141.00 – Disability Retirement – Retire on Disability
192.00 – Pay and Allowances (Includes Allotments of Pay / Allowances / Basic Pay) – Denial of Tri-Care Benefits
212.00 – Retirement (Includes Involuntary Retirement) – Change Retirement Date
212.00 – Retirement (Includes Involuntary Retirement) – Extension of Retirement Date
216.00 – Separation from Commissioned Corps (Includes Involuntary Separation) – Medically Unfit for Service
SUBJECT: Minutes for Board for Correction of PSC Commissioned Corps Records
OFFICER: CDR XXX Case # 12-024
THE BOARD FOR CORRECTI ON OF PUBLIC HEALTH SERVICE COMMISSIONED CORPS RECORDS (BOARD) WAS CONVENED ON JUNE 29, 2015 AT 02:00 PM IN BETHESDA, MARYLAND. THE FOLLOWI NG I NDIVIDUALS WERE I N ATTENDENCE:
Mary Lee -Board Member, Board for Correction (Teleconference)
Karen Migdail - Board Member, Board for Correction (Teleconference)
Polly Ross -Board Member, Board for Correction (Teleconference)
Justin Groves - Acting Executive Secretary, Board for Correction
Dan B. Clutch, Jr.-Senior Advisor, Board for Correct ion
OFFICERS REQUEST FOR RELIEF
The Applicant filed a timely application to the Board.
Introduction
The Officer experienced sudden-onset back pain while serving on active duty with the U.S. Public Health Service ("USPHS") in Alaska. He immediately sought treatment for his pain, but his local Tricare and military treatment facility ("MTF") medical administrative managers exerted control over his access to care and prevented him from receiving the timely treatment that he needed. For over a year, he worked vigorously within the system to overcome excruciating pain and the debilitating health risks exacerbated by unnecessary delays, blocked access to expert diagnostic work-up and a harmful surgery. Immediately prior to his retirement, he was finally referred to a doctor qualified to assess his situation and determined that his best opt ion was total disc replacement ("TOR") surgery. The USPHS authorized his retirement effective September 1, 2009, even though his urgent medical work-up was incomplete, his spinal and new cancer concerns were brought to their attention, and his unmet medical expert recommendations were shared. The request for TOR was received by Tricare on September 4, 2009 and denied because of his newly retired status. Officer asks the Board to change his retirement status to reflect his on-going medical condition. At the time of his retirement, Officer was suffering from severe back pain, post-surgical complications, disability, and ominous health threats. These conditions prevented him from working, and he was on sick leave from July 29, 2009 until his retirement on September 1, 2009. He was in the process of receiving treatment for these ongoing conditions and therefore should not have been authorized to retire without a thorough review by the Medical Review Board. Officer also seeks reimbursement for all of his out-of-pocket medical expenses, especially the $60,000 for his surgery at Sternum incurred as a result of USPHS's erroneous treatment of his retirement and Tricare's subsequent refusal to cover authorized services. Officer further requests that the Board authorize reimbursement to other parties who provided uncompensated treatment to him in spite of Tricare's refusal to cover the services rendered. Based on the arguments that will be detailed in this application, the Board has sufficient equitable and legal justification to grant Officer the relief sought. Please take this memorandum and supporting documents into consideration when rendering final judgment.
- I Timeliness and Exhaustion
10 U.S.C. § 1552 provides for the correct ion of errors in the record of a member of the military. Corrections shall be applied for within three years of the discovery of the error or injustice making the correct ion necessary. 10 U.S.C. § 1552(b). This timeline is extended to members of the Public Health Service Commissioned Corps through 42 U.S.C. § 213a(a) (12). While a service member is on active duty, the statute of limitations is tolled. See Detweiler v. Pena,38 F.3d 591 (C.A.D.C. 1994) (holding that the tolling provision found in Soldiers' and Sailors' Civil Relief Act of 1940 (SSCRA) suspends the BCMR's three-year statute of limitations during service member's period of active service). Officer was on active duty until he retired on September 1, 2009, placing this application within three years of that date.
Ill. Governing Laws
10 U.S.C. § 1552 provides for the correct ion of errors in the record of a member of the military; this right to a correction of records is specifically enumerated in 42 U.S.C. 213a(a)(12) and thereby extended to members of the Public Health Service Commissioned Corps: Commissioned officers of the Service or their surviving beneficiaries are entitled to all the rights, benefits, privileges, and immunities now or hereafter provided for commissioned officers of the Army.
- Statement of Facts
Coast Guard Career and Early USPHS Service
Officer entered the United States Coast Guard on October 18, 1982. He remained with the Coast Guard as a reservist while he attended college. Upon graduating with a nursing degree, Officer accepted a commission with USPHS. He retired on September 1,2009, after a total of twenty-three years of distinguished active service. While on active duty with the Coast Guard, Officer served in the Presidential Honor Guard and then as a Corpsman in Kodiak, AK, where he performed medical duties and participated in aircraft rescues. As a commissioned officer with the USPHS, he served as a genera l pediatric nurse and then as a pediatric intensive care nurse for the Alaska Native population at the Alaska Native Medical Center ("ANMC") for eighteen years. Officer quickly ascended in rank and took on increased responsibility. His Fitness Reports demonstrate his commitment to excellence and dedication to providing top-notch medical care throughout his career
Onset of Severe Degenerative Disc Disease and Treatment Attempts
In November 2008, Officer suffered from an acute attack of severe back pain. He aggressively sought treatment, first at ANMC, and then with Elmendorf Air Force Base ("EAFB"). At every stage of his medical treatment process, Officer was stymied by the Tricare system and ineffective assistance from MTF personnel. Officer initially received treatment from Dr. Robert McAlister, his Primary Care Manager ("PCM") at ANMC. He was treated with anti-inflammatory and muscle relaxants, but the back pain continued. After analyzing the results of his x-rays and a lumbar MRI, Dr. McAlister referred him to a neurosurgeon for expert evaluation. An official referral request was sent through Tricare, but was denied. Phillip Duke, a Tricare representative incorrectly advised Officer that he was not authorized to receive care from ANMC. Even though Officer was working at ANMC and had received medical care from that facility for nearly eighteen years, he trusted Mr. Duke and resolved to utilize the proper channels to resolve his medical condition. After this denial and in accordance with Mr. Duke's advice, Officer scheduled an appointment at EAFB with Dr. Christopher Black. He attempted to explain his problem and the treatment he received so far, but Dr. Black did not have enough appointment time available to fully understand and adequately assess the problem. He referred Officer to physical therapy despite clear indications that his problem was related to a structural deformity. Even the physical therapist stated that therapy would have a limited effect on his condition. Nevertheless, Officer was determined to work with the system and tried physical therapy .After two months, his pain was unchanged.
At this point, Dr. Black realized that Officer required specialized spine evaluation and treatment. But, instead of referring him to a neurosurgeon, EAFB arranged for Officer to see Dr. Larry Kropp, a civilian spine specialist who was not qualified to perform the type of surgery Officer ultimately required. Upon receiving Tricare approval, Officer consulted with Dr. Kropp on May 18. He recommended a PET scan to rule out infection, but this also required Tricare approval and one month later, Officer finally received the PET scan. Based on the results, Dr. Kropp performed a laparoscopic discectomy on July 29. This procedure did not correct the underlying condition, but exacerbated it instead. After the surgery, Officer experienced severe and debilitating spine and leg pain. Dr. Kropp recommended a nerve block, but as that also required Tricare approval, and it was nearly two weeks later that he finally underwent the procedure. Unfortunately, the procedure was unsuccessful at relieving the pain. Officer waited again for Tricare to approve an MRI to further diagnose the problem. Throughout this time, Officer was prescribed a steadily increasing variety of medications and potent narcotics intended to reduce his excruciating pain.
In August 2009,Dr. Kropp recommended TOR surgery and referred Officer to Dr. Timothy Cohen, Neurosurgeon. After waiting several days in extreme pain for Tricare to approve the referral, Officer discovered that Tricare lost the referral. A new referral was submitted and approved, and Officer eagerly scheduled an appointment at the next available opening on September 4,2009. Dr. Cohen confirmed that Officer required a TOR and submitted the proper paperwork for approval by Tricare. On September 15, 2009 Tricare denied the request due to the fact that Officer was no longer on active duty.
