
    JOSEPH W. HARRIS v. THE UNITED STATES
    [No. 107-64.
    Decided November 10, 1966.
    Plaintiff’s motion for rebear-ing or new trial denied February 17,1967]
    
      
      Harry E. Wood, attorney of record, for plaintiff.
    
      Oharles M. MunnecJce, with whom was Acting Assistant Attorney General J. William Doolittle, for defendant.
    Before CoweN, Chief Judge, Laramore, Dureee, Davis and ColeiNs, Judges.
   Per Curiam :

This case was referred to Trial Commissioner C. Murray Bernhardt with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed January 11,1966. Exceptions to the commissioner’s findings and recommendation for conclusions of law were filed by the plaintiff. Defendant excepted to portions of the commissioner’s opinion. The case was submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. The majority of the court is of the view that, in this very close case, it cannot overturn the findings of the trial commissioner that the plaintiff was not disabled at the time of his separation from the service. Plaintiff is, therefore, not entitled to recover and the petition is dismissed.

Dureee, Judge, dissents. (See dissent following the conclusion of the commissioner’s opinion.)

Commissioner Bernhardt’s opinion, as modified by the court, is as follows:

The plaintiff’s case is that, at the time of his release from active duty as a commander in the Navy on January 19,1946, he was permanently incapacitated for active duty by reason of physical disability (rectal incontinence) incurred in line of duty and incident to his extended active service, and that the action of the Board for Correction of Naval Records in denying, without a hearing, his request that his records be corrected to reflect his disability retirement as of 1946, was arbitrary, capricious, unsupported by and contrary to tbe evidence, and unlawful. Conversely, tbe defendant contends that tbe plaintiff was fit for military duty at the time of his release and that tbe action of the Correction Board denying plaintiff’s application has not been shown by him to be as charged.

While on active duty in the Navy as a surgeon in 1944 the plaintiff underwent a hemorrhoidectomy to relieve a condition from which he had suffered for some years prior to duty but which had apparently become aggravated in service. In the course either of the operation, or (more likely) as a result of an abscess which required incision and draining, the sphincter muscle was damaged. The double-barreled sphincter muscle is a key element in nature’s ingenious apparatus to automatically open and close the anal orifice to allow or prevent bowel movements, operating much in the puckering manner of a drawstring on a laundry bag. In plaintiff’s case an area of scar tissue gathered over part of the damaged sphincter muscle and so impaired its functioning that ever since, infrequently but unpredictably, the plaintiff has suffered the embarrassment of partial rectal incontinence, a condition wherein at times he lacks control over the emission of soft stools and digestive gases. There is no surgical or other cure available that does not involve an unacceptable risk of causing complete incontinence, but dietary restraint can reduce the incidence. There seems to be no doubt that the condition, mild and moderate as it has been pronounced to be, originated with the operation or the infection sequelae. The only question before the Correction Board was whether the condition at the time of plaintiff’s separation in January 1946 was of a degree sufficient to disqualify him from performance of active duty. Correspondingly, the traditional role of the court on review “is to determine not whether the claimant was unfit for service at the time of his release, but rather whether the finding of the Secretary of the Army [Navy in this case] that the serviceman was fit was so arbitrary, capricious, or unsupported by evidence as to be contrary to the applicable principles of law. * * *.” Johnston v. United States, 157 Ct. Cl. 474 (1962).

The plaintiff ran the familiar gamut of applications for disability compensation and retirement pay before the agencies constituted for that purpose. This started with his application in February 1946 to the Veterans Administration, which produced a service-connected 0 rating in 1949 but was subsequently, in 1959, increased to 10 percent on the Veterans Administration disability rating schedule, and never more, despite plaintiff’s unsuccessful appeals to the Veterans Administration Board of Veterans Appeals for a 80 percent rating. Curiously, when the plaintiff was first advised in 1946 by the Veterans Administration that service-connection had not been established, he responded by disclaiming interest in compensation or any other form of relief unless his condition developed into a handicap in the future, an indirect but clear admission on his part that in 1946 he did not consider himself handicapped, presumably for functioning as a civilian doctor.

From February 1960 through April 1963 the plaintiff prosecuted a claim for disability retirement before the Navy, including an application to the Board for Correction of Naval Records and, through it, consideration by a series of medical boards established by the Navy to review and pass on the medical aspects of such claims. The favorable ruling of the Physical Evaluation Board (i.e., officialese for “retiring board”; see Friedman v. United States, 141 Ct. Cl. 239, 158 F. Supp. 364 (1958)) following a hearing in March 1962 was unanimously reversed by successive review panels and agencies (Physical Review Council in April 1962, Physical Disability Review Board in October 1962, and the Surgeon General thereafter), and ultimately by the Correction Board itself in April 1963.

Before getting into the core of plaintiff’s quarrel with the administrative proceedings, certain inferences may be derived from the plaintiff’s delayed application to the Correction Board 15 years after his release, and his interim activities. Although the plaintiff testified that he was ignorant of his disability retirement rights at the time of his discharge, this is difficult to credit for two reasons. First, as a Navy doctor it would be natural to assume that the shoptalk among his fellow doctors, particularly around the time of wholesale separations in late 1945 when the plaintiff’s was processed, would have involved disability retirement situations and thus acquainted him sufficiently with such matters to prompt him to institute proceedings for himself if he felt entitled. Second, he did file an application with the Veterans Administration in 1946 as mentioned above for the ostensible purpose of establishing the existence of his condition should it later worsen. The combination of these circumstances produces the conclusions that (a) the plaintiff was oblivious of neither his condition nor his legal remedies at the time of his discharge, and (b) the condition was so moderate at the time of his separation that in his private professional opinion it was not sufficient to disqualify him for active duty and thus entitle him to retirement for disability.

Casting further doubt on the validity of plaintiff’s contentions as to the extent of his disability at the time of his separation and in the ensuing 13 years of his service in the Naval reserves after his separation, are the repeated physical clearances he received hi that period of time, some of them bearing his own seal of approval and all of them silent as to any disqualifying rectal disability. It is no doubt true that annual qualifying physicals in the reserves are often cursory affairs that are not definitive of actual ailments, and equally true that plaintiff was strongly induced to conceal physical defects due either to an innate reluctance to advertise his embarrassment or to a natural desire to complete 20 years in the reserves to earn longevity retirement rights, or both. Bnt such affirmative testimonials to continued good health set up at least some kind of presumption for plaintiff to overcome. Unquestionably the condition of which he complains existed and still does, but its severity, frequency and disabling nature are uncertain in view of his constant readiness for tours of active duty, no matter how sedentary and physically undemanding he now claims them to have been.

Adverting now to the plaintiff’s charges of defective administrative procedures, there are several urged. The major complaint seems to be that the Physical Evaluation Board was the only board in the administrative chain considering his claim that afforded him a personal hearing, the inference being that had the others done so they might have reached the same favorable conclusion announced by the Physical Evaluation Board and later upset on review by others. The Board for Correction of Naval Records, established pursuant to the authorization contained in 10 U.S.C. 1552 (1958 ed.), is directed by regulations (section 723.3(e), Title 32, Code of Federal Regulations) to review each application for correction “to determine whether to authorize a hearing or to deny the application without a hearing.” Thus in discharging its statutory duty to determine whether sufficient evidence has been presented to indicate probable material error or injustice, the Correction Board may do so without a hearing, in its discretion, as was done in the case under consideration, despite the plaintiff’s request for such. On the other hand the Physical Evaluation Board, the retiring board established pursuant to 34 U.S.C. 411 (1946 ed.), is directed by 34 U.S.C. 412 (1946 ed.) to give the applicant a “full and fair hearing * * * if he shall demand it.” The plaintiff received a hearing before the Physical Evaluation Board and is, of course, satisfied with its favorable recommendation that he was incapacitated for active service at the time of his release in 1946 by reason of his rectal condition, which was stated to be permanent and service-connected.

Plaintiff was not given hearings before either the Physical Review Council or the Physical Disability Review Board, both of which disagreed with the favorable recommendation of the Physical Evaluation Board. No explicit statutory sanction has been found for the Physical Review Council as it has for the Physical Disability Review Board (10 TJ.S.C. 1554), but it is apparently created under the general authorization of the Secretary of the Navy to prescribe regulations to carry out his duties of determining the fitness for active duty of members of the armed forces under his jurisdiction (10 TJ.S.C. 1216). The regulations governing the Council appear in section 725.501 et seq. of Title 32, Code of Federal Regulations. They describe the function of the Council to be “to review the proceedings and recommended findings of physical evaluation boards” (sec. 725.504), and to forward its recommendations to the Secretary of the Navy for final action (sec. 725.506). They do not provide the claimant a right to a personal hearing before the Council, and his rights are restricted to the filing of a rebuttal statement to the recommended substitute findings of the Council in disagreement with those of the Physical Evaluation Board. Thus the plaintiff’s complaint that he was not permitted to appear before the Council is without merit to the extent a hearing is not provided by the regulations. If the plaintiff has already had, or waived, a hearing before the Evaluation Board, no particular deprivation of due process is apparent in the preclusion of a hearing before the Council so long as the Council has the benefit of examining the complete record in the course of its review. The plaintiff’s further objection that the Council’s report to the Correction Board failed to discuss and analyze the plaintiff’s evidence before the Evaluation Board is also without surface merit to the extent that the regulations do not require the Council to do more than report to the Secretary (actually in our case to the Correction Board, the Secretary’s alter ego) its substitute findings, which was done. It would seem, however, that a bare statement by the Council to the Correction Board that it disagrees with the Evaluation Board’s recommendations would not be nearly so helpful in the Correction Board’s deliberations as would a detailed discussion of the Council’s reasons for the disagreement which would give the claimant and the Correction Board the full benefit of knowing the facts and medical opinions which persuaded the Council to disagree with the Evaluation Board. The regulations neither require nor forbid the Council to present its detailed reasons to the Correction Board and, while this may not be a desirable omission, the absence of detail does not deprive due process, for the action of this way-station to the Correction Board does not prevent that Board from a full consideration of the record, aided by an audience to the claimant if it chooses. If any error were said to exist in the brevity of the Review Council’s advice to the Correction Board, it would occur later should the latter body blindly adopt the Council’s bare recommendation without obviously independent deliberation.

