Hutter v. United States

• Decision Date: 14 May 1965
• Docket Number: No. 191-61.,191-61.
• Citation: 345 F.2d 828,170 Ct. Cl. 517
• Parties: Frank A. HUTTER v. The UNITED STATES.
• Court: U.S. Claims Court

170 Ct. Cl. 517, 345 F.2d 828 (1965)

Frank A. HUTTER v. The UNITED STATES.

No. 191-61.

United States Court of Claims.

May 14, 1965.

Paul R. Harmel, Washington, D. C., for plaintiff, Geiger, Harmel & Schuchat, Washington, D. C., of counsel.

Charles M. Munnecke, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

DURFEE, Judge.

This is an action for disability retirement benefits under Section 402(a) of the Career Compensation Act of 1949, 63 Stat. 802, 816-817, 37 U.S.C. § 272(a) (1952), as amended, 10 U.S.C. § 1201 et seq. (1958). The question to be resolved is whether or not the decision of the Air Force Board for Correction of Military Records denying plaintiff's application for a disability retirement rating was arbitrary, capricious, unsupported by evidence, or contrary to the laws and regulations relating to disability retirement. These are the set boundaries within which this court will review such Board action. Thompson v. United States, 156 Ct.Cl. 158 (1962).

Plaintiff's trouble began in the latter part of October, 1955 when he was hospitalized for high blood pressure at a United States Air Force Hospital in Germany. Prior to that time he had served as a pilot in World War II, and then later in the Korean campaign. At the time of his hospitalization plaintiff had attained the rank of a captain and had served on active duty for approximately nine years.

The clinical records covering the period plaintiff was hospitalized in Germany from October 31, 1955, to November 4, 1955, disclose that on entry his face was flushed, and his blood pressure was 154/104. Plaintiff was given a complete hypertensive workup. Doctor's progress notes show that subsequent to the examination of plaintiff at the time he entered the hospital his blood pressure fell to normal limits. He was discharged with a final diagnosis of "Hypertensive cardiovascular disease, benign." Plaintiff returned to flying duty about three months after his release.

Plaintiff next entered a hospital in June 1957 in Morocco, and remained there for 35 days for treatment of a severe arthritic condition of the knee. At the time of entry his blood pressure was 130/90.

In August, 1958 plaintiff was returned to the United States, as he was scheduled for release from active duty on August 31, 1958, under a reduction in force program. Plaintiff was examined by Captain Neil H. Newsom at Norton Air Force Base on August 26, 1958. Plaintiff stated that he had been hospitalized in Germany and Morocco, but the records do not show that he particularized the disabilities for which he was hospitalized. A report of medical examination submitted by Captain Newsom disclosed that plaintiff's blood pressure reading was 158/98. The examination and medical history report bore the following notation, "Patient presents elevation of blood pressure * * * which has never been clinically evaluated." Plaintiff was then referred to the orthopedic clinic for further evaluation.

The examination report by the orthopedic clinic showed five defects in plaintiff's condition. These were a chalazion of the right eyelid; arthritis of the right knee; Dupuytren's contracture of the right hand and foot; superficial scars, and an undetermined hypertensive vascular disease that was manifested by high blood pressure and albuminemia. The recommendation portion of the report read, "Advised to have albuminemia and elevation of blood pressure evaluated thru Veterans Administration."

Plaintiff's case was then referred to a Medical Board at Norton Air Force Base. After examining plaintiff and considering his case, the Medical Board Report showed the Dupuytren's contracture, the arthritis, and suspected hypertension with a diagnosis not established. The Board recommended transfer to another facility for further observation and for a possible hearing before the Physical Evaluation Board.

