BVA9505565 DOCKET NO. 92-04 528 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a bilateral knee replacement due to a bilateral knee injury and arthritis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from December 1942 to April 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1991 rating decision from the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO denied, among other things, the veteran's claim for bilateral knee replacement due to a bilateral knee injury and arthritis (bilateral knee disorder). The case was remanded for further development in November 1992. In September 1993, the Board denied the veteran's claim for service connection for bilateral knee disorder. The veteran appealed to the United States Court of Veterans Appeals (Court). In a July 1994 Memorandum Decision, the Court vacated the Board's September 1993 decision and remanded the case for further development in compliance with Court's decision. [citation redacted]. Following the Court's remand, the Board, as per the Court's decision, remanded the case for further development in October 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not granting service connection for bilateral knee disorder. The veteran asserts that service connection for bilateral knee disorder is warranted. He contends that the ship he was assigned to in service, U.S.S. Abner Read DD-526, was attacked and eventually sunk. The veteran alleges that during the attack he injured his knees and that such injuries were the onset of his bilateral knee disorder. 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 preponderance of the evidence supports the claim for entitlement to service connection for bilateral knee disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran served on active duty in WW II and sustained inservice injuries during an enemy attack. 3. The veteran currently suffers from bilateral knee disorder which is attributable to his period of service. CONCLUSION OF LAW Bilateral knee replacement and arthritis is due to a bilateral knee injury which was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). In addition, where a veteran served ninety (90) days or more during a period of war and arthritis becomes manifest to degree of ten percent (10%) within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Service medical records do not indicate any symptoms or medical findings suggestive of a bilateral knee disorder. The first evidence of any orthopedic treatment was in 1954, almost 10 years after the veteran was discharged from active duty. At that time the veteran was seen for complaints of pain in the right hip and leg following an automobile accident. There was no indication that the right knee was specifically treated. The first evidence specifically regarding the veteran's knee disorder was an August 1976 X-ray report of the right knee which revealed narrowing of the medial joint space with degenerative arthritic changes suggesting an old cartilage injury. In September 1983 Jerry Jochims, M.D., examined the veteran's knees and concluded that he had remarkable degeneration of both knees for his age and almost total obliteration of the medial joint compartment in both knees. The veteran underwent bilateral artificial knee replacements in November and December 1985. On a May 1991 VA examination report, the examiner concluded that the veteran had degenerative joint disease requiring total knee replacement. He reported that although the onset of the veteran's symptoms occurred in the military, he could not directly relate his degenerative changes to those injuries. Vinal W. Jorgenson, a shipmate of the veteran's during WW II, maintained on a December 1991 statement