Gossage v. United States

91 Fed. Cl. 101, 2010 U.S. Claims LEXIS 114, 2010 WL 322153
CourtUnited States Court of Federal Claims
DecidedJanuary 14, 2010
DocketNo. 09-414C
StatusPublished
Cited by3 cases

This text of 91 Fed. Cl. 101 (Gossage 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
Gossage v. United States, 91 Fed. Cl. 101, 2010 U.S. Claims LEXIS 114, 2010 WL 322153 (uscfc 2010).

Opinion

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

I. RELEVANT FACTUAL BACKGROUND.1

On June 21, 1971, Plaintiff enlisted in the United States Army, for a three-year service [103]*103term in the military occupational specialty of Air Defense Radar Mechanic. AR 41, 143-44. Plaintiff served three years on active duty in the Army, achieving the Grade of E-5, and “his conduct and efficiency were rated as excellent.” AR 5, 46, 57-61. On March 19, 1974, while on active duty, Plaintiffs wisdom teeth were removed, and the Clinical Record noted that Plaintiff was currently “being treated by Dermatology for psoriasis.”2 AR 81.

On April 22, 1974, prior to being released from active duty, Plaintiff underwent a complete medical examination as part of the discharge process. AR 82-83. The medical examination confirmed that Plaintiff had psoriasis and had experienced an episode of joint pain for a few hours. AR 82. Although the Report Of Medical Evaluation noted Plaintiffs psoriasis, the examining physician concluded that Plaintiff was “physically qualified for separation.” AR 24, 83. Plaintiff was assigned a physical profile rating of lililí.3 AR 83. A service member “having a numerical designation of T under all factors, is considered to possess a high level of medical (physical and mental) fitness and, consequently ... is medically fit for any military assignment.” Army Reg. 40-501 at ¶ 9-3e(l). Plaintiff also completed a medical history form for the medical examination, in which he stated that he was in good health. AR 83.

On June 20, 1974, Plaintiff was honorably discharged, after completing a three-year term of service. AR 41. According to Plaintiff, the “U.S. Army’s Physical or Medical Evaluation Board never evaluated or considered [Plaintiff] for medical retirement in 1974,” Compl. ¶ 2.9. On that date, Plaintiff also completed a Veterans Administration4 Application For Compensation Or Pension At Separation Prom Service. Pl.Ex. D-l. On September 23, 1974, the Veterans Administration (“VA”) issued a Rating Decision, that evaluated Plaintiff as having a service-connected, 30 percent disabling condition of psoriasis.5 AR 26.

On August 18, 1993, the VA increased the service-connected rating for psoriasis from a 30 percent disabling condition to a 50 percent disabling condition. AR 5. An evaluation of 50 percent disabling condition for psoriasis “is granted for ulceration, extensive exfoliation, or crusting with systemic or nervous manifestations, or an exceptionally repugnant condition.” AR 27. On November 9, 1994, the VA issued another Rating Decision, granting Plaintiff an additional 20 percent disabling service-connected rating for psori-atic arthritis. AR 5. A 20 percent disabling service condition rating for psoriatic arthritis is assigned when “X-ray evidence shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.” AR 28.

[104]*104On January 8, 1998, the VA continued the 50 percent disabling service-connected rating for psoriasis and the 20 percent disabling service-connected rating for psoriatic arthritis. AR 27. The VA records show that “[Plaintiff] still has wide spread [sic], active psoriasis which appears to be poorly controlled even with ultraviolet therapy.” Id. The VA records also noted that “[i]nflamma-tory or reactive arthritis is a fairly common complication of psoriasis and usually initially affects the peripheral joints including the hands or feet.” AR 28. The VA concluded that the evidence confirming Plaintiffs psori-atic arthritis was “certainly not clear,” but assigned a 20 percent evaluation “since the condition is mild without any joint deformity or chronic loss of motion at the present time.” Id.

On January 8, 1998, the VA granted Plaintiff entitlement to individual unemployability, because “the claimant is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” and there “is a reasonable linkage between his inability to find employment in the past several years and service-connected psoriasis.”6 AR 28-29. In addition, Plaintiff was granted Dependents’ Educational Assistance, effective June 6, 1995, because the evidence showed Plaintiff “currently has a total service-connected disability, permanent in nature.”7 AR 29.

II. PROCEDURAL HISTORY.

A. Before The Army Board For The Correction Of Military Records.

On August 5, 2005, Plaintiff applied to the Army Board for the Correction of Military Records (“ABCMR”), alleging that he “should have been granted a Military Medical Retirement based upon service connected disabilities incurred while on active duty ... instead of an Honorable Discharge.” AR 11; see also Compl. ¶ 1.8. Plaintiff claimed that since he acquired psoriasis and the onset of psoriatic arthritis while serving on active duty, he was not physically qualified for discharge on June 20, 1974. AR 11. Plaintiff explained that the VA had given him a 30 percent disability rating on September 23, 1974, but that the rating had increased to 50 percent disabling in subsequent years. Id. Plaintiff requested that the ABCMR correct his military records by granting him full medical retirement. Id.

On June 29, 2006, the ABCMR denied Plaintiffs application. AR 3-9. As a threshold matter, Plaintiff failed to meet the statute of limitations for filing an application for correction of military records. AR 4. Section 1552(b) of Title 10 of the United States Code provides that applications for corrections of military records must be filed within three years after discovery of the alleged error or injustice. 10 U.S.C. § 1552(b). Plaintiffs application was filed 30 years after he was honorably discharged from the Army and not awarded retirement benefits. AR 11. Section 1552(b), however, also allows the ABCMR to excuse failure to meet the three-year statute of limitations, if it determines that “it would be in the interest of justice” to do so. 10 U.S.C. § 1552(b). In this case, the ABCMR concluded that Plaintiff did not provide “a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this ease.” AR 4, 8.

The ABCMR also determined that there was “no evidence in [Plaintiffs] official record to show he had an unfitting condition due to psoriasis.” AR 7. At the time of Plaintiff’s separation, he had a physical profile of 111111, was in good health, and had not been referred to a medical evaluation board for any disqualifying medical condition, all of which created a presumption of fitness. Id. In addition, “[notwithstanding the presence of psoriasis, or possible presence of various medical conditions, there was no evidence of record, nor has [Plaintiff] provided sufficient evidence, which would indicate that he suffered from any medical condition of such [105]*105severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.” Id.

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Cite This Page — Counsel Stack

Bluebook (online)
91 Fed. Cl. 101, 2010 U.S. Claims LEXIS 114, 2010 WL 322153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gossage-v-united-states-uscfc-2010.