BVA9420318
DOCKET NO.  92-15 642     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama

THE ISSUES

1.  Whether the rating decision of January 8, 1980, denying
service connection for chondromalacia patella of the right knee,
was based on clear and unmistakable error.

2.  Whether the rating decision of May 29, 1984, denying service
connection for chondromalacia patella of the right knee, was
based on clear and unmistakable error.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

William L. Pine, Counsel

INTRODUCTION

The appellant served on active duty from June 1972 to July 1979
and from October 1981 to January 1984.

The instant appeal arises from a rating decision of October 1990,
in which the Department of Veterans Affairs (VA) Regional Office
(RO) denied a claim for service connection for a right knee
disorder as secondary to a service-connected left knee disorder.
During the pendency of the appeal, the appellant raised claims of
clear and unmistakable error (CUE) in the rating decisions of
January 1980 and May 1984.  Subsequent to a remand of October
1993 from the Board of Veterans' Appeals (Board), the RO granted
direct service connection for chondromalacia patella of the right
knee, based on new and material evidence of entitlement, and
found no CUE in the denials of the claim in the rating action
under review.  The appellant now prosecutes his appeal from the
May 1994 denial of earlier entitlement to service connection
based on the finding of no CUE in prior final rating decisions.

In his October 1992 brief, the appellant also claimed that there
was clear and unmistakable error in the January 1980 rating
decision assigning a noncompensable rating to the original grant
of service connection for the left knee.  That claim has not been
developed or adjudicated and is not ripe for appellate review.
The claim is not "inextricably intertwined," see Harris v.
Derwinski, 1 Vet.App. 180 (1991), because resolution of the claim
rests on different facts and neither negative nor affirmative
results in its adjudication could affect any result in the
instant claim.  The matter of clear and unmistakable is referred
to the RO for appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that the facts of record clearly and
unmistakably compelled a finding of entitlement to service
connection for chondromalacia patella, and the failure to so find
was a clear and unmistakable error both in January 1980 and in
May 1984.

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(s).
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 denial of service connection for chondromalacia
patella of the right knee in the rating decision of January 8,
1980, was a clear and unmistakable error and the decision must be
reversed.  Pursuant to this finding, the claim of clear and
unmistakable error in the rating decision of May 29, 1984, is
moot, and the Board takes no action on that issue.

FINDINGS OF FACT

1.  The January 8, 1980, denial of the claim of entitlement to
service connection for chondromalacia patella of the right knee
was on the grounds that the condition was not shown by the
evidence of record.

2.  The appellant was notified of the January 1980 rating
decision and of his appellate rights by letter of January 23,
1980.

3.  The appellant did not file a notice of disagreement within
one year after the date of the letter notifying him of the result
of the January 1980 rating decision.

4.  The service medical records of record in January 1980 clearly
show the onset of chondromalacia patella of the right knee.

5.  The VA examination report of October 1979 clearly describes
positive clinical findings as to both knees, and the assessment
of "normal knee exam" clearly was inconsistent with and
unsupported by the findings reported.

6.  A VA regulation, compelling rejection of examination
diagnoses not supported by the examination findings, was in
effect on January 8, 1980.

CONCLUSION OF LAW

The rating decision of January 8, 1980, contained clear and
unmistakable error and is reversible.  38 U.S.C.A. § 5107;
38 C.F.R. §§ 3.104(a), 3.105(a) (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

"The decision of a duly constituted rating agency . . . will be
final and binding . . . as to conclusions based on evidence on
file at that time . . . ."  38 C.F.R. § 3.104(a) (1993).  To
determine whether the rating decision of January 8, 1980, may now
be reversed because of clear and unmistakable error in that
decision, see 38 C.F.R. § 3.105(a) (1993), certain determinations
must be made.

