BVA9505112 DOCKET NO. 93-08 052 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a left knee/leg disability. 2. Whether there was clear and unmistakable error (CUE) in a December 1945 regional office (RO) decision denying service connection for a left knee/leg disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from March 1942 to November 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 1991 decision by the Department of Veterans Affairs (VA) Sioux Falls, South Dakota, Regional Office (RO), which found that no new and material evidence had been presented to reopen a claim for service connection for a left knee/leg disability, and that a claimed issue of whether there was CUE in a December 1945 RO decision denying service connection for a left knee/leg disability had not been sufficiently raised. Following subsequently received service medical records, the RO determined that new and material evidence had been presented since the prior adverse decision as to the issue of service connection for a left knee/leg disability and, therefore, the claim was reopened. 38 C.F.R. § 3.156 (1993); Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The RO also developed for appellate consideration the issue of whether there was CUE in a December 1945 RO decision denying service connection for a left knee/leg disability. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his left knee/leg disability either began or was aggravated during active service. It is pointed out in his behalf that his preinduction examination was negative for any findings indicative of a left knee/leg disorder. It is further argued that findings reported on the veteran's separation examination are consistent with a chronic worsening or aggravation of the disability in question. His representative claims that clinical records pertaining to the veteran's treatment for a gunshot wound of the left lower extremity (from La Guard General Hospital in New Orleans, Louisiana), including the operation report, are not on file. It is requested that these records be obtained and the veteran be accorded a VA examination with an opinion on whether his left knee/leg disability was aggravated during service. The representative also claims that the RO did not discuss the law and regulation pertaining to aggravation in its statement of the case. It is also claimed on behalf of the veteran that there was CUE in a December 1945 RO decision denying service connection for a left knee/leg disability. The veteran alleges that the RO failed to consider a notation on his discharge physical examination to the effect that his wound was aggravated by military service, and another notation in the affirmative by a physician that his wound was aggravated by military service that was on the same examination report. It is also argued, in effect, that the RO failed in its duty to assist the veteran at that time by not obtaining relevant clinical records and according him a VA examination to evaluate the disability in question. DECISION OF THE BOARD The Board in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for a left knee/leg disability, and that there was no CUE in a December 1945 RO decision denying service connection for a left knee/leg disability. FINDINGS OF FACT 1. The veteran sustained a gunshot wound of the left lower extremity prior to going on active duty; he clearly and unmistakably entered active service with a chronic infection secondary to the gunshot wound; he experienced several exacerbations of the skin infection while on active duty; he underwent ameliorative surgery during service to remove the infected area; his preexisting residuals of a gunshot wound to the left lower extremity were not chronically worsened during service. 2. An RO decision in December 1945 denying service connection for a left knee/leg disability was not appealed in a timely manner and became final; the veteran has failed to show error of fact or law in the December 1945 RO decision, and has not presented reasons as to why the result would have been manifestly different but for an alleged error. CONCLUSIONS OF LAW 1. A left knee/leg disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 1991); 38 C.F.R. §§ 3.304(b), 3.306(b) (1994). 2. There was no CUE in a December 1945 RO decision denying service connection for a left knee/leg disability. Veterans Regulation No. 2(a), pt. II, par. III; VA Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from March 7, 1942, to November 1945. A report of a preinduction examination, performed in January 1942, is negative for any findings indicative of a left knee/leg disability. No musculoskeletal defects were noted. Service medical records show that the veteran was admitted to the Station Hospital in Camp Barkeley, Texas, on March 11, 1942, for evaluation and treatment of a sore on his left leg which had been present for about four weeks. He explained that he had been shot in the left leg, above the knee, in early February of that year. He had been given tetanus antitoxin and developed hives. He scratched one near the wound and it became infected. On examination there was a small healed scar on the medial surface of the left thigh above the knee. Just anterior to it was a large crusted area. The pertinent diagnosis was "abrasion, severe [with] mild cellulitis, rt. (sic) thigh due to scratching area of urticaria bout Feb. 15, 1942." This was determined not to have been incurred in line of duty, and to have existed prior to induction. The veteran was admitted to Camp Polk, Louisiana, Station Hospital on December 6, 1942, for evaluation and treatment of a localized, nonsuppurative cellulitis of the medial surface of the lower third of the left thigh secondary to a penetrating wound, which was reportedly accidentally incurred in January 1942, prior to induction into the service. No operation was performed at that time. The veteran's condition was reported as improved upon discharge, and he was returned to duty on December 17. The veteran was admitted to Camp Livingston, Louisiana, Station Hospital, on December 21, 1942, for an acute exacerbation of chronic, nonsuppurative cellulitis of the medial surface of the left thigh secondary to a gunshot wound of the left thigh, which was reportedly accidentally incurred when the veteran was hunting in