There is a question as to whether the jurisdiction of the Physical Disability Review Board was properly invoked, but even if it was properly invoked its proceedings were irretrievably flawed by its failure to accord the plaintiff a hearing to which section 725.611 of the regulations entitled him. Rather, the eventual report of the Physical Disability Review Board to the Correction Board states that the members of the Board were “of the opinion, since the records were voluminous and complete, the interests of the petitioner and of the Government in this case are so well protected that a full hearing with personal appearance before the Board will not be necessary.” The failure of the Physical Disability Review Board to at least give the plaintiff the refusal of a hearing was in clear violation of the regulation, so the advice given by the Physical Disability Review Board to the Correction Board that the plaintiff was fit for duty may be considered a nullity for this further reason. The plaintiff also contends that the said report was skimpy in its recital of facts, but whether the regulations require more than was submitted need not be adjudged in view of the voiding of the proceedings for other reasons.

Faced as it was with a conflict in the opinions and advice of the Physical Evaluation Board and the other boards which subsequently considered the claim, the Correction Board then referred the claim to the Bureau of Medicine and Surgery (i.e., the Surgeon General) for an advisory opinion. The Bureau concurred in the adverse recommendations of both the Physical Review Council and the Physical Disability Review Board, but the report from the Bureau was prepared by one of the three officers who had signed the report previously submitted to tlie Correction Board by the Physical Review Council. No citation of authority is required to reach the conclusion that the Bureau’s report to the Correction Board should be disregarded as unacceptable, for its preparation by one who participated in the adverse decision of a prior board so tainted it as to rob it of its character as the independent advice of the Bureau. In other words, the Correction Board asked the Bureau of Medicine and Surgery its advice, but to all intents and purposes received instead the warmed-over advice of the Physical Review Council, in effect. It is not necessary to consider the plaintiff’s further objection that the Bureau’s report to the Correction Board did not fully reflect the evidence considered, nor whether procedurally the Correction Board should restrict its solicitation to information rather than opinion, for the authorship of the Bureau’s report is enough to void its utility.

On April 9,1963, the Correction Board advised the plaintiff that “the preponderance of the medical opinion in your case is to the effect that you were fit for duty at the time of your release from active duty.”, and that, accordingly, he had not established “the existence of probable error or injustice in your case.” Plaintiff then appealed to the Secretary of the Navy and enclosed a host of supporting documents, including the reports of two civilian doctors who had examined him. This application was referred back to the Correction Board. In November 1963 the Undersecretary of the Navy advised the plaintiff that the Correction Board, after a review of the additional material submitted, “continues of the belief that there is insufficient evidence to warrant a finding that you were incapacitated for the performance of your duties in 1946, * * The Undersecretary ruled that the action of the Correction Board appeared to be proper. The plaintiff contends that the Correction Board erred in not granting him a hearing as requested, and in abbreviating its report by omitting a recital of the facts, both medical and otherwise, supporting its recommendation to the Secretary.

Shortcomings and irregularities in the administrative procedures, both claimed and actual, have been defined. What are their logical legal consequences? In disability retirement proceedings the Correction Board becomes a clearing house into which the various advices and information from other medical groups are funneled. It rests with the Correction Board to resolve disagreements among the contributed advices in the form of a decision which should be the product of its own independent deliberations based upon whatever records and testimony it procures or may entertain. It may consider but should not feel bound by the opinions of contributing groups. If these groups differ in their submitted conclusions, or if the procedures in certain of them are so substantially defective as to preclude reliance on their advice, there may be cast upon the Correction Board a heightened obligation to permit live evidence, and in its ultimate report to discuss the evidence in sufficient detail to demonstrate both to the claimant and the Secretary that the recommended conclusion was reached after a thorough, independent consideration of all available facts and is not a mere parroting or wholesale borrowing of collateral opinions. Should this not occur in situations demanding it, as in Smith v. United States, 168 Ct. Cl. 545 (1964), or should it appear patent that the Correction Board has rested a substantial though measureless part of its decision on the surrogate opinions of panels which should have been ignored because of their defective procedures, it would not then be just to the claimant to accord the customary degree of finality to the Correction Board’s decision, or for it to enjoy the protection of the substantial evidence rule on judicial review. Bather, a decision so arrived at should be susceptible to review on the basis of a simple preponderance of the administrative evidence augmented by judicially produced de novo evidence.

Applying this standard to the case at bar, the elimination of the recommendations to the Correction Board of the Physical Disability Beview Board and the Bureau of Medicine and Surgery, because of procedural deficiencies, would leave legitimately before the Board only the report of the Physical Evaluation Board and the Physical Review Council, the one being favorable to plaintiff and providing a more satisfactory assurance of full consideration after a hearing, and the other adverse to plaintiff being merely a review of the cold record without the benefit of a personal hearing because not provided by the regulations. Under these circumstances the Correction Board would have been well-advised to have given the plaintiff the hearing he requested, or at least to have prepared a much more comprehensive report in which the factual and medical aspects of the claim would be treated in detail rather than in summary form. The absence of both of these precautions creates an undesirable and perhaps erroneous impression that the Correction Board was influenced unduly by the numerical preponderance of opinions it received rejecting plaintiff’s contentions rather than by the merits of the claim. It then becomes the province of the court to supply that which was required of the Correction Board below, namely, a full-dress review of the plaintiff’s contentions, taking into account the assorted administrative opinions but relieved of their pressure.

The shortcomings of the Correction Board’s report are not overcome by the presence in the Board’s file of a memorandum prepared by a staff employee which recites in detail the facts and medical aspects of the plaintiff’s claim, including the statements of civilian practitioners who examined plaintiff, and concludes with a recommendation that the application be denied. Even if the Correction Board gave full consideration to this staff recommendation, as presumably it did, it would not cure or relieve the deficiency of the report which the Board rendered to the claimant and to the Secretary as a recommendation, for that report quite clearly produces the impression that the Board relied exclusively on the mathematical balance of the adverse medical opinions it had received. Had the report been couched in the detail contained in the staff employee’s memorandum, as it should, it would then not have been open to the criticism that it was a mere summation of collateral opinions rather than the product of independent deliberation by the Board. The retirement rights of members of the military services are valuable property rights and deserve the same jealous protection in their administrative consideration as they would receive in a judicial proceeding. To that end the administrative proceedings need not parallel judicial ones, but they must at least avoid not only arbitrary action, but the appearance of arbitrary action as well, and minimally must observe the requirements established by law and implemented by regulations.

That Correction Boards have frequently been held to high standards of performance is evident in the opinions of this court. Thus, in Friedman, v. United States, supra, where the Air Force Correction Board denied plaintiff’s application on the strength of an advisory opinion obtained from the Air Force Review Council, an organization which had no official position in the appeal hierarchy set up for review of disability retirement claims, the court held that the Board had “abdicated its statutory function and duty” and that its failure to “base its conclusions on the official record before it, appears to us to be arbitrary, capricious and contrary to law.” No such abdication appears in the case at bar, but the principle is wholesome and significant. Again, in Hutter v. United States, 170 Ct. Cl. 517, 345 F. 2d 828 (1965), the decision of the Air Force Correction Board was held to be arbitrary, capricious, erroneous, and not supported by substantial evidence in denying plaintiff’s application on the advice of the Surgeon General that the plaintiff had been properly evaluated prior to separation by the Veterans Administration. “The Correction Board was under no duty to defer to the conclusion reached by the Veterans Administration if there was substantial evidence before the Board to the contrary.” And at page 525:

This court has stated that the Correction Board is arbitrary when it follows an ex parte opinion of the Surgeon General which is inaccurate and contrary to the evidence. * * *

In the present case the Veterans Administration’s determination in 1946 that the plaintiff’s disability was not service-connected, and in 1949 that it was but rated 0, had been mentioned in the reports received by the Correction Board, but tlie later increase in 1959 to 10 percent bad not been referred to.

