
    392 F. 2d 619
    JAMES A. BECKHAM v. THE UNITED STATES
    [No. 379-61.
    Decided April 19, 1968]
    
      
      Paul B. Harmel, attorney of record, for plaintiff.
    
      Arthur E. Fay, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before CoweN, Chief Judge, Laramore, Dureee, Davis, ColliNS, SkeltoN, and Nichols, Judges.
    
   Dureee, Judge,

delivered the opinion of the court:

This is an action for disability retirement pay based upon provision of section 402 of the Career Compensation Act of 1949. Plaintiff is claiming disability retirement pay from March 15, 1952 (date of final separation from the Navy) to the present on the ground that he incurred a service-connected disability during his first tour of duty (8/15/37 to 12/9/45) which was aggravated by his second tour of duty (10/28/50 to 3/15/52) to the extent that plaintiff was unfit for active duty within the meaning of the Act.

A brief statement of the facts and procedural posture of the case is as follows: .

Plaintiff spent two tours of duty in the Navy and in both instances the separation was voluntary. Upon both separations he was found physically fit for active duty. In neither instance did the terminal examination include a gastrointestinal (Gr.I.) X-ray series. Yet, plaintiff was granted a 20 percent disability rating by the Veterans Administration, effective as of November 30,1949, for a duodenal ulcer which the VA expressly conceded was serviee-eonneeted. In addition, when plaintiff entered the Navy for his second tour of duty (October, 1950), he was appointed with a waiver for a physical disability labeled as “gastritis, chronic and sequelae of”.

Then, in 1955 (subsequent to his second release from duty at which time he was again found physically fit), plaintiff was found not qualified for active duty pay status in the Navy Reserve because of his prior medical record of gastrointestinal ailments, and a recent medical examination (January, 1955) which found “peptic ulcer diathesis and duodenal ulcer”. The record was shortly thereafter amended to reflect plaintiff’s gastrectomy (July, 1955) in which 60 percent of his stomach and four inches of his intestines were removed. Although the operation was the culmination of plaintiff’s history of gastro-enterological ailments beginning some time during his first tour of duty, it reinforced the Navy’s conclusion that plaintiff was unfit for active pay status in the Navy Reserve.

On January 23,1959, plaintiff requested that his military records be changed to reflect the fact that he was unfit for active duty at the time of his second separation because of a service-connected disability (duodenal ulcer) and eligible for disability retirement pay pursuant to the provisions of the Career Compensation Act of 1949.

The Board for the Correction of Military Records, upon the advisory opinion of a Physical Evaluation Board (which was approved by the Physical Review Council), denied this request, although neither the Physical Evaluation Board nor the Physical Review Council specified the standard upon which the determination of fitness of plaintiff was based. Plaintiff then brought suit in this court for disability retirement pay alleging that the decisions of the medical boards and the Navy Correction Board were arbitrary, erroneous in law, and not based upon substantial evidence.

The court rendered a decision (James A. Beckham v. United States, 179 Ct. Cl. 539, 375 F. 2d 782, pet. for cert. dismissed, 389 U.S. 1011 (1967)), and held essentially three things: (1) the Navy waiver statute (see fn. 3, sufra) only applied to “civilian incurred” injuries; (2) the Navy’s definition of “organic defect” is reasonable; and (3) the Trial Commissioner should have allowed a trial for the introduction of new evidence.

Before trial, however, plaintiff filed a motion requesting withdrawal of the remand to receive new evidence; and for determination of plaintiff’s claim on the existing record. Over defendant’s objection, an appropriate order of court, dated November 28, 1967, was entered, granting plaintiff’s motion.

Thus, in the present posture of the case, there are now two questions before this court:

(1) Whether plaintiff had waived any rights to disability retirement pay he might have had, because he accepted an appointment for his second tour of duty which was granted “with a waiver” ?

(2) Assuming the first question is answered in the negative, then, whether the Correction Board acted unlawfully, arbitrarily or without substantial evidence when it determined, in effect, that plaintiff was not entitled to disability retirement pay at the time of his separation from the Navy in 1952?

I

As pointed out above, we have already held in the first Beckham case, supra, that the applicable Navy waiver statute only applies to “civilian-incurred” disabilities. In other words, the statute does not take away an “officer’s rights to benefits for an injury or disease initially incurred while on active duty”. [Id. at p. 3]

We now find on the basis of the evidence of record that plaintiff’s disability or disease was service-incurred. There is no Board finding to the contrary. Defendant tacitly concedes this point, but simply argues that this is not the real issue. The Veterans Administration has also found that plaintiff’s disease was service-incurred. Its conclusion, when based on a medical examination as here, is entitled to great weight. Hutter v. United States, 170 Ct. Cl. 517, 523, 345 F. 2d 828, 831 (1965).

Consequently, the first Beckham decision is controlling on the waiver issue, and we hold that plaintiff did not waive any rights upon accepting the appointment for his second tour of duty “with a waiver”.

II

With regard to the second issue, we also agree with plaintiff, and find that he was unfit for active duty and entitled to disability retirement pay within the meaning of the Career Compensation Act of 1949 at the time of his separation from the Navy in March of 1952. The Board’s conclusion to the contrary is either based on an erroneous interpretation of the applicable statute and regulation or not supported by substanial evidence, or both.

Entitlement to disability retirement pay under the provisions of this Act requires, among other things, proof of a permanent service-connected disability which renders the claimant unfit to perform the duties of his rank, grade or rating. In addition, it must be shown that such disability was incurred while claimant was on active duty.