- Retirement and Subsequent Treatment for Severe Degenerative Disc Disease.
On May 13, 2009,before Officer became aware of the seriousness of his back problems, he requested retirement on September 1, 2009. The results of his most recent physical were sent to the Medical Affairs Board ("MAB") for review in accordance with the Commissioned Corps Personnel Manual. This physical took place in early April2009. While Officer was still suffering from severe back pain, he was able to continue working and was hopeful that the treatment plan would successfully resolve his condition prior to retirement. Nevertheless, the report did indicate that Officer suffered from back pain, noting that "degenerative disc [disease] and protrusion will most likely need further evaluation and treatment."
After the laparoscopic discectomy on July 29,2009,Officer remained on sick leave until his retirement on September 1,2009. The extreme pain that followed his discectomy and accompanied his worsening back disease made it impossible for Officer to continue working. At this time, Officer realized that his back problem would not be resolved prior to his scheduled retirement date. Furthermore, doctors also noted the possibility that Officer might have cancer and required further screening for that matter Therefore, in accordance with the Commissioned Officers Retirement Guide, he properly notified the MAB about this new development in August 2009. The MAB never responded to this letter. The only correspondence that Officer received from the MAB prior to his retirement was a letter requesting additionaltesting and information. MAB didnot respond to the doctor's comments regarding Officer's back problems or the spine and cancer concerns and request for administrative guidance that Officer shared with them. Due to the fact that Officer was now retired, Tricare determined that he no longer qualified for the lumbar TOR that his physician specialists recommended and instead limited him to undergo spinal fusion, a cheaper treatment option that his doctors strongly advised against, based on their professional opinion that fusion would not adequately address his back condition. Over the next six months, while end ring excruciating pain and risk for permanent disability, Officer worked to appeal this administrative decision, access recommended care, and also to address the circumstances of his retirement. During this time, Officer desperately sought administrative support and access to the level of medical care that his physicians recommended and was available to other service members in Anchorage.
In March 2010, following Dr. Black's surgical referral submission, EAFB Referral Management suggested that Officer might be able to receive TOR at Balboa Nava l Hospital in San Diego, CA. Dr. Black, also of EAFB, considered this option and instead strongly recommended that Officer have the surgery at Sternum Hospital in Germany. Due to unwarranted Tricare denials, lost referrals, other administrative errors, and unnecessary delays, Officer's treatment had been needlessly delayed for nearly eighteen months. Throughout the whole process of receiving treatment for his back pain, Officer tried to work with his local MTF in an effort to appeal Tricare's denial of his claim and to get the surgery that offered the best opportunity for full recovery . But, during this time, Officer's condition continued to worsen and further administrative delays were likely to result in permanent disability, possible addiction to painkillers, and other devastating health conditions. Therefore, he followed the sincere advice of his health advocates and scheduled the surgery with Sternum, insisting that the associated surgical referral paperwork be delivered to and acknowledged by his MTF Triwest/Tricare agents. On March 19, 2010, sixteen months after his symptoms began, Officer finally obtained the surgery that he needed to relieve h is pain, overcome disability and resume normal activities. When he returned to the United States, he immediately began the process of obtaining reimbursement for his surgery and related expenses. Even after three years of constant effort to communicate effectively with his governing agencies, Officer's work to share his concerns, fair y defend his actions, invite thorough explanations from h is administrative managers and obtain full reimbursement for his surgical expenses remains inexplicably blocked.
- Requested Relief
Officer asks the Board to change his retirement status to reflect his on-going medical condition. At the time of his retirement, Officer faced a new cancer threat and was suffering from severe back pain and post-surgical complications that prevented him from working. He was in the process of receiving evaluation and treatment for these conditions and therefore should not have been authorized to retire without review by the Medical Review Board. Officer also seeks reimbursement for all of his out-of pocket medical expenses, especially the $60,000 for his surgery at Sternum incurred as a result of USPHS's erroneous treatment of his retirement and Tricare's subsequent refusal to cover authorized services. Officer further requests that the Board authorize reimbursement to other parties who provided uncompensated treatment to him in spite of Tricare's refusal to cover the services rendered.
- Argument
CDR suffered from Severe Degenerative Disc Disease, incurred over the course of twenty three years of active duty service with the U.S. Coast Guard and the U.S. Public Health Service ("USPHS"). As a corpsman and nurse, Officer regularly lifted sick and injured patients, which took a toll on his back and lead to this debilitating disease . The USPHS failed to follow its own regulations when Officer notified the Medical Affairs Branch ("MAB") prior to his retirement that he had a serious medical condition. When a USPHS officer becomes disabled, he is entitled to review by the Medical Review Board to be considered for either placement on the Temporary Disability Retired List ("TDRL") or authorization for a permanent disability retirement. Either of these two options would ensure that the retired service member continued to receive full Tricare coverage to treat his service- incurred medical condition. The failure of USPHS to follow its own regulations resulted in Officer being denied a disability retirement status ,having his access to available professionally recommended health care derailed, suffering needlessly and being left to pay for his own medical treatment without crucial agency support. Furthermore, even if the Board determines that USPHS followed proper procedures at the time of Officer's retirement, he should still be granted a disability retirement. Officer was diagnosed with severe degenerative disc disease . This condition was incurred and aggravated while Officer served on active duty with the USPHS. A service member who has a disability at the time he retires is entitled to a disability retirement, with the according pay and medical benefits. Therefore, Officer should be granted a disability retirement and should be compensated for his medical expenses related to his service incurred disability.
- The USPHS violated its own regulations when it failed to refer Officer to the Medical Review Board for consideration of his on-going medical disability and eligibility for a permanent disability retirement.
Federal agencies are required to follow their own regulations. Beckham v. United States, 392 F.2d 619, 636 (Ct. Cl. 1968). USPHS regulations state that the MAB must be contacted immediately if a retiring or separating officer is suffering from a medical condition that would impact his ability to be fit for active duty if he was not retiring or separating. "If you become ill or are hospitalized ... before the effective date of your retirement, the Medical Affairs Board, DCP ,should be notified immediately." The MAB is then required to present evidence of the medical condition to the Director, Division of Commissioned Personnel, who must then task the Medical Review Board to review the medical and performance evidence. The Medical Review Board must then make a determination of fitness for duty and present its findings to the Surgeon Genera l for a final decision. The Medical Review Board has the power to recommend a disability retirement if the officer has at least twenty years of service, and can recommend placement on either the Temporary or Permanent Disability Retired List ,depending on the nature of the medical condition. This finding can even be supported if the officer's condition is not presently affecting performance, so long as there is a likelihood that it will in the future. Officer was on sick leave from July 29, 2009 until the effective date of his retirement on September 1,2009. Due to his worsening medical condition, he properly notified the MAB in accordance with the regulations stated above. But, instead of following the regulations and convening a Medical Review Board to analyze the facts and circumstances of Officer's medical condition, the MAB ignored and refused to respond to Officer's letter. This failure by the MAB resulted in Officer being retired under normal circumstances, denying prompt access to available recommended medical care, leaving him to pay for his own necessary medical treatment and denying him the increased pay and tax benefits of a disability retirement. Based on the evidence, it is highly likely that a Medical Review Board would have recommended Officer for a permanent disability retirement. In order to qualify for a disability retirement, an officer must have at least twenty years of creditable service and be unfit to continue his current duty. Furthermore, this disability must be incurred in the line of duty or be service aggravated. The Medical Review Board's decision must be supported by the preponderance of the evidence. Officer served on active duty for twenty-three years, both as a corpsman and a nurse. At the time he entered the service, he did not have any back problems. Throughout his career, Officer routinely lifted sick and disabled patients. This type of work puts strain on the lower back and can cause or aggravate degenerative disc disease. Therefore, Officer's medical condition was either incurred or aggravated in the line of duty. Furthermore, because his duty required the routine lifting of heavy objects, including people, it is highly unlikely that he would have been able to continue his work. Even if Officer would have been able to perform limited duties, he should still be entitled to disability retirement. See Grubin v. United States, 333 F.2d 861, 864 (Ct. Cl.1964) ("[A]n officer [i]s entitled to disability retirement where he [i]s ... unfit for general active service of the type he would normally perform, even though he [i]s capable of performing limited duty."). Therefore, Officer was unfit for duty and, based on his twenty-three years of creditable service, should have received a permanent disability retirement.
