284 Reporter's Statement of the Case whether or not the effusion was caused by tuberculosis; that he believed tuberculosis was the most likely cause, but that it was possible that something else caused the condition. After necessary arrangements had been made, plaintiff was transferred on June 8, 1915, to a passenger vessel at Seward, Alaska, bound for Seattle, Washington. He was admitted to the Marine hospital at Port Townsend, Washington, on June 16, where he remained for two months for observation and treatment. 3. He remained at the Marine hospital until August 18 when he was discharged as recovered. The diagnosis made at the hospital was "pleurisy, left side." The observations and examinations did not confirm the suspicion of the Unalga's surgeon that the pleural effusions were possibly tubercular. Plaintiff returned to active duty and on October 19, 1915, was assigned to command the Arcata. There is no history of a further illness until plaintiff was admitted to the Marine hospital at Seattle, Washington, January 18, 1917, on a complaint of chills and fever, and generalized aching. He was examined thoroughly in relation to the condition of his lungs and his illness was diagnosed as "influenza, pleurisy." There was no finding of tuberculosis and a sputum examination was negative for tubercle bacilli. He was discharged as recovered on January 23, 1917. On February 9, 1918, he was assigned to duty as Navigator on the Columbia, engaged in the convoying of ships between New York City and Brest. Until November 7, 1918, when he was assigned to the Bureau of Navigation, Navy Department, Washington, D. C., he continued on active sea duty. After his service with the Bureau of Navigation, he commanded a ship which made a trip from the east coast of the United States through the Panama Canal to the west coast, following which he was assigned to the command of the Cutter Snohomish in which duty he continued without further evidence of illness until 1921. 4. On or about February 11, 1921, while in command of the Snohomish with headquarters at Port Angeles, Washington, he was stricken with a severe illness while walking Reporter's Statement of the Case 112 C. Cls. from his ship toward his home, the symptoms being severe pains in the abdominal region. The Marine hospital doctor, who was also the medical officer of his ship, was called and visited him at a drugstore near the place where he was stricken. The doctor sent him to his home in an automobile and put him to bed where he remained under the care of the doctor for twelve days. The doctor diagnosed his illness as acute cholecystitis. Cholecystitis is the medical name for inflammation of the gall bladder. Pursuant to orders, he then proceeded to the Marine hospital at Seattle, Washington, for observation and was there examined for abdominal ailments and also for tuberculosis. The attending specialist in surgery at the hospital diagnosed his abdominal trouble as chronic appendicitis. The chief of the tubercular section at the hospital after careful examination reported "clinical tuberculosis not found." An X-ray of his chest showed: Right apex is somewhat cloudy. Definite increase in hilus density with definitely circumscribed areas, possibly calcified glands, present. Increase in the peribronchial thickening extending outward and upward and apparently reaching the periphery in the second and third inter-spaces; this is slightly hazy. The diaphragm is smooth and regular and the costo phrenic angle is clear. The mediastinal shadow appears pulled to the left. Rather marked increase in density of hilus with definite peribronchial thickening extending as a fine, discreet, non-hazy mottling through the apex to the first and second inter-spaces. These conditions indicate an impairment of the lungs, suggesting tubercular origin. Plaintiff was discharged February 26, 1921, as improved and with the diagnosis: 1. Pleurisy, chronic fibrous Gastritis, Acute catarrhal 5. Thereafter, a report on such illness was transmitted to the Coast Guard headquarters and plaintiff was granted three months' sick leave, commencing as of February 12, 1921. While on sick leave plaintiff was examined by a U. S. Public 284 Reporter's Statement of the Case Health Service surgeon at Los Angeles, California, who found the following: Weight 155. Color pale, slightly anemic. Urine negative. B. P. 110-68. No enlargement of cervical glands. Teeth and throat negative. Heart-Negative on percussion and auscultation. Lungs-Slight impairment over both apices. Percussion and auscultation otherwise negative. Abdomen-No tenderness; soft throughout. Extremities negative. Subjective-Complains of slight irregularity of bowels. Otherwise, no complaint. Recommend continuance of sick leave for three weeks longer, at which time his physical condition should be such as to permit of his return to his duties. On May 2, 1921, near the expiration of his sick leave, plaintiff reported for active duty and served on active duty at Oakland, California, until February 1922. His orders were to report to the Inspector of Hulls for duty in connection with cutter thirty-eight and on board such cutter when commissioned. 