
    LEO H. LEVINE v. THE UNITED STATES
    [No. 482-53.
    Decided January 31, 1956]
    
      
      Mr. Harry Rosenblatt for the plaintiff.
    
      Mr. Martin E. Rendelmm, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   Laramoee, Judge,

delivered the opinion of the court:

Plaintiff, a former major in the Army of the United States, claims disability retirement pay from May 23,1946, on which date he was honorably separated from the service by reason of physical disability found to have resulted from the natural progression of a disease which existed prior to entry on active duty, and not to have been aggravated by service.

All the facts in this case have been stipulated and there is no issue with respect thereto. Plaintiff, a physician, entered on active duty in the Army of the United States on March 9,1942, with the rank of 1st lieutenant and thereafter by the time of his release from active duty on May 23, 1946, had achieved the rank of major.

By letter dated July 5,1945, plaintiff requested a physical examination in order to determine his physical capacity for continued military service. On such examination at Headquarters Port Terminals, New York Port of Embarkation, it was determined that plaintiff was suffering from rheumatoid spondylitis. It was recommended that Major Levine be hospitalized at the nearest regional office for observation, treatment and appropriate disposition. A board of medical officers was thereafter convened at the Begional Hospital, Fort Jay, New York, on August 1,1945, and plaintiff’s illness was diagnosed as arthritis lumbar dorsal spine and sacroiliac joints, cause undetermined, severe, nonvenereal, chronic (Marie Strumpell type); that he had become unfit for duty on July 19,1945; that the incapacity originated in 1940; that the cause of incapacity was incident to service, existed prior to entry on active duty, and was permanently aggravated by active duty, and that the defect was permanently incapacitating for general service. The board recommended that plaintiff be returned to duty in a permanent limited service status within the continental limits of the United States.

By letter dated January 2, 1946, plaintiff requested that he be relieved from active duty. After a terminal physical examination on January 25,1946, it was recommended that plaintiff be hospitalized for observation and appropriate disposition. Accordingly plaintiff was admitted to the Tilton General Hospital, Fort Dix, New Jersey, and a Medical Disposition Board was convened which concurred with the diagnosis previously made by the board of medical officers, except that it was found that the disease was not incurred in line of duty. The board further recommended that he appear before an Army Betiring Board.

An Army Betiring Board was accordingly convened on February 28, 1946, and made the following findings: (1) That Major Levine was permanently incapacitated for military service because of arthritis, lumbar spine, and both sacroiliac joints, moderate, cause undeterminate, nonvenereal, chronic, Marie Strumpell’s disease; (2) that the cause of incapacity was not an incident of service; (3) that the cause of. incapacity was permanently aggravated by military service and; (4) that incapacity for active service was the result of an incident of service.

The findings of the Army Betiring Board were then reviewed by the Surgeon General’s Office which advised that it did not concur in the board’s findings in that (a) the record revealed that the officer had been having back pains for seven years;, (b) that there were no incidents of pertinent, local injury and that his symptoms were then minimal; (c) that a finding of permanent aggravation by military service was not qualified in this case by reason of a definite history of previous back complaints; (d) that it appeared that the present incapacity was mainly due to the natural progression of a preexisting disease; (e) that symptoms then were no more severe than they were before the one acute exacerbation while a transport surgeon. The record of the board’s proceedings was returned by the Adjutant General to the Army Retiring Board for reconsideration. A board was then convened for a reconsideration of plaintiff’s case and after further proceedings made findings which concurred in the findings of the, first board. Two members of the board (of a total of five) dissented in that they found that incapacity was not service aggravated and was not an incident of service. Plaintiff was thereafter honorably separated from service on May 23,1946, by reason of physical disability.

The proceedings of both boards were again reviewed by the Surgeon General’s office which thereafter advised that it again did not concur in the board’s findings for the reasons (1) that discrepancies existed between the findings of the orthopedic consultant at Tilton General Hospital and the findings of the medical witness before the reconvened board as to the degree of disability, and (2) that the orthopedic consultant at Tilton General Hospital had made a diagnosis of probable Marie Strumpell’s disease, whereas the findings of the reconvened board did not include the type of arthritis. Accordingly, the following recommendations were made by the Surgeon General: (a) That further study was indicated at an arthritic center to clarify the diagnosis and for final evaluation; (b) that the Army Retiring Board proceedings in Major Levine’s case be held in abeyance; (c) that he be hospitalized in an Army or Navy Hospital for further study and final evaluation; (d) that he thereafter appear before a Medical Disposition Board, and if the findings of that disposition board concurred with the findings of the Army Retiring Board, all board proceedings would then be forwarded to the Surgeon General’s Office; (e) that if the findings and recommendations of the disposition board were not the same as those of the Army Retiring Board, he then be ordered before another Army Retiring Board for consideration and appropriate action.