The recent decision from the Department of Veteran's Affairs to award the Officer benefits for Severe Degenerative Disc Disease supports the likelihood that a Medical Review Board would have granted Officer a permanent disability retirement. While disability determinations by the VA are not controlling for a Medical Review Board, "great weight" should nevertheless be given. Beckham v. United States, 392 F.2d 619, 634-35 (Ct. Cl. 1968) (citing Hutter v. United States, 345 F.2d 828, 831(Ct. Cl. 1965)) (stating that when, based on a medical examination, the VA has found that a plaintiff's disease is service-incurred then that conclusion is entitled to "great weight."). After examining Officer and reviewing his medical records, the VA found that Officer suffered a permanent, 100% disability; they determined that his condition was service-incurred and that he was entitled to disability benefits.
- 8. Officer had a debilitating disease, incurred in the line of duty, at the time of his retirement from active duty and is entitled to a permanent disability
Officer should receive a permanent disability retirement even if the Board determines that USPHS did not violate its regulations regarding Officer's retirement. Even though Officer requested retirement for non-medical reasons, he is still entitled to disability retirement because he had a service-incurred medical condition that made him unfit for active duty. Beckham v. United States, 392 F.2d 619, 641 n.9 (Ct. Cl. 1968) ("The fact that plaintiff chose to separate voluntarily does not lessen the Government's obligation to pay disability retirement if plaintiff actually had an incapacitating disease at the time of separation."). Furthermore, the Court of Claims has "repeatedly held ... that a cause of action for disability retirement pay does not ... ripen until he has had a competent board." Grubin v. United States, 333 F.2d 861, 862 (Ct. Cl. 1964).
Officer had Severe Degenerative Disc Disease while he served on active-duty with the USPHS. Twenty three years of lifting patients and other heavy objects caused and aggravated this medical condition. Therefore, he is entitled to a disability retirement. 10 U.S.C. § 1201(b). Officer notified the MAB of this medical condition, but was not granted the Medical Review Board to which he is still legally entitled. The fact that Officer later received VA benefits due to this service-incurred disability is further proof that he was entitled to a disability retirement. Beckham, 392 F.2d at 634-35. Officer should be fully compensated for the expenses he incurred after Tricare failed to provide timely support, access, and coverage for expert medical evaluation and surgery. Officer spent over a year cooperating with Tricare and EAFB referral management specialists, while they continued to delay his treatment and limit his options. Even though Tricare and EAFB belatedly suggested Balboa and other possibilities, they were not sufficient to meet the unmet, overdue and steadily increasing health concerns that Officer had amassed for over a year. After nearly sixteen months of dealing with excruciating pain and faced with the possibility of permanent disability, cornification of symptoms and unnecessary narcotic addiction, he made the decision to pay for the professionally recommended surgery that he needed rather than waste any more time waiting for Tricare and their local agents to act. With the full support of Dr. Black and other healthcare professionals, Officer chose to have his surgery at Sternum based on his urgent needs and the vast experience and impeccable credentials of the Sternum spine neurosurgeons. Officer should have received this surgery while he was still on active duty and was indeed on track to receive this surgery in early 2009 before Tricare and their local representatives stepped in and limited his access to necessary care. Therefore, he should be fully compensated for all of his related out-of-pocket expenses, including the $60,000 he paid to have TOR surgery at Sternum.
VII. Conclusion
Officer files this application to the Board for Correction of Public Health Service Commissioned Corps Records because evidence suggests that he was incorrectly authorized for retirement and lacked the crucial administrative support he required to overcome barriers blocking his access to obtaining prompt, urgent and available medical evaluation and treatment. The USPHS violated its own regulations and caused excessive suffering, risk for long term disability and monetary damages when it failed to refer Officer to the Medical Review Board for consideration of his on-going medical disability and consideration for a disability retirement. This Board has sufficient equitable and legal justifications to grant Officer a disability retirement and all other relief requested.
We respectfully ask the Board to consider this memorandum in support of CDR's application, and all supporting documents when rendering judgment.
DIVISION OF COMMISSIONED CORPS PERSONNEL AND READINESS (DCCPR) ADVISORY OPINION: SUMMARY:
The applicant's administrative retirement from the Corps was properly executed, as he requested and in accordance with Corps policy. The applicant failed to adhere to Corps policy when he did not provide his full medical records to the Corps so that the Medical Affairs Branch (MAB) could make a determination regarding his fitness for duty and when he did not immediately notify MAB of the severity of his concerns with his health status.
ISSUE:
The applicant requests that the Board for Correction of PHS Commissioned Corps Records (Board) change his retirement status to reflect his on-going medical condition by approving him for a disability retirement; authorize reimbursement for all of his out-of-pocket medical expenses; and authorize reimbursement to other parties who provided uncompensated treatment to him. The Corps could not find any error or injustice and recommends that the Board deny the applicant's requested relief.
CHRONOLOGY:
- 23 August 1990 Physical examination for appointment to the Corps completed. Notes "chiropractic treatment age 16-17 for "back strain" full recovery."
- 24 June 1991 Applicant's original appointment to the
- 28 November 2008 Saw chiropractor and referred for x-rays - radiograph reading reports injury consistent with juvenile lumbar osteochondrosis; possible joint narrowing and subchondrol sclerosis; early lower lumbar epiphyseal osteoarthritis; and degenerative disc di
- 29 November 2008 Saw Family Physician and referred for x-rays - reading report suggests intervertebral osteochondrosis; 15 degrees of dextroscoliosis;6 degrees of levoscoliosi
- 12 January 2009 Seen for back pain. X-ray review
- 30 January 2009 MRI reading reports degenerative joint disease with mild spondylolisthesis; mild focal bone edema; mild lumbar levoscoliosis; annular disc protrusion; probable extruded disc fragment; mild posterior disc protrusi
- 9 February 2009 Seen at Air Force Military Treatment Facility (MTF) and reports that he was "referred by "[Primary Care Manager]" ...for "more definitive and specialized diagnosis and treatment of my back pain""
- 13 February 2009 Request for neurosurgery evaluation and consultation sen
- 7 April 2009 Seen at MTF Physical Therapy cli Applicant has at least six total physical therapy appointments, but record does not reflect the dates. (see 13 April 2009 clinic note in appeal to Board)
- 8 April 2009 Retirement physical examinati Physician notes that applicant "is qualified for service" (i.e., fit for duty).
- 13 April 2009 MTF follow-up appointment for back pai Applicant reports that physical therapy and medication are not working. Given option of either acupuncture or Epidural Steroid Injection (ESI), applicant chose and referred for ESI but record does not reflect when ESI was administered.
- 13 May 2009 Requests voluntary administrative retirement to be effective on 1September 2009. Reasons noted were the "completion of 23 years' service," "to be more available to assist with healthcare needs of parents," and "to pursue other interests."
- 18 May 2009 Seen by interventional Spine Specialist who reviews MRI and orders a PET
- 23 June 2009 Receives a whole body PET bone Results reveal no abnormal uptake to suggest disc it is.
- 27 June 2009 Mails retirement physical examination to MAB
- .7 July 2009 Reviews PET bone scan with his interventional Spine Speciali Diagnosed with Lumbar Displaced intervertebral Disc . Even though the endoscope is limited in that it cannot remove as much disk material ,the applicant opts for an endoscopic discectomy to remove the fragment as the minimally invasive approach rather than a more conventional and open surgery. MAB receives applicant's retirement physical and related documents.
- 29 July 2009 Endoscopic discectomy surgery
- 4 August 2009 Follow-up appointment with the interventional Spine Speciali Applicant reports itching with the pain medication and increased burning down his leg. MAB completes final review of applicant's retirement physical/documents. Nothing in the record indicates that he is not "fit for retirement."
