Citation Nr: 0004558	
Decision Date: 02/22/00    Archive Date: 02/28/00

DOCKET NO.  97-32 545A	)	DATE
	)
	)


THE ISSUE

Whether the October 1997 Board of Veterans' Appeals (Board) 
decision denying service connection for bilateral knee 
injuries should be revised or reversed due to clear and 
unmistakable error.


REPRESENTATION

Moving Party Represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

M. A. Herman, Associate Counsel



INTRODUCTION

The veteran had active military service from March 1952 to 
March 1957.  In October 1997, the Board issued a decision 
that denied service connection for bilateral knee injuries.  
In May 1999, the veteran, through his representative, 
submitted a motion for review of the Board's October 1997 
decision on the basis of clear and unmistakable error.


FINDING OF FACT

The veteran has not presented a viable claim of clear and 
unmistakable error in the October 1997 Board decision that 
denied service connection for bilateral knee injuries.


CONCLUSION OF LAW

The October 1997 decision of the Board that denied service 
connection for bilateral knee injuries was not clearly and 
unmistakably erroneous.  38 U.S.C.A. § 7111 (West Supp. 
1999); 38 C.F.R. §§ 20.1400, 20.1403, 20.1404, 20.1405 
(1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends that an October 17, 1997 Board decision 
that denied his claim of entitlement to service connection 
for bilateral knee injuries was clearly and unmistakably 
erroneous.  The law provides that a decision by the Board is 
subject to revision on the grounds of clear and unmistakable 
error.  If evidence establishes the error, the prior decision 
shall be reversed or revised.  38 U.S.C.A. § 7111.


Clear and unmistakable error is a very specific and rare kind 
of error.  It is the kind of error, of fact or of law, that 
when called to the attention of later reviewers compels the 
conclusion, to which reasonable minds could not differ, that 
the result would have been manifestly different but for the 
error.  Generally, either the correct facts, as they were 
known at the time, were not before the Board, or the 
statutory and regulatory provisions extant at the time were 
incorrectly applied.  38 C.F.R. 
§ 20.1403(a).

To warrant revision of a Board decision on the grounds of 
clear and unmistakable error, there must have been an error 
in the Board's adjudication of the appeal which, had it not 
been made, would have manifestly changed the outcome when it 
was made.  If it is not absolutely clear that a different 
result would have ensued, the error complained of cannot be 
clear and unmistakable.  38 C.F.R. § 20.1403(c).

Neither the Secretary's failure to fulfill the duty to assist 
nor a disagreement as to how the facts were weighed or 
evaluated constitutes clear and unmistakable error.  38 
C.F.R. § 20.1403(d).

I.  Factual Background

The veteran's service enlistment and discharge examinations 
revealed that his lower extremities were normal.  Service 
medical records contained no findings pertaining to 
complaints or treatment of bilateral knee injuries.  There 
were also no references to any type of inservice motor 
vehicle accident.

In January 1995, the veteran filed a claim of service 
connection for multiple conditions including the residuals of 
a bilateral knee injury.  He reported that he had been 
receiving medical care through the Richmond VA Medical Center 
(VAMC) since January 1995.  He made no indication as to 
whether he had received any other post-service medical 
treatment.


The veteran was afforded a VA general medical examination in 
October 1995.  He reported that he had been diagnosed as 
having severe degenerative joint disease of both knees, and 
that he had undergone a right total knee replacement in 1993 
and a left total knee replacement in January 1995.  Following 
a physical examination, the diagnosis, in pertinent part, was 
history of bilateral knee injuries.  The examiner commented 
that the veteran had developed severe degenerative joint 
disease over the years and had recently had right and left 
total knee replacements with excellent results.

By a rating action dated in November 1995, the RO determined 
that the veteran's claim of service connection for bilateral 
knee injuries was not well grounded.  The RO found there was 
no medical evidence that linked the veteran's current 
bilateral knee disorder with his military service.  The 
absence of a diagnosis of degenerative joint disease within 
one year of his service discharge was also cited a basis for 
the denial.

