# Thompson v. United States

> United States Court of Claims · July 14, 1971 · 195 Ct. Cl. 468

URL: https://www.frixlaw.com/law-library/cases/8594246

## Case

- **Full name:** EDWIN WILLIAM THOMPSON v. United States
- **Court:** United States Court of Claims
- **Decided:** July 14, 1971
- **Citations:** 195 Ct. Cl. 468; 1971 U.S. Ct. Cl. LEXIS 56; 1971 WL 17829
- **Precedential status:** Published
- **Opinion:** Concurrence by Collins
- **Judges:** Collins, Cowen, Davis, Durfee, Durkee, Fletcher, Laijamore, Nichols, Seelton
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8594246

## Opinion text

ColliNs, Judge,
concurring:
I concur in the result reached by the court because the record fully supports the position that for the PEB to have awarded plaintiff a separate rating under VADC 5311-12 would have amounted to forbidden “pyramiding.” Once it is determined that a separate rating would amount to “pyramiding,” however, I believe it unnecessary, and perhaps erroneous, to further state that “the diagnostic codes dealing with muscle injuries [VADC 5311-12] apply only where there has been a direct trauma to the muscles themselves * * To my mind this is an interpretation of the codes which, regardless of its correctness, the court is certainly not required to advance at this juncture.
As an aside, I would add that this case points up well an inherent inequity of the present physical disability rating *480 system. Here is a plaintiff whose actual disability was, and is, at least 30 percent, and whose physical condition is expected to deteriorate. Nevertheless, this plaintiff, with a service-connected injury of major proportions, will never receive disability retirement pay because his legal disability is only 20 percent. Surely, this is an area where law and reality should coincide. Unfortunately, they dp not. Here wrong rules and “waiting Justice sleeps.”
DurKee, Judge,
joins in the foregoing concurring opinion.
FindiNgs op Fact
1. Plaintiff, who was born on December 28, 1912, is a citizen of the United States and a resident of the State of Virginia. He enlisted in the Delaware National Guard on February 4, 1935, and was honorably discharged on January 1, 1936. He was appointed a Second Lieutenant, Coast Artillery Corps (CAC), Officers’ Reserve Corps (ORC), on May 21, 1936, and accepted the appointment on May 23, 1936. Plaintiff was transferred to the Inactive Reserve, promoted to First Lieutenant, Inactive Reserve, on August 15, 1939, and accepted the appointment on October 14, 1939. He transferred to the CAC, ORC, on January 2,1941, was promoted to Captain, Army of the United States (AUS)., on April 30, 1942, and accepted the appointment on May 1, 1942. He was promoted to Major, AUS, on January 27, 1943, and appointed Major, CAC, ORC, on November 30, 1945. Plaintiff was promoted to Lieutenant Colonel, AUS, on December 28, 1945, and to Lieutenant Colonel, CAC, ORC, on July 21, 1947. He was federally recognized as a Major, CAC, Virginia National Guard, on November 23, 1948, and appointed Major, CAC, National Guard of the United States (NGUS) on January 26, 1949, which he accepted on February 15, 1949, thereby terminating his ORC status. Plaintiff was federally recognized as a Lieutenant Colonel, CAC, on December 19, 1949, and appointed Lieutenant Colonel, CAC, NGUS, on April 4,1950, which he accepted on April 14, 1950. He was federally recognized as a Colonel, CAC, bn July 24, 1950, and appointed Colonel, CAC, NGUS, on *481 August 1, 1950, which he accepted on August 9, 1950. He was appointed Colonel, AUS, on August 14, 1950. Plaintiff’s AUS status terminated on August 14, 1952. He was transferred from NGUS to the U.S. Army Reserve as a Colonel on April 16,1958. He was transferred to the Retired Reserve on April 17, 1958, and is presently a Colonel, Retired Reserve.
