B-160706, MARCH 29, 1967, 46 COMP. GEN. 720

B-160706: Mar 29, 1967

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PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - DISABILITY RATING CORRECTION A CORRECTION ACTION APPROVED 4 YEARS AFTER AN ORIGINAL DETERMINATION INCREASING THE DISABILITY RATING PERCENTAGE OF A MEMBER OF THE UNIFORMED SERVICES WHOSE PHYSICAL CONDITION HAD BEEN ERRONEOUSLY EVALUATED IS NOT SUBJECT TO THE TIME LIMITATIONS OF THE SUBSTANTIAL NEW EVIDENCE RULE. 1967: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13. REQUESTING AN ADVANCE DECISION AS TO WHETHER ADDITIONAL TEMPORARY DISABILITY RETIRED PAY IS DUE A MEMBER OF THE UNITED STATES NAVY. YOUR REQUEST WAS ASSIGNED SUBMISSION NUMBER DO-N-941 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. THE MEMBER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JUNE 20.

B-160706, MARCH 29, 1967, 46 COMP. GEN. 720

PAY - RETIRED - DISABILITY - TEMPORARY RETIRED LIST - DISABILITY RATING CORRECTION A CORRECTION ACTION APPROVED 4 YEARS AFTER AN ORIGINAL DETERMINATION INCREASING THE DISABILITY RATING PERCENTAGE OF A MEMBER OF THE UNIFORMED SERVICES WHOSE PHYSICAL CONDITION HAD BEEN ERRONEOUSLY EVALUATED IS NOT SUBJECT TO THE TIME LIMITATIONS OF THE SUBSTANTIAL NEW EVIDENCE RULE, THE CHANGE NOT AFFECTING THE STATUS OF THE MEMBER WHILE ON THE TEMPORARY DISABILITY LIST, AND THE MEMBER HAVING A RIGHT TO THE INCREASED DISABILITY RETIRED PAY FOR THE PERIOD SPENT ON THE TEMPORARY DISABILITY RETIRED LIST MAY BE PAID THE ADDITIONAL AMOUNT FOUND DUE UPON RECOMPUTATION OF THE TEMPORARY DISABILITY RETIRED PAY.

TO COMMANDER D. G. SUNDERBERG, DEPARTMENT OF THE NAVY, MARCH 29, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1966, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER ADDITIONAL TEMPORARY DISABILITY RETIRED PAY IS DUE A MEMBER OF THE UNITED STATES NAVY, RETIRED, FOR THE PERIOD JUNE 20, 1962, TO AUGUST 31, 1966, INCLUSIVE. YOUR REQUEST WAS ASSIGNED SUBMISSION NUMBER DO-N-941 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE MEMBER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JUNE 20, 1962, BY REASON OF A PHYSICAL DISABILITY RATED AT 10 PERCENT. EFFECTIVE SEPTEMBER 1, 1966, HE WAS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST WITH A DISABILITY RATING OF 100 PERCENT. MESSAGE DATED AUGUST 26, 1966, THE MEMBER WAS ADVISED BY THE CHIEF OF NAVAL PERSONNEL:

1. ON 29 JULY 1966, THE SECRETARY OF THE NAVY CORRECTED HIS ACTION OF 1 JUNE 1962 TO SHOW YOUR PERCENTAGE OF DISABILITY ON THE TEMPORARY DISABILITY RETIRED LIST AS 100 VICE 10. REFERENCE (A) (BUPERS LTR PERS- B84/GG OF 6 JUN 1962) IS HEREBY CORRECTED TO SHOW YOUR PERCENTAGE OF DISABILITY AS 100 VICE 10.

THE CHANGE MADE IN THE PERCENTAGE OF THE MEMBER'S PHYSICAL DISABILITY RATING RESULTED FROM THE ACTION TAKEN ON THE "PETITION FOR RELIEF FROM FINAL ACTION * * *.' ENCLOSURE (1) IS A COPY OF THAT PETITION AND PARAGRAPH 1 THEREOF DISCLOSES THAT THE PHYSICAL REVIEW COUNCIL SUBMITTED ON HIS BEHALF A PETITION FOR RELIEF FROM FINAL ACTION. PARAGRAPH 2 RECITES THAT HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN JUNE 1962 WITH A DISABILITY RATING OF 10 PERCENT UNDER VA CODES 7013 (PAROXZSMAL TACHYCARDIC) AND 7101 (HYPERTENSIVE VASCULAR DISEASE). PARAGRAPH 3 DISCLOSES THAT THE PHYSICAL REVIEW COUNCIL RECOMMENDED THE PETITION FOR RELIEF BE GRANTED ON THE GROUNDS THAT:

THERE IS EVIDENCE IN THE RECORD TO SUBSTANTIATE THAT THE DIAGNOSIS OF CARCINOMA OF THE PROSTATE, 01770-766, EXISTED ON THE EFFECTIVE DATE OF TEMPORARY DISABILITY RETIREMENT, 20 JUNE 1962, WARRANTING A RATING OF 100 PERCENT THEREFOR.

