Allen v. Brown

7 Vet. App. 439, 1995 U.S. Vet. App. LEXIS 218, 1995 WL 112022
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 17, 1995
DocketNo. 93-245
StatusPublished
Cited by454 cases

This text of 7 Vet. App. 439 (Allen v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Brown, 7 Vet. App. 439, 1995 U.S. Vet. App. LEXIS 218, 1995 WL 112022 (Cal. 1995).

Opinions

KRAMER, Judge, filed the opinion of the Court. FARLEY, Judge, filed a dissenting opinion in which NEBEKER, Chief Judge, joined. HOLDAWAY, Judge, filed a separate dissenting opinion.

KRAMER, Associate Judge:

The appellant, Alfred E. Allen, appeals a November 19, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) which denied entitlement to service connection on a secondary basis for osteoarthritis of both hips and of the left knee. The Court has jurisdiction under 38 U.S.C. § 7252(a). For the reasons set forth below, the BVA decision is vacated, and the matter is remanded for proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The appellant had active service from November 1955 to October 1957. Record (R.) at 94. His induction examination was normal. R. at 11-12. Service medical records reveal that in February 1956, the appellant sustained a strain of the paraspinal muscles without any evidence of fracture or dislocation. R. at 38, 43, 46, 71, 88. His separation examination, conducted on August 26, 1957, was normal. R. at 67-68. On August 28, 1957, the appellant sustained a sprain of the medial collateral ligament of the right knee. R. at 52-66.

[441]*441In August 1967, a VA regional office (RO) denied entitlement to service connection for residuals of a right knee injury, and the appellant did not appeal. R. at 110. Although a February 1988 RO decision once again denied entitlement to service connection for residuals of a right knee injury (R. at 110), the BVA determined that the evidence presented since the unappealed August 1967 rating decision warranted a finding of service connection for residuals of a right knee injury (R. at 113). In June 1989, the RO assigned a 20% rating for traumatic arthritis, right knee, under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257 (1988). R. at 115.

In September 1989, the appellant’s service representative sent the following letter to the RO:

The above-named veteran contacted our office requesting an increase for his ser-viee[-]connected right knee condition. He is having a great deal more limitation of motion and pain.
Also, his left hip and left knee are being affected because of favoring his right knee. At his last VA exam, the doctor informed him that because of his service connected right knee, his gait was the primary reason for his left leg problems.
Therefore, we wish to file a claim for service connection for his left hip and knee disability under 38 C.F.R. [§] 3.310 [1989].

R. at 117. That same month, a VA official made the following notation on a VA Form 21-2507, Request for Physical Examination:

The veteran claims left hip & left knee problems are directly due to or proximately the result of his [service-connected] right knee condition. Are they, or are they merely aggravated by the [service-connected] right knee condition?

R. at 119 (emphasis added). A VA radiologic consultation report, also dated in September 1989, revealed diagnoses of: (1) degenerative joint disease (DJD) in both knees; (2) sclerosis, posteromedial cortex of right femur; (3) DJD in both hips; (4) prostatic calcifications; and (5) atherosclerotic vascular disease. R. at 125. In October 1989, the appellant’s service representative informed the RO that the appellant wished “to include service connection for both of [his] hips to [sic] his claim for service connection due to [DJD].” R. at 123. A VA orthopedic examination report from Dr. Merle McAlevy, also dated in October 1989, revealed the following impressions:

1) Post Traumatic Osteo Arthritis (R) knee — advanced.
2) Osteo Arthritis (L) knee and both hips — Note: cannot determine for certain if caused by # 1, but condition is definitely aggravated by [service-connected] Arthritis (R) knee.

R. at 133 (emphasis added). In December 1989, the RO denied entitlement to service connection for the appellant’s left knee and bilateral hip conditions on the basis that these disabilities were “not proximately due to or the result of the veteran’s service-connected right knee condition.” R. at 141. The RO also denied an increased rating for the right knee condition. R. at 139.

Shortly after the RO issued its December 1989 rating decision, the appellant, through his representative, requested reconsideration of the decision, noting that the October 1989 VA examination report indicated that his “arthritis of the right knee aggravated his hips and left knee.” R. at 143. He stated that if reconsideration was not possible, then the RO should accept the letter as a Notice of Disagreement (NOD). Id. He also supplied the following quotation from MERCK Manual 1,196 (14th ed. 1982):

Biomechanical stresses may lead to chon-drocyte damage and proteolytic enzyme release resulting in articular cartilage degeneration. Osteoarthritis develops when cartilage repair does not keep pace with degeneration. Osteoarthritis may be secondary to chronic trauma or underlying joint disease. Prevalence is greater in men over age 45.

Id. His correspondence was accepted as an NOD, and the RO issued a Statement of the Case (SOC) on the issue of secondary service connection in February 1990. R. at 145-49. Also in February 1990, the appellant submitted a VA Form 1-9, Appeal to the BVA. He stated that the appeal should be resolved in his favor for three reasons: (1) his gait was affected by his service-connected injury; (2) the VA examiner stated that the appellant’s [442]*442non-service-connected conditions were definitely aggravated by his service-connected right knee condition; and (3) the VA examiner stated that,he could not say that the arthritis of the left knee and both hips was not caused by the service-connected right knee condition. R. at 151.

A February 1990 VA progress note revealed an impression of DJD in the left knee and the hips. R. at 163. A March 1990 VA radiologic consultation report stated that x-rays of both knees showed “significant and severe degenerative changes bilaterally with the right greater than the left.” R. at 167. The examiner also noted sclerosis of the distal femoral metaphysis of no great clinical significance. Id. An April 1990 VA progress note stated that a February 1990 x-ray had shown severe degenerative changes in both knees, right greater than left, and degenerative changes bilaterally in both hips. R. at 155. In May 1990, the RO confirmed and continued the 20% evaluation of the right knee. R. at 171. The RO also continued to deny entitlement to service connection for left knee and hip conditions on the basis that “no etiology for the arthritis [of the left knee and hips] was offered.” Id. (Emphasis added.) In June 1990, the RO issued a Supplemental SOC (SSOC) on the issue of secondary service connection. R. at 174-76.

In August 1990, the appellant’s representative submitted a statement to the BVA reiterating that Dr. McAlev/s October 1989 diagnosis had indicated that the appellant’s left knee and hip conditions were “definitely aggravated” by the service-connected right knee condition. R. at 182. In September 1990, Dr. James F.

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Bluebook (online)
7 Vet. App. 439, 1995 U.S. Vet. App. LEXIS 218, 1995 WL 112022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-brown-cavc-1995.