Free Amended Complaint - District Court of Federal Claims - federal

Case 1:08-cv-00092-SGB

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Filed 05/13/2008

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United States Court of Federal Claims
Sharon L. Myrick, DDS 804 Musket Trial Nashville, TN 37217 Plaintiff v. United States of America Defendant : : : : : : : Case No: 1:08-cv-92 SGB : : : : :

Plaintiff's First Amended Complaint For Breach of Federal Statutes
Comes now Sharon L. Myrick, DDS (Myrick), by and through undersigned counsel, and sues the United States of America, (Defendant), on the grounds hereinafter stated:

Jurisdiction
1. This Court has jurisdiction pursuant to: 42 U.S. C. § 212, et seq., 28 U.S.C.§§ 1346, 1491(a)(1), 2401(a), 2501, and 10 U.S.C.§ 1201.

Parties
2. Myrick was a resident of the State of Tennessee, a Commissioned Officer in the United States Navy, and a member of the Commissioned Corps., in the United States Public Health Service, (PHS), at all times relevant to this cause of action. 3. The Defendant is an organization of states comprising a centralized government, with its Capitol located in Washington, D.C., under the leadership of its elected President, George W. Bush.

Brief Statement of The Case
4. Myrick is a dentist. She was a Lt. Commander in the Commissioned Corp of the PHS. On June 15, 2007, she sent a letter to the PHS resigning her commission and requested medical retirement. Attachment # 1. 1

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5. A Medical Review Board (MRB) was convened on September 27, 2007, to consider Myrick's request for medical retirement. On October 16, 2007, the MRB found Myrick was not fit for duty, and that she should be separated, without a medical disability, or medical benefits, finding: Myrick failed to disclose the existence of a disabling condition, prior to her call to active duty, that she failed to disclose the existence of other significant chronic conditions, such as knee pain, that she refused to allow the Medical Affairs Branch to speak to her neurologists, and that she suffered from Multiple Sclerosis, (MS), which was not aggravated by her service, but a natural progression of the disease. Attachment # 2. 6. Myrick appealed MRB's findings, to the Medical Affairs Branch (Appeal Board) arguing there was insufficient evidence to support MRB's findings. On December 6, 2007, the Appeal Board held a hearing, on Myrick's appeal. She was represented by counsel and testified on her own behalf. Immediately after the hearing, the Appeals Board went into executive session and approved MRB's findings. The Acting United States Surgeon General approved the Appeal Board's findings on January 2, 2008; and Myrick's separation was effective January 9, 2008 without a medical disability. Attachment # 3.

Facts
7. Myrick received her dental degree from Meharry Medical College in 1984. Upon graduation, she joined the Navy and served as a commissioned officer, from 1986 to 1989. 8. Before joining PHS, PHS assigned a physician to give Myrick an extensive and rigorous physical test, to determine if she was fit to perform her duties. The test was performed at the Veterans Administration Hospital in Nashville, Tennessee. She passed PHS' test and she was assigned to serve as a United States Dental Officer in a dental clinic located in Great Lakes, Illinois from October 1985 to July 1988. She left the Navy, in 1988, and went on inactive status, but returned to the PHS, and served as a commissioned officer, with the Indian Health Service, in Acoma, New Mexico from November 1996 to October 1998. Her last assignment, with the PHS began in April of 2005. She was assigned as a Naval Reserve Dental Officer at the Naval Reserve Center, in Chattanooga, TN, but was also assigned to serve as a Senior Public Health 2

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Analyst, with the Bureau of Health Profession's Division of Medicine and Dentistry, in PHS' headquarters in Rockville, Md. 9. Myrick testified, at the Appeals Board hearing, that in 2002, her health was fine, that she enjoyed a full life, danced, swam, ran, took the Navy's PT test, which required her to run a mile and half, do sit-ups, push-ups, and take a swim test. She passed them with an outstanding rating. 10. Myrick further testified, at the Appeals Board hearing, that she responded truthfully to all of the questions asked of her, both orally and on any forms given to her to complete. 11. When Captain Wolf, of the Appeals Board, asked Myrick if she knew she had MS in 2004? She responded yes, but testified that she did not have any of its symptoms. Captain Wolf responded, the form does not ask about symptom, only if you ever had MS. Myrick testified, in response, that even though she was told she had MS, the fact that she lived a full life, did not have any MS symptoms, she did not believe she had the disease. When Captain Wolf asked Myrick, if she was aware that MS symptoms can wax and wane, and while she might not be symptomatic at the time that she completed the medical report history, and that MS could reemerge at any time? Myrick testified, in response, that she did not know that, that she was not familiar with any of MS's symptoms, did not read about it, and did not accept it as disease that she had. 12. With respect to the medical history form that Myrick completed, Captain Wolf wanted to know, why she did not check, question 15 (h) which asked if she had suffered from a neurological condition. Myrick testified, in response, that she did not see that it was a problem from which she suffered and felt it would be inappropriate to check the box. 13. MS is a disease whose symptoms may not be recognized for sometime. Captain Wolf, a member of the Appeals Board agrees with this statement. He also agrees that MS symptom's may not have presented themselves when Myrick completed the medical history form.

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14. Myrick's testimony, at the Appeals Board Hearing was credible. She testified that when she joined the PHS in 2005, she passed its rigorous entry physical, given to her by a physician chosen by PHS, that she passed the Navy's PT test, twice a year, with an outstanding rating, that she did not know MS' symptom's, and because of her active life style, she believed her MS diagnosis was wrong. This being the case, the Appeal Board's approval of MRB's findings was: arbitrary, capricious, contrary to the law, and unsupported by the evidence.

Count I Breach of Federal Statutes: 42 U.S.C. § 212, et seq, and 10 U.S. C. § 1201, et seq.,
15. Myrick incorporates, by reference, the allegations in paragraphs 1-14, into this Count as fully as if plead herein. 16. When Myrick joined the PHS in 2005, the Defendant promised her, that if she qualified, she could retire, pursuant to 42 U.S.C. § 212, et seq, and 10 U.S. C. § 1201, et seq., with a medical disability retirement or severance pay. On June 15, 2007, Myrick sent a letter to the PHS resigning her commission and requested medical retirement. When she submitted her resignation, she was fully qualified for separation with a medical disability, but the Defendant, through its agent, the PHS, denied Myrick's request. The denial was: arbitrary, capricious, contrary to the law, and unsupported by the evidence. 17. As a direct result of the Defendant's breach, of the herein cited federal statutes, Myrick is being deprived of a medical disability retirement and the payments she would be entitled to receive pursuant to: 10 U.S.C. § 1201, et seq. Wherefore the premises considered, Myrick prays; that this Court will issue an order reversing the Medical Review Board and the Medical Affair's Branch Appeal Board's findings, and remand this case with instructions to award Myrick medical disability payments pursuant to: 42 U.S.C.§ 212, et seq., and 10 U.S.C. § 1201 et seq.

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Respectfully submitted, s/sWendell C. Robinson Wendell C. Robinson Counsel for Plaintiff 4308 Georgia Avenue, N.W. Washington, D.C. 20011 202-223-4470

Certificate of Service
I hereby certify that on May 13, 2008, a copy of this amended complaint was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/s Wendell C. Robinson Wendell C. Robinson

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