Nickerson v. United States

35 Fed. Cl. 581, 1996 U.S. Claims LEXIS 81, 1996 WL 266566
CourtUnited States Court of Federal Claims
DecidedMay 20, 1996
DocketNo. 95-566C
StatusPublished
Cited by74 cases

This text of 35 Fed. Cl. 581 (Nickerson 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
Nickerson v. United States, 35 Fed. Cl. 581, 1996 U.S. Claims LEXIS 81, 1996 WL 266566 (uscfc 1996).

Opinion

OPINION

FUTEY, Judge.

This action is before the court on defendant’s motion for summary judgment upon the administrative record. Plaintiff opposes the motion arguing that genuine issues of material fact exist, which preclude the granting of such a motion.

Factual Background

On February 25, 1971, plaintiff enlisted and entered active duty in the United States Navy. Plaintiff served on active duty from the date of his enlistment until October 1, 1989, when he was honorably discharged with disability severance pay. At the time of his discharge, plaintiff had served on active duty for eighteen years and seven months. His last enlistment contract, with a two-month extension, was scheduled to expire on December 4,1989.

During the course of his service in the Navy, four separate medical boards (two in 1978,1 one in 1979, and one in 1989) diagnosed plaintiff with pulmonary sarcoidosis.2 The symptoms exhibited by plaintiff included intermittent periods of persistent coughing. Available documentation indicates that plaintiffs first two medical boards of January 25, 1978, and August 31, 1978, established the diagnosis of sarcoidosis. Plaintiff was then placed on a period of limited duty but was returned to full duty in late 1978.

On December 7, 1979, the report of plaintiffs third medical board was completed. Based on plaintiffs symptoms, the medical board diagnosed plaintiffs condition as sar-coidosis with arthralgias. The medical board’s report indicated that, although plaintiff was not fit for full duty, he was fit for six months of limited duty during which time he would be treated and observed on an outpatient basis. Two physicians signed the report. In addition, the Chief, Bureau of Medicine and Surgery, and the Chief of Naval Personnel concurred in the disposition of the medical board. In early 1981, plaintiff was found physically fit to perform on active duty and returned to full duty status.

[584]*584In February 1989, plaintiff was classified as obese and placed on a command weight control program. During the course of the program, plaintiff suffered a two-week coughing spell. On May 9,1989, plaintiff was evaluated by a medical doctor at the Naval Hospital in Portsmouth, Virginia. The doctor who examined him noted in plaintiffs medical record that he had carried a diagnosis of sarcoidosis since 1975. The same day, a gallium scan was conducted on plaintiff. The doctor reading the scan stated that the results were suggestive of a condition such as sarcoidosis, refused to rule out infection without correlation clinically, and noted that no x-rays were available for comparison. The radiographic report on plaintiffs May 9, 1989, chest x-ray indicated that the findings were “consistent with sarcoid[osis].”3 Due to his cough, plaintiff returned to the hospital’s pulmonary clinic several times over the following two months. The treating physician then placed plaintiff on limited duty and recommended his referral to a medical board.

Two physicians conducted plaintiffs fourth medical board on July 14, 1989. After reviewing plaintiffs medical history, physical examination, and laboratory results, the board diagnosed him as having sarcoidosis. The board concluded: “[plaintiff] is not fit for full duty but is fit for a period of limited duty to complete twenty years of active Navy service.” 4

Four days later, plaintiff informed the pulmonary clinic that his command might consider administrative action against him for his weight. The clinic advised him that the July 14 medical board should take precedence over any such action.

In response to the finding of the fourth medical board, plaintiff signed a form titled “Statement of Patient Concerning the Findings of a Medical Board” on August 2, 1989. On that form, plaintiff indicated that he had been informed of the fourth medical board’s recommendation and he did not desire to submit a statement in rebuttal.

On August 14, 1989, the Record Review Panel (Panel) of the Physical Evaluation Board (PEB) found plaintiff unfit for duty because of physical disability. The diagnosis supporting the finding of unfitness was sar-coidosis. The Panel recommended plaintiffs separation from the Navy with a 10% disability rating under 10 U.S.C. § 1203 (1994).

On August 22, 1989, after being counseled on the Panel’s finding, plaintiff signed a form regarding that finding. The form included a counselling certification and listed the options available to plaintiff. In electing his desired course of action, plaintiff also signed his initials beside the first listed option, which stated that he accepted the Panel’s finding and did not desire a finding of limited duty status. Plaintiff then became eligible for disability severance pay, and the Panel’s finding became the final PEB decision.

Also on August 22, 1989, a doctor examined plaintiff concerning his weight. Due to his chronic obesity and failure to make progress regarding weight control, the doctor indicated that plaintiff “represents a strong candidate for administrative] separation.”5 The doctor referred the matter to plaintiff’s command for “approp[riate] administrative] disposition.”6

The proceedings of plaintiff’s PEB underwent legal review on August 28, 1989. No legal error was found. The next day, the PEB advised the Chief of Naval Personnel that plaintiff: (1) was found to be physically unfit to perform the duties of his office, grade, rank, or rating on active duty; (2) should be assigned a 10% disability rating; and (3) should be permanently separated from the Navy with severance pay. Plaintiff was honorably discharged from the Navy on October 1, 1989. The narrative reason for his separation was physical disability with severance pay, which he received in the amount of $42,818.40.7

[585]*585On March 10, 1993, Dr. Plate of the Veteran’s Administration (VA) Medical Center in Iowa City, Iowa, examined plaintiff. The doctor described plaintiff as “moderately obese”8 and diagnosed him as having pulmonary sarcoidosis, which was in remission. On March 21, 1994, Dr. Hempel, another doctor at the VA Medical Center, wrote a letter indicating that plaintiff did not have sarcoido-sis at that time, nor did he have sarcoidosis at the time of his discharge in 1989. Dr. Hempel also noted that, although he lacked plaintiffs medical records and could not state whether plaintiff may have had sarcoidosis in the 1970s, he did “not believe it was a reason for discharge from the service.”9 Based on the available information, Dr. Hempel stated that a full review of plaintiffs medical records was warranted to determine whether he was inappropriately discharged.

On June 5, 1994, plaintiff submitted an application for correction of his military record to the Board for Correction of Naval Records (BCNR). He resubmitted his application, with additional materials, on August 16,1994. In the application, plaintiff alleges that he was misdiagnosed with sarcoidosis in 1989 and was therefore wrongfully discharged from the Navy. Plaintiff offered Dr. Hempel’s letter in support of his contentions. Plaintiff requested to be either returned to full duty to complete twenty years of service or retired with full back pay and rate.

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Cite This Page — Counsel Stack

Bluebook (online)
35 Fed. Cl. 581, 1996 U.S. Claims LEXIS 81, 1996 WL 266566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nickerson-v-united-states-uscfc-1996.