- 10 August 2009 interventional Spine Specialist performs a "Selective Nerve Root Block" on applicant.
- 11August 2009 Applicant complains via e-mail to interventional Spine Specialist of continued pai
- 13 August 2009 e-mail exchange with interventional Spine Specialist regarding continued pain (8 out of 10). interventional Spine Specialist will refer for a post-op MR
- 14 August 2009 MRI performed on applican lnterventional Spine Specialist discusses results and options with applicant. It appears as if this is the first discussion of the possibility of a disc replacement .
- 17 August 2009 lnterventional Spine Specialist, via e-mail, discusses options, including another endoscopic discectomy and referral to a
- 19 August 2009 Meets with lnterventional Spine Speciali Applicant expresses concern regarding possible nerve damage, but reports that "he's actually starting to feel a little better." Specialist advises him that he may go to the emergency room in order to see the surgeon on call, but applicant opted to wait until he saw the neurosurgeon .
- 21 August 2009 Signs sick leave slip for 32 days from surgery to reti
- 24 August 2009 Mails letter to
- 28 August 2009 MAB receives letter mailed on 24 August .
- 1September 2009 Administratively retired from active duty.
- 4 September 2009 Evaluated by neurosurgeon who recommends: "[1] an anterior lumbar discectomy at L3-L4 and [2] disc arthroplasty with [3] the possibility of a fusion."
- 8 September 2009 MTF performs preoperative examination for di
- 21 September 2009 Telephone consult with MTF for refill of
- 23 September 2009 MTF refers applicant to orthopedics clinic.
- 25 September 2009 MTF consults with Neurosurgeon received TRICARE approval for spinal fusion, but total disc replacement was not approved because it is only authorized for active duty members.
- 3 November 2009 Seen a MTF for refill of Medications.
- 11 November 2009 Applicant contacts MAB via email for assistance.
- 16 November 2009 MAB indicates that staff will investigate applicant’s medical file.
- 17 November 2009 Applicant indicates that he will fax selected medical documents to MAB. MAB informs applicant that the standard procedure entails the receipt of medical records directly from the health care providers along with a signed consent to release of medical information.
- 20 November 2009 MAB requests the applicant to provide medical records from his providers so they may more fully review his case and determine whether anything can be done for hi
- 23 November 2009 Applicant indicates that he "will make every reasonable effort" to have medical documents sent to MAB and asks what specific documents may be needed. MAB replies to applicant and indicates some of the documents needed.
- 24 November 2009 Applicant indicates that he will send medical documents to
- 2 December 2009 Applicant mails package, via USPS Express Mail to MAB that contains a copy of his retirement physical; two medical documents from 19 August 2009 and 4 September 2009; MAB's 4 August 2009 letter to him and his 24 August 2009 letter to MAB; the lnterventional Spine Specialist's neurosurgery referral on 14 August 2009;a variety of e-mails previously sent/received; an internet article related to military health care; correspondence with TRICARE; his "Chronology of events;" and a 17 November 2009 fax transmission verification
- 19 March 2010 Total disc replacement surgery conducted by
RULES:
- Commissioned Corps Instruction CC23.5, "Voluntary Retirement (20 to < 30 years)," dated 28 April 2009
- Commissioned Corps Instruction CC23.8.6, "Disability Retirement," dated 5 April 1982
- Commissioned Corps Instruction CC29.5, "Medical Examination Requirements," dated 24 October 1997
- Commissioned Corps Instruction CC29.4, "Sick Leave," dated 25 September 1997
- Case Law: Wales United States, 132 Ct. Cl. 765; 1955
- Champagne United States,35 Fed. Cl. 198; 1996 Comp.Gen. B-194169 (1979)
BACKGROUND AND ANALYSIS:
General Background
The applicant in this case was a nurse officer who was assigned to the Indian Health Service (IHS). In late November 2008, he sought health care due to increased back pain. During the period between November 2008 and 1September 2009, the applicant was seen, treated, or otherwise met with a variety of providers at least 20 times. During this time period he also requested an administrative retirement to be effective on 1September 2009. However, since at the time the Corps had no medically documented reason or a request to delay his retirement due to medical issues, he was administratively retired from active duty as he requested.
The applicant states that the Medical Affairs Branch (MAB) did not respond "to the doctor's comments regarding [his] back problems or the spine and cancer concerns and request for administrative guidance that [he] shared with them." He contends that the Corps violated its policies when it failed to refer him to a Medical Review Board (MRB) after he "notified [MAB] prior to his retirement that he had a serious medical condition." He argues that he is entitled to a disability retirement, stating that it is highly likely that a MRB would have recommended a permanent disability. Although he doesn't request a specific disability rating in his appeal to the Board, it is implied that because the Department of Veterans Affairs gave him an overall or combined rating of 80%, the Board should change his retirement status to reflect that he was placed on the Permanent Disability Retired List (PDRL) with an 80% rating.
Voluntary Administrative Retirement Policy
The Corps' policies on administrative retirement require an officer to retire upon completion of 30 years of active duty service. However, after completing 20 years but less than 30 years of active service an officer may voluntarily retire, provided his services can be relinquished without adverse effects on the continued and effective operation of the program to which he is assigned. Policy requires the program to consider certain factors in making a recommendation to the Corps on the officer's request to retire. Upon receipt of the officer's request and the program's recommendation, the Corps' Personnel Director must either approve the request or refer the request to a specially convened retirement board. Ultimately, absent referral to a retirement board, the policy requires that the "officer will be retired in the month he/she requests."
Disability Retirement Policy
The Corps' Disability Retirement policy specifies that a fitness for duty evaluation by a Medical Review Board (MRB) is initiated through one of the following mechanisms:
- Officer's Own Initiative. An officer may request, in writing ,an evaluation when he feels unable to perform the duties of his office and grade because of medical reasons.
Program Official's Initiative. A program official may request, in writing, an evaluation on an officer when reasons for unacceptable performance of duties are suspected to be on medical grounds.
Corps' Initiative. The Personnel Director may independently initiate an evaluation under one of the following conditions: there has been excessive use of sick leave (i.e.,90 days of continuous sick leave or 120 days in a 12-month period); or, if according to accepted medical principles, an officer has a medical condition which may be disabling or otherwise places him or others in jeopardy if he were to continue on active duty.
To be eligible for disability benefits, an officer found unfit because of a physical disability must have acquired such disability while on active duty. The disability may be due to a condition incurred on active duty or due to a preexisting condition which was aggravated by service. The policy presumes that an officer was physically fit at the time of his/her call to active duty and any condition incurred or aggravated subsequently is considered service-connected with the except ion that "Physical disabilities noted at the time of the officer's commissioning physical examination or call to active duty and no service aggravation of the disability has occurred. "Natural progression" of a disease is not considered service aggravation."
If a retirement eligible officer is found unfit to perform the duties of his grade, category, or office because of one or more physical or mental conditions, he "must be retired." In such cases, the officer is placed on the either the Temporary or Permanent Disability Retired List (TDRL or PDRL, respectively):
"Disability retirement may be temporary when the officer's condition has not stabilized and he/she may recover and become fit for duty or the degree of severity may substantially change within the next five years."
"A disability is permanent if, based on accepted medical principles, the defect has stabilized so that the compensable percentage rating is not expected to change during the next five years or if the compensable disability rating is 80 percent or more and the disability will probably not improve so as to be ratable at less than 80 percent during the next five years. An officer who meets either of these requirements and is otherwise qualified shall be permanently retired."
Finally, the policy states that "When an officer is being processed for separation or retirement for reasons other than physical disability, the officer's continued performance of duty until he/she is scheduled for separation for other purposes creates a presumption that the officer is fit for duty. The officer shall not be referred for disability evaluation unless his/her physical condition raises substantial doubt that he/she is fit to continue to perform the duties of his/her office and grade or he/she was previously retained on active duty as an except ion to policy."