At trial before tbe court the plaintiff testified, as did the two doctors whose written reports bad previously been considered by tbe Correction Board. Findings 28 and 29 recapitulate their testimony, but add little besides embellishment to their written advice to the Correction Board. Dr. Bryant thought that the plaintiff’s condition when he examined him in 1961 was probably slightly more severe than it had been in 1946 at the time of discharge, because of loss of muscle tone associated with aging. He was of the opinion that plaintiff’s condition in 1946 would have interfered with the efficient performance of his military duties as a Naval surgeon in a reasonable manner. Dr. Murphy examined plaintiff in May 1963, and felt that the plaintiff’s sphincter muscle is probably more relaxed now than in 1946, but that his general rectal condition is about the same, described as a “mild type of disability.”, but one which handicapped plaintiff in performing his Naval duties.

Navy Department Court-Martial Order No. 12-1946, December 1946, provides guides to physical disability for retirement purposes prevailing in the Navy prior to the enactment of more flexible standards in the Career Compensation Act of 1949, 10 U.S.C. 1201 (1958). It says at page 395 that “Incapacity apparently exists under the laws [i.e., for retirement purposes], when an officer’s physical condition is such that he cannot perform his duties in a reasonable maimer.” And at page 396: “Basically, therefore, it would appear that inability to perform the duties which an officer could normally be called upon to perform should be the determining factor as to whether an officer should be retired.” Further at page 394, quoting from 27 Op. Atty. Gen. 14, 18; L.B.N.A. 598: “The law does not say that he must be incapable of performing his duties well, but that he must be incapable of performing them at all, or, in other words, he must be unable to so perform them as to reasonably fulfill the purposes of his employment.”

The essence of plaintiff’s contention is that he could not discharge the duties of a Naval surgeon at all times in 1946 in a reasonable manner because he ran the constant risk of having to suspend critical operations due to a sudden onset of his particular disability. It is not established that the normal military life of a doctor, even one classified as a Naval surgeon, is so unremittingly strenuous as to disqualify one with plaintiff’s mild degree of physical impairment, bothersome though it must be at times. Certain, of its manifestations which would be socially detrimental in a civilian hospital would be much less so or pass unnoticed in a less fastidious military environment. There may be times, such as in the heat of handling battle casualties in a theater of war, when the plaintiff, if assigned to emergency surgical duties, would have been unable always to acquit himself in a reasonably efficient manner because of his impediment. But it is arguable that these occasions would be the exception rather than the rule, and that an officer of plaintiff’s rank and age at the time of his separation might well have been assigned to less onerous duties more commensurate with his particular skills and infirmities, and for which his condition would interpose less hindrance. The Naval standards do not require that the officer be physically qualified to perform well all duties which he might encounter, but merely that he be physically capable of performing those which he would normally, be called upon to perform in such manner “as to reasonably fulfill the purposes of his employment.” All service doctors are not equipped or called upon to exercise their calling under extreme conditions as a steady diet, and reason must be read into the disability retirement standards so as to adjust the man to the situation.

It is true that Navy Department Court-Martial Order No. 12-1946, supra, at page 400, provides that an officer who is physically qualified for only limited duty as opposed to full duty is entitled to disability retirement, as was the case in Weiner v. United States, 148 Ct. Cl. 445 (1960). However, there was no question of the present plaintiff being assigned to limited duty, and all that has been discussed thus far relates to his capacity to perform full duty.

Under all the facts of the case and the governing law and regulations, even if the decision of the Correction Board should not be reviewable under the standard of the substantial evidence criteria because of the formal defects surrounding its administrative processing, on the basis of the administrative record plus the plaintiff’s evidence furnished the court it must be concluded that the plaintiff has failed to establish by a simple preponderance of the evidence that he was physically incapacitated to perform active duty as a Naval surgeon at the time of his discharge in January 1946. Accordingly, his petition should be dismissed.

Dukeeb, Judge,

dissenting:

I respectfully dissent from the conclusion of the majority which, “in this very close case,” affirms the findings of the Trial Commissioner that plaintiff was not disabled at the time of his separation from the service. My concurrence in the majority opinion could only add strength to the overworked, but herein appropriate, legal maxim that hard cases make bad law.

In my opinion, plaintiff has established by a clear preponderance of the evidence that his physical condition on November 8, 1945, the date of his release from active duty, disqualified him from the performance of his official duties as a general surgeon in the Navy. Furthermore, I feel that the Commissioner has erroneously interpreted the Navy regulations governing the release of officers from active duty.

Just before his entry as a surgeon in the Navy in 1943, plaintiff was employed by an insurance company for several months as a project surgeon on a construction job where he worked sixteen to twenty hours daily attending to the emergency medical requirements of approximately 6,000 to 25,000 construction employees. From this fact, one may safely conclude that, when he entered the service, plaintiff was well qualified to perform in a reasonable manner the normal duties of a general surgeon. Plaintiff then entered active duty in the Navy as a Lieutenant Commander (surgeon) and did reasonably perform his assigned surgical duties until his rectal operation in 1944.

There is no dispute that, while in service in 1944, plaintiff suffered the physical disability of partial rectal incontinence, the result of damage to the sphincter muscle of the rectum from a hemorrhoidectomy. An interpretation of this medical jargon reveals that plaintiff experienced the infrequent, but unpredictable loss of control of the movement of his bowels as a result of the surgery while in the Navy. There is no dispute that plaintiff’s inability to control his bowels had a marked effect on his surgical performances; inasmuch as unpredictable exits to the bathroom forced him to suddenly interrupt the course of an operation. Furthermore, unexpected flatus during an operation made him understandably nervous. This feeling was worsened by an anxiety neurosis, the result of his constantly being worried about his bowel control.

Surely, there are few vocations in which plaintiff’s condition would be a more serious and disabling handicap than that of a general surgeon seeking to perform reasonably his normal duties. The readers of this opinion might better comprehend the severity of plaintiff’s handicap if an analogy to his plight is drawn in the legal profession. The persuasive powers of a trial attorney would be of little value if his summation to a jury was unexpectedly interrupted by his desperate dash to a bathroom. Whereas the lawyer might be able to return to the courtroom suffering only a tactical loss; the losses at stake due to the surgeon’s sudden exit would be much greater. Certainly no patient would be willing to let the success or failure of his operation be subject to the uncontrolled caprice of his surgeon’s rectal muscle.

The normal duties required of plaintiff, who entered upon active naval duty as a general surgeon, without 'physical restrictions as to type of duty, are clearly and unequivocally stated in the Navy regulations. These are the duties which general surgeons could normally be called upon to perform, including the ability to perform all their duties at sea. And plaintiff’s disability was to be based upon Ms capacity to so perform.

In Weiner v. United States, 148 Ct. Cl. 445 (1960), at pp. 454-455, Judge Laramore, in considering a similar Army regulation, commented upon the argument that defendant now mates in this case:

The defendant argues that plaintiff’s condition did not render him unfit for limited service and that limited service is general service within the meaning of the statutes and regulations.
However, War Department Technical Manual 12-245, October 1,1945, provides in paragraph 60a, in part:
(2) * * * [A]n officer is permanently incapacitated for active service when he becomes permanently physically or mentally incapacitated for the performance of full military duty, field as well as garrison, in both peace and war. * * * [Emphasis added]
If the Government’s contention is correct, a person could lose both legs, one arm and one eye, and still be fit for general service, because he could perform some limited-service duty. This we cannot conceive. * * *

I need to add only “or lose control of his bowels” to the other disabilities listed above in the Judge’s trenchant comment to reach the same conclusion in the present case.

The per curiam opinion of the court accepts the Trial Commissioner’s finding that plaintiff “if assigned to emergency surgical duties, would have been unable always to acquit himself in a reasonably efficient manner because of his impediment,” but that these occasions would be the exception rather than the rule and that “reason must be read into the disability standards so as to adjust the man to the situation^ [Emphasis supplied] Accordingly, the Commissioner reasoned that plaintiff might have been adjusted to the situation by assignment “to less onerous duties more commensurate with his particular skills and infirmities.” I assume that this means that if plaintiff had lost a leg, an arm, or an eye, he could be similarly adjusted to the situation. The Commissioner has read into the disability standards an interpretation which goes far beyond their reasonable meaning. What he says might be applicable to limited duty, but plaintiff was never officially assigned to limited duty. This error in the Commissioner’s interpretation may have been partially induced by defendant’s singular and inaccurate reference to these established disability standards in its brief: “In substance, the criteria set forth for disability retirement is the inability to perform the officers’ duties as is necessary to reasonably fulfill the purposes of military employment.” Completely omitted by defendant is the added requirement of “ability to perform all their duties at sea and m the field.” [Emphasis added]

Reasoning that a doctor would know about his disability retirement rights, the Commissioner found it difficult to credit plaintiff’s testimony that he was ignorant of these rights. In light of plaintiff’s undisputed testimony, this is an unjustified assumption. Furthermore, this assumption is contradicted by the undisputed fact that the separation examining physicians clearly and erroneously told plaintiff that his disability “was a VA not a Navy, problem.” Tr. p. 140.

