Evans v. West

12 Vet. App. 22, 1998 U.S. Vet. App. LEXIS 1336, 1998 WL 801957
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 16, 1998
DocketNo. 96-1574
StatusPublished
Cited by49 cases

This text of 12 Vet. App. 22 (Evans 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
Evans v. West, 12 Vet. App. 22, 1998 U.S. Vet. App. LEXIS 1336, 1998 WL 801957 (Cal. 1998).

Opinion

FARLEY, Judge:

This is an appeal from a September 19, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) which denied the appellant’s claim for service connection for a bilateral knee disorder as secondary to a service-connected pes planus condition. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the September 19,1996, BVA decision.

I. FACTS

The appellant served on active duty in the U.S. Navy from January 1965 until September 1968 when he was medically discharged due to bilateral pes planus. See Record (R.) at 58-61. A medical board report contained in the record on appeal (ROA) indicates that the appellant had been diagnosed with “pes planus, symptomatic,” which had existed pri- or to entry into service, had not been incurred in the line of duty, and had not been aggravated by service. R. at 55. The report also states that the appellant was unfit for duty and was discharged due to physical disability. Id. He was discharged from the [24]*24service on September 11, 1968. R. at 61. Although the regional office (RO) originally denied his claim for service connection for pes planus in April 1969 (Supplemental (Suppl.) R. at 1), the BVA ultimately granted service connection for bilateral pes planus in October 1970. Suppl. R. at 17-20. During 1971, the appellant was seen on a number of occasions with complaints related to his pes planus. R. at 78-94. No reference was made to the appellant’s knees in any of those records. A consultation report of August 26, 1971, stated that the appellant’s “subjective pain” can only be treated with analgesics. R. at 85.

A Supplemental Statement of the Case (SSOC) was issued on May 23, 1973. Suppl. R. at 24. Also, on May 23, 1973, the appellant filed a Notice of Disagreement (NOD) requesting service connection for his “back, leggs [sic], thighs and lower back as a direct result of [his] bilateral pes planus.” Suppl. R. at 24. The RO treated the appellant’s NOD as a request to reopen his claim and issued a rating decision on June 26, 1973, denying service connection for low back, leg, and thigh conditions. Suppl. R. at 27. The RO reasoned that the appellant had “failed to submit any evidence of an actual back, leg[,] or thigh disability.” Id. Further, the evidence submitted failed to establish a diagnosis “relative to a back or leg condition.” Id. An SSOC was issued on June 26, 1973, explaining that the evidence showed that “no definitive diagnosis had been established to account for the complaints of pain in the back, the legs[,] and the thighs.” Suppl. R. at 31. Moreover, the SSOC stated that the noted secondary pain “is part and parcel of the bilateral pes planus.” Id. The appellant responded on July 16, 1973, stating that he was experiencing continuous pain in his feet, legs, thighs, and lower back as a result of his feet. R. at 101. In a November 3, 1973, BVA decision, the Board determined that “[t]he veteran does not have an identifiable disease entity involving the low back, thighs[,] and legs related to the service-connected foot disorder” and therefore “a disorder of the back, thighsf,] and legs is not due to or the result of the service-connected foot disorder.” R. at 108.

The first specific indication that the appellant had any complaints of pain in his knees was recited in the history section of a neu-ropsychiatric evaluation conducted by Dr. Charles W. Armistead on January 13, 1976. R. at 114. It noted that the appellant “has trouble with his feet, legs, knees, thighs, and back.” Id. An orthopedic evaluation for pes planus by Dr. John W. Jackson on the same date showed that an examination of the knees “revealed crepitation on flexion and extension.” R. at 117. That evaluation also indicated that the appellant’s complaints as to pain in his calves, thighs, and back were secondary to his gait as produced by his foot disabilities. Id. The report failed to reference a reason for the pain in the appellant’s knees. Id. A March 15,1977, letter from Dr. Charles S. Kennon, a private orthopedist, to U.S. Congressman Joe D. Waggoner, Jr., provided the first impression that the appellant’s “history of pain in the knees and low back [was] probably related to his flat footed problems.” R. at 121-22. Dr. Kennon’s letter further indicated that the appellant had complained of “pain in the knees and low back on prolonged standing or ambulation” and that the appellant had felt that the knee problems were related to his flat feet. R. at 121. Although Dr. Kennon discussed x-ray findings related to the appellant’s feet, no such findings were discussed relating to the appellant’s knees. Id.

