Ferrell v. United States

23 Cl. Ct. 562, 1991 U.S. Claims LEXIS 315, 1991 WL 135922
CourtUnited States Court of Claims
DecidedJuly 24, 1991
DocketNo. 83-87C
StatusPublished
Cited by16 cases

This text of 23 Cl. Ct. 562 (Ferrell v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferrell v. United States, 23 Cl. Ct. 562, 1991 U.S. Claims LEXIS 315, 1991 WL 135922 (cc 1991).

Opinion

OPINION

BRUGGINK, Judge.

This case comes before the court on defendant’s motion to dismiss,1 or, in the alternative, for summary judgment, and plaintiff’s Dispositive Motion to Direct United States Air Force to Award a Military Disability Retirement to Plaintiff. Plaintiff brings this action under 10 U.S.C. § 1201 (1988), which provides permanently disabled service members with disability retirement pay if their condition meets certain criteria. He requests that his military records be corrected to reflect a medical discharge retroactive to March 1984. The court concludes for the following reasons that certain deviations by the Air Force from standard military procedure constituted prejudicial error, and that the determination by the Physical Evaluation Board that plaintiff was fit for service at the time of his discharge was arbitrary, capricious, [564]*564and unsupported by substantial evidence. Accordingly, plaintiff’s motion, which will be treated as one for summary judgment, is granted to the extent set out herein.

BACKGROUND

a. Factual Background

Plaintiff has been on active duty twice, attaining the rank of Staff Sergeant. The first period was from September 12, 1972 through September 13, 1976. During that enlistment he suffered a back injury in a diving accident. At that time he was treated for bilateral low back pain which occasionally radiated down his left leg to his thigh. Plaintiff does not claim that he was disabled when that first enlistment ended, and the court notes that sometime between December 11,1977 and July 28, 1980, plaintiff’s private physician, Dr. Robert H. Swint, reported merely that plaintiff “has had some slight problem with low back pain when he does any heavy lifting.” Pri- or to his second enlistment, plaintiff had an Air Force physical in July 1980 during which he reported recurrent back pain.

Plaintiff re-enlisted on November 10, 1980 and remained on active duty as a security officer through March 26, 1984, when he received an honorable discharge prompted by a voluntary request for discharge. During this second enlistment his back condition may have been aggravated on January 20, 1981 by a mobility exercise in which he had to wear a 130-pound pack. He also re-injured his back in late November 1983 while studying Judo at the YMCA. He received a CAT SCAN on December 15, 1983 in conjunction with subsequent complaints of lower back pain, which showed him to be suffering from a herniated disk (nucleus pulposa) L4-5. On January 4, 1984, Ferrell received a 4T classification which means temporarily unfit for worldwide duty. Plaintiff was told to avoid bending or lifting more than 20 pounds.2 Medical records reflect that a myelogram on January 6, 1984 showed a “large Extra-dural defect at L4-5 centrally____ Bulging disks are present at Ll-2, L2-3 and L3-4.” Plaintiff was recommended for surgery.

Plaintiff requested a voluntary separation from duty on January 5,1984. He had joined the Air Force in order to become a Commissioned Officer, but requested separation when he was found to be medically unqualified for commissioning into the Officer Training School.

Plaintiff received a report dated January 20, 1984, reflecting approval of an honorable discharge. The report states that a “termination occupational physical [is] required.” When plaintiff reported to have his physical, however, he was told that a separation occupational physical could not be performed on a service member with a 4T profile.

A note on Ferrell’s medical records by Air Force doctor Rebecca Sletten dated January 19, 1984 recites, “Initiate a medical hold for discharge].” Another note dated January 25, 1984 states, “will start medical hold pending official word from Dr. Schmelka.” The next day Dr. Sletten recites, “will do surgery and put [patient] on terminal leave—no need for medical hold unless complications [from] surgery.” On February 1, 1984 plaintiff underwent a laminotomy, foraminotomy, and diskecto-my by Dr. Daniel Schmelka, a neurosurgeon practicing at the Air Force hospital on Grand Forks Air Force Base (“Grand Forks AFB”). Although the medical reports indicate that the myelogram was “positive for two herniated disks,” only disk L4-5 was removed. After surgery, Ferrell was given an L-4T and X-4T profile.3

[565]*565Plaintiff claims in his affidavit of February 12, 1987 to have requested that a Medical Hold be put on his voluntary discharge proceedings in light of his medical condition:

I advised Separations that I had encountered some medical problems. TSgt Baird said I needed to request a Medical Hold. I asked what would happen if that was refused. He said, “then they have to give you a Medical Board.” I advised Dr. Sletten and she initiated procedures for the Medical Hold.
In the meantime, my Medical Hold had been refused by Randolph Air Force Base, Texas.

Dr. Schmelka saw plaintiff on February 21, 1984 for a post-operative evaluation. He reported that Ferrell had done well after surgery, that the surgical wound was healed, and that there was no leg pain or back pain. He gave plaintiff instructions on how to live with his problem, and advised him not to seek heavy labor. Plaintiff then went to Albany, Georgia, pending completion of the voluntary discharge process he had initiated on January 5, 1984. He was seen there on March 7,1984 by Dr. M.M. Luedbert at the United States Air Force Hospital, Moody Air Force Base, with complaints of pain, and was found to have suffered pain in the right leg and paravertebral (back) spasms since February 27, 1984. Two days later, Dr. John A. Torrent diagnosed plaintiff as having a lumbar strain, and treated him with an anti-inflammatory drug and a pain-muscle relaxant combination.

Plaintiffs voluntary honorable discharge was processed to completion on March 26, 1984, shortly after his back surgery, as noted above. Plaintiff was discharged without the benefit of an occupation separation physical or a medical board.

Plaintiff also had stress-related complaints. During his second enlistment he was seen several times at the Mental Health Clinic on Grand Forks AFB. He was evaluated for anxiety and depression in the Grand Forks AFB Family Practice Clinic on January 10, 1983. Plaintiff was also treated during both enlistments for conjunctivitis and keratitis, two diseases of the eye, and for severe headaches.

After continuing back pain and other medical and psychological problems, plaintiff was examined in a Veterans Administration (“VA”) facility. On November 29, 1984, he was assigned a 50 percent disability rating by the VA, consisting of a 40 percent disability based on his “spinal disc condition,” and 10 percent based on kerati-tis. Payments were retroactive to an effective date of April 1, 1984. This was to replace a zero percent disability rating assigned by the VA in July 1984, apparently the result of a computer error which incorrectly classified plaintiffs condition. A 40 percent rating indicates that the VA found plaintiffs disk condition severe, with recurring attacks and little intermittent relief. 38 C.F.R. § 4.71a, diagnostic code 5293 (1984).

Dr.

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Bluebook (online)
23 Cl. Ct. 562, 1991 U.S. Claims LEXIS 315, 1991 WL 135922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrell-v-united-states-cc-1991.