show such incapacity and his evidence does not do so. His medical records and evaluation reports do not aid plaintiff’s claim. If plaintiff by his testimony and evidence at trial could have shown that these records were in error, he could have prevailed here. But, he has not so persuaded the trier of the facts who had ample opportunity to observe him and to evaluate his trial evidence as well as the administrative record. Plaintiff’s career since retirement and the examinations of the Veterans Administration buttress the conclusion that he is not disabled to any serious extent nor was he at the time of his retirement. Plaintiff has been disappointed in that he failed the hearing examination for a Los Angeles public school position but those standards have no relevance to the question of entitlement to military retirement for disability.

Plaintiff’s next contention is that the Correction Board committed legal error in failing to apply AFM 160-1 and AFP 160-3 to the facts in this case. AFM 160-1 sets forth the physical standards which an individual must meet to be qualified for original appointment, recall to active duty, entrance into the Air Force Academy, or flying status. This court has held that similar regulations do not apply with decisive force to disability retirement situations for the two fields are said to be “entirely different.” Cosgriff v. United States, 181 Ct. Cl. 730, 737, 387 F. 2d 390, 394 (1967); Towell v. United States, 150 Ct. Cl. 422, 436 (1960). Under this interpretation the Board was correct in not applying AFM 160-1.

AFE 160-3 is a regulation designed to minimize the undesirable effects of noise on Air Force personnel. It sets forth categories to classify hearing losses and provides that when an individual’s audiometric losses are severe enough to classify him in class C he should not be assigned to duty where he would be exposed to hazardous noise and, additionally, he would be ordered to a diagnostic center and be given otological examinations. Plaintiff’s disability was in the class C category, but defendant apparently ignored this regulation. The consequences of its action could have been increased impairment of plaintiff’s hearing to an extent that would have made 'Mm unfit for full military duty. Defendant is responsible for plaintiff’s impaired bearing. But, it was the job of the Correction Board to determine, not whether defendant was responsible for plaintiff’s conceded hearing loss, but whether the action of the service in retiring plaintiff for longevity, as he requested, rather than for disability, was a mistake. Upon the evidence before it, the action of the Board was fully supported and not at all arbitrary or capricious. Nowhere was there any record or finding demonstrating that plaintiff’s disability was such as to render him unfit pursuant to the standards of AFM 35-4 for full military duty.

Plaintiff also takes strong exception to alleged arbitrary conduct on the part of the Surgeon General, sanctioned by the Correction Board, in refusing to answer many questions submitted by plaintiff pertinent to the issues of fact and regulations, in failing to consider any evidence other than the plaintiff’s medical records, in failing to consider the facts in the context of the full-duty standard, and in failing to present any grounds or analysis of the evidence, regulations and law. Plaintiff also protests failure of the Board itself to grant a hearing.

Plaintiff has cited no statute or regulation requiring a Correction Board hearing or other than conclusionary findings by the Surgeon General or the Board. However, the facts of a case can be such that this common administrative procedure could not stand the test of legality because it would be arbitrary and unreasonable. Farrar v. United States, 173 Ct. Cl. 1008, 358 F. 2d 965 (1965); Hutter v. United States, 170 Ct. Cl. 517, 345 F. 2d 828 (1965); Weiner v. United States, 148 Ct. Cl. 445 (1960). This was found to be the situation, for instance, in Smith v. United States, 168 Ct. Cl. 545 (1964). Even though the Board opinion had formally recited that it was based upon all the evidence, it was clearly not supported by the evidence and was therefore overturned. “A presumptive correctness attends the administrative decision in these matters, but in the final analysis the court must review that action.” 168 Ct. Cl. at 553.

The instant case differs from Smith, and others which have been to the same effect, in that here there is no substantial evidence to dispute the administrative findings. Here there are no experts in disagreement on complex medical evidence. Service connection is conceded. There is only one reasonable conclusion which the Board could have reached upon the record and the Board acted in good faith. It is understandable that plaintiff would rather have a more detailed statement by the Surgeon General or the Board. But the Surgeon General in his several reports noted plaintiff’s disabilities, stated that his claim had been carefully reviewed in accordance with the provisions of AFM 35-4 and other regulations, manuals, and the statute; and concluded that upon the basis of “all available records” the disabilities were not of sufficient severity at the time of his retirement to disqualify him for physical reasons pursuant to the statute and regulations. Under the circumstances of the case nothing more was required.

