Adams v. United States
| Decision Date | 21 August 2014 |
| Docket Number | No. 11-783C,11-783C |
| Court | U.S. Claims Court |
| Parties | ERIC F. ADAMS, Plaintiff, v. UNITED STATES, Defendant. |
Military Pay; Motion for Judgment on the Administrative Record; 10 U.S.C. § 1201; 10 U.S.C. § 1216a; Department of Veterans Affairs Schedule for Rating Disabilities (VASRD); 38 C.F.R. Part 4; 38 C.F.R. § 4.124a.
Barton F. Stichman, National Veterans Legal Services Program, Washington, D.C., for plaintiff. With him were Thomas A. Moore, National Veterans Legal Services Program, Noelle J. Coates, Hunton & Williams LLP, Washington, D.C., and Shannon E. Fyfe, Hunton & Williams LLP.
Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Stuart F. Delery, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, Civil Division, and Scott D. Austin, Deputy Director, Commercial Litigation Branch, Civil Division, Major Mary E. Meek, Department of the Army, Litigation Division, Fort Belvoir, Virginia, of counsel.
Plaintiff, Eric F. Adams, filed suit in the United States Court of Federal Claims claiming that he "has been denied the disability retirement pay and benefits to which he is entitled under 10 U.S.C. § 1201 as a result of the Army's erroneous application of the VASRD [Veterans Affairs Schedule for Rating Disabilities]." Plaintiff seeks to vacate the2005 "decision of the Army to assign Plaintiff a disability rating of less than 30% for his unfitting disability of migraine headaches," and the 2011 "decision by the Secretary of the Army to reject the PDBR [Physical Disability Board of Review] majority recommendation" to raise plaintiff's disability rating for his "Post-Concussive Migraine Headaches" from ten percent to thirty percent. He seeks to vacate both decisions as "unsupported by substantial evidence, arbitrary and capricious, and contrary to law." Plaintiff also seeks (1) money damages, (2) a correction to his records to reflect the thirty percent rating for his migraine condition, (3) interest, costs, and attorneys' fees, and (4) other relief as the court deems just and proper.
According to the parties' joint stipulation of facts, "Staff Sergeant Eric Adams began his military service in the United States Army Reserves in November 1985, serving at various times in both an active and reserve status until his honorable discharge from the Reserves in December 1994." The record indicates that during this time plaintiff served one year, one month, and four days in active service in the role of military police during the first Gulf War. Plaintiff reenlisted in the Army Reserves on May 1, 2001, for a three-year term. The parties jointly stipulated that on July 24, 2003, while deployed in Kuwait, "Mr. Adams was injured in a motor vehicle accident during a dust storm in which Mr. Adams reported his vehicle was hit from behind at a relatively high speed." The parties stipulated "that the collision tossed him into the ceiling of the vehicle," and the record further indicates that plaintiff hit his head on the ceiling of the vehicle, although he did not lose consciousness. According to the parties' joint stipulation, "Mr. Adams reported that there were no seat belts in the vehicle." The parties also stipulated: "The line of duty investigation into the accident concluded that Mr. Adams sustained a head and neck injury while in the line of duty when the van in which he was a passenger was hit by a tractor trailer in Kuwait."2
The record before the court further indicates that after the accident, plaintiff was taken for treatment to the 47th Combat Support Hospital in Camp Wolf, Kuwait, where he complained of head and neck pain. Shortly thereafter, he was evacuated from Kuwait and sent to Landstuhl Regional Medical Center in Germany for further evaluation and treatment. Three days after the accident, on July 27, 2003, an "AEROMEDICAL EVACUATON PATIENT RECORD" indicated that plaintiff complained of a headache with the pain measuring a seven out of ten. (capitalization in original). On July 28, 2003, when examined in Landstuhl, Germany, the handwritten medical records appear to state plaintiff was diagnosed with a "Concussion," along with "Head Muscle Strain." Plaintiff additionally reported at that time that he was suffering from migraine headaches.
According to the parties, one day later, "[b]y orders dated July 29, 2003, Mr. Adams was reassigned to Fort Stewart, Georgia, for continued medical care to recover from his physical injuries." The record indicates that on August 4, 2003, at Fort Stewart, Colonel Josephine W. Session, a medical doctor, diagnosed plaintiff with "Post traumatic Headache Syndrome."3 The record further indicates that plaintiff was examined by certified physician assistant Keith E. Williamson at Fort Gordon on August 7, 2003. Mr. Williamson listed "Head Injury" and "Persistent Asthma" under "Impression" in his report. (emphasis in original). The parties also jointly stipulated that Colonel John H. Brooks, a medical doctor, subsequently "conducted a medical examination of Mr. Adams at Fort Stewart, Georgia on August 25, 2003 and diagnosed Mr. Adams with a 'migraine headache' due to 'auto accident with concussion.'"