In February 1996, the veteran filed a notice of disagreement 
with respect to the November 1995 rating decision.  He 
asserted that he suffered injuries to his knees as a result 
of two inservice motor vehicle accident.  He said both 
accidents transpired while he was stationed in Quantico.  He 
recalled that the second accident was reported to the police.  
He asserted he received treatment for his injuries during his 
military service.  The veteran submitted a copy of a May 1988 
letter he had sent to the National Personnel Records Center 
(NPRC).  Acknowledging receipt of his service medical 
records, he informed the NPRC that the records were 
incomplete because there was no reference to his treatment 
for injuries stemming from two motor vehicle accidents.  He 
asked to be furnished a complete copy of his medical records.  
Similar arguments were presented by the veteran in statements 
received in March and October 1996.

In April 1996, the NPRC informed the RO that "all 
available" medical records pertaining to the veteran had 
been previously furnished.

The veteran filed a substantive appeal in October 1996.  He 
stated he was unsure as to whether he would be able to 
provide evidence that would document the continuity of his 
knee problems since service discharge.  He lamented that he 
had been unaware of the need to keep a record of his post-
service medical treatment.  He said he first sought VA 
treatment through the Providence VAMC in either the late 
1960s or early 1970s.  The veteran asserted that his service 
medical records and post-service VA medical records were 
incomplete.  He asked that due consideration be given to the 
"honest declaration" of his medical history.

At the veteran's request, a personal hearing before a hearing 
officer was scheduled in June 1997.  The veteran was notified 
of his scheduled hearing by a letter dated in May 1997.  The 
veteran failed to report for said hearing.

On October 17, 1997, the Board issued a decision denying 
service connection for bilateral knee injuries.  Service 
connection was denied on the basis that the veteran had 
failed to present a well grounded claim.  Citing Caluza v. 
Brown, 7 Vet. App. 498 (1995), the Board found there was no 
"competent medical evidence" relating the veteran's current 
knee problems with any incident, accident, or disease that 
occurred during his active military service.  The absence of 
evidence showing a diagnosis of arthritis within one year of 
service discharge was also cited as a reason to support the 
holding that the veteran failed to present a well grounded 
claim.  The Board further determined that the veteran's 
opinion that his knee problems were caused by his alleged 
inservice knee injuries lacked sufficient probative value 
because he did not have the medical expertise to render such 
an opinion.  See Moray v. Brown, 5 Vet. App. 211 (1993).

In a letter to the Board dated in November 1997, the veteran 
expressed his dissatisfaction that his claim for service 
connection for bilateral knee injuries had been denied 
without fully considering all the available evidence.  He 
indicated there were VA records, and possibly private 
treatment records, that would help to establish his claim.  
He stated he wished to pursue the matter "further."  He 
asked to be instructed as to what should be his "next 
move."  A motion for reconsideration of the October 1997 
decision was submitted by the veteran's representative in 
January 1998.

In February 1998, the Board informed the veteran that his 
motion for reconsideration had been denied.  However, the 
Board indicated that a recent public law had given the Board 
the authority to revise prior Board decisions on the grounds 
of clear and unmistakable error.  The veteran's motion for 
reconsideration on the basis of error was construed a request 
for revision of the October 1997 Board decision on the 
grounds of clear and unmistakable error.  He was told that 
the Board would review his request when the necessary 
regulations were finalized.

Thereafter, medical records from the Providence VAMC dated in 
July 1974, the Salt Lake City VAMC dated in August 1980, and 
the Richmond VAMC dated from July 1989 to November 1997 were 
associated with the claims folder.  Significantly, those 
records show that the veteran received evaluations and 
treatment for, but not limited to, complaints of bilateral 
degenerative arthritis of the knees.  While references were 
made to the veteran giving an inservice history of knee 
problems, there were no findings that related the veteran's 
degenerative joint disease of the knees to his military 
service.  

