McManaway v. West

13 Vet. App. 60, 1999 U.S. Vet. App. LEXIS 1035, 1999 WL 769581
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 29, 1999
DocketNo. 97-280
StatusPublished
Cited by6 cases

This text of 13 Vet. App. 60 (McManaway 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
McManaway v. West, 13 Vet. App. 60, 1999 U.S. Vet. App. LEXIS 1035, 1999 WL 769581 (Cal. 1999).

Opinion

STEINBERG, Judge:

The appellant, veteran Stephen L. McManaway, appeals through counsel an October 24, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) denying as not well grounded his claims for Department of Veterans Affairs (VA) service-connected disability compensation for bilateral hearing loss and residuals of a right-knee injury. Record (R.) at 4. The appellant has filed a brief and a reply brief, and the Secretary has filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the BVA decision.

I. Background

The veteran had active service in the U.S. Army from September 1966 to September 1970. R. at 68. He served in the Air National Guard from July 1976 to December 1992. R. at 2. His unit was activated to participate in the Gulf War, in which he served from January 1991 to November 1991. R. at 87-89, 92. As of the time when the record on appeal (ROA) was filed, the veteran had been awarded service connection for residuals of a left-thumb injury, carpal tunnel syndrome, and hemorrhoids, with a combined disability rating of 10% effective February 12, 1992. R. at 407-10. Those matters are not raised in this appeal.

In 1992, the veteran filed a claim with a VA regional office (RO) for, inter alia, service connection for a right-knee disability and for bilateral hearing loss. R. at 95. The October 24, 1996, BVA decision here on appeal, inter alia, denied both of those claims as not well grounded. R. at 4. (The Board also remanded a third matter that, in light of that remand, is not before the Court. See Marlow v. West, 11 Vet.App. 53, 55 (1998) (claims that have been remanded to the VARO are generally not ripe for substantive review).)

A. Right-Knee Disability

As to the right-knee disability, according to medical histories provided by the veteran and contained in VA medical records and service medical records (SMRs), he injured his right knee before his initial period of service during a high school football game. R. at 17, 28. The veteran’s June 1966 entrance examination noted that his right knee was “normal”, although he had reported that his knee “oec[asionally] slips him”. R. at 17. He was deemed to have been qualified for induction. R. at 19. In January 1967, the veteran underwent a physical examination for the purpose of qualification for Officer Candidate School (OCS). R. at 22-29. It was noted that he had “[i]njured both knees” (R. at 23, 25); however, an orthopedic examination, which included an x-ray of both knees, noted: “Views of the knees are within normal limits” (R. at 28). The impression was “old cruciate ligament sprain, healed”, and the. examiner concluded that the veteran “qualifie[d] for full duty including OCS”. Ibid.

The veteran’s SMRs further indicated that in the summer of 1967, during OCS training, he had been treated on several occasions for knee pain. R. at 31-33. At that time, he reported having had right-knee pain for five years; however, an x-ray report stated that no abnormalities were found. He was treated with muscle relaxants, liniments, and a knee brace, and he was temporarily placed on limited duty. Ibid. An orthopedic examination reported full range of motion, no locking, questionable subluxation, tight legs, and “no internal derangement obvious at this time”. R. at 33. There are no further SMRs regarding complaints about or treatment of any knee problems during his 1966-70 period of service. See R. at 34-51.

At the veteran’s June 1970 separation physical examination, the examiner noted: “[Tjrick knee — stated [sic] in high school.... Condition stated as worsening [63]*63during service.” R. at 54. A subsequent orthopedic examination noted complaints of “occasional locking of [the] knees and pain with swelling after severe exercise.” R. at 57. There was no swelling or pain found on the date of examination. Both knees were reported to be “normal”. The examiner diagnosed “possible slight weakness in [the] r[ight] anterior cruciate.” Ibid. A statement signed by the veteran on September 17, 1970, immediately prior to his actual discharge from service, indicated that there had “been no change” in his medical condition since the June 1970 separation examination. R. at 61.

According to the veteran’s March 1994 sworn testimony to the RO, he enrolled in the Columbus, Ohio, police academy in 1971 following his 1970 discharge, and experienced knee problems during his training in March 1971. R. at 271. However, he was still deemed to have been suitable for the job of police officer. Ibid. While directing traffic in November 1977, he was struck by a car and suffered, inter alia, a right-knee injury. R. at 73, 84. A private medical record, dated February 1978, diagnosed him as having acute tendinitis of the right knee and ruled out internal derangement of the right knee. R. at 70. The examining physician noted that the veteran’s x-rays were negative for a fracture or dislocation. He opined that the veteran would be able to “resume regular duties” in approximately one month. Ibid.

In February 1992, following his Gulf War service, the veteran filed a claim for VA service-connected compensation for a disability of the right knee. R. at 94-97. The RO then obtained a March 14, 1990, letter (written to an attorney representing the veteran) from a private physician, Dr. Unverferth, who indicated that he had treated the veteran in June 1989 for “the continued complaint of pain and swelling in his right knee.” R. at 103. Dr. Unver-ferth stated:

Past history is significant in that Stephen McManaway has had numerous injuries to his right knee. These injuries have necessitated two prior arthroscopic surgeries by other surgeons, and then I performed an arthroscopic surgical procedure on August 29, 1988. At that time, we found a very significant traumatic chondral flap off the posterior pa-tellar surface. This, I felt, was a direct result of a direct blow that he had received to the anterior aspect of his knee in an auto accident.

Ibid.

Also in connection with the veteran’s February 1992 claim, the RO obtained the veteran’s Air National Guard service medical records (GSMRs). In a July 1976 medical history provided by the veteran upon his enlistment in the Air National Guard, he checked the “NO” box as to whether he had then or had ever had a “‘[t]rick’ or locked knee”. R. at 120. The clinical evaluation was that his knee was “normal”. R. at 122. A May 1978 GSMR indicated that he had complained of right-knee pain after being hit by an automobile in November 1977 and that he had had a knee operation in 1978. R. at 131. The examiner noted “[p]uncture scars” on the veteran’s right knee. R. at 132. No other knee problems were reported in his GSMRs. See 137-72.

In April 1992, the veteran underwent a VA medical examination. R. at 175-92. The examiner noted a scar on the veteran’s right knee, but found that his joints were “without erythema, redness, or limitation of range of motion.” R. at 179. The veteran was diagnosed as being obese and having hyperlipidemia. Ibid. An orthopedic examination noted his complaints of pain in the right knee and diagnosed “post op injury right knee.” R. at 182-83.

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Cite This Page — Counsel Stack

Bluebook (online)
13 Vet. App. 60, 1999 U.S. Vet. App. LEXIS 1035, 1999 WL 769581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmanaway-v-west-cavc-1999.