Randolph v. United States

31 Fed. Cl. 779, 1994 U.S. Claims LEXIS 216, 1994 WL 482458
United States Court of Federal Claims·Decided August 30, 1994·No. No. 91-1703C·Published·Cited by 6 cases

Opinion

ORDER

ROBINSON, Judge.

Plaintiff, Robert Randolph, was placed on the Temporary Disability Retirement List (TDRL) for an asthma condition in 1984 and assigned a 30% disability rating. On September 13, 1989, the Physical Evaluation Board (“PEB” or “Board”) lowered Randolph’s rating from 30% to 10%. Despite Randolph’s disagreement with the lower rating, he was permanently separated from the Navy with a 10% disability rating in November 1989. In December 1991, Randolph filed a complaint in this court seeking judgment against the United States for back disability retirement pay and a correction of his military record to reflect a higher disability rating.

The parties have filed cross-motions for summary judgment. After oral argument on the motions, this court stayed proceedings in this matter, giving the parties an opportunity to consider settlement. As a result of the parties’ discussions, defendant filed a motion to remand this case to the Board. Plaintiff challenges the motion. For the reasons detailed below, this court hereby grants defendant’s motion and remands the case to the PEB for reconsideration. The Board should specifically consider the concerns emphasized below and determine whether its determination that Randolph’s condition is ratable at 10% is consistent with this Order. The cross-motions for summary judgment are moot.

Factual Background

Randolph was placed on active duty with the United States Marine Corps on June 1, 1981. On October 10,1983, he was treated in the emergency room of the Naval Hospital at Camp Pendleton, California. The record indicates that he was treated primarily for ear pain, and that he had trouble with asthma and had experienced “sinus problems for [the] last week.” P.App. at 1-3.2

On December 28, 1983, Randolph experienced difficulty breathing during a physical fitness test. The Camp Pendleton hospital records state that he suffered an “acute asthmatic attack” and “was experiencing exhaustion and stress.” P.App. at 4.

Randolph’s condition worsened between 1983 and 1984; he was treated at various times with an aerosolized bronchodilator, oral medications, and steroids. D.App. 61-62.3 After an examination on June 22, 1984, a Camp Pendleton doctor, Dr. Hammer, diagnosed Randolph as having Reactive Airway Disease and opined that he was “unable to perform full duty.” Dr. Hammer recommended that the case be referred to the Central Physical Evaluation Board (CPEB). Id. at 63.

On July 6, 1984, Randolph contested the June 22 report, alleging that it failed to accurately state the seriousness of his eondi[781]*781tion: Randolph chronicled his history with asthma and his reactions to the various methods of treatment. D.App. at 58-59.

On December 3, 1984, the CPEB found Randolph physically unfit to perform the duties of his office and assigned him a disability rating of 30% 4 The CPEB ordered that he be placed on the Temporary Disability Retired List (TDRL) and accorded disability benefits while on temporary retired status.5 After being placed on the TDRL, Randolph moved to Baton Rouge, Louisiana and attended law school.

On August 11 and 12, 1986, Col. Robert Gilham, M.D., conducted Randolph’s first periodic examination pursuant to 10 U.S.C. § 1210(a).6 Dr. Gilham observed that Randolph was leading a “full and active life as a student, husband, and father.” Dr. Gilham expected Randolph to “continue to do well, but require the regular use of medicines for the indefinite future.” D.App. at 55-56. Dr. Gilham noted that Randolph used an albuter-ol inhaler six to seven times daily and once nightly. He also noted that Randolph “exhibit[ed] severe reduction in small airway function.” Id. at 56.

Following this first periodic examination, the CPEB on September 5, 1986, recommended that Randolph be permanently retired with a 10% disability rating. D.App. at 46. Randolph challenged the CPEB’s action on October 21, 1986, arguing that the CPEB’s finding of a 10% rating was unsubstantiated. In addition, he sought a 10% disability rating for his hypertension (high blood pressure) condition. Id. at 46.

On January 6, 1987, Randolph appeared before the Physical Evaluation Board in Great Lakes, Illinois, and requested a 30% rating for his asthma and an additional 10% rating for high blood pressure. Id. at 39. He testified about the extent and frequency of his asthmatic attacks, which occurred three to four times daily. Id. at 41. The PEB concluded, significantly, that Randolph’s asthmatic condition had not yet stabilized and recommended that he be retained on the TDRL with a 30% disability rating. The PEB noted that while Randolph’s medical records contained evidence of hypertension, they failed to satisfy the criteria established in DOD Directive 1332.18 for compensation for that condition.7

On June 2, 1988, Dr. Gilham again examined Randolph. He observed that Randolph’s asthma remained relatively well-controlled; that is, Randolph’s condition remained essentially the same over the two previous years, even though he required “considerably more medicine than” before. D.App. at 53-54. Dr. Gilham concluded that “with the use of intelligent medical management, [Randolph could] be expected to do well in occupations that do no[t] require strenuous physical exertion.” Id.

Dr. Gilham examined Randolph once more on May 31, 1989. He reported the following:

[Randolph’s] asthmatic condition has remained much the same over the last three years in that he has frequent symptoms that are responsive to the regular use of his oral inhaled medications. As long as he paces himself and avoids excessive exertion, he is able to function effectively in his present occupation as a lawyer.

Id. at 50.

After this third evaluation, the PEB concluded, on June 15, 1989, that Randolph was “unfit because of physical disability” and rec[782]*782ommended that he be separated from the service with a 10% disability rating under 10 U.S.C. § 1210. R.App. at 8.8 The PEB based this finding on prior determinations of the Record Review Panel (“RRP”). Id. Randolph challenged the 10% rating. The PEB conducted a hearing addressing his challenge on September 13, 1989. At that proceeding, Randolph objected to the 10% rating, requesting permanent retirement with a 60% disability rating for asthma, as well as additional ratings for his sinusitis and hypertension. D.App. at 11, 14. The PEB denied his request for an increased rating for his asthma. It found that Randolph’s asthma had improved, even though he continued to be symptomatic and require medication. The Board also found that, despite Randolph’s history of complaints of sinusitis and hypertension, the records failed to indicate “that either of these conditions, [was], in and of itself, an unfitting condition.” D.App. at 10-11.

Randolph contested this final determination in a letter to the Board dated September 28, 1989. He sought relief from the Board’s decision based on: (1) fraud, misrepresentation, or other misconduct; and (2) mistake of law.

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Randolph v. United States, 31 Fed. Cl. 779, 1994 U.S. Claims LEXIS 216, 1994 WL 482458 (uscfc 1994).

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