To determine whether or not a member of the Armed Forces is entitled to disability retirement is the function of the Secretary of the particular service involved in the first instance, and this determination is entitled to finality. The mere fact that this court might disagree with the Secretary’s determination in any given instance does not mean that we then have authority to overturn the Secretary’s determination. See, e.g., Johnston v. United States, 157 Ct. Cl. 474, 475-76 (1962). But where there is a showing that the Board (acting for the Secretary) did act arbitrarily, capriciously, without support of substantial evidence or contrary to applicable statutes and regulations, this court has an obligation to entertain a claim for disability retirement pay. See, e.g., Cooper v. United States, 178 Ct. Cl. 277 (1967). Such is the situation in this case.

As a preliminary matter, we note with dismay that none of the Naval Boards commented upon or even referred to the regulation of the Navy that established the standards by which fitness or unfitness for active Naval service was to be determined. They could well have decided the case as if they were not controlled by any legal standard of fitness, and as if determination of this fact was within their unlimited discretion. Needless to say, this is not the law; the Navy Board, like other administrative bodies, is bound by its own regulations. See, Hamlin v. United States, ante, at 137, and cases cited therein.

Assuming, however, that the Correction Board did use the correct legal standard, there is no satisfactory showing on the record that the Board’s determination was based upon a balanced consideration of all the evidence available and presented. A naked conclusion and mere recitation that the opinion is based upon all of the evidence without an analysis of the evidence in writing (as here), is inimical to a rational system of administrative determination and ultimately inadequate. See, Smith v. United States, 168 Ct. Cl. 545, 553 (1964); cf., Loral Electronics Corp. v. United States, 181 Ct. Cl. 822, 832, 387 F. 2d 975, 980 (1967): “In these circumstances [summary and sketchy findings and reasoning by the administrative Board] we cannot give as much deference to the Board’s determination as if it had given detailed findings to support, and fuller explanations of the reason for, its conclusion. We are compelled to look to the record without much help from the Board’s opinion, and therefore, without the need to accord as great weight to its determination as we otherwise would. Cf., Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-69 (1962) ”.

It is not necessary, however, to dwell unduly on these administrative deficiencies since we conclude that, if the correct legal standard is applied, and due weight is given to all the evidence of record, plaintiff must be found unfit for active service on the date of his release from active duty, March 15, 1952, and entitled to disability retirement pay. In deciding otherwise, the Correction Board must either have ignored the governing regulations, or acted upon unsubstantial evidence, or both.

The Career Compensation Act of 1949, supra, requires, inter alia, proof of a permanent service-connected disability which renders the claimant “unfit to perform the duties of his rank, grade or rating”. The then applicable regulation provided that the “specific rule for fitness for duty is ability to perform assigned duty”. Manual of the Medical Dept., U.S. Navy (1951 ed.) Article 15-45 (6).

This means that an officer must be able to perform any assigned duty which the normal, healthy officer can perform, although he need not be able to perform under extraordinary conditions. See, Harris v. United States, 177 Ct. Cl. 538 (1966). “The Naval standards * * * require * * * that he [Naval officer] be physically capable of performing those [duties] which he would normally be called upon to perform in such manner ‘as to reasonably fulfill the purposes of his employment’ ”. Id. at 552. In other words, the Navy cannot shift an officer from assignment to assignment until a job is located that is not affected by the officer’s physical disability.

A related but independent facet of the disability standard involves the extent of time an officer is able to perform his assigned duty. Certainly, if a Naval officer can work only for two hours a day or perhaps only for two weeks at a time, he is not fit for active duty, even if his work during his productive periods is considered “satisfactory”. Performance, then, must be analyzed both qualitatively and quantitatively in order to determine whether such performance constitutes performance of “assigned duty” within the meaning of the Navy Manual, supra.

The crucial inquiry here is whether the degree of plaintiff’s ailments rendered him unable to perform his assigned duty within the proper meaning of the statute and regulations. It is clear to us that, in 1952, plaintiff’s gastric and duodenal ailments were of the type, and were sufficiently severe to require his retirement with disability pay.

In the first instance, plaintiff’s infirmities were officially recognized by the Navy as enough for retirement, if present in adequate degree. A regulation on physical standards for entry into the Naval service indicated that several of plaintiff’s specific gastroenterological ailments would each be cause for rejection of new applicants. Although this procurement standard does not apply in full force to the different issue of retention on active duty or retirement for physical disability (see, Towell v. United States, 150 Ct. Cl. 422, 434-36 (1960)), a Navy regulation does indicate that due regard should be given to the specific provisions of the procurement regulations for purposes of retention, the difference being that the standards are not to be as strictly applied for retention as for appointment purposes. This same result, i.e., that one set of physical standards is used for both appointment and retention, but applied more stringently in the former, is effected by explicit regulation in the Army. See, e.g., Boraiko v. United States, 146 Ct. Cl. 814, 819-20 (1959).

This means, at the least, that abdominal infirmities of plaintiff’s type would be the foundation for disability retirement if sufficiently severe. Plaintiff’s case fits this measure. Upon a balanced view of the circumstances of this case, one must conclude that plaintiff’s gastro-intestinal illness rendered him unable to perform in such mamier and extent as to reasonably fulfill the purposes of his employment.