The Commissioner stated that certain inferences could be drawn from plaintiff’s delayed application to the Correction Board and his interim activities. These inferences, unfavorable to plaintiff, are not supported by the evidence, and in no way are relevant to plaintiff’s actual physical condition when he was released from active duty. Thus, these inferences are doubly faulty; they are both inaccurate and unnecessary.

After his bungled rectal operation, plaintiff was assigned duties as a general surgeon with limitations adapted to* his rectal disability. His post-release civilian practice has been likewise limited in that his condition has remained substantially unchanged since the operation. Furthermore, the Commissioner has found that “Plaintiff’s physical condition would have handicapped him in the private practice of medicine 'and surgery, but this condition would not have operated to the same extent to deter his performance as a naval surgeon on active dutyP

While in the Naval Reserve from 1946 to 1959, plaintiff’s physical activity, including several short tours of duty as a surgeon, consisted largely of “waiting for things to happen.” (Finding 18). During this period, he was given sixteen cursory physical examinations, all lacking in digital or instrument examination of the rectum or anus. The Commissioner found it difficult to reconcile these abbreviated examinations with the undisputed facts as to plaintiff’s continuing disability. However, these facts as to plaintiff’s activities after his release can be readily reconciled by concluding that he was trying his best to carry on without help despite his obvious disability. This view is supported by his frank statement to the Veterans Administration in his first application for service-connected disability in 1946: “I am a doctor and do not request medical help, remuneration or anything else unless the condition should develop into a handicap in the future.” If any inferences are to be drawn from this candid statement, they are in favor of plaintiff’s position.

As a result of plaintiff’s first thorough examination since his release in 1946, the Veterans Administration, in 1959, found a ten percent disability for partial rectal incontinence and hemorrhoids, post operative. The only other complete physical by the Navy was in 1962; the result as reported to the Correction Board by the Physical Evaluation Board was:

2. Plaintiff, at the time of his release from active service, “was incapacitated for active service by reason of Rectum and anus, impairment of sphincter control constant slight with occasional moderate leakage, that his incapacity was permanent, and that such incapacity was the result of an incident of the service.”
3. Plaintiff “became patently incapacitated for active service subsequent to his appointment as an officer.” See Finding 22, p. 28.

The subsequent proceedings before the Physical Review Council, the Physical Disability Review Board, and the Correction Board merely reviewed the medical history and the additional medical evidence submitted by plaintiff without further physical examination of, or even allowing an appearance by plaintiff. The Trial Commissioner determined that these proceedings were so clearly erroneous that the Correction Board’s decision was not reviewed with the protection of the customary degree of finality or of the substantial evidence rule. Accordingly, he reviewed the administrative record, as augmented by judicially produced de novo evidence, on the basis of a preponderance of the evidence test.

Accepting this approach, I find that the preponderance of the evidence in this record is strongly in favor of plaintiff, and that it establishes that when he was released from active duty, not for physical disability, he was actually suffering from a post operative injury incurred in service that prevented him from performing his normal duties as a surgeon in a reasonable manner, as construed by Navy regulations. Thus, the per curiam opinion, based upon the Commissioner’s opinion and findings, is erroneous as a matter of law in its misinterpretation of the applicable laws and regulations, and its ultimate conclusion is unsupported by, and contrary to the basic and undisputed facts found by the Commissioner.

In my opinion, plaintiff is entitled to disability retirement pay.

ColliNs, Judge, joins in the foregoing dissenting opinion.

FINDINGS op Fact

1. Birth, citizenship, residence. Plaintiff was bom April 24,1898. He is an American citizen and a resident of Syracuse, New York.

2. Early military service. Plaintiff served in the Army during World War I as a private, Student Army Training Corps, from October 22,1918 to December 9,1918. He served as a private in the National Guard of the United States and the Utah National Guard from February 2, 1920 to February 1,1921.

3. Education and employment prior to World War II service. Plaintiff graduated from the University of Maryland Medical School in 1931. He served his general internship in South Baltimore General Hospital. Following post-graduate training, including a further internship in Salt Lake City, Utah, a residency in neurology and psychiatry in Colorado Springs, Colorado, and a residency in industrial surgery and medicine in Pitcher, Oklahoma, he accepted employment in 1939 as an industrial surgeon with the Aetna Casualty and Insurance Company in New York City and, in the last several months prior to April 1943, as Aetna’s project surgeon on a construction job in Chicago furnishing first aid for accidents and injuries. In this latter capacity he worked 16 to 20 hours daily attending to the emergency medical requirements of from 6,000 to 25,000 construction employees.

4. Entry on active military duty. Pursuant to official solicitation among doctors for service in the Armed Forces, on December 28, 1942, plaintiff applied for appointment in the Medical Corps, U.S. Naval Eeserve, and was found physically disqualified because of dental deficiencies, which defects were waived on March 15, 1943. On April 1, 1943, plaintiff accepted an appointment as lieutenant commander (surgeon), U.S. Naval Eeserve, was reexamined and found disqualified for dental deficiencies (waived), and no other defects noted. On April 26, 1943, plaintiff entered on extended active duty in the Navy as a lieutenant commander (surgeon), and was then in sound physical condition, although he had had occasional discomfort from external hemorrhoids and had had a hemorrhoidectomy in 1933.

5. Davisville assignment. Plaintiff was initially assigned to duty as surgeon at the Naval Construction Training Center, Davisville, Ehode Island. There he was responsible for an admission ward and a diagnostic ward of 90 beds at the Main Dispensary, supervised 11 branch dispensaries, was officer in charge of a Marine barracks, and served as instructor in advance deep sea diving training for Seabees, all of which duties he was physically capable of discharging until the occurrence of the events described in the next finding.

6. Hemorrhoidectomy. On April 11 or 12,1944, plaintiff suffered a rectal relapse (i.e., protrusion of mucous membrane through anus). On April 13,1944, he reported to the Main Dispensary for treatment, and on the following day, April 14, 1944, was operated on for the removal of protruding “large internal and external hemorrhoids” revealed by examination.

7. Oonvalescence.

(a) Plaintiff remained at the Main Dispensary until May 4,1944. On or about April 26,1944, he developed a perineal abscess on the left anal orifice, which was incised and drained of pus on that day. The abscess cavity was packed with gauze. By May 2,1944, the cavity was not completely healed and was “granulating by second intention”.

(b) On May 5,1944, plaintiff was transferred to the United States Naval Hospital, St. Albans, New York, for further treatment. On entrance examination bis condition was recorded as “Essentially negative except: Perineum — 1" long granulating wound * * *. Slight drainage present.” Later a progress notation revealed “Rapid healing of wound which has a small granulating area persisting. No drainage. No complaints.” Plaintiff was returned to duty June 20, 1944. There is nothing in his medical records to indicate a physical examination was made at the time he was returned to duty.

(c) While at St. Albans from May 5, 1944 to June 20, 1944, the plaintiff spent only a few nights in the hospital, but instead lived at home and reported in weekly for a checkup. During this period he dressed his own wound with the help of his wife, who was then a registered nurse. When he returned to duty June 20,1944, plaintiff still had a granulated sore, but was free of rectal drainage of pus, serum, or blood. However, rectal incontinence (i.e., inability to control the escape of gases, liquids, or solids) had developed.

8. Post-operation tour of duty. On July 27,1944, plaintiff was examined and found to be physically fit for transfer and duty outside the continental limits of the United States and, after short assignments to two Navy Yards in the New York City area, was transferred to the United States Naval Hospital, Balboa, Canal Zone, where he remained until his return to the United States in December 1945 for relief from active duty (except for brief interim duty in the Galapagos Islands).

9. Physical examinations through 191$. In an annual physical examination on December 31,1944, and a temporary physical examination for promotion on November 14, 1945, and examinations on November 29, 1945 and December 12, 1945, for release :to inactive duty, the only defects noted in plaintiff were a slight pes planus (2nd degree), a small hemorrhoid tag on the left side, and dental defects which had been waived. He was found physically qualified to perform duties of his rank at sea or on foreign service, and physically qualified for release to inactive duty. On the occasion of the physical examinations referred to, no digital or instrumental rectal examination was made, although the plaintiff had remarked his rectal incontinence.

10. Belief from aeti/oe duty. By order dated November 26, 1945, and effective January 19, 1946, plaintiff was relieved from active duty, not for physical disability, in the grade of commander (to which he had been temporarily promoted effective November 8, 1945). In the physical examination given plaintiff on December 12, 1945, in connection with his relief from active duty, it was reported that he had a hemor-rhoidectomy followed by an abscess in 1944, that he then had no hemorrhoids, and that he was found physically qualified for release to inactive duty.

11. Beetal incontinence in service. During the plaintiff’s active duty from the time of his discharge from the hospital following his operation, until his release to inactive duty in January 1946, he was assigned duties as a general surgeon, primarily with orthopedic wards. He also did some X-ray reading and consultation work. His duties involved some physical activity, but were not as strenuous as those he had performed prior to his 1944 operations, and he was generally able to discharge them, sometimes with difficulty. He endeavored to obtain assignments which would cause him the minimum amount of difficulty and embarrassment in consequence of the rectal incontinence from which he continued to suffer following his operation. During this period he experienced rectal abscesses and boils which he treated himself. He sought no medical assistance in this period. He frequently soiled his underclothing and trousers without sufficient advance warning to avoid it, and when this occurred midway in the performance of particular assignments it was disconcerting and embarrassing, for he would have to absent himself for clean-up operations.