6. On January 26, 1922, before returning to sea duty, plaintiff suffered another acute attack of abdominal trouble with symptoms similar to those experienced in 1921. The same day he consulted a physician, who certified that plaintiff was then suffering from ulcers of the stomach and was in need of hospital treatment. In early February 1922, plaintiff reported to the U. S. Marine hospital in San Francisco, California, where he received treatment and examination as both an in-patient and an out-patient and where a thorough and exhaustive physical examination was made over a period of observation continuing into April. On March 2, 1922, plaintiff requested that he be retired from active duty by reason of physical disability. A Coast Guard Retiring Board was ordered to convene and examine plaintiff. On May 16, 1922, after thorough examination of the mental and physical condition of plaintiff and in consideration of his medical history, the medical members of the board submitted their joint report and gave their testimony, and the retiring board made its findings and recommendations for retiring plaintiff from active service, as more fully stated in finding 1. Reporter's Statement of the Case 112 C. Cls. 7. The evidence establishes that the tuberculosis was incurred prior to the year 1921, but because of conflicts the evidence is not convincing that it had its origin on or before April 6, 1917. The evidence establishes that the existence of the tuberculosis alone would have been a sufficient reason to cause the medical officers of the retiring board to recommend retirement, but that had the cholecystitis not been accompanied by the tuberculosis, the cholecystitis alone would not have been a sufficient reason for the medical officers of the retiring board to recommend retirement. 8. Plaintiff was reassigned to active duty in 1926, and, while serving in the status of a retired officer on active duty, he was advanced to the rank of a lieutenant commander on the retired list under the provisions of the act of June 21, 1930, 46 Stat. 793. This act authorized retired officers, who had held temporary higher rank during the World War, to be advanced in rank on the retired list to the highest grade held by them during the war with the further provision that such advancement in rank would result in no increase of active or retired pay or allowances. Plaintiff continued on active duty until November 1, 1934, when he resumed retired status, having completed 27 years' service on April 27, 1933. He remained on retired status from November 1, 1934, to April 8, 1941, during which period he received retired pay of $271.88 per month, or three-fourths of a lieutenant's pay based upon 27 years' service. On April 8, 1941, plaintiff was assigned to active duty during World War II with the rank and pay of a lieutenant commander. 9. On March 11, 1941, the plaintiff filed a claim with the Commandant of the United States Coast Guard claiming that he was entitled, under the provisions of the act of July 30, 1937, to the retired pay of a lieutenant commander from July 30, 1937, and claimed the difference between the pay which he had received as a lieutenant and the pay of a lieutenant commander. This claim was submitted to the General Accounting Office for direct settlement. On January 23, 1942, the Comptroller General of the United States denied plaintiff's claim, and in the order of disallowance stated: 284 Reporter's Statement of the Case The act of July 30, 1937, contemplates a physical condition which actually permanently incapacitated an officer during the period covered by the act of July 1, 1918, which would have resulted in your retirement between July 1, 1918, and September 3, 1921, except for administrative delay in the action upon your retirement. The medical history and report of the retiring board do not show that you were suffering from a physical disability during the period July 1, 1918, to September 3, 1921, which would have entitled you to retirement as permanently incapacitated for active duty had there been no delay in the action upon your retirement. Accordingly, you are not entitled to retirement pay based upon the higher rank. I therefore certify that no balance is found due you from the United States. Plaintiff requested a review of the Comptroller General's decision on February 3, 1942, and on March 24, 1942, the Comptroller General affirmed his prior decision. Reconsideration was again requested April 3, 1942, and on July 28, 1942, the Comptroller General reaffirmed his prior decisions and advised plaintiff that he was not within the provisions of the act of July 30, 1937. 10. Plaintiff's claim, as submitted on March 11, 1941, was a continuing claim, but by reason of his return thereafter to active duty he received on and after April 8, 1941, the pay of a lieutenant commander, and his claim in this suit is for the period ending on April 7, 1941. During the period from July 30, 1937, to April 7, 1941, inclusive, he received pay at the rate of $271.88, being the correct monthly rate for the retired pay of a lieutenant who had completed over 27 years' service; namely, 75 percent of $362.50. At that time the correct monthly rate of retired pay for a lieutenant commander who had completed over 27 years' service was $317.19, or 75 percent of $422.92. The difference is $45.31 per month. Plaintiff's petition herein was filed July 29, 1944. The amount of $45.31 per month from July 29, 1938, the date six years prior to the filing of plaintiff's petition, to April 7, 1941, inclusive, equals $1,463.51. The court decided that the plaintiff was entitled to recover. |