[The] Court [of Veterans Appeals] propounded a three-
pronged test to determine whether CUE is present in a
prior determination: (1) "[e]ither the correct facts,
as they were known at the time, were not before the
adjudicator (i.e., more than a simple disagreement as
to how the facts were weighed or evaluated) or the
statutory or regulatory provisions extant at the time
were incorrectly applied, " (2) the error must be
"undebatable" and of the sort "which, had it not been
made, would have manifestly changed the outcome at the
time it was made," and (3) a determination that there
was CUE must be based on the record and law that
existed at the time of the prior adjudication in
question.

Damrel v. Brown, 6 Vet.App. 242, 245 (1994), (quoting Russell v.
Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)).

The RO concluded, in January 1980, that chondromalacia patella
was not shown by the evidence of record.  It was misled by the
failure to apply a VA regulation.  Had the regulation been
applied, it manifestly would have resulted in a revision of an
inadequate and factually incorrect VA examination report that was
apparently determinative of the negative result.

The service medical records before the RO in January 1980
revealed that the appellant was negative for right knee disorder
on entrance into service in 1972, and developed right knee
symptoms during his first year of service.  He first complained
in June 1973, and the impression on examination was
chondromalacia patella.  An orthopedic consultation report of
October 1973 included the opinion that the findings were
indicative of a knee that was probably going to develop
degenerative signs under the kneecap.  X-ray examinations in
March 1975 first were negative, then showed an ill-defined
calcific density within the infrapatellar joint space, thought to
be possibly a loose body within the joint or a small area of
chondrocalcinosis.  Examination in April 1976 found bilateral
patellar ligament laxity (the appellant had injured his left
knee), and x-ray examination of the right knee revealed medial
joint space narrowing.  The appellant continued to complain of
right knee pain and weakness throughout service.  An examination
in June 1978 failed to find a significant basis for the
complaints.  Another examination in June 1978 recommended that VA
perform an arthrogram after the appellant's separation from
service.  A February 1979 examination was normal.

On VA examination in August 1979, an x-ray study of the knee was
normal.  In October 1979, the examiner noted, apparently as to
both knees, mild patellofemoral crepitation and mild
patellofemoral pain with quadriceps contraction.  There was no
effusion, and range of motion was 0 to 140 degrees.  The
impression reported was normal knee examination.

VA regulation required that "[i]f a diagnosis is not supported by
the findings on the examination report, . . . , it is incumbent
upon the rating board to return the report as inadequate for
evaluation purposes.  38 C.F.R. § 4.2 (1979).  The applicability
of regulations in part 4, title 38 Code of Federal Regulations,
to VA examinations for the purpose of determining entitlement to
service connection is readily apparent in the regulation that
permits the RO to request a supplemental opinion if an
examination report is inadequate "as a basis for the required
consideration of service connection . . . ."  38 C.F.R. § 4.70
(1979).

"A CUE is "undebatable, so that it can be said that
reasonable minds could only conclude that the original
decision was fatally flawed at the time it was made."
Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en
banc); Porter v. Brown, 5 Vet.App. 233, 235 (1993).
Where evidence establishes such error, the prior
decision must be revised.  Russell, 3 Vet.App. at 314.

Olson v. Brown, 5 Vet.App. 430, 433 (1993).

It is manifestly obvious from the service medical records that
the appellant had ongoing right knee problems in service, and
that there was clinical evidence of ongoing problems at the time
of the October 1979 VA examination.  The acceptance of the VA
examination report impression, "normal knee exam," in clear
contradiction to the described, objectively observed clinical
findings, and the failure to note the inconsistency and obtain
another examination report, demonstrates the type of clear and
unmistakable error, prejudicial to the veteran, which must be
reversed.

Upon reversal of the January 8, 1980, rating decision, the
effective date of the grant of service connection will be as if
the correct decision had been made on the date of the reversed
decision.

ORDER

Having found clear and unmistakable error in the January 8, 1980,
rating decision, denying service connection for chondromalacia
patella, that rating decision is reversed.

          J.F. GOUGH
          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.