By letter dated J une 24, 1946, plaintiff was advised of the Surgeon General’s decision and requested to proceed to the Army and Navy General Hospital at Hot Springs, Arkansas, for further study. By response dated July 5,1946, plaintiff refused further hospitalization at Hot Springs, Arkansas, and advised that if further orthopedic or other type opinion was required he would arrange therefor at his own expense in New York or vicinity.

By letter dated August 22, 1946, plaintiff was informed that by order of the Secretary of War the findings of the Army Retiring Board dated May -2, 1946 were disapproved and that he was therefore not eligible to receive retirement pay benefits. However, plaintiff was therein offered a choice of (1) reexamination at the end of six months, (2) recall to active duty for reexamination at the end of six months from the date of his last appearance before an Army Retiring Board, (3) immediate recall to active duty in a limited service status for reexamination at the expiration of six months from the date of his last appearance before an Army Retiring Board, (4) or review of his case by the Secretary of War’s Disability Review Board; By letter dated September 14, 1946, plaintiff declined further participation in further retirement board proceedings.

On January 31, 1947, plaintiff requested a review of the Army Retiring Board’s proceedings by the Secretary of War’s Disability Review Board. That board after review of all the previous proceedings affirmed the previous administrative action of the Secretary of War consisting of the disapproval of the findings of the reconvened Army Retiring Board, and in addition thereto made the following findings: (a) That Major Levine was permanently incapacitated for active service; (b) that cause of incapacity was arthritis lumbar spine and both sacroiliac joints, moderate, cause undetermined, chronic, nonvenereal, Marie Strumpell’s disease; (c) that the approximate date of origin of the incapacity was before March 9, 1942; (d) that the officer became incapacited for active service January 25, 1946; (e) that cause of the incapacity was not an incident of service; (f) that cause of incapacity had not been permanently aggravated by military service; (g) that incapacity for active service was not the result of an incident of service; (h) that the disability wats- not incurred in combat with an enemy of the United States; (i) that any increase in symptoms or additional physical findings while on active duty as a commissioned officer were recurring manifestations of a preexisting disease not beyond the natural progress thereof. These findings were thereupon appi’oved by direction of the President on April 8, 1947.

On July 5, 1950, plaintiff applied for a rehearing by the Army Disability Review Board on the ground that existing regulations of the Army provided that a progression of rheumatoid arthritis could be considered to be service connected, which provisions it was alleged were not taken into account by the Army Retiring Board. However, a board of officers convened to consider this additional evidence found that plaintiff had not presented new, pertinent and material evidence bearing upon his case which, if previously considered, could reasonably have been expected to cause a finding other than the decision hereinbefore rendered. The board concluded that a formal hearing was not justified and recommended that the request for a rehearing be denied. The findings and recommendation were approved by direction of the President on July 25, 1950.

On February 9,1951, plaintiff again applied for a rehearing by the Army Disability Review Board on the ground that the strenuous nature of his duties as a transport surgeon and the resultant exposure to severe weather conditions constituted a sound basis for his contention that the progression of his rheumatoid arthritis was incident to his military service. His application was granted and a board was convened on April 26,1951, at which time Major Levine appeared with counsel. On that same date the board approved the action of the Secretary of War’s Disability Review Board dated April 8, 1947, and concurred in the findings of that board denying plaintiff’s request for disability retirement pay, which findings were approved by direction of the President on Api'il 26,1951.

Action was thereafter instituted in this court by the filing of a petition on July 29,1958.

The first question presented is: Did plaintiff’s claim accrue more than six years prior to the date of filing his petition ?

Pursuant to 28 IT. S. C. § 2501 an action in the Court of Claims must be brought within six years of the date of its accrual. Within the meaning of that section an action first accrues on the date when all events have occurred which fixed the liability, if any, of the United States and upon which date a potential claimant becomes entitled to sue thereon. Rosnick v. United States, No. 193-54, decided April 5, 1955, rehearing denied July 12,1955. [132 C. Cls. 1.]

