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POWELL v. CELEBREZZE

June 8, 1964

VERDO H. POWELL, PLAINTIFF,
v.
ANTHONY J. CELEBREZZE, SECRETARY OF HEALTH, EDUCATION AND WELFARE, DEFENDANT.



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 bleeding.

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, stated:

  "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
  48 hours.

  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
    months (3-22-61)."

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 stated:

    "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 ...

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