On October 31, 1978, the RO received a letter from the appellant requesting that his knees, legs, and back be considered for service connection because he believed that his “feet were directly responsible for the pain ... in these areas.” Suppl. R. at 33-34. Thereafter, the RO issued a rating decision dated March 9, 1979, determining that an out-patient treatment report of February 15, 1979, did not show any knee condition and that service connection was not established for a “bilateral knee condition alleged.” R. at 125. Additional correspondence from the RO reiterated that “out-patient treatment reports fail to show a back or knee condition.” Suppl. R. at 36. Subsequently, the appellant submitted an NOD on March 30, 1979, alleging that the hospital records would show continuous treatment for back, knee, and leg pain. Suppl. R. at 39. At this time, the [25]*25appellant requested that his claim be reopened. Id. On June 13,1979, the RO issued a Statement of the Case (SOC) explaining that the evidence of record failed to show any knee or back disorder. Suppl. R. at 45. The appellant completed a VA Form 1-9, Appeal to the Board of Veterans’ Appeals (Form 1-9) on August 14, 1979, asserting that service connection should be established for his knee and back disabilities. Suppl. R. at 47. A BVA decision was issued on February 7, 1980, which determined that “new evidence of record includes the Administration examination [of Dr. Jackson] in January 1976 and report of Dr. [Kennon] in March 1977” and that neither piece of evidence establishes “the existence of any separate and distinct disease entity involving the knees or back.” R. at 132.

On April 13, 1981, the BVA issued a decision referring the matters concerning chronic conditions of the appellant’s back and legs, as well as his nervous condition, to the RO because he was not service connected for those conditions. Suppl. R. at 51. The BVA decision further directed that the case be remanded with directions that the appellant be afforded a VA special examination of his feet by a podiatrist to determine the current level of severity of his bilateral pes planus. Id. On June 5, 1981, the appellant underwent an examination by Dr. Howard L. Chapman, a podiatric physician and surgeon. R. at 136-38. The examination report contained information relating to the appellant’s feet, but it failed to render any opinion concerning the pain in the appellant’s knees. Id. The RO issued another rating decision on September 10, 1981, which found no new factual basis to reconsider service connection for back, leg, or nervous condition. R. at 141-42.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

200620-96930
Board of Veterans' Appeals, 2021
200420-83773
Board of Veterans' Appeals, 2021
200110-54547
Board of Veterans' Appeals, 2020
191125-45834
Board of Veterans' Appeals, 2020
190405-8064
Board of Veterans' Appeals, 2019
09-16 286
Board of Veterans' Appeals, 2017
09-49 628
Board of Veterans' Appeals, 2017
14-15 773
Board of Veterans' Appeals, 2017
09-27 887
Board of Veterans' Appeals, 2017
13-24 471
Board of Veterans' Appeals, 2017
05-37 821
Board of Veterans' Appeals, 2017
12-21 494
Board of Veterans' Appeals, 2016
11-24 658
Board of Veterans' Appeals, 2016
12-20 484
Board of Veterans' Appeals, 2016
10-07 122
Board of Veterans' Appeals, 2016
11-18 447
Board of Veterans' Appeals, 2015
12-26 648
Board of Veterans' Appeals, 2015

Cite This Page — Counsel Stack

Bluebook (online)
12 Vet. App. 22, 1998 U.S. Vet. App. LEXIS 1336, 1998 WL 801957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-west-cavc-1998.