531 F.2d 985 | Ct. Cl. | 1976
Lead Opinion
delivered the opinion of the court:
The plaintiff, Curtis L. Storey, while a member of the United States Air Force suffered injuries to his left arm in a motor vehicle accident in November 1969, and, as a result thereof, was placed on the Temporary Disability Retirement List (TDRL) on January 4, 1972, in accordance with 10 U.S.C. § 1202 (1970). Anyone on this list is required by 10 U.S.C. § 1210(a) (1970) to be examined at least once every 18 months to determine whether there has been any change in his disability. In compliance with this requirement, the plaintiff was given a physical examination in May 1973, by Major Malcolm Heppenstall, who reported that the plaintiff “had made a remarkable recovery, with.no evidence of infection of the upper left extremity,” but stated further that he was “ineligible for worldwide duty.”
Thereafter an informal Physical Evaluation Board (PEB) found that plaintiff’s injuries were “not unfitting”
- After considering the report of Major Heppenstall, the decision of the PEB, the opinion of the Surgeon General, and the rating of disability given plaintiff by the VA, 'the Board concluded that the plaintiff had failed to establish “a showing of probable error or injustice,” and denied any relief to him.
Thereafter, plaintiff-filed suit in this court asking the court to replace his name on the TDRL or have him permanently
The plaintiff relies heavily on the report of Major Heppen-stall in which it was stated that plaintiff was “ineligible for worldwide duty.” However, it appears that this was not a prognosis with reference to plaintiff’s disability, but was a gratuitous conclusion of law that was contrary to Air Force Manual 35-4, sec. 7-6d which provides in part as follows:
* * * A statement of prognosis may be made, but reference to disposition of member, such as retirement or discharge for disability, or the probable percentage of disability will not be included in clinical records, summaries or abstracts. [Emphasis in original.]
It is clear from this provision that the physician is confined to his medical findings, but the disposition of the serviceman is a decision to be made by the Secretary and not by the examining physician. Consequently, Major Heppenstall’s conclusion as to the disposition to be made of plaintiff is of no help to him.
Plaintiff also relies heavily on the disability rating given him by the VA. However, it is well-established that a VA disability rating is not binding on the Air Force. Bennett v. United States, 200 Ct. Cl. 635 (1973); Unterberg v. United States, 188 Ct. Cl. 994, 412 F. 2d 1341 (1969) ; Williams v. United States, 186 Ct. Cl. 611, 405 F. 2d 890, cert. denied, 396 U.S. 966 (1969). The disability compensation of the VA is provided by a different statute (38 U.S.C. § 331 et seq.) and for a different purpose than that provided for the Air Force (10 U.S.C. § 1201 et seq.). The VA rating of plaintiff was considered by the Correction Board, but it did not bind the Board nor control its decision.
The plaintiff contends that the decision of the Correction Board is arbitrary, capricious, and unsupported by substantial evidence. Plaintiff carries a heavy burden in sustaining this position. Callan v. United States, 196 Ct. Cl. 392, 450 F. 2d 1121 (1971); Unterberg v. United States, supra; Cooper v. United States, 203 Ct. Cl. 300 (1973).
Plaintiff’s motion for summary judgment is denied and that of defendant is granted and plaintiff’s petition is dismissed.
Concurrence Opinion
concurring:
I join fully in Judge Skelton’s opinion, but deem it advisable to add a word with respect to an alternative position taken by plaintiff in this case. Plaintiff’s moving brief pressed upon us the argument that his removal from the TDK.L and consequent discharge violated an applicable regulation, DOD Directive 1332.18, as it existed at the time here in question. Paragraph Y.B. of that directive enumerates certain presumptions which uniformly are to be indulged by officials in applying federal laws, relating to separation from military service by reason of physical disability. Thus, in the absence of a preponderance of evidence to the contrary (1) a member is presumed to have been physically fit upon entry into the service; (2) any disease or injury discovered after entry into the service is presumed incurred in the line of duty; (3) in the case of disease or injury known to have existed before entry, aggravation is presumed to have been service-connected; and, finally (4) certain “acute infections” will be presumed service-incurred or service-aggravated. Paragraph V.B.2 goes on to provide that whenever there exists a reasonable doubt concerning the member’s condition, the facts will be resolved on the basis of the foregoing presumptions in favor of the member.
Plaintiff derives from this language the conclusion that since the PEB was confronted with a reasonable doubt as to whether he was fit for worldwide service, the doubt necessarily under the directive had to be resolved in his favor and
I agree that the petition should be dismissed.