McIntosh v. Brown

4 Vet. App. 553, 1993 U.S. Vet. App. LEXIS 141, 1993 WL 118883
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 16, 1993
DocketNo. 91-2162
StatusPublished
Cited by8 cases

This text of 4 Vet. App. 553 (McIntosh 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
McIntosh v. Brown, 4 Vet. App. 553, 1993 U.S. Vet. App. LEXIS 141, 1993 WL 118883 (Cal. 1993).

Opinion

IVERS, Associate Judge:

Richard L. McIntosh appeals from a November 1, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which declined to reopen his previously disallowed claim for service connection for a right knee disability on the grounds that evidence submitted by the veteran did not constitute “new and material” evidence. 38 U.S.C.A. § 5108 (West 1991). The Court has jurisdiction of the case under 38 U.S.C.A. § 7252(a) (West 1991). The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. The Court holds that the BVA determination that the evidence submitted by appellant was not new and material was correct. Accordingly, for the reasons set forth in this opinion, we affirm the decision of the BVA.

FACTS

The veteran served in the United States Navy from December 1950 to March 1951, at which time he was discharged for a medically disqualifying disability which “exist[ed] prior to entry on active duty and [was] not aggravated by mil[itary] service].” R. at 1-2. In 1954, the veteran was diagnosed with osteochondromatosis of the right knee upon admission to a Veterans’ Administration (now Department of Veterans Affairs) (VA) hospital, and surgery was performed on his knee. R. at 5-6. Osteochondromatosis is defined as “multiple hereditary exostosis” which in turn is defined as “the presence of multiple exostoses in the long bones of children due to a hereditary defect of ossification in cartilage, resulting in severe skeletal deformity and stunting of growth.” Mello-ni’s Illustrated Medical Dictionary 157, 351 (2d ed. 1985) [hereinafter “Melloni’s”]. The veteran’s original claim for service connection for a right knee injury was denied by a Regional Office (RO) rating board in October 1954; the rating board noted that the veteran had injured his knee playing football in 1949 and that no aggravation of the injury was shown to have occurred during service “other than the expected residual of previous injury.” R. at 7.

In January 1955, pursuant to having been selected by a local board of the Selective Service System, i.e., the draft board, [555]*555the veteran was given a preinduction physical for induction into the United States Army at an Armed Forces Examining Station (AFES). R. at 9, 12, 105. On the second page of the medical report, block 76 contains a physical profile report which is divided into six categories (P, U, L, H, E, S). R. at 12. The “P” stands for “physical capacity or stamina”; the “U” stands for “upper extremities”; the “L” stands for “lower extremities”; the “H” stands for “hearing and ear”; the “E” stands for “eyes”; and the “S” stands for “psychiatric.” Para. 9-3(b)(lH6), Army Regulation (AR) 40-501, Change 35 (Feb. 9,1987). See also Odiome v. Principi, 3 Vet.App. 456, 457 (1992); Hanson v. Derwinski, 1 Vet.App. 512, 514 (1991). “L” or “lower extremities” includes “the feet, legs, pelvic girdle, lower back musculature, and the lower spine (lower lumbar and sacral) in regard to strength, range of motion, and general efficiency.” Para. 9 — 3(b)(3), AR 40-501, Change 35. The veteran’s prein-duction report shows a number “1” in each of the six categories except for category “L” where a number “4” appears. R. at 12. “An individual having a numerical designation of ‘1’ under all factors is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.” Para. 9-3(c)(1), AR 40-501, Change 35. “A profile serial containing one or more numerical designators ‘4’ indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.” Para. 9-3(c)(4), AR 40-501, Change 35. In addition, Army medical standards for induction listed knee surgery within one year prior to examination as cause for medical rejection. R. at 105. Therefore, the veteran was temporarily rejected from service “for complete recovery of knee surgery.” R. at 9, 12, 15, 18, 105. He was scheduled for reexamination in August 1955. R. at 12.

The veteran underwent reexamination for induction into the Army in September 1955. R. at 10-11, 15, 18, 105. This time under category “L” on the physical profile, the veteran was assigned the number “2,” which “indicates that an individual possesses some medical condition or physical defect which may impose some limitations on classification and assignment.” R. at 10; Para 9-3(c)(2), AR 40-501, Change 35. The examination report also shows that the veteran had had “no further trouble” since having surgery on his knee, and he was therefore found medically fit for induction into the United States Army. R. at 10-11, 15, 18, 105. The report also reflects that, pursuant to Army regulatory guidance to AFES, which “required that all examinees who had been previously discharged from any service for medical reasons and who were later found acceptable on preinduction examination would have their examination forwarded to the Department of the Army for final determination of acceptability,” the veteran’s examination report was reviewed by the Office of the Surgeon General on December 2, 1955. R. at 11, 105. Pursuant to that review, a waiver was granted which set aside the administrative bar prohibiting induction of those previously discharged from any service. Id. As a result of this waiver, the veteran was inducted into the Army on January 12, 1956. R. at 105-06. On the day of induction, a “physical inspection” was done; this inspection consisted of a review of the medical history of the veteran since his examination and “a quick visual examination of the [veteran] to assure that no change in his general physical status ha[d] occurred.” R. at 11, 105-06.

On January 19,1956, a request was made that the veteran be sent to the orthopedic clinic. R. at 15, 18, 108. On January 20, 1956, the examining physician in the orthopedic clinic noted, inter alia,

[The veteran] states that he has right knee pain of two days duration. For the past two days numbness and aching have been present over the anteromedial aspect of the right knee. Past history reveals that in 1954 an arthrotomy was done for removal of loose bodies in the knee joint. At that time patient was told that the cartilages in the right knee were normal. Since the operation in 1954 until the present time the patient has been [556]*556asymptomatic. However, since marching, pain has been noted. There has been no swelling.
Physical examination is essentially negative except for the arthrotomy.
Recommendations: X-rays will be taken and further evaluation done next Monday.

R. at 108. Arthrotomy is a “surgical incision of a joint.” Dorland’s Illustrated Medical Dictionary 147 (24th ed. 1965) [hereinafter “Dorland’s”].

On January 25, 1956, the veteran was examined again in the orthopedic clinic, and the examining physician noted, inter alia,

This patient returns to the Clinic at this time and still complains of pain in the knee and also in the quadriceps muscle group.
Physical examination today reveals no abnormality whatsoever. This man’s X-rays reveal a minimal hypertrophic lip-ping and there is a question of a loose body with the knee joint. However, he gives no symptoms compatible with a loose body.
I think a diagnosis of an osteochondri-tis, or perhaps a chondromalacia of the patella should be entertained in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
4 Vet. App. 553, 1993 U.S. Vet. App. LEXIS 141, 1993 WL 118883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintosh-v-brown-cavc-1993.