This case is indistinguishable from the cases of Rosnick v. United States, supra; Girault v. United States, ante, p. 135; Duff v. United States, ante, p. 161; and Odell v. United States, No. 145-55, decided November 8, 1955, [134 C. Cls. 634] in which this court held that a cause of action accrues on the date of the action of the Secretary of War in denying disability retirement benefits.

In the instant case the first date upon which any possible liability of the United States to plaintiff was August 22, 1946, the date plaintiff was notified by the Secretary of War that he was not eligible to receive disability retirement benefits. It was then that plaintiff could have brought suit in this court and at this point his claim accrued. Pendency of administrative remedies does not toll the statute of limitations. Cuiffo v. United States, 131 C. Cls. 60, and cases cited therein.

Plaintiff’s petition was not filed until July 29, 1953, more than six years after the accrual of his claim. We must, therefore, hold that plaintiff’s claim is barred by the statute of limitations.

In the light of the foregoing, it is not necessary to discuss other questions raised in this case. Plaintiff’s petition is dismissed.

It is so ordered.

Madden, Judge; Whitaeier, Judge; LittletoN, Judge; and JoNes, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the facts as stipulated by the parties and the briefs and argument of counsel, makes findings of fact as follows:

1. On February 10, 1941, plaintiff applied for appointment and extended active duty in the Officer’s Eeserve Corps, Army of the United States, and was physically examined on that date. Plaintiff was found to be 49 pounds over the standard weight for Ms height and age and by reason thereof Ms application was rejected. Plaintiff was reexamined on March 19, 1941, and was found to be 16 pounds over the maximum weight allowance. A waiver thereof was requested. However, the Surgeon General after review of plaintiff’s case, on April 10, 1941, disqualified the plaintiff for appointment because of overweight. Plaintiff was again examined on January 8, 1942, and he was found physically qualified for general service with a waiver of 18 pounds over standard weight for height and age.

2. Plaintiff was appointed a first lieutenant, Medical Corps, Army of the United States on February 20, 1942, assigned service number O 439056, accepted the appointment on February 24, 1942, and entered on active duty March 9, 1942.

3. On July 5,1945, plaintiff submitted a letter to the Commanding General, New York Port of Embarkation, where he was stationed, requesting a physical examination in order to determine Ms physical capacity for further military service. Plaintiff was examined at Headquarters Port Terminals, New York Port of Embarkation. X-ray of the spine showed calcification of the anterior ligament of the lumbar spine and to a lesser extent of both lateral ligaments with narrowed lumbo-sacral articulation and obliteration of the .sacroiliac articulation. Impression: Rheumatoid spondy-litis. It was recommended that Major Levine be hospitalized at the nearest regional office for observation, treatment, and appropriate disposition.

4. Plaintiff was admitted to the Regional Hospital, Fort Jay, New York, on July 10, 1945. A board of medical officers was there convened on August 1, 1945, and found that the diagnosis in his case was arthritis, lumbar dorsal spine and sacroiliac joints, cause undetermined, severe, non-venereal, chronic (Marie Strumpell type); that he had become unfit for duty on July 19, 1945; that the incapacity originated in 1940; that the cause of incapacity was incident to service, existed prior to entry on active duty, and was. permanently aggravated by active duty; and that the defect was permanently incapacitating for general service. The. board recommended that he be returned to duty in a per-inanent limited service status within the continental United States. Plaintiff was returned to duty as qualified for permanent limited service on August 13,1945.

5. On January 2, 1946, plaintiff submitted a letter to the Commanding Officer, Camp Shanks, New York, requesting that he be relieved from active duty. His request was approved January 11,1946, and plaintiff was given a terminal physical examination on January 25,1946, at the Separation Center, Fort Dix, New Jersey. It was recommended that plaintiff be hospitalized for observation and appropriate disposition.

6. Plaintiff was admitted to Tilton General Hospital, Fort Dix, New Jersey, January 25, 1946, and a Medical Disposition Board was convened in his case on February 5, 1946. The board made findings to the effect that the diagnosis in plaintiff’s case was arthritis, lumbar-spine and both sacroiliac joints, moderate, cause undetermined, nonvenereal, chronic, Marie Strumpell’s disease, incurred not in line of duty, existing prior to service and aggravated by military service. The board further recommended that he appear before an Army Retiring Board.

