Clyburn v. West

12 Vet. App. 296, 1999 U.S. Vet. App. LEXIS 147, 1999 WL 182221
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 2, 1999
DocketNo. 97-1321
StatusPublished
Cited by65 cases

This text of 12 Vet. App. 296 (Clyburn v. West) 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
Clyburn v. West, 12 Vet. App. 296, 1999 U.S. Vet. App. LEXIS 147, 1999 WL 182221 (Cal. 1999).

Opinion

NEBEKER, Chief Judge:

The appellant, Raymond C. Clyburn, appeals an April 11, 1997, Board of Veterans’ Appeals (Board or BVA) decision, which (1) denied entitlement to a compensable evaluation for his service-connected tinnitus; and (2) denied as not well grounded his claim for entitlement to service connection for a bilateral knee condition. For the following reasons the Court will vacate the Board’s decision with respect to the tinnitus claim and remand that matter to the Board for readju-dication consistent with this opinion, and will affirm the decision of the Board with respect to the knee claim.

FACTS

Mr. Clyburn served on active duty in the U.S. Army from September 1960 to September 1963, and in the Persian Gulf, from November 1990 to June 1991, after his Army National Guard unit was ordered to active duty. Record (R.) at 13, 15. His entrance and separation physical examinations for his first period of service report no complaints of any knee problems or tinnitus. See R. at 17-20, 33-35, 37-38. Periodic physical examinations, conducted in 1963, 1980, and 1989, in connection with his service in the Arkansas Army National Guard, likewise make no mention of any knee disability or tinnitus (R. at 33-44, 51-54); however, a June 1980 examination notes “high freq[uency] hearing loss — artillery” (R. at 53-54, 61), and an October 1989 examination reports bilateral hearing loss and “morning leg stiffness and cramps” (R. at 43-44). See also R. at 39-42.

In an April 1991 medical examination performed prior to his release from active duty, the appellant was noted as having a high frequency bilateral hearing deficit, full range of motion without pain in his spine and legs, and the ability to stand on each foot alone but not on his right toes alone. R. at 77-78. At that time, the appellant complained of lower back pain from digging foxholes, and was referred for an orthopedics consultation. R. at 77-80. He filled out a medical evaluation questionnaire on April 21, 1991, and when asked, “What diseases or injuries did you have while in the Southwest Asia region,” Mr. Clyburn again responded that he had hurt his back digging foxholes. R. at 87. On May 16, 1991, he signed a similar questionnaire, entitled “Chronological Record of Medical Care,” in which his answer to the same question was that he had hurt his back digging foxholes, that the pain went down his right leg and increased on long rides, that he had a right leg limp, and that he was weak if on his toes. R. at 84.

A May 1991 orthopedic examination reported that Mr. Clyburn experienced pain in his lower back and down his right leg but that it had decreased since he had ceased riding in humvees, and a diagnosis of “lumbar degenerative disc disease” was made. R. at 76. The appellant again attributed his pain to digging foxholes in Saudi Arabia and to riding frequently in military vehicles while on active duty, but reported that the pain had decreased with the cessation of these activities. R. at 76, 80, 83-84, 86-87. Neither the April 1991 nor the May 1991 examination reports noted that the appellant specifically referenced a knee injury suffered or aggravated while on active duty. Id.

The appellant filed a disability compensation claim in September 1991 (R. at 113-16), indicating, inter alia, that his “knee prob[298]*298lems” began in August 1991 (R. at 114). At a December 1991 VA medical examination, the appellant complained of “constant bilateral knee pain for many years,” and “intermittent high-pitched tinnitus bilaterally.” R. at 118. The relevant diagnoses were “chondromala-cia patellae, bilateral” and “hearing loss with tinnitus.” R. at 119. (“Chondromalacia [patellae]” is defined as “abnormal softness of cartilage [of the kneecaps.]” WebsteR’s MEDICAL DESK DICTIONARY 119, [521] (1986).) In April 1992, based on his exposure to acoustic trauma in service and his indication of intermittent tinnitus at the December 1991 examination, the appellant was granted service connection for tinnitus with a noncom-pensable rating. R. at 128-29. Service connection for the knee claim was denied; the VA regional office (RO) found that the appellant’s service medical records (SMRs) did not reveal any in-service complaints of, treatment for, or diagnosis of, a knee condition. Id.

At an August 1992 VA regional office hearing, the appellant testified that he had “really messed [his knees] up” in the Persian Gulf as a result of carrying heavy equipment across sand for several hours each day, and riding at length in military vehicles. R. at 149. He testified that while in Saudi Arabia and Kuwait his knees “swelled up like balloons” (Id.), that he wrapped them daily in ace bandages and sought treatment from his battalion surgeon, Lieutenant Colonel (Lt.Col.) Sessler, and that he continued to experience discomfort ninety percent of the time (R. at 149-50). In response to a question of whether he had experienced any problems with his knees prior to going to the Middle East, Mr. Clyburn responded:

I’ve had slight problems occasionally. Now, everybody has trouble with their knees sooner or later. You get a twinge in them or something but I didn’t have a constant problem. Once in a great while, one of my knees you’d go well that’s a little tender. After I got over there in the desert and got to tromping through the sand, I had real problems.

R. at 152. He also stated that he believed that his knees were discussed and examined upon his release from active duty, but implied that the examiner rushed through the examination in a less than complete manner. R. 151-52. Regarding his tinnitus, he testified that he experienced “constant high ringing” in his ears. R. at 153.

At the hearing, the appellant also submitted: (1) a prepared statement from Lt. Col. Sessler, who recounted that he was the battalion surgeon during Mr. Clyburn’s deployment to Desert Shield/Storm, and that he had treated the appellant in the Middle East for, inter alia, pain and swelling of his knees (R. at 161); and (2) written statements from three of the appellant’s fellow servicemen in the Persian Gulf who knew of the appellant’s knee pain and had observed him wrap his knees on numerous occasions (R. at 162-64).

In October 1992, the hearing officer’s decision continued both the denial of a compen-sable rating for tinnitus and the denial of service connection for the bilateral knee condition. R. at 177-78. With respect to the tinnitus claim, the hearing officer noted:

The veteran’s personal testimony concerning his constant tinnitus is contradicted by his recorded statement alleging intermittent tinnitus on his [December 1991] VA examination. As the evidence of record is at variance concerning the persistence of the veteran’s service[-]connected tinnitus, basis for entitlement to a compensable evaluation is not found at this time.

R. at 178. As to the knee condition, the hearing officer found that while the condition may have undergone acute exacerbation during his Persian Gulf service, the current condition was “essentially unchanged” from that present prior to his entry on active duty. Id.

During a March 1993 VA “Persian Gulf examination,” a radiographic report of the appellant’s knees reported “no significant bone, joint, or soft tissue abnormality,” and rendered an impression of “normal view both knees.” R. at 210. An examination notation made on the same date indicated “both knees swelled up — began after one week [in the Persian Gulf] and still has [illegible] problem.” R. at 216.

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Cite This Page — Counsel Stack

Bluebook (online)
12 Vet. App. 296, 1999 U.S. Vet. App. LEXIS 147, 1999 WL 182221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clyburn-v-west-cavc-1999.