Medical Examination Requirements Regarding medical examinations prior to retirement, the Corps' policy makes it clear that it is important that such examinations are thorough and complete, and that "All positive history should be well documented and, if not previously investigated, work-up should be completed and recorded." I t also states that, "copies of pertinent records of any previous evaluations and treatments of significant medical conditions should be submitted" to MAB. Additionally, "If, based on the examination, a question arises as to the officer's fitness for continuation on active duty if he/she were not separating, MAB should be contacted immediately."
The policy requires officers to "notify MAB immediately of any significant change in health status occurring after the separation examination which affects their fitness for duty (fitness to remain on active duty if they were not separating.)" Even for "less significant" changes that occur after the separation examination but before separation, the policy obligates the officer to send copies of the medical records to MAB.
Regarding the general disposition of medical records, the policy states that "examination reports and all pertinent medical material should be forwarded" directly to MAB. Policy makes it clear that officers are ultimately responsible for "Obtaining any health care reports or records required by MAB, necessary to the discharge of MAB's official duties and responsibilities."
Discussion
The applicant states that the MAB did not respond to the doctor's comments regarding his back problems or other concerns, as well as his request for administrative guidance. He also contends that the Corps violated its policies when it failed to refer him to a M RB. He believes that he is entitled to a disability retirement, stating that it is highly likely that a M RB would have recommended a permanent disability.
Applicant's Medical History
In his accession Report of Medical History that he completed prior to his appointment to the Corps, the applicant answered "No" to the question "Have you ever had or have you now" "Recurrent back pain." However, the examining physician, in his summary noted that the applicant received chiropractic care at age 16-17 for a "back strain" with a noted "full recovery." Additionally, the radiographic interpretation of a November 2008 x-ray noted "findings of the lumbar spine that appear consistent with a history of juvenile lumbar osteochondrosis, which is a special type of intervertebral osteochondrosis."
In h s application to the Board, the applicant provided an extensive, though not comprehensive, compilation of medical records for the period between November 2008 and 1 September 2009, as well as records of care he received after his retirement from the Corps. He also included some of the correspondence that he had with his health care providers. In all, in the year prior to his retirement, the applicant was seen, treated, or otherwise met with a health care provider on at least 20 occasions. However, the only medical reports/documents that he submitted to MAB from this time period include an x ray report from 29 November 2008 and associated radiographic interpretation/consultation dated 3 December 2008;an MRI report from 30 January 2009; and his retirement physical examination from 8 April 2009 -the record reflects that these were received in MAB on 7 July 2009. During his retirement physical examination, the applicant noted that he had "Recurrent back pain or any back problem ." His explanation stated: "Chronic and worsening back pain. Recent evaluation, treatment and imaging with concerns of vertebra l deformity." The examining physician noted the degenerative disc disease and protrusions and indicated that further evaluation and treatment may be needed. However, he ultimately declared that the applicant was "qualified for service."
Violation of Corps Policies
The applicant argues that the Corps "violated its own regulations l when it failed to refer [him] to the [MRB] for consideration of his on-going medical disability and eligibility for a permanent disability retirement." He believes that he properly notified MAB in accordance with the Corps' policies. The Corps acknowledges that the applicant did mail a letter to MAB eight calendar days prior to his requested retirement date and that the letter was received three calendar days prior to his retirement (i.e., less than 16 working hours prior to his retirement).
However, the Corps notes that the letter did not indicate that he had been on sick leave for 90 consecutive days or 120 days in the previous 12 month period and it did not request a fitness for duty evaluation by a M RB, nor did it provide sufficient information that would lead MAB to believe that he had "a medical condition which may be disabling or otherwise place[d] him or others in jeopardy if he were to continue on active duty." Further, since the applicant did not follow Corps policy by submitting h is medical records to MAB on an ongoing basis, or even in his letter to MAB, there was absolutely no information from which MAB could draw any conclusions regarding the applicant's condition and whether it was potentially disabling.
His letter to MAB simply stated that he was on sick leave after having back surgery in late July and that the specialist found that he needed more invasive surgery. Although he asked whether MAB was "interested in obtaining/reviewing this substantial and serious medical event," he did not provide any medical documents, as Corps policy required him to do, to support the convening of an MRB. Additionally, rather than notifying MAB immediately of his condition, he waited 8 days before his retirement before he mailed a letter to MAB. Further, given the obviously short amount of time left before his retirement, and seemingly serious nature of his concerns, he neglected to call MAB or otherwise attempt to follow up regarding his status.
Lastly, Corps policy states that "When an officer is being processed for separation or retirement for reasons other than physical disability, the officer's continued performance of duty until he/she is scheduled for separation for other purposes creates a presumption that the officer is fit for duty." The policy further limits referring to a MRB those who are being processed for retirement to only those with "physical condition[s that] raises substantial doubt that he/she is fit to continue to perform [their] duties." The Corps notes that up until his surgery in late July 2009,the Corps' records reflect that the officer continued to perform his duties and did not take any sick leave. Additionally, being on sick leave for one month after a back surgery is not an unreasonable amount of time. Ultimately, the Corps had no documented reason to delay the administrative retirement on the date that the applicant requested. VA Disability Rating.
Although he doesn't request a specific disability rating in his appeal to the Board, it is implied that because the VA gave him an overall or combined rating of 80% disability, the Board should change his retirement status to reflect he was placed on the Permanent Disability Retired List (PDRL) with an 80% rating.
However, the Corps notes that case law clearly differentiates VA disability ratings from the Service's determination of disability -Wales v. United States stated in part: "The fact that the [VA] rated plaintiff 30 percent disabled and granted him disability compensation does not, as the plaintiff contends, entitle him to disability retirement ... The mere fact that plaintiff suffered ailments which form the basis for compensation by the [VA] does not entitle him to retirement and retirement pay for physical disability. Holliday v. United States, 128 C. Cls. 647 ... Not all ailments or disabilities are incapacitating to the extent of requiring retirement."
Further, case law recognizes that although they use the same disability rating scale, the Services and VA use it for different purposes -Champagne v. United States, 35 Fed. Cl. 198, 211-12, states that the "plaintiff was rated by the [VA] as eligible for a forty percent (40%) disability rating ... Plaintiff contends that a forty percent (40%) disability rating for plaintiff set by the VA is relevant evidence that the Navy acted arbitrarily, capriciously, and contrary to law when it assigned a lower disability rating to plaintiff. Although it is true that both the military and the VA utilize the Veterans Administration Schedule of Rating Disabilities (VASRD), the two agencies utilize the rating systems for different purposes ... As discussed above, decisions by the Navy use a standard of review designed to determine unfitness to perform the duties of office, grade, rank, or rating because of disease or injury incurred or aggravated while entitled basic pay. 10 U.S.C. § 1201. I n contrast, the VA determines disability ratings based upon an evaluation of whether and how an individual's (sic) capacity to perform in the civilian world is diminished by a disability. 38 U.S.C. § 355 (1988). According to 38 C.F.R. § 4.1, the VA uses the rating schedule primarily as: ...a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment i n earning capacity resulting from such diseases and injuries and their residua l conditions in civil occupations."
The Corps' policy is similar to the other services and states that "To be eligible for disability retirement or separation, an officer must be found unfit to perform the duties of his/her grade, category, or office because of one or more physical or mental conditions." The policy also states that "The fact that an officer has a medical condition which could, under certain circumstances, render the individual unfit does not, per se, make him/her unfit."
Disability Retirement
The applicant believes that he is entitled to a disability retirement, stating that it is highly likely that a MRB would have recommended a permanent disability . However, the Corps notes that the issue is not as straightforward as it may seem on the surface. As noted, even though he received a disability rating from the VA, case law clearly does not bind the Service to the VA's findings or ratings.
Although the Corps' policy allows for a disability rating due to a preexisting condition which was aggravated by service, it exempts the "natural progression" of a disease from inclusion as being aggravated by service. The record indicates that the applicant may have had a preexisting condition with his back. Therefore, an M RB would need to have the relevant records concerning his back issues from his teen years in order to make a determination regarding the applicant's condition and whether his current condition was a "natural progress ion."