December 1941 and a fellow hunter's gun discharged accidentally, which resulted in a charge (missile) striking him in his thigh. A prior hospitalization at the Camp Barkeley, Texas, Station Hospital from March 10, to March 20, 1942, was noted. It was reported that the veteran was transferred to La Garde General hospital in New Orleans, Louisiana, for further evaluation on January 29, 1943. The veteran was admitted to La Garde General Hospital on January 30, 1943, for further treatment of the cellulitis of the left thigh noted in the preceding paragraph. It was again reported that the infection was secondary to a gunshot wound of the left thigh accidentally incurred in a hunting incident in December 1941. The veteran claimed that the bullet wound had healed, but that the ulcer had remained open until his induction in March 1942. The veteran underwent excision of the ulcer on February 18, 1943. The final diagnosis was chronic, suppurative cellulitis of the medial surface of the left thigh secondary to a gunshot wound which existed prior to enlistment. He was discharged in May 1943 and returned to limited duty. The final report indicated as to line of duty "No-EPTI" (existed prior to induction). The veteran was admitted to an Army air field station hospital in Waycross, Georgia, in August 1943 for residuals of a gunshot wound of the left thigh. A scar measuring 8 cm. x 5 cm. was noted 2 centimeters above the left knee. It was again reported that the gunshot wound was accidentally incurred in December 1941, and it was further noted that the veteran was shot by a .22-caliber missile which was not removed and resulted in an abscess, which necessitated an operation in March 1942 at La Garde General Hospital, where "something" had been removed. There was some loss of subcutaneous tissue and roughly 10 percent of flexion. It was also again noted that the injury/wound had existed prior to enlistment. The veteran underwent a service discharge examination in November 1945. History obtained at that time included a bullet wound in the left knee in October 1941 and an operation in March 1943 at La Garde General Hospital. An affirmative answer was noted to the question of whether the disability was aggravated during service; which was recorded under the heading "Statement and Medical History of Examinee". The surgical scar was described as healed. Clinical evaluation of his musculoskeletal system was reported as normal. An RO decision in December 1945 denied the veteran's claim for service connection for a healed surgical scar on the medial aspect of the left knee secondary to removal of a bullet. The veteran was notified of the decision by a letter shortly thereafter. The decision was not appealed and became final. A VA medical certificate dated in October 1954 shows that the veteran was evaluated at that time for nausea, vomiting, pain in his abdomen and chest, severe headaches, tenderness over his sinus areas, and generalized weakness. There were no complaints or clinical findings reported at that time pertaining to residuals of a gunshot wound of the left lower extremity. The veteran was hospitalized in a VA medical center from August to October 1962 for injuries sustained in July 1962. There were no findings reported at that time pertaining to residuals of a gunshot wound of the left lower extremity. He was hospitalized again in a VA medical center during the latter part of 1964 for treatment of his post-service injuries. No pertinent clinical findings were noted at that time. Following receipt of the veteran's application to reopen his claim for service connection for a left knee/leg disability, pursuant to the RO's request, an office manager of Dr. Wingert of the Garretson Medical Clinic reported that the doctor's records only went back to 1959 when he began practice, and there was no mention of a gunshot wound to the veteran's leg. This reply was received by the RO in August 1988. VA clinical records, dated from 1985 to 1987, are negative for any findings pertaining to residuals of a gunshot wound of the left lower extremity. An RO decision in October 1988 found that no new and material evidence had been presented to reopen a claim for service connection for a left knee/leg disability. VA clinical records, dated from the 1980's to 1991, were received by the RO in 1991. The veteran was seen in April 1991 for evaluation of numbness of the left leg which he attributed to an old gunshot wound "during the war." He also complained of some tingling and numbness in the left foot. Clinical evaluation revealed tenderness over the surgical site in the distal medial left thigh. The assessment was peripheral neuropathy of unknown etiology, possibly secondary to a thigh injury. The VA clinical records are otherwise negative for any pertinent findings. II. Analysis A. Entitlement to Service Connection for a Left Knee/Leg Disability The Board initially finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, his claim is not inherently implausible. The relevant evidence has been obtained by the RO, and there is no further duty to assist him in developing the facts pertinent to his claim. Id. A gunshot wound of the left medial thigh was not objectively noted at the time of the veteran's entrance examination. However, within a few days after commencing active duty in March 1942, and for the remainder of his service which ended in November 1945, he repeatedly gave a history of sustaining a gunshot wound before service. In fact, he was seen approximately four days after going on active duty for evaluation and treatment of cellulitis of the left medial thigh region (initially incorrectly recorded as "right" thigh, as evidenced by all of the remaining medical documentation and the veteran's own statements), which was attributed to his preservice gunshot wound. In my judgment, residuals of a gunshot wound of the left medial thigh, including chronic infection, clearly and unmistakably preexisted active duty, and the presumption of soundness on entrance into service is rebutted. 38 U.S.C.A. § 1111. The veteran does not contend otherwise, as the thrust of his claim is that his preexisting disability of the left knee/leg region was aggravated while on active duty. Service connection may be granted if the preservice disability was aggravated by service. 