The opinion of the court was delivered by: John E. Miller, Chief Judge.
Plaintiff, after having exhausted all administrative remedies,
seeks review of a final decision of the defendant Secretary
denying his disability benefits under Title 42 U.S.C. § 401 et
seq. The case is now before the court on cross motions for
summary judgment. The parties have submitted briefs in support of
their respective contentions, which the court has considered
along with the record.
The pleadings, administrative transcript, and briefs disclose
the following facts which are not disputed. The plaintiff was
born June 13, 1914, in Patmos, Arkansas. He attended school
through the 12th grade at Spring Hill, Arkansas. He was first
employed in 1937 by Dravo Contracting Company of Pennsylvania.
His work activity consisted of bending sheet metal and running an
overhead crane. This employment lasted one year. He was next
employed by Nevill Tire Company in Pennsylvania as a pipe fitter
and repair worker for one year. For two years he was employed by
Continental Oil Company in Neoplatt, Louisiana, as a pipe fitter
and laborer with some experience running a paraffin cleaning
machine. Because of his pipe fitting experience he was employed
next by Nichols Drilling Company as a roughneck on drilling rigs
at Neoplatt. He worked in and around the oil fields of Neoplatt,
Louisiana, area until he entered the Army. While in military
service 3½ years, he served primarily as a military policeman.
After his release from the service he spent two more years
roughnecking in the oil fields. He then farmed for four years and
later returned to the oil fields where he spent the next five to
six years. While working in the oil fields in the Neoplatt,
Louisiana, area in 1960, he was admitted to the VA Hospital at
Shreveport, Louisiana, to determine the cause of profuse rectal
Upon entry into the VA Hospital and examination of the
plaintiff, he was found to be suffering from rectal cancer, and a
colostomy was recommended. On May 17, 1960, the plaintiff's
entire colon was removed. Dr. Joel W. Williamson, who performed
the operation, in a VA Clinic Report, dated July 21, 1960,
"Patient was typed and matched for three units of
blood; and on 17 May 60, an abdominoperineal
procedure was done without too much difficulty. There
was so much sigmoid colon involved that the colon had
to be removed in two segments, as described in the
operative report and pathology report.
Postoperatively, the patient was maintained on
intravenous fluids, electromytes, and vitamins for
the first three postoperative days. He also had Levin
tube and Wangensteem suction in place during this
time. The colostomy clamp was removed at the end of
Colostomy was then dressed as needed. At the end of
the first three postoperative days, patient was
started on graduated diet, which was slowly increased
to a regular type diet. Heat cradle and soaks to the
perineum were given, three times daily, as hygiene
measures. Patient was maintained on intravenous
Terramycin until he could tolerate it by the oral
route. Sedation in moderate amounts was given.
Patient began to run febrile elevations, and it was
thought that he might be developing a deep pelvic
abscess. Terramycin was discontinued and Declomycin
was started. Patient continued to be relatively
asymptomatic as to examination, but continued to run
temperature elevation. On 31 May 60, he developed a
severe thrombophlebitis of the left leg. He was
started on conservative measures, consisting of
elevation of leg on pillow, heat cradle to leg,
buccal Varidase, and antibiotics. On 2 June 60,
antibiotics were changed to Chloromycetin in
therapeutic doses. He continued to run temperature
elevation. Chloromycetin was discontinued on 13 June
60, as was Altafur, and Combiotic started. At this
time, patient had moderate diarrhea, which was
controlled with Kaopectate. On 13 June 60, patient
had mild chest pain. X-rays were suggestive of
pneumonitis, but in view of the thrombophlebitis, it
was thought that small pulmonary emboli were a
possibility. Patient was then started on maintenance
doses of Dicumarol. This therapy was continued, with
daily prothrombin times and prescribed amounts of
Dicumarol as indicated by the daily prothrombin time.
Prothrombin times were kept at a level of
approximately twice the normal value. This was
continued until the time of discharge.
Thrombophlebitis slowly subsided. Swelling of the leg
almost completely disappeared. Left leg was wrapped
daily with Ace bandages. Patient was gradually
ambulated in a wheel chair and then ambulated to
tolerance. He continued to have some swelling of his
lower left leg and foot after considerable walking;
however, this was painful to the patient. Perineal
wound continued to heal in from the depths outwards
and was almost completely healed at the time of
discharge. Colostomy is functioning properly, and
patient was fitted with a permanent type of colostomy
bag. Patient was instructed and advised to dilate
colostomy stoma with a lubricated gloved finger
periodically. He was also advised to continue
physical activity to tolerance while at home. He was
discharged CBOC on 7-21-60, and requested to return
to Tumor Board in two months (9-21-60)."