Plaintiff served on active duty in an enlisted status for a short period in August 1935. Commencing in June 1936, he served on active duty as a commissioned officer at various times through August 1957. He was in a patient status at Walter Reed Army Hospital (WRAH) from October 10, 1956, to March 1, 1957, and from November 4, 1957, to February 10, 1958. On April 15, 1958, plaintiff’s commission as a colonel of the active National Guard, was terminated by vacation of his commission due to physical disability.
At various times during his periods of active duty, plaintiff had been given physical examinations and on each occasion prior to August 12, 1956, was found physically qualified for general military service. On two of these occasions, the medical examiner made note of an old injury to the right ankle suffered by plaintiff while playing football in the early 1930’s. In a report of physical examination on August 7, 1952, the medical examiner noted a history of removal of a “chip right ankle” in 1935, with healed scar on 'lateral aspect, but reported that plaintiff had a good range of motion of the ankle. The examiner also stated that plaintiff had occasional “pain on prolonged walking or weight bearing” and had arthritis of the right ankle secondary to fracture. At the trial here, plaintiff denied making such complaints to the medical examiner. In any event, he was found physically qualified and given a l-l-l-l-l-l physical profile.
2. On August 12, 1956, plaintiff sustained a fracture of the right medial malleolus 1 while on active duty with the Virginia National Guard. Plaintiff had stopped his staff car with the intention of helping some people involved in an *482 accident. While he was endeavoring to assist them, their car was struck by a truck which overturned the car, knocking plaintiff down and pinning both of his legs beneath the car. He was taken to the United States Naval Hospital, Quantico, Virginia, and on August 14,1956, underwent open reduction and internal fixation, with a single screw, of the right medial malleolus (lowest point of the tibia). 2
On October 2, 1956, he was transferred to the Station Hospital at Fort Lee, Virginia, so as to enable him to receive further treatment at a medical facility closer to his home. He was transferred to Walter Reed Army Hospital (WRAH) on October 10,1956, because of evidence of delayed healing.
3. Plaintiff was hospitalized at WRAH from October 10, 1956, to March 1, 1957. A narrative summary dated February 28, 1957, contains the following pertinent information:
* * * * *
Course in the Hospital: Following admission 10 October 1956, routine laboratory and x-ray studies were performed. The patient had his plaster changed for purposes of wound inspection and determination of condition of the skin. He was placed in a short leg walking plaster 25 October 1956 and encouraged on ambulation. In early December, the patient was granted a thirty-day convalescent leave in a new walking plaster cast. On his return 10 January 1957, the patient was fitted with a molded arch support and allowed to ambulate with crutch support in store shoes. Patient referred to Physical Medicine Section for appropriate range of motion and muscle strengthening exercises of the right lower extremity. * * * Patient continued to gradually improve throughout January and February, principally with decrease in the amount of swelling and slight gain in the range of motion of the ankle with less pain. As the patient is now being discharged, he has minimal residual swelling without tenderness about the joint. He has a 20 degree range of motion, from 85’degrees of dorsiflexion to 15 degrees of plantar flexion. Inversion and eversion are essentially .normal.
i* *1* -I» *i*
*483 Diagnoses: 1. Fracture, simple, n.e.c., medial malleolus right ankle * * *.
Condition on Discharge: Improved. Prognosis, patient runs a definite risk of further difficulty with this ankle in the form of traumatic arthritis. It is recommended that the screw be removed, but not earlier than one year from insertion.
4. X-ray studies of plaintiff’s right lower extremity during hospitalization at WRAH revealed the following:
October 19,1956:
AP, lateral and oblique views of the right ankle through plaster show the fracture of the medial malleo-lus. The fragment of the medial malleolus is fixed to the shaft of the tibia by a metallic screw. There appears to be some lateral displacement of the talus showing some instability of the ankle mortise. There appears to be some sclerosis of the distal medial malleolus suggestive of aseptic necrosis. A fracture cannot be delineated through the lateral malleolus through plaster.
