Caruso , 652 F.2d 69 ( 1981 )

Military pay; retired pay (disability); review of Physical Evaluation Board decision. — Plaintiff, having been discharged from the Navy as unfit for service by reason of an illness incurred in the line of duty, seeks such disability retirement pay as would be appropriate on a rating of 60 percent disability. On January 1, 1972, plaintiff was discharged from the Navy and placed on the Temporary Disability Retired List following a ruling by a Physical Evaluation Board that he was unfit for duty by reason of a bilateral ureteral reflux and chronic bilateral pyelonephri-tis, with prognosis of early renal failure. The condition was found to be permanent, incurred in the line of duty, and not due to plaintiffs misconduct. The Board recommended a 60 percent temporary disability. Following a periodic physical evaluation plaintiff was again found to be unfit for duty but zero percent disabled. On March 12, 1975, plaintiff was released to the Permanent Disability Retirement List with severance pay. On December 9, 1980 Trial Judge David Schwartz filed a recommended opinion sustaining the administrative determination of the degree of plaintiffs disability. Plaintiff has no impairment in earning capacity and offered no medical testimony of disability by reason of his physical or mental condition. Several boards, including two Physical Evaluation Boards, adjudged him to have no disability and plaintiff has failed to show that the decisions lacked supporting substantial evidence, were arbitrary or capricious, or in violation of statute or regulation. On February 13, 1981 the court, by order, adopted the recommended decision of the trial judge as the basis for its judgment in this case and dismissed the petition.