12. Physiology of the rectal apparatus. The anal canal is the far terminal tract of the large bowel, where the bowel opens to the outside through the rectum and anus. The rectum is the lower and last part of the large bowel, and the anus, at the lower end of the rectum, is the opening to the outside. The anal canal is lined with mucous membrane nearly to the anal orifice; the skin and the mucous membrane join in the anus. Just at the end of the mucous membrane is the so-called sphincter muscle, which actually consists of an internal sphincter and an external sphincter. Both sphincters go completely around the rectum; their function is to contract, or pucker, the rectum, as a drawstring tightens a laundry bag, to keep the rectum tightly closed. The external sphincter is a “voluntary” muscle, i.e., one that can be relaxed or contracted at will, while the internal sphincter, a very strong muscle, is “involuntary”, performing its function without conscious volition. The two muscles are controlled and function together, however, and damage to one will affect the other, at least indirectly.

13. Cause and continuity of rectal incontinenee. Plaintiff had prior to the termination of his active Naval service on January 19,1946, and has since had, a very relaxed external sphincter and a partially impaired internal sphincter. There is a rigid, hard, mass of scar tissue, about half an inch wide and an inch or two long, extending from the anal margin up inside the rectum, which has interrupted and partially destroyed his internal sphincter, the muscle tissue of the sphincter having been replaced by the scar tissue. The external sphincter has also been “relaxed”, or weakened, so that the rectum cannot be tightly contracted. In consequence, plaintiff has, and has had since April 1944, mild rectal incontinence. The incontinence may have been caused by surgical oversight during his first operation, by erosion from the abscess and infection plaintiff developed April 26, 1944, by damage caused in incising the abscess, or by the formation of scar tissue as a result of the abscess. Whatever the precise cause, it is clear that in direct consequence of one or both of plaintiff’s rectal operations in April 1944, he has thereafter suffered from impairment of sphincter control, with moderate rectal incontinence. The condition has remained substantially unchanged since prior to January 19, 1946; aging-might tend to decrease the amount of compensation plaintiff could make to try to control his incontinence, because of impaired muscle tone, but it would not increase the destruction of the sphincter muscle. The scar tissue responsible for the condition probably accumulated and reached its existing condition within one to two years following the operation in April 1944. There is no surgical or medical treatment for the condition that would not involve a substantial risk of converting the plaintiff’s present partial incontinence into a total incontinence.

14. Physical standards. Court-Martial Order No. 12-1946 was used as a guide for retirement on account of physical disability of Naval Eeserve officers. The following passages from Court-Martial Order No. 12-1946 are applicable to the case under consideration:

Physical incapacity is defined as a condition, bodily or mental, which unfits at present, or is likely to unfit in the near future, the officer for the performance of his duties. (21 Op. Atty. Gen. 387, L.R.N.A. 598.) *****
It is to be remembered that the incapacity to discharge his duties contemplated by the statute is not an incapacity to discharge them as well as they ought, theoretically, to be discharged by officers generally of the same rank and intrusted with similar duties. The law does not say that he must be incapable of performing his duties well, but that he must be incapable of performing them at all, or, in other words, he must be unable to so perform them as to reasonably fulfill the purposes of his employment. (27 Op. Atty. Gen. 14,18; L.R.N.A. 598.)
$ $ $ $ In the regular Navy an officer may not be promoted permanently to a higher grade on the active list, with an exception not here pertinent, until he has been pronounced physically qualified to perform all his duties at sea (34 U.S.C. 271). This requirement is specifically made applicable to officers in the staff corps of the Navy (34 U.S.C. 284). In the Marine Corps permanent promotion to a higher grade may not be made until an officer is pronounced physically fit to perform all his duties at sea and in the field (34 U.S.C. 665). The general test of physical qualification for promotion is the basis upon which officers in the regular services are found to be fit for service, or to be unfit so as to warrant their cases being brought before retiring boards, without regard to the particular duties which any individual officer, in fact, may be called upon to perform. Whether or not incapacity exists in- any particular case is, of course, a matter for determination by a retiring board.
* * * when an officer of the regular service is suffering with a disease or injury of a permanent nature to a degree that incapacitates him or is likely to incapacitate him in the near future for the performance of the duties of his office, he should be retired. Incapacity apparently exists under the law, when an officer’s physical condition is such, that he cannot perform Ms duties in a reasonable manner. The term “disability” as used in the Act of August 27,1940, as amended, supra, with respect to officers of the reserve forces, insofar as concerns physical retirement, means the same as the term “incapacitated for active service” as contained in Section 1453, Revised Statutes, with respect to officers in the regular service. * * *
So far as concerns general service officers of the Naval or Marine Corps Reserve who may be required to perform the same duties at sea or in the field as are required of officers in the regular services, there appears to be no basis for any distinction in determining when an officer in the regular service or such a reserve officer is incapacitated or disabled so as to be subject to physical retirement. The same standards as are applicable in determining when an officer in the regular service is physically incapacitated for regular service, aside from the question of line of duty or incident of the service, should be applied in determining when a general service officer of the Naval or Marine Corps Reserve is disabled so as to be subject to physical retirement.
$ ‡ ‡ ‡
The primary purpose of the laws governing physical retirement in the regular service is not to extend a benefit, but is the means for separating from the active list an officer who is unable because of his physical condition reasonably to perform the duties that could normally be required of him. * * * Basically, therefore, it would appear that inability to’ perform the duties which an officer could normally be called upon to perform should be the determining factor as to whether an officer should be retired.
Reserve officers in specialist categories who entered upon active duty without restriction from a physical standpoint as to where or what type of duty they might be ordered to perform, appear ito be analogous to staff officers in the regular service. In determining whether such reserve officers are disabled to an extent warranting retirement, the same standards should be applied as are applicable to staff officers in the regular service, i.e., ability to perform all their duties at sea, and in the case of Marine officers at sea and in the field.
In many cases officers are found to be suffering with diseases or injuries which are considered to unfit them for full duty but which do not prevent performance of limited duty. Any such officer wbo is released from active service because no limited duty berth is available for him is within the contemplation of the law. Likewise any such officer who remains on active duty in a limited status and who eventually is released from active service is within the terms of the law even though the reason assigned for his release is that he had the necessary points. It cannot be stated with certainty that if any such officer had been found physically qualified for full duty that he would have been demobilized at the particular time. _ If physically qualified, he might have been kept on active duty beyond the date of actual demobilization. It should be presumed in such cases that his unavailability for full duty so affected his status as to constitute at least a partial basis for his release from active service at the time such release occurred, even though a different reason is assigned therefor. In this connection the intent of Congress in enacting the pertinent legislation was to give an officer who considers that he should be retired, an opportunity to test his case. It is to be presumed that retiring boards will recommend for retirement only those officers who, under the law, are entitled to retirement and who should have been retired in the first place. (File: JAG:CA:HJM:mgl, 26 Nov. 1946.)

15. Post-service civiMcm employment.

(a) After his release from active duty plaintiff returned to work for the Aetna Casualty and Surety Company in New York City as a compensation examining physician, the duties of which cannot be equated to general practice of medicine and surgery. Although the plaintiff testified that he would have preferred to enter the private practice of medicine at that time, and that his physical condition prevented him from doing so, it is problematical whether, in the absence of the physical condition, the plaintiff would have practiced medicine privately, for his prior civilian medical practice had been exclusively institutional (see finding 3, supra). Plaintiff’s physical condition would have handicapped him in the private practice of medicine and surgery, but his condition would not have operated to the same extent to deter his performance as a Naval surgeon on active duty. It may be concluded that plaintiff’s choice of returning to work for Aetna after his release from active duty was die-tated more by his personal preference than by consideration of his physical shortcomings.

(b) Plaintiff remained with Aetna for about three years, and then went to work for the New York State Burean of Workmen’s Compensation as an associate compensation examining physician, which remained his occupation at the time of trial. Plaintiff’s duties since his discharge in 1946 have required little or no physical exertion and permit him complete control over his time, so that it has been easier for him to adapt his physical condition to his work than it would have been in private practice of medicine and surgery.

16. First application to VA.

(a) On February 13, 1946, the Veterans Administration received an application for service-connected disability compensation which plaintiff had filed with the Army Service Command. In the questionnaire attached to the application the plaintiff noted “perineal abscess” as the “nature of disease or injury on account of which claim is made * * On March 5, 1946, the Veterans Administration, on the basis of plaintiff’s service records and without examining plaintiff, advised plaintiff that “Service connection has not been established for the following diagnosed conditions: Perineal Abscess, not found on last examination.” On March 14,1946, the plaintiff wrote the following letter to the Veterans Administration:

For the record I am not interested in a pension now. I claim no disability now. Following recommendation of officers at separation center a report was filed for the purpose of getting a claim number should the condition give me trouble in the future.
Abscess has drained twice since August 1944. There was no abscess when I was separated but there was a small crust. There is a small crust now. I am a Dr. and do not request medical help, remuneration or anything else unless the condition should develop into a handicap in the future.