Between March and May 1999 the Board sought to determine 
whether the veteran wished to continue his motion for 
revision of the October 1997 decision.  Finally, at the 
request of the Board, the veteran's representative contacted 
the veteran in May 1999 to discuss the "CUE" options.  In 
this regard, the representative indicated that the veteran 
wanted to go forth with his request for revision of the 
October 1997 Board decision on the grounds of clear and 
unmistakable error.

In a statement dated in December 1999, the veteran, through 
his representative, presented his arguments as to why the 
October 1997 Board decision should be revised on the grounds 
of clear and unmistakable error.  The veteran argued that the 
Board's denial of the claim of service connection for the 
residuals of bilateral knee injuries as not well grounded was 
not in accordance with the law.  He maintained he had met the 
threshold burden of proving the existence of a well grounded 
claim.  He also asserted the Board failed to give proper 
consideration to sworn testimony he had given at a September 
1999 personal hearing.  Finally, he contended his bilateral 
knee problems were related to injuries sustained during his 
active military service.

II.  Analysis

Under the law that existed at the time of the Board's October 
1997 decision, service connection could be established when 
the facts, shown by evidence, demonstrated that a particular 
injury or disease resulting in disability was incurred in the 
line of duty in the active military service or, if pre-
existing such service, was aggravated by service.  
38 U.S.C.A. §§ 1110. 1131 (West 1991); 38 C.F.R. § 3.303(a) 
(1996).  Where a veteran served 90 days or more during a 
period of war, and arthritis became manifest to a degree of 
10 percent within 1 year from date of termination of such 
service, such disease would have been presumed to have been 
incurred in service, even though there was no evidence of 
such disease during the period of service.  This presumption 
was rebuttable by affirmative evidence to the contrary.  
38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. 
§ 3.307, 3.309 (1996).  Service connection could also have 
been granted for any disease diagnosed after discharge, when 
all the evidence, including that pertinent to service, 
established that the disease was incurred in service.  38 
C.F.R. § 3.303(d) (1996).  

A person who submitted a claim for benefits under a law 
administered by the Secretary had the burden of submitting 
evidence sufficient to justify a belief by a fair and 
impartial individual that the claim is well grounded.  A 
well-grounded claim was a plausible claim, one which was 
meritorious on its own or capable of substantiation.  Such a 
claim did not have to be conclusive but only possible to 
satisfy the initial burden of proof of 38 U.S.C.A. § 5107 
(a).  Murphy v. Derwinski, 1 Vet. App. 78, 81.  

A well-grounded claim was a plausible claim, one which was 
meritorious on its own or capable of substantiation.  
However, to be well grounded, a claim did not need to be 
conclusive but only had to be accompanied by evidence that 
suggested more than a purely speculative basis for granting 
entitlement to the requested benefits.  Dixon v. Derwinski, 3 
Vet. App. 261, 262-263 (1992).  Evidentiary assertions 
accompanying a claim for VA benefits had to be accepted as 
true for purposes of determining whether the claim was well 
grounded, unless the evidentiary assertion was inherently 
incredible or the fact asserted was beyond the competence of 
the person making the assertion.  Espiritu v. Derwinski, 2 
Vet. App. 492 (1992).  When the question involved did not lie 
within the range of common experience or common knowledge, 
but required special experience or special knowledge, then 
the opinions of witnesses skilled in that particular science 
to which the question relates was required.  Questions of 
medical diagnosis or causation required such expertise.  A 
claimant would not meet this burden merely by presenting lay 
testimony, because lay persons were not competent to offer 
medical opinions.  Id.  at 495.  

A claim for service connection required three elements to be 
well grounded.  There had to be competent evidence of a 
current disability (a medical diagnosis); incurrence or 
aggravation of a disease or injury in service (lay or medical 
evidence); and a nexus between the in service injury or 
disease and the current disability (medical evidence).  The 
third element could be established by the use of statutory 
presumptions.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

As referenced above, the veteran (through his representative) 
contends that the Board incorrectly reviewed the evidence 
and, in so doing, erred by failing to find his claim well 
grounded and grant service connection for bilateral knee 
injuries.  He argued that he had met the threshold burden of 
proving the existence of a well grounded claim.  He also 
maintained the Board did not give due weight to testimony he 
had rendered at a September 1999 personal hearing.  He 
further reasserted his opinion that his bilateral knee 
problems were related to injuries sustained during his active 
military service.