November 27,1956:
An examination of the right ankle in AP, lateral and oblique projections shows an old fracture of the medial malleolus. The fractured fragment is held in good position and alignment by means of a full-threaded arthrod-esis screw. There is, however, a rather marked increase in the density of the fragment indicating probably an aseptic necrosis of this fragment. When compared with a film of 19 October taken through plaster, there has been no appreciable change in the appearance of the fracture. Again noted is the rather marked deossification of the bony structures of the foot presumably on the basis of disuse.
Jain. At times the right foot is so touchy and uncom-_ ortable that the weight of his other foot resting on it is painful. At times, there is swelling of the ankle.
PHYSICAL EXAMINATION: Examination at this time, reveals no measured swelling of the right ankle, although it appears to be slightly thickened as compared *495 to the left. The right calf measures 15" in circumference as compared to 161/4" in circumference of the left leg. The right thigh shows about 14" less circumference than the left thigh, not of significant difference. The scar over the medial side of the right ankle is well healed and is not particularly painful, tender, etc. There is about 10 degrees limitation of dorsi flexion of the right foot, plantar flexion is almost complete. Trying to force motions beyond these points produces discomfort. I see no evidence of shortening 01 either extremity as compared to its opposite one.
X-RAY EXAMINATION: X-rays including multiple views of the right ankle were taken and compared with x-rays taken the same day of the left ankle. There is indeed, extensive traumatic arthritic change present in the right foot and ankle as compared with the left, x-rayed for comparative purposed [sic]. It would appear that the surgery originally done to fix the fracture, worked out well, but with considerable proliferation of bone about the internal malleolus and some about the external malleolus. The overall position of the mortise remains very, good, but hypertrophic degenerative' changes have set-in [sic] and involved not only the internal and externa] malleolus, but also the articular surface of the astragalus with the tibia. On the other hand, the.opposite foot shows very little in the way of degenerative changes present.
DIAGNOSIS: Traumatic arthritis of right ankle, secondary. to fracture of right ankle of August, 1956.
I believe this process is fairly marked at this time and it is quite probable that it will tend to get worse in the future. It is possible that fusion of the ankle to relieve discomfort may ultimately be necessary. At the present time,, though the patient is apparently considerably handicapped by the ankle, still I do not feel that the incapacity seems sufficient to make it mandatory to do an ankle fusion at this time.
As far as rating of disability at this time is concerned, I feel that based on the patient’s story and the objective x-ray changes, I believe that the patient’s present disability amounts, to about 30% permanent partial disability of the right leg.
Dr. Ferry’s 30 percent disability rating was based on his findings of limitation of motion, atrophy of the leg, X-ray findings of severe traumatic arthritis, and plaintiff’s statements as to the behavior of his limb. In arriving at said per *496 centage figure, Dr. Ferry did not have in mind the VA Schedule for Eating Disabilities.
16. One of two Government expert witnesses at the trial in this court was Dr. Eobert A. Muilenburg. He was chairman of the VA Disability Policy Board which writes amendments to the VA Schedule and renders advice thereon to both the VA rating boards and to the various military departments. According to Dr. Muilenburg, the degree of severity of plaintiff’s disability was “cast in terms of limitation of motion.” He felt that the question of whether the amount of plaintiff’s limitation was marked (20 percent) or moderate (10 percent) was one on which reasonable men might differ under VADC 5271. He would not take serious issue with either rating. While he had never personally examined plaintiff, he had noted “other findings” in the. Army and VA examination reports, namely, osteoporosis of the bones of the foot and leg, atrophy of muscles of the leg below the knee, and swelling of the ankle joint.
Osteoporosis consists of demineralization, or decalcification, of a bone usually arising from temporary or permanent disuse of the bone. The condition has no significance in this case because it “probably has no effect whatsoever in terms of disability.” Muscle atrophy and diminution of size of plaintiff’s right calf are expected conditions secondary to traumatic arthritis and are attributable to disuse of the leg stemming from pain and discomfort suffered by the ambulating patient. In Dr. Muilenburg’s view as an expert on the VA Eating Schedule, it would be improper to rate plaintiff independently under the Schedule Instructions dealing with muscle injury, weakness, and muscle damage, which includes VADC 5311 and 5312, relied upon by plaintiff for an additional 20 percent rating. This opinion was based upon his belief that those diagnostic codes deal with injuries to muscles brought about by bullets, shell fragments, or other direct injuries to the muscles themselves. No such direct muscle injury is present in plaintiff’s case.