Further, presuming that the condition was not a natural progression of any preexisting condition, had a M RB been convened prior to his retirement, the M RB would have been faced with an officer who was in the midst of treatment of a then uncertain condition. Therefore, had they made a determination that he was disabled, it is more probable that the MR B would have recommended placement on TDRL since the "condition [had] not stabilized and [he] may recover and become fit for duty or the degree of severity may substantially change within the next five years." Ultimately, a TDRL disability rating could easily differ from a later PDRL rating depending on whether the condition improved or worsened. Indeed, a later determination could find the applicant fully fit for duty depending on the success of his latest surgery.
Lastly, regarding the conditions for which the VA granted the applicant a disability rating, the Corps notes that if he was presented to a MRB and the M RB recommended a disability retirement, it is likely that their recommendation would have been lower than the VA's. This is because the Corps' ratings specifically factor the impact each condition has on an officer's ability to perform the duties of his/her grade, category, or off ice. In the applicant's case, the record reflects that through 28 July 2009, his performance had not deteriorated nor is there any indication that IHS was not satisfied with his performance -in fact, the applicant makes note of his excellent performance throughout his career. Consequently, many of the conditions that the VA rated likely would not be ratable by the Corps. For example, neither the sleep apnea nor tinnitus appears to have impacted the applicant's performance (the VA rated these at 50% and 10%, respectively).
The Corps notes that the preceding discussion is an academic argument. Ultimately, the applicant's full medical records would be required in order to make a determination regarding his potential disability status at the time of his retirement. The required records would include, but are not limited to, those while he was on active duty, certain records from prior to his appointment to the Corps, and records since his retirement.
Comptroller General Decision
The Comptroller Genera l has stated that "As a general rule, the action taken in issuing a retirement order is final and cannot be revoked i n the absence of fraud, substantial new evidence, mistake of law, or mathematical miscalculation." The Corps believes that the applicant's case is similar to the case before the Comptroller Genera l in that there is no question of fraud, mistake of law, or mathematical miscalculation. However, the Corps believes that the two cases diverge concerning substantial new evidence. The Comptroller General cites a previous decision that established "the new evidence must relate to a fact in existence at the time of retirement which could not have been presented at that time, which is not merely cumulative and which would have warranted a different action had it been presented."
As noted, the applicant's medical condition, although ongoing, did exist at the time of his retirement and the evidence could have been presented to the Corps prior to his retirement. However, as noted, the applicant failed to present any medical evidence to the Corps so that an informed decision could be made regarding postponing his retirement. Although the applicant believes that his 24 August 2009 letter to MAB should fulfill this requirement, the Corps disagrees. In addition to the absence of any medical evidence/documents, his letter contained no specifics regarding the type of initial surgery or the extent or meaning of a "more invasive" surgery. Further, his letter contained no information regarding the impact on his fitness for duty, nor did he request a fitness for duty evaluation by a MRB.
In fact, the applicant contacted MAB within a few months after his retirement to seek assistance in obtaining his desired surgery. I n those communications, MAB repeatedly requested that he submit comprehensive medical documentation so that they could review his case. Unfortunately, the applicant failed to provide any of the documents that MAB requested. Ultimately, the medical evidence/documents existed, was known by the applicant, and it could have been presented to MAB prior to, and even shortly after (to satisfy the Comptroller Genera l's requirement of "a short period of time following the effective date of a person 's ordered retirement", his retirement from the Corps. However, the "short period of time" has clearly passed and the Corps has never received any of the requested documents, which as noted, must come directly from the providers.
CONCLUSION:
The Corps sympathizes with the applicant's medical condition and the difficulty he has experienced in obtaining the treatment he desired. However, the Corps is unable to identify any errors in his record . The Corps also disagrees with the applicant's contention that the Corps violated its policies when the applicant was administratively retired as he requested rather than have his medical condition reviewed by an M RB for a possible disability retirement.
The record reflects that the applicant failed to fulfill his duty to provide his medical records to MAB, as policy required him to do. He also failed to notify MAB immediately when it became apparent that the progression of his condition seemed to be degrading (e.g., that he was scheduled for the July 2009 surgery). He also neglected to inform MAB of his increasing concerns with his issues. Instead he opted to wait until 8 days prior to his retirement to send a cryptic letter via regular mail service from Alaska with little information rather than utilizing a form of communication that is delivered in an immediate fashion, such as a telephone call, fax, or e-mail. He also did not send any medical records to document his condition so MAB had information on what his condition was, nor did he follow up on his letter to ensure it was received prior to his retirement. Further, it doesn't appear as if he informed any of his providers, many of whom were active duty Air Force providers at the local MTF, of his impending voluntary retirement. Indeed, while he was in the midst of attempting to resolve his "chronic and worsening back pain," he requested an administrative retirement rather than requesting a disability retirement.
It is also notable that the lnterventional Spine Specialist discussed a number of potential options with the applicant prior to his administrative retirement. These included performing another, minimally invasive, endoscopic discectomy, as well as immediate surgery through a visit to the emergency room. However, the applicant elected not to undergo either surgery and actually was documented to "feel a little better." If the applicant had a high risk for paralysis (especially given his age and productivity level), he would have been informed of the seriousness of the consequences of delaying surgery and emergent surgery would have taken place. Otherwise, if he opted for no surgery, then an AMA (Against Medical Advice) form would have been signed by the applicant. Further, the neurological evaluation performed in early September 2009 was within normal limits and without evidence of any neurological deficit. The evaluation states that the applicant had a "Normal gait, [and was] able to stand without difficulty," as well as "Able to heel-to-toe-walk without difficulty." These observations infer that at the time the applicant may have been fit immediately prior to retirement.
Ultimately, the Corps concludes that it properly followed the policies in regard to the retirement of the applicant. Unfortunately, due to the applicant's failure to adhere to the same policies, the Corps was unaware of the nature of his condition and there was no reason, as outlined in policy, to have him reviewed by a MRB. That is, neither he nor IHS requested a fitness for duty evaluation and he had not used an excessive amount of sick leave (i.e.,90 consecutive or 120 non-consecutive days over the previous year). Further, he did not provide medical evidence that raised a "substantial doubt" that he was fit to continue to perform his duties. Consequently, the Corps administratively retired him, as he requested, on 1 September 2009. Therefore, the Corps contends that no error exists in regard to retiring the applicant in accord with Corps policy. Additionally, the Corps does not believe that any injustice exists since the applicant's retirement was handled the same as any similarly situated officer who requests a voluntary administrative retirement.
Regarding the applicant's request that the Board authorize reimbursement for all of his out of pocket medical expenses, as well as authorize reimbursement to other parties who provided uncompensated treatment to him, the Corps notes that these payment decisions and subsequent payment are made by and through TRICARE. Consequently, it appears that these requests may be outside of the Board's jurisdictional authority and not properly before the Board.
RECOMMENDATION:
The Board should find that no error or injustice occurred in regard to the applicant. Therefore, the Corps recommends that the Board deny the applicant's requested relief.
OFFICER'S RESPONSE TO THE DCCPR ADVISORY OPINION (AO):
Counsel for the officer provided the following argument in response to the DCCPR advisory opinion.
The content of Officer's August 24,2009 letter sufficiently notified the Medical Affairs Branch (MAB) of his potentially disabling condition and should have resulted in disability processing and not his retirement.
Officer's August 24,2009 letter sufficiently notified the MAB of a significant change in his health status.
The Advisory Opinion argues that the content of Officer's August 24, 20141etter was insufficient to notify MAB of a potentially disabling condition. First, their position ignores important, material factual evidence. Contrary to the Advisory Opinion's general allegation that the PHS was largely unaware of his condition, Officer's letter was not the only notice the MAB had of Officer's serious condition before his retirement date. Indeed, it came on the heels of a retirement physical examination that clearly noted he suffered from spinal problems that were ongoing and unresolved and for which the authoring physician recommended further expert evaluation and treatment. See Advisory Opinion Notably, the physical examination was conducted by a civilian physician rightfully knowing no complex PHS policy expertise or proficiency.
