The misgivings in other cases seem to have been related only to the probative value of the evidence proffered by the plaintiff. See Kingsley v. United States, 172 Ct.Cl. 549, 557 (1965); Hutter v. United States, 345 F.2d 828, 832, 170 Ct. Cl. 517, 523-524 (1965); Furlong v. United States, 153 Ct.Cl. 557, 566 (1961). In Kingsley and Furlong the court agreed that medical testimony based on examinations made long after separation may shed little light on a claimant's condition at the time he entered or was discharged from the service.
the court had followed this practice, including: Russell v. United States, 183 Ct.Cl. 802 (1968); Davis v. United States, 181 Ct.Cl. 1095 (1967); Reese v. United States, 180 Ct.Cl. 932 (1967); Dayley v. United States, 180 Ct.Cl. 1136 (1967); Brozik v. United States, 180 Ct. Cl. 546 (1967); Beckham v. United States, 179 Ct.Cl. 539, 375 F.2d 782 (1967); Cooper v. United States, 178 Ct.Cl. 277 (1967); Harris v. United States, 177 Ct.Cl. 538 (1966); Imhoff v. United States, 177 Ct.Cl. 1 (1966); Hoppock v. United States, 176 Ct.Cl. 1147 (1966); Wood v. United States, 176 Ct.Cl. 737 (1966); Powers v. United States, 176 Ct.Cl. 388 (1966); Hoffman v. United States, 175 Ct.Cl. 457 (1966); Walters v. United States, 175 Ct.Cl. 215, 358 F.2d 957 (1966); Farrar v. United States, 173 Ct.Cl. 1008, 358 F.2d 965 (1965); Merson v. United States, 173 Ct.Cl. 92 (1965), remanded to commissioner for additional findings, 173 Ct.Cl. 139, 351 F.2d 619 (1966); Kingsley v. United States, 172 Ct.Cl. 549 (1965); Hutter v. United States, 170 Ct.Cl. 517, 345 F.2d 828 (1965); Kurfess v. United States, 169 Ct.Cl. 486 (1965); Boland v. United States, 169 Ct. Cl. 145 (1965); Smith v. United States, 168 Ct.Cl. 545 (1964); Woodard v. United States, 167 Ct.Cl. 306 (1964); Bevins v. United States, 166 Ct.Cl. 547 (1964); Ferguson v. United States, 166 Ct.Cl. 310 (1964); Grubin v. United States, 166 Ct.Cl. 272, 333 F.2d 861 (1964); Patten v. United States, 161 Ct.Cl. 131 (1963); Dickson v. United States, 159 Ct.Cl. 185 (1962); Rae v. United States, 159 Ct.Cl. 160 (1962); Harper v. United States. 159 Ct.Cl. 135, 310 F.2d 405 (1962); Nichols v. United States, 158 Ct.Cl. 412 (1962); McAulay v. United States, 158 Ct.Cl. 359, 305 F.2d 836 (1962), cert. denied. 373 U.S. 938, 83 S.Ct. 1543, 10 L.Ed.2d 693 (1963); Hoen v. United States, 157 Ct.Cl. 235 (1962); Lipp v. United States, 157 Ct.Cl. 197, 301 F.2d 674 (1962), cert. denied, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963); Salz v. United States, 157 Ct.Cl. 172 (1962); Adams v. United States, 156 Ct.Cl. 289 (1962
Plaintiff asserts that the Navy was arbitrary or capricious in not following the VA's determination that plaintiff was entitled to at least a 60 percent disability. This, however, is an inadequate ground for this court to overturn the Navy's decisions. This court has stated that although the VA's determination of a plaintiff's condition may be relevant evidence, Hutter v. United States, 345 F.2d 828, 831, 170 Ct.Cl. 517, 522-23 (1965), it is in no way binding upon the court nor conclusive on the issue of disability retirement. Unterberg v. United States, supra; Merson v. United States, supra; Stephens v. United States, supra.
