Mozur v. Orr

• Decision Date: 15 January 1985
• Docket Number: Civ. A. No. 83-1204.
• Citation: 600 F. Supp. 772
• Parties: Robert S. MOZUR v. Verne ORR, Secretary of the Air Force.
• Court: U.S. District Court — Eastern District of Pennsylvania

600 F. Supp. 772

Robert S. MOZUR v. Verne ORR, Secretary of the Air Force.

Civ. A. No. 83-1204.

United States District Court, E.D. Pennsylvania.

January 15, 1985.

Eric J. Fischer, Community Legal Services, Philadelphia, Pa., for plaintiff.

Rachel Shao, Asst. U.S. Atty., Philadelphia, Pa., for defendant.

OPINION

LOUIS H. POLLAK, District Judge.

Plaintiff joined the Army Air Corps (currently the Air Force) in January, 1943. The Report of Physical Examination and Induction dated December 22, 1942 notes no serious medical problems and states that plaintiff was "physically and mentally qualified for general military service." Military Personnel Records at 5.

On June 28, 1943, plaintiff was discharged from duty. The Report of Physical Examination of Enlisted Man Prior to Discharge or Retirement states that plaintiff suffered from "Psychoneurosis, mixed type" incurred under "unknown" circumstances. The certification of the immediate commanding officer on the discharge form states that "in my opinion the disease was not incurred in the line of duty in the military service of the United States." Air Force Correction Board Proceedings at 24. The same certification is provided by the physician who performed the discharge physical examination.

The discharge was the result of a recommendation by the Army physician who was treating plaintiff in May, 1943. That physician concluded that plaintiff suffered from "psychoneurosis, mixed type, severe, cause undetermined, manifested by extreme psychosomatic introspection, insomnia, and episodes of somnambulism all without organic basis." Air Force Correction Board Proceedings at 26. The treating physician found that this condition was not incurred in the line of duty. Id.

Prior to his discharge, plaintiff had been hospitalized continuously from approximately April 30, 1943. The physician who took plaintiff's medical history at the time of a May 15, 1943 examination noted that plaintiff complained of "pain in knees, elbows, feet, since age of 8. Tires easily. Has nightmares and headaches." Id. at 28. That same physician recites the history of plaintiff's illness as follows:

This soldier states that he has been ailing since the age of 8 with pains in the knees, and elbows, headaches, nervousness and easy fatigability.) sic He states that he has had growing pains in his knees and that his entire family has rheumatic heart disease.

Is unable to stay on feet longer than 15 minutes because of pains in knees and shortness of breath.

Had a "nervous breakdown" at age of 17 and could not work for several months/Never could keep a job. Used to stay out naked on the street and was brought in by the milkman. Gets hysterical.

Id. at 29.

A May 23 physician's report relates a similar medical history and describes plaintiff's psychiatric status as follows:

Soldier is quite garrulous. He can go on indefinitely recounting long and varied symptomatology. Despite the disabling nature of his symptoms as he relates them, he does so with evident relish and with a smile. He is an emotionally inadequate individual, who never apparently adjusted well to life since his so called "nervous breakdown" at the age of 17. He shows extreme psychosomatic introspection. There is no evidence of psychosis or mental deficiency. He is a pronounced Psychoneurotic. He may have some parathyroid deficiency; this however is not clearly evident. Certainly his psychoneurotic manifestations cannot be explained on a parathyroid deficiency. They (are explained on the basis of an inadequate personality reaction and have been continuously present for the last 4 or 5 years.) It is doubtful that any useful service can be obtained from this soldier and in view of his short period of service, separation under WD Cir. # 395 is recommended.

Id. at 33.

In 1944 plaintiff applied for and received disability benefits for his "nervous condition." Id. at 38. Those benefits were severed in 1957 "since a determination has been made that your nervous condition was not incurred in or aggravated by your military service in World War II." Id. at 39.

Plaintiff, represented by the Jewish War Veterans of the United States, appealed this decision to the Board of Veterans Appeals. The Board denied the appeal following a hearing at which plaintiff and his mother appeared as witnesses. That decision, issued July 26, 1957, stated that the Board had considered not only the military records in the case but also the testimony presented at the hearing, affidavits of plaintiff's friends and letters from various physicians who had treated plaintiff both before and after his period of service.

