BVA9500313 DOCKET NO. 91-39 613 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for arthritis of both knees. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Suzie St. Vil, Associate Counsel INTRODUCTION The veteran had active military service from October 1943 to December 1945. He has been represented throughout his appeal by the Disabled American Veterans. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision of April 1990, by the Waco, Texas Regional Office (RO), which denied the veteran's claim for service connection for arthritis of both knees. The veteran and his wife appeared and offered testimony at a hearing before the Board sitting at Waco, Texas in July 1991. A transcript of the hearing is of record. The appeal was received at the Board in August 1991. In February 1992, the Board remanded the case to the RO for further development. A rating action of September 1992 confirmed the denial of veteran's claim for service connection for arthritis of both knees. A supplemental statement of the case was issued in October 1992. The appeal was received back at the Board in February 1993. In June 1993, the Board again remanded the case to the RO for further development. The requested action has been accomplished, and the case has been returned to the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he is entitled to service connection for a bilateral knee disorder, the right knee being worse than the left. The veteran indicates that his knees were injured in March 1944 when he ran into some underground obstacles, while coming ashore on the Marshall Islands. The veteran further indicates that he was treated for his knee injuries in service, and that he was admitted to Camp Wallace hospital upon discharge. The veteran explains that he did not file a claim for service connection at discharge because he was anxious to get home. The veteran maintains that, lately, he has been on crutches constantly. The veteran states that a surgeon at the VA hospital in Temple told him that he would soon need a complete mechanical knee implant. It is requested that the veteran be accorded the benefit of the doubt. 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 veteran's claim for service connection for arthritis of both knees. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. There is no objective evidence of record of any knee injury or any disability involving the knees, including arthritis, during service. 3. Any inservice knee injury was acute and resolved without residual disability, and no disability of either knee, including arthritis, was found at discharge. 4. The veteran's currently diagnosed degenerative joint disease of the knees was first shown present many years after discharge, and is not shown to be related to military service. CONCLUSION OF LAW Degenerative joint disease of both knees was not due to injury or disease incurred in or aggravated by wartime service, nor was it manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303(b), 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we note that we have found that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. That is, we find that he has presented a claim which is plausible. Moreover, after careful review of the evidentiary record, we are also satisfied that all relevant facts have been properly developed. The record reflects that the RO has made numerous attempts to obtain all available clinical records, as well as lay statements and other pertinent information. Therefore, no further assistance to the veteran is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). The available service medical records, including the entrance examination of September 1943 as well as the separation examination of December 1945, are negative for any complaints or findings of any musculoskeletal defects involving the veteran's knees. The report of the separation examination contains no reference to any history of knee injuries or complaints. In August 1972, when the veteran filed a claim for VA pension benefits, the only disability reported by him pertained to defective vision, residuals of an eye injury. There was no reference to any disability involving the knees, including arthritis. In August 1989, the veteran submitted correspondence to the VA in which he reported knee injuries that he stated occurred in March 1944. Received in October 1989 were VA medical records covering the period from November 1988 to October 1989. The records show that the veteran was seen in November 1988 for complaints of painful and sore right knee; he stated that he was unable to put any weight on it. In was indicated that the veteran had had surgery on the right knee about three years previously. When seen in April 1989, the veteran reported that he still had problems with the right leg. In July 1989, it was noted that the veteran had degenerative joint disease in the right knee for many years which was becoming progressively severe. The assessment was degenerative joint disease. Degenerative arthritis of both knee joints was noted as a diagnosis on VA hospitalization in October 1989. Received in December 1989 were lay statements from [redacted] and [redacted], who reported knowing the veteran ever since his return home from service. They also reported that the veteran has had problems with his knees ever since his discharge from service. No specific observations were reported. Of record is a lay statement from [redacted], dated in January 1990, wherein he reported knowing the veteran for the past 40 years. He stated that during that time, the veteran had had problems with his knees. No specific observations were reported. Also of record is a statement from [redacted], a nurse who worked for Dr. [redacted], received in March 1990, who indicated that Dr. [redacted], now deceased, had been the veteran's family doctor for approximately 40 years. Received in August 1990 were VA medical records covering the period from January 1990 to August 1990 which show that the veteran continued to receive clinical attention for various medical problems, including knee complaints. In April 1990, the veteran was seen with a complaint of knee pain on and off. The diagnosis was degenerative joint disease of the knees. A treatment note dated in August 1990 reported that the veteran was being followed for arthritis. At the time of his personal hearing before the Board sitting in Waco, Texas in July 1991, the veteran reported injuring his right knee when he hit an underground obstruction during an invasion of the Marshall Islands. The veteran indicated