To prevail, plaintiff must show that the decision of the ABCMR was ". . . arbitrary, capricious, unsupported by evidence, or contrary to the laws and regulations . . . ." Hutter v. United States, 345 F.2d 828, 829, 170 Ct.Cl. 517 (1965). Following production of a mass of documents including plaintiff's medical records and numerous affidavits executed by plaintiff and others, defendant moved for summary judgment.
Armstrong v. United States, 205 Ct.Cl. 754 (1974). A hearing is not required by statute, but is within the BCMR's discretion. Armstrong, supra; Newman v. United States, 185 Ct.Cl. 269 (1968); Hutter v. United States, 345 F.2d 828, 170 Ct.Cl. 517 (1965). If a hearing is granted, the Secretary has the discretion to determine the scope of review. See, Biddle v. United States, 186 Ct.Cl. 87 (1968).
Plaintiff has cited no statute or regulation requiring a Correction Board hearing or other than conclusionary findings by the Surgeon General or the Board. However, the facts of a case can be such that this common administrative procedure could not stand the test of legality because it would be arbitrary and unreasonable. Farrar v. United States, 358 F.2d 965, 173 Ct.Cl. 1008 (1965); Hutter v. United States, 345 F.2d 828, 170 Ct.Cl. 517 (1965); Weiner v. United States, 148 Ct.Cl. 445 (1960). This was found to be the situation, for instance, in Smith v. United States, 168 Ct.Cl. 545 (1964).
This court has never held that a board's action is arbitrary merely because it relied on an ex parte statement from The Surgeon General. If, however, the statement was inaccurate and the board relied on it, we have declined to uphold the denial of relief. See, e.g., Hutter v. United States, 345 F.2d 828, 831-833, 170 Ct.Cl. 517, 524-525 (1965). Current Air Force Regulations make all the facilities of staff offices available to the Correction Board.
Its conclusion, when based on a medical examination as here, is entitled to great weight. Hutter v. United States, 345 F.2d 828, 831, 170 Ct.Cl. 517, 523 (1965). See, findings of fact, 3-9, inclusive.
Naturally, we do not preclude the court, if the circumstances as they are developed direct that course, from ultimately declining a declaration as a matter of discretion. See, e.g., Hutter v. United States, 345 F.2d 828, 170 Ct.Cl. 517 (1965); Merriott v. United States, 163 Ct.Cl. 261 (1963), cert. denied, 379 U.S. 838, 85 S. Ct. 76, 13 L.Ed.2d 45 (1964); Egan v. United States, 158 F. Supp. 377, 141 Ct. Cl. 1 (1958); Friedman v. United States, 158 F. Supp. 364, 141 Ct.Cl. 239 (1958); Capps v. United States, 137 F. Supp. 721, 133 Ct.Cl. 811 (1956); Lemly v. United States, 75 F. Supp. 248, 109 Ct.Cl. 760 (1948), and cases cited. The defendant does contend that this is a suit "with respect to federal taxes" and thus excluded from the Declaratory Judgment Act.
See, e.g., Kingsley v. United States, 172 Ct.Cl. 549 (1965); Boland v. United States, 169 Ct.Cl. 145 (1965); Patten v. United States, 161 Ct.Cl. 131 (1963); Nichols v. United States, 158 Ct.Cl. 412 (1962); Hoen v. United States, 157 Ct.Cl. 235 (1962); Furlong v. United States, 153 Ct.Cl. 557 (1961); Towell v. United States, 150 Ct.Cl. 422 (1960). See, e.g., Furlong, supra; Boland, supra; Towell, supra; Kingsley, supra; Smith v. United States, 168 Ct.Cl. 545 (1964); Hutter v. United States, 345 F.2d 828, 170 Ct.Cl. 517 (1965); Lawler v. United States, 169 Ct.Cl. 644 (1965); Wiley v. United States, 165 Ct.Cl. 261 (1964); Wesolowski v. United States, 174 Ct.Cl. 682 (1966); Harper v. United States, 310 F.2d 405, 159 Ct.Cl. 135 (1962). In almost all cases, the taking of de novo evidence has been done without objection by either side and without comment by the court.