Plaintiff was called to active duty (for his second tour) as a Naval Reserve Officer on October 28,1950 at Iris own request. He was assigned to three months’ temporary duty in Sasebo, Japan. His duty there consisted of eight-hour watches at the communications crypto board. Although there is nothing extraordinary or hazardous about these duties, plaintiff’s assumption of his duty station was marked with the onset of nervousness and tension which quickly increased in severity, and was eventually characterized by a resumption of symptoms of nausea, stomach pain, vomiting of blood (hema-temesis) and blood in stools (melena). As a consequence of his illness, plaintiff’s duty in Japan was prematurely terminated (January 17, 1951) and he was returned to the Commander, Service Force, Pacific Fleet, at Honolulu. A letter from plaintiff’s Commanding Officer, explaining the premature termination, advised “that he [Beckham] not be sent to a ship or station where hospitalization is not immediately available”. On January 23,1951, plaintiff was sent to Tripler Hospital, Honolulu, for a gastro-intestinal examination. The medical record indicated that the duodenal bulb was deformed and noted further: “Impression: Probable chronic duodenal ulcer disease without demonstration of an active ulcer at this time”. Plaintiff was placed on a restricted dietary schedule, and was directed to take medication consisting of Banthine four times daily, and Amphojel after each meal.

Plaintiff was returned to duty, this time, as Assistant Postal Officer of the Pacific. Among other duties, this new position required plaintiff to participate in an oral presentation program two to three times per week. Again, the assignment was not extraordinary or especially hazardous. The oral presentations were designed to acquaint visiting high-ranking officials with the functioning of the Service Force-At these presentations, plaintiff always delivered his presentation last, since he was a lieutenant, whereas the other six participants were all captains. It is apparent from his testimony before the Physical Evaluation Board that plaintiff suffered unduly from nervousness and tension during these meetings. The symptoms which had prematurely terminated his tour of duty in Japan reappeared, and again plagued plaintiff, e.g., nausea, stomach, pain and vomiting of blood. Once again plaintiff’s assigned duty was interrupted, and once again he was sent to Tripler Hospital. The results of this examination, August 30, 1951, indicated that the duodenal bulb was “grossly deformed” and noted: “Impressions : Disease of the duodenal bulb. Ulcer is probably present although it was not demonstrated on this examination”.

When plaintiff’s active duty expired in March, 1952, he decided not to continue because, in his own words, “I had been suffering with my stomach so much, that I found that the best thing for me to do would be to terminate my active duty when my time was up”. (This decision was made in spite of plaintiff’s obvious desire to remain in the Navy). Consequently, he was ordered to Treasure Island, San Francisco, for a physical examination for purposes of separation. At this time neither a G.I. X-ray series nor an examination of his ulcer was given. On the medical report under Item 73, “Significant or Internal History”, there were no notations whatsoever by the examining doctors in spite of plaintiff’s clear history of abdominal ailments. Yet, it was on the basis of this examination that plaintiff was separated from the Navy with a finding that plaintiff was physically fit for active duty. This finding was made in spite of the fact that during the short interval from October 1950 to March 1952, plaintiff had been assigned to two duty stations, and in both cases, the anxiety generated by these jobs caused him to suffer moderate to severe episodes with his ulcerated duodenum. It should be reiterated that the jobs to which plaintiff was assigned were not extra-hazardous, but represented reasonable and ordinary jobs which make up the bulk of Naval duty assignments. It should also be pointed out that plaintiff’s disability and consequent inability to withstand the pressure of his position and function normally for any length of time is abnormal for a healthy male of his age (33 years old). This is not a case like that presented in Johnston v. United States, supra, at pp. 477-78, where the court stated: “While plaintiff suffered various maladies, the record does not require a conclusion that these afflictions effected, at the time of plaintiff’s release, any significantly greater degree of debilitation than would pertain in most fifty-eight year old males performing similar duties”.

It is important here to note further that a physical disability which renders an officer unfit for duty is not always manifest at the precise time of separation. Consequently, we must look to manifestations of the disease or ailment appearing both before and after the point in time of separation.

In Grubin v. United States, supra, for example, the court held that a claimant was entitled to disability retirement for gastro-intestinal ailments even though the disease (ulcera-tive colitis) was quiescent at the time of separation. In Farrar v. United States, 113 Ct. Cl. 1008, 358 F. 2d 965 (1965), the court also held that plaintiff was entitled to recover disability pay even though claimant’s disability (a disc injury) was not correctly diagnosed until well after he was separated. The officer’s symptoms at the time of separation (and for some time thereafter) were wrongly attributed to other causes believed to be temporary or not disabling. The court found, however, that the officer was actually disabled at the time of release.

This is the same situation as in the case at bar. Although plaintiff was found to be physically fit at the time of separation, subsequent events prove that the disease was still there. Perhaps plaintiff himself was not aware at that time of the extent of his disability.

Plaintiff here, as in Grubin, supra, expected that upon return to civilian life he could contain the ulcer. In both cases, however, such hopeful expectations were not fulfilled. Plaintiff Beckham attempted to bring his ulcer under control by maintaining a strict diet, continuing to take medication, and by retiring to the relatively tranquil life of a rural mail-carrier on a 414-hour-per-day job. In spite of these efforts, plaintiff’s symptoms not only did not abate, but actually grew worse. The continued existence of plaintiff’s duodenal ulcer was corroborated by a VA gastro-intestinal examination on August 21,1952, and again by a private examination in October, 1953. The X-ray report of the radiologist (part of the latter examination) stated:

* * * There is a persistent clover leaf deformity of the duodenal bulb and in the base of the bulb just distal to the pylorus there is a crater measuring eight millimeters in diameter. This crater is surrounded by radiating mu-cosal folds.

On the basis of this latter examination, plaintiff’s private physician, Dr. Riddell, recommended a stomach resection. Plaintiff, however, desired that further attempts be made to heal the ulcer medically. For approximately two years thereafter, plaintiff adhered to a treatment of Banthine, during which time he experienced frequent and continuous flare-ups of his ulcer. On April 11, 1955, the Bureau of Medicine and Surgery, responding to plaintiff’s request for attachment to a pay unit in the Naval Reserve, indicated the following physical impairments: “peptic ulcer diathesis, duodenal ulcer”. On July 6, 1955, because of increasingly severe symptoms, plaintiff underwent surgery for the removal of a duodenal and a peptic ulcer. This gastric resection required the removal of 60 percent of his stomach and four inches of his intestine.

On the basis of this subtotal gastrectomy, plaintiff was rated 40 percent disabled by the Veterans Administration.

In sum, this record adds up to convincing proof that plaintiff had a permanent case of an ulcerative duodenum as well as attendant difficulties in a sufficiently serious form that he was permanently disabled on that account, and that he was not able to perform the assigned duties of his rank at the time of separation from active duty in 1952. In deciding otherwise, the Correction Board must either have ignored or misinterpreted the governing regulations and statute, or acted upon unsubstantial evidence, or both. On the basis of the evidence before us, we are justified in setting its determination aside as unwarranted.

We hold that plaintiff is entitled to disability retirement pay from March 15,1952 to the present time, and judgment is entered to that effect. The percent of disability (30 percent or more), and the amount of recovery will be determined pursuant to Buie 47 (c) (2).

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner William E. Bay, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, an officer in the inactive Naval Keserve, sues for disability retirement pay as provided under title IY of the Career Compensation Act of 1949, 63 Stat. 816, 10 U.S.C. 1201, et seq. Specificially, he contends that his release from active duty in March 1952, should have been by reason of physical disability, and that the Board for the Correction of Naval Becords acted erroneously, arbitrarily and contrary to the evidence in failing to make the requested change.

2. The plaintiff was born January 25, 1919, and entered the military service as an enlisted man in August 1937. In February 1944, he was commissioned an ensign and by July 1945, he had attained the rank of lieutenant junior grade (temporary). He was released from active duty on December 9,1945, not by reason of physical disability. At that time, his temporary officer appointment was terminated and he was given permanent enlisted status of chief quartermaster. This concluded his first period of active service. Thereafter, in 1946, he accepted an appointment as lieutenant junior grade in the Naval Beserve.

3. Plaintiff’s medical history relevant to his present claim is also concerned with events which occurred during this first period of active service. In 1944, the plaintiff was serving as a damage control officer aboard the destroyer escort, S.S. De Long and under date of December 6,1944, there is an entry in the ship’s medical log showing the plaintiff’s transfer to the Everglades Dispensary, USNTC, Miami, Florida, for observation and disposition. Also noted therein is the fact that plaintiff had been complaining of stomach pains for the prior 6 weeks, with no relief having been attained through bismuth preparations.

4. A gastrointestinal examination performed on December 9,1944 at the Everglades Dispensary resulted in negative findings. The diagnosis of “no disease” was given and the patient was returned to duty.

5. On February 15, 1945, plaintiff was again admitted to the Everglades Dispensary with a diagnosis of chronic gastritis. A gastrointestinal examination was again performed, the results of which were negative. The diagnosis was changed to “gastritis, acute,” glucotcen Hcl capsules were prescribed, and patient was returned to duty on February 23, 1945.

6. On June 4, 1945, plaintiff was examined and found physically qualified for duty as a salvage diver. On July 5, 1945, plaintiff was found physically fit for promotion to the rank of lieutenant junior grade (temporary). On November 6, 1945, plaintiff was found qualified for release from active duty, with no defects noted. In each instance, the report of the physical examination, while noting the plaintiff’s history of gastritis, failed to show that any gastrointestinal examination was given.

On November 7,1945, the plaintiff appeared before a board of medical examiners, consisting of three Medical Corps officers. The board noted the plaintiff’s history of illness or injury, which, as far as here pertinent, showed: “2-15-45 DU (Gastritis, Chr. (8) ”. The board found no defects considered disqualifying, that the plaintiff was fit to perform active duty at sea or on foreign service, and that he was physically qualified for release from active duty.

7. Immediately after his release from active duty, plaintiff made application to the Veterans Administration for a disability pension, which application was denied on January 3, 1946. Disallowance was based upon the record of the plaintiff’s physical examination prior to release, which (the Veterans Administration noted) failed to show the existence of either gastritis or any then-existing malaria.

8. On November 4, 1946, plaintiff wrote a letter to the Veterans Administration appealing the adverse decision. The letter noted that plaintiff’s claim was based solely upon the gastritis, with which he was then suffering, and that this condition, which he contended seriously restricted his activities, did not manifest itself until September 1944, and was not detected at the time of separation from service since no gastrointestinal examination was then performed.

9. In November 1946, plaintiff began to undergo treatment by private physicians for what had been diagnosed as a stomach ulcer. An X-ray taken November 21,1949 confirmed the earlier diagnosis and on February 21,1950, the Veterans Administration, pursuant to a physical examination given plaintiff on January 3,1950, made similar findings. Plaintiff was granted a 20 percent disability rating, effective as of November 30,1949, for a duodenal ulcer which the Vetei’ans Administration expressly conceded was service-connected.

10. On September 21, 1950, plaintiff requested recall to active service. Pursuant to orders dated October 11, 1956, plaintiff was examined at the Naval Recruiting Station, Nashville, Tennessee, for the purpose of determining his physical qualification for extended active duty. In a Report of Medical History (Standard Form 89), filled out and certified by plaintiff on the same date, plaintiff indicated that he had been hospitalized because of “stomach trouble” in February 1945. Plaintiff’s report also indicated that he had been receiving disability compensation from the Veterans Administration from November 3,1949, because he “had been suffering with stomache [sic] ”. Plaintiff also indicated that he had not consulted or been treated by physicians within the past 5 years and that he had not treated himself for illness. Plaintiff also indicated that he had no present physical or mental complaints. The examining physician indicated that plaintiff “has had no gastrointestinal difficulties in past 8 months”. The Report of Medical Examination (Standard Form 88) indicated: “Defects noted: None”. The Report of Medical Examination also indicated that no further specialist’s examination was indicated. Plaintiff was found to be qualified for extended active duty.

11. (a) By letter of November 27, 1950, the Department of the Navy advised the plaintiff as follows:

* * # % sfc
1. Vou are advised that a waiver of the physical defect or defects listed below, which are not considered disquali-lying for active duty, found upon your examination for active duty and from review of your medical history, is hereby issued pursuant to reference (a) :
(a) gastritis, chronic, and sequelae of 2. If you have not already reported for physical examination in accordance with active duty orders, bring this waiver with you and present it to the medical officer conducting your examination.
‡ $

11. (b) On January 10, 1951, in a letter superseding and canceling the one quoted above, plaintiff was advised that the Navy had granted him a waiver for his physical defects. Paragraph 2 of this communication stated:

*****
2. You are advised that a waiver of the physical defect or defects (includes history of) listed below, which could be disqualifying for original appointment but not considered sufficiently disqualifying for active duty, found upon examination for active duty and from review of your medical history, is hereby issued pursuant to reference (a): [Act of December 18,1942, 56 Stat. 1066]
(a) gastritis, chronic, and sequelae of
* * * % *

11. (c) The purpose of the Act of December 18, 1942, 56 Stat. 1066, was to provide that the existence of or aggravation of a pre-existing disease or injury which could be waived upon entry upon duty, should not be translated into a ground for retirement with pay when that pre-existing disease or injury is civilian-incurred. Insofar as here relevant, the statute reads as follows:

* * * *
§ 853c-5. Appointment and retirement of persons with physical disabilities; existing rights preserved. Persons who are otherwise qualified but who have other than organic physical defects which will not interfere with the performance of general or special duties to which they may be assigned, may be issued appointments in the Naval and Marine Corps Reserve and ordered to active duty, and officers now in the Naval and Marine Corps Reserve may likewise be ordered to active duty under similar circumstances: Provided, That any officer of the Naval Reserve or the Marine Corps Reserve hereafter appointed or ordered to active duty upon waiver of physical disability shall not be eligible for retirement benefits by reason of the disability for which waiver was required at the time of appointment or orders to active duty or by reason of any aggravation of such disability: Provided further, That such officer, however, shall be eligible for retirement benefits as provided by law for a disability incident to the service: And provided further, That except for retirement based upon disability for which waiver is required under this section and section 853c-6 of this title, or aggravation of such disability, this section and section 853-6 of this title shall not be construed to deprive any person of any right or benefit authorized under any other Act.
:j« ‡ ❖ #

11. (d) Plaintiff’s orders required that he report to San Francisco, and from there he was assigned to the Staff Commander Service Force, Pacific Fleet, stationed at Honolulu, Hawaii. He remained there for about 8 days, and his duty during such time consisted of maintaining watch in a decoding room before a unit designated as a crypto board. The noise associated with this duty induced a state of nervousness and tension.

12. Plaintiff was thereafter temporarily assigned to Commander Service Squadron Three, stationed in Japan, where his duty again involved watches before decoding apparatus. While there, he began to experience severe stomach distress and, as a consequence of this, his temporary duty in Japan was terminated and he was returned to the Commander Service Force, Pacific Fleet (COMSEEVPAC) at Honolulu. A letter accompanying his return, dated 14 January 1951, from Commander Service Squadron Three to Commander Service Force, Pacific Fleet, reads as follows:

*****
Subj: LTJG James A. Beckham, 355464/1105, USNK— health of
1. During period 24 November 1950 to 14 January 1951 subject officer has suffered severly [sic] at various times from ulcers. Although his performance of duty has been satisfactory it is believed that LTJG BECKHAM would have _ demonstrated a better performance had he been physically fit.
2. It is recommended tbat be not be sent to a ship or station where hospitalization is not immediately available.
*****

13. On January 23, 1951, plaintiff was sent to Tripler Army Hospital. His medical record at COMSEBVPAC bears the following entry:

*****
1-23-51: Patient sent to x-ray at Tripler Army Hospital for G.I. series: Patient has had peptic ulcer symptoms since ’44. Has had he[m]atemesis and melena in past. Upper G.I. series in ’49 and l-’50 revealed duodenal ulcer. Now has had recurrent symptoms since 1 Dec. 1950. This for evidence of active peptic ulcer.
Findings: G.I. SERIES: Esophagus and stomach are within normal limits. The duodenal bulb is deformed. No definite ulcer crater is noted. Mucosal folds within the duodenal bulb are somewhat larger than normal.
Impression: Probable chronic duodenal ulcer disease without demonstration of an active ulcer at this time.
*****

14. On February 6,1951, plaintiff was examined and found physically qualified for promotion to lieutenant, USNR. Under “defects noted” there appears the following: “Waiver: (a) gastritis, chronic, and sequelae of — ”. This entry was signed by J. T. Mangan, M.D.

15. On May 15, 1951, the following entry was made to plaintiff’s medical record: [signed by Dr. J. T. Mangan]

*****
This patient is taking the following medication because of past history of Duodenal Ulcer — proven by xray in civil life. See entry of 23 Jan 1951 in H8 from Tripler Army Hospital.
Medication is as follows:
BANTHINE HYDROCHLORIDE (Searle) 50mgm every four hours.
# íji íji :Ji

16. Under date of September 8, 1951, there appears the following notation to plaintiff’s medical record:

Results of G.I. Series at TAH as follows:
G.I. Series. The swallowing function is normal. No abnormalties are demonstrated in the esophagus or stomach. The duodenal bulb is again grossly deformed. In the center of the bulb on the posterior wall, a fleck of retained barium with radiating folds was demonstrated on some of the films but not constantly. IMPRESSIONS: Disease of the duodenal bulb. Ulcer is probably present although it was not demonstrated on this examination.
* ❖ * * J$e

17. Upon his return to Honolulu, plaintiff was assigned the duties of assistant postal officer for the Pacific area. In this capacity, he handled all correspondence, assumed responsibility for complaints and participated in oral presentation programs.

18. In January 1952, upon inquiry by his superiors, plaintiff elected not to extend his tour of duty. It appears that his decision resulted largely from the stomach distress with which plaintiff was suffering. In February 1952, he was ordered to report to the Naval Receiving Station at Treasure Island in San Francisco, California, where he received a terminal physical examination on Marché, 1952. He was found to be fit for release from active duty with no defects noted. However, plaintiff did not receive a gastrointestinal examination at this time. There is no indication on the report that the medical examiners took note of plaintiff’s history of stomach trouble. He was released from active duty, not by reason of physical disability, on March 15,1952.

19. By letter dated March 11,1952, plaintiff requested the Veterans Administration to reinstate the disability compensation benefits which he had waived upon reentering the Navy in 1950. In the Veterans Administration Report of Medical Examination for Disability Evaluation, dated August 21, 1952, plaintiff summarized his complaint in the following terms:

* ifc * jk jk
bfi on my stomach. Feels like a nawing [sic] hurting in the uper part of my stomach.
* % sf: *

20. On August 21, 1952, plaintiff was given a special gastrointestinal examination by the Veterans Administration with a diagnosis of chronic duodenal ulcer. However, no X-rays appear to have been taken. He was given a 20 percent disability rating effective as of March 16,1952.

21. In October 1953, plaintiff consulted Dr. Douglas H. Biddell, and upon the latter’s direction, a gastrointestinal X-ray series was performed October 15,1953, which indicated the existence of a duodenal ulcer. On the basis of this finding, coupled with plaintiff’s prior history, Dr. Biddell recommended a stomach resection. However, no surgery was undertaken at this time since plaintiff favored an attempt at medicinal correction. For approximately 2 years thereafter, plaintiff tadhered to a treatment of Banthine, during which time he experienced frequent and continuous flareups of his ulcer.

22. On February 24, 1954, plaintiff underwent a special annual physical examination to determine his fitness for retention in the Naval Beserve. Although aware of plaintiff’s stomach trouble and of his recent gastrointestinal examination, the examining medical officer, nevertheless, reported that plaintiff had no noted defects. It was recommended that plaintiff be classified as a B-2 risk and that he be retained in the Naval Beserve, subject to review by higher authority.

23. On March 15, 1954, plaintiff was given a disability evaluation physical examination by the Veterans Administration. In the report of this examination, plaintiff certified as follows:

if» •[* if» #}» »fC
My stomach isn’t bothering me now, it did two weeks ago, about every 4 months I get to where food will not stay on my stomach, when my stomach gets empty it hurts. I take milk between meals and when I go to bed.

A special gastriontestinal examination was given plaintiff on that date. The report of this special examination is as follows:

*****
SPECIAL G.I. EXAMINATION: By: Dr. Trimble Sharber, 3-15-54.
History — States that his condition has run its usual course which consists of periodic epigastric burning or gnawing pain which tends to come on when the stomach is empty, namely, ten o’clock, three o’clock, and some times at night. Three o’clock in the afternoon is the usual time he is apt to have the greatest amount of trouble. As a rule this condition is helped by taking milk in. anticipation of the onset of the pain and he has adopted this as a routine measure, regardless of the amount of trouble he is having at a particular period. On certain occasions, however, he has greater intensity and frequency of pain than on other occasions and during such tunes he is apt to have some vomiting in association with the pain. He has not, however, had vomiting that is of the type as to suggest obstruction. These bouts come on at approximately one monthly intervals and last from one to four days, and he says that about every three to four months such a bout is more severe than at other times, although he does not notice any particular seasonal accentuation of his difficulty. He reserves the use of banthine and other medication for periods of excessive pain.
He is engaged as a rural mail carrier, beginning work at about seven and ending it around noon-time, with the rest of the day free to do as he chooses. He spends his time in good weather working about his home.
His eating habits are regular and he follows a bland diet. He has had no evidence of bleeding in recent years. His weight is about nine pounds less than his optimum weight of approximately the last year. It is recorded on the Form 10-2545.
Examination — This is a healthy appearing, well developed and normally nourished young white man. TTig color is good. His mouth is negative. The abdomen is flat. There is no epigastric or other tenderness; no muscle spasm; no masses or palpable organs.
Diagnosis: Peptic ulcer.

Plaintiff was notified by letter from the Veterans Administration, dated April 15,1954, that his disability rating of 20 percent was continued.

24. On January 6, 1955, plaintiff was again examined by Navy doctors with a view towards determining his qualification for active pay status in the Naval Reserve. Although plaintiff was noted as having an inactive duodenal ulcer, he was nevertheless regarded by the examining Navy physician to be physically qualified for active pay status and physically qualified to perform active duty at sea or on foreign service. The report of this examination contains the following comment:

* * * # *
* * * Developed “stomach trouble” in 1944 while in Navy — Hosp. twice — no ulcer on x-ray. Discharged 1946. Symptoms returned & since 1948 has been drawing 20% disability. Ulcer since found on x-ray._ No hx of hematemesis, melena or tarry stools. Surgical Rx never advised. Last G.I. series 1954 Feb. showed scarring. Now has moderate epigastric discomfort of 6-8 mo. On Rx c banthine & diet.
* * Jfc * *

25. Nevertheless, on April 11, 1955, the Bureau of Medicine and Surgery, responding to plaintiff’s request for attachment to a pay unit in the Reserve, informed plaintiff:

*****
2. You are advised that in his endorsement of reference (a) the Chief, Bureau of Medicine and Surgery has indicated the following physical impairments in your case: (a) peptic ulcer diathesis, duodenal ulcer. As a result of these findings you have been given a physical risk classification of “C”.
3. This classification does not disqualify you for retention in an active status in the Naval Reserve, and should you be ordered to extended active duty a waiver is hereby granted for these impairments.
* * * jfr *

26. On July 6, 1955, plaintiff underwent surgery for the removal of a duodenal ulcer and a peptic ulcer. This operation (gastric resection) required the removal of 60 percent of his stomach and 4 inches of intestine. The operating physician, Douglas H. Riclclell (who had originally diagnosed plaintiff’s condition on October 15,1953, as stated in finding 21), reported that plaintiff’s symptoms during the period 1953-1955 had been increasingly severe. On June 29, 1955, plaintiff was admitted to St. Thomas Hospital in Nashville, Tennessee, after experiencing an acute attack (of a week’s duration) during which he was unable to retain any food. A gastrointestinal examination performed that day established the existence of two ulcers — a gastric ulcer, as well as the previously diagnosed duodenal ulcer. The operation of July 6, 1955 followed. Plaintiff was discharged from the hospital on July 13,1955.

27. On May 26,1955, shortly prior to his operation, plaintiff had requested the Navy to reconsider his application for assignment to a Reserve unit in a pay status. On August 2, 1955, without knowledge of plaintiff’s opei’ation, the Bureau of Medicine and Surgery recommended that a gastrointestinal series be conducted in plaintiff’s case in order to facilitate the re-evaluation of his qualifications. Responding to this request, plaintiff advised the Navy of his operation and enclosed a letter by his physician, Dr. Riddell, which read, in part, as follows:

# % * #
I will be glad to have a followup gastro-intestinal series if the Navy Department so desires but think as far as I am concerned it is unnecessary at this time. I see no reason why Mr. Beckham cannot carry on any activity that he did before operation and actually should be in better physical shape than he has been in several years. I do not place any limitations on the activity or the diet of these patients with gastric resections for duodenal ulcers. He is not incapacitated in the least and I would recommend him for duty of any type.
*****

Despite this endorsement, the Bureau of Medicine and Surgery adhered to its earlier determination. Plaintiff was advised by letter of November 4,1955, that he was “not physically qualified for attachment to, or association in a pay status with, a pay unit of the U.S. Naval Reserve.” This determination was based upon his medical record and the report of physical examination conducted January 6, 1955 (see finding 24). Because of his physical defect resulting from the gastrectomy, plaintiff was deemed to be physically qualified for duty incident to mobilization only, and in such event, a waiver would be granted in connection with the gastrectomy.

28. Effective August 8, 1955, plaintiff’s request for increased disability benefits (40 percent) was granted by the Veterans Administration, after a further physical examination had been accomplished.

29. In response to a request by the Navy for volunteers for active service, plaintiff submitted his application on November 27, 1956. On December 14, 1956, the Chief of Naval Personnel advised plaintiff that officers with a “C” medical risk classification were not then being accepted for active duty, and for that reason, plaintiff’s application could not be approved.

30. On January 23,1959, plaintiff, through his designated counsel (the American Legion), submitted his application to the Board for the Correction of Military Records, requesting that his record be corrected to reflect the existence of a major disability at the time of his release to inactive duty in March 1952. In a letter dated August 30, 1958, addressed to Congressman Ross Bass, plaintiff stated, in part:

* * * * *
My claim is that this tour of duty (October 1950 to March 1952) [aggravated] my stomach to such an extent it caused another Ulcer and was the direct cause of my having the resection. * * *
% * * * #

31. By letter of March 12, 1959, plaintiff was directed to proceed to the U.S. Naval Hospital, Charleston, South Carolina, for a physical examination and review by a medical board, preliminary to a hearing before the Physical Evaluation Board. In its clinical report, the medical board summarized the findings in the record, noting the significant medical facts bearing upon plaintiff’s claim. This included references to plaintiff’s gastrointestinal difficulties during 1944-1945 (see findings 3, 4, and 5); the X-ray findings based upon examinations conducted at Tripler Army Hospital in 1951 (see findings 13, 15 and 16); previous X-rays taken during his civilian status in 1949-1950 (see finding 9); Ms medical history subsequent to release — 1953 X-rays confirming presence of an ulcer (see finding 21); continuation and aggravation of his symptoms which failed to respond successfully to medicinal treatment (see finding 21) ; and his gastrectomy in July 1955 (see finding 26), including reference to his postoperative condition wMch plaintiff stated was characterized by weakness and easy fatigability.

32. On May 14,1959, plaintiff and his Navy counsel, Commander Charles H. Gibbs, appeared before the Physical Evaluation Board. Based upon the evidence presented at tMs hearing (which developed the facts noted in finding 30), the Board’s recommended findings as of March 1952, concluded that plaintiff was fit to perform the duties of his rank.

33. On May 15, 1959, a rebuttal was submitted by plaintiff’s counsel, which noted, inter alia, the following:

* * * * *
* * * the Physical Evaluation Board has found the Party fit for duty as of 15 March 1952. It is difficult to reconcile such a finding with Army Regulations 40-503, Section XVI, paragraph 59, page 48, wMch lays down as a non-acceptable defect “ulcer of the stomach or duodenum if diagnosis is confirmed by the usual laboratory procedure or authentic history ox gastric or duodenal ulcer”. Certainly the Party’s ulcer was confirmed by the usual laboratory procedures in connection with the 1947 VA entitlement and the record is replete with items establishing authentic history of gastric or duodenal ulcer before and after that time. * * *

34. On June 19, 1959, the Physical Review Council indicated its concurrence with the recommended findings of the Physical Evaluation Board, and so advised the Board for the Correction of Naval Records. However, neither the Physical Evaluation Board nor the Physical Review Council specified the standard upon which the determination of fitness of the plaintiff was based. A letter addressed to Senator Kefauver on June 19,1959, written by Captain J. F. Tucker for the Physical Beview Council, states, in part:

* ❖ # * *
* * * entitlement to disability benefits under laws administered by the Navy depends upon a determination that the member concerned is unfit to perform the duties of his office, grade, rank or rating by reason of physical disability incurred while entitled to receive basic pay, that is, on active duty. A member of the naval service who incurs a physical disability while on active duty is not necessarily unfit within the meaning of the law. Members who suffer disease or injury while on active duty with residual disabilities, which do not unfit them for service, are eligible for compensation from the Veterans Administration for any impairment of function due to such disabilities.
In this case, there is evidence to show that Lieutenant Beckham had symptomology compatible with a duodenal ulcer while on active duty; however, this of itself did not, in the opinion of the Physical Beview Council, make him unfit to perform his duties. There are serving on active duty in the naval service many officers and enlisted men with histories of duodenal ulcers and they are serving satisfactorily.
*****

35. On July 29, 1959, plaintiff was advised by the Board for the Correction of Naval Becords that:

* * * * *
Preliminary examination of your naval record and review of the material submitted by you fails to establish a sufficient basis for further action by this Board.
It is not the intention of the Board to imply that a subsequent review of your case may not be had. As stated above, however, the burden is on you to show that an error or in j ustice has occurred.
In the absence of additional material evidence, no further action on your application is contemplated.
* * * ' * *

38. On September 25, 1959, responding to plaintiff’s counsel (Gene L. Fattig, Behabilitation Commission, The American Legion, Washington, D.C.), the Board for the Correction of Naval Becords stated, in part:

The letter which you enclose from Dr. Douglas H. Riddell, was carefully considered but is. not deemed sufficient to establish that Lieutendant [sic] Beckham was unfit for service on the date of his release to inactive duty. * * *
*****
CONCLUSION OP LAW

On the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover disability retirement pay from March 15, 1952 to the present time, and judgment is entered to that effect. The percent of disability (30 percent or more) and the amount of recovery will be determined pursuant to Rule 47 (c) (2). 
      
       63 stat. 802, 37 U.S.C. § 272 (1952) (now 10 U.S.C. § 1201 (1959)).
     
      
       Since we accept our Commissioner’s findings of fact with only, slight modifications (although we do not accept his conclusion of law), it is not necessary to repeat that thorough recitation of facts here.
     
      
       The waiver was issued pursuant to provisions of the Act of December 18, 1942, 56 Stat. 1066. This Act was subsequently repealed by the Act of July 9, 1952, 66 Stat. 505.
     
      
       See, findings of fact, 3-9, inclusive.
     
      
       Although the permanence of plaintiff's disability may not have been subject to conclusive proof at the time of separation, there Is no doubt as to the permanence of the disability after the Sub-total Gastrectomy. In such case, plaintiff should have been put on the temporary disability retired list <| 402 of the Career Compensation Act of 1949, now 10 U.S.C. § 1202) up until the time of the operation, with a Anal determination of permanent disability made after the operation (pursuant to § 402 of the Act, 10 U.S.C. § 1210).
     
      
       The Naval Correction Board, a Physical Evaluation Board and the Physical Review Council all concluded that plaintiff was “physically fit” on the date of his release from active duty.
     
      
      
        Manual of the Medical Dept., U.S. Navy (1951), 15-20: “(2) The following conditions are causes for rejection: * * * (f) Chronic diseases of the stomach or Intestine or a history thereof, Including such diseases as peptic ulcer, regional ileitis, ulcerative colitis and diverticulitis”.
      Paragraph 2175 of the Manual of the Medical Dept., U.S. Navy (1945) provided that chronic diseases of the stomach or intestines, a gastroenterostomy or blood in the feces unless shown to be due to unimportant causes, were disqualifying for enlistment or appointment.
      Paragraph 15-7 of the Manual of the Medical Dept., U.S. Navy (1952) listed as causes of rejection chronic gastritis, gastric resection; ulcer of the duodenum when diagnosis is confirmed by X-ray examination or authenticated history.
     
      
      
         Manual (1951), supra, para. 15-2: “Purpose of physical standards * * * is to procure and retain, personnel who are physically fit”. [Emphasis supplied.]
     
      
       The fact that plaintiff chose to separate voluntarily does not lessen the Government’s obligation to pay disability retirement if plaintiff actually had an incapacitating disease at the time of separation. See, Grubin v. United States, 166 Ct. Cl. 272, 333 F. 2d 861 (1964).
     
      
       For example, on June 29, 1955, plaintiff was admitted to a hospital after experiencing an acute attack of a week’s duration, during which time he was not able to retain any food.
     