Citation Nr: 0002301	
Decision Date: 01/28/00    Archive Date: 02/02/00

DOCKET NO.  98-21 145	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to service connection for degenerative joint 
disease of the knees.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans 
Service


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

W. Yates, Associate Counsel


INTRODUCTION

The appellant served on active duty from November 1963 to 
November 1965 and from November 1990 to February 1991.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a April 1998 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Atlanta, Georgia.  That rating decision denied service 
connection for degenerative joint disease of the knees. 


FINDINGS OF FACT

1.  The evidence of record indicates that the appellant 
currently has degenerative joint disease of the knees.

2.  The appellant alleges that he injured both of his knees 
while on a two-week period of active duty training during the 
summer of 1984, and that he has suffered from bilateral knee 
pain since that time.

3.  The appellant also alleges that his bilateral knee 
disorder was aggravated during his period of active duty 
service from November 1990 to February 1991.

4.  The appellant has presented a plausible claim for service 
connection for degenerative joint disease of the knees.


CONCLUSION OF LAW

The claim of entitlement to service connection for 
degenerative joint disease of the knees is well grounded.  
38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. 
App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per 
curiam) (table).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. 
denied, 524 U.S. 940 (1998), the United States Court of 
Appeals for the Federal Circuit (Federal Circuit) held that, 
under 38 U.S.C. § 5107(a), the Department of Veterans Affairs 
(VA) has a duty to assist only those claimants who have 
established well grounded (i.e., plausible) claims.  More 
recently, the United States Court of Appeals for Veterans 
Claims (Court or CAVC) issued a decision holding that VA 
cannot assist a claimant in developing a claim which is not 
well grounded.  Morton v. West, 12 Vet. App. 477 (July 14, 
1999), req. for en banc consideration by a judge denied, No. 
96-1517 (U.S. Vet. App. July 28, 1999) (per curiam).  

Once a claimant has submitted evidence sufficient to justify 
a belief by a fair and impartial individual that a claim is 
well grounded, the claimant's initial burden has been met, 
and VA is obligated under 38 U.S.C. § 5107(a) to assist the 
claimant in developing the facts pertinent to the claim.  
Accordingly, the threshold question that must be resolved in 
this appeal is whether the appellant has presented evidence 
that the claim is well grounded; that is, that the claim is 
plausible.  

For a service-connection claim to be well grounded, there 
generally must be: 
(1) medical evidence of a current disability; (2) medical 
evidence, or in certain circumstances lay evidence, of 
inservice incurrence or aggravation of a disease or injury; 
and (3) medical evidence of a nexus between the asserted 
inservice injury or disease and the current disability. See 
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per 
curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Elkins 
v. West, 12 Vet. App. 209, 213 (1999) (en banc) (citing 
Caluza, supra, and Epps v. Gober, 126 F.3d 1464, 1468 (Fed. 
Cir. 1997) (expressly adopting definition of well-grounded 
claim set forth in Caluza, supra), cert. denied sub nom. Epps 
v. West, 524 U.S. 940, 118 S. Ct. 2348, 141 L. Ed. 2d 718 
(1998) (mem.)).  Alternatively, either or both of the second 
and third Caluza elements can be satisfied, under 38 C.F.R. § 
3.303(b) (1998), by the submission of (a) evidence that a 
condition was "noted" during service or during an applicable 
presumption period; (b) evidence showing postservice 
continuity of symptomatology; and (c) medical or, in certain 
circumstances, lay evidence of a nexus between the present 
disability and the postservice symptomatology. Savage v. 
Gober, 10 Vet. App. 488, 495-97 (1997); see McManaway v. 
West, 13 Vet. App. 60, 65 (1999).  The credibility of the 
evidence presented in support of a claim is generally 
presumed when determining whether it is well grounded. See 
Elkins, 12 Vet. App. at 219 (citing Robinette v. Brown, 8 
Vet. App. 69, 75-76 (1995)). 