that a cast was put on the knees, but he never had any more trouble with them except for some pain. The veteran testified that, upon his return to the United States, he wanted to go home so desperately that he rejected the opportunity to receive medical attention. The veteran reported that within six months after his return home, he began receiving treatment for the knees. The veteran indicated that he subsequently moved to Texas, where Dr. [redacted] became his family doctor; he explained that this doctor gave him shots of cortisone when the pain got real bad. The veteran related that the knees really started causing problems approximately 8 to 10 years previously. The veteran stated that he had been receiving treatment at the VA for approximately 2 to 3 years; he further stated that the doctors had told him that he would eventually have to have a knee replacement. The veteran indicated that he received treatment from Dr. [redacted] until 1985 when he died. The veteran further testified that while he had injured both knees, it was the right one that has given him the most trouble. Received in August 1991 was a lay statement from [redacted], who reported being with the veteran when he injured his knees during service. He indicated that the veteran later reinjured the right leg when his leg was struck by a piece of steel from a large press. In a subsequent statement, obtained following the Board's February 1992 remand, Mr. [redacted] reported that he had no records or any log book entries pertaining to these incidents. Received in April 1992 were medical statements from Dr. Bart Norton dated in March 1985 and August 1985, which were addressed to Dr. [redacted]. In the statement dated in March 1985, Dr. Norton reported that the veteran had had progressive pain in the right knee over the last 2 years. He noted that the veteran probably had a degenerative meniscal tear which had "flared up". In the later statement dated in August 1985, Dr. Norton reported that the veteran's knee continued to be painful in spite of injections which gave him only partial and transient relief. Received in April 1992 was another statement from [redacted] who indicated that neither she nor Dr. [redacted]'s widow knew where the veteran's treatment records were. A private hospital report received in April 1992 reflects that the veteran was treated at the hospital in August 1985 with complaints of progressive pain in the right knee for the past two years. The report shows that he underwent arthroscopy of the patella, medial femoral condyle shaving, and partial lateral meniscectomy. Received in May 1992 were additional lay statements from individuals who collectively recalled the veteran injuring his knees while on active duty. One of the statements, from [redacted], has been referred to above. In the other statement, [redacted] recalled having seen the veteran being taken to sick bay by two men following an injury. He stated that he did know the extent or type of injury sustained, but recalled being told later that it involved one or both knees. Received in August 1993 was a statement from the widow of Dr. [redacted] who certified that her husband was the personal physician for the veteran from 1957 to 1986. No clinical records were received although they had been asked for by the RO. Received in January 1994 was a statement from the Chadwell Clinic, indicating that they were unable to locate any records on the veteran. The Board notes that the available service medical records contain no findings or treatment for injuries or disabilities involving the knees. The separation examination of December 1945 reflected no complaints or findings of any residuals of a knee injury or any indication of disability of either knee, including arthritis. Moreover, the report of the separation examination contains no reference whatsoever to any history of knee injury. The earliest postservice evidence of record showing treatment for the knees was in the mid 1980's, approximately 40 years following the veteran's discharge from military service. Thus on the basis of the objective clinical evidence, the Board concludes that the record demonstrates that arthritis of the knees developed long after service discharge and is not of service origin. The Board has reviewed the veteran's testimony regarding his knee injuries, as well as the statements from the two individuals who have reported witnessing or knowing about the claimed inservice knee injuries. We find the testimony and statements concerning the injuries to be sincere and, therefore, we accept as credible the account that the veteran may have sustained injury to one or both knees, as reported by him. Nonetheless, we must point out that no evidence of resulting disability, including arthritis, was found on physical examination at discharge. Therefore, we find that any injury or injuries sustained were acute and resolved without chronic disability of the knees attributable to service. We have also considered the veteran's account of the knee problems he reportedly had after service, as well as the lay statements which have been submitted which show the general recollection that the veteran has had knee problems since service. However, we find these accounts, unsupported by clinical evidence, to be less probative than the clinical record, which essentially documents that the veteran's current knee problems began during the early to mid 1980's. We note that the 1985 private hospital reports show a history of progressive right knee pain which had begun two years previously. We also find it to be significant that at the time of his 1972 claim for pension, the veteran made no reference to any disorder of the knees, since it obviously would have been to his benefit to have reported any medical or physical problem that he was having at that time. That he reported no such problem with his knees at the time, some 25 or more years after service, strongly suggests that he did not then have any impairment of the knees. Accordingly, we find that the weight of the evidence shows that the claimed arthritis of the knees is not attributable to service or to any incident thereof. In reaching this decision, the Board has considered the doctrine of granting the benefit of the doubt to the veteran but does not find the evidence is approximately balanced such as to warrant its application. 38 U.S.C.A. § 5107(b). The preponderance of the evidence is against the claim. ORDER Service connection for arthritis of both knees is denied. D. C. SPICKLER Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.