Plaintiff was then sent to a hospital at Lackland Air Force Base in Texas. He was hospitalized for a four-day period at which time the doctors were informed of his prior hospitalization in Germany for hypertension. They also had the Medical Board's disagnosis of suspected hypertension. Upon entry, plaintiff had a blood pressure reading of 170/115 under circumstances not shown. There was no diagnosis made at Lackland in respect to the hypertension. It further appears from the record that plaintiff did not have a complete hypertension workup. Plaintiff then returned to Norton Air Force Base.

At Norton plaintiff was told by Captain Newsom that his status relating to disability would be based upon the degree of disability he had under the Veterans Administration Schedule for Rating Disabilities, and suggested plaintiff be examined by them. He was told by the non-commissioned officer in charge of the Administrative Section of the hospital at Norton that his record would be reviewed after the Veterans Administration had made its report. Plaintiff was then discharged on October 18, 1958, and thereafter made application to the Veterans Administration for disability compensation.

On November 21, 1958 plaintiff was given a physical examination by the Veterans Administration. A medical report of the examination includes pertinent notations, some of which are as follows:

"Head, Face, and Neck: Flush to Face, severe

* * * * * *

Cardiovascular System:

"Applicant has been hospitalized (1954-1955) for hypertension — Is experiencing frequent epistaxis, headaches and some dizziness and currently is under treatment for hypertension by a private MD. He has had numbness down inner aspect of rt. arm for past 18 months — "constantly asleep." No precordial pain or palpitation have been noted but has exertional dyspnea.

Current Rx — Anti-hypertensive Rx (?)

* * * * * *

"Blood Pressure:

                  Sitting ...................  S 196-D 118
                  Sitting after exercise ....  S 212-D 112
                  2 Min. after exercise .....  S 200-D 118
                

* * * * * *

"The physician\'s diagnosis consisted of the following:

Diagnosis:

1. Hypertension — arteriosclerotic Ht. disease and sinus tachycardia.

2. Normal eye examination (see specialist\'s report).

3. Arthritis, rt. knee (clinically) — not shown on X-ray.

4. Dupuytren\'s Contracture, rt. hand and foot."

On January 22, 1959, the Veterans Administration rated plaintiff 30 percent disabled as a result of arteriosclerotic heart disease. The other maladies did not contribute to the 30 percent rating. The report stated that the "* * * VA examination makes a diagnosis of hypertensive arteriosclerotic heart disease with a reading of 196/118 with normal urinalysis. * * *"¹

After plaintiff received notification from the Veterans Administration of the 30 percent rating, he returned to Norton Air Force Base and learned that both Captain Newsom and the non-commissioned officer in charge of the Administrative Section of the hospital had been transferred. Plaintiff was referred to a legal officer at Norton who told plaintiff the only thing he could do was to advise plaintiff to file an application with the Air Force Board for Correction of Military Records. It is reasonably clear from the evidence that plaintiff went to the Veterans Administration for a physical examination under the impression that the report and evaluation of the Veterans Administration would be reviewed by appropriate officials of the Air Force for the purpose of determining his eligibility for disability retirement.

On February 18, 1959, plaintiff submitted to the Air Force Board for Correction of Military Records an application requesting that his military records be corrected so that he might receive physical disability retirement. The Board for Correction referred the matter to the Surgeon General for consideration. On August 5, 1959, the Office of the Surgeon General sent a memorandum-opinion of plaintiff's case to the Board for Correction. The opinion stated that plaintiff's "* * * defects in question had been adequately studied prior to separation. * * *" The opinion concluded that "It is the opinion of the Surgeon General that the applicant was properly evaluated prior to his separation, that he was not unfit for further military service at that time, and that an alteration of the record is not justified."

On the basis of the Memorandum-opinion by the Surgeon General, the Air Force Board for Correction of Military Records denied plaintiff's application without a hearing on January 11, 1960. Plaintiff then requested the Board to reconsider, and on June 7, 1960, the Board denied the request by letter to plaintiff. The letter of denial stated in pertinent part:

"* * * The Air Force Surgeon General has reviewed the medical aspects of your case and has advised the Board that in his

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