In summary, plaintiff has not met his substantial burden of proving that his disabilities at the time of his retirement were clearly sufficient to have rendered him unfit for full military duty within the meaning of AFM 35-4. The court cannot under the circumstances here say that the action of the Collection Board was arbitrary, unreasonable, in bad faith, without adequate support by the evidence, or in conflict with the statute and regulations. All the evidence submitted to the Board and all the evidence adduced at trial, having been carefully weighed, lead to the conclusion that plaintiff has not made his case. There are no grounds, therefore, to substitute judicial judgment for that of the Air Force in determining plaintiff’s fitness for military duty, Unterberg v. United States, 188 Ct. Cl. 994, 412 F. 2d 1341 (1969); Ward v. United States, 178 Ct. Cl. 210 (1967); Wesolowski v. United States, 174 Ct. Cl. 682 (1966); McEaddy v. United States, 152 Ct. Cl. 311 (1961).

FINDINGS ob Fact

1. Plaintiff made military service his career. He was a member of his high school ROTC for approximately 2½ years prior to 1937. He attended citizen’s military training camps in 1937, 1938 and 1939 and joined the California National Guard in January 1941. He enlisted in the Regular Army Air Corps in August 1941 and thereafter performed continuous active duty until his retirement for length of service on July 1,1962. On May 23,1962, the Air Force notified plaintiff that, having twice not been recommended for permanent promotion, mandatory retirement was required by law, but since he had more than 20 years of service, he would be permitted to bypass mandatory retirement and retire normally for years of service in the rank of Chief Warrant Officer, Regular Air Force. Plaintiff applied for voluntary retirement on June 6, 1962. He was 44 years old at the time of his retirement and held the rank of Major in the Air Force Reserve.

2. Plaintiff incurred several disabilities in the service: partial bilateral deafness, skin cancer and chondromalacia (a disease of the cartilage of the knee joints). Defendant concedes service connection for these disabilities but denies plaintiff’s claim of a psychiatric condition.

3. Plaintiff was given many assignments which exposed him to gunfire. He estimated that he was exposed 18 to 20 percent of the time that he performed military service from March 1941 to July 1962. He trained men in gunfire, coached teams for participation in shooting matches and was a member of such teams, refereed matches, and developed and directed projects for marksmanship and competition in shooting. Plaintiff was awarded the U.S. Air Force Commendation Medal, possessed the rifle rating of Master, and won 40 to 50 individual trophies and medals in matches. He was commended by the Air Force for his work in marksmanship competition projects and the development of a championship rifle team. He was exposed to the noise of gunfire not only by his own firing but also by his proximity to that of the men he trained or coached and of those who participated in matches. In training and coaching, he was within 4 to 6 feet of the men shooting, usually standing between them. His gunfire duties varied in intensity, with more prolonged exposure at certain times. At Elmendorf Air Force Base, Alaska, 1961-62, shooting practice took place almost daily during the winter in an indoor range which had a low ceiling and no insulation or soundproofing. On various other occasions, shooting was done in nonsoundproof indoor ranges.

4. In 1951 or 1952, plaintiff’s wife observed that lie did not bear tbe telephone ring or tbe teakettle whistle. He himself first became conscious of bis loss of bearing while teaching at Mather Air Force Base, California, 1953-56. He testified that he could not hear questions from the rear of the classroom or when two or more were talking. In 1956 at Luke Air Force Base, Arizona, he began to experience a ringing in his ears which was accompanied by a background hum. The ringing lasted for a couple of days and the humming would always be there when plaintiff thought about it. As time went on, both the ringing and humming lasted longer. Plaintiff also experienced pain at the moment of firing, followed by headaches.