Plaintiff then applied to the Air Force Board for Correction of Military Records ("AFBCMR") for a revision of his military records which would recite that his mental problems were service-connected. That pro se petition was denied in January, 1961. The decision of the AFBCMR states that the military records and the facts presented by plaintiff failed "to establish a showing of probable error or injustice in your case." Proceedings of Air Force Board for Correction of Military Records at 1.

In 1982 plaintiff filed a new request with the AFBCMR for correction of his records. This time, proceeding with the assistance of counsel, plaintiff asked that the records be amended "to delete all reference to any mental disorder or nervous breakdown existing prior to induction in the Armed Forces." Air Force Correction Board Proceedings at 2. This request for amendment of records was accompanied by a large number of exhibits. They included letters written by five physicians who had seen plaintiff after his discharge from the service, all of whom concluded that plaintiff's mental condition was service-connected. In addition, the AFBCMR was provided with a letter from Dr. Leon Kacher who had treated plaintiff during his youth. That letter states "as much as I am able to recall, I treated Mr. Mozur on two or three occasions in the later thirties or early forties for some general complaints — upper respiratory infection and gastro-intestinal upset. I did not treat him for any neurologic or psychiatric complaints." Id. at 57. The application was also accompanied by over forty letters from persons who had known plaintiff prior to his induction in the service who stated that he did not suffer from any psychiatric problems prior to his period of service.

On January 25, 1983, the AFBCMR denied the renewed application. The decision of the AFBCMR stated, in pertinent part:

2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3. Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice. Applicant's contentions are duly noted; however, we agree with the opinion and recommendation of the Office of the Surgeon and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of substantial evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

The recommendation of the Office of the Surgeon relied upon by the AFBCMR states:

1. Applicant's entire case file has been reviewed and is forwarded with the following findings, conclusions and recommendations.

2. The applicant was discharged from the Army Air Corps in June 1943 after a short period in the service. At this most late and untimely date he applies requesting "amend record to delete all reference to any mental disorder or nervous breakdown existing prior to induction in the Armed Forces" because he has not been rated by the VA.

3. The records are correct. Service medical records clearly document applicant's mental condition existed prior to induction in the armed services and was not service-incurred.

4. VA records, including extensive review of his case by the Board of Veteran Appeals, clearly indicate applicant's mental condition is not service-connected.

5. The Surgeon General's Consultant Staff is of the opinion that no change in the records is warranted, the application is untimely, without merit and should be denied.

Id. at 4. The only Veterans Administration records in the documentation before the AFBCMR are those from the 1957 Board of Veterans Appeals decision approving the termination of plaintiff's benefits.

Plaintiff filed this action for review of the AFBCMR's 1983 decision soon thereafter. Cross-motions for summary judgment were filed in the spring of 1984. In a Memorandum/Order dated June 29, 1984, I concluded that I should consider this appeal on the merits despite defendant's contention that the appeal was barred by laches. However, I found that before I could evaluate the merits of the motions, I would need further briefing on the applicability and content of an Army regulation which, plaintiff contended, established a presumption of sound condition upon induction or a presumption that any condition was aggravated in the service. Army Regulation 40-1025 (December 12, 1944). See Ludzinski v. United States, 154 Ct.Cl. 215 (1961). I directed that such additional briefing be provided according to a schedule established in that Memorandum/Order and that "all submissions should include copies of the full text of all regulations cited." Mozur v. Orr, No. 83-1204 (June 29, 1984) at 5.

The parties have now filed supplemental briefs and the matter is ripe for consideration. Plaintiff's motion for summary judgment argues that the AFBCMR decision was arbitrary and capricious and not based upon substantial evidence. Plaintiff suggests that the standards developed in the "parallel" area of Social Security disability benefit appeals should be applied to this case. Plaintiff notes that the preinduction physical evaluation of plaintiff showed that no disability, mental or physical, was present in December 1942. In addition, plaintiff points to the various affidavits and physicians'...