(b) On June 17, 1949, the Veterans Administration advised plaintiff that his claim for disability compensation had been reviewed on the basis of additional service records (but without a medical examination), and that it had been determined that “service-connection should be granted for the Post-operative residuals of tbe hemorrhoidectomy performed in service, but the same is evaluated at 0% disabling and no compensation payments may be made for that condition.” An appeal was invited. The Eating Sheet upon which the notification to plaintiff was based reported “Hemorrhoids, P.O. [post-operative] cured.”

17. Second application to VA.

(a) In February 1959 the plaintiff applied to the Veterans Administration for an increase in his percentage of disability rating. On the basis of a physical examination he was awarded a 10 percent disability rating for hemorrhoids, postoperative, with partial incontinence of external anal sphincter, effective February 10, 1959. He has been so rated continuously since then.

(b) On July 14, 1959, the plaintiff appealed the decision of the Veterans Administration awarding him a 10 percent disability, and attached a statement from a private physician who reported, following a physical examination, that plaintiff had “huge internal hemorrhoids”, “prolapsing rectal mucosa”, and sphincter muscles which were “apparently intact, but are loose”. Plaintiff was also examined by a Veterans Administration physician on March 16, 1960, who reported that “To be sure there is contractility of the sphincter but it is definitely impaired so that the finger can be slid in and out of the anal canal while the veteran is contracting his sphincter to the best of his ability. Anoscopic examination reveals a rosette of moderate sized internal hemorrhoids which are neither bleeding or ulcerated.” This physician concluded that plaintiff had “partial rectal incontinence”. On August 3, 1960, the plaintiff was rated for hemorrhoids, post-operative, with partial incontinence of external anal sphincter, 10 percent from September 10, 1959, service connection by aggravation of a preexisting condition.

(c) On October 20, 1960, the Board of Veterans Appeals denied plaintiff’s appeal, finding that “a rating in excess of that presently assigned for this disability is not warranted.” A compensation check was tendered plaintiff by the Veterans Administration, but refused.

18. Na/val Reserve activities. From January 19, 1916, to December 81, 1959, wben be was transferred to the Retired Reserve, plaintiff held a commission in the Naval Reserve. During this period he had a number of short tours of active duty for training. These included attendance at medical lectures and service as battalion surgeon, 2d Tank Battalion, TJ.S. Marine Corps, during two-week tours of active duty for training. Plaintiff’s physical activity while on these short tours consisted largely of “waiting for things to happen”, and he was generally able to compensate for his partial rectal incontinence. He also participated in inactive duty reserve training from about March 3,1952, to July 1,1959; his duties in this connection consisted largely of reporting to the training center for eight hours once every two weeks, and not “doing much” except waiting.

19. Naval Reserve physical examinations.

(a) From October 15,1948 to July 31, 1959, plaintiff was given 16 physical examinations in the service in connection either with his active duty training, transfer, augmentation, or promotion. Thirteen of these examinations were routine examinations finding the plaintiff to be physically qualified for tours of active duty training. Two of these 13 routine examination reports (August 1952 and August 1953) were signed by the plaintiff as examining physician, while a third, dated March 30, 1953, which was certified by plaintiff to be correct, reports as part of plaintiff’s medical history that “Piles operated on in 1943, Navy, cured, no trouble now.” In a report of medical examination performed March 3,1952, in connection with plaintiff’s transfer to the organized reserves, the medical history of which the plaintiff certified as correct, it is noted “Hemorrhoids operated with no sequelae.”, and on the basis of the examination plaintiff was found physically qualified for transfer to the organized reserves. In a report of medical examination performed May 21, 1956, in connection with plaintiff’s promotion to captain, no defects were noted related to the plaintiff’s present complaint and he was “Found to be physically qualified for promotion and to perform all duties of his rank at sea and ashore.” In a report of medical examination performed April 22,1957, for purposes of “augmentation” into the Regular Navy, the medical bistory portion of which the plaintiff certified to he correct, it is reported (apparently in plaintiff’s handwriting) “hemorrhoidectory at age 46; hernia repair at ages 41 and 52. No hernia or hemorrhoids now.” In this same report the examining physician notes, apparently on the basis of advice furnished him by the plaintiff, “Following hemor-rhoidectomy in 1946 developed pereanal [sic] abscess, NCD [i.e., not considered disabling] with no sequelae. No recurrence of bleeding or pruritus. NCD.” In his formal application of July 2, 1957, for augmentation into the Eegular Navy, the plaintiff stated: “I am in excellent physical condition.” He was found physically qualified for augmentation, but his application was denied. In four reports of medical history the plaintiff certified his health to be good or excellent. Three of four reports of physical examination in the ten years following October 1948 reflect a normal “anus and rectum,” no defects, and that plaintiff was physically qualified.

(b) It is difficult to reconcile the contents of these medical records following plaintiff’s release from active duty with his testimony and independent evidence of his rectal condition during the same period. Beyond doubt the plaintiff’s rectal apparatus was subnormal despite the implications to the contrary in his medical records in the Naval Reserves, but it is questionable whether plaintiff’s rectal incontinence was either as severe, continuous, or uncontrollable as he contends here.

20. Application to Correction Board. On February 9, 1960, the plaintiff wrote to the Bureau of Naval Personnel to request disability retirement from the Navy for rectal prolapse, internal hemorrhoids, external hemorrhoid tags, and occasional incontinence since his operation in 1944. On February 18, 1960, he was advised by the Chief of Naval Personnel that the latter was “without authority to consider your request for disability retirement benefits” because plaintiff’s release from active duty had not been effected “by reason of physical disability pursuant to the findings of a board of medical survey, retiring board, or disposition board, and you are not eligible for a review of such release under the provisions of * * * the Servicemen’s Readjustment Act of 1944.” The Chief of Naval Personnel did not suggest to plaintiff that he could apply to the Board for Correction of Naval Kecords (hereafter referred to as Correction Board), but plaintiff learned of this recourse by inquiries at the Third Naval District, New York City. On February 24, 1961, plaintiff applied to the Correction Board for correction of his records to show that he was not physically fit to perform the duties of a captain in the Medical Corps of the Navy at the time he was released from active duty on January 19, 1946. The plaintiff requested an oral hearing, but stated that he did not desire to have witnesses appear in person.

21. Decision of Correction Boa/rd. On July 7, 1961, the Correction Board ruled that the plaintiff should be afforded a hearing by a physical evaluation board. The Correction Board did not refer the claim to a Physical Evaluation Board. An employee of the Correction Board prepared a brief dated August 28, 1961, which, after summarizing the evidence reviewed, concluded with a recommendation that plaintiff’s application be denied without a hearing. On September 13, 1961, the Correction Board wrote plaintiff that preliminary examination of his naval record and review of the material submitted by him failed to establish a sufficient basis for further action by the Correction Board, and stated that a subsequent review of the claim could be had on the basis of any additional evidence the plaintiff might produce to show that an error or injustice had occurred. The letter advised that the Correction Board could deny a hearing when the claimant fails to show that an entry or omission in his naval record was improper or unjust under existing standards.

22. Physical Evaluation Board appearance.

(a) At the instance of the plaintiff, and on request to the Chief of Naval Personnel by the Correction Board, the plaintiff was authorized to appear before a Physical Evaluation Board, which was instructed to determine:

1. Whether the plaintiff suffered a disability from disease or injury during his active Naval service from April 26, 1943 to January 19,1946.
2. Whether he was incapacitated for active service at the time of his release on January 19,1946.
3. Wb.etb.er such incapacity was permanent.
4. Wbetber the incapacity was the result of an incident of the service.
5. Whether plaintiff became patently incapacitated for active service prior or subsequent to his appointment as an officer.

(b) On March 27,1962, plaintiff appeared before a Physical Evaluation Board convened at the United States Naval Hospital, St. Albans, New York. He was assigned naval counsel to represent him. He testified under oath that he had been operated on for rectal prolapse in April 1944; that there had been post-operative complications; that from and after April 1944 he had suffered rectal incontinence; that he had had no surgery for the condition since 1944; that he had brought his rectal condition to the attention of Navy doctors in December 1945 at the time of his examination for release from active service; and that he had had rectal incontinence, because of interruption of his sphincter action, continuously from and after 1944. He also testified to another allegedly disabling condition, namely, compressed air damage due to his deep-sea diving experience as an instructor during his service. The panel had before it the plaintiff’s medical records. After consideration of the evidence, the Physical Evaluation Board made recommended findings that—

1. Plaintiff “did suffer disability from disease, post surgical, in line of duty while employed in active Naval service between April 26,1943, and January 19,1946”.
2. Plaintiff, at the time of his release from active service, “was incapacitated for active service by reason of Eec-tum and anus, impairment of sphincter control constant slight with occasional moderate leakage, that his incapacity was permanent, and that such incapacity was the result of an incident of the service.”
3. Plaintiff “became patently incapacitated for active service subsequent to his appointment as an officer.”

