Lawler v. United States

Court of Claims

Lawler v. United States

169 Ct. Cl. 644, 1965 U.S. Ct. Cl. LEXIS 70, 1965 WL 8342

CourtUnited States Court of Claims

DecidedMarch 12, 1965

DocketNo. 75-60

StatusPublished

Cited by9 cases

This text of 169 Ct. Cl. 644 (Lawler 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

Lawler v. United States, 169 Ct. Cl. 644, 1965 U.S. Ct. Cl. LEXIS 70, 1965 WL 8342 (cc 1965).

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Opinion

Dukfee, Judge,

delivered the opinion of the court:

Plaintiff’s deceased husband, Colonel Earl J. Lawler, enlisted in the United States Army in 1918; thereafter was appointed a Beserve officer, and at the time of his release from active duty at age 60 on May 22,1954, had completed 18 and a half years of active service. He filed a petition in this court seeking retirement pay 'by reason of physical disability, and upon his death, his wife was substituted as party plaintiff. The issue is whether Col. Lawler, hereinafter referred to as the officer, was physically unfit for military service at the time of his release from active duty on May 22,1954.

From 1951 to 1954 the officer was hospitalized four times for treatment, principally for arteriosclerosis and hypertension, and also for osteoarthritis of the spine. In 1954 he was additionally hospitalized twice, principally for final evaluation prior to release from active duty.

Following the officer’s last hospitalization in 1954, a medical board reported the following diagnosis:

1. Hypertensive vascular disease, labile, mild; improved. LOD: Yes.

2. Degenerative joint disease (osteoarthritis), multiple mild, cervical and lumbar spine and right great toe cause undetermined, manifested by X-ray changes, headaches, pain in neck and low back; unchanged. LOD: Yes.

3. Pseudo-Menier’s syndrome, manifested by vertigo, headaches, tinnitus; unchanged. LOD: Yes.

4. Arteriosclerosis, general, mild manifested by X-ray changes and questionable changes of cerebral arteriosclerosis. LOD: Yes.

He was reported by the medical board as having become incapacitated for military service on March 5, 1954; that his conditions were incurred hi line of duty, but were not disabling for military service, and that he be returned to general [646]*646military service commensurate with his age (60) and grade (Lt. Col. CE). Prior to his last hospitalization Colonel Lawler on February 24,1954, requested that he be permitted to appear before a Physical Evaluation Board before separation from service for the purpose of evaluating his disabilities. This request was denied, and he was released from duty on May 22,1954.

The record of frequent and extensive periods of hospitalization of this officer; his recurrent periods of high blood pressure; incapacity and inability to perform his duties, and his medical record of disabling arthritic and heart conditions was certainly evidence such as to require an evaluation by a Physical Evaluation Board, as contemplated by Congress in the enactment of 10 TJ.S.C. §§ 1201-2 (Supp Y, 1952) to determine this officer’s physical fitness to perform his duties. This conclusion is further fortified by the fact that these same conditions were found to be ratable and service connected at 30 percent disabling by the Veterans Administration in the same year, 1954, and later in 1956 at 50 percent, and finally, the fact of the death of this officer in 1962 from a heart attack caused by the same symptoms diagnosed and noted from 1951 to 1954 by the Government.

We also regard as highly significant as to the severity of this officer’s hypertension, arteriosclerosis, arthritis and heart ailment the fact that during the four-year period 1951 to his release in 1954 he was hospitalized for treatment or observation of these conditions at least six times for a total period of 216 days, and was also frequently checked on an outpatient basis. While this officer was hospitalized from May 5,1952, to June 2, 1952, at the Army Hospital in Fort. Eustis, Virginia, a medical notation in his record dated May 9, 1952, stated: “Colonel N. says don’t know what’s wrong. To Valley Forge Army Hospital,” “180/110. Major B..: retire for arthritis and hypertension.”

On June 30, 1953, the officer was advised by the Veterans Administration that his application for disability insurance could not be granted in view of the findings of hypertension.

On May 28, 1954, Colonel Lawler applied to the Army Board for the Correction of Military Records to show en[647]*647titlement to retirement by reason of physical disability. His application was finally denied, after a hearing before the Correction Board, and its denial was affirmed by the •Secretary of the Army on February 19, 1959. In the opinions submitted by the Surgeon General to the Board, it was concluded that although “this officer did have a ratable disability at the time of separation according to the Veterans Administration Schedule for Bating Disabilities, it was not of such degree as to render him unfit for further military service under the laws, rules, regulations and policies then in effect.” This adverse opinion, rendered without an examination of the officer, did not identify the various conditions diagnosed, or evaluate them as to permanency or degree of severity, or list any facts of record, regulations or policies in support of its conclusions. It does not appear from the record, as evidenced by our Findings of Fact, that specific provisions of the authorized Schedule for Bating Disabilities and amendments thereto were accorded appropriate consideration by the Army authorities charged with the responsibility of properly applying the applicable rating schedule to the disabling conditions involved in this case. When the Surgeon General recommended denial of the officer’s application for correction of his military records in December 1954, the Veterans Administration had already concluded that he had a 30 percent service connected disability — later increased on a combined rating to 50 percent.

In view of the duration, nature, severity and number of Col. Lawler’s permanent disabilities and the denial of his request to appear before a Physical Evaluation Board prior to his release from service, the action of the Board in denying his application for correction of his records, was arbitrary, capricious and not supported by substantial evidence. The action of the Secretary of the Army in approving the finding and recommendations of the Army Board for the Correction of Military Becords was likewise arbitrary, •capricious and not supported by substantial evidence.

On the basis of the evidence of record, the Trial Commissioner has found that Col. Lawler, “at the time of his relief from active duty on May 22, 1954, was not physically fit to [648]*648perform the duties of his office, grade, rank or rating as provided in the applicable statutes and Army regulations in effect at that time.” We have reached the same conclusion.

Plaintiff is entitled to judgment for retirement pay at the rate of 75 percent of the pay of a colonel with over 18 years of service from May 22, 1954, to April 5, 1962, less such amounts as have been paid Colonel Lawler by the Veterans Administration as disability compensation, such amount to be determined under the provisions of Rule 47(c).

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. Eleanor B. Lawler is the widow of the late Earl J. Lawler and the substituted plaintiff by reason of the death of Earl J. Lawler during the pendency of this proceeding. Mrs. Lawler is a resident of the State of Kansas, living at 5310 West 49th Terrace, Shawnee Mission, Kansas.

2.

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