THE MATTER IS FURTHER DETAILED IN PARAGRAPH 4 AS FOLLOWS:

PARAGRAPH 0707 (NAVY DISABILITY SEPARATION MANUAL) SETS FORTH SPECIFIC GROUNDS UPON WHICH RELIEF FROM FINAL ACTION MAY BE GRANTED. ONE OF THESE GROUNDS IS NEWLY DISCOVERED EVIDENCE WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN PRESENTED PRIOR TO FINAL DISPOSITION. A PROSTATIC NODULE WAS NOTED DURING A PERIOD OF HOSPITALIZATION COMMENCING IN MAY 1961. THE MEDICAL REPORT OF 5 OCTOBER 1961 REPORTS THE FOLLOWING PROCESS:

ON 26 JUNE 1961 * * * A TRANPORINEAL PROSTATIC CARDIA BIOPSY WAS PERFORMED * * * THE PROSTATIC BIOPSY WAS REPORTED AS NORMAL PROSTATIC TISSUE.

SINCE THE PROSTATIC NODULE HAD DECREASED MARKEDLY IN SIZE IT WAS FELT BY THE UROLOGICAL CONSULTANT THAT THIS REPRESENTED AN INFECTIOUS PROCESS WHICH WAS SUBSIDING AND FURTHER INVESTIGATION WAS NOT WARRANTED.

THE DIAGNOSIS OF CARCINOMA OF THE PROSTATE WAS FIRST MADE IN 1965. THE MEDICAL REPORTED OF 4 MAY 1966 STATES:

IT WAS THE UROLOGIST'S IMPRESSION THAT IT WAS FAIRLY WELL ASCERTAINED THAT THE PATIENT'S PROSTATIC MALIGNANCY EXISTED WHILE ON ACTIVE DUTY. THERE WAS A APLPABLE LESION IN THE PROSTATE NOTED WHILE HE WAS ON ACTIVE DUTY, WHICH WAS PROBABLY MISSED WITH THE BIOPSY NEEDLE AT THE TIME OF HIS INITIAL WORK-UP.

THE RECOMMENDATION OF THE PHYSICAL REVIEW COUNCIL WAS APPROVED AND THE PETITION FOR RELIEF FROM FINAL ACTION WAS GRANTED AS SHOWN IN PARAGRAPH 5 OF ENCLOSURE (1) WHICH READS:

THE RECOMMENDATION OF THE PHYSICAL REVIEW COUNCIL IS APPROVED AND THE PETITION FOR RELIEF FROM FINAL ACTION GRANTED. IT IS HEREBY DIRECTED THAT PETITIONER'S RECORDS BE CORRECTED TO SHOW AN ASSIGNED DISABILITY RATING EFFECTIVE 20 JUNE 1962, IN ADDITION TO THE RATINGS HERETOFORE ASSIGNED, OF 100 PERCENT UNDER VA CODE 7528 (MALIGNANT NEW GROWTH OF THE PROSTATE GLAND).

THE QUESTION PRESENTED IN YOUR LETTER IS WHETHER, IN THE CIRCUMSTANCES ABOVE RELATED, THE MEMBER'S TEMPORARY DISABILITY RETIRED PAY MAY BE RETROACTIVELY ADJUSTED FROM JUNE 20, 1962, THE DATE HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, FROM A 50 PERCENTUM BASIS (YOU STATE THAT HIS TEMPORARY DISABILITY RETIRED PAY WAS COMPUTED ON THE BASIS OF 20 YEARS OF ACTIVE SERVICE, I.E., AT 50 PERCENTUM) TO A 75 PERCENTUM RATE, THE MAXIMUM RATE PAYABLE UNDER A 100 PERCENT DISABILITY RATING.

ALTHOUGH IT IS STATED THAT THE DIAGNOSIS OF CARCINOMA OF THE PROSTATE WAS FIRST MADE IN 1965 AND THAT THE PATIENT'S PROSTATIC MALIGNANCY NOW IS CONSIDERED AS HAVING EXISTED WHILE THE MEMBER WAS ON ACTIVE DUTY, THE RECORD ALSO SHOWS THAT IS WAS KNOWN IN MAY 1961, OVER A YEAR BEFORE HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, THAT HE HAD A PROSTATIC NODULE. IN A REPORT IN OCTOBER 1961 IT IS STATED THAT THAT NODULE HAD DECREASED MARKEDLY IN SIZE AND AS A CONSEQUENCE THE UROLOGICAL CONSULTANT FELT THAT THE CONDITION "REPRESENTED AN INFECTIOUS PROCESS WHICH WAS SUBSIDING" AND THAT "FURTHER INVESTIGATION WAS NOT WARRANTED" AT THAT TIME. THUS, IT APPEARS THAT THE BASIC FACTS UNDERLYING THE 1966 CHANGE MADE IN THE MEMBER'S PHYSICAL DISABILITY RATING FROM 10 PERCENT TO 100 PERCENT MAY HAVE BEEN PRESENT BUT NOT PROPERLY EVALUATED PRIOR TO THE DATE HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN 1962.

THE CORRECTION ACTION IN THIS CASE IS BASED ON THE PROVISIONS OF PARAGRAPH 0707, NAVY DISABILITY SEPARATION MANUAL OF OCTOBER 29, 1963. THAT MANUAL IS INDICATED TO HAVE BEEN ISSUED IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN 10 U.S.C. 1216 AND RELATED PROVISIONS OF LAW. THE MANUAL PRESCRIBES THE PROCEDURES AND POLICIES TO BE FOLLOWED IN IMPLEMENTING THE STATUTORY PROVISIONS PERTAINING TO THE DISCHARGE OR RETIREMENT OF MEMBERS FROM THE NAVAL SERVICE BY REASON OF PHYSICAL DISABILITY.

WHILE THE SUBSTANTIAL NEW EVIDENCE RULE DISCUSSED IN 40 COMP. GEN. 419, IS SUBJECT TO CERTAIN TIME LIMITATIONS (SEE 46 COMP. GEN.--- (, AND THE ACTION BY THE SECRETARY OF THE NAVY ON JULY 29, 1966, CHANGING THE MEMBER'S PERCENTAGE OF DISABILITY FROM 10 PERCENT TO 100 PERCENT WAS TAKEN OVER 4 YEARS AFTER THE ORIGINAL DETERMINATION IN THIS CASE, THOSE TIME LIMITATIONS ARE APPLICABLE TO SITUATIONS INVOLVING A CHANGE IN STATUS SUCH AS A CANCELLATION OF RETIREMENT ORDERS WHICH HAVE ALREADY BECOME EFFECTIVE. ALTHOUGH THE PERCENTAGE OF THE MEMBER'S DISABILITY WAS RETROACTIVELY INCREASED BY THE SECRETARIAL ACTION OF JULY 29, 1966, HIS RETIRED STATUS ON THE TEMPORARY DISABILITY RETIRED LIST REMAINED UNCHANGED.

PARAGRAPH 0707 (C) OF THE ABOVE-CITED REGULATIONS PERMITS AN INCREASE IN THE ORIGINALLY ASSIGNED PERCENTAGE OF DISABILITY UPON A SHOWING OF EVIDENCE WARRANTING SUCH INCREASE WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED PRIOR TO THE RETIREMENT ACTION AND WHICH RELATES TO A FACT IN EXISTENCE AT THAT TIME. WHILE THE RECORD BEFORE THIS OFFICE IS NOT TOO CLEAR AS TO WHETHER OR NOT THE MEMBER'S TRUE PHYSICAL CONDITION COULD HAVE BEEN MORE CAREFULLY EVALUATED BY THE EXERCISE OF DUE DILIGENCE BEFORE HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN JUNE 1962, NO SUBSTANTIAL EVIDENCE APPEARS ON WHICH TO QUESTION THE DETERMINATION THAT HE WAS SUFFERING FROM A CANCEROUS GROWTH IN HIS PROSTATE GLAND AT THAT TIME. IN SUCH CIRCUMSTANCES, AND SINCE THE SECRETARY OF THE NAVY HAS SEEN FIT TO CORRECT HIS ORIGINAL ACTION OF JUNE 1, 1962, TO SHOW A DISABILITY RATING OF 100 PERCENT, WE SEE NO BASIS FOR QUESTIONING THE MEMBER'S RIGHT TO INCREASED DISABILITY RETIRED PAY FOR THE PERIOD SPENT ON THE TEMPORARY DISABILITY RETIRED LIST COMPUTED ON THE BASIS OF A 100 PERCENT DISABILITY RATING.