38 U.S.C.A. § 1110. A preexisting disability will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. The service medical records show frequent evaluation and treatment of preexisting residuals of a gunshot would of the left medial thigh, including cellulitis. He was hospitalized within a few days after entering service for severe cellulitis attributable to the preexisting injury. He was hospitalized on several more occasions in late 1942 and early 1943 for an acute exacerbation of cellulitis in the same region attributable to the old injury. A review of this documentation shows that he underwent ameliorative localized surgery in March 1943 at La Garde General Hospital. Notwithstanding the representative's statements on this matter, the records of the hospitalization, including the pathology and operation reports, are on file. The localized surgery was clearly ameliorative in nature, specifically, for the purpose of removing an infected area proximate to the old gunshot wound that was noted near the time of his entry onto active service. The veteran was hospitalized again in August 1943, and it was reported at that time that he had a retained bullet in the left thigh region from his preservice injury. At the time of his separation examination in November 1945, clinical evaluation of his musculoskeletal system was reported as normal. No abnormal clinical or physical findings pertaining to residuals of a gunshot wound of the left thigh were noted at that time other than the scar. There was no clinical indication of functional impairment of the left knee or thigh. The evidence at the time of entry, during and at the time of separation from active duty, indicates, in my judgment, recurrent exacerbations or flare-ups of symptoms of disability that preexisted service. See Hunt v. Derwinski, 1 Vet.App. 292 (1991). Simply stated, the service medical records indicate recurrent problems prior to, at the time of entry, and during active duty attributable to a gunshot wound of the left thigh that occurred prior to service. I am unable to conclude that there was a chronic worsening of the veteran's preexisting disability during service. In support of this conclusion, I again note that the separation discharge examination was negative for any pertinent abnormal clinical findings, and the absence of any medical evidence relating to residuals of a gunshot wound of the left thigh or a left knee or leg disability during the decades that have elapsed since his separation from active duty. In fact, the post-service medical evidence that is of record is completely negative for any pertinent abnormal findings, other than some localized sensory changes noted in 1991 (and not clearly attributed to the gunshot wound), more than 45 years after service and almost 50 years after the original preservice injury. As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. §§ 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Thus, I conclude that the veteran's preexisting left knee/leg disability (or residuals of a gunshot wound of the left medial thigh) preexisted service and was not aggravated on account of active duty. Accordingly, service connection is not warranted. B. Whether there was CUE in a December 1945 RO Decision Denying Service Connection for a Left Knee/Leg Disability An RO decision in December 1945 denied the veteran's claim for service connection for a left knee/leg disability. That decision was not appealed and became final. The veteran now alleges CUE in that decision. The Board does not agree. If a claimant-appellant wishes to reasonably raise CUE, there must be some degree of specificity as to what the alleged error is, and, unless it is the kind of error... that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet.App. 40, 44 (1993). The veteran alleges that it was recorded on his discharge physical examination that his wound was aggravated by military service, and that there was a notation to the affirmative by a physician that his wound was aggravated by military service on the same examination report. He further claims that the RO failed to consider these findings. I find that his assertions are incorrect. While it is true that an affirmative answer was noted to the question of whether the disability was aggravated during service, that answer was given under the statement and medical history of the examinee, that is, the veteran. In other words, this was history provided by the veteran. The physician did not indicate anywhere on the clinical examination report that the disability at issue was aggravated. In fact, as noted above, the clinical evaluation of his musculoskeletal system was reported as normal. If no clinical defects were noted, it obviously follows that there was no chronic worsening or aggravation of the underlying condition. Even if the physician had checked yes to the question of aggravation, the overall clinical record, as noted above, strongly suggests otherwise. That is, even if the veteran's assertion is true, persuasive reasons have not been given as to why the result would have been manifestly different but for the alleged error. Fugo, above. The veteran has not alleged any additional error in the December 1945 RO decision. In short, he has not asserted that facts, as they were known at the time, were overlooked, or that the law and regulations were misapplied. Russell v. Principi, 3 Vet.App. 310, 313 (1992). Subsequently received evidence may provide a basis for reopening a previously denied claim, but not for finding CUE in the previous denial. It has been argued on his behalf that the RO failed in its duty to assist the veteran during the period of time in question by not according him a VA examination. However, a failure in a duty to assist is not CUE because, even if true, it only creates an incomplete rather than an incorrect record. Caffrey v. Brown, 6 Vet.App. 377, 383-384 (1994). Therefore, there is no basis for a finding of CUE in the December 1945 RO decision. The December 1945 RO decision may not be impugned in the manner suggested by the veteran's assertions. ORDER Service connection for a left knee/leg disability is denied. There was no CUE in a December 1945 RO decision denying service connection for a left knee/leg disability. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.