The Advisory Opinion seizes on fact that the civilian physician marked Officer "qualified for service." However, the Advisory Opinion conveniently ignores the clearly delineated responsibilities of the MAB. Omitted from the Advisory Opinion's addendum at is the following mandatory provision explicitly setting forth the responsibilities of the MAB that applied in Officer's retirement physical processing: Medical Affairs Branch, DCP. MAB, is responsible for the review, evaluation, and coordination of an officer's latest medical examination with previous examinations and other medical data maintained by this branch in the officer's central medical file. This office is also responsible for the determination of physical qualifications of all applicants to the commissioned corps. The above provision suggests that the Advisory Opinion places too much weight on the significance of the physician's election that he was "qualified for service." The regulation clearly dictates that the MAB had an independent duty to review and evaluate Officer's retirement medical examination. Further, the MAB-not the examining physician-had the ultimate authority and responsibility to determine Officer's physical qualification. Arguably, the MAB's responsibility is-and should be- heightened in situations where a civilian physician who is unfamiliar with PHS regulation conducts the exam. Here, notwithstanding the civilian physician's curious election to deem Officer "qualified for service," the physician had also given the MAB notice of significant spinal problems and a recommendation further expert evaluation and treatment. This alone should have triggered the MAB's duty to determine that he warranted disability processing.
With respect to the specific contents of the Officer's August 24, 2009 letter, the Advisory Opinion applies an overly constrained and unfairly adversarial view of what constituted proper notice of a change in Officer's health status. As a preliminary matter, it is important for the Board to be fully aware of the context the letter was written. As detailed in Officer's BCMR memorandum, following laparoscopic discectomy on July 29, 2009, Officer was experiencing severe, intolerable pain and was unable to access prompt, quality care within his assigned medical treatment facility system. He was also notified he may have cancer (myeloma) and required further screening. He was also completing an August 4, 2009 request directly from the MAB to repeat fasting blood glucose and schedule a colonoscopy.
At the time he wrote the August 24, 2009 letter in question, his pain, disability, health concerns and the unnecessary administrative barriers that blocked access to prompt, quality care had become overwhelming. Officer was denied timely access to optima l healthcare within his assigned medical systems and needed genuine medical administrative support urgently. His letter was a deliberate effort to reach out and notify the USPHS of his condition, and seek immediate help from his primary administrative leaders. The letter was not acknowledged or answered until Congressional inquiries and pressure ensued months later. Despite Officer's ongoing effort seeking help from his governing administrations then and for months to follow, he and his health advocates were unable to locate sincere administrative support. He was retired in the middle of an acute medical crisis while following the prudent advice of his medical experts to obtain vital care that inexplicably became unavailable at the moment of this premature discharge.
The Advisory Opinion completely ignores that the letter went entirely unaddressed. Instead, it seems to take issue with its timing and contents as a post hoc rationalization for the MAB's inaction. The Advisory Opinion suggests that the letter should have explicitly indicated that he had been on sick leave for 90 consecutive days or 120 days in the previous month and should have explicitly requested a fitness for duty evaluation. These standards apply, however, to instances where the office is formally requesting a fitness evaluation, which is a mischaracterization of the letter and, thus, a misapplication of the relevant regulation.
The regulation clearly states that an officer who is pending non-medical voluntary separation "should notify MAB immediately of any significant change in health status occurring after the separation examination which affects their fitness for duty." It does not require supporting medical documentation, sick leave of any duration or an explicit request for a fitness evaluation. The regulation is ambiguous as to what occurs once an officer notifies MAB of significant health changes. Every indication is that it is the MAB's responsibility to act upon the information; otherwise the requirement would be meaningless. A reasonable conclusion is that the MAB then evaluates whether an officer is entitled to a corps-directed fitness for duty evaluation under the standards outlined. An officer pending separation will not be referred for disability evaluation "unless his/her physical condition raises substantia l doubt that he/she is fit to continue to perform the duties of his/her office and grade ...." Here, there is no question that Officer's August 24, 2009 letter sufficiently notified MAB of a significant change in his health status. In addition to seeking assistance from the MAB, he clearly indicated that, since his separation examination, he had been placed on sick leave in late July 2009, his back symptoms were worsening and he needed more invasive surgery and that an MRI report from a radiologist reported findings consistent with anemia or myeloma. Notably, the Advisory Opinion does not contend that the information in Officer's August 24, 2009 letter did not constitute a "significant change in health status." Indeed, the Advisory Opinion's analysis appears to focus on whether these conditions raised "substantia l doubt" about his fitness to perform his duties that should have triggered disability processing.
Officer's August 24,2009 letter was sufficient to raise substantial doubt about his fitness to perform his duties.
As noted above, the MAB never made any official determination that the contents of Officer's letter before he was retired. The Advisory Opinion now offers the post hoc suggestion that Officer's letter did not raise substantial doubt because he performed his duties until July 2009 when he was put on sick leave and, thus, he was presumed fit for duty.
The Advisory Opinion's position mischaracterizes Officer's ability to perform his duties. The fact that the Advisory Opinion limits its consideration to the April-July 2009 timeframe and omits his time on sick leave is telling. He was on sick leave due to the ailments he notified the MAB of on August 24, 2009 and, by definition, was not able to perform at all. This alone should be enough to overcome the presumption the Advisory Opinion invokes as after-the-fact justification for the MAB's inaction.
Officer's August 24,2009 letter should not have suffered from any timeliness issues.
The Advisory Opinion next attacks the timing of Officer's letter. It argues that Officer was required to "notify MAB immediate of any significant change in health status occurring after the separation examination which affects their fitness for duty ..." The Advisory Opinion claims that Officer's August 24, 2009 letter effectively violated this provision because it was not "immediate," in their opinion. The Advisory Opinion's analysis is flawed. It omits key language in the provision which, correctly presented, states that "Officers should notify MAB immediately of any significant change in health status.
A commonly understood principle in statuary construction is that the word "should" is permissive, not mandatory, language. The word "should" means" usually no more than an obligation of propriety or expediency, or a moral obligation .... [l]t does not ordinarily express certainty as 'will' sometimes does." Indeed, federal courts specifically have held that the word "should" is permissive, and not mandatory. See e.g. United States v. Messina, 382 F.3d 704, 711(7th Cir.2004) (finding that a change of jury instructions from "may find" to "should find" had no effect because "[e]ither wording is permissive, not mandatory."); (finding that a statement that parties "should negotiate the terms and conditions" was not a promise because "'should' is permissive, not mandatory."). As such, notwithstanding that the word "immediately" is an undefined, subjective term, the permissive language of this provision is not be nearly as preclusive as the Advisory Opinion would like the Board to believe. Indeed, the word "should" is used repeatedly in governing regulations to describe what the Advisory Opinion characterizes as Officer's "obligation" to submit medical records to the MAB. The Advisory Opinion mischaracterizes these provisions as mandatory in order to suggest Officer violated regulation. But they are clearly permissive. In an event, Officer's August 24, 2009 letter the Advisory Opinion's primary problem with the timing of the letter is that it was inconvenient for the MAB because it was received three days before his retirement date, which the Advisory Opinion breaks down into 16 "working hours" to inflate its alleged time constraints. But nowhere does the Advisory Opinion argue that the MAB actually did not have sufficient time to act on the letter. Of course, as noted above, there is no evidence the MAB took any action on the letter. In any event, the Advisory Opinion's argument merely serves to needlessly impugn Officer's actions and distract the Board from the fact that Officer sufficiently notified the MAB of significant changes in his health before his retirement date and the MAB failed to take appropriate action.
- Officer should be awarded the rating requested in his application.
The gravamen of Officer's argument for relief from the PHS BCMR is that he should have been referred for disability processing and not retired in the midst of a health crisis in a manner that left him unable to access available health care, exposed to added injury and ultimately cost him significant out-of-pocket expenses. Officer's BCMR application reasonably advocates for permanent disability based, in part, on his disability award from the VA.
