Stein v. United States, 10-170C

CourtCourt of Federal Claims
Decision Date27 February 2015
Docket NumberNo. 10-170C,10-170C
PartiesKEVIN M. STEIN, Plaintiff, v. UNITED STATES, Defendant.

Military Pay Act, 37 U.S.C. § 204; Lack of Subject Matter Jurisdiction; Motion to Dismiss; Motion for Judgment on the Administrative Record; 10 U.S.C. § 1201; 10 U.S.C. § 1214.

Jason E. Perry, Law Office of Jason Perry, Wellington, FL, for plaintiff.

Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General, , Civil Division, Washington, D.C. Major Sean D. Schrock, Office of the Judge Advocate General of the Navy, of counsel.

OPINION

HORN, J.

FINDINGS OF FACT

Plaintiff Kevin M. Stein filed a complaint in the United States Court of Federal Claims, "for wrongful discharge from the US Navy and denial of retired retainer pay, or in the alternative, an action to recover military disability retirement pay and benefits." Plaintiff initially enlisted in the United States Navy on November 21, 1988, serving until 1994. Plaintiff states, "[a]fter a brief break in service," plaintiff subsequently re-enlisted in the Navy in 1995. Mr. Stein's most recent enlistment was to run from October 15, 1998 to April 14, 2004, originally as a five-year term, with a subsequent six-month extension. During his service with the Navy, plaintiff worked in the field of electronics, eventuallyrising to the grade of Electronics Technician First Class (E-6). Plaintiff was discharged from the Navy on March 19, 2004.

In 2000,2 plaintiff sought medical treatment from military medical providers for involuntary jerking movements, tics, and numbness, and was diagnosed with a motor function disease (Stiff-Man Syndrome),3 Obstructive Sleep Apnea4 (OSA), and Gastroesophageal Reflux Disease5 (GERD). Because of his conditions, on May 4, 2000, plaintiff was placed on limited duty status. Initially, the end of plaintiff's obligated service (EAOS) was October 14, 2003, however, that date was later extended for a period of six months, establishing his new end of obligated service, or EAOS, of April 14, 2004.6

On September 21, 2000, the Navy convened a Medical Evaluation Board (MEB), which found plaintiff suffered from bilateral upper extremity neuropathy,7 classified in the International Classification of Diseases (ICD) as ICD number 354.9. The MEB recommended that plaintiff again be placed on limited duty status, until May 21, 2001, anticipating that upon its completion "he [would] be fit to return to full duty." On March 15, 2001, plaintiff again was evaluated by a MEB, and diagnosed with bilateral upperextremity peripheral neuropathies, ICD number 3569, and diffuse myopathies8 of unclear etiology, ICD number 3599. The MEB stated that "the member's condition interferes with the reasonable performance of his assigned duties," and referred plaintiff's case to a Physical Evaluation Board (PEB) for a fitness for duty determination. The MEB indicated that until a PEB reached a final decision in plaintiff's case, he "is not to be deployed aboard ship or sent to any area remote from Naval Medical Center, Portsmouth, Virginia."

The April 17, 2001 MEB's referral to a PEB, included diagnoses of "bilateral upper extremity peripheral neuropathies," ICD number 3569, "diffuse myopathies of unclear etiology," ICD number 3599, "proximal myopathy, type unknown," ICD number 3599, and "right carpal tunnel syndrome," ICD number 3540. Plaintiff's first informal PEB convened on August 7, 2001, and found plaintiff fit to continue on active duty. Plaintiff accepted the PEB's finding of fit for duty on August 27, 2001.

After plaintiff's September 20, 2001 operational screening,9 plaintiff's commanding officer at the Naval Computer and Telecommunications Area Master Station Atlantic (NCTAMS LANT) advised the Commander, Navy Personnel Command (COMNAVPERSCOM), that plaintiff was found "unsuitable for transfer to sea or overseas duty" and "not world wide assignable" because of his "ongoing, chronic medical conditions. ICD-9 codes 356.9; 359.9; 354.0; 780.57; 530.82." Because plaintiff stated he wanted to be retained on active duty, and his Officer in Charge concurred, a recommendation was made that plaintiff be retained until the end of his obligated service. Plaintiff, however, was not authorized to extend his current enlistment, or reenlist without prior approval. Plaintiff's commanding officer was directed to have plaintiff sign theAdministrative Remarks entry,10 stating "I acknowledge I am not authorized to extend my current enlistment or reenlist without authorization from PERS-832."11

