Odiorne v. Principi

3 Vet. App. 456, 1992 U.S. Vet. App. LEXIS 363, 1992 WL 328948
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 13, 1992
DocketNo. 90-583
StatusPublished
Cited by11 cases

This text of 3 Vet. App. 456 (Odiorne v. Principi) 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
Odiorne v. Principi, 3 Vet. App. 456, 1992 U.S. Vet. App. LEXIS 363, 1992 WL 328948 (Cal. 1992).

Opinion

IVERS, Associate Judge:

Appellant, Freddy J. Odióme, appeals from a March 14, 1990, Board of Veterans’ Appeals (BVA or Board) decision which denied service-connection for appellant’s left-knee condition. The Board found that appellant’s left-knee condition existed prior to service and was not aggravated by service. The Board also found that appellant was not permanently and totally disabled within the meaning of the law and regulations governing non-service-connected pension benefits. Upon review, we hold that, in denying appellant’s claim, the BVA failed to consider several applicable statutes and regulations and failed to comply with the requirement of 38 U.S.C. § 7104(d) (formerly § 4004(d)) that its decision provide an adequate statement of reasons or bases for its findings and conclusions. See Smith v. Derwinski, 2 Vet.App. 137, 141 (1992); Willis v. Derwinski, 1 Vet.App. 63, 66 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 59 (1990). Therefore, for the reasons set forth below, the Board’s decision is affirmed as to the left-knee condition but vacated as to the pension claim and the case is remanded to the Board for further adjudication. The Court also vacates the Board’s erroneous finding of fact that appellant’s arthritis of the left knee was not present during service.

I. BACKGROUND

Appellant served in the United States Army from March 24, 1954, to January 30, 1956. R. at 12. Prior to service, while attending college, appellant injured his left knee while playing football in November 1953. R. at 16. Apparently, he was struck on the lateral side of his left knee by another player. R. at 17, 40. According to appellant, he informed the preinduction examining physician, Captain I.A. Ceips, Medical Corps (MC), that he had a prior injury to his left knee. R. at 86, 96. However, the record is silent as to whether appellant was experiencing problems with his left knee at the time of induction and Captain Ceips made no notation of a left-knee injury on the “Report of Medical Examination.” R. at 13-14. In fact, Captain Ceips marked “normal” for “lower extremities” which included “strength, range of motion.” R. at 13. On the second page of the medical report, block 76 contains a physical profile which is divided into six categories (P, U, L, H, E, S). 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)(l)-(6), Army Regulation (AR) 40-501, Change 35 (Feb. 9, 1987). See also 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)(l)(3), AR 40-501, Change 35. The number “1” appears in each of the six categories. R. at 14. “An individual having a numerical designation of T 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. Captain Ceips gave appellant a physical profile indicating that appellant was “qualified for service” and signed the form. R. at 14.

It was not until almost six months later, August 26, 1954, that appellant sought medical attention because of pain in his left [458]*458knee. R. at 15. He was given a light duty slip. Id. On September 13, 1954, appellant sought treatment again and was diagnosed with an unstable knee and prescribed physical therapy to strengthen it. R. at 17. Appellant’s prior left-knee injury was noted on the clinical record, but no entry was made regarding a causal relationship between the prior injury and appellant’s present injury. R. at 16. On September 29, 1954, appellant’s condition was found to be “improving with quadriceps exercises.” R. at 20. There was a notation that he “hurt [his] knee again yesterday,” but x-rays were negative and no change was found in his condition. He was instructed to continue his exercises. Id. Appellant participated in physical therapy until he was discharged from care because he failed to appear for his appointment on November 12, 1954. R. at 16.

In December 1954, while home on leave, appellant “jumped up to catch a pass [and] when he came down [his] left knee buckled.” R. at 19. Appellant sought treatment when he returned to base. X-rays were taken but were negative. He was diagnosed as having a “[p]ainful infrapatel-lar front pad left knee,” but no treatment or medication was entered. Id. On February 23, 1955, an Army physician diagnosed chondromalacia of appellant’s left patella. R. at 20. Chondromalacia patellae is defined as “the premature degeneration of the patellar cartilage, the patellar margins are tender so that pain is produced when the patella is pressed against the femur.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 326 (27th ed. 1988). Again appellant’s condition was not linked to his prior injury. Appellant was given a temporary “L 3” profile requiring no knee bending, prolonged marching, or running athletics for three months. The limitation was to expire automatically on May 23, 1955. R. at 32.

After May 23, 1955, appellant continued to have problems with his left knee and on June 17, 1955, appellant requested to see an orthopedic doctor about his knee. The treating physician noted that appellant “complain[ed] of [a] painful knee after playing ball etc. [He] has modferate] chon-dromalacia of [the] patella on left [knee].” R. at 28. Appellant was advised to stop using his knee, but it was noted that appellant “prefers to continue playing ball.” Id. Appellant was not scheduled for an orthopedic examination. Later, on June 29, 1955, appellant again requested an examination by an orthopedic physician but was again refused, apparently on the grounds that appellant had “ignored medical advice” not to play any sports. R. at 29. Appellant was assigned an “L 3, Code G” profile and told not to participate in sports. Id. Although given a “Code G” profile, the physician probably intended a “Code C” profile. “Code G” profiles deal with the upper extremities, and “Code C” profiles concern the lower extremities. See Para. 9 — 3(c)(3), AR 40-501, Change 25.

On August 2, 1955, appellant underwent an orthopedic examination and was again diagnosed as having chondromalacia patella, left knee. R. at 27. On August 3, 1955, he was given a temporary “L 3, Code C” profile that ended on September 7, 1955. R. at 26. Under this profile, he was not to do deep knee bends, crawling, running, marching, walking, or standing over an hour. He was also not to participate in any sports. Id. The record is silent from August 1955 until appellant’s discharge examination on December 27, 1955. Appellant was examined by First Lieutenant Weiner, MC. Although First Lieutenant Weiner marked “normal” for appellant’s “lower extremities,” he did assign a “3” under “L” for appellant’s physical profile. R. at 35. Although appellant’s earlier profiles were considered temporary, he was still considered disabled for purposes of his discharge examination.

From May 28, 1956, to May 31, 1956, appellant was hospitalized at the Little Rock, Arkansas, Veterans’ Administration (now Department of Veterans Affairs) (VA) Hospital for his left-knee pain. R. at 40-41. Appellant was diagnosed with a tear of the medial collateral ligaments in his left knee.

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Cite This Page — Counsel Stack

Bluebook (online)
3 Vet. App. 456, 1992 U.S. Vet. App. LEXIS 363, 1992 WL 328948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odiorne-v-principi-cavc-1992.