The Advisory Opinion offers case law that describes the functional difference between Service and VA disability ratings and holds that one's VA rating does not, in and of itself, entitled him to disability retirement. Here, Officer's argument is based upon objective medical evidence that he incurred a debilitating disease in the line of duty and is not his VA rating alone. However, Officer's Veteran's Administration rating was sufficient to trigger the MAB's independent duty to refer him for disability processing before his retirement date serves as a useful guideline given that, due to no fault of his own, he was not properly processed for disability retirement. Ultimately, as the Advisory Opinion notes, this is an "academic argument ." It is hardly so and given the errors, and injustices that have been perpetrated against Officer, the Board should resolve the issues in his favor.
- The Comptroller General decision is invalid and inapplicable to Officer's case and the Board should therefore disregard the Advisory Opinion's argument.
The Advisory Opinion's reliance on a thirty-six-year-old Comptroller General decision is completely misplaced because it predates statutory amendments that brought the PHS under the records correction ambit of 10 U.S.C. § 1552. Written in January 1979, the decision is premised on a conclusion that "the PHS does not have the statutory authority to review the retirement or separation of an officer without pay for physical disability or to correct his records, as is the case with the Armed Forces (10 U.S.C. 1552 and 1554 (1979))." In other words, the decision states the PHS did not have statutory authority under Section 1552 to review the issue. Absent such authority, the Comptroller Genera l cited three except ions to the rule extracted from its own precedent, i.e. fraud, new evidence, and mistake of law or mathematic calculation, that would allow it to consider the issue. The Advisory Opinion argues that the comptroller's decision should control in this case
and the Board should find it has no authority to grant relief on Officer's application. However, 42
U.S.C. § 213a was amended in September 1979 to extend the provisions of 10 U.S.C. § 1552 and records-correction authority to the Commissioned Corps. Act of Sept. 29, 1979, tit. 3, 93 Stat. 579 (codified as amended by 42 U.S.C. § 213a(a)(12)). See also Verbeck v. United States, 89 Fed. Cl. 47, 57 n. 7 (2009) (" The Correction Board is authorized by 42 U.S.C.§ 213a(a)(12), which, among other things, extends to the Commissioned Corps the provisions 10 U.S.C. § 1552 relating to boards for the correction of military records."); Brooks v. United States, 65 Fed. Cl. 135, 151 (2005)("The Board is authorized to correct records. 10 U.S.C. §1552(a); 42 U.S.C. § 213a(a)(12). Its power to craft a fit remedy is substantial.") .
Based on the above, the Board plainly has the records-correction authority under Section 1552 that evidently was absent when the Comptroller's Decision was issued. Because the decision was premised on this lack of authority, it has no utility. Therefore, the Board should disregard the Advisory Opinion's argument.
BOARD FOR CORRECTION DISCUSSION AND RECOMMENDATION:
The Board considered two primary issues; a. should Officer receive a MRB and be considered for disability retirement from the Corps effective 1September 12009, and b. should the Officer be reimbursed for medical expenses incurred subsequent to 1September 12009 including the $60,000 for TOR at Sternum.
Should Officer receive a MRB and be considered for disability retirement from the Corps effective September 1, ,2009.
The Board looked at the timeline leading up to the Officer's retirement:
- 28 November 2008 Saw chiropractor and referred for x-rays - radiograph reading reports injury consistent with juvenile lumbar osteochondros is; possible joint narrowing and subchondrol sclerosis; early lower lumbar epiphyseal osteoarthritis; and degenerative disc di
- 29 November 2008 Saw Family Physician and referred for x-rays - reading report suggests intervertebral osteochondros is; 15 degrees of dextroscoliosis;6 degrees of levoscoliosi
- 12 January 2009 Seen for back pain. X-ray review
- 30 January 2009 MRI reading reports degenerative joint disease with mild spondylolisthesis; mild focal bone edema; mild lumbar levoscoliosis; annular disc protrusion; probable extruded disc fragment; mild posterior disc protrusi
- 9 February 2009 Seen at Air Force Military Treatment Facility (MTF) and reports that he was "referred by "[Primary Care Manager]" ...for "more definitive and specialized diagnosis and treatment of my back pain""
- 13 February 2009 Request for neurosurgery evaluation and consultation sen
- 7 April 2009 Seen at MTF Physical Therapy cli Applicant has at least six total physical therapy appointments, but record does not reflect the dates. (see 13 April 2009 clinic note in appeal to Board)
- 8 April 2009 Retirement physical examinati Physician notes that applicant "is qualified for service" (i.e., fit for duty).
- 13 April 2009 MTF follow-up appointment for back pai Applicant reports that physical therapy and medication are not working. Given option of either acupuncture or Epidural Steroid Injection (ESI), applicant chose and referred for ESI but record does not reflect when ESI was administered.
- 13 May 2009 Requests voluntary administrative retirement to be effective on 1 September 2009. Reasons noted were the "completion of 23 years' service," "to be more available to assist with healthcare needs of parents," and "to pursue other interests."
- 18 May 2009 Seen by lnterventional Spine Specialist who reviews MRI and orders a PET scan.
- 23 June 2009 Receives a whole body PET bone Results reveal no abnormal uptake to suggest discitis.
- 27 June 2009 Mails retirement physical examination to
- 7 July 2009 Reviews PET bone scan with his lnterventional Spine Specialist. Diagnosed with Lumbar Displaced intervertebral Disc . Even though the endoscope is limited in that it cannot remove as much disk material, the applicant opts for an endoscopic discectomy to remove the fragment as the minimally invasive approach rather than a more conventional and open surg MAB receives applicant's retirement physical and related documents.
- 29 July 2009 Endoscopic discectomy surgery
- 4 August 2009 Follow-up appointment with the interventional Spine Speciali Applicant reports itching with the pain medication and increased burning down his leg. MAB completes final review of applicant's retirement physical/documents. Nothing in the record indicates that he is not "fit for retirement."
- 10 August 2009 interventional Spine Specialist performs a "Selective Nerve Root Block" on applicant.
- 11August 2009 Applicant complains via e-mail to interventional Spine Specialist of continued pai
- 13 August 2009 e-mail exchange with interventional Spine Specialist regarding continued pain (8 out of 10). Interventional Spine Specialist will refer for a post-op MR
- 14 August 2009 MRI performed on applican lnterventional Spine Specialist discusses results and options with applicant. It appears as if this is the first discussion of the possibility of a disc replacement .
- 17 August 2009 lnterventional Spine Specialist, via e-mail, discusses options, including another endoscopic discectomy and referral to a
- 19 August 2009 Meets with lnterventional Spine Specialist. Applicant expresses concern regarding possible nerve damage, but reports that "he's actually starting to feel a little better." Specialist advises him that he may go to the emergency room in order to see the surgeon on call, but applicant opted to wait until he saw the neurosurgeon .
- 21 August 2009 Signs sick leave slip for 32 days from surgery to reti
- 24 August 2009 Mails letter to MAB.
- 28 August 2009 MAB receives letter mailed on 24 August.
- 1September 2009 Administratively retired from active duty.
The Board notes that subsequent filing for regular retirement on 13 May 2009,no less than 13 medical events occurred before 24 August 2009 that the Officer should have reported to the MAB and were sufficient to justify the Officer requesting a Medical Review Board (MRB). He did not report these until 24 August 2009 (received by MAB 29 August 2009). This eleventh hour health report represents a lack of due diligence of the Officer's responsibility. The failure to act on the request by MAB does not represent an error. However, the Board {which included two MDs) does not agree with the MAB that the 24 August 2009 letter from the Officer contained insufficient information for a MRB. The failure to schedule a MRB for the Officer represents an injustice. The Board was unanimous in recommending that the Officer be granted a MRB to consider medical information available through 31August 2009 to determine if the Officer met requirements for disability retirement from the Corps and if so, he shall be granted an appropriate disability retirement effective 1September 2009 with any appropriate compensation. The Board finds no reason.to adjust his retirement date.
- Should the Officer be reimbursed for medical expenses incurred subsequent to 1September 12009 including the $60,,000 for TOR at Sternum.
The Board concluded that the Officer incurred these expenses at his own risk and they are there for his responsibility. Furthermore, disputes with Tricare are not under the jurisdiction 'of the Board.
The Board’s Recommendation was approved on September 2, 2015.