Dr. Muilenburg’s conclusion was that VADC 5010 and 5271 were the proper codes for application in this case.
17. The other expert witness called by the Government was Colonel Charles W. Metz, Jr., Chief of' Orthopedic *497 Service, Walter Keed Army Hospital, He was the orthopedic consultant to the Surgeon General referred to in the SGO advisory opinions mentioned in finding 14, supra. Like Hr. Muilenburg, Colonel Metz had never personally examined plaintiff, but had studied the prior medical reports and other files. He remained in accord with the SGO advisory opinions regarding plaintiff’s case.
Traumatic arthritis should be rated by analogy to limitation of motion under VADC 5271. Swelling and muscle atrophy are considered to be within the rating for the limitation of motion as explained in the Schedule at paragraph 6 of The Musculoskeletal System reading, in pertinent part:
6. The Joints. — As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:
*****
(6) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weigh-bearing [sic] are related considerations. For the purpose of rating disability from arthritis, the, shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; * * *
Muscle atrophy is visible evidence of the arthritis and is one of the elements taken into consideration in arriving at the rating for arthritis of a particular joint. In his evaluation of plaintiff’s disability, Colonel Metz had noted the VA rating of 10 percent for “moderate” limitation of motion, and, considering the degree of plaintiff’s limitation of motion, it was Metz’s opinion that the VA rating was “more realistic” than the PEB rating of 20 percent for “marked” limitation. However, he concluded that plaintiff was entitled to “the benefit of the doubt” and that the 20 percent rating was justified when compared, for example, to the 20 percent rating assigned to ankylosis (a completely solid ankle) in good position which has the same range of motion as plaintiff’s range. 8
*498 To Colonel Metz, however, any larger rating than 20 percent could not be justified because such an increase would amount to “pyramiding” which is prohibited by. the Schedule in the following language:
14. Avoidance of Pyramiding. — The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate section for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes, some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury' in establishing the service-connected evaluation,, and the evaluation of the same manifestation under different diagnoses'are to be avoided.
Since osteoporosis and muscle atrophy are to be expected' in cases of traumatic arthritis and have been taken into account in rating that disability, a separate rating for those > conditions under the leg muscle provisions of the Schedule (VADC 5311 and 5312) would constitute an evaluation of the-same manifestation under different diagnoses which is prohibited by the above-quoted provision of the Schedule. The atrophy and weakness of plaintiff’s calf muscles is simply part and parcel of the arthritis syndrome and are already taken into account in that rating. Plaintiff’s effort to add to> his rating for traumatic arthritis an additional rating for muscle involvement under VADC 5311 and 5312 9 would only be acceptable if plaintiff had sustained a direct injury to the muscle involved, 10 and there is no evidence that he had ever *499 suffered any such direct injury to the atrophied muscle. The muscle atrophy and all other secondary symptoms described by plaintiff are all attributable solely to his arthritis.
18. Plaintiff also testified in his own behalf. He described the early injury to his right ankle incurred while playing football at the University of Delaware in the fall of 1933, After the injury, he continued to play at his position of fullback for the balance of the 1933 season. However, by the time the basketball season had commenced, his ankle had become so sore that he sought medical aid and, by X-ray examination, it was determined that he had suffered a “bone chip” on the outer side of his right ankle. The “chip” was successfully removed by surgery in January 1934, and he had no further difficulty with his ankle until he suffered the service-incurred injury thereto in August 1956. He specifically denied that he had complained to a Service medical examiner in August 1952 of arthritis and occasional pain from the 1933 injury. See finding 1, supra.