His wife stated that when they were in groups, he did not hear all of what was said, and she began to assist him by repeating the conversations. He had been observed by his assistant, during group meetings, to place his hand to his ear, the only one present to perform such a gesture. Plaintiff testified that he would sometimes miss the entire gist of a meeting or miss orders or directions. Background noises, such as machinery, air conditioning, and jet aircraft, impaired plaintiff’s ability to hear at both the office and his home. Plaintiff stated that he encountered additional difficulties in ordinary conversations, particularly if the speaker’s voice was high pitched or if he could not observe the speaker’s lips. His assistant testified that plaintiff “would listen terribly hard and try to face you when you were talking.” Telephone conversations were difficult, particularly when numbers or strange words or names were used. He testified that at Luke Air Force Base he momentarily lost complete hearing and that this had occurred on other occasions. There has been no improvement in plaintiff’s hearing since his release from military service, as his audiograms indicate.

5. The audiometer is a reliable instrument to test and measure hearing. It produces tones in various sound frequencies (expressed in cycles per second) and in various intensities (expressed in decibels). The frequencies that are generally used range from 250 to 8000 c.p.s. In each frequency, the intensity of the tone is increased until the person who is being tested can hear. The number of decibels above the intensity required for normal hearing in each frequency measures the loss of hearing in that frequency.

6. On the basis of AFM 160-1, April 30, 1953, the plaintiff’s hearing loss was grounds for rejection for initial commissioning, for entry on active duty after commissioning, and for flying status.

7. Under AFR 160-3, Oct. 29, 1956, as amended AFR 160-3, June 1960, hearing acuity is divided into three classes: class A which includes hearing losses not exceeding 15 decibels (db) at any frequency; class B which shows a hearing level of 20db or more at one or more test frequencies, but does not qualify as class C; class C which includes hearing losses in either ear of 20db or more in frequencies 500,1000, and 2000 c.p.s. Class C personnel were not to be assigned to any duty involving hazardous noise exposure and military personnel in this class were to be referred immediately to a diagnostic hearing center.

8. Plaintiff’s audiograms show that plaintiff’s hearing loss placed him in class C of AFR 160-3 at the time of his retirement in 1962. He was never removed from hazardous noise exposure or referred to a diagnostic hearing center in compliance with this regulation.

9. Plaintiff failed the hearing test for teaching in the Los Angeles school system. He is currently, however, a licensed teacher in the State of California and has been teaching for almost 3 years in the Lompoc school system where no physical examination is required.

10. Plaintiff was advised by the Veterans Administration that a hearing device would be useless since his hearing loss was caused by the destruction of nerve cells and, as such, is incurable. Plaintiff received no treatment for hearing loss by the Air Force. He was furnished cotton for earplugs but more effective devices such as earmuffs and plastic plugs were not furnished him. Plaintiff did not always use the available cotton.

11. Plaintiff first began to experience difficulty with his knees in 1950-53 while at Logan Air Force Base in Utah. His knees would “pop out” of joint while he was sleeping and he was forced to wake his wife to help “pop” them back. The same situation occurred later while he was sitting. Plaintiff testified that he has fallen on occasion because of the said buckling of the knee. His right knee, especially, has caused difficulty. In general, walking up and down stairs, standing for prolonged periods, and using his knees as required for shooting, produced fatigue, stiffness and pain for plaintiff. At times, plaintiff stated that the pain was severe enough to make it difficult for him to walk. Plaintiff has been forced to sit while lecturing his class, limit his hunting to level areas, curtail his fencing, and give up skiing and snowshoeing completely. In January 1962 he gave up highpower rifle competition and limited himself to coaching.

12. Plaintiff sought medical treatment for his knee condition in 1960 or 1961. Aspirin and bandages were received and he was advised to avoid excessive use of the knees. Later, Butazolidin was prescribed and whirlpool baths were recommended. Still later plaintiff was told to discontinue the drug because of possible harmful side effects and to discontinue the baths. The report of his visit to the clinic stated that plaintiff had chondromalacia of both knees. His June 4,1962, physical confirmed the above diagnosis and that plaintiff had recurrent pain in the right knee but without swelling or locking. The left knee was found sensitive to a lesser extent. The Veterans Administration examination of November of the same year also resulted in a diagnosis of chondromalacia. At the trial, plaintiff testified his present activities did not give him knee problems. He said, “I am a little tired at the end of the day but that’s about it.”

