Lemly v. United States, 47665.

• Decision Date: 10 July 1950
• Docket Number: No. 47665.,47665.
• Parties: LEMLY v. UNITED STATES.
• Court: U.S. Claims Court

91 F. Supp. 743

LEMLY v. UNITED STATES.

No. 47665.

United States Court of Claims.

Decided July 10, 1950.

Burr Tracy Ansell, Washington, D.C., for plaintiff.

John R. Franklin, Washington, D.C., with whom was Assistant Attorney General H. G. Morison, for defendant.

Before JONES, Chief Judge, and HOWELL, MADDEN, WHITAKER and LITTLETON, Judges.

HOWELL, Judge.

This is a suit brought by plaintiff, a Naval Reserve Officer on the honorary retired list of the United States Naval Reserve to recover retirement pay for disability allegedly suffered in line of duty while on extended active naval service, as provided by Section 4 of the Naval Aviation Personnel Act of 1940, 54 Stat. 864, as amended, 34 U.S.C.A. § 855c — 1, which in pertinent part reads as follows: "All officers * * * of the United States Naval Reserve * * * who, if called or ordered into active naval or military service by the Federal Government for extended naval or military service in excess of thirty days, suffer disability or death in line of duty from disease or injury while so employed * * * they or their beneficiaries shall be * * * entitled to receive the same pensions, compensation, retirement pay, and hospital benefits as are now or may hereafter be provided * * * for officers * * * of corresponding grades and length of service of the Regular Navy. * * *"

The particular disability which plaintiff alleges he suffered in line of duty is Paget's disease. This disease is a disease of the adult skeleton generally occurring after the age of 40 years. It is characterized by changes in the formation of the bone resulting from an unbalance in the absorption of old bone and its replacement with new bone. The pelvis and skull are among the bones most frequently involved and the cause of the disease is not known. It is usually a slowly progressive condition with the earliest lesions appearing, as a rule, in the pelvis. The most common and ordinarily the first symptom complained of is pain. Diagnosis of the condition is usually by disclosure of bone changes upon X-ray made either as a result of complaint or pain or in connection with some other condition. Absolute diagnosis is not always possible on the first films made of a patient at early stages, particularly in the absence of pain. There is no specific treatment for the condition. There is no cure for the disease and the prognosis is variable, the disease being marked usually by slow progression but sometimes by rapid progression and at times by slow or rapid progression to a point where the disease becomes arrested. It is impossible to ascertain the date of the onset of the condition. The disease when far advanced, commonly results in spontaneous fracture of the bones involved and is fairly often accompanied by sarcoma or cancer of the bone. The chief disabling feature of Paget's disease is pain, which may or may not be present with the bone condition, and may or may not have a severity related to the degree of involvement of the skeletal structure. Paget's disease is not considered an occupational condition, or attributable solely to a military or naval career.

Plaintiff, on June 9, 1942, after being physically examined, entered upon active duty as a reserve officer in the grade of captain, and was assigned duties as a disbursing officer at Pearl Harbor. On March 12, 1944, he attained the age of 64 years, because of which he was placed shortly thereafter on the honorary retired list. During the period of active duty prior to October 1944 plaintiff suffered an infection in the kidney area, for which he received treatment. Prior to his release from active duty in October 1944, plaintiff at his own suggestion and request went to the Naval Medical Center, Bethesda, Maryland, in order to check on this earlier kidney condition. Specialized X-rays of the plaintiff's kidneys were made which revealed there was no further kidney trouble and the examiner noted that plaintiff's general appearance was healthy for a man of 64 years. On October 17, 1944, medical officers at the Naval Hospital and at the Naval Dispensary found that plaintiff was fit for active duty and for release from active duty respectively. As of this date, plaintiff was ordered to inactive duty and reverted to inactive status.

Plaintiff had been a civilian employee of the Government from 1933-1940 and from 1941-1942, and in December 1944, following his release from the Navy, he obtained employment with the Foreign Economic Administration in Washington, D. C. This employment involved desk duties for the most part, but it also involved considerable walking to and from various Government agencies in the District of Columbia.

Plaintiff claims that in June 1945, while a civilian employee of the Government, he began to experience soreness, ache or dull pain in his left hip and leg, and also headaches. He consulted the Naval Dispensary in July 1945 and was treated at the dispensary on this and subsequent visits until July 1946.

Plaintiff consulted private physicians, one of whom on the basis of X-rays and plaintiff's complaints as to soreness and pain, advised the plaintiff of findings "consistent with Paget's disease" in July 1946.

Plaintiff was advised by a private physician to avail himself of retirement, if possible, and on December 31, 1946, plaintiff did avail himself of voluntary Civil Service retirement and retired from his civilian position.

Some time in 1946 plaintiff requested and was given a copy of his Naval Medical Record. In this record an examining radiologist had reported on the specialized type of X-rays made to check the plaintiff's kidneys at Bethesda in October 1944, and in the course of making incidental observations noted that there may have been some changes in the pelvic region indicative of Paget's disease.

Plaintiff in October 1946 and subsequent thereto corresponded with the Navy Department requesting determination of his rights to retirement for physical disability. His requests for retirement were reviewed by an informal review board of five doctors in the Navy Department's Medical Corps who considered plaintiff's case on the merits. Their handling of the case was not arbitrary but in line with a policy of equal treatment for all officers so situated and in their opinion did not warrant sending plaintiff before a retiring board and plaintiff was so advised. The action of the Navy Department in not referring plaintiff to a retiring board in 1944 was in line with the standard practice of not recommending such proceedings in the absence of a condition incapacitating the officer from active duty. While plaintiff may have had Paget's disease, he was not incapacitated for active duty in October 1944. At that time plaintiff enjoyed as good a state of health as the average officer of his age and there had been no essential change in his general health during the period of active duty from 1942 to 1944.

Plaintiff has referred us to the Manual of the Bureau of Medicine and Surgery, Part III, Chapter 2, Section III, paragraph 3221, which contains a definition of the term "line of duty" to govern retiring boards and others concerned with retirement proceedings, which reads as follows:

"An injury or disease incurred during naval service will be considered to have been incurred in line of duty when the individual was on active service in the naval forces whether on duty or authorized leave, unless such injury or disease:

"(a) Existed prior to his entry into the service

"* * * * * *"

Plaintiff contends that under this definition and under the evidence that he is entitled to a presumption that h...