Regarding the argument that the Board should have found the 
claim of service connection for bilateral knee injuries to be 
well grounded, the Board finds that this allegation merely 
sets forth a disagreement as to how the Board in 1997 weighed 
or evaluated the evidence.  The veteran and his 
representative assert that the threshold burden of proving 
the existence of a well grounded claim is rather low, and 
that a plausible claim for service connection for bilateral 
knee injuries had been presented.  Again, this allegation 
merely sets forth a disagreement as to how the Board weighed 
or evaluated the evidence, and as such does not constitute 
clear and unmistakable error.  38 C.F.R. § 20.1403(d)(3).

The veteran's contention that the Board erred by not giving 
proper consideration to the testimony that he had given at a 
September 1999 hearing also fails to conform to the strict 
parameters of clear and unmistakable error.  In this regard, 
38 C.F.R. 
§ 1403(b)(1) clearly states that "review for clear and 
unmistakable error in a prior Board decision must be based on 
the record and the law that existed when that decision was 
made."  The testimony provided in September 1999 could not 
have been available to the Board when it rendered its October 
1997 decision, and the veteran did not testify that there was 
evidence before the Board in 1997 that it had not considered.

The Board also gives little weight to the veteran's opinion 
that his current bilateral knee problems are related to 
injuries that allegedly occurred in service.  The veteran is 
not medically competent to offer such an opinion, without 
supporting medical evidence.  See Espiritu v. Derwinski.  In 
fact, even if subsequent medical evidence (i.e. medical 
evidence received after the October 1997 Board decision) 
supports this contention, in adjudicating clear and 
unmistakable error claims, it is again pointed out that the 
Board can only review the record as it existed at the time 
the decision at issue was rendered.  38 C.F.R. § 
20.1403(b)(1).

Finally, the Board notes that VA medical records dated 
between July 1974 and November 1997 were associated with the 
claims folder subsequent to the rendering of the October 1997 
decision, and that those records reflected treatment of a 
bilateral knee disorder.  For a Board decision issued on or 
after July 21, 1992, the record that existed when that 
decision was made includes relevant documents possessed by 
the Department of Veterans Affairs not later than 90 days 
before such record was transferred to the Board for review in 
reaching that decision, provided that the documents could 
reasonably be expected to be part of the record.  See 38 
C.F.R. 20.1403(b)(2).  The Court has held that VA treatment 
records are considered to be constructively included within 
the record, and must be acquired if material to an issue on 
appeal.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  
Although not specifically raised by the veteran or his 
representative, the Board finds that the failure to obtain 
and consider these records in conjunction with the 
deliberation of the October 1997 decision does not constitute 
clear and unmistakable error.  As cited above, the 
Secretary's failure to fulfill the duty to assist is not 
considered to be an example of clear and unmistakable error.  
38 C.F.R. § 20.1403(d).  

Moreover, the VA medical records merely document post-service 
treatment for bilateral degenerative joint disease of the 
knees.  The records contain no findings that would link the 
veteran's bilateral knee disorder to his military service.  
In other words, the evidence contained in those records does 
not alter the essential facts of the veteran's claim as they 
were known at the time of the October 1997 decision.

In conclusion, the veteran's allegations fail as a matter of 
law.  The evidence does not show that the Board committed 
clear and unmistakable error in denying service connection 
for bilateral knee injuries in October 1997.


ORDER

The claimant's motion for revision or reversal of the Board's 
October 1997 decision denying service connection for 
bilateral knee injuries on the basis of clear and 
unmistakable error is denied.



		
	G. JIVENS-MCRAE
Acting Member, Board of Veterans' Appeals