Champagne v. United States

35 Fed. Cl. 198, 1996 U.S. Claims LEXIS 35, 1996 WL 119486
CourtUnited States Court of Federal Claims
DecidedMarch 15, 1996
DocketNo. 94-983C
StatusPublished
Cited by37 cases

This text of 35 Fed. Cl. 198 (Champagne v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Champagne v. United States, 35 Fed. Cl. 198, 1996 U.S. Claims LEXIS 35, 1996 WL 119486 (uscfc 1996).

Opinion

[202]*202 OPINION

HORN, Judge.

This case is before the court on cross-motions for summary judgment, pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (RCFC). Plaintiff, Arnold Champagne, filed a complaint in this court against the United States, acting through the Department of the Navy, challenging the disability rating assigned to him by the Navy after he sustained an injury during his tour of duty in May 1991. Plaintiff alleges that he is entitled to damages totalling “$1,000,000.00, representing the difference between the retirement pay due him under 10 U.S.C. § 1201, and the severance pay he received upon his discharge from the Navy in August 1992.” In response, defendant filed a motion for summary judgment, alleging that the disability rating assigned to the plaintiff was consistent with applicable statutes and regulations, was not arbitrary or capricious, and was supported by substantial evidence. Thereafter, plaintiff filed an opposition to defendant’s motion for summary judgment and a cross-motion for summary judgment. In his cross-motion for summary judgment, plaintiff argues that the disability rating assigned to him by the Navy was arbitrary, capricious, and inconsistent with applicable regulations. The facts before this court on the parties’ cross-motions for summary judgment are undisputed, and, therefore, the case is ripe for summary disposition.

FACTS

Based on the record before the court, plaintiff, Arnold Champagne, appears to have served in the United States Navy on active duty for a total of approximately nine and one-half years. Documents in the record show that plaintiff first served in the United States Navy on active duty from July 1959 to July 1963. Subsequently, plaintiff served on active duty from October 1963 to October 1967. Most recently, plaintiff served on active duty from January 1991 to August 1992, in support of Operation Desert Shield/Desert Storm.

According to a report of the Medical Board issued by the Naval Hospital in Oakland, California, included in the record, and dated November 5, 1991, plaintiff suffered an injury to his left shoulder while lifting heavy equipment, during the time he was on active duty in Jubail, Saudi Arabia for Operation Desert Shield/Desert Storm on April 14, 1991. Plaintiff described his symptoms as sharp left neck, shoulder and arm pain, followed by general weakness in his left shoulder, neck, arm and hand. During the same tour of duty, plaintiff also experienced an acute onset of wheezing following an oil refinery fire in the Jubail area. In a report issued by the Naval Hospital in Oakland, California, on September 5, 1991, plaintiff was diagnosed with mild cervical spondylosis, without compromise of the cervical cord and bilateral foraminal stenosis at C6-7. Subsequently, in a report, likewise issued by the Naval Hospital in Oakland, California, dated January 30,1992, plaintiff was also diagnosed with “left C5 brachioplexopathy,1 improving” and “reactive airway disease, improving.” Plaintiff proceeded to receive subsequent physical evaluations regarding his fitness for duty and eligibility for benefits, in accordance with the rules and regulations established by the Navy.

Congress has provided guidelines for the retirement or separation of military members of the Armed Forces due to a physical disability. 10 U.S.C. § 1201 (1988). The Secretary of the Navy also established policies and procedures regulating implementation of the disability system, which can be found in the Secretary of the Navy Instructions, (“SEC-NAVINST”) § 1850.4C (March 8, 1990). The SECNAVINST establishes a Physical [203]*203Evaluation Board (“PEB”) to act on behalf of the Secretary of the Navy when malting determinations of fitness for duty, entitlement to benefits, and disposition of service members referred to the Board. SECNAVINST 1850.4C § 6a.

An individual enters the Navy Disability Evaluation System when a Medical Board2 finding of disability is forwarded and accepted for review by the PEB. A Medical Board determines the clinical state of health of a service member whose ability to physically perform on active duty is in question. SEC-NAVINST 185Ó.4C § 2016. The Medical Board then forwards the case to the PEB, which, if it accepts the case, makes a record review of the case and issues preliminary findings. SECNAVINST 1850.4C § 2002. The individual concerned is then notified of the preliminary findings and is given fifteen (15) calendar days in which to accept or disagree with the findings. Id. If the member accepts the preliminary findings, then the case is finalized and disposition in accordance with the preliminary finding is directed. Id. If the member disagrees with the findings, the member may request reconsideration by the same panel, if additional information is submitted, and/or request a formal hearing before the Physical Evaluation Board Hearing Panel (“Hearing Panel”). Id.

If a Hearing Panel hears the case, it makes findings of fitness for duty and determines a percentage of disability. Subsequent to legal review and/or quality assurance review, the case is finalized and appropriate disposition is directed. Id. If a member disagrees with the results, he or she can either petition internally to the Director, Naval Council of Personnel Boards, or to the Board for the Correction of Naval Records. Id. The Director of the Naval Council of Personnel Boards reviews the Physical Evaluation Board Hearing Panel’s decision and determines if relief is warranted based upon the merits of the case. The petitioner is then advised by certified letter of the determination. SECNAVINST 1850.4C § 6(i).

In determining the disability of a service member, the standard of review applied by the military is “unfitness to perform the duties of office, grade, rank, or rating because of disease or injury incurred or aggravated while entitled to basic pay.” SEC-NAVINST 1850.4C § 2050. In making this determination, the nature and degree of physical disability is considered in relation to the requirements and duties that a service member is reasonably expected to perform in his or her office. Id.

On October 28, 1991, the Navy’s Medical Board concluded that plaintiff had spondylo-sis at the sixth and seventh cervical sections, brachioplexopathy at the fifth cervical section, improving, and reactive airway disease, improving. The Medical Board determined plaintiff was unfit for full duty and forwarded the report to the Central Physical Evaluation Board Record Review Panel (“PEB”) for a disability determination. Plaintiff was advised of the recommendations of the Medical Board and declined to submit a statement in rebuttal.

On January 8, 1992, the PEB made a preliminary finding that plaintiff was fit for duty. Subsequently, in February 1992, plaintiff requested reconsideration of the PEB’s finding of “Fit for Duty,” and requested a finding of “Unfit” and placement on the disability list. Plaintiff also appointed the Disabled American Veterans National Service Office as his representative. The PEB considered plaintiffs request for reconsideration, but recommended no changes in the PEB findings. Plaintiff, therefore, requested and received a formal hearing before the Hearing Panel.

In April 1992, the PEB Hearing Panel reviewed plaintiffs case.

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Bluebook (online)
35 Fed. Cl. 198, 1996 U.S. Claims LEXIS 35, 1996 WL 119486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/champagne-v-united-states-uscfc-1996.