13. Plaintiff observed skin growths in 1959-60 at Vanden-berg Air Force Base, California. The growths looked like warts and an infected eyelash. The skin condition, which manifested itself as a crusty scab, was first diagnosed as an overactive tear duct. The growths appeared on his nose, the top of his ears, the back of his hands, on his eyelids, and on his forearms. The growths, which developed in the service, were visible at the time of service termination but were not checked, nor did the plaintiff point them out to the doctors.

14. Plaintiff first learned of the malignancy of the growths in November 1964 at Oxnard Air Force Base, California. He underwent painful radiation treatment 5 days a week. Chemicals and surgery were also employed. Plaintiff was informed by the Radiology Clinic at Wadsworth Veterans Administration Hospital that his skin condition could be terminal if proper precautions were not taken. The growths continued after the treatment, and at the time of trial a small discoloration on plaintiff’s right hand was observed. The loss of hair under plaintiff’s right eye was also observed. There is no showing that said skin condition interfered with the performance of plaintiff’s assigned duties or just when, in point of time, the growths became malignant.

15. Plaintiff’s concern about his knees and his diminished hearing caused him to be tense and nervous about his work and social and business contacts. Plaintiff’s situational tension manifested itself by tremors. Plaintiff also complained of being irritable and of trouble in getting along with others. He started taking tranquilizers in 1957 and continues to take them. No psychiatric treatment was given plaintiff and the Veterans Administration neuropsychiatrist, upon examining plaintiff, stated that:

Neurological findings are all within normal limits. It is possible that the veteran had situational tensions, causing a psychophysiological musculo-skeletal reaction, manifested by tremors.

Plaintiff has not established the psychiatric condition claimed nor shown that, if it does exist, it hampered him in the performance of his assigned duties or any duties which might be assigned to him.

16. Attached to plaintiff’s application for voluntary retirement were copies of standard form 88, Report of Medical Examination, dated January 11 and June 4,1962, and standard form 89, Report of Medical History, dated June 4,1962. The report of the medical examination dated January 11, 1962, noted:

Gradual decreased hearing acuity, over past 4-5 years bilaterally, has no difficulty performing duties or following conversation.

There is no notation of the knee, skin or alleged psychiatric condition in the January 11, 1962, report. Plaintiff was found qualified for general service.

17. Hi the report of medical history dated June 4, 1962, plaintiff stated his present health to be “[g]ood except for hearing loss and stiff joints.” This report noted -that plaintiff complained of swelling, pain and lameness referable to his knee condition. In the clinical evaluation, the report noted abnormality of the lower extremities — “Chondromalacia, both knees.”

The consultation sheet attached to the June report noted:

2 May ’62 — Has recurrent pain E. knee. No swelling or locking. Sensitive sx. L. knee to lesser extent.

P.E: Except for +3 crepitus E. knee, +2 crepitus L. knee, exam both knees neg.

X-rays: neg.

Imp.: Chondromalacia both knees E. & L.

Plaintiff received a poor rating on his hearing tests but the report stated:

Hearing test performed this date show decreased hearing in ranges of 2000 to 6000. As there is no difficulty performing duties assigned to him and/or following conversation recommend patient be qualified for TJSAF Commission.

18. The standard to be applied in determining unfitness for military duty in the Air Force for the purpose of retirement is prescribed in AFM 35-4, February 1,1960, entitled Physical Evaluation for Retention, Retirement, and Separation. Paragraph 1 of the Foreword of AFM 35-4 provides:

Purpose and Scope. This manual prescribes the procedures for processing members who are unfit to perform their duties because of physical disability. It contains the authority for the retention of members found fit for duty and the retirement or separation of members found unfit^to perform duty because of physical disability.

Paragraph lm defines physical unfitness as—

Physically Unfit or “Unfit”: Physical inability to perform the duties of the grade held, which are required during the performance of full military duty, field as well as garrison, in both peace and war.

Paragraph lr defines duties of grade as follows:

Duties of Grade: The duties of the particular grade, which are required in the performance of full military duty, field as well as garrison, in both peace and war.