7. An Army Retiring Board was convened February 28, 1946, at Tilton General Hospital and made the following findings: (a) That Major Levine was permanently incapacitated for military service because of arthritis, lumbar spine and both sacroiliac joints, moderate, cause undetermined, nonvenereal, chronic, Marie Strumpell’s disease; (b) that the cause of incapacity was not an incident of service; (c) that the cause of incapacity was permanently aggravated by 'military service; (d) that incapacity for active service was the result of an incident of service.

The board recommended that he be placed on permanent limited duty within the continental limits of the United States at a fixed installation.

8. The proceedings and findings of the Army Retiring Board were reviewed by the Surgeon General’s Office. By letter dated April 3, 1946, that office advised that it did not concur in the board’s findings for the reasons (a) that the record revealed the officer had been having back pains for seven years; (b) that there were no incidents of pertinent local injury and that his symptoms were then minimal; (c) that a finding of permanent aggravation by military service was not qualified in this case by reason of a definite history of previous back complaints; (d) that it appeared the present incapacity was mainly due to the natural progression of a preexisting disease; (e) that symptoms then were no more severe than they were before the one acute exacerbation while a transport surgeon.

9. The record of the board’s proceedings was returned to the Army [Retiring Board, Tilton General Hospital, Fort Dix, New Jersey, by the Adjutant General for reconsideration on April 3,1946. Accordingly, a board was again convened on May 2,1946, for a reconsideration of the plaintiff’s case and after further proceedings made the following findings: (a) That Major Levine was permanently incapacitated for active service by reason of arthritis, lumbar-spine, sacroiliac joints, bilaterally, chronic; (b) that the incapacitating defect originated prior to March 9,1942; (c) that the cause of incapacity was not an incident of service; (d) that the cause of incapacity was permanently aggravated by military service ; (e) that the incapacity for active service was the result of an incident of service. It was further recommended that the officer be placed on permanent limited duty.

Two members of the board out of a total of five members dissented from the findings and expressed the opinion that the incapacity was not service aggravated and was not an incident of service.

10. Major Levine was discharged from Tilton General Hospital on March 2,1946, was placed on terminal leave from March 3 to May 22,1946, inclusive, and was honorably separated from service on May 23, 1946, by reason of physical disability.

11. The proceedings of the Army [Retiring Boards convened on February 28, 1946 and May 2, 1946, respectively, were reviewed by the Surgeon General’s Office. By communication dated May 24,1946, that office advised that it did not concur in the board’s findings for the reasons (a) that there were discrepancies between the findings of the orthopedic consultant at Tilton General Hospital and the findings of the medical witness before the reconvened board as to the degree of disability; and (b) that the orthopedic consultant at Tilton General Hospital had made a diagnosis of probable Marie Strumpell’s disease, whereas the findings of the reconvened board did not include the type of arthritis. The following recommendations were therein made: (a) That further study was indicated, at an arthritic center to clarify the diagnosis and for final evaluation; (b) that the Army Retiring Board proceedings in Major Levine’s case be held in abeyance; (c) that he-be hospitalized at anArmy or Navy hospital for further study and final evaluation; (c) that he thereafter appear before a medical disposition board and if the findings of the said disposition board were the same in all details as those of the Army Retiring Board, all board proceedings would then be forwarded to the Surgeon General’s Office; (d) that if the findings and recommendations of the disposition board were not the same in all details as those of the Army Retiring Board, he then be ordered before another Army Retiring Board for consideration and appropriate action.

12. By communication dated June 24, 1946, plaintiff was advised of the decision and requested to indicate whether he would proceed to the Army and Navy General Hospital at Hot Springs, Arkansas, for further study.

13. By letter dated July 5,1946, plaintiff declined further hospitalization at Hot Springs, Arkansas, and stated that if' further orthopedic, or other type opinion, was required-lie would arrange therefor at his own expense in New York or vicinity.

14. By communication dated August 22,1946, plaintiff was informed that by order of the Secretary of War the findings of the Army Retiring Board, dated May 2, 1946, were disapproved and that he was therefore not eligible to receive retirement pay benefits. Plaintiff was therein given the choice of: (a) reexamination at-the end of six months at a general hospital at no expense to the Government; (b) recall to active duty for reexamination at the expiration of six months from the date of his last appearance before an Army-Retiring Board; (c) immediate recall to active duty in a limited service status for reexamination at the expiration of six months from the date of his last appearance before an Army Retiring Board; or (d) review of his case by the Secretary of War’s Disability Board.

