Rykhus v. Brown

6 Vet. App. 354, 1993 U.S. Vet. App. LEXIS 879, 1993 WL 610966
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 25, 1993
DocketNo. 92-743
StatusPublished
Cited by1 cases

This text of 6 Vet. App. 354 (Rykhus 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
Rykhus v. Brown, 6 Vet. App. 354, 1993 U.S. Vet. App. LEXIS 879, 1993 WL 610966 (Cal. 1993).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The appellant, veteran Bob E. Rykhus, appeals from a March 20, 1992, decision of the Board of Veterans’ Appeals (BVA or Board). That decision denied service connection for internal derangement of the right knee and secondary service connection for a bilateral leg disorder, a bilateral foot disorder, a left-knee disability, and arthritis of multiple joints, and concluded that a 1957 decision of a Veterans’ Administration (now Department of Veterans Affairs) (VA) re[356]*356gional office (RO) did not contain clear and unmistakable error (CUE). The Secretary of Veterans Affairs (Secretary) has moved for partial summary affirmance and partial remand. Summary disposition is appropriate because the case is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Secretary’s motion will be granted in part and denied in part, and the Board’s decision will be affirmed in part and vacated and remanded in part.

I. Background

The veteran served on active duty in the U.S. Army from March 24, 1955, to March 22, 1957. R. at 15. Although he complained of pain in both knees at an October 1954 preinduetion examination, the clinical evaluation was negative for findings indicative of a knee disorder. R. at 16-17. The clinical evaluation at a second preinduction examination, conducted in March 1955, did not indicate any pertinent abnormalities. R. at 18-19.

Following the veteran’s complaint of pain and stiffness in the right knee, a service medical record (SMR) dated June 1956 indicated a provisional diagnosis of “[c]hronic medial ligamentous strain versus partial cartilage tear.” R. at 20. A “re-profile” examination performed in August 1956 diagnosed the veteran as having internal derangement of the right knee, for which he was placed on limited duty. R. at 23-24. A September 1956 clinical record noted that the cause of the right-knee disability may have been a “twisting injury that was not particularly noticed”, and the diagnosis was “probably a mild incomplete medial collateral ligament tear”. R. at 27. A January 1957 separation examination noted a history of right-knee disability, but the clinical evaluation made no finding indicating a right-knee disability. R. at 28-31.

Upon separation, the veteran submitted to the Los Angeles, California, VARO a claim for service connection for a right-knee disability. R. at 34-35. He was apparently scheduled for a physical examination, which he did not attend. R. at 37. The RO denied service connection in a June 18, 1957, decision (R. at 36), and, in a letter dated June 21, 1957, the veteran was notified of the decision as well as his right to appeal within one year (R. at 37). The veteran did not file a timely appeal.

In April 1989, the veteran began proceedings to reopen his claim for service connection for a right-knee disability, and to seek secondary service connection for a left-knee disability, a bilateral leg disorder, and a bilateral foot disorder. R. at 38-42. In support of these claims, the veteran submitted a private medical consultation report, dated June 20, 1983, from Dr. Wandyr J. Moore, diagnosing the veteran with generalized osteoarthritis and several other disabilities affecting his knees, ankles, and feet. R. at 45^48. In a May 1989 decision, the San Diego, California, RO denied service connection for the right-knee disability, concluding that the private medical statement did not constitute new and material evidence so as to reopen the veteran’s claim. R. at 50, 55. In the same action, the RO denied secondary service connection for the remaining disabilities. Ibid. The veteran filed a Notice of Disagreement and requested a personal hearing. R. at 52.

At the ensuing November 3,1989, hearing, the veteran raised a new claim for service connection for arthritis in multiple joints. R. at 65-66. In a November 22, 1989, decision, the San Diego RO again denied service connection for all of the claimed disabilities, including arthritis (R. at 71), and the veteran’s appeal was thereafter forwarded to the BVA (R. at 72). In a May 1990 written presentation to the BVA, the veteran’s representative asserted that the 1957 RO decision denying service connection for a right-knee disability contained CUE because the SMRs before the Los Angeles RO in 1957 had demonstrated the presence of a chronic right-knee disability in service. R. at 74. In its August 1990 decision, the BVA remanded the case to the San Diego RO to consider the veteran’s CUE claim and to provide the veteran with a Supplemental Statement of the Case concerning the denial of service connection for arthritis. R. at 76. In a November 1990 decision, the RO determined that the [357]*3571957 denial of service connection for a right-knee disability did not constitute CUE. R. at 78. The veteran again appealed to the BVA, which, in a June 1991 decision, found no CUE in the 1957 denial of service connection, that evidence submitted by the veteran since the 1957 decision was not new and material for purposes of reopening the right-knee claim, and that the remaining disabilities were not service connected. R. at 93-102. Subsequently, the BVA granted a motion for reconsideration of the June 1991 decision. In the March 20, 1992, reconsideration decision here on appeal, a reconsideration section of the Board affirmed the findings of the prior BVA decision. R. at 3-11.

II. Analysis

A. Clear and Unmistakable Error

Under 38 C.F.R. § 3.105(a) (1992), “clear and unmistakable error” requiring revision of a prior final RO or BVA decision exists only where it appears “undebatably” that “[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.” Russell v. Principi, 3 Vet.App. 310, 313 (1992). On CUE claims, as with all other claims, the claimant bears the initial burden of submitting a well-grounded claim. See Newman v. Brown, 5 Vet.App. 99, 102 (1993). Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), “a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992) (holding that a doctor’s statement that a veteran’s death “may or may not” have been avoided but for his service-connected disabilities was speculative and did not justify a belief that the appellant’s claim was well grounded). A “mere disagreement as to how the facts were weighed or evaluated” does not constitute a well-grounded CUE claim. Newman, supra; Russell, supra.

In the present case, the veteran, in support of his CUE claim, asserted that “the SMR’s show numerous complaints and treatment for a disability of the right knee and the veteran had a profile for the condition” (R. at 74) and that “given the evidence presented to the [RO] rating board in 1957, the reasonable doubt standard should have been invoked in favor of the veteran” (R. at 90). These arguments amount to no more than a “mere disagreement as to how the facts were weighed or evaluated” by the RO in 1957.

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6 Vet. App. 354, 1993 U.S. Vet. App. LEXIS 879, 1993 WL 610966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rykhus-v-brown-cavc-1993.