In its recommendations the Physical Evaluation Board rated plaintiff’s disability at 10 percent, according to Veterans Administration Code 7332. Under applicable regulations the assignment of a percentage of disability was surplusage in a disability retirement claim, where the criteria is without regard to the percentage of disability if there is permanent incapacity for active service.

23. Action by Physical Review Oowncil. The record of proceedings of the Physical Evaluation Board was forwarded to the Physical Review Council, Department of the Navy, on April 5,1982. Attached to the record of proceedings was a statement by plaintiff that he agreed with all findings of the Physical Evaluation Board except that pertaining to his percentage of disability, which he thought should be 30 percent. On April 18, 1962, the Physical Review Council expressed to the Physical Review Board and plaintiff the opinion that plaintiff “was fit for duty at the time of his release from active duty in 1945”. The opinion of the Physical Review Council did not discuss the evidence presented to the Physical Evaluation Board except to note that no significant defects had been noted on plaintiff’s physical examinations in 1945 and thereafter, and that in the meantime since his release the plaintiff had “developed weakness of the anal sphincter to some degree but this does not change the condition which existed at the time of release.”

24. Plaintiffs rebuttal to Qowicil. On April 23,1962, the plaintiff submitted a statement hi rebuttal to the opinion of the Physical Review Council, stating in part that his rectal incontinence had occurred while he was on active duty, and that there had been no change in this condition to his knowledge since his release other than “reoccurent [sic] rectal infections”. On May 3, 1962, the Physical Re mew Council advised the Board for Correction of Naval Records that, having considered plaintiff’s rebuttal to the Physical Review Council’s April 18, 1962 opinion, it did not concur in the recommended findings of the Physical Evaluation Board and adhered to its opinion that plaintiff “was fit for duty at the time of his release from active duty”.

25. Physical Disability Review Board. On June 4, 1962, the Board for Correction of Naval Records wrote to the Navy Physical Disability Review Board requesting advice as to the latter’s concurrence or nonconcurrence in the recommended findings of the Physical Evaluation Board, and enclosing the record of proceedings before the Correction Board and the Physical Evaluation Board, the Physical Review Council’s letter of May 3, 1962, the plaintiff’s file and medical record jacket, and his fitness report jacket. The stated reason for the Correction Board’s request was the difference of opinion between the Physical Evaluation Board and the Physical Review Council. On October 1, 1962, the Physical Disability Review Board advised the Correction Board that it “unanimously concurs” with the position of the Physical Review Council. The Physical Disability Review Board noted that plaintiff’s physical examinations subsequent to January 19, 1946, showed him to be “physically qualified to perform the duties of his rank at sea and on foreign shore”, that the "Veterans Administration had denied plaintiff’s claim for disability benefits in 1946, and that while plaintiff may have developed since his release a weakness of the anal sphincter to some degree, this did not “operate to alter the condition which existed at the time of his release from active duty”. The Physical Disability Review Board did not examine plaintiff nor invite him to appear personally before it because “the records were voluminous and complete, the interests of the petitioner and of the Government in this case are so well protected that a full hearing with personal appearance before the Board will not be necessary”. The Physical Disability Review Board made no mention in its advisory opinion of the facts set forth in finding 18 hereof respecting the action in 1959 of the Veterans Administration awarding plaintiff service-connection for rectal incontinence.

26. Reconsideration by Correction Board.

(a) By letter of October 25, 1962, the Correction Board transmitted to plaintiff a copy of the advisory opinion of the Physical Disability Review Board, informing him that it would give him 30 days to file “such additional comment and/or documentary evidence as you may desire in rebuttal” thereto. On December 28, 1962, the Correction Board further advised plaintiff that, in view of the conflicting medical opinions in the case, all evidentiary matters would be transmitted to the Chief, Bureau of Medicine and Surgery, for further study and an advisory opinion. On the same day the Correction Board transmitted to the Chief, Bureau of Medicine and Surgery, plaintiff’s Physical Evaluation Board proceedings, the Physical Eeview Council’s opinion of May 3, 1962, the Physical Disability Eeview Board’s opinion of October 1, 1962, the Correction Board’s file, plaintiff’s file, his fitness report jacket, and medical record jacket.

(b) By letter of March 20, 1963, the Bureau of Medicine and Surgery advised the Correction Board that it concurred in the opinion that plaintiff was “fit for duty at the time of his release from active duty” and recommended that plaintiff’s petition be denied. The Bureau’s letter reflected that while plaintiff’s evidence showed that he “now has some degree of rectal incontinence, * * * there is no record of incontinence, per se, until he was hospitalized in August of 1959” for certain fractures sustained in an accident. The letter was prepared by Commander John W. Flynn, who had previously participated in plaintiff’s case, in the April 18, 1962 tentative opinion of the Physical Eeview Council, where he had signed the opinion for the representative of the Bureau of Medicine and Surgery, one of three members of the said Council which recommended that plaintiff was fit for duty at the time of his release from active duty. The opinion of the Bureau of Medicine and Surgery reported itself to be based on “A review of the records”.

(c) By letter dated April 9, 1963, the Correction Board advised plaintiff that his case had been referred to the Bureau of Medicine and Surgery for an advisory opinion, and furnished him a copy of the Bureau’s opinion of March 20, 1963, referred to in the preceding paragraph of this finding. The Correction Board stated that “the preponderance of the medical opinion in your case is to the effect that you were fit for duty at the time of your release from active duty.”, and, accordingly, adhered to its original decision denying the plaintiff’s application. Without analyzing the evidence in detail, the Correction Board enumerated the various records which it had considered in reaching its conclusion that plaintiff had not established “the existence of probable error or injustice in your case.” However, the files of the Correction Board contain a detailed analysis of the medical factors in the claim prepared by a staff member of the Board, which recommends that the application be denied without a hearing. This analysis, which was presumably considered by the Board, recites the plaintiff’s statement of the alleged injustice, summarizes his Naval service, and presents in adequate detail both his medical military history and additional medical evidence submitted by the plaintiff, including reports of physical examinations by two private practitioners.

27. Appeal to the Secretary.

(a) On October 17, 1963, the plaintiff forwarded to the Secretary of the Navy 45 pages of documents pertaining to his “entitlement to Naval Disability Retirement”. Included in the documentary material so transmitted were a statement of June 25, 1963, from Dr. Robert B. Bryant, and one of May 29,1963, from Dr. B. O. Murphy.

(b) Dr. Bryant examined the plaintiff in January 1961 and June 1963. In his written report of June 25,1963, after describing the plaintiff’s medical history and the results of the two examinations, Dr. Bryant reached the following conclusions:

I feel that this officer has a permanent incontinence which is a direct result of scarring of his anal region following an operation for prolapse of the rectum and internal hemorrhoids which were complicated by an abscess which necessitated incision and drainage. These surgical procedures apparently interrupted the sphincter muscle and resulted in marked scar formation so that the sphincter is now completely unable to tightly close the anus. There is no hope for improvement of this condition on conservative management instead it will gradually but very slowly worsen. The condition is extremely annoying to the patient, prevents him from working or from carrying on most normal activities, since he must be constantly mindful of the fact that he will be leaking gas, occasionally fluid and must always be near a bathroom and must change his underclothing frequently.

In his written report of January 30,1961, Dr. Bryant stated that plaintiff has “a moderately severe incontinence with internal hemorrhoids and some rectal prolapse”, and that “the condition is permanent and disabling”.

(c) Dr. Murphy examined the plaintiff in May 1963. In his written report of May 29, 1963, after reciting the plaintiff’s medical history and the results of his examination, Dr. Murphy stated that plaintiff’s sphincter was quite relaxed, tbat be had a line of scar tissue which could be felt and appeared as an oblique scar through the sphincter “apparently as a result of the second operation” in 1944, that the weakness in plaintiff’s sphincter control had been present since he was operated on in 1944 and caused a “mild type of disability”, and voiced his impression that the condition was permanent, inoperable, nonprogressive, and had not changed since the second operation in 1944.

(d) Plaintiff’s application of October 17,1963, to the Secretary of the Navy was forwarded to the Correction Board along with the enclosures. On November 27,1963, the Undersecretary of the Navy advised plaintiff by letter that, after a review of the additional material submitted, the Correction Board “continues of the belief that there is insufficient evidence to warrant a finding that you were incapacitated for the performance of your duties in 1946, * * The Undersecretary then stated “In view of the foregoing, the action of the Department in releasing you to inactive duty in 1946 without physical disability retirement, and the action of the Correction Board in denying your application appear to be proper.” The letter predicated its determination on the series of occasions since November 1945 wherein the plaintiff was found by military authorities to have been physically qualified for promotion, for release, for active training duty, for transfer to the ready reserve, and for augmentation into the regular Navy, without, however, analyzing the eviden-tiary details upon which these findings were based.