The VA clinical records also disclose two other entries made by
Dr. Williamson, which appear at page 88 of the transcript, in
which he stated:
"9-21-60 — Patient had abdominoperineal resection,
complicated postoperatively with thrombophlebitis
and phlebothrombosis, in May, 1960, and was
discharged from the hospital for follow-up in July,
1960. He has done well while at home except for
some swelling of the legs. Patient wears Ace
bandages, and it is recommended that he wear
elastic stockings. Perineal incision is nicely
healed. Colostomy is functioning well. Abdominal
examination otherwise is negative. Weight is 191
lb. He is to return from Tumor Board follow-up in
three months (12-21-60).
"12-21-60 — Patient is relatively asymptomatic in
regard to abdomen and perineum. Colostomy is
functioning well and is dilated digitally by
patient every other day. He has not had any
digestive disturbances or any abdominal symptoms.
"Exam. of abdomen is negative. It shows
well-functioning colostomy and well-healed
abdominal incision. There are no palpable masses in
the liver or under the abdominal wall.
"Patient continues to have some difficulty with
pain in legs, as well as swelling of legs. This is
worse in left leg. It responds satisfactorily to
rest and elevation. Return for Tumor Board in three
On September 22, 1961, plaintiff was given a consultative
examination in connection with his disability application by Dr.
Richard J. Schneble of Texarkana, Arkansas. In his report to the
State Department of OASI dated September 23, 1961, Dr. Schneble
"Physical examination showed a somewhat obese white
male, who appeared to be in good health, having a
height of 5 feet 7 inches, weight 193, temperature
98.2. The blood pressure was 150/90 in both arms,
pulse rate was 92. The pupils were round and equal
and reacted normally. The fundi were normal. The
nasal septum was deviated to the left. Examination of
the ears, mouth and throat were normal. Carotid
pulsations were normal. The thyroid was not enlarged.
There were no enlarged lymph nodes. The lungs were
clear to percussion and auscultation. The heart was
normal in size. The rhythm was regular and no murmurs
were heard. Examination of the abdomen showed a
colostomy on the left side. There was no enlargement
in the liver. There were no abdominal masses. The
perineal scar was well healed. There was no
induration or drainage. I was unable to palpate any
masses below the scar. The pulsations in the femoral,
dorsalis pedis and posterior tibia arteries were
present. There was some firm pitting edema of the
ankles. There were no apparent varicose veins.
Homan's sign was negative but dorsiflexion of the
foot caused some pain in the ankles. Knees had a
normal range of motion with no significant
crepitation. Rotation of the hip joints did not cause
any pain and straight leg raising did not cause any
pain. Veins on the inner aspect of the left upper arm
were somewhat prominent. There was a scar on the left
lower chest in back from a bullet injury in 1950.
"At this time Mr. Powell appears to be in good
health regarding his heart, lungs, colostomy, blood
pressure and general health. There appears to be no
evidence of recurrence of the cancer at this time.
His weight has been reasonably steady the past few
months. His appetite is excellent. The bowel
movements are fairly normal for a colostomy. Chest
X-ray shows no evidence of metastasis. He does have
some slight firm pitting edema of the ankles which I
presume is due to a residual of his phlebitis. The
joints showed minimal arthritic changes. Since Mr.
Powell has not been on any medication, it might be
advantageous for him to take some type of treatment
for his back and leg pains and to wear elastic
stockings more consistently for his legs."
Dr. Schneble's report does not include any opinion or finding
with respect to the limitation of plaintiff's physical and
occupational activities due to his physical impairments. His
objective findings are substantially in accordance with those
reflected in Dr. Williamson's clinical reports.
In a clinical report of the VA Hospital by Dr. Williamson dated
March 7, 1962, he stated:
"FINAL DIAGNOSES: 1. Adenocarcinoma of the rectum,
postoperative evaluation. No treatment required.
"2. Migratory thrombophlebitis involving both lower
extremities and left arm. T.I.
"3. Post-phlebitic syndrome, severe, with marked
swelling involving both ...