Plaintiff recounted the pain and discomfort which he experiences on standing or walking even for short periods of time. He suffers back pains on shifting his weight from one leg to the other, has difficulty going up and down stairs due to his limitation of motion, and has tripped and fallen on numerous occasions from loss of balance. His ankle swells every evening; his driving is affected by pain and discomfort experienced in using the gas pedal; he cannot run, walk fast, or turn quickly; and he has a limp whether or not he feels pain in the anide. In summary, plaintiff stated that there had been no improvement in the adverse symptoms which he had previously described to the PEB and to his doctors in 1957. See finding 10, supra.
Ultimate Findings op Fact
19. The evidence in this case shows that, in the view of an orthopedic expert, plaintiff’s actual physical disability attributable to his service-incurred injury amounts to 30 percent or more.
20. The evidence is clear, however, that under the Veterans Administration Schedule for Rating Disabilities, plaintiff *500 has properly been assigned a maximum rating for his particular disability of 20 percent. Nothing in the administrative proceedings has been shown to constitute arbitrary, capricious, or unlawful action.
CONCLUSION OF LAW
Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and his petition, as amended, is dismissed.
The medial malleolus is the inner side of the ankle joint, an extension of the tibia which is the long weight-bearing bone of the leg.
On August 17, Quantico certifled that plaintiff would have -an. estimated temporary disability for three months “and possible permanent disability.”
At the time of this report, Dr. Vultee was an assistant professor at the Medical College of Virginia. However, while on active duty as Assistant Chief of the Physical Medicine Service at Walter Reed, Dr. Vultee had examined and treated plaintiff In early 1957.
In response to the medical member’s question as to how long this discrepancy in size had been present, plaintiff responded, rather incomprehensibly, that it had been present “Since the accident.”
VADC 5010:
Arthritis, due to direct trauma :
Minimum rating_ 1Ó
Note — Rate only in the presence of a basic dislocation, mal-union, limitation of motion, or painful motion of a joint affected by fracture, irregular joint surfaces, loose or foreign bodies, etc.; not to be applied following simple sprain or history of dislocation.
VADC 5271:
Ankle, limited motion of:
Marked __ 20
Moderate _ 10
There is no record of the proceedings, composition,, or membership of the RRC.
A copy of Dr. Ferry’s report was furnished to the Board for Correction tpt .Military Records in connection with the Board’s consideration of plaintiff’s application for correction of his records.
This was a proper conclusion since the VA Schedule, in paragraph 7 of the General Policy in Rating, requires that if there is a reasonable doubt “aB to which of two ratings shall be applied in any given case, the claimant Is entitled to the higher.”
VADC 5311 provides for a 20 percent rating In eases of moderately severe Injury to “Posterior and lateral crural muscles. Muscles of the calf. (1) Triceps surae (gastrocnemius and soleus) ; (2) tibialis posterior; (3) peroneus longus; (4) flexor hallucis longus; (5) flexor digitorum longus; (6) popliteus. (Function: Propulsion, plantar flexion of foot (1) ; stabilizing arch (2,3) flexion of toes (4,5) ; flexion of knee (6).)
VADC 5312 also provides for a 20 percent rating in cases.of moderately severe injury to “Anterior muscles of the leg. (1) Tibialis anterior; (2) long extensors of toes; (3) peroneus tertius. (Function; Dorsiflexion (1), extension of toes (2), stabilizing arch (3).)
Plaintiff claims to be entitled to an additional 20 percent rating unddf either or both of these sections.
In this connection, notice is taken of paragraph 11 of the Schedule under The Musculoskeletal System, which provides that, in case of muscle injuries, “Disability from injuries of muscles presents a special problem. Shrapnel and shell fragments and high velocity buUets may inflict massive damage upoh muscles with permanent residuals. The principal symptoms of disability from tsuch muscle injuries are weakness, undue fatigue-pain, and uncertainty Ói incoordination óf movement.* * *”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8594246. Public record. Not legal advice.