On September 11, 2003, Jerry L. Vander Heyden, a doctor of chiropractic medicine, working at the Winn Army Community Hospital in Fort Stewart, diagnosed plaintiff with "OCCIPITAL NEURAGIA [sic]," "POST TRAUMATIC HEADACHES," and "ACUTE CERVICAL STRAIN/SPRAIN." (capitalization in original). Plaintiff stated to Dr. Vander Heyden that his headaches were "FREQUENT," "THROBBING," and that they began "IN THE BASE OF THE SKULL AND RADIATE INTO THE RIGHT SIDE OF HIS HEAD AND OVER THE EYES." (capitalization in original). Plaintiff also stated to Dr. Vander Heyden that bright lights affect his eyes, and that "he has had episodes of dizziness and vomiting as well." According to the report by Dr. Vander Heyden, however, "HE HAS HAD A CTSCAN [computerized tomography scan] OF HIS HEAD WHICH WAS REPORTED TO BE NORMAL." (capitalization in original). On October 1, 2003, Major Umesh S. Marathe, a medical doctor, examined plaintiff at Fort Stewart's Ear, Nose, and Throat Clinic, and stated in his examination report that plaintiff experienced headaches and a concussion resulting from trauma. Dr. Marathe assessed plaintiff with "MiGraiNe." (capitalization as in original). Plaintiff was prescribed medicine to manage his migraine headaches during this period. The parties jointly stipulated that while at Fort Stewart, on October 21, 2003, First Lieutenant Elizabeth VanHemel, a certified physician assistant, assessed plaintiff, and "diagnosed Mr. Adams with 'migraine headache' and 'post-concussive syndrome.'" According to the parties, First Lieutenant VanHemel noted that plaintiff "'fe[lt] like his migraine [was] about to start' but that he was not 'photophobic' and had no 'vertigo.'" (modifications in original).
A Department of the Army (DA) Form 3349, "PHYSICAL PROFILE" report,4 signed by Dr. Session, an Army physician, on November 4, 2003, indicated"MIGRAINE" as plaintiff's "MEDICAL CONDITION." (capitalization in original). This report recommended that plaintiff not be deployed because of his injury.5 On a November 6, 2003 sick call for neck and shoulder pain at Fort Stewart, Eric Treaster, the treating physician assistant, assessed plaintiff with migraines, and filed a medical report indicating "Migraines" as one of plaintiff's medical conditions, along with "DDD Cy-C6," which appears to refer to a spinal injury. According to the parties, on November 18, 2003 Major Jason Friedman, a neurologist, evaluated plaintiff at Fort Stewart's Eisenhower Medical Center and diagnosed him with "migraines." The parties jointly stipulated that "Dr. Freidman states in his report that Mr. Adams '[complained of] migraines since accident 24 July 03' starting in the frontal area with nausea, vomiting, photophobia, phonophobia, and that these symptoms were relieved with 'midrin and rest, cold compress.'" (modification in original). The parties further jointly stipulated: "The report also reflects that Mr. Adams reported to Dr. Friedman that he had migraines 'at least once a [week]' that 'last until he goes [to sleep],' with an intensity of 8-9 out of 10." (modifications in original). The record also indicates that another physical profile report was completed on November 24, 2003, this time by Dr. Brooks, which listed as plaintiff's "MEDICAL CONDITION." (capitalization in original). When visiting Dr. Vander Heyden on December 8, 2003, plaintiff again reported: "Migraine, 2 Headaches LAST weeks," along with tinnitus, but indicated that the migraines were controlled with medication. First Lieutenant Kim Walker, another physician assistant, examined plaintiff on February 10, 2004 and diagnosed him with "migraine HA's [headaches] - controlled." On April 19, 2004, Colonel Lynn F. Abrams filed a physical profile report, which also listed migraines as one of Mr. Adams' medical conditions. Both parties stated in their briefs that at no point did the evidence demonstrate that plaintiff suffered from memory loss or memory impairment.
Plaintiff was evaluated by Dr. Thomas R. Byrnes at the Winn Army Community Hospital, Fort Stewart, Georgia, on April 22, 2004. The parties jointly stipulated regarding the April 22, 2004 visit: "Dr. Thomas Byrnes examined Mr. Adams for the Military Evaluation Board ('MEB') to evaluate his medical condition." The parties further stipulated that plaintiff told Dr. Byrnes that he suffered from "daily headaches . . . with occasional exacerbations. . . [sic] for which he takes Percocet when [the pain] is severe." (modifications in original). The report by Dr. Byrnes gave the...
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