Russell v. United States

102 Fed. Cl. 9, 2011 U.S. Claims LEXIS 2194, 2011 WL 5822227
CourtUnited States Court of Federal Claims
DecidedNovember 17, 2011
DocketNo. 08-349C
StatusPublished
Cited by3 cases

This text of 102 Fed. Cl. 9 (Russell 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
Russell v. United States, 102 Fed. Cl. 9, 2011 U.S. Claims LEXIS 2194, 2011 WL 5822227 (uscfc 2011).

Opinion

OPINION AND ORDER

SMITH, Judge.

Before the Court are Cross-Motions for Judgment on the Administrative Record. After full briefing, oral argument and careful consideration the Court hereby GRANTS IN PART AND DENIES IN PART the Cross-Motions for Summary Judgment.

BACKGROUND

Plaintiff Charles J. Russell first started his service career in the United States Army. His time on active duty was for approximately one month; he was discharged thereafter with an entry level separation under honorable conditions because of an eyesight problem. Plaintiff then joined the United States Marine Corps.

As a Marine, Plaintiff was stationed in Somalia. During that time, one of his duties included burying Somalis who had starved to death. While in Somalia he also came under sniper fire. During his service, he was awarded the Combat Action Ribbon and was released to the Reserves in 1996 with an honorable discharge.

Plaintiff remained in the Selected Marine Corps Reserve and was activated for Operation Iraqi Freedom in March 2003. He arrived in Iraq in May 2003 and was assigned to Al Kut, in southeastern Iraq. He was ranked as Sergeant (E-5). While in Iraq, Plaintiff was assigned as security for convoys, which involved keeping the roads clear. One day, Plaintiff found a grenade in the road. As Plaintiff was required to keep the road clear, Plaintiff picked up the flasli/bang grenade and pulled the pin. Before he could throw the flash/bang grenade, it exploded in his hands resulting in injury.

Plaintiff was treated at a medical clinic at Al Kut and was MEDEVACD to Baghdad and then to Rota, Spain. At Rota, a portion [11]*11of his little finger was amputated. After leaving Spain, Plaintiff was sent to the National Naval Medical Center in Bethesda, Maryland. It was determined that his right ring knuckle and right little finger knuckle were broken. He was treated for the fracture and still has the pins in his hand. He also received treatment for burns suffered in the grenade explosion. Plaintiff was transferred to Camp Pendleton Hospital in September of 2003 for physical therapy. He was discharged shortly thereafter.

Plaintiff was also treated by the Department of Veterans Affairs (“VA”) for Post Traumatic Stress Disorder (“PTSD”) in 2008. For this, he has received a 60% disability rating from the VA.

PROCEDURAL HISTORY

This suit was filed in this Court on May 14, 2008. Plaintiff asked this Court to remand the case to the Navy’s Physical Evaluation Board (PEB) for determination as to whether Plaintiff was eligible for benefits. Defendant filed a Motion to Dismiss and the parties exchanged Cross-Motions for Judgment on the Administrative Record. The Court heard oral argument on the Motions and after oral argument, Defendant filed an Unopposed Motion to refer the matter to the Navy PEB, which the Court granted. The first finding by an informal board of the Navy’s PEB found Plaintiff fit for duty. Thereafter, Plaintiff demanded a formal hearing before the PEB.

The PEB then conducted a formal hearing. At his formal PEB hearing, Plaintiff introduced two new exhibits and the testimony of two treating physicians. Unlike the informal PEB, the formal PEB found Plaintiff unfit for further service. However, the formal PEB still assigned a 0% disability rating for his hand and denied the disability rating for Post Traumatic Stress Disorder (“PTSD”). Plaintiff then submitted a petition for review challenging the finding of the board which was subsequently denied by the Director of the Navy’s Council of Personnel Boards.

On September 9, 2010, Plaintiff amended his complaint in this Court, asking this Court to set aside the decisions of the PEB and the PEB Director, and asking this Court for a ruling that Plaintiff be granted a 30% disability rating for his hand pursuant to 38 C.F.R. §§ 4.71 and 4.130-3. Plaintiff also requested that he be retired pursuant to 10 U.S.C. § 1201.

FINDINGS AT THE PEB

A. The Informal PEB

The Informal PEB (“IPEB”) reviewed Plaintiffs record and unanimously found that Plaintiffs finger injuries caused permanent damage, but that the Plaintiff was still fit for duty.1 Supp. Admin. R. 1672 (“SAR”). In its findings the IPEB noted that Plaintiff did well with his occupational therapy, which was conducted during inpatient and outpatient treatment. SAR 1670-1671. Further, the IPEB found that at the time of discharge, the summary described Plaintiff as having “well controlled pain on oral meds” and that his condition was “good.” SAR 1670. In reaching this conclusion, the IPEB concluded that while enlisted Plaintiff was able to continue his carpentry work. The IPEB relied upon the reports from the hand specialists that had previously worked with the Plaintiff. Id.

Further, the PEB relied on a pre-employment functional assessment taken by Plaintiff in 2008 that showed that Plaintiff was able to lift weights and that he cleared brush by hand, maintained his farm property, and tended to his chickens. SAR 1674. He also continued to perform carpentry and wood carving and used power tools. SAR 1674-75. The IPEB found these activities to be consistent with the functional prognosis rendered in October 2003 that returned Plaintiff to full duty status. SAR 1675.

[12]*12Second, with regard to Plaintiffs claim of PTSD the IPEB held that:

1) Mr. Russell reported no mental health concerns or symptoms prior to his demobilization on his Post-Deployment Health Assessment. SAR 1667. Mr. Russell was also given an individual clinical assessment that did not reveal any mental health issues. Id. at 1673-1675.
2) At no time during his inpatient hospital stay or during his outpatient treatment did Mr. Russell ever report any mental health issues. SAR 1668. During his inpatient stay, Mr. Russell was given daily clinical assessments which reveal the absence of any mental health concerns. Id. at 1673.
3) Mr. Russell’s Fitness Report dated September 30, 2003, documented good performance of duties and recommendation for promotion with his peers. SAR 1674.

In light of all of the evidence presented, the IPEB concluded that as of Plaintiffs date of separation, December 2003, Plaintiff was able to carry out the duties of his office, grade, rank or rating. Further, the IPEB concluded that on his date of separation, Plaintiff did not show any symptoms of PTSD nor did he seek a Mental Health assessment prior to discharge from active service. SAR 1674.

B. The Formal PEB

During the formal PEB2, Plaintiff introduced two new exhibits and the testimony of two treating physicians: Dr. Harold Ginsburg, his psychiatrist, and Dr. Joe Morgan, his orthopedic hand specialist. SAR 1685. The two new exhibits consisted of 42 pages of medical evidence and 72 pages of other evidence, including the witnesses’ curriculum vitae and articles authored by the witnesses. Id. Relying on the new evidence and witnesses, Plaintiff sought a combined disability rating of 55%.

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Related

Kelly v. United States
Federal Claims, 2021
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121 Fed. Cl. 248 (Federal Claims, 2015)
Russell v. United States
106 Fed. Cl. 696 (Federal Claims, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
102 Fed. Cl. 9, 2011 U.S. Claims LEXIS 2194, 2011 WL 5822227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-united-states-uscfc-2011.