Smith v. Brown

5 Vet. App. 335, 1993 U.S. Vet. App. LEXIS 205, 1993 WL 239092
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 6, 1993
DocketNo. 91-771
StatusPublished
Cited by3 cases

This text of 5 Vet. App. 335 (Smith 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
Smith v. Brown, 5 Vet. App. 335, 1993 U.S. Vet. App. LEXIS 205, 1993 WL 239092 (Cal. 1993).

Opinion

FARLEY, Judge:

Appellant Raymond L. Smith appeals from a January 3, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which denied his claims of entitlement to service connection for a right knee disability as secondary to his service-connected left knee disability, and to a rating in excess of 10% for postoperative residuals of a left medial meniscectomy (excision of a crescent shaped disk of fibrocartilage attached to the superior articular surface of the tibia, Dorland’s ILLUSTRATED Medical DICTIONARY, 1005 (27th ed. 1988)) with degenerative joint disease (left knee condition). The Board stated that a preponderance of the evidence did not demonstrate that a causal relationship existed between appellant’s service-connected left knee condition and his right knee disorder, and that no more than a slight impairment of the left knee had been shown, thus not warranting an increase in his 10% disability rating. Because the BVA failed to support the determinations made in the January 3, 1991, decision with sufficient reasons or bases, the Court will remand both issues to the Board for readjudication.

[337]*337I. FACTUAL BACKGROUND

Appellant served honorably in the United States Air Force from December 12, 1956, until January 15, 1959. R. at 17, 61, 114. The Veterans’ Administration (now Department of Veterans Affairs) (VA) Chicago, Illinois, Regional Office (RO) granted service connection for appellant’s disability resulting from postoperative residuals of a left medial meniscectomy with degenerative joint disease, and initially evaluated this disability as 0% disabling (noncompensable) from March 1, 1975. See R. at 17, 63. On February 2, 1984, after reviewing the results of a December 7, 1983, examination (not of record), which found that “anterior drawer and Lachman tests conducted on appellant’s knee were mildly positive, [and] the pivot shift test is grade I/II and patella-femoral crepitus is clearly heard,” the RO concluded that appellant’s condition had reached a compensable degree of disability,, and evaluated appellant’s left knee condition as 10% disabling, effective September 22,1983. R. at 17. A September 4, 1984, RO decision resulted in an increase in appellant’s left knee disability rating to 20%, effective August 9, 1984. R. at 18. On January 1, 1986, the Board denied appellant’s claims of entitlement to an effective date for a compensable rating earlier than September 22, 1983, and to a rating in excess of 20% for his left knee condition. R. at 19-25. On March 3, 1987, the Board again denied appellant’s claim of entitlement to an increased (compensable) disability evaluation for his left knee condition prior to September 22, 1983. R. at 28-33.

In October 1988, appellant submitted a claim of entitlement to a rating higher than the 20% rating which had been assigned for his left knee condition in September 1984 (see R. at 55, 63), and on December 12, 1988, the VA requested that a medical examination be conducted to determine whether appellant’s service-connected left knee condition warranted an increased rating. R. at 46. Appellant underwent a VA examination on January 25, 1989, which revealed that appellant’s left leg was %" shorter than his right, that his left knee had a full range of motion, that he ambulated without limp or pain, and that his left knee showed “no effusion, instability, tenderness, Murray drawer apprehension ... [or] quad or calf atrophy.” R. at 47.

In February 1988, appellant, through his wife, had submitted a letter which indicated that he had experienced instability problems with his right leg, and that he attributed his right leg instability to his service-connected left knee condition. R. at 48.- In his February 1988 correspondence appellant requested that the VA consider his claim for a right knee disability as secondary to his service-connected left knee condition (secondary service connection). Id. On April 7, 1989, the RO adjudicated appellant’s claims for a higher disability evaluation for his service-connected left knee condition, and for entitlement to service connection for a right knee disability as secondary to his service-connected left knee disability. R. at 55. The RO reviewed private medical records that appellant had submitted which reflected treatment he had received in 1972, 1984-85, and 1988-89 (R. at 1-4, 35-36, 38, 40, 42-45), and determined that appellant’s left knee condition had improved. R. at 56. The RO concluded that the improvement in appellant’s condition warranted a “decreased evaluation for [appellant’s] service[-]connected left knee condition, subject to the provisions of 38 C.F.R. § 3.105(e).” Id. In a rating decision of April 7,1989, the RO reduced appellant’s 20% service-connected disability evaluation for his left knee condition to 10%, and denied appellant’s claim of entitlement to secondary service connection for his right knee disability. Id. In correspondence dated May 23,1989, the VA informed appellant of the April 7, 1989, rating decision which reduced his service-connected disability rating, and notified him that he would be scheduled to undergo a physical examination in connection with his claims. R. at 57.

On June 6, 1989, appellant filed a Notice of Disagreement (R. at 58), and on June 15, 1989, the RO confirmed the April 7, 1989, decision which had decreased appellant’s disability evaluation for his left knee condition from 20% to 10%, and had denied his claim of entitlement to secondary service [338]*338connection. R. at 60. The VA issued a Statement of the Case (SOC) on July 19, 1989 (R. at 62-66), and appellant perfected his appeal to the Board on July 28, 1989. R. at 67. On October 2, 1989, appellant testified under oath at the RO, regarding both claims. R. at 69-84. In November 1989, the RO requested that a disability examination be conducted to determine the extent of appellant’s left knee disability. R. at 90, 93. When scheduling this examination, the RO requested in writing that the VA examiner render an opinion concerning the issues whether the discrepancy in the lengths of appellant’s legs was due to his service-connected left knee disability, and whether appellant’s right knee condition was a secondary result of his service-connected left knee condition. Id. The VA conducted this examination on December 12, 1989. R. at 91-96.

The December 1989 examination reports revealed the following: no leg length discrepancy, no laxity in the 0 to 125 degree range of motion of appellant’s left knee, 0 to 135 degree range of motion of the right knee, slight pain in the medial joints, and minimal evidence of arthritis in appellant’s left knee, with no arthritis evident in the right knee. R. at 93 (duplicated at 96). A radiographic report of appellant’s knees, hip joints, and pelvis noted mild degenerative changes and indicated that the examination “was otherwise unremarkable.” R. at 94. Although specifically requested to do so, the physician conducting the December 1989 examination provided no opinion on the question whether appellant’s right knee condition was the secondary result of his service-connected left knee condition. See R. at 90, 93. On January 22, 1990, an RO hearing officer confirmed and continued the April 7, 1989, decision which reduced appellant’s service-connected left knee disability to 10% and which denied appellant’s claim that his right knee condition be awarded service connection as secondary to his left knee condition. R. at 101-02. The VA issued a Supplemental SOC on February 8, 1990 (R.

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Bluebook (online)
5 Vet. App. 335, 1993 U.S. Vet. App. LEXIS 205, 1993 WL 239092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-brown-cavc-1993.