In this case, the appellant contends that service connection 
is warranted for degenerative joint disease of the knees.  
Specifically, the appellant alleges that he injured both of 
his knees during a two-week period of active duty training in 
the summer of 1984 for the Army National Guard.  Furthermore, 
he claims that this bilateral knee disorder was aggravated 
during his period of active duty service from November 1990 
to February 1991. The appellant also alleges that he has 
suffered from bilateral knee pain since that time. See 
Savage, 10 Vet. App. at 495.  A review of the appellant's 
service medical records revealed treatment for bilateral knee 
pain.  Current medical evidence revealed a diagnosis of 
degenerative joint disease of both knees. Under these 
circumstances, the Board concludes that the appellant's claim 
is plausible, and hence well grounded under the 38 C.F.R. § 
3.303(b) continuity-of-symptomatology alternative criteria 
and Savage, supra. See Hodges . West v, No. 98-1275 (U.S. 
Vet. App. Jan. 12, 2000); McManaway v. West, 13 Vet. App. 60, 
65 (1999);
Savage v. Gober, 10 Vet. App. at 495-97.


ORDER

The claim of entitlement to service connection for 
degenerative joint disease of the knees is well grounded.  To 
this extent only, the appeal is granted.


REMAND

Because the claim of entitlement to service connection for 
degenerative joint disease of the knees is well grounded, VA 
has a duty to assist the appellant in developing facts 
pertinent to the claim.  38 U.S.C.A. § 5107(a) (West 1991); 
38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 
(1990).

After a thorough review of the evidence of record, the Board 
concludes that the appellant's claim needs to be remanded to 
the RO for further evidentiary development.  At the hearing 
before the Board in October 1999, the appellant testified 
that he originally injured his knees during a two-week period 
of active duty training in the summer of 1984 for the Army 
National Guard.  He specifically indicated that he injured 
his knees after the armored personnel carrier in which he was 
riding drove off the road down an embankment.  He also claims 
that his bilateral knee disorder was aggravated during his 
period of active duty service from November 1990 to February 
1991.  

After reviewing the appellant's claims file, it does not 
appear that the complete records relating to the appellant's 
national guard service have been obtained.  Accordingly, the 
Board believes that another attempt should be made to secure 
complete copies of the appellant's service medical records 
and his service personnel records.  VA's duty to assist is 
heightened when records are in the control of a government 
agency. Gobber v. Derwinski, 2 Vet. App. 470 (1992). 

At his hearing, the appellant testified that he was treated 
by P. Broun, M.D. for his bilateral knee disorder starting 
approximately in 1985.  He also indicated that he may have 
additional evidence, statements from fellow servicemen, to 
submit in support of his claim.  In view of the nature of the 
appellant's claim, all records of treatment should be 
obtained, if possible, and associated with the claims folder.  
See Littke v. Derwinski, 1 Vet. App. 90 (1990); Hyder v. 
Derwinski, 1 Vet. App. 221 (1991).  Accordingly, the RO, with 
the assistance of the appellant, should make an attempt to 
secure these records.  

To ensure that the Department of Veterans Affairs (VA) has 
met its duty to assist the claimant in developing the facts 
pertinent to the claim and to ensure full 
compliance with due process requirements, the case is 
REMANDED to the RO for the following development:

1. The RO should make another attempt to 
secure any additional service records 
that may exist pertaining to this 
appellant from the service department or 
the appropriate depository of records.   
In particular, the RO should request all 
available records relating to the 
appellant's Army National Guard service, 
including his service personnel records.

2.  The RO should request that the 
appellant provide the names, addresses 
and approximate dates of treatment for 
all VA and non-VA health care providers 
who have treated him for his bilateral 
knee disorder, both before and after his 
active duty service.  After obtaining any 
necessary authorizations, the RO should 
attempt to obtain copies of those 
treatment records identified by the 
appellant which have not been previously 
secured.  These records should include, 
if possible, the treatment reports from 
P. Broun, M.D.

3.  The RO should also request that the 
appellant submit any additional 
information he may have in support of his 
claim.  Specifically, at his October 1999 
hearing, the appellant indicated that he 
may be able to submit statements from 
fellow servicemen regarding his inservice 
knee injury.

4.  The RO should then readjudicate the 
appellant's claim for service connection 
for degenerative joint disease of the 
knees.  If deemed necessary by the RO, an 
examination of the appellant should be 
scheduled to determine the etiological 
cause of his bilateral knee disorder.

Thereafter, the case should be returned to the Board for 
further appellate consideration.  The appellant needs to take 
no action until so informed.  The purpose of this REMAND is 
to assist the appellant and to obtain clarifying information. 

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.



		
	BETTINA S. CALLAWAY
	Member, Board of Veterans' Appeals