Beverly v. Brown

9 Vet. App. 402, 1996 U.S. Vet. App. LEXIS 737, 1996 WL 543387
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 19, 1996
DocketNo. 94-839
StatusPublished
Cited by7 cases

This text of 9 Vet. App. 402 (Beverly 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
Beverly v. Brown, 9 Vet. App. 402, 1996 U.S. Vet. App. LEXIS 737, 1996 WL 543387 (Cal. 1996).

Opinion

IVERS, Judge:

Herman U. Beverly appeals a June 1,1994, decision of the Board of Veterans’ Appeals (BVA or Board) denying both service connection for residuals of a left knee injury and an increased rating for residuals of a service-connected left wrist fracture, currently rated 10% disabling, and granting a 10% rating for the service-connected left wrist fracture on an extraschedular basis. Herman U. Beverly, BVA 94-08526 (June 1,1994). The Court has jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court will affirm the Board’s decision.

I. Factual Background

The appellant served on active duty in the United States Air Force from August 26, 1956, to August 25, 1964. Record (R.) at 19. Service medical records (SMRs) from that period show that three years prior to enlistment the appellant had injured his left knee in a fall from a tree. R. at 33. On his induction medical history report, he noted having had a “ ‘trick’ or locked knee.” R. at 31. During service, the appellant complained of continued left knee pain and finally underwent knee surgery on May 15,1957, to repair a torn medial meniscus. R. at 34, 36, 37. During a follow-up examination in August 1957, the physician noted that “reflexes of left knee reveal[] a full [range of motion] except for loss [of] 5-10 [degrees of] flexion.” R. at 39. The appellant was returned to full-time duty on August 15,1957. Ibid.

On November 21, 1957, the appellant underwent another physical examination in which the physician diagnosed him as having a “possible fracture [in the] left transverse process 5th cervical vertebra.” R. at 40, 83. The cervical injury was apparently the result of an automobile accident that occurred a few days before the exam. Ibid. The radio-graphic report showed “no evidence of bony trauma affecting the cervical spine.” R. at 83.

The appellant’s medical history also shows that he sustained a minor injury to his right knee in May 1958 while throwing a ball. R. at 44. The pain continued for several weeks, prompting the appellant to remark that “it pains so much that it keeps me awake at night.” R. at 45.

In late January 1960, the appellant fractured his left wrist while playing basketball. R. at 52. The fracture went untreated for several months. R. at 54. In May 1961, the appellant underwent bone graft surgery to repair the fracture in his left wrist. R. at 61-63. Approximately a year later, the appellant returned to the orthopedic clinic complaining of pain in the left hand and wrist. R. at 69. He was diagnosed with traumatic arthritis. Ibid. His discharge examination report noted a “[s]mall scar on medial left wrist [with] no loss of motion, strength[,] or function”, and a “[s]car medial aspect left knee.” R. at 21. The examiner’s notes reported that the appellant’s notation of a “trick” knee referred to the “left meniscecto-[404]*404my, 1957, no loss of motion, function[,] or strength of knee.” R. at 22, 23.

The appellant underwent surgery in October 1986 for a herniated intervertebral disk, nerve root compression, and lumbar spondy-losis. R. at 161-62. In January 1987, the appellant returned for a follow-up examina- • tion. R. at 165. Notes from that examination show that reflex activity in both the upper and lower extremities was normal and that, although his back was symptomatic, there was no increased discomfort in the lower back. Ibid. The appellant was diagnosed with low back disorder. Ibid.

On March 23, 1987, the appellant filed for non-service-connected pension for lower back problems. R. at 147-50. In June 1987, a VA regional office (RO) sent the appellant a letter informing him that his claim was denied on the ground that he had not submitted sufficient medical evidence to support his claim. R. at 158. In July 1987, the appellant asked the RO to reconsider his claim. R. at 160. The RO reopened the pension claim and denied pension. R. at 170, 172.

The appellant filed another claim on July 24, 1991, requesting service connection for arthritis in the right knee and left wrist. R. at 174-77. The RO scheduled a physical examination on August 16, 1991. R. at 183, 185, 188. An examination of the appellant’s right knee revealed “no recent bony injury or dislocation,” only “[djegenerative change consisting of medial joint space narrowing and marginal spurring.” R. at 185. An x-ray examination of the appellant’s left wrist revealed “mild degenerative arthritic change manifest in cortical cysts and marginal spurring.” R. at 188. In August 1991, the appellant noted that, because of his left hand, he was unable to work as a mechanic, was unable to drive a car with his left hand, and “can’t do any kind of work with it”. R. at 190.

On December 6, 1991, the RO granted service connection for the fracture of the left wrist. R. at 200-01. Based upon the latest medical examination, the RO awarded a 10% rating for the wrist fracture. Service connection for the right knee condition, however, was denied. R. at 201. In its rating decision, the RO stated that “[tjhere was no evidence of trauma to the knee during service.” Ibid.

The appellant filed a Notice of Disagreement (NOD) on January 2, 1992, claiming that his wrist condition deserved a higher rating and that his right knee condition was aggravated in service. R. at 210. He perfected an appeal to the BVA on March 20, 1992. R. at 221.

In a June 18, 1992, written submission to the Board, the appellant’s representative asked VA to reconsider the 10% rating for the wrist because there was “functional loss ... and extreme pain.” R. at 229. The representative also requested that VA clarify which knee (right or left) it had found not deserving of service connection. Ibid. The representative pointed out that the medical evidence indicated a left knee condition but that the appellant had filed for, and had been denied, service connection for his right knee problems.

The Board issued a decision on November 23, 1992, remanding the case to the RO to clarify whether the appellant was seeking service connection for a left or right knee disability; to attempt to obtain certain medical records referred to by the appellant in August 1991; and to schedule a VA orthopedic examination “to determine the nature and extent of any current left knee pathology.” R. at 232-35; see R. at 190. The appellant’s claim for an increased rating for the wrist fracture was deferred until the other issue was resolved. R. at 234.

In a letter dated January 26, 1993, VA acknowledged receipt of the appellant’s November 25, 1992, statement that indicated that he wished to receive service connection for his left rather than right knee condition. R. at 242, 249. In response, VA informed the appellant that his claim would be treated as a new claim and that he would have to submit within 60 days the medical evidence referenced by the Board with respect to his knee condition. Ibid. In April, the appellant underwent another physical evaluation to determine the condition of his left knee. R. at 262-65. The orthopedist, Dr. Marc Aiken, diagnosed the appellant as having “pseudogout.” Pseudogout is an acute epi[405]*405sode of synovitis. Stedman’s Medical Dictionary 1451 (26th ed.1995) [hereinafter Stedman’s]. Synovitis is the inflammation of synovial membrane around a joint. Sted-man’s 1746. Dr.

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Bluebook (online)
9 Vet. App. 402, 1996 U.S. Vet. App. LEXIS 737, 1996 WL 543387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beverly-v-brown-cavc-1996.