Between February 2002 and October 2003, plaintiff12 underwent several medical evaluations conducted by different military doctors, including three neurologists and a neurosurgeon, because of plaintiff's complaints regarding myoclonic jerks, frequent paresthesias,13 stiffness, "left lower extremity instability," and problems with his left knee. The doctors ruled out the need for neurosurgical intervention, and noted that plaintiff had sleep apnea and gastroesophageal disease, possible carpal tunnel syndrome, and that he was obese. Consequently, it was recommended that plaintiff lose weight. Plaintiff's possible Stiff-Man Syndrome received conflicting diagnoses. Although one neurologist indicated a likelihood of a Stiff-Man Syndrome, another neurologist at the Naval Medical Center in Portsmouth, Virginia, observed on October 20, 2003, that there was "no evidence of stiffman syndrome on examination." Dr. Tavee, the neurologist at the Naval Medical Center, did note, however, that plaintiff appeared to have motor tics and primary movement disorder.

On September 12, 2003 and September 17, 2003, Dr. N.M. King at the Naval Medical Center in Portsmouth, Virginia conducted plaintiff's evaluation regarding the possibility of "continuous motor unit activity syndrome," and the possibility of Tourette syndrome.14 Dr. King diagnosed plaintiff with a continuous motor unit activity syndrome,Obstructive Sleep Apnea, Gastroesophageal Reflux Disease, hiatal hernia,15 and ocular myokymia.16

On September 17, 2003, the MEB reviewed plaintiff's case and medical records and issued a report, signed by Dr. King, which indicated that plaintiff's complaint of "persistent problem with brief abnormal movements of the limbs" "would be consistent with either the myoclonic jerk or a twitch." The MEB noted that plaintiff had used the drug Klonopin in the past, with marginal results. The MEB referred plaintiff to a PEB for another fitness for duty determination, with a diagnosis of a Stiff-Man Syndrome, ICD number 3339.1, stating that, it was the opinion of the MEB, plaintiff's "condition interfere[d] with the reasonable performance of his assigned duties." Plaintiff signed a "Statement of Patient concerning the Finding of a Medical Board," on November 17, 2003, indicating that he has been "informed of contents, opinion(s) and recommendation(s) of the Medical Board," and he did not "desire to submit a statement in rebuttal." Plaintiff's statement also indicated that plaintiff was not "processing for separation/retirement."

Following the September 17, 2003 MEB report, the MEB issued four separate addenda to its report, expanding the initial diagnosis to include other conditions. In the October 7, 2003 addendum, the MEB noted that plaintiff appeared before the MEB with the diagnosis of obstructive sleep apnea of a moderate degree, which was being treated with "C-PAP [Continuous Positive Airway Pressure] of 14 centimeters of water pressure." The addendum concluded that "[t]his condition and the treatment with CPAP should not interfere with [plaintiff's] abilities to perform his duties on ship or on shore." Furthermore, on October 16, 2003, the MEB issued a second addendum to its September 17, 2003 report, which indicated that plaintiff had gastroesophageal reflux disease manifested by heartburn, ICD number 530.81, and recommended that plaintiff "modify his lifestyle, to avoid foods that are known to aggravate his heartburn" and lose weight. The October 16, 2003 MEB's addendum concluded that plaintiff was "fit for duty from a GI [gastrointestinal] standpoint." The third addendum, issued on January 22, 2004, stated that plaintiff's final diagnosis was motor tics, ICD number 333.3, and that he was scheduled to be seen by Dr. Cannard, at the Walter Reed Army Medical Center, for a second opinion. On February 11, 2004, the MEB issued a fourth addendum to its September 17, 2003 report, indicating that plaintiff was evaluated by Dr. Cannard at Walter Reed Medical Center, for a suspected movement disorder, and diagnosed with motor tics. The February 11, 2004 MEB's addendum also indicated that plaintiff's current medication, Klonopin, was providing only partial control of his symptoms, and concluded: "Further evaluation and treatment by a movement disorder specialty clinic would be best for this patient." Plaintiffsigned a statement acknowledging the content of each addendum, and indicated he did not "desire to submit a statement of rebuttal" to any of the four addenda.

On October 8, 2003, the Officer in Charge, Naval Computer and Telecommunications Area Master Station Atlantic Detachment Hampton Roads, Anthony Bruner, sent a memorandum to the Commanding Officer, Naval Medical Center in Portsmouth, Virginia, titled "Non-Medical Assessment ICO ET1 Kevin M. Stein." The memorandum stated that due to plaintiff's

diagnosed medical conditions, several significant limitations have been placed on the type and extent of electronics work he [could] accomplish. Involuntary muscle movement, numbness and occasional fatigue prohibit him from working on high voltage and energized equipment. However, his experience affords him many opportunities to provide technical
...

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