28. Testimony of Dr. Bryant.

(a) Dr. Bryant, whose written report as to his examination of the plaintiff was furnished to the Correction Board for consideration (see finding 27, supra), testified at the trial of the case in this court. Dr. Bryant graduated from medical school in 1940 and was at the time of trial a general surgeon in Syracuse, New York. He served as a medical officer in the Navy from 1942 to 1946 and again from 1950 to 1951 as a resident and in practicing surgery. He was a senior resident at the Flower Fifth Avenue Hospital, New York City. He became a fellow of the American College of Surgeons in 1954 and a diplómate of the American Board of Surgery in 1956. He is also an instructor in surgery at Syracuse University College of Medicine. He is familiar with Navy retiring board procedures, not as a board member, but rather as a ward doctor. The following paragraphs (b) through (d) recapitulate his testimony before the court.

(b) Dr. Bryant examined the plaintiff’s anal region in January 1961 and in June 1963. He found hard scar tissue on the right side of plaintiff’s anus, and a prolapse of rectal mucosa on straining. The scar tissue was a hard mass one-half inch wide and extending up into the rectum for an inch or more from the anal margin. Plaintiff’s sphincter muscle tone was very poor, and he was unable to contract his sphincter tightly around a probing finger. Some small internal hemorrhoids were visible. The hard scar tissue had formed a round break in the sphincter muscle and replaced the muscle in that area, or covered it up so that it was unable to contract, so as to leave a permanent canal open to the outside. The scar tissue resulted from destruction of the sphincter muscle partly from surgery in 1944 and partly from infection which developed secondary to the surgery. The infection formed an abscess along the right side of plaintiff’s rectum, which was later opened and drained. The abscess cavity filled in with scar tissue, which became covered with a thin layer of epithelium, causing at the time itching and irritation. Inability to contract the sphincter muscle causes plaintiff to be unable to control the passage of gas or liquid stool. Dr. Bryant thought that the plaintiff’s condition when he examined him in 1961 was probably slightly more severe than it had been in 1946. This was not because the area of scar tissue would have changed since 1946, but because of loss of tissue tone associated with plaintiff’s increased age which would result in a somewhat impaired contractability of muscles, so the sphincter muscle would give him more trouble at the later date, although the basis of his present trouble was in existence in 1946. The official record of the operation in 1944 reporting no sequelae is inconsistent with the known and established facts, since the opening and draining of a secondary abscess in 1944 constituted sequelae shortly following the hemorrhoidectomy, as would the formation of scar tissue.

(c) Dr. Bryant testified that plaintiff’s rectal incontinence from scar tissue could be attributed to either damage to the sphincter muscle during the operation for hemorrhoids, or upon incision of the abscess, or erosion from the abscess and infection following the operation, or the formation of scar tissue in the abscess cavity. The scar tissue would have continued to form for several months following the hemor-rhoidectomy in 1944. Judging from plaintiff’s history and the physical examinations performed by Dr. Bryant in 1961 and 1963, he expressed the opinion that the plaintiff suffered from rectal incontinence at the time of his release in 1946. Surgical correction of the plaintiff’s condition is possible, but involves an unacceptable risk that the plaintiff might become completely incontinent as a result rather than be cured.

(d) In Dr. Bryant’s opinion, the plaintiff would have had a great deal of difficulty in performing some of his duties as a Naval surgeon adequately following his operation and at the time of his release, or thereafter, because he would have to interrupt his surgical duties in the operating room to repair to the bathroom, thereby reducing his effectiveness in many situations. The plaintiff’s condition would have interfered with efficient performance of plaintiff’s duties in a reasonable manner as a Naval surgeon in 1946, according to the witness.

(e) The basic conclusions as to the plaintiff’s condition stated in Dr. Bryant’s testimony at trial were contained in his written report which was considered by the Correction Board, except that the testimony amplified the details and expressed the opinion that the disabling condition existed at the time of plaintiff’s release in 1946.

29. Testimony of Dr. Murphy.

(a) Dr. Murphy, whose written report as to his examination of the plaintiff was furnished to the Correction Board for consideration (see finding 27, supra), testified at the trial of the case in this court. Dr. Murphy graduated from Syracuse University College of Medicine in 1910, and has practiced medicine and surgery for 53 years. He has never served in the armed forces, but has acquired general familiarity with the criteria for determining fitness or unfitness for duty of a Naval officer as of January 1946. The following paragraphs (b) through (d) recapitulate his testimony before the court.

(b) Dr. Murphy examined the plaintiff on May 28, 1963, for complaints of inability to control his bowels and emission of gas. The plaintiff recited to Dr. Murphy the history of the condition. Upon examination Dr. Murphy found tags on either side of plaintiff’s anus where hemorrhoids had been previously sutured and resected. Plaintiff’s anus was too relaxed; it did not pucker or contract, and provided no resistance to digital examination. Firm, hard surgical scar tissue was found at a 5 o’clock position on plaintiff’s internal sphincter muscle, about two inches in length. The scar tissue replaced plaintiff’s internal sphincter muscle tissue since the 1944 operation. Pus from the perineal abscess following plaintiff’s hemorrhoidectomy eroded the adjoining tissue and, when opened and drained, left a nondraining fistula which caused permanent weakness and incontinence of the anus. The abscess cavity was packed with gauze after the incision and draining, and by the time the pus was drained it had already damaged the sphincter and caused a fistulous tract of scar tissue. Plaintiff’s degree of incontinence cannot be expressed in terms of percentage, but he passes gas and semi-liquid stools without being aware of it. As a result the plaintiff suffers from an anxiety neurosis because he is always uncertain about his bowel control.

(c) The scar tissue became more pronounced within a year or two following plaintiff’s operation in 1944 and was probably stabilized in 1945. Plaintiff’s sphincter muscle is probably somewhat more relaxed now than at the time of his release in 1946, but the general condition is about the same. The plaintiff has become more aware of it and resigned to it. He has been advised to practice dietary control in order to prevent soft stools, and to avoid activities involving straining or lifting. Proper diet and a properly functioning digestive system will make plaintiff feel fairly comfortable with, his condition, but he will not be completely relieved. There is no surgical cure for the condition, nor would suppositories be effective.

(d) Plaintiff’s condition would be more incapacitating for a surgeon than for a general medical practitioner. As a surgeon he would not be reliable in an emergency, for he would get a nervous reaction from passing gas in the middle of an operation. He would be unable to lift patients or turn them over, or climb up and down ladders on a ship. A civilian surgeon with his condition could not perform his duties in a reasonable manner, and plaintiff was handicapped in performing his Naval duties, although he was able to go through the necessary maneuvers.

(e) The basic conclusions as to the plaintiff’s condition stated in Dr. Murphy’s testimony at trial was contained in his written report which was considered by the Correction Board, with some additional details which do not significantly alter Dr. Murphy’s written conclusion that the plaintiff’s condition has not changed since his operation in 1944, and that the weakness in plaintiff’s sphincter control, described as a “mild type of disability”, was present then and now, and will remain.

30. Conclusion. On a preponderance of the evidence in the administrative record as augmented by evidence received at the trial of this action before the court, the plaintiff has failed to establish that the physical condition from which he suffered at the time of his release from active duty in January 1946 was such as to disqualify him from the performance in a reasonable manner of his official duties as a Naval surgeon.

CONCLUSION OE 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 the plaintiff is not entitled to recover and the petition is dismissed. 
      
      The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
     
      
      The plaintiff’s career before and after his service stint is not particularly germane to the present inquiry. Suffice findings 3 and 15 to say, at no time has he engaged in the private practice of medicine or surgery in the common meaning. His assertion of his intention to do so after his discharge being prevented by his war-caused condition does not square with the record of his long predilection for “industrial medicine”. During his entire professional career on either side of his military service he has been primarily a compensation examiner in the full-time employ of either Aetna Casualty & Insurance Co. (to 1949), or the New York State Bureau of Workmen’s Compensation (presently), aside from a brief session with Aetna in 1943 in charge of the medical program on a large construction operation in Chicago. The record does not reveal how much surgery has been involved in plaintiff’s industrial medicine background, or precisely what that field of medical practice entails, but it would appear from the plaintiff’s testimony that its requirements nicely accommodate the partial reetal incontinence from which he suffers in that he can master his own time and activities.
     
      
       Plaintiff was transferred to the Retired Reserve of the Naval Reserve on January 1,1960, pursuant to 10 U.S.C. 1376 (a).
     
      
       Section 725.608 of Title 32, Code of Federal Regulations, specifically prohibits a member of the Physical Evaluation Board, the Physical Review Council, Naval Retiring Board or Board of Medical Survey which acted in the case of the party claimant from acting as a member of the Physical Disability Review Board in the same case. The spirit inhering in this regulation was violated by the author of the Surgeon General’s advisory opinion being a member of the Physical Review Council.
     
      
       “Basically, therefore, it would appear that inability to perform the duties which an officer could normally be called upon to perform should be the determining factor as to whether an officer should be retired.
      “Reserve officers in specialist categories who entered upon active duty without restriction from a physical standpoint as to where or what type of duty they might be ordered to perform, appear to be analogous to staff officers in the regular service. In determining whether such reserve officers are disabled to an extent warranting retirement, the same standards should be applied as are applicable to staff officers in the regular service, i.e., ability to perform all their duties at sea, and in the case of Marine officers at sea and in the field.” [Emphasis added] Court Martial Order No. 12^-1946, Nov. 12, 1946.
     