Patterson v. United States

44 Fed. Cl. 468, 1999 U.S. Claims LEXIS 193, 1999 WL 605628
CourtUnited States Court of Federal Claims
DecidedAugust 11, 1999
DocketNo. 98-472C
StatusPublished
Cited by4 cases

This text of 44 Fed. Cl. 468 (Patterson 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
Patterson v. United States, 44 Fed. Cl. 468, 1999 U.S. Claims LEXIS 193, 1999 WL 605628 (uscfc 1999).

Opinion

OPINION

BRUGGINK, Judge.

This is an appeal from a denial by the Army Board for Correction of Military Records (“ABCMR” or “Board”) of plaintiffs request that his discharge status be changed to a medical disability retirement. The matter is pending on the parties’ cross-motions for summary judgment. The primary issue is whether plaintiffs disability was incurred during, or aggravated by, his service in the armed forces. Oral argument was held on August 4, 1999. For the reasons set out below, defendant’s motion is granted.

BACKGROUND

Plaintiff was a dentist in the United States Army Reserve. In April, 1989, he was fulfilling his annual training commitment at Fort Leonard Wood, Missouri. While on duty on April 2, he went to the emergency room, complaining of acid reflux and tenderness in the chest. He underwent a stress test with an EKG monitor. The EKG reading had some slight abnormality. He was diagnosed at that time with probable atherosclerotic heart disease. It was recommended that he undergo a heart catheterization through a private physician to rule out any underlying disease.

It is undisputed that Dr. Patterson underwent a catheterization in the Army hospital, and that it revealed “high grade stenosis of the obtuse marginal branch and right coronary artery branch.” He now asserts that the catheterization was involuntary. While [470]*470he was on the catheterization table, “he developed unstable angina that was refractory to medical therapy. It was determined that he would need emergent per cutaneous transluminal coronary angioplasty.” During arteriography, however, “he developed asystole and required cardiopulmonary resuscitation. He was taken ... to the Operating Room while cardiopulmonary resuscitation was being performed for emergent coronary artery bypass graft.” Three bypass grafts were performed. The medical notes of the bypass procedure contains the following: “Attention was first turned to the left anterior descending. This was bypassed because it was felt that there was a chance that there was a dissection in the left main coronary, even though it had not been abnormal on the catheterization study.”

After surgery, his prognosis was “grim,” and it was judged he might not survive surgery. In short, Dr. Patterson nearly died. Steps were taken almost immediately to convene a Physical Evaluation Board (“PEB”) to consider retiring him on disability. For reasons not clear in the record, such a board was not convened, however.

Fortunately, he did survive, although he suffered impairments from which he has not fully recovered. He reported in September 1989 that he had hearing loss, gastric distress, and rib and sternum pain. The results of three post-surgery examinations are in the record. On May 16, 1993, plaintiff reported that he is “presently [in] good health,” although he was undergoing cardiac rehabilitation. An examination that date resulted in an assessment of his condition in terms of various physical attributes. He received a “1”, or highest rating, in four of the six categories. He received a “3”, denoting restrictions on assignment because of limitations of physical capacity or stamina, and a “2” on eyesight. He had received a similar rating in the physical capacity category in 1991. It was noted at that time that he could “exercise at his own pace,” and that his profile did not interfere with his primary responsibilities.

Plaintiff applied to the ABCMR on February 2, 1994, for a medical disability retirement with a 100% rating, asserting that he had been injured during the angioplasty procedure. He did not specify the precise nature of the injury and resulting disabilities, however. In a cover letter for the application, his attorney states that he had “significant coronary artery disease, [but] the injury he sustained as a result of both the cardiac catheterization and the angioplasty greatly aggravated his heart condition and lead to strokes.” It was also asserted that these procedures lead to the cardiac arrest and some subsequent brain damage.

Prior to its resolution of the petition, the Board sought the input of the Surgeon General of the Army’s Cardiology and Neurological Consultants. That office advised that the plaintiff did not meet the medical retention standards at the time of his retirement in 1993, nor at the time of his surgery in 1989. The Board also was advised by the Physical Disability Agency (“PDA”) that the plaintiff had a pre-existing coronary disease; that the cardiac arrest condition was the main result of his prior existing heart disease and not the proximate result of the catheterization; and that no negligent acts were committed by Army medical personnel. The PDA advised that in its view the legal standards for compensation had not been met.

The ABCMR decided that plaintiff had not established that his infirmities, even if disabling, were the proximate result of performing duty. See Army Regulation (“AR”) 635-40, § 8-2(a). The Board found that plaintiffs “high-grade stenosis of the circumflex artery and the right coronary artery ... existed prior to his entry on active duty and was not the proximate result of his performing military duty.” The Board viewed the catheterization and angioplasty as “[standard in-service medical and surgical treatment reducing the effect” of what it found was a pre-existing disease condition-arteriosclerosis. The Board further found no evidence that “the catheterization process was the main cause of the cardiac arrest condition,” that the result was “outside the normally accepted inherent risks of such a procedure,” or that there were “any negligent acts committed by medical personnel that caused this arrest.”

This action was filed on June 2,1998.

[471]*471DISCUSSION

Decisions regarding entitlement to disability retirement are not considered de novo by this court. The agency action, in this ease embodied in the decision of the ABCMR, is given deference. The role of the court is not to determine whether in fact the service person’s unfitness, if any, at the time of release was service connected, but whether the board’s determination that it was not is contrary to law. See Johnston v. United States, 157 Ct.Cl. 474, 478, 1962 WL 9299 (1962). The board’s decision can be overturned only on a showing that it was “illegal because it is was arbitrary, or capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation, or mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced.” Sanders v. United States, 219 Ct.Cl. 285, 298, 594 F.2d 804 (1979).

As more fully amplified at oral argument, plaintiff advances four independent arguments: 1) it was error not to convene a PEB prior to denying his application for disability retirement; 2) the catheterization was performed over plaintiffs objection, and hence all the results of the catheterization, were per se “service connected;” 3) it was error for the Board not to find that the accidental dissection of the left main coronary artery aggravated .the pre-existing heart condition; and 4) the Board erred as a matter of law in not concluding that plaintiffs heart attack and related neurological injuries are the “unexpected adverse effect” of the catheterization, independent of any possible accidental or negligent dissection. The court disagrees on all four counts.

Plaintiff argues that it was legal error to deny him disability retirement without convening a PEB.

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Cite This Page — Counsel Stack

Bluebook (online)
44 Fed. Cl. 468, 1999 U.S. Claims LEXIS 193, 1999 WL 605628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-united-states-uscfc-1999.