determination. Indeed, there is not sufficient evidence that even had the records been adjusted entirely as plaintiff now demands, this would have triggered any different award by the VA. The claim for damages is accordingly too speculative.
In view of the changes in the records here ordered, plaintiff is free once again to raise his claims before the VA. It in turn is free to change its ruling as it may deem fit on the basis of the now-corrected social history. See 38 C.F.R. § 19.155 (1979). If erroneous conclusions were reached due to the former posture of the records, the VA's own careful reconsideration can remedy prior prejudice. For the Court to speculate as to how the VA would have determined these issues and base damage awards thereon would improperly interfere with the clear congressional intent to vest unreviewable discretion in the hands of the VA itself. See generally Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974); Cunningham v. United States, 212 Ct. Cl. 451, 549 F.2d 753 (Ct.Cl.1977).
Finally, plaintiff's argument that the ABCMR unlawfully abused its discretion in not correcting his diagnosis
must fail. The standard of review here is more limited than the De novo approach sanctioned by the Privacy Act. In order to reverse, the Court would have to find that the ABCMR's decision was arbitrary, capricious or without foundation in the record. See Knehans v. Alexander, 184 U.S.App.D.C. 420, 566 F.2d 312 (D.C.Cir. 1977), Cert. denied, 435 U.S. 995, 98 S. Ct. 1646, 56 L. Ed. 2d 83 (1978); Horn v. Schlesinger, 514 F.2d 549 (8th Cir. 1975). This the Court cannot do. Even if substitutions and deletions in the medical files were permissible, they were not the required or the only possible mode of proceeding. Following a full evidentiary hearing, the ABCMR determined that plaintiff's files had been sufficiently supplemented and that the 1951 diagnosis need not be expunged. This decision was not without rational support in the record.
It remains the case that the very doctor whose professional opinion was essential to the original discharge recommendation has now revised his judgment in the light of new evidence. This reappraisal, while not effective as a repudiation, must be viewed along with the opinions of the two impartial experts who identified a clear worsening of plaintiff's condition during his period of military service. There is also now a complete absence of evidence that plaintiff displayed any pre-service symptoms of mental disorder. Although the 1951 diagnosis cannot be expunged, the Court views its continuing reliability as open to serious question. A renewed application to the VA may now be successful.
Plaintiff's motion for summary judgment is granted with respect to amending the factual errors in his medical records, as set forth in note 14, above. In all other respects plaintiff's motion is denied; defendant's motion for summary judgment is granted except as to the aforementioned factual errors.