15. By letter dated September 14, 1946, plaintiff declined participation in further retirement board proceedings and requested that he be informed of the grounds upon which the findings of the Army Retiring Board were disapproved. Plaintiff was advised thereof by communication dated' September 24,1946.

16. By application dated January 31, 1947, plaintiff requested a review of the Army Retiring Board’s proceedings by the Secretary of War’s Disability Review Board.

17. The Secretary of War’s Disability Review Board was convened on April 8, 1947. The board affirmed the administrative action consisting of the disapproval by the Secretary of War, dated August 15, 1946, of the findings of the reconvened Army Retiring Board and in addition made the following findings: (a) That Major Levine was permanently incapacitated for active service; (b) that cause of incapacity was arthritis, lumbar spine, and both sacroiliac joints, moderate, cause undetermined, nonvenereal, chronic, Marie Strumpell’s disease; (c) that the approximate date of origin of the incapacity was before March 9, 1942; (d) that the officer became incapacitated for active service January 25, 1946; (e) that cause of incapacity was not an incident of service; (f) that cause of incapacity had not been permanently aggravated by military service; (g) that incapacity for active service was not the result of an incident of service; (h) that the disability was not incurred in combat with an enemy of the United States; (i) that any increase in symptoms or additional physical findings while on active duty as a commissioned officer were recurring manifestations of a preexisting disease not beyond the natural progress thereof.

18. The findings of the Secretary of War’s Disability Review Board were approved by direction of the President on April 8, 1947. By letter dated April 28, 1947, plaintiff was informed that the review of his case by the Secretary of War’s Disability Review Board found him to be permanently incapacitated for active service not as a result of an incident of service.

19. By letter dated July 5, 1950, plaintiff, through, counsel, applied for a rehearing of his case by the Army Disability Review Board on the ground that governing Army regulations provided that a .progression of rheumatoid arthritis could be considered to be service connected, which provisions it was alleged were not taken into account by the Army Retiring Board.

20. On July 25, 1950, a board of officers was convened to consider the additional evidence submitted by the plaintiff. The board found that Major Levine had not presented new, pertinent and material evidence bearing upon his case which, if previously considered, could have reasonably been expected to-cause a finding other than the decision rendered at the original hearing. The board concluded that a formal hearing was not justified and recommended that the request for a rehearing be denied. The findings and recommendation were approved by direction of the President on July 25,1950. Plaintiff was notified of the findings of the board by communication dated July 27, 1950.

21. On February 9,1951, plaintiff submitted, through counsel, an application for a rehearing by the Army Disability Review Board on the grounds that the strenuous nature of his duties as a transport surgeon and his exposure to severe weather conditions constituted a sound basis for his contention that the progression of his. rheumatoid arthritis was incident to his military service. The Army Disability Review Board was convened on April 26,1951, at which time Major Levine appeared with counsel.

22. On April 26, 1951, the board approved the actions of the Secretary of War’s Disability Review Board dated April 8, 1947, and made the following findings: (a) That Major Leo H. Levine O 489056, MC-AUS, was permanently incapacitated for active service; (b) that the cause of incapacity was arthritis, lumbar spine, and both sacroiliac joints, moderate, cause undetermined, nonvenereal, chronic, Marie Strumpell’s disease; (c) that approximate date of origin of incapacitating defect was before March 9, 1942; (d) that officer became incapacitated for active service January 25, 1946; (e) that cause of such incapacity was not an incident of service; (f) that cause of incapacity had not been permanently aggravated by military service; (g) that incapacity for active service was not the result of an incident of service; (h) that officer’s disability was not incurred in combat witb an enemy of the United States and did not result from the explosion of an instrumentality of war in line of duty.

In addition the board concluded tbat any increase in symptoms or additional physical findings while on active duty as a commissioned officer were recurring manifestations of a preexisting disease not beyond the natural progress thereof and did not constitute permanent aggravation.

23. The findings of the Army Disability Eeview Board were approved by direction of the President on April 26, 1961. By letter dated May 29, 1951, plaintiff was advised by the Army Disability Eeview Board that he was considered to be permanently incapacitated for active service, and that the incapacity was not the result of an incident of service.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are 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 therefore dismissed.  