814 Opinion of the Court tism, fibrositis, lumbago, chronic low back strain, idiopathic sciatica, or even kidney disease. Almost invariably the first complaints are referred to the lower back and consist of episodes of aching and stiffness. In the vast majority of cases the sacroiliac joints are the first to be affected. See Comroe's Arthritis, 5th ed. 1953. Hence, it may be that the earlier diagnoses of plaintiff's ailment were erroneous, and that the stiffness and pains in plaintiff's back and legs in August and October 1945 were in fact symptoms of rheumatoid arthritis. Army Regulation No. AR 605-10, May 26, 1944, applicable to commissioned officers in the Army Air Corps, provides in section IV, paragraph 20, that the physical standards for appointment, promotion, entry on active duty, and for retention of commission are those prescribed for the Officers Reserve Corps in AR 40-100 and AR 40-105. Under these latter regulations both rheumatoid arthritis and osteoarthritis were cause for rejection of an application for a commission. However, Tentative War Department Technical Manual 12-245, October 1, 1945, provided: b. Due regard will be given to the provisions of the above-mentioned regulations [AR 40-100 and 40-105] in considering the physical qualifications of officers for retention on active (general) service. However, in this connection, the mentioned regulations will not be as strictly interpreted as for appointment or entrance on active duty. c. Thus, officers may be found capable of performing active (general) service even though they have diseases, injuries, or infirmities which would disqualify them for original appointment, provided such diseases, injuries or infirmities are of such a nature and degree as not to affect adversely the performance of active (general) service (including overseas duty) considering the individual's age, grade, branch and MOS. It follows, therefore, that the nature and degree of the disease must be considered in order to determine eligibility for retirement for physical disability, although the presence This was also the test applied in Proper v. United States, 139 C. Cls. 511, and Patterson v. United States, 141 C. Cls. 435. Those cases were concerned with multiple sclerosis, the mere presence of which renders an officer unfit to be entrusted with command, because of the ever-present possibility of an attack that would completely incapacitate the officer while the attack lasted. Opinion of the Court 146 C. Cls. of the disease even in mild form is cause for rejection of an application for a commission. The reasons for a difference in the requirements for acceptance of an application for a commission and for retirement for physical incapacity are obvious. The degree of plaintiff's disease in 1945, whether considered osteoarthritis or rheumatoid arthritis, was mild and relatively asymptomatic. Under the regulations, we cannot say as a matter of law that the Air Force was arbitrary and capricious in denying plaintiff's claim. As plaintiff's witness, Dr. Hofer, testified, the progress and effect of arthritis varies from patient to patient. In some patients the disease progresses very rapidly, and at its onset is markedly incapacitating, while in others its progression is very slow and does not become incapacitating for many years, and sometime never. In the light of this fact, the armed services, as a matter of general policy, do not retire officers for mild osteoarthritis or rheumatoid arthritis, especially if there are no objective symptoms of the disease. Cf. Army Regulation No. SR 40-120-1, October 9, 1953. From the facts in this case it definitely appears that plaintiff's arthritis was in its initial stage and mild. Therefore, even assuming that the plaintiff had rheumatoid arthritis at the time of his release from active duty, we cannot say as a matter of fact that the Correction Board's determination, that no injustice has been done plaintiff, was in error. Wales v. United States, 132 C. Cls. 765; San Millan v. United States, supra; Palluconi v. United States, 136 C. Cls. 190; Lemly v. United States, 117 C. Cls. 365. The nature and the degree of the disease at the time of plaintiff's release to inactive duty were such that the Board's determination seems fully justified. In our opinion, this court can afford plaintiff no relief. Under the facts presented only Congress can do so. Plaintiff's petition will be dismissed. It is so ordered. LARAMORE, Judge, and MADDEN, Judge, concur. 814 Dissenting Opinion by Chief Judge Jones JONES, Chief Judge, dissenting in part: There is no doubt that plaintiff's disabled condition had its inception in the service. It is probable that the malady did not become completely disabling until some years later, when it became certain from medical examinations that at that time it not only was disabling, but that the malady necessarily existed at the time of separation from the service. The nature of the malady at that time was unknown either to him or the medical examiners. I can see no reasonable basis for denying justice to a gallant soldier, who served long under great difficulties during a period of actual hostilities, merely because the medical authorities did not discover the condition in 1945 when vast numbers of soldiers were being separated from the service, especially since the record abundantly shows that he was permanently disabled when examined and report made in June 1951. In fact the trial commissioner so found. The record leaves no doubt on this point. I would allow retirement as of a date not later than June 1951. See dissenting opinions in Holt v. United States, 134 C. Cls. 801, 805, and MacFarlane v. United States, 134 C. Cls. 755, 760. The trial commissioner who heard the evidence found that plaintiff was permanently incapacitated as of the date of his separation from the service in 1945. The trial commissioner saw the witnesses face to face and examined the records. Had the Army known at the time of plaintiff's separation from the service the actual nature of his malady he would have been retired without question. The regulations set out in finding 29 clearly stipulate that a person afflicted with rheumatoid arthritis shall be ineligible for even limited service. There is not the slightest doubt as revealed by later examination that plaintiff had that malady at the time of his separation from the service. He flew over the "Hump," which is the highest of all mountain ranges. His assignments carried him from the hot, steamy climate of India to the cold climate of Greenland, to the hot, dry climate of Africa, and back and forth through wide variations of climate. He had cramped rigid seating Findings of Fact 146 C. Cls. space in extended flights over a period of years-1450 hours as a navigator. During the service he complained of pains in the thighs, legs, and mid-calf regions, which the surgeon at that time mistakenly thought were the result of cramped quarters during long hours of flight, but which later analyses showed to be a malady of a serious nature as indicated. I would restore at least a part of the trial commissioner's findings. Whichever horn of the dilemma is taken, the undisputed facts of record establish plaintiff's right to a retired status. FINDINGS OF FACT The court having considered the evidence, the report of Trial Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows: 1. On March 18, 1942, at the age of 19, plaintiff enlisted as a private, Air Corps, Army of the United States. He was appointed an Aviation Cadet on May 16, 1942, a Second Lieutenant in the Army Air Corps Reserve on December 5, 1942, and a First Lieutenant in the Army of the United States on March 23, 1944. He served on active duty from March 18, 1942, to December 20, 1945, when he was released to inactive duty. 2. Physical examinations conducted by the Army, prior to plaintiff's enlistment, showed that he was physically qualified for flying duty. He performed the required training for flying without any physical difficulties. In his induction examination there is no evidence of any physical disability or ailments other than the usual childhood diseases. 3. Plaintiff was trained for and assigned to duty as a navigator and from February 1943 to October 1945, he served as a navigator of transport and bomber type aircraft in the American, European, Africa-Middle East and Asiatic Theaters of Operations. He was stationed first in Memphis, Tennessee, from which he made flights to India, Iran and other parts of the world. He was subsequently stationed in Calcutta, where he flew over the "Hump" to various parts of the Far East. In many of the planes he flew, particularly bombers, his seating space was greatly restricted and he had 814 Findings of Fact to sit in a cramped, rigid position for long periods of time. He flew approximately 1,650 hours, 1,450 of which were in the performance of his duty as a navigator. 4. According to plaintiff's testimony, in the late summer or early fall of 1943 he began to experience stiffness in his right arm and shoulder during flying and reported it to the Flight Surgeon. However, there is no medical record of such a report. None of plaintiff's medical examinations given in May and October 1942, April 1944, and February 1945, indicated any complaint. 5. In 1944, after a trip on an A-26 plane in which the space he occupied was extremely restricted, he was so stiff that he was unable to rise out of his seat and had to be helped out. This stiffness lasted two or three days. In August 1945, when he was stationed in Calcutta, he began to experience pains down the back of his legs and could not bend over. He reported these attacks to the Flight Surgeon, who treated him with sodium salicylates, but when the condition did not improve he was sent to a hospital. 6. On September 21, 1945, the Dispensary at Calcutta transferred him to the 142nd General Hospital with a diagnosis of "bilateral sciatic pain". He remained at the hospital until October 5, 1945. The hospital records show that plaintiff was admitted "with complaint of pain radiating down posterior aspects of both thighs to the mid-calf region"; that, according to him, he had experienced pain for 12 years; that he had been seen by the Flight Surgeon and medicine administered with no beneficial results; that the attacks of pain lasted anywhere from one hour to several days, with varying degrees of intensity. The doctors told him he had a "nerve" condition down the back of his legs and he was given postural exercise, a pelvic girdle, and a board to sleep on. An x-ray report of September 24, 1945, indicated spondylolisthesis, L-5, having slipped forward on S-1. He was discharged from the hospital on October 5, 1945, with a final diagnosis of "Strain, lumbo-sacral, mild, cause undetermined." 7. After his discharge from the hospital as fit for general duty, he was returned to general duty and sent to Lincoln |