19. Plaintiff’s duties, among others, while in the Air Force, were, at various times: Squadron Adjutant, Air Force Instructor, Detachment and Base Public Information Officer, Detachment Photographer, Officer in Charge of A.F. KOTO Rifle Team, Military Training Instructor, Project Officer for A.F. Aide, Squadron Supply Officer, Wing On-the-Job Training Officer, Assistant Wing Information Service Officer, Information Service Superintendent, Officer in Charge of Base Newspaper, Education and Training Superintendent, Project Officer for the 1st Missile Division Marksmanship Competition, Assistant Ground Training Officer, Special Project Officer, and Assistant Chief Wing Training Officer. Prior to his separation on July 1, 1962, plaintiff was engaged in writing the survival plan for the base and handling the rifle team. While in the military service, plaintiff completed his college education in his off-duty time and received a B.S. degree in 1953. He also earned 18 graduate hour credits toward an M.A. degree.

20. Plaintiff’s officer effectiveness reports for the years 1952-61, taken as a whole, described him as an above-average officer. These general estimates of plaintiff ranged from “a dependable and typically effective officer” to “a very fine officer of great value to the service” and “superior.” There is no mention of plaintiff’s inability to perform any of his assigned tasks because of a physical disability.

21. In an examination of plaintiff on November 8, 1962, the Veterans Administration found he had partial, bilateral, percepfive-type deafness, chondromalacia of both knee joints, and psychophysiologic musculo-skeletal reaction, manifested by tremors, all of which were service connected. The Veterans Administration on January 21, 1963, rated the hearing disability at zero percent, the psychophysiologic musoulo-skele-tal reaction, manifested by tremors in remission, at zero percent, the chondromalacia of the left knee at zero percent and of the right knee at 10 percent. This gave a combined disability rating of 10 percent. No further improvement was anticipated. There is no evidence in the record of any rating by the Veterans Administration for skin cancer.

22. After failing the Los Angeles school system hearing test, and speaking with a Veterans Administration representative, plaintiff wrote to the Air Force on August 21,1962, requesting an appearance before a physical evaluation board. The Air Force informed plaintiff that:

4. * * * Since your retirement physical was reviewed and approved in the Office of the Surgeon General, you were retired for length of service.

5. If you feel an injustice has been done in your case, you may apply to the Air Force Board for Correction of Military Records for corrective action. * * *

23. On January 28, 1963, plaintiff filed an application with the Air Force Board for the Correction of Military Records. He requested correction of his records to show disability retirement, as of the date of his retirement, in his Air Force Reserve rank of Major. As grounds for relief he alleged that he was not referred to a physical evaluation board prior to retirement although his condition indicated on final examination that this should have been done; that he had failed a physical examination for teaching credentials during August 1962 because of service-connected disability; and that he had been granted a disability rating by the Veterans Administration, effective as of the time of his retirement.

24. The Surgeon General on April 12,1963, recommended no change in the records to the Board and, noting that the separation physical examination dated June 4,1962, revealed chondromalacia of both knees and a mild hearing loss, stated that these conditions were not considered severe enough to warrant processing under the provisions of AFM 35-4. It was noted, also, that the Veterans Administration had awarded plaintiff a 10-percent rating for Ms knees. The Board then denied the application for correction on July 19, 1963, without a hearing, stating that the applicant had not submitted sufficient evidence to establish the required showing of probable error, or injustice in the ease.

25. Plaintiff some years later employed counsel to request reconsideration and a hearing by the Board at which plaintiff and others could appear as witnesses. On July 2, 1968, plaintiff’s counsel submitted a brief and exhibits in support of plaintiff’s application of December 13, 1967, for reconsideration. The evidence submitted was essentially the same as introduced at the trial herein.

26. Plaintiff’s case file was transmitted to the Surgeon General for a report concerning his request for correction of Ms military records to show retirement for physical disability. On July 24, 1968, the Surgeon General submitted a report and recommendation to the Correction Board in part as follows:

2. Report of Medical Examination dated 4 June 1962 recorded moderate hearing loss bilaterally and chon-dromalacia of right knee with crepitus of both knees on movement, but no other physical x-ray findings. He was medically approved for retirement by the Alaskan Air Command Surgeon on 17 June 1962.

