Appealed from:United States Court of Federal Claims
Before Mayer, Chief Judge, *fn1 * Newman and Michel, Circuit Judges.
The opinion of the court was delivered by: Mayer, Chief Judge.
DECIDED: February 17, 1998
Arnold Champagne, a former enlisted member of the Navy, appeals the United States Court of Federal Claims' summary judgment, 35 Fed. Cl. 198 (1996), that the Navy properly rated his physical disability before he was discharged. We affirm.
Between July 9, 1959, and August 3, 1992, Champagne accumulated at least nine years of active service in the Navy. Serving in Operation Desert Storm, he sustained injury on April 14, 1991. While lifting heavy equipment that day, he began to feel sharp pain in his neck, left shoulder, and left arm. General weakness in his left shoulder, arm, and hand followed. Subsequently, Champagne's injury was diagnosed as an improving left C5 brachial plexopathy, a nerve injury. Champagne also was diagnosed with a respiratory disease and a spinal disorder.
On behalf of the Secretary of the Navy, the Physical Evaluation Board (board) determines service members' fitness for duty and rates their level of disability according to the Department of Veterans Affairs' Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. pt. 4. The Rating Schedule is a "schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries." See 38 U.S.C. § 1155 (Supp. IV 1992). "The ratings based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations." Id.
Champagne designated the Disabled American Veterans National Service Office as his representative in February 1992. Accompanied by an officer of his designated representative and a Navy attorney, he appeared before a hearing panel of the board on April 7, 1992. His representative requested that the board find him unfit for duty and rate him under Rating Schedule codes "sixty-six zero two at ten percent [for his respiratory disease], eighty-five eighteen at ten percent [for his C5 brachial plexopathy], and fifty-two ninety at ten percent [for his spinal disorder] with an overall thirty percent disability." The board found Champagne unfit for duty under 10 U.S.C. § 1203 (1988 & Supp. IV 1992) and rated his respiratory condition at ten percent under Rating Schedule code 6602. The board did not rate his spinal disorder. In an enclosure to its decision dated April 24, 1992, the board additionally discussed Champagne's nerve injury:
The dominant left shoulder nerve impairment is minimal according to medical record entries but is also considered unfitting afloat due to weakness. The mild nerve damage is ratable at 0% disability under [Rating Schedule code] 8518, for the circumflex nerve. The physical examination reveals full shoulder range of motion bilaterally, full cervical range of motion, minimally decreased sensation in the left shoulder external rotators, and slightly decreased strength in the left C5-7 dermatomes. Imaging of the left shoulder is normal. . . . The shoulder weakness and discomfort is due to the nerve damage.
Ratings under code 8518, which fall under the heading "Circumflex nerve," range from fifty percent for complete paralysis where "abduction of the arm is impossible outward rotation is weakened" to zero percent for mild "incomplete paralysis." 38 C.F.R. § 4.124a. Incomplete paralysis "indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, moderate degree." Id. Thus, Champagne received a ten percent combined disability rating. Pursuant to 10 U.S.C. § 1203, the Navy separated him, effective August 3, 1992, with $72,784.80 in severance pay.
In 1993, the Department of Veterans Affairs evaluated Champagne's record to determine his eligibility for veterans' benefits. Unlike the Navy, the department in part rated Champagne's C5 brachial plexopathy at twenty percent under Rating Schedule code 8510. Code 8510 falls under the heading "Upper radicular group (fifth and sixth cervicals)," and its ratings range from seventy percent for complete paralysis in which "all shoulder and elbow movements lost or severely affected hand and wrist movements not affected" to twenty percent for mild incomplete paralysis. 38 C.F.R. § 4.124a. If the Navy had rated his brachial plexopathy at twenty percent under code 8510 (and his respiratory disease at ten percent), Champagne would have received a combined rating of thirty percent and been eligible for retirement pay, which may exceed a severance payment. See 10 U.S.C. §§ 1201-02.
He filed suit in the United States Court of Federal Claims in 1994, challenging, among other things, the Navy's rating of his brachial plexopathy. The trial court held that the Navy's disability rating was neither arbitrary, capricious, unsupported by substantial evidence, nor contrary to applicable statutes or regulations, and it entered judgment in favor of the United States. Discussion
We review the Court of Federal Claim's summary judgment de novo. Foley Co. v. United States, 11 F.3d 1032, 1034 (Fed. Cir. 1993). Thus, the board's rating shall stand unless it is arbitrary, capricious, unsupported by substantial evidence, or otherwise contrary to ...