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Significant Anthrax Immunization Complications Court Decision in favor of a Vet (Docket for 04A988)

We FINALLY won!

I had been a Medical Officer on active duty from 05-Jul-1989 until I separated on 31-Dec-1996. On 24-Sep-93, I got the anthrax shot - with neither my knowledge nor consent - during a readiness training exercise. (I was in a mobility slot at the time, deputy commander of a Flight Surgeon Medevac Team at Brooks AFB, TX.) Less than a year after receiving the shot, I began to have problems that culminated in my waking up with severe, painful left-hand extensor tenosynovitis on 29-Oct-1994. I reported to Rheumatology sick call the following Monday, 31-Oct-1994. (I figured out later what I had received after seeing the _60_Minutes_ segment on the Dover folks, Googling "anthrax vaccine", finding Dr. Nass's website and "Anthrax-No".) Over the course of the next two years, I progressed to symmetric and systemic manifestations of what was eventually diagnosed as "seronegative rheumatoid arthritis" (SNRA). [This was later refined to Adult-Onset Still's Disease (AOSD), based on subsequent findings.] Finding out that IU was sick, my boss's boss referred me for a fitness-for-duty MEB-PEB, , even though I then had the presumptive diagnosis of SNRA. The Orthopedic Hand Service (that had performed a total left-hand extensor tenosynovectomy a couple months earlier and that knew of my Rheumatologist's SNRA suspicions) referred me with the diagnosis of "wrist pain". The MEB rated me at 10%, and the informal PEB wanted me out of the Air Force. I requested a formal PEB, and it offered to discharge me with a 10% Disability rating, and $40,000 severance pay. I politely indicated where they could put that offer, and I opted to return to duty to finish out my contract that would expire on 31-Dec-1996. I figured that this would give me the opportunity to accumulate a significant subsequent medical record demonstrating disease progression and complications, and significantly strengthen my position should I need to meet another MEB-PEB, or possibly even litigate. I presented to my final MEB-PEB with the diagnosis of SNRA, and they returned me to duty, in spite of SNRA being incompatible with "continued military service". I thought I knew the system until I learned then that there was a DoD Regulation stating unambiguously that Medical Officers and General Officers were "presumed fit", and therefore not eligible to be "retired for physical disability". In the interim, I had trapped the Air Force into contradicting itself as well as committing a variety of procedural errors. I also had a seven centimeter thick medical record. All of these were to be to my benefit. I became a Life Member of the Disabled American Veterans (DAV) before I separated.

Out of the Air Force, I wasted no time plugging myself into the VA health care system. The DAV took care of the paperwork, and about 10 weeks after separating, I received a rating of 50% Service-Connected Disability from the VA. A few weeks later, after a "C&P" exam, this increased to 20%. I had a lot of things to do then, not the least of which was to get the Disability Retirement I knew should by rights be mine, DoD Regulations be damned!

We skip ahead two years, omitting the irrelevant stuff. In the interim, I'd moved from San Antonio, TX to Seattle, WA. I got the necessary forms together to launch my appeal, quickly realizing that this effort deserved to be displayed prominently under the heading of "DON'T TRY THIS AT HOME!" I contacted the Univeristy of Washington School of Law's Legal Clinic, and requested they refer me to an attorney who was skilled at such things. They referred me to the best attorney in the business.

In late 1999, my attorney, J. Byron Holcomb, and I petitioned the Air Force Board for Correction of Military Records (AFBCMR) to get me the Disability Retirement that was rightfully mine. The AFBCMR of course rejected my petition, citing the DoD "presumption-of-fitness" regulation. We appealed to the United States Court of Federal Claims (USCoFC). Case law regarding Veterans' disability was a reeking miasma of contradictions, ambiguities, and plain stupidity. (There were opinions that used "separation", "retirement", and "discharge" interchangably!) The Air Force/Government seized upon these to state that the CoFC didn't have the jurisdiction to grant me the declaratory relief I required to get my disability retirement, and in any event, no federal court had the authority to hear my complaint because of its essential military nature (my complaint wasn't judiciable) of civilian federal courts to hear appeals of courts martial. This has been the case since the 1830s, and is very much settled law. The Air Force wanted to stretch it to cover disability retirements and other Veterans' money-mandating claims against the government. The CoFC saw these issues as beyond its purview, and granted the government's motion to dismiss my complaint on those grounds. (The CoFC specifically declined to address the merits of my claim in dismissing it earlier. We have a very solid case on the merits.)

Byron and I appealed to the the Court of Appeals for the Federal Circuit (CAFC). On 22-Apr-2004, after a year and a half of deliberation (and much original scholarship), the initial CAFC three-Judge panel handed down its decision in FISHER v. U.S., deciding in our favor on every issue we raised. One Judge dissented, and on this basis the Department of Injustice requested _en_banc_ reconsideration (by all 23 CAFC Judges) of FISHER v. U.S. a few weeks later. After less than a year of additional consideration, the CAFC handed down its UNANIMOUS _en_banc_ decision in FISHER v. U.S. on 09-Mar-2005, again in our favor on every issue, even chastizing the government for some of the arguments it raised in its appeal. The Department of Injustice (DoI) then decided to petition to the Supreme Court of the United States for a Writ of Certiorari; appealing FISHER v. U.S. to the Supreme Court (thus "Docket for 04A988", the docket number for the government's petition). On 31-May-2005, the DoI requested a 30-day extension of the automatic 90 days an appellant gets to petition following a decision (from 07-Jun-2005 to 07-Jul-2005). We assented, and the Court granted the extension. On 27-Jun-2005, the DoI requested another 30-day extension. This time, we objected, stating that the DoI had already delayed too long our returning to the United States Court of Federal Claims to have my complaint heard on its merits. On 30-Jun-2005, the Chief Justice denied the request for extension, so FISHER v. U.S. became case law on 07-Jul-2005tragic as al Qa'ida's attack on London.

So now, ALL Veterans have DIRECT access to the Federal Courts should they desire to appeal the decision of any military board denying the Veteran a claim for money damages. This is specific to such claims. Other types of claims, such as for reconsideration of denied promotions, reinstatement to active duty, and others, are subjects of ongoing litigation. (With this, I've exhausted pretty much ALL my limited legal knowledge. For those of you with questions, I invite you to consult with Byron Holcomb, bylaw@aol.com ;

1-206-842-8429.)

We WILL win everything connected with all the anthrax immunization has done to each of us. It took Byron and me 5 years to win FISHER v. U.S., so don't give up!

Frank

Frank Fisher, MD

LTC USAFR MC FS

Service-Connected 100% Disabled Veteran (Anthrax Immunization Complications)