_ 3. Multiple audiometric records before and after retirement demonstrated definite bilateral hearing loss of variable extent, never worse than the Air Force limits of acceptability for world-wide service. Veterans Administration examination on 8 November 1962 recorded no instability or other findings concerning the evaluee’s knees wMeh would limit normal activity. Records have been submitted concerning squamous cell carcinoma of the skin of the left hand and an unrelated similar lesion of the right eyelid treated after retirement. However, skin cancers without evidence of metastases are not a cause for finding of unfitness by the Air Force. Available out-patient records pre- and post-retirement indicate occasional prescriptions of tranquilizers or sedatives within acceptable limits for a normal individual without psychiatric disease. Veterans Administration psychiatric consultation dated 13 November 1962 considered him a sane, normal individual with situational tensions causing a psychophysiological musculoskeletal reaction, manifested by tremors. This was considered a character and behavior disorder by the Veterans Administration. Despite the lack of positive findings, the Veterans Administration awarded him 10% disability rating for chondromalacia of the right knee, with other diagnoses considered not ratable.

4. There is no record of any medical defect (s) of sufficient severity to preclude normal world-wide military service at the time of retirement.

5. The Surgeon General recommends no change in the record.

27. Plaintiff’s counsel had access to the report made by the Surgeon General on July 24, 1968, and on August 13, 1968, addressed a letter to the Correction Board asking for further specific information on the Surgeon General’s position relating to each of plaintiff’s alleged physical disabilities since they were discussed in only cursory fashion in his report of July 24. This inquiry was submitted to the Surgeon General by the Correction Board and was replied to by the Surgeon General on August 23, 1968, substantially without reference to the questions submitted. The Surgeon General’s reply stated, in pertinent part, that a review of plaintiff’s records had again been made upon receipt of the inquiry of plaintiff’s counsel, that the July 24, 1968, report had omitted a reference to chondromalacia of the left knee, but concluded as follows:

3. This case has been carefully reviewed in accordance with the provisions of AFM 35-4, AFM 35-7, AFB 31-3, AFP 35-3-1 and Chapter 61, Title 10, TJ.S. Code. As stated in our letter of 24 July 1968, there is no record of any medical defect (s) of sufficient severity to preclude normal worldwide military service at the time of retirement.

4. The Surgeon General again recommends no change in the record.

28. On September 9,19,68, plaintiff-advised the Correction Board of the failure of the Surgeon General to respond to plaintiff’s specific questions and alleged that this failure indicated that the facts and regulations presented by plaintiff were correct; that the Surgeon General evidently did not consider the symptoms as set forth in plaintiff’s affidavits and, if the Board questioned the credibility of the affiants, the plaintiff and his wife, the plaintiff requested the privilege of a hearing so that the Board could better judge them; and that the Surgeon General had not applied the standard of disability required by the regulations. Plaintiff also submitted an exhibit in which plaintiff’s questions about cancer, which the Surgeon General had not answered, were covered by quotations from two leading texts on cancer and in which a letter from plaintiff amplifying the facts as to cancer was attached.

29. On November 7, 1968, the Correction Board denied plaintiff’s application without a hearing, stating as follows:

_ The administrative regulations and procedures established by the Secretary of the Air Force for the guidance of the Board provides that an application may be denied where the applicant has not submitted sufficient evidence to establish a showing of probable error or injustice in the case.

I regret to advise you that a careful consideration by the Board of your military record, together with such facts as have been presented by you, fails to establish a showing of probable error or injustice in your case. However, you are privileged to submit new and material evidence for the consideration of the Board. In the absence of such additional evidence tending to show the commission of an error or injustice, no further action on your application is contemplated.

30. In testifying at the trial of this case plaintiff was alert and responsive. He heard the questions asked, without apparent difficulty. His physical appearance was not unsightly by reason of skin eruptions. He walked with apparent ease and moved to and from the witness stand with a normal movement and without complaint about his knees. He responded to sharp questioning with intelligence and poise. He did not appear to be a man suffering from disabilities such as would render him unfit to perform his assigned duties properly, as described in the foregoing findings, assuming his condition at the trial was the same as at the time of his retirement.

Conclusion of Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed.