
    403 F. 2d 246
    ANTONIO A. VERSACI v. THE UNITED STATES
    [No. 104-65.
    Decided November 15, 1968]
    
      
      Paul B. Earmel, attorney of record, for plaintiff.
    
      Charles M. Munneohe, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before Cowen, Chief Judge, Lakamoee, Duefee, Davis, Collins, Skelton and Nichols, Judges
    
   PeR Curiam :

This case was referred to Trial Commissioner Saul Richard Gamer with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed on June 28, 1968, wherein he recommended that plaintiff is entitled to recover disability retirement pay, computed on the basis of a disability rating of 40 per centum, from the day following the date of his removal from the Temporary Disability Retired List, less such deductions as may be appropriate, with judgment to be entered for plaintiff and the amount of recovery to be determined in further proceedings pursuant to Rule 47(c). Although defendant obtained extensions of time for the purpose of filing exceptions to the commissioner’s opinion and report, neither side filed exceptions and on October 1, 1968, the parties filed a stipulation for entry of judgment, based upon the recommendation made by the commissioner, stipulating that judgment be entered for plaintiff in the sum of $18,034.46.

Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, it hereby adopts the same, as hereinafter set forth, together with the stipulation of the parties filed October 1, 1968, as the basis for its judgment in this case. Therefore plaintiff is entitled to recover and judgment is entered for plaintiff in the sum of $18,034.46.

OPINION OE COMMISSIONER

Gamer, Commissioner:

On September 1, 1955, plaintiff, a doctor and Army captain, was, after separation from the service for physical disability, placed on the Temporary Disability Retired List. While on such list he received disability retirement pay. However, on June 30, 1960, plaintiff was, upon a finding that he was then deemed physically fit for active duty, removed from the list. His disability retirement pay thereupon ceased. Plaintiff then applied to the Army Board for Correction of Military Records to correct Ms records to show he was actually physically unfit on June 30, 1960, with a permanent disability rating of 40 percent. However, on December 16,1961, the Board, after a hearing, concluded that the finding that plaintiff was fit for duty at the time he was removed from the Temporary Disability Retired List was neither erroneous nor unjust, and accordingly recommended that plaintiff’s application be denied. On February 10, 1965, the Secretary of the Army approved the Board’s findings and recommendation and denied plaintiff’s application, and on March 30, 1965, plaintiff filed his petition herein, claiming such action to be arbitrary, without substantial evidentiary support, and legally erroneous.

Prior to his tour of duty in the Army (July 1, 1953-September 1,1955) which led to his being placed on the Temporary Disability Retired List, plaintiff had, from July 1, 1943, to December 22,1945, served on active duty in the Navy as an enlisted man. He had incurred an ulcer during such N'avy service, for which, after release from active duty, he received' a 10 percent disability rating from the Veterans Administration.

After his release from such active Navy duty, plaintiff completed his studies at medical school. He then became a hospital intern and thereafter a resident.

In 1950, the so-called Medical Registrants Act (amending the Selective Service Act of 1948) was passed (Pub. L. No. 779, Sept. 9, 1950, 64 Stat. 826) in response to the Services’ needs arising from the outbreak of the Korean conflict. The Act authorized the President to require, on the basis of requisitions submitted by the Department of Defense, the special registration of certain persons (i.<?., below age fifty) qualified in specified medical and allied specialist categories and needed by the Services, with persons called thereunder to be “liable for induction for not to exceed twenty-one months of service in the Armed Forces.” (Sec. 1)

Because of his ulcer condition, plaintiff had been classified in the draft as physically disqualified (4-F). However, on December 24,1952, the Assistant Secretary of Defense, Anna Rosenberg, issued a memorandum to the Secretary of the Army pertaining to “Physical Standards for Physicians * * which stated that “It shall be the policy of the Department of Defense to consider all physicians * * * potentially acceptable for military service, provided they can reasonably be expected to be productive in the Armed Forces,” and that such policy permitted “the re-evaluation of certain physicians * * * who as a result of previous physical examinations have been classified as physically disqualified because of substandard physical findings.” The memorandum went on to provide that “In general, those with static impairment and those with chronic progressive or recurrent diseases, if asymptomatic or relatively so are considered to be acceptable for service.”

Promptly after the issuance of this new policy, sometimes referred to as the “Eosenberg standards,” plaintiff’s draft board ordered him to report for an Armed Forces Physical Examination, which was had on January 7, 1958. Plaintiff’s history showed that, during the approximately eight-year period from its inception in 1945 to the physical examination in 1953, his ulcer had hemorrhaged three times; first in 1946, while he was a medical student (and which was during his strenuous, concentrated and accelerated naval medical training program), and when plaintiff’s ulcer condition was first confirmed; the second, three years later, in 1949, while he was a hospital intern (during a period of unusually arduous duty, intensified by a polio epidemic in the community); and the third time, again some three years later, in 1952, while he was a hospital resident (apparently induced by cortisone treatments for an asthmatic condition, and considered as a minimal episode). This last episode had occurred only four months prior to the physical examination. During the three-year periods between the hemorrhages, plaintiff had been relatively symptom-free and was able to control his condition successfully with occasional antacid medication and by maintaining a restricted diet. Except for the hemorrhage periods themselves and the following periods of convalescence, plaintiff’s condition did not seriously interfere with his work, and at the time of his examination he was again quite symptom-free, although still observing diet and medication requirements. However, despite the “Eosenberg standards,” and the then apparently quiescent state of plaintiff’s ulcer, the examining physician, after noting plaintiff’s history of three hemorrhages and that plaintiff was “still on treatment,” found plaintiff to be disqualified for military service (the Eosenberg memorandum also stating that the new policy promulgated should not “be construed to mean” that the persons covered thereby should be “assigned to duties * * * which are beyond the limitations imposed by their physical capabilities”).

Shortly thereafter the Army’s Adjutant General, by memorandum of January 12, 1953, advised the various Commanders in Chief that, under the Eosenberg standards, “examining physicians and reviewing authorities” were permitted “to use their discretion in the application of existing physical standards if the special registrant can be reasonably expected to be physically capable of performing military service and to remain so for a reasonable period of time.” The memorandum listed certain “conditions * * * previously considered as a cause for rejection [which] may now be considered as acceptable for appropriate assignment consideration.” One of such conditions listed was “Peptic ulcers, unless complicated by obstruction or verified history of repeated hemorrhage.”

On March 9, 1953, the Medical Section, First Army, in reviewing plaintiff’s case, concluded that plaintiff should serve, finding him “to be physically qualified for general military duty with waiver for duodenal ulcer.” Apparently, the Section did not feel that plaintiff’s case showed a “history of repeated hemorrhage” within the meaning of the Adjutant General’s memorandum, there also being no indication of obstruction complications.

Instead of thus being subject to the draft, plaintiff promptly thereafter applied to the Army for extended active duty, and on April 17,1953, was commissioned as First Lieutenant, Medical Corps, United States Army Eeserve. The appointment was subject, however, to a medical examination showing qualification for such service. Accordingly, plaintiff underwent another physical examination. Again the physician conducting such examination concluded (after a consultation with a gastroenterologist) that, because of the hemorrhage history, plaintiff was “not qualified for General Service,” but once more the Medical Section found him so qualified “with waiver for history of duodenal ulcer,” and plaintiff was shortly thereafter ordered to report for active duty on July 1,1953 (his YA 10 percent compensation award ceasing upon such date). Two months later, plaintiff found himself in Korea.

Although the Korean Armistice had been signed on July 27,1953, shortly before plaintiff arrived in Korea in September 1953, the area was still officially classified as a “combat zone,” and remained so classified throughout the period of plaintiff’s tour of duty there, i.e., to January 1955. For the most part, plaintiff’s duties were arduous and at times hazardous. Generally working twelve hours a day, plus many night calls, he handled, with inadequate help, a very large patient load. He had very little time off. For a period of some five months (October 1953 — February 1954) he was in charge of the 12th Dispensary at Pusan. A great fire broke out in Pusan in November 1953, in which about a third of the city was destroyed, and plaintiff was in charge, for approximately a month, of a hospital train in the city’s port area, which was set up to serve 35,000 — 40,000 refugees. Thereafter, plaintiff served for a period on a hospital train transporting injured soldiers from Chongkok to Wonju, which was north of the 38th parallel, the area still being subject to sporadic fighting (sections of the railroad having been blown up, and the train itself being equipped with gun plates and mounted guns). He then served for a period in Sokchori, which was north of what had been the main resistance line, and where there was still some guerrilla warfare. A second great fire occurred in Pusan in January 1954, when plaintiff took charge of another hospital train for another month, during which time he (and four less well-trained Korean doctors) treated approximately one thousand patients a day. Thereafter, he took charge of the 132nd Dispensary at Pusan. In addition to the American military, he had to serve the needs of Korean military units, Ked Cross and United Nations personnel, and members of the Merchant Marine. Between March 1954 and January 1955, plaintiff was sometimes required, in addition to his full-time medical duties, to perform dangerous intelligence work relating to traffic in narcotics from 4r-5 a.m. to 8 a.m.

The severe nervous tension and strain to which, plaintiff was subjected during his difficult assignments were not, of course, favorable to his ulcer condition. He could not maintain a disciplined ulcer diet, nor, considering his long hours, huge patient load, extended periods of little or no sleep, and supervisory responsibilities, could he obtain adequate rest or relaxation. The general conditions under which plaintiff was required to serve were often quite adverse. At Sokchori, the temperature did not go above zero, plaintiff’s quarters consisting of thin plywood barracks with small kerosene heaters. On the Chongkok hospital train, there was no heat at all for six days, and no running water.

Plaintiff performed his duties with such distinction that he received many commendations, as well as the Bronze Star Medal, his citations noting his “meritorious achievement,” his “unusual ability,” his “outstanding initiative and constant devotion to duty,” and his giving “unstintingly of his time to fulfill his mission.” However, the arduous service took its physical toll. Shortly after his arrival in Korea in September 1958, he had experienced ulcer pains and some hemorrhage. He was, however, with treatment at the dispensary, able to continue with his duties without significant interruption, despite some food difficulties (inability to retain food, loss of ¡appetite, abdominal distension), and soon thereafter the ulcer again became relatively quiescent, with only minor episodes experienced until October 1954. In that month, however, plaintiff suffered an acute exacerbation. X-rays indicated a “deformed duodenal ibulb.” He experienced sharp pains almost daily, a condition which persisted throughout his remaining Korean period of assignment. During such period, he experienced nausea, vomiting (caused by inability to retain food, indicating some obstruction, and requiring small multiple feedings), and five hemorrhage episodes.

On January 24, 1955, plaintiff’s tour of duty in Korea ended and he was returned to the United States for service at the Army Hospital at Fort McPherson, Georgia. Before entering on such assignment, however, plaintiff, attempting to recuperate, first took a month’s leave, but his symptoms persisted. Although serving at the hospital as a resident physician, he himself received treatment there on an outpatient basis. He complained of almost constant pain. In February 1955, plaintiff experienced two hemorrhages. X-nays indicated a partial closing (stenosis) of the pylorus (the region of the opening from the stomach into the intestine in which the duodenal cap is located and through which cap everything from the stomach passes). Hospitalization was considered, but, due to the doctor shortage, plaintiff was asked to carry on as best he could, and he did. However, with his symptoms persisting, plaintiff was, on June 9,1955, finally admitted as a patient at the Fort Benning Army Hospital. X-rays again indicated a chronic deformed duodenal cap and “marked pyloric stenosis.” The Chief of the hospital’s Gastroenterology Section diagnosed plaintiff’s condition as an active duodenal ulcer and recommended that plaintiff appear before a medical board “for consideration of separation from the service.”

On June 21, 1955, plaintiff was transferred back to Fort McPherson Army Hospital, his duty station, but this time as a patient, and on June 24, 1955, a Disposition Board diagnosed plaintiff’s condition as “ulcer, duodenum * * * with pyloric obstruction,” a condition which it found originated in 1945 while he was in the Navy but which was permanently aggravated by his Army service. It accordingly recommended that plaintiff appear before a physical evaluation board.

On July 5,1955, plaintiff appeared before a Physical Evaluation Board at Fort McPherson, which heard testimony from plaintiff, the Chief of Medicine at the hospital, who had examined and was treating plaintiff (who testified, among other things, that, in his opinion, plaintiff was at that time, “totally incapacitated for routine medical practice” and that his ability to engage in the practice of medicine in the future would be impaired since he would not be able to “participate in a full-time medical practice without damage to his health”), and the doctor in charge of the hospital (whose opinion also was that plaintiff was not physically capable of performing the type of duty required at the hospital and that his ability to carry on a civilian medical practice would be impaired). The Board, finding that plaintiff “is beyond any doubt physically incapacitated to continue in any capacity in his office, rank, or grade” and that “following separation from the military service, this individual’s capacity for gainful civilian occupation will be comparably impaired,” found plaintiff to be permanently unfit for service as a result of a “moderately severe” duodenal ulcer with a 40 percent disability rating (in accordance with the Veterans Administration Schedule for Bating Disabilities).

However, upon review, the Army Physical Eeview Council (in the Adjutant General’s Office), although finding that “according to evidence of record and well established medical principles,” plaintiff’s ulcer “originated prior to military service but was aggravated during service,” but nevertheless feeling that plaintiff’s disability was “of such nature that it may improve sufficiently within a five year period” so as to render him fit for military service, concluded that plaintiff’s case justified reevaluation in eighteen months. It further concluded that, since plaintiff’s defect “was ratable at 10 per-centum at the time of entry into active military service and at 40 percentum * * * at the time of final evaluation,” therefore “the net disability resulting from aggravation during service is 30 percentum.” Plaintiff accepted the findings of the Council.

Under Title IV of the Career Compensation Act of 1949, 63 Stat. 802, §§ 401-414, each service Secretary is required to establish a temporary disability retired list upon which members of the service who are unfit by reason of physical disability incurred while entitled to receive basic pay are entitled to receive disability retirement pay, provided that the disability is at least 30 percent in accordance with the VA Schedule for Bating Disabilities, and that “accepted medical principles indicate that such disability may be of a permanent nature” (§ 402(a)). The Act further provides that the member’s name cannot be on such list more than five years (§ 402(d)), with periodic physical examinations required at least once every eighteen months to determine whether there has been any change in the disability (§ 402 (e)). If, either as a result of any such periodic examination, or at the end of five years, it is determined that the disability (at least 30 percent) is permanent, the member is then removed from the temporary list and becomes permanently retired. However, if any such determination is that the disability is less than 30 percent, the member is then removed from the temporary list and is separated from the service with entitlement only to disability severance pay. If not made prior thereto, the Secretary concerned is required, at the end of the five-year period, to make a final determination. (Id.) Furthermore, if, as a result of any such periodic examination, the member (of a Reserve component, which plaintiff was) is found to be physically fit, he is (subject to his consent) reappointed in his component (§ 405 (b)).

In accordance with said provisions of the Career Compensation Act, plaintiff was, effective September 1, 1955, placed on the Army’s Temporary Disability Retired List, receiving disability retirement pay based upon his grade (Captain) and years of service. He then entered the private practice of medicine, restricting his hours, however, so as to avoid undue stress and strain.

Thereafter, plaintiff remained on such list, receiving disability retirement pay, until June 30,1960, almost five years, upon which date he was removed therefrom. During such period he had four periodic examinations. Following the last one, plaintiff was declared physically fit for active duty. Plaintiff then applied to the Army Board for Correction of Military Records to correct his records to show he was in fact permanently physically unfit on June 30,1960, with a disability rating of 40 percent and therefore eligible to continue to receive disability retirement pay. After a hearing, however, and upon also considering the records in plaintiff’s case, including an opinion from the Surgeon General, the Board concluded that the finding that plaintiff was fit for duty at the time he was removed from the Temporary Disability Retired List “was not in error or unjust,” and recommended that plaintiff’s application for correction of his records be denied, a recommendation which the Secretary of the Army approved on February 10,1065.

For the following reasons, it is concluded that the action that was taken in denying plaintiff further disability retirement pay on the grounds that he was physically fit for active duty is so contrary to the compelling weight of the evidence that it cannot be sustained.

The Correction Board does not indicate, by any kind of reasoned analysis, the evidentiary basis for its fundamental ultimate finding that “upon his [plaintiff’s] removal from the Temporary Disability Retired List, there is no recorded, verified, or documented period of ulcer disease, to a degree to warrant a finding of unfitness for duty.” Nor is it possible, by an independent analysis of the evidence, to detect upon what the finding is based, since all the probative evidence is the other way.

There apparently is no attack by the Board upon the original action taken in 1955 by the Army Physical Review Council and the Adjutant General, acting for the Secretary, in affirming the Physical Evaluation Board’s finding that the 10 percent ulcer disability plaintiff had when he entered Army service in 1958 “was aggravated during service” to 40 percent, and in therefore placing plaintiff upon the Temporary Disability Retired List. Nor, in the light of the evidence as set forth above concerning the severe exacerbation plaintiff suffered toward the end of his extremely arduous Korean tour of duty, the sustained manifestation of painful symptoms thereafter, including five hemorrhage episodes in Korea and two more after his return to the United States, his hospital treatments, and the numerous physical examinations and X-rays, all showing, among other things, a chronic deformed duodenal cap condition, could any such attack be successfully made. In addition, shortly after his separation from the Army, plaintiff was further examined by the YA and was similarly rated 40 percent disabled, the disability again being described as an aggravation resulting from his Army service.

Consequently, defendant’s present contention “that plaintiff’s condition during 'his entire [Army] military service [i.e., from July 1,1953, to September 1,1955] remained substantially the same as the condition that existed before his 1953 military service” (Def.’s Br., pp. 19-20) is not only rebutted by the overwhelming weight of the probative evidence of record, but is also not supported by any of the Secretary’s own findings.

Accordingly, the conclusion in 1960 that plaintiff was then fit for active duty necessarily means that sometime between 1955, when plaintiff was properly placed on the Temporary Disability Retired List with a 40 percent disability rating, and 1960, when he was removed from the list as being fit for duty, his ulcer condition either became cured or at least so improved as to render him so physically fit, and that such was his condition at the time of his release on June 30,1960. Since, as shown, placement on the Temporary Disability Retired List follows a binding Secretarial finding of then existing physical disability to a degree warranting the receipt of disability retirement pay, which disability “may be” permanent, it is only the condition which exists at the time of removal from the list that is pertinent. Nolte v. United States, 177 Ct. Cl. 1069 (1966).

The evidence shows, however, that during such 1955-1960 period, plaintiff had four periodic physical examinations and none indicated any such cure or marked improvement from the 40 percent disability finding made in 1955. As shown below, they all indicated, on the other hand, not only no such improvement, but that his condition had become permanent.

On February 5, 1957, a Medical Board, following plaintiff’s first periodic examination, concluded that plaintiff had a chronic duodenal ulcer, with “scarring resultant stenosis,” that his “disability has become permanent,” that he was unfit for duty, and that he should appear before a physical evaluation board for reevaluation (as to permanency). On review, however, it was determined that plaintiff should continue on the Temporary Disability Retired List without, at that time, a physical evaluation board reevaluation.

On July 8, 1958, plaintiff underwent his second periodic examination. His symptoms of pain had continued, he had, in the summer of 1957, had another hemorrhage, and he was under the care of physicians. He was on a six-to-eight times’ daily feeding schedule, was on antacid medication, and, when unable to obtain the required eight-to-nine hours’ rest daily, experienced more severe symptoms and required additional therapy. After X-rays again showed a “deformed” and “constricted” duodenal bulb the Medical Board once more concluded that plaintiff 'had a “chronic duodenal ulcer with exacerbations and remissions,” that, under plaintiff’s restricted practice “adjusted to his limitations of rest and diet,” he was functioning “normally,” but that a “flareup of symptoms” would in all probability result from a “deviation from this routine.” Accordingly, since it concluded that plaintiff was “incapacitated for further military service” despite the fact that “[i]n a restricted environment he is able to perform satisfactory work in civilian life,” and, further, that his “disability has become permanent,” it recommended that plaintiff “appear before a Physical Evaluation Board with a view to permanent disability retirement.” This time the Medical Board’s recommendation that plaintiff appear before a Physical Evaluation Board was approved and, on August 28,1958, plaintiff did so appear (after, however, plaintiff had, in the latter part of July 1958 experienced another hemorrhage episode, which had lasted about two days). After a hearing, the Physical Evaluation Board too found plaintiff “physically unfit for further military service,” again rating the disability ±0 percent. However, the Board still felt that plaintiff should remain on the Temporary List and be reevaluated in a year (tlie Board’s findings and recommendation being approved by the Army Review Council).

In the latter part of 1958, plaintiff experienced a disabling episode of hepatitis, the illness clearing up during the first half of 1959. However, it was followed by a period when his ulcer pain symptoms became particularly troublesome (apparently, however, without any hemorrhage episodes). Plaintiff was not able to return to his practice until around July 1, 1959, and then only on a basis of further reducing his previously restricted work-hour schedule by 50 percent, thereby cutting his practice 'in half.

On September 8, 1959, plaintiff underwent his third periodic physical examination, which included another X-ray series. At that time plaintiff, whether as a result of his reduced work schedule or otherwise, was feeling better, the ulcer then apparently being in a state of remission. However, the Medical Board again concluded that plaintiff was permanently disabled to a degree warranting disability compensation. Nevertheless, it recommended his continuation on the Temporary List, which recommendation was adopted by the Adjutant General.

Following his third periodic examination, plaintiff found that, despite his continuing to maintain his 50 percent work schedule, Ms ulcer symptoms persisted. He suffered epi-gastric burning pains, for which medication was required and which, at times, interfered with his sleep.

Plaintiff’s fourth and final periodic examination was conducted on February 24, 1960, only around five and one-half months after the previous one. The Medical Board, after reviewing plaintiff’s history, including his symptoms and condition since his last examination, concluded that the previous diagnoses were still appropriate, that plaintiff’s ulcer disability “persists,” and, as had each of the three previous Medical Boards, that the disability had been “permanently aggravated by active duty.” It recommended Ms appearance before a physical evaluation board.

After such Physical Evaluation Board proceedings, the Board, on March 24, 1960, found plaintiff to be “physically unfit for further military service by reason of” Ms ulcer. The disability was rated “moderately severe” (“without obstruction, but with history of hemorrhages”), carrying a rating of 40 percent.

However, on May 3, 1960, plaintiff was advised by the Adjutant General that the Army Physical Review Council had, after reviewing the Physical Evaluation Board proceedings, recommended that “you be deemed physically fit for the performance of active military duty commensurate with your age and rank.” There was no analysis of the evidence upon which the Review Council’s conclusion and recommendation were based or any explanation or reasons given for the conclusion.

On June 7, 1960, plamtiff was advised by the Adjutant General that the Army Physical Disability Appeal Board had, following plaintiff’s protest and rebuttal of the Review Council’s recommendation, concurred in the Council’s findings that plaintiff was physically fit for active duty. Again (there was nothing in the way of an analysis of the evidence or any reasons given upon which such concurrence was based.

Following plaintiff’s removal from the Temporary Disability Retired List on June 30, 1960, and his October 18, 1961, application to the Army Board for Correction of Military Records to correct his records to show that he was, on such date, permanently physically unfit for active duty, such Board sought an opinion from the Surgeon General. That office, on August 9, 1962, expressed the opinion that “there is no medical evidence that the applicant had an active duodenal ulcer at the time of separation,” and that plaintiff was therefore “fit for active military service at the time of his separation.” It thus concluded that there was no merit to plaintiff’s “complaint of error or injustice in the medical aspects of his separation from the service.” Again, however, there was no analysis of the evidence or reasons given upon which the conclusion was based.

In 1963 plaintiff, because of his ulcer condition, gave up the private practice of medicine. He then became a hospital resident experimenting in the field of artificial kidneys, and the following year became employed by a company making such kidneys. On this employment his work hours were substantially his own, his time being spent principally on research work and writing.

Thereafter, on December 16, 1964, the Correction Board held a hearing on plaintiff’s application, at which plaintiff was the only witness. Following the hearing, the Board, on such date, recommended that plaintiff’s application be denied. It concluded that, as of the date of his removal from the Temporary List, there was “no recorded, verified, or documented period of ulcer disease, to a degree to warrant a finding of unfitness for duty,” and that during the five-year period he was on such list, “there is no evidence of necessity for prolonged or frequent hospitalization, other than for periodic evaluation, unequivocal X-Ray findings of ulcer activity, objective and verified episodes of recurrent bleeding, or perforation or obstruction.” It further found that the policy under which Special Registrants were inducted, despite disqualifying defects, “must be considered in final physical evaluation; otherwise, all Registrants inducted with such defects would be found unfit for duty at time of separation and retired for disability, without respect as to whether sufficient permanent aggravation of such condition was incurred during service to warrant retirement therefor.”

This detailed review of the approximately five-year (September 1, 1955-June 30, 1960) period that plaintiff was on the list shows that np to May 3, 1960, there was complete unanimity by four Medical Boards (i.e., twelve doctors), two Physical Evaluation Boards, and one Physical Review Council, that plaintiff was incapacitated to a degree warranting the continued receipt of disability retirement pay. Certainly no cure or marked improvement is indicated in this period which covered practically the entire time plaintiff was on the list. Nor were these conclusions the product of superficial consideration. They were based on four periodic physical examinations by Medical Boards, and at least two X-ray series. The Boards all concluded that plaintiff’s disability was permanent and that he was unfit for duty with a 40 percent rating. The X-rays showed a deformed and constricted (due to scarring) duodenal bulb. Allowing for short periods of remission (ulcer being typically an exacerbation-remission type of ailment), for the most part plaintiff’s symptoms of pain (epigastric burning) persisted throughout the entire period. Hemorrhage had occurred at least twice during the period and plaintiff was on constant medication. At the beginning of the period he practiced medicine but, because of his need for rest and avoidance of undue strain, the practice was on a restricted basis. Commencing in 1959, however, which was in the latter part of his stay on the list, he found it necessary to cut even this restricted activity in half. After such a long history and consistent record of obviously well-grounded unanimous medical opinion, and after the fourth and final Medical Board’s conclusion on February 24, 1960, that plaintiff’s ulcer disability “persists” and had been “permanently aggravated by active duty” (all of which confirmed the diagnosis and conclusions of the third Medical Board proceedings just five and one-half months before), with such conclusion, on the basis of its own proceedings, being approved by the Physical Evaluation Board on March 24, 1960, how the Army Physical Review Council could, on the identical record, suddenly arrive at the diametrically opposite determination, i.e., that plaintiff was “physically fit for the performance of active military duty,” simply cannot be understood. Nor can the mystery be solved by any explanation, based on an analysis of the evidence or otherwise, that is offered by the Council or by the Adjutant General in reporting the Council’s decision to the plaintiff. For there is no such explanation or analysis. All that we have is the naked ultimate conclusion that plaintiff was “physically fit.” Such a determination, “conclusionary in nature,” making it impossible to “determine what weight was given to the evidence,” and which does not “discuss the details or specify precisely what items of evidence were considered,” cannot be sustained. Smith v. United States, 168 Ct. Cl. 545, 552 (1964) ; accord, Cooper v. United States, 178 Ct. Cl. 277 (1967).

In Cooper too, also an ulcer disability case, the court, after observing that “nothing could be more natural than to accord greater weight to the opinions of the physicians who saw, heard, interviewed, and examined the patient than is given to the opinions of physicians who have reviewed a paper record only” (p. 311), noted that, as in the instant case, “[t]he determination that plaintiff was fit for duty was made by the Physical Keview Council on the same evidence, presumably, that had persuaded two separate Physical Evaluation Boards to recommend a 40 percent rating, and on the basis of which an earlier Physical Keview Council * * *” had also recommended a disability rating (pp. 314-15), and yet there was “no explanation in the evidence * * * as to how the Physical Keview Council arrived at its determination.” (p. 315)

Without specific facts to explain the Physical Ke-view Council’s recommendation, efforts to appraise the reasoning upon which it was based or the motivation behind it would result only in speculation. The essential fact remains that the_ council’s determination of fit for duty is not only lacking in support by substantial evidence ; it is unsupported by any evidence whatever. The recommended finding must therefore be deemed to have been arbitrary, if not capricious. (Id., pp. 315-16)

Such “arbitrary action by the Physical Keview Council,” the court held, “compromised the decisional process and deprived it of the integrity to which the plaintiff was entitled.” (p. 316) It therefore invalidated the Secretary’s final determination which too rejected the 40 percent rating recommended by the Physical Evaluation Boards, and gave judgment for plaintiff on the basis of such rating.

The only possible “explanation” plaintiff was then given for the finding that he was “physically fit for the performance of active military duty commensurate with” his age and rank was the broad statement of the Adjutant General, in advising plaintiff of the Physical Eeview Council’s action, that: “This finding is in accord with current Army medical standards of fitness and unfitness for retention on active duty. (Paragraph 1, AE 40-504 and physical standards for Special Eegistrants under Public Law 179).” However, the parenthetically referred to AE 40-504 is hardly enlightening as justification since Paragraph 55 thereof says that an active ulcer “may make the individual unfit”; that “[i]t is necessary to individualize in each case”; and that “[generally an individual should be considered as unfit for service when symptoms persist to a severe degree following adequate medical treatment and when there is a history of frequent recurrences, obstruction, perforation or recurrent bleeding.” Plaintiff’s “symptoms” had certainly persisted “fco a severe degree following adequate medical treatment,” and plaintiff’s case also showed “a history of frequent recurrences” and “recurrent bleeding,” plaintiff having experienced, in addition to the three bleeding episodes prior to entry into the Army service, the numerous episodes he suffered in Army service, both in Korea (at least one in September 1953 and five during October 1954 — January 1955), as well as thereafter in the States (two in February 1955, and two more while on the Temporary List (one in the summer of 1957 and one in July 1958)). Thus, there was nothing in this part of the Eegulation which served to bar plaintiff’s claim, and there is, as stated, no explanation of what the Council was relying on in the Eegulation to effect such a bar.

Nor is the simple reference to the Eosenberg standards or policy any more enlightening. Indeed, the mere reference to such standards is inconsistent with the previous finding of physical fitness, for, as defendant concedes, the policy was directed to those who were admittedly unfit under the usual standards but whose disabilities, by the application o'f the waiver doctrine, could nevertheless be considered of such degree as not to prevent their being useful to the services. The “use of a waiver in the original appointment * * * means that one is not fit for general service.” Cosgriff v. United States, 181 Ct. Cl. 730, 737, 387 F. 2d 390, 394 (1967). Thus the reference to the Bosenberg standards could rationally only mean that plaintiff’s disability was no greater in 1960 than it was when he entered service in 1953 with the 10 percent disability. Although generally “[t]his court * * * does not seek to apply the standards for original appointment and for retention to the question of entitlement to disability retirement, since the standards for the two fields are entirely different,” nevertheless, if plaintiff’s disability in 1960 was only 10 percent and thus no more than what it was when he reentered service in 1953, it seems clear that he would not be entitled to compensation. Indeed, this is defendant’s present position for, although it now concedes that plaintiff was not physically fit (thus rejecting the findings to such effect by the Physical Eeview Council and the Physical Disability Appeal Board, which were in turn adopted by the Secretary), it nevertheless contends that his disability in 1960 did not exceed what it had been on entry into Army service in 1953. But the same hereinabove detailed review of the numerous 40 percent disability findings made while plaintiff was on the Temporary List, and the solid evidence on which they were based, which served to compel a rejection of the “physically fit” findings, similarly serve to compel a rejection of any 10 percent disability finding which may be deemed to be implicit in the Adjutant General’s reference to the “physical standards for Special Eegistrants under Public Law 779.” Of course, defendant’s contention of a 10 percent disability in I960 is based upon, and is only an extension of, its above-noted contention that when plaintiff came out of the Army in 1955, he at that time too had only a 10 percent disability, a contention which, as shown, flies in the face of the Army’s own well-grounded finding that plaintiff’s disability had been aggravated to 40 percent.

Nor was the action taken, on plaintiff’s appeal, by the Army Physical Disability Appeal Board any more meaningful. The only advice plaintiff received with respect thereto was that “[t]he Appeal Board concurred with the findings of the Review Council in that you are deemed physically fit for active duty.” This time there was no reference at all, parenthetical or otherwise, to the Rosenberg standards, with the 10 percent disability inference that would be implicit in such reference. The Appeal Board apparently felt that this doctor who was, with constantly recurring pains, and with a considerable rest, diet, and medication regimen, conducting a private practice on a restricted, half-time basis, would be able, on a completely “physically fit” basis, to assume a full schedule of military duties as 'a physician, for the Adjutant General, in advising plaintiff of the Appeal Board’s “physically fit” finding, enclosed an application which plaintiff could submit for “recall to extended active duty.” The final “Army Special Orders” entered, by order of the Secretary of the Army, following the “final determination” of the Appeal Board, declared plaintiff “to be physically fit for active duty,” a conclusion which, as stated, defendant itself now concedes was erroneous. The testimony of both of defendant’s medical experts at the trial herein was to the effect that plaintiff was not (except for the Rosenberg policy) physically fit for duty in 1960 when he was removed from the Temporary List.

On the basis of the above considerations and analysis, plaintiff’s inexplicable removal from the Temporary Disability Retired List on June 80, 1960, with the finding that he was then physically fit for active duty, must be considered to have constituted arbitrary and capricious action. McGiven v. United States, 183 Ct. Cl. 920 (1968). Cf. Brozik v. United States, 180 Ct. Cl. 546 (1967), where the court rejected an insufficiently explained ultimate fitness finding by an Army Physical Evaluation Board and Physical Review Council, resulting in removal from the Temporary Disability Retired List without further disability pay, such fitness finding being made in the face of previously consistent unfitness findings by four Medical Boards and a Physical Evaluation Board.

Nothing that has taken place in plaintiff’s case subsequent to such June 30, 1960 removal serves to weaken this conclusion.

The Surgeon General’s opinion of August 9, 1962, expressed to the Army Board for Correction of Military Records, again does not discuss or analyze any aspect of plaintiff’s long medical history or otherwise indicate the basis for the conclusion “that there is no medical evidence that the applicant had an active duodenal ulcer at the time of separation and that he was unfit for active military service at the time of his separation.” Such “superficial * * * cursory advice of the Surgeon General * * *couched in broad conclusions rather than a reasoned discussion of the evidence” is entitled to little weight. Dayley v. United States, 180 Ct. Cl. 1136, 1146 (1967). To the same effect is Lawler v. United States, 169 Ct. Cl. 644, 647 (1965).

The Board’s own findings and conclusions of December 16, 1964, in which it stated that “it concurs in the opinion of the Surgeon General’s Office,” are little better. Other than plaintiff’s own testimony, the Board had no new evidence. It concluded (its finding No. 4) that, following plaintiff’s placement on the Temporary List, “there is no evidence of necessity for prolonged or frequent hospitalization, other than for periodic evaluation, unequivocal X-Ray findings of ulcer activity, objective and verified episodes of recurrent bleeding, or perforation or obstruction.” However, there is no indication that any regulation pertaining to ulcer cases made “prolonged or frequent hospitalization” a prerequisite to a finding of unfitness for duty. The above-mentioned and quoted AR 40-504, which sets forth the “Standards Of Fitness and Unfitness For Retention On Active Duty,” did not. “Prolonged hospitalization” is only mentioned therein as one of four factors in connection with, the question of aggravation of an ulcer which existed prior to entry on active duty, and relates to such hospitalization as having occurred “in the service.” As shown there were valid aggravation findings made by the Army in 1955 when plaintiff was 'placed on the Temporary List. Nor is it evident what the Board meant by “unequivocal X-Bay findings of ulcer activity,” or again what it was relying on in making such reference. As noted, the periodic examination X-rays that were taken while plaintiff was on the Temporary List (as well as the prior X-rays) showed a deformed and scarred duodenal bulb. Indeed, these X-rays were important factors in causing the Medical and Physical Evaluation Boards to conclude that plaintiff had a permanently disabling chronic duodenal ulcer. One of defendant’s own medical experts at the trial testified that the “scarring of the duodenal bulb” shown by the X-rays taken while plaintiff was on the list “is indicative of some activity of his ulcer disease.” Moreover, again the pertinent AB 40-504 (Paragraph 55) does not make X-rays of the type described by the Board a prerequisite to an unfitness finding, “X-ray evidence of an active ulcer” being mentioned therein only in the same “aggravation” portion as contained the reference to “prolonged hospitalization.” And the same considerations apply to the “objective and verified episodes of recurrent bleeding, or perforation or obstruction” portion of the Board’s statement. This language too is essentially that of the “aggravation” portion of the Begulation. As noted, the portion of the Begulation here applicable simply says that “an individual should be considered as unfit for service when symptoms persist to a severe degree following adequate medical treatment and when there is a history of frequent recurrences, obstruction, perforation or recurrent bleeding.” That plaintiff’s frequently recurring symptoms persisted to such a degree as to cause a drastic curtailment of his medical practice by the time lie was removed from the list is nowhere denied but not even mentioned by the Board, as well as the “recurrent bleeding,” of which there were two occurrences while plaintiff was on the list. Indeed, by the time plaintiff testified before the Board, he had given up his practice entirely to take up private employment involving essentially research and writing, this severe limitation on his normal civilian pursuits also remaining unmentioned by the Board. Events subsequent to release are properly to be considered in making a determination of physical fitness as of the release date. Walters v. United States, 175 Ct. Cl. 215, 225, 358 F. 2d 957, 962 (1966) ; Harper v. United States, 159 Ct. Cl. 135, 140-41, 310 F. 2d 405, 408 (1962). Thus, the Board’s basic conclusion (its finding No. 1) that upon plaintiff’s removal from the list, there was “no recorded, verified, or documented period of ulcer disease, to a degree to warrant a finding of unfitness for duty” is, like the previous Physical Review Council’s and Surgeon General’s similar finding, not based on any reasoned analysis of the evidence, and similarly contradicts without any explanation the directly opposite conclusion arrived at by the four Medical and the two Physical Evaluation Boards. As was stated in Beckham v. United States, 183 Ct. Cl. 628, 636, 392 F. 2d 619, 622-23 (1968) :

* * * 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 * * * is inimical to a rational system of administrative determination and ultimately inadequate.

No exception can be taken to the Board’s conclusion (its finding No. 7) that the “policy” of “inducting Special Registrants who were considered to have disqualifying defects * * * must be considered in final physical evaluation; otherwise, all Registrants inducted with such defects would be found unfit for duty at time of separation and retired for disability, without respect as to whether sufficient permanent aggravation of such condition was incurred during service to warrant retirement therefor.” (It should be observed, however, that if, by this “Conclusion” the Board was conceding that, in 1960, plaintiff was unfit, but not more so than when he was inducted in 1953, it should have said so, instead of flatly finding, inconsistently, that a finding of unfitness for duty was not then warranted.) But here the evidence that was presented to the Board was overwhelming that, as four Medical Boards, two Physical Evaluation Boards, and one Physical Review Council had found, plaintiff’s 1955 aggravated 40 percent disability condition had persisted throughout his period on the list and up to the time of his removal therefrom in 1960.

Nor do the trial proceedings conducted herein serve in any way to alter the conclusion that plaintiff should have been permanently retired upon Ms removal from the list in 1960. The only witnesses, in addition to plaintiff himself, were an expert medical witness offered by plaintiff and two such experts offered by defendant (none of the experts having examined plaintiff, but instead testifying only on the basis of the medical history as set forth in the quite voluminous records pertaining to plaintiff’s case). Plaintiff’s testimony indicated a continuation of his ulcer pain symptoms, manifesting themselves, on a quite constant basis, as a dull type of pain in the upper gastric region, and, sometimes as much as twice a month, as sharp pains, such episodes lasting as long as ten days. More than usual quantities of work or tension are likely to bring on such episodes. He maintains an ulcer diet and medication regimen. At the time he testified he was unemployed. He had terminated the essentially research and writing employment he had when he testified before the Correction Board because of the traveling and irregular hours it sometimes required. Plaintiff’s expert, a qualified specialist in internal medicine and gastroenterology (who had served in the Navy as a doctor and was familiar with service medical standards), concluded that plaintiff’s condition was worse in 1960 than it had been in 1955 and that it would be a rare situation for anyone who had an ulcer as long as plaintiff did to become permanently healed, although there might be temporary remissions. He pointed out that a long history of exacerbations and remissions indicates that there is no permanent healing but that instead there is a basic underlying pathological process. He testified that hemorrhaging and obstruction are only individual factors in determining fitness for duty and that a proved ulcer, without either obstruction or hemorrhaging, would be disabling. He concluded that a physician with an ulcer so severe that he could function on only a 50 percent medical practice basis in civilian life — which was plaintiff’s situation in 1960 when he was suddenly declared by the Physical Eeview Council and the Disability Appeal Board to be physically fit for active duty — would certainly not be fit to function as a doctor in the military.

The testimony of one of defendant’s experts (also a qualified specialist in internal medicine and gastroneurology) was to the effect that, on the basis of hemorrhage frequency and absence of evidence of obstruction, there was in his opinion no significant difference between plaintiff’s condition in 1953, when he returned to active duty, and 1960, when he was removed from the list. But clearly this places too great stress on the individual hemorrhage and obstruction factors. AE 40-504 places primary emphasis on the situation “when symptoms persist to a severe degree following adequate medical treatment and when there is a history of frequent recurrences * * “Obstruction, perforation or recurrent bleeding” are mentioned only as other factors to be taken into consideration. That so much importance was not placed upon such an individual factor as obstruction while plaintiff was on the Temporary List is indicated by the fact that plaintiff was, for almost five years, retained on the list even though, the evidence of obstruction which was indicated at the time he was first placed on the list thereafter no longer manifested itself. The Physical Evaluation Board’s evaluation after plaintiff’s final periodic examination was that of a moderately severe duodenal ulcer, without obstruction, but with a history of hemorrhage, and rated 40 percent disabling. And as to the important symptoms factor, the witness admitted that in 1953 plaintiff was asymptomatic while in 1960 he was experiencing symptoms two or three times a week. It seems difficult indeed to conclude that plaintiff’s condition in 1953 and 1960 was substantially the same when, in 1953, he was able to function normally as a physician on a full-time basis, without any significantly inhibitory symptoms (as he was also able to so function between the bleeding episodes in the 1945-1953 period), but in 1960 he was regularly experiencing incapacitating symptoms and could, therefore, only function on a restricted 50 percent basis, while observing, in addition, a strict rest, diet, and medication ulcer regimen, which the record makes plain was far from the situation in 1953. Furthermore, as to the hemorrhaging, upon which so much stress was placed, the witness construed the record to show only one bleeding incident while plaintiff was on the Temporary List, i.e., that which occurred in the summer of 1957, to which reference was made in the Medical Board proceedings on plaintiff’s second periodic examination. However, the witness appears to have missed a second bleeding incident which occurred in July 1958, to which plaintiff testified in his first Physical Evaluation Board proceeding a month later.

Defendant’s second witness, a well-qualified expert in internal medicine, also felt plaintiff’s condition in 1953 and 1960 to have been substantially similar. However, this opinion was based upon the supposition that plaintiff’s ulcer was “active” at both times. But here too insignificant consideration was plainly given to the fact that, although technically the ulcer may be said to have been “active” in 1958 when plaintiff was inducted, it was nevertheless asymptomatic at such time, whereas, as the expert himself noted', in 1960 plaintiff’s symptoms of pain were occurring two or three times a week. Nor, apparently, did he give any consideration to the fact that, when plaintiff was inducted in 1953, his activities do not appear in any significant way to have been inhibited by his asymptomatic ulcer (which was further demonstrated by his arduous, long-hours’ work schedules in Korea, during which he was “called many times during the night in medical emergencies,” ) while in 1960 he was able to operate only on a sharply restricted half-time basis. And, although this witness too, contrary to Alt 40-504, appeared to place more stress on the individual obstruction and hemorrhage factors than on the basic symptomatology, he too pointed to only one bleeding incident while plaintiff was on the list, although, as noted, the record indicates that there were two.

For all of the above reasons, the conclusion is compelled that at the time of his removal from the Temporary Disability Retired List on June 30, 1960, plaintiff was not physically fit to perform active military duty commensurate with his age and rank. The 40 percent disability for which plaintiff had been carried on the list since September 1, 1955, and which was reaffirmed by the Physical Evaluation Board’s finding of March 24,1960, still existed on June 30,1960, and should, under the provisions of Section 402 of the Career Compensation Act, have been considered to be of a permanent nature. Accordingly, such Physical Evaluation Board’s 40 percent disability finding stands “unimpaired,” McGiven v. United States, supra, at 938, and properly forms the basis for judgment herein, McGiven v. United States, supra; Cooper v. United States, supra. Plaintiff should have been retired as of such June 30,1960 date with disability pay based upon such 40 percent disability rating. Judgment to such effect should be granted, the amount due to be determined in further proceedings under Rule 47 (c) .

Findings of Fact

1. Plaintiff was born on January 29, 1925. In 1942, at the age of seventeen, he entered Union College, Schenectady, New York, and took a premedical course. On July 1, 1943, at the age of eighteen, plaintiff enlisted in the United States Naval Reserve. His entrance physical examination showed him to be without illness or injury. Plaintiff was assigned for training in medicine (the Naval V-12 Program). His first assignment thereunder was to Union College, where he continued with his medical studies. He remained at Union College until July 1944, when he was transferred to the United States Naval Hospital at Brooklyn, New York. Plaintiff remained at the hospital until October 1944, when he was assigned to the New York University College of Medicine.

2. The naval medical training program to which plaintiff was assigned was strenuous, concentrated, and accelerated. Instead of the usual three to four hours of classroom work, plaintiff was required to attend classes from 8 a.m. to 5 p.m. In addition, plaintiff underwent four hours of physical training daily.

3. In February 1945, during plaintiff’s training assignment at the New York University College of Medicine, plaintiff commenced experiencing epigastric pain before meals (pain just below tbe breastbone), heartburn, some nausea, and distress during the night. The doctor who examined plaintiff at the medical school (a naval contract physician) considered plaintiff’s symptoms to be primarily psychosomatic and accordingly gave plaintiff psychotherapy. However, his gastrointestinal condition persisting, plaintiff also sought treatment from a private physician in Schenectady, New York. Plaintiff’s symptoms persisted throughout 1945.

4. On December 22, 1945, plaintiff was, upon the termination of the V-12 Program, released from active to inactive duty. At that time he was examined at the Naval Separation Center, Lido Beach, Long Island, New York, and found physically qualified for such release (the only defect noted being hypertrophied tonsils). No X-rays were taken at this time.

5. Upon release from active duty, plaintiff continued his medical studies at New York University College of Medicine. His symptoms persisted in early 1946, for which he continued to receive medical treatment.

6. In March 1946, plaintiff experienced hematemesis and melena and was hospitalized at Bellevue Hospital in New York City from March 14 to March 22,1946. As a result of X-rays (Cl series) and other tests, it was determined that the cause of plaintiff’s difficulty was a duodenal ulcer. After leaving the hospital, plaintiff convalesced at home for about six weeks.

7. On April 9, 1946, plaintiff applied to the Veterans Administration for disability compensation. He claimed that his ulcer condition was first incurred in February 1945 while he was on active duty.

8. In support of his claim with the Veterans Administration, plaintiff submitted a statement by Dr. Camillo Verta of Schenectady, New York, dated August 12,1946, to the effect that plaintiff had been under his care since April 1945 when plaintiff was suffering from a gastrointestinal condition which had now been established as a peptic ulcer, and that although the ulcer was, as of the date of the statement, “apparently dormant,” plaintiff was still on a strict dietary regime. A similar statement dated August 16, 1946, by Dr. Joseph A. DeBlase of Schenectady was also submitted. In addition, an X-ray report dated August 19, 1946, from the New England Deacons Hospital was submitted. This report stated that the duodenal cap was “quite irritable” and “showed a constant deformity.” However, “no evidence of crater” was shown. The “Impression” was “Duodenal ulcer, old, with marked hypermotility.”

9. In connection with plaintiff’s application, the Veterans Administration caused plaintiff to be examined at Ellis Hospital on September 17, 1946. Included in the radiologist’s report were statements that “the gastric rugae are coarsened” and that “the duodenal cap is defective but the crater is not demonstrated.” His “Impression” was “Duodenal ulcer and hypertrophic gastritis.” The examining physician (Dr. E. H. Warner) noted that plaintiff at that time “has frequent epigastric distress and pains,” and made a diagnosis of “Duodenal ulcer — symptomatic. Gastritis hyper-trophic.”

10. After receiving further information from Dr. Verta concerning plaintiff’s visits in 1945 and 1946, his symptoms and the treatment administered, the Veterans Administration, on January 27, 1947, awarded plaintiff a 10 percent disability rating for duodenal ulcer and hypertrophic gastritis. The award was made effective from December 23,1945, the day after plaintiff’s release from active duty. Plaintiff’s disability was stated to have been “Incurred in serv-

11. Thereafter, plaintiff experienced no unusual symptoms other than occasional mild epigastric burning. Pie maintained a restricted diet, but required little medication, and was able to continue with his medical studies without interruption.

12. On February 24, 1948, plaintiff was honorably discharged from the Naval Keserve.

13. In June 1949 plaintiff, having completed his medical studies, graduated from New York University Medical College. He then became an intern at Albany Hospital in Albany, New York.

14. In his new activity as an intern, plaintiff performed unusually arduous and strenuous work, which was intensified by a polio epidemic in the locality. In September 1949 he experienced another exacerbation of his ulcer. The symptoms were severe pain in the right upper quadrant, nausea, hematemesis, and melena. He was treated at the Albany Hospital, where he was interning, for one week, and convalesced at home for a month.

15. Thereafter, and for approximately three years, plaintiff was relatively symptom free. The ulcer was successfully controlled with occasional antacid medication. During this period, plaintiff became a resident at the Delaware Hospital, Wilmington, Delaware.

16. In October 1952, plaintiff suffered his third exacerbation, experiencing pain, nausea, hematemesis, and melena. This episode followed, and was apparently induced by, cortisone treatments which were given to alleviate an acute asthma attack. Plaintiff was hospitalized for two weeks.

17. Thereafter, plaintiff again became relatively asymptomatic, returning to his work as a resident at the Delaware Hospital and functioning with little difficulty. However, he remained on an ulcer diet and on antispasmodic medication.

18. Plaintiff was subject to induction under the draft and the Medical Registrants Act, Public Law 779, 81st Cong., 64 Stat. 826, Sept. 9, 1950. Because of his ulcer condition, plaintiff had been classified in the draft as physically disqualified (i.e., 4-F). However, on December 24, 1952, the Assistant Secretary of Defense, Anna M. Rosenberg, issued a memorandum to the Secretary of the Army which read as follows:

Subject: Physical Standards for Physicians, Dentists and Veterinarians
1. It shall be the policy of the Department of Defense to consider all physicians, dentists and veterinarians potentially acceptable for military service, provided they can reasonably be expected to be productive in the Armed Forces.
2. This permits the re-evaluation of certain physicians, dentists and veterinarians, who as a result of previous physical examinations have been classified as physically disqualified because of substandard physical findings such as absence of parts, static orthopedic defects, the requirement of maintenance medication, the static se-quelae of arrested acute and chronic disease processes, defective visual and auditory acuity, and some active processes relatively asymptomatic or of which the symptoms are not essentially disabling. In general, those with static impairment and those with chronic progressive or recurrent diseases, if asymptomatic or relatively so are considered to be acceptable for service.
3. The above policy is applicable to special registrants and to those reserve officers who are obligated for duty in the same classification status as special registrants in accordance with Department of Defense policy. Reevaluations will be considered on an individual basis, but special attention will be given to those in whom health factors may be affected by age. _
_ 4. Nothing in the above policy will be construed to mean that these personnel will be assigned to duties by the several Armed Services which are beyond the limitations imposed by their physical capabilities.

19. On December 29, 1952, plaintiff’s local draft board at Schenectady, New York, ordered him to report at Albany, New York, on January 7, 1958, for an Armed Forces Physical Examination. The report of this preinduction examination contains the following notation: “Duodenal ulcer first demonstrated 1946. Hemorrhage 1946, 1949 and 1952. At present, GrI series demonstrate scarring in duodenum. Most recent hemorrhage was minimal and followed cortone 100 mg a day for 2 wks. Oct. 1952. Has been relatively symptom free but is still on treatment.” However, the examining physician found plaintiff to be disqualified for military service (Physical Profile P-4) because of “Duodenal ulcer since 1946 — confirmed.”

20. On January 12, 1953, the Adjutant General, Department of the Army, sent a memorandum to the various “Commanders in Chief” concerning “Physical Standards for Special Registrants under Public Law 779” which stated in part as follows:

1. Reference is made to the inclosed copy of Department of Defense Memorandum to the Secretary of the Army, 24 December 1952, subject, “Physical Standards for Physicians, Dentists, and Veterinarians.”
2. The provisions of the above directive do not change existing Army Regulations pertaining to physical standards for special registrants. It allows examining physicians and reviewing authorities to use their discretion in the application of existing physical standards if the special registrant can be reasonably expected to be physically capable of performing military service and to remain so for a reasonable period of time.
3. Conditions such as those listed below which have been previously considered as a cause for rejection may now be considered as acceptable for appropriate assignment consideration.
* ^ *
(2) Peptic ulcers, unless complicated by obstruction or verified history of repeated hemorrhage.
* * * * *
6. Physicians, dentists, and veterinarians accepted for duty who have substandard physical findings will be carefully profiled according to the individual’s functional ability to perform various military duties. Individuals other than special registrants having the physical findings listed in paragraph 3 above might ordinarily be assigned a 4 in their profile serial. The nature of the duties expected of physicians, dentists, and veterinarians is such that although they may have certain substandard physical findings they can reasonably be expected to perform the appropriate military duties of the second and third profile categories and should therefore be profiled with a 2 or 3 as the lowest grade in any factor. Appropriate limitations of activity and medical diagnosis will be made on each occasion when a profile serial is assigned or revised for a medical, dental, or veterinary officer.

21. On March 9,1953, the Medical Section of the 1st Army found plaintiff to be “physically qualified for general military duty with waiver for duodenal ulcer.”

22. Instead of possibly being drafted, plaintiff, in the hope of obtaining a commission, applied to the Army for extended active duty. On April 17, 1953, plaintiff was appointed First Lieutenant, Medical Corps, United States Army Reserve. On April 23, 1953, plaintiff accepted the appointment. However, it was still necessary for plaintiff to have a “Final Type” medical examination to determine whether he was qualified for active military service. Plaintiff underwent such an examination on May 11,1953, at Grif-fiss Air Force Base, Borne, New York. Because of plaintiff’s ulcer history, the examining physician, Captain Bussell E. Grove, requested a consultation. The consulting physician, Bobert S. Levin, a gastroenterologist, reported that “Barium studies of the upper GI tract taken on the day prior to physical examination reveal marked spasm of the duodenal cap which visualized in a deformed state on only 1 or 2 of the many spot films taken. This is suggestive of an old ulcer or of one with chronic low grade activity.” As his “Impression,” he reported “Patient undoubtedly has a duodenal ulcer which is probably not active at the present time. He has, however, had three episodes of hemorrhage, the last one as recent as 6 months ago. Because of this I do not feel that he is qualified for active military service at the present time.” Dr. Grove concluded that, because of plaintiff’s “History of duodenal ulcer with hematemesis,” plaintiff was “Disqualified by Par. 98a (5) AFM160-1,” and that he “is not qualified for General Service.” However, on June 9, 1953, plaintiff was found by the Medical Section, First Army, to ba “Physical!y qualified for general military service with waiver for history of duodenal ulcer,” and was ordered to report for active duty on July 1,1953, at Fort Sam Houston.

23. Upon plaintiff’s reentry on active duty on July 1, 1953, his YA 10-percent compensation award was discontinued.

24. Plaintiff first reported for active duty at Fort Sam Houston, Texas, where, after a short training period, he was sent to Fort Lewis, Seattle, Washington, for transfer to the Far East. Plaintiff was first sent to Camp Zama, Japan, and then in September 1953, to Korea, where he served through January 1955, a period of approximately seventeen months. The Korean Armistice had been signed on July 27,1953.

25. For most of plaintiff’s Korean service, he was stationed in Pusan, a rear echelon unit. For a period of approximately five months, i.e., October 1953 through February 1954, he was there in charge of the 12th Dispensary. During this period be served on several hospital trains. After November 23, 1953, when the first great fire at Pusan took place, he was stationed approximately one month on a hospital train set up in the port area of the city. For about 10 days thereafter, he served on a hospital train that carried patients from Chongkok to Wonju. He then flew to Sokchori for approximately twelve days, returned by jeep to Seoul, and by plane to Pusan. He resumed his duties at the 12th Dispensary until about January 29,1954, when the second great fire took place. He then took charge of another hospital train in the city for approximately a month. Thereafter, he took command of the 132d Dispensary at Pusan where he remained from about March 1954 to January 1955. He acted also as the Medical Adviser to the Commanding Officer of the 503d Engineers Group.

26. The conditions under which plaintiff served in Korea were such that, for the most part, he could not maintain a disciplined ulcer diet or obtain adequate rest or relaxation. His duties were arduous and at times hazardous. He was generally under severe nervous tension and strain. He normally worked twelve hours a day. In addition, he had to handle many night calls. He had little time off. He served a large patient load with inadequate help.

At Pusan, in addition to the American military, he had to serve the needs of Korean military units, Red Cross and United Nations personnel, and members of the Merchant Marine. Furthermore, in addition to his regular full-day medical duties, he was sometimes required, during the March 1954-January 1955 period when he was at the 132d Dispensary, to perform inteEigence work from about 4-5 a.m. to 8 a.m. This work related to the extensive narcotics trade among soldiers and civilians. Several individuals engaged in such intelligence work had been murdered.

The Pusan fire of November 23,1953, destroyed about one-third of the city. For around eleven days after the fire, plaintiff had little sleep. The hospital train in the port area of which plaintiff was in charge was set up to serve approximately 35,000-40,000 refugees. The hospital train set up at the time of the second conflagration also served large numbers of refugees. He and four less-well-trained Korean doctors treated about 1,000 patients daily. Chongkok, where plaintiff served his ten-day tour of duty on a hospital train transporting injured soldiers, was north of the 38th parallel. Despite the armistice, the area was still subject to sporadic fighting and combat injuries were treated on the train. Sections of the railroad were Mown up by mines and dynamite. The train was equipped with gun plates, sandbags and mounted guns and plaintiff was issued weapons. Sokchori, where plaintiff served for around twelve days, was about eleven miles north of the main line of resistance. There were various fighting units in this area, including three tank companies. There was still some surreptitious fighting and guerrilla warfare in the area, although it was south of the demarcation line. In the demarcation zone itself, many were killed and shot at. Korea was still officially designated a combat zone while plaintiff served there.

The climatic conditions in the places where plaintiff was stationed were often severe. At Sokchori, the highest temperature was zero and reached 12° 'below. Deep snows closed the mountain passes and isolated the city for five days. Plaintiff’s quarters consisted of one-quarter inch plywood barracks with small kerosene heaters. On the hospital train at Chongkok, there was no heat at all for six days and no running water.

27. (a) For “meritorious achievement” during the period from November 27,1953, to December 24,1953, i.e., after the first Pusan fire and while plaintiff was stationed on the hospital train in the city’s port area, plaintiff was, on February 12, 1954, awarded the “Commendation Ribbon With Medal Pendant.” The citation read:

As Officer in Charge he established an effective team for the treatment and care of injured refugees, directed lindane dusting and the administering of immunizations and innoculations, and directed the distribution of emergency food supplies. Captain Versad performed the many duties attendant to his position in a highly exemplary manner. His unusual ability, outstanding initiative and constant devotion to duty earned him the respect and admiration of all those with whom he served and contributed materially to the success achieved by Ms organization in accomplishing its vital mission. The meritorious achievement rendered by Captain Yersaci throughout this period reflects great credit on himself and the military service.

(b) On August 15, 1954, while plaintiff was in command of the 132d Dispensary at Pusan, the Commanding Officer of the T24th Transportation Battalion (Bailway Operating) sent to the Commanding General of the Pusan Military Post a letter of commendation concerning plaintiff which stated in part as follows:

1. Upon my departure from this organization to return to the Zone of Interior for reassignment, I wish to commend Capt Antonio A. Yersaci, 01 939 013, Medical Corps, for the fine work he has done as the servicing Medical Officer of this battalion.
2. Though he is not located within our compound and this unit is only one of the many with whom he works, he has performed his many duties with this battalion in a superior manner. He has been called many times during the night in medical emergencies for men of this command and has given unstintingly of his time to fulfill his mission. I consider his professional knowledge to be outstanding and his initiative, character, and moral habits those of an officer and gentleman.
3. Especially noteworthy also are the frequent lectures and character guidance discussions he has given at the command conferences of this battalion. They were interesting, informative, and I am sure alerted all concerned to the physical precautions and limitations of this Theater of Operations. It has been a pleasure to work with a physician and officer of his high caliber.

On August 26, 1954, the Commanding General forwarded the letter of commendation to plaintiff through his Commanding Officer (503d Engineer Group (Maintenance and Supply) ) with the following “first indorsement”:

1. It is a pleasure to forward to you this letter of commendation from the Commanding Officer, T24th Transportation Battalion (Bailway Operating). Your work as Surgeon, as described in the basic communication, reflects great credit on you, on your Corps, and on this command.
2. The writer had particular opportimity to observe your devotion to duty when you were in charge of the facilities of the Hospital Train, stationed at Pier 2, when the refugees were housed from the disastrous fires of 27 November 1958 and 29 January 1954. In the superior manner in which you conducted that operation, you more than justified the estimate of your service made.by the Commanding Officer, 724th Transportation Battalion (Railway Operating).

Plaintiff’s Commanding Officer then sent the endorsed letter of commendation to plaintiff with his “second indorsement,” which stated in part:

It is with sincere gratification that I forward this commendation to you and add my congratulations for the superior manner in which you performed your duties in connection with the Pusan fires and in general, your fine work throughout the command.

(c) On October 4, 1954, plaintiff was awarded the Bronze Star Medal. Plaintiff’s “Citation” read in part as follows:

* * * Captain Versaci, a member of Headquarters, 503d Engineer Group (Maintenance and Supply), is cited for meritorious service in connection with military operations against an armed enemy in Korea during the period 27 November 1953 to 27 July 1954. As Officer-in-Charge, 12th General Dispensary, and later as Commanding Officer 132d Medical Detachment and as Medical Ad-visor to the Commanding Officer, 503d Engineer Group (Maintenance and Supply), he was responsible for the supervision, administration, training, supply and conduct of detachment personnel, provided effective medical service to United States military personnel, and efficiently raised the standards of sanitation, personal hygiene and disease control. Captain Versaci performed the many duties attendant to his position in a highly exemplary manner. His unusual ability, outstanding initiative and constant devotion to duty earned him the respect and admiration of all those with whom he served and contributed immeasurably to the success achieved by his organization in accomplishing its vital mission. The meritorious service rendered by Captain Versaci throughout this period materially furthered the cause of the United Nations in Korea and reflects great credit on himself and the military service.

28. In September 1953, shortly after plaintiff arrived in Korea, he experienced' increased ulcer pains and some hem-atemesis and melena. However, be was able, with treatment at the dispensary, to continue his duties despite some inability to eat or retain any sizable quantity of food, which occasionally manifested itself by vomiting, abdominal distension, and loss of appetite. After about two months, the ulcer again became quiescent. During this period, i.e., on October 9, 1953, plaintiff was given a physical examination. X-rays taken at this time showed duodenal scarring and 50 percent food retention after six hours, indicating partial obstruction (normal emptying time being about three hours). However, it was concluded that plaintiff was physically capable of performing duties commensurate with Iris rank and experience. After the ulcer became quiescent again in November 1953, plaintiff experienced only minor episodes until October 1954.

29. In October 1954, while plaintiff was in command of the 132d Dispensary at Pusan, he suffered an acute exacerbation of his ulcer. On October 12, 1954, X-rays (GI series) were taken. The report, however, stated that, while “At no time could the duodenal bulb be filled to any normal contour,” nevertheless “No ulcer crater” was “visualized” and there was only 10 percent retention in the stomach after four hours. The recorded impression was “Deformed duodenal bulb and possible pylous, but with no great obstruction.” Plaintiff’s symptoms, however, were becoming more severe. He experienced sharp pains practically daily and especially at night, causing considerable insomnia. This condition lasted throughout his remaining period of assignment in Korea, i.e., to January 1955. He again experienced distension of the stomach, accompanied by nausea and vomiting. The distension was caused by the inability of the food to pass freely through the pylorus (the sphincter muscle that divides the stomach from the duodenal cap and the duodenum) into the small intestine. [Retention of the food in the stomach caused distress and vomiting. As a result, plaintiff was compelled to have multiple feedings with less food intake per feeding, which treatment, however, gave only partial relief. The obstruction of the passage to the intestines was due to the following Conditions affecting the pylorus or duodenum, or both: spasm, irritability, or edema (swelling) due to ulcer irritation; scar tissue resulting from ulceration; damage to the mechanism or function of the duodenum; or a combination of such conditions. During this period, he experienced one episode of hematemesis and four of melena.

30. On January 24, 1955, plaintiff was returned to the United States for service at the Army Hospital at Fort McPherson, Georgia. However, he first spent a month on leave at home attempting to recuperate. His symptoms nevertheless continued, so that when he reported to Fort McPherson, he was still having difficulty. He received some treatment at the hospital on an outpatient basis. His symptoms were, furthermore, increased by the preventive therapy treatment for malaria which plaintiff was required to undergo and which was required of all returnees from the Far East. He had two minor hemorrhages in February 1955, and complained of almost constant pain. Plaintiff was, on March 9, 1955, examined and treated by the Chief of Medicine at Fort McPherson. On March 14,1955, plaintiff had an X-ray series at Fort McPherson which indicated a marked initial pylorus spasm “which prevented any barium from entering the duodenum” until after a 30-minute relaxation. The “Impression” was “Marked pyloric stenosis” (i.e., a narrowing or partial closing of the opening of the region of the pylorus. Plaintiff suggested hospitalization for his condition but was requested, due to the shortage of doctors, to carry on as best he could and he did. On April 19,1955, plaintiff was reexamined at the Fort and had another X-ray series which indicated a “Marked diminution in the degree of pyloro-spasm since examination on 14 Mar. 55” although pyloro-spasm was still indicated as well as “incomplete filling of the duodenal cap * * * due to spasm or persistent deformity.” The “Impression” was “Pyloro-spasm and spasm with probable deformity of the duodenal cap. Probably due to active duodenal ulcer.”

31. Plaintiff’s symptoms persisted. The Chief of Medicine at the hospital felt that plaintiff should be hospitalized but, as stated, because of the shortage of doctors at the hospital, it was again decided that plaintiff should attempt to carry on, and be did for awhile. However, on June 9,1955, plaintiff was admitted to the Fort Benning, Georgia, Army Hospital for treatment and evaluation. On June 10, 1955, be bad another series of X-rays. The radiologist reported that the “Upper G.I. Series shows definite delay in emptying of the stomach due to extreme spasm of the pylorus. At fluoroscopy, there appears to be a very small ulceration in the center of the very stenotic cap. Spot films of the area are not definitive enough to confirm this, but there was very definite tenderness overlying the area of the duodenal cap.” His “Impression” was “Chronic deformed duodenal cap and marked pyloric stenosis with probable active ulcer.” On June 11, 1955, Captain Heffemon, the Chief of the hospital’s Gastro-enterology Section, reported that he had reviewed all of plaintiff’s X-ray films and that “they all reveal a deformed duodenal cap and some showed apparent craters. The most recent film — done here 10 June 55 — shows deformed cap but no absolute crater.” His diagnosis was “Duodenal ulcer — Active” and his recommendation was that plaintiff appear before a medical board “for consideration of separation from the service.” Plaintiff remained at the hospital until June 21, 1955, his pains generally subsiding but still being experienced at night. During his stay at this hospital, plaintiff registered complaints regarding his treatment and care, criticism being especially directed against his ward officer. On June 20,1955, Captain Heffemon made a final review of plaintiff’s case. He concluded that, since plaintiff’s ulcer “was confirmed while a V-12 student,” the ulcer was incurred in “line of duty.” He further stated, “However, he has been on active duty at this time in the Army with a problem that he did have prior to this tour of active duty.” After taking note of plaintiff’s complaints concerning his treatment at the hospital, he concluded: “On further clinical appraisal of this man while under our observation, I still believe that he has an active duodenal ulcer but I do not believe that it can be officially construed as aggravated by military service as defined by AE 600-140. It is, therefore, still my recommendation at this time as a consultant in Gastroenterology that this man be allowed to be separated through normal channels with a P-3 Profile.”

On June 21, 1955, plaintiff was transferred back to Fort McPherson for further action.

32. On June 21, 1955, plaintiff was admitted to the Army Hospital at Fort McPherson as an ambulatory patient. He continued to complain of pain, especially during the night, and nausea. He was placed on an ulcer diet, with small feedings throughout the day, and given medication, but experienced little relief. On June 24,1955, plaintiff was examined by Captain Fishman, Chief of Medicine at the hospital, who found that plaintiff at that time was “in no acute distress,” that he had “slight tenderness in the upper quadrant of the abdomen” and that the April and June X-rays “showed a chronically deformed duodenal bulb with pyloric stenosis with a probably active ulcer.” On the same day, the Disposition Board at the hospital diagnosed plaintiff’s condition as “Ulcer, duodenum, * * * with pyloric obstruction.” The condition was found to have originated in 1945 and to have been permanently aggravated by active duty. The Board recommended that plaintiff appear before a physical evaluation board. On June 30, 1955, plaintiff was notified to appear on July 5,1955, for a hearing before an Army Physical Evaluation Board.

33. (a) On July 5, 1955, a Physical Evaluation Board convened at Fort McPherson to consider plaintiff’s case. Plaintiff was represented by counsel and testified personally, giving the complete history of his service and describing his ulcer difficulties in considerable detail. He testified to the severe trouble, including hemorrhages, that he experienced in October 1954 when he was in Korea, and stated that his symptoms had been constant since then, including almost continuous pain and difficulty in food retention, resulting in frequent episodes of vomiting. He stated he had not had a symptom-free day since October 1954. He described his difficulties in serving as a resident physician at the Army Hospital at Fort McPherson while experiencing the pain and the other symptoms incident to his ulcer, and his finally becoming a patient himself, first at the Army Hospital at Fort Benning and then at the Army Hospital at Fort McPherson. The medical witness was Captain Fishman, who described his examination and treatment of plaintiff. He testified that plaintiff was being treated with an nicer diet and with antispasmodics to relieve his “pain due to spasm due to the peptic ulcer and due to gastric tension secondary to pyloric stenosis” but that the treatment had been “only moderately successful” since “there has been continued evidence of pain with recurring varying degrees of distress secondary to pain,” and it was “necessary to continue this regime with small feedings because of the patient’s intolerance to full meals, again because of the stenosis.” He stated that, although “the expectations are small that this would help,” he thought that “a very carefully supervised prolonged course of medical therapy to obtain complete and accurate evaluation of the response at the present time” should be undertaken since plaintiff’s record did not indicate that plaintiff had ever had such “a prolonged course of medical therapy under ideal conditions” since his aggravated symptoms had commenced. He felt that if such treatment was unsuccessful, plaintiff should undergo surgery. He testified he would rate plaintiff’s ulcer condition as “moderately severe” under the VA Bating Disabilities Schedule since plaintiff had experienced recurring incapacitating episodes averaging ten days’ duration several times a year. He stated that although plaintiff’s history of hemorrhages would warrant a “severe” classification rather than “moderately severe,” he felt that the absence of any evidence of chronic anemia or malnutrition due to such hemorrhages precluded such a “severe” classification. He testified that “there is definite impairment of health here” and that he did not believe that, in his then condition, plaintiff could carry on a “normal medical practice” and that his ability to engage in the practice of medicine was impaired. He felt that at that time plaintiff was “totally incapacitated for routine medical practice” since “he should be under full time medical therapy,” and further felt, considering plaintiff’s history, he would not (assuming the absence of successful long-time medical or surgical therapy) ever be able to “participate in a full-time medical practice without danger to his health.” He stated: “I think it will always be necessary to modify the field of medical practice in which he participates or to curtail his activities to a degree that a normal individual would not be subjected to.” He stated that his conclusions as to plaintiff’s condition were not based solely on plaintiff’s own description of his symptoms but also on the X-rays, which showed a “certain degree of spasm which accounted for part of this obstruction” and “a definite fixed area of stenosis” so that “at no time” was “the passage of material from the stomach * * * free of any obstruction.”

Colonel Louis Jobe, a doctor in charge of the Fort McPherson hospital, also testified to plaintiff’s symptoms and treatment at the hospital. He, too, expressed the opinion that plaintiff was physically incapacitated for Army duty of the type he was called on to perform at the hospital at Fort McPherson and that his ability to carry on a civilian practice would be impaired.

(b) The Board found that plaintiff was permanently unfit for military service by reason of a moderately severe ulcer, that it originated in 1945 during his naval service, that it was incurred in line of duty, and that it was permanently aggravated by his service in 1954 and 1955. It determined that plaintiff’s degree of disability under the VA Schedule for Eating Disabilities was 40 percent and that at the time of his entry in service, it was zero percent “non-service connected.” The president of the Board wrote the following conclusion based upon the proceedings:

The 'board considered the case of Captain Antonio A. Versaci who was present with his counsel. After a thorough review of all the pertinent medical records, it was the considered opinion of this board that this officer is physically unfit to perform the duties of his office, rank, or grade. This decision was based essentially on the following highlights: the presence of symptoms which originally were periodic in nature and at the present time are continuous in nature render the individual physically unfit to perform his duties as a medical officer; the presence of x-ray findings and symptoms indicative of pyloric stenosis and food retention of the stomach which force this individual to partake of repeated small feedings throughout the day. The objective and subjective signs and symptoms of Ms condition arc believed to lrnve been aggravated by military service. Tlie condition of neuritis of the left ulnar nerve is not considered disabling by the medical board and this board, and the individual, in sworn testimony, stated that he had no claim against the government for this condition. When considering this individual’s present physical condition, he is 'beyond any doubt physically incapacitated to continue in any capacity in Ms office, rank, or grade. Further, following separation from the military service, this individual’s capacity for gainful civilian occupation will be comparably impaired.

34. On July 15, 1955, plaintiff filed a rebuttal to the Physical Evaluation Board’s findings. Plaintiff requested an increase of disability rating to 60 percent, based primarily upon a dietary study at the hospital showing that, in spite of complete rest and forced feeding, Ms weight had not stabilized (160 pounds on May 11, 1953; 152 pounds in 1954; 161 pounds in 1955) and he had nutritional deficiencies in calories, iron, tMamine, niacin and ascorbic acid.

35. (a) On August 16, 1955, the Army Physical Keview Council in the Office of the Adjutant General, WasMng-ton, D.C., wMch Council was responsible for reviewing all cases considered by physical evaluation boards, made the following recommendations for modifications of the findings of the Physical Evaluation Board: (1) that the disability be considered as “may be permanent” (instead of “permanent,” as the Board had determined); (2) that plaintiff’s disability at the time of “entry into service” was 10 percent, instead of zero as found by the Board; and (3) that the net disability rating was 30 percent instead Of 40 percent.

The Council stated:

ib. According to evidence of record and well established medical principles, your duodenal ulcer originated prior to military service but was aggravated during service. Your physical defect was ratable at 10 percentum at the time of entry into active military service and at 40 ipercentum under code number 7305, VA Schedule for Eating Disabilities, lat the time _ of final evaluation. Therefore, the net disability resulting from aggravation during service is 30 percentum.
c. Your disability is of such nature that it may improve sufficiently within a five (5) year period to render you fit for military service and, therefore, is considered “may be permanent” according to paragraph 28c(1) (a), Change 3, SE 600-450-5, justifying reevaluation in eighteen months.

(lb) On the same day, plaintiff wrote that he accepted the findings of the Council, but requested the Adjutant General to inform him “* * * which agency assumes responsibility for the ten percent (10%) service connected disability * * There is no answer of record to this query.

36. On August 31,1955, plaintiff, “having been determined to be unfit for duty by reason of physical disability of 30 percent incurred while entitled to receive basic pay” was separated from the Army “for temporary physical disability” and, effective September 1, 1955, placed on the Temporary Disability Eetired List in the grade of Captain, rated 30 percent disabled. Plaintiff thereupon entered upon the private practice of medicine, but restricted his hours of work.

37. Paragraph 55 of AE 40-504, dated June 28, 1955, entitled “Standards Of Fitness And Unfitness For Eetention On Active Duty,” which was in effect at the .time plaintiff was placed on the Temporary Disability Eetired List on September 1,1955, read as follows:

Ulcer, peptic. Ulcer, peptic, active (gastric and duodenal) may render the individual unfit. When the ulcer heals and there is no niche or ulcer crater shown by x-ray, the ulcer diathesis with scarring will not usually be considered a sufficient reason for finding the individual unfit. When symptoms persist to at least a moderate degree following adequate medical treatment, or where there is a history of frequent recurrences, it is necessary to individualize in each case, but generally these individuals, unless well motivated, should ¡be considered as unfit for service. If the ulcer existed ¡prior to entry on active duty, the ulcer will not be considered as permanently aggravated by the service unless one of the following conditions has occurred in the service:
a. Obstruction,
b. Perforation,
c. Kecurrent bleeding, or
d. After prolonged hospitalization or medication and ulcer regime, the symptoms and x-ray evidence of active ulcer persist.

38. (a) On August 31,1955, plaintiff filed an application for disability compensation with the Veterans Administration. He was examined by a VA doctor on November 15, 1955, and a GI series examination, with fluoroscopy, was conducted on November 22, 1955. The radiologist reported that the duodenal bulb was deformed and appeared to be “plastered behind the stomach”; that there was “a wide, eccentric pylorus and a suggested ulcer crater at the tip”; that the “postbulbar duodenum” (the part of the duodenal bulb farthest from the stomach) was “narrowed and its mucosal pattern is coarsened.” The conclusion was “Evidence of chronic duodenal ulcer. Probably active duodenal ulcer in the immediately postbulbar region.” On December 13, 1955, the final diagnosis of the VA doctor was “Chronic active duodenal ulcer.”

(b) On December 30,1955, the VA rated plaintiff 40 percent disabled by reason of his ulcer from September 1,1955, the day after his release, such 40 percent being stated as an aggravation, resulting from his “Active duty from 7/1/53 to 8/31/55,” from the 10 percent incurred in service “from 4/1/46 to 6/30/53.” By letter of January 5,1956, the VA so notified plaintiff, stating that “It was determined that your ulcer was aggravated during your Korean service and is 40% disabling from September 1, 1955,” and that “You would be entitled to compensation of $66.00 a month except that you are in receipt of retirement pay.” This disability rating has not been changed.

39. (a) On February 5, 1957, plaintiff had his first periodic physical examination at the Naval Hospital, St. Al-bans, Long Island, New York, and appeared before a Medical Board at the hospital. The Board found plaintiff to have a chronic duodenal ulcer, with “scarring and resultant stenosis.” It concluded that “Patient is unfit for military duty” and recommended that plaintiff appear before a Physical Evaluation Board for reevaluation because the “Disability has become permanent.”

(b) On March 31, 1957, the Board’s recommendation for reevaluation by a Physical Evaluation Board was disapproved and plaintiff was retained on the Temporary Disability Eetired List.

40. During this period, and while engaged in private practice, plaintiff still experienced ulcer symptoms of pain, and required six-to-eight times’ daily feedings. He was under the care of physicians for his condition. He normally took antacids but during periods of unusual activity or when he was able to obtain less than 8-9 hours’ rest daily, he suffered more frequent recurrence of symptoms and required additional therapy. In the summer of 1957, there was an episode of melena.

41. (a) On July 8, 1958, plaintiff underwent his second periodic examination at the Army Hospital at West Point, New York, and in connection therewith was hospitalized there for three days, during which, on July 10, 1958, he had another GI series. The radiologist reported that plaintiff’s stomach had emptied without difficulty although “the duodenal bulb never filled out completely, showing constriction of its distal half.” His “Impression” was “Deformed duodenal bulb, secondary to duodenal ulcer.” On July 19, 1958, a Medical Board at the hospital, noting plaintiff’s “episode of melena in the summer of 1957, but no symptoms suggestive of obstruction,” reported that upon entry to the hospital, plaintiff had “abdomen tenderness on deep pressure in the epigastric area” and, despite a six-feeding bland diet during his three-day hospitalization, on discharge “tenderness in the mid-epigastrium was still present.” It was concluded that plaintiff had a “chronic duodenal ulcer with exacerbations and remissions.” The Board stated that plaintiff’s “present environment of private practice has been adjusted to his limitations of rest and diet,” that [ujnder these conditions be is able to function normally,” but that “[deviation from this routine would very probably result in a flareup of symptoms and findings.” Its “Diagnosis” was “Ulcer, duodenum, * * * without obstruction but with history of hemorrhage,” and its “Recommendations” were: “This member’s diseases have incapacitated him for further military service. In a restricted environment he is able to perform satisfactory work in civilian life. Recommend that member appear before a Physical Evaluation Board with a view to permanent disability retirement.” The Board concluded that plaintiff’s “[disability has become permanent.”

(b) The Board’s recommendation that plaintiff’s case be reviewed by a Physical Evaluation Board was approved.

42. On or about July 28, 1958, plaintiff went through another hemorrhage experience which lasted two days.

43. (a) On August 28,1958, a Physical Evaluation Board was convened at Headquarters, First United States Army, Governors Island, New York, to consider plaintiff’s case. Plaintiff was present and was represented by counsel. Plaintiff, after being sworn, testified that he was then unable to carry on his activities normally, having had to restrict his practice considerably; that he had constant difficulty with his ulcer; that about half the time he could not obtain a full night’s sleep; that it was necessary for him to maintain a careful diet; and that he felt the 40 percent disability rating should be increased. He stated that when the rating was assigned in 1955, the injury to his left elbow was not considered a disability factor and that he had waived any rights he had with respect thereto, but he felt that since, after an operation thereon in September 1956, it had developed into a “neuro-pathy of the ulnar nerve,” the matter should be reconsidered. As to his ulcer, he testified that the month before he experienced another hemorrhage, lasting about two days, and that his condition, instead of stabilizing, was becoming worse.

(b) Thereupon the Board, on that day, after consideration, found plaintiff “physically unfit for further military service” by reason of (1) “Ulcer, duodenum, without obstruction but with history of recent hemorrhage” which was rated 40 percent, less 10 percent for the condition which it considered as having existed prior to service (EPTS), making “a net total of 30 percent;” and (2) plaintiff’s left ulnar nerve condition, to which it assigned a disability rating of 10 percent. It stated that it considered plaintiff’s “condition may be permanent” and recommended that he be retained on the Temporary Disability Retired List “with 30 percent disability and with further reexamination and reevaluation on or about 1 September 1959.”

(c) The Physical Evaluation Board’s recommendation was then referred to the Army Review Council. The Council, after a complete review of the evidence and records that had been considered by the Physical Evaluation Board, recommended approval of the Board’s recommendation, and on September 12,1958, plaintiff was notified that the Adjutant General had, on behalf of the Secretary of the Army, approved the recommendation of the Council.

44. In late 1958, plaintiff experienced an episode of hepatitis which disabled him. After the condition cleared up sometime in 1959, it was followed by a period when the ulcer condition became extremely troublesome. When plaintiff was finally able to resume his practice around July 1959, he found it necessary to reduce the restricted work-hour schedule on which he had formerly been by 50 percent, thereby also cutting his practice in half.

45. (a) On September 8, 1959, plaintiff underwent his third periodic physical examination at the Army Hospital at West Point, New York, and in connection therewith had another GI series. The radiologist reported that the stomach had emptied promptly, that “the base of the duodenal bulb filled out well but its distal half is constricted * * and that he felt there was “a diverticulum protruding from the apex of the bulb on the greater curvature side,” which he thought represented “residual scarring of the distal half of the duodenal bulb secondary to a healed duodenal ulcer.” His “Impression” was “Deformed duodenal bulb, secondary to a healed duodenal ulcer.” At this time, plaintiff was feeling better, Ms ulcer condition apparently being in a state of remission. A Medical Board met at the 'hospital on September 21, 1959, and diagnosed plaintiff’s condition as “ulcer, duodenum, * * * without obstruction but with Mstory of hemorrhage” and “neuropathy, * * * ulnar nerve, left, post-traumatic.” Although it concluded that plaintiff’s ulcer condition had been “permanently aggravated by active duty” and that Ms “Degree of Disability For Military Service” was “Permanent,” in its “Diagnosis” dated October 8, 1959, it stated that plaintiff’s condition “may be permanent,” and recommended that plaintiff “be continued on TDEL [Temporary Disability Betired List] status.” The Board’s “Clinical Abstract” stated, after recounting plaintiff’s hepatitis and other difficulties, that “[w]ithin the past two months, however, the patient states that he has been able to return to his practice of medicine, has regained Ms appetite together with his weight of a year ago, and now feels well.”

(b) On October 8, 1959, plaintiff was advised by the Adjutant General that since “your disability has not stabilized, you will continue as a member on the temporary disability retired list.”

46. Following his tMrd periodic examination, plaintiff experienced epigastric burning pain two-to-three times weekly, and was on antacid medication. Occasionally he was awakened at around 3 a.m. by pain. He continued to conduct his medical practice on the reduced 50 percent basis.

47. On February 24, 1960, plaintiff underwent his fourth and final periodic physical examination at the Army Hospital, St. Albans, New York, at which time a Medical Board met to consider his case. The Board reviewed plaintiff’s history, including his symptoms and condition since his laát periodic examination approximately five and one-half months before (i.e., the epigastric burning pains, the antacid medication, the pains during the night, and the continued maintenance of his practice on the 50 percent basis). The Board concluded that the previous diagnoses were still appropriate, and that the ulcer disability “persists” but that the ulnar nerve condition “has improved to 75% of normal function.” As had each of the other Medical Boards, it too con-eluded that the ulcer was “Permanently Aggravated By Active Duty.” It recommended that plaintiff appear before a physical evaluation board for reevaluation. This recommendation was approved. Plaintiff elected not to be present at the convening of the Physical Evaluation Board.

48. A Physical Evaluation Board convened at Governors Island, New York, on March 24, 1960, to consider plaintiff’s case. After consideration, the Board found plaintiff to be “physically unfit for further military service by reason of: Ulcer, duodenum, without obstruction, but with history of hemorrhages, moderately severe,” with a disability rating of 40 percent, minus 10 percent for the disability that existed prior to entry upon Army service, making a net total of 30 percent. It stated that it considered plaintiff’s “condition is permanent” and recommended “that he be permanently retired with thirty (30) percent disability.”

49. On May 3,1960, plaintiff was advised by the Adjutant General that the Physical Evaluation Board proceedings had been reviewed by the Army Physical Review Council and that the Council had “recommended that you be deemed physically fit for the performance of active military duty commensurate with your age and rank. This finding is in accord with current Army medical standards of fitness and unfitness for retention on active duty. (Paragraph 1, AR 40-504, and physical standards for Special Registrants under Public Law 779).”

The record does not indicate any analysis of the evidence that was made by the Council for the purpose of sustaining its conclusion that plaintiff was physically fit for active military fiuty, nor, other than the above quotation, does the record indicate that it gave any explanation of or reasons for its conclusion.

50. On May 9, 1960, plaintiff, by the submission of a rebuttal, contested the Physical Review Council’s recommendation. Plaintiff’s case was therefore referred to the Army Physical Disability Appeal Board.

51. By letter of June 7, 1960, plaintiff was advised by the Adjutant General that the Army Physical Disability Appeal Board, after reviewing the proceedings of the Physical Evaluation Board, the recommendation of the Army Physical Review Council, and plaintiff’s letter of rebuttal, concurred in the findings of the Review Council that plaintiff was physically fit for active duty. There was again no analysis of the evidence or any reasons given upon which the concurrence was based.

Plaintiff was further advised that, effective June 30, 1960, his name would be removed from the Temporary Disability Retired List. Enclosed with the letter was an application for recall to extended active duty. Also enclosed was an extract copy of Department of the Army Special Orders showing that plaintiff had been determined under the provisions of 10 U.S.C. § 1210(f) “to be physically fit for active duty * * * >5

52. On June 30, 1960, plaintiff was removed from the Temporary Disability Retired List, and his disability retirement pay ceased as of such date.

53. (a) AR 600-140, dated October 28, 1958, governed findings of service incurrence and aggravation at the time plaintiff was removed from the Temporary Disability Retired List on June 30, 1960. Paragraph 21b of this regulation provided:

It is * * * presumed that * * * any additional disability or death resulting from the pre-existing injury or disease was caused by service-aggravation. Only specific findings of “natural progress” of the pre-existing injury or disease based upon well-established medical principles, as distinguished from medical judgment alone, are sufficient to overcome the presumption of service aggravation.

Paragraph 21c of AR 600-140 provided:

Any disability having its inception “in line of duty” during one period of service or authorized training in any of the Armed Services which recurs or is aggravated during a subsequent period of service or authorized training, regardless of the intervening time, should be determined to have recurred or have been aggravated in line of duty * * *.

(b) AR 40-1025, dated December 12, 1944, and AR 600-140, dated February 12, 1953, the predecessors of AR 600-140, contained the same presumptions. Paragraph 63(g) of AR 40-1025 provided:

Advancement of conditions such as peptic ulcer can be expected from unusual exertion, exposure, emotional stress or strain or other adverse influence of service.

(c) On February 6,1959, Paragraph 55 of AR 40-504 was superseded, the new provision reading as follows:

55. (Superseded) Ulcer, peptic. Active peptic ulcer (gastric and duodenal) may make the individual unfit. It is necessary to individualize in each case. Generally an individual should be considered as unfit for service when symptoms persist to a severe degree following adequate medical treatment and when there is a history of frequent recurrences, obstruction, perforation or recurrent bleeding. If the ulcer existed prior to entry on active duty, the ulcer will not be considered as permanently aggravated by the service unless one of the following conditions has occurred in the service:
a. Obstruction,
b. Perforation,
c. Recurrent bleeding, or
d. Persistent symptoms and X-ray evidence of an active ulcer after prolonged hospitalization or medication and ulcer regime.

This paragraph was in effect at the time plaintiff was removed from the Temporary Disability Retired List.

54. On October 18, 1961, plaintiff, through counsel, applied to the Army Board for Correction of Military Records to correct his records to show that he was permanently physically unfit for active duty on June 30, 1960, with a disability rating of 40 percent and eligible for disability retirement. The application was accompanied by a brief.

55. (a) The Correction Board requested the Surgeon General to submit a medical evaluation. On August 9, 1962, the Surgeon General’s Office advised the Board that, based upon a review of the records in plaintiff’s case:

3. The opinion is expressed that there is no medical evidence that the applicant had an active duodenal ulcer at the time of separation, that he was fit for active military service at the time of his separation, and that his complaint of error or injustice in the medical aspects of his separation from the service is not substantiated by the recorded medical evidence.

(b) A copy of this opinion was sent to plaintiff.

56. Sometime in 1963, plaintiff, because of his condition, gave up the private practice of medicine. He became a resident at a Cleveland hospital, working and experimenting in the field of artificial kidneys.

57. Plaintiff’s counsel construed the Surgeon General’s opinion as based upon the conclusion that plaintiff was fit according to the physical standards for medical registrants under Public Law 779 (the brief factual narrative stating that plaintiff had been “taken into the Service by the Doctor draft under Public Law 779 * * * ”). Therefore, on November 12, 1963, he requested permission to submit a supplementary brief addressed to such question. Such a brief was submitted on December 18,1963.

58. Sometime in 1964 plaintiff became employed by a private company making artificial kidneys. His work consisted principally of research and writing. It did, however, require some travel and talks with doctors to ascertain their needs.

59. On December 16, 1964, the Correction Board held a hearing in plaintiff’s case, at which plaintiff appeared and was represented by counsel. Plaintiff, the only witness, testified, among other things, that upon release in 1955, he entered private practice but could not, because of his condition, practice full time, and that instead, because of pain and lack of sleep, he had practiced only on a restricted basis, finally working about four hours a day; that in November 1962 he had had a hemorrhage and was hospitalized, and that since then he had experienced several episodes of melena; that in 1963 he ceased practicing and commenced experimenting with artificial kidneys; and that he was then employed by a company making such kidneys, doing research work and writing.

Thereupon, the Board concluded that, although prior to plaintiff’s Army appointment “he had a documented history of active duodenal ulcer,” nevertheless, upon “his removal from the Temporary Disability Retired List, there is no recorded, verified, or documented period of ulcer disease, to a degree to warrant a finding of unfitness for duty”; that following his placement on the Temporary List “there is no evidence of necessity for prolonged or frequent hospitalization, other than for periodic evaluation, unequivocal X-Ray findings of ulcer activity, objective and verified episodes of recurrent bleeding, or perforation or obstruction”; that the Board concurred in the Surgeon General’s opinion; and “[t]hat inasmuch as authority existed for inducting Special Registrants who were considered to have disqualifying defects, this policy must be considered in final physical evaluation ; otherwise, all Registrants inducted with such defects would be found unfit for duty at time of separation and retired for disability, without respect as to whether sufficient permanent aggravation of such condition was incurred during service to warrant retirement therefor.” Accordingly, the Board concluded that “the finding that the applicant was fit for duty at time of removal from the Temporary Disability Retired List, was not in error or unjust.” It therefore recommended that plaintiff’s application be denied.

60. (a) On February 10,1965, the Secretary of the Army approved the findings, conclusions and recommendation of the Correction Board, and denied plaintiff’s application for correction of his military records.

(b) Plaintiff’s petition herein was filed on March 30,1965.

61. Since his appearance before the Correction Board, plaintiff has continued to suffer pain from his ulcer, especially, on a fairly constant basis, a dull type of pain in the upper gastric region. He periodically suffers sharp pains, sometimes as much as twice a month, such episodes lasting as long as ten days. An unusual quantity of work or tension has a tendency to bring on such painful periods. He frequently suffers from sleepless nights and vomiting. He maintains an ulcer regimen. He indulges in several (six-seven) small feedings daily, maintains a bland diet, and takes antacid medication. In March 1966, he terminated his employment which, he felt, involved too much traveling and irregular hours. At the time of the trial herein in June 1966, he was unemployed. He was hoping, however, to 'become associated with some hospital where he could continue, in a supervisory capacity, in his kidney specialization.

62. The Veterans Administration Schedule for Eating Disabilities (1945 ed.), Diagnostic Code 7305-7306 for duodenal ulcer, was, during the times here pertinent, as follows:

Rating
Pronounced; with continuous symptoms; marked anemia, malnutrition, and impairment of health without periods of remission, totally incapacitating _ 100
Severe; with continuous manifestations of moderate anemia, with definite malnutrition and impairment of health, or frequently recurring hemorrhages with considerable loss of weight and anemia, or postoperative with definite partial obstruction shown by X-ray, and general impairment of health with frequent and prolonged episodes of vomiting_ 60
Moderately severe; with continuous manifestations of anemia, malnutrition and impairment of health or with recurring incapacitating episodes averaging 10 days in duration and occurring several times a year_ 40
Mild; with recurring symptoms only once or twice a year_ 20
Latent; or postoperative, healed, without subsequent symptoms in past two years_ 0
Note — Eatings for postoperative adhesions, or psychoneurosis with predominately gastric fixation, are not to be combined with the above ratings.

63. (a) At the trial herein, plaintiff produced as an expert witness Dr. William Travis Gibb, and defendant produced as its experts Dr. Henry W. Boyce, Jr., and Dr. Everett B. Cooper.

(b) Dr. Gibb, a Washington, D.C., specialist in internal medicine and gastroenterology, had practiced for about 37 years. He served in the Naval Medical Service for approximately four years in World War II, and in the course of such service wrote thousands of medical surveys for the Navy. He has been the head of the Gastroenterological Clinics at Emergency Hospital in Washington, D.C., and the Washington Hospital -Center, as well as the Chief of Medicine at Suburban Hospital in Bethesda, Maryland. He is a member of the American Board of Internal Medicine and Gastroenterology. He had not examined plaintiff and testified only on the basis of the records in the case. He testified that exacerbations and remissions are characteristic of chronic duodenal ulcers, the remission resulting from temporary healing, the exacerbation resulting from the ulcer’s recurring or opening up again; that when there is a history of such exacerbations and remissions, the indications are that there is no permanent healing but that instead there is a basic underlying pathological process; that exacerbations may be caused by trying psychological situations, radical changes in environment, and certain dietary conditions; and that the usual ulcer dietary regime is a bland, low residue one, with six feedings a day, the medication consisting of antacids and anticholinergics (intestinal tract spasm preventatives). Adequate sleep and rest are prescribed. He expressed the opinion, on the basis of the records in the case, that plaintiff was unfit for military service both in 1955 and 1960; that in 1960 his condition was worse than it had been in 1955; that it would be a rare situation for anyone who had an ulcer as long as plaintiff had to become permanently healed; that to obtain even limited improvement, diet and emotional state are more important than medication; that obstruction would be only one factor in determining fitness for duty, as would the occurrence of hemorrhages, a proved ulcer, without either obstruction or hemorrhaging, alone being disabling; that obstruction in itself is subject to exacerbation and remission; that in the military, one with an ulcer would not be fit for general duty and could possibly serve only on limited duty in some office type of work and with appropriate diet; and that a physician with an nicer who conld function on only a 50 percent medical-practice basis in civilian life would certainly not be fit to function as a doctor in the military.

(c) Lt. Col. Boyce, at the time he testified, was Chief of the Gastroneurology Service at Walter Reed General Hospital in Washington, D.C. Prior thereto he had been Chief of the similar service at Brooke General Hospital, Fort Sam Houston, Texas. He had been in the Army Medical Corps for over eleven years. He is Board-certified in internal medicine, with a subspecialty in gastroneurology. He had not examined plaintiff. He testified that hemorrhage and obstruction are major ulcer complications; that obstruction may occur as the result of edema (swelling), which is a transient condition, or as a result of scar tissue formation, which, in varying degrees, is permanent; that, in his opinion, the obstructions plaintiff experienced were of the transient type, since the various X-rays over a period of years reflected both obstruction and no obstruction; that, since the later X-rays, i.e., those taken while plaintiff was on the Temporary Disability Retired List showed no obstruction, there had been an improvement in this particular condition, which indicated the condition was not due to the existence of permanent scarring (at least to a significantly obstructive degree) ; that plaintiff’s having six feedings a day was not necessitated by any condition of obstruction; that the only hemorrhage incident he detected in the record while plaintiff was on the Temporary Disability Retired List was the incident plaintiff referred to before the Physical Evaluation Board as having occurred in 1957; that, in his opinion, the proper diagnosis in 1960 when plaintiff was removed from the Temporary List would be chronic duodenum ulcer, without obstruction, probably active, with a history of hemorrhages ; that, on the basis of the frequency of hemorrhages, there was, in his opinion, no significant difference between plaintiff’s condition when he returned to active duty in 1953, with a hemorrhage experienced six months before, and his condition in 1960 (although, he did admit that the record showed that in 1953, when plaintiff returned to active duty, he was asymptomatic, while in I960 he was having symptoms two or three times a week); that, in his opinion, plaintiff was not, except for the Eosenberg policy, fit for duty in 1953; and that, in his opinion, one with an active ulcer need not maintain any particular diet or other regimen, although he did admit that difficult climatic conditions, a poor diet, and undue stress and strain could aggravate an ulcer condition.

(d) Dr. Cooper was, at the time he testified, the Assistant Medical Consultant in the Office of the Surgeon General, advising the Army Board for Correction of Military Eecords on medical standards matters (i.e., the application of medical principles and diagnoses to the various laws and regulations relating to the field of internal medicine). Prior thereto he had served as Chief of the Medical Outpatient Clinic at Walter Eeed General Hospital and as Chief of Medicine at Kimbrough Army Hospital. He is certified by the American Board of Internal Medicine (but not in the subbranch of gastroneurology). He too had not examined plaintiff but had reviewed the records in the case (but not plaintiff’s prior testimony before the court). He testified that, in his opinion, when plaintiff entered active duty in 1953, his ulcer was probably active, his record indicating a troublesome history of ulcer complicated by the hemorrhage episodes since 1945; that during his active Army service period of around two years, he continued to have difficulty, with several episodes of bleeding and evidence of obstruction, plaintiff’s condition being, in his opinion, worse in 1955 than it was in 1953: that, in his opinion, the worsening of plaintiff’s condition from 1953 to 1955 was due to natural progression and not to aggravation due to his Korean service, although such progression could, he felt, be considered as a reaction to the stresses plaintiff experienced while in Korea; that, in his opinion, however, while plaintiff was on the Temporary List from 1955 to 1960, his condition improved, since, as to bleeding, the witness could find only the one 1957 incident, and as to obstruction, there was a remission from the condition existing in 1955, although, in his further opinion, the ulcer bad not permanently healed, the scarring of the duodenal bulb shown by the X-rays taken during the period, and plaintiff’s requiring more rest, a special diet, and medication, all indicating ulcer disease activity; that in February 1960, at the time of plaintiff’s final evaluation and disposition, and considering the symptoms he then had of still active ulcer disease (pain occurring two to three times a week), plaintiff’s condition was not, in his opinion, substantially different from what it had been in 1953; that, but for the Rosenberg standards or policy, plaintiff, when he was called to duty in 1953, would not have been considered fit for duty, nor would he have been so fit in 1960; that, as the Rosenberg policy was interpreted and applied by the Army, doctors with an ulcer such as plaintiff had, who could perform duties as physicians in civilian life could, despite the directed exclusion of those with peptic ulcers “complicated by obstruction or verified history of repeated hemorrhage,” be considered, as a matter of judgment, capable of performing the same duties in the military, and therefore properly subject to call (although the witness would personally have exercised his judgment so as to exclude plaintiff from service on the “repeated hemorrhage” basis); and that, under such policy, service-incurred aggravation of the disease would be com-pensable but, in his opinion, there was in fact no such aggravation in this case (i.e., comparing 1953 with 1960).

64. (a) Defendant concedes that when plaintiff was called to duty in 1953, he was physically unfit for military duty and that he was accepted for service only because of the special rules and regulations applicable to medical personnel as enunciated in the Rosenberg standards or policy, under which policy doctors were called to duty even though they had disabilities which would ordinarily render them unfit for duty.

(b) Defendant further concedes that there is no disability in this case that can properly be considered as noncompen-sable due to the fact that it existed prior to service, the references by the Army to plaintiff’s disability being “EPTS” (existing prior to service) referring only to plaintiff’s service as an officer.

Ultimate Finding

65. At tbe time of bis removal from the Temporary Disability Retired List on June 30, 1960, plaintiff was not physically fit to perform the duties of his office, grade, or rank. The 40 percent disability for which plaintiff had been carried on the list since September 1, 1955, still existed and should have been considered as permanent. Accordingly, plaintiff should, as of such date, have been retired with disability pay based upon such a 40 percent disability rating.

Conclusion op 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 plaintiff is entitled to recover disability retirement pay, computed on the basis of a disability rating of 40 per centum, from the day following the date of his removal from the Temporary Disability Retired List, less such deductions as may be appropriate, and judgment is entered for plaintiff in the sum of $18,034.46 in accordance with the recommendation of the commissioner and the stipulation of the parties as adopted by the court. 
      
       Plaintiff’s condition was aggravated by the preventive therapy treatment for malaria that returnees from the Par East were required to undergo.
     
      
       Plaintiff inquired, however, concerning “which agency assumes responsibility for the ten percent (10%) service connected disability * * His inquiry went unanswered.
     
      
       37 U.S.C. § 272 et seq. (1952), now 10 U.S.C. § 1201 et seq.(1964).
     
      
      
         Plaintiff received no VA compensation as a result of this determination, however, because of his then being in current receipt of Army disability retirement pay.
     
      
       One of defendant’s own medical experts (Dr. Everett B. Cooper) testified at the trial that, in his opinion, based on a review of the medical records plaintiff’s condition was worse in 1955 after his Korean service than it was when he entered the service in 1953. (Tr., pp. 201, 212)
     
      
       Despite the constriction, plaintiff's stomach had emptied without difficulty so that the Board concluded tthat plaintiff’s ulcer condition was “without obstruction.”
     
      
       Although the “Proceedings” record stated that the ulcer condition had been “Permanently aggravated by active duty” (Joint Ex. 57, p. 4, Block 26), and that the “Degree” of plaintiff’s “Disability Eor Military Service” was “Permanent” (id., Block 31), nevertheless, the “Clinical Abstract” attached thereto concluded with the “Recommendation” that plaintiff “be continued on TDRL [Temporary Disability Retired List] status,” and the Board’s final diagnosis, made October 8, 1959, stated that plaintiff’s disability “may be permanent.” (Joint Ex. 57, p. 1)
      The disability was rated 30 percent by the Medical Board. As shown, plaintiff’s net disability rating, after deducting the 10 percent that had been waived at the time he reentered service in 1953, was 30 percent. Previously, however, the disability had been specifically set forth as 40 percent, less 10 percent, making a net of 30 percent. The VA Schedule for Rating Disabilities contained no 30 percent rating for ulcer.
      The X-rays again showed no obstruction, despite the same constriction in the duodenal bulb previously indicated. The radiologist’s “Impression” was that the constriction represented “residual scarring * * * secondary to a healed duodenal ulcer.” Obviously, however, the Board did not consider the fact that the radiologist referred to the ulcer as “healed” as indicating plaintiff’s troubles were over since it still considered plaintiff to be permanently disabled to a degree warranting continuation of disability compensation. As previously indicated, the second Medical Board had concluded that plaintiff’s ulcer was "chronic,” but with “exacerbations and remissions.”
     
      
       However, the Board again deducted the 10 percent that had been waived, making a net total disability of 30 percent.
     
      
       “* * * the only purpose of a waiver was to permit the Army to accept or retain In the service critically needed personnel who could not qualify physically for general service.” Cosgriff v. United States, 181 Ct. Cl. 730, 737, 387 F. 2d 390, 394 (1967).
     
      
      
         Id., 181 Ct. Cl. at 737, 387 F. 2d at 394. Procurement standards do not apply in full force to the different issue of retirement for physical disability. Grubin v. United States, 166 Ct. Cl. 272, 333 F. 2d 861 (1964) ; Towell v. United States, 150 Ct. Cl. 422 (1960).
     
      
       Dr. Henry W. Boyce, Jr., Tr., p. 176; Dr. Everett B. Cooper, Tr., pp. 200-04.
     
      
       Dr. Cooper, Tr., p. 199.
     
      
       “If the ulcer existed prior to entry on active duty, the ulcer will not be considered as permanently aggravated by the service unless one of the following conditions has occurred in the service: a. Obstruction, b. Perforation, c. Recurrent bleeding, or d. Persistent symptoms and X-ray evidence of an active ulcer after prolonged hospitalization or medication and ulcer regime.”'' Finding 54(c).
     
      
       Findings 40, 42. Both of defendant’s experts at the trial erroneously referred to only one bleeding incident while plaintiff was on the list.
     
      
       Finding 58.
     
      
       Dr. Henry W. Boyce, Jr.
     
      
       Finding 63(c). Furthermore, the VA Schedule for Rating Disabilities then applicable did not, for the 40 percent duodenal ulcer rating applied to plaintiff, mention either obstruction or bleeding. It merely provided :
      “Moderately severe; with continuous manifestations of anemia, malnutrition and impairment of health or with recurring incapacitating episodes averaging 10 days in duration and occurring several times a. year * *
      In Cooper v. United States, 178 Ct. Cl. 277 (1967), the court awarded disability compensation for a duodenal ulcer condition which, unlike the plaintiff’s situation herein, appears never to have been complicated by any obstruction or bleeding incidents.
     
      
       Plaintiff’s expert testified that obstruction in itself is subject to exacerbation and remission (Finding 63(b)).
     
      
       Finding 41(a). It was this witness’ opinion that plaintiff should not, even under the Rosenberg standards, have been considered fit for duty in 1953.
     
      
       Finding 43(a).
     
      
       Tr., p. 198.
     
      
       Finding 63(d).
     
      
       Finding 27(b).
     
      
       Although plaintiff’s disability was, while be was on the Temporary List, rated 40 percent under the Veterans Administration! Schedule for Rating Disabilities .(finding 62), defendant decided to deduct 10 percent, representing his rated disability at the time of “entry into service” as determined by the Veterans Administration, making a net disability rating of 30 percent instead of 40 percent, his pay being based on such 30 percent basis (findings 35, 36). There appears, however, to have been no warrant for such 10 percent deduction since such 10 percent disability was service-incurred. Beckham v. United States, 183 Ct. Cl. 628, 392 F. 2d 619 (1968). Paragraph 21(c) of AR 600-140, dated October 28, 1958, which was in effect when plaintiff was removed from the list, provided that a disability incurred during one period of service which recurs or is aggravated during a subsequent period, is, regardless of the intervening time, presumed to have recurred or to have been aggravated in line of duty. Finding 53(a). Defendant concedes that there is no disability in this case that can properly be considered as noncompensable due to the fact that it existed) prior to service, the references by the Army to plaintiff’s disability being “EFTS” (existing prior to service) referring only to plaintiff’s service as an officer. (Finding 64(b))
     
      
       See judgment entered for plaintiff in the sum of $18,034.46 based on the stipulation of the parties in the court’s per curiam opinion.
     
      
       Vomiting of blood.
     
      
       Tarry stools due to hemorrhaging.
     
      
       Folds In the mucuons membrane of the stomach.
     
      
       Plaintiff suffered a slight injury to his left elbow as a result of an automobile accident on April 3, 1966, in Atlanta, Georgia.
     
      
       The Career Compensation Act of 1949, 63 Stat. 802, provided (Title IV, Secs. 401-414) that, if a disability was not found to be permanent, but might be, and if it were 30 percent or more disabling under the VA Schedule for Rating Disabilities, the member of the service would be temporarily retired, placed on the temporary disability retired list, and during a maximum period of five years be reevaluated periodically. At the end of five years a permanent disposition would have to be made.
     
      
       Plaintiff’s elbow injury, incurred in his automobile accident, had resulted in a nerve injury which caused some loss of strength in the fourth and fifth fingers of his left hand.
     
      
       “1. Purpose. These regulations establish standards of fitness and unfitness for retention on duty to secure the maximum efficiency and uniformity in the determination of disabilities which warrant disability separation or retirement or warrant retention in the military service. These standards of fitness and unfitness apply to all personnel of the Army and include members who are scheduled for mandatory separation or retirement, except for those members who were previously accepted for military service with some of the disabilities listed herein as rendering an individual unfit (e.g., special registrant with diabetes mellitus) in which case retention standards must be modified consistent with pertinent directives and accepted medical principles. All medical examiners, members of medical boards, physical evaluation boards, Army Physical Review Council and Army Physical Disability Appeal Board will utilize these standards when considering member’s eligibility for disability separation or retirement » * *. Each member’s case will be considered on Its individual merits, the object being to aid in the determination of whether or not an individual is physically or mentally qualified for further military service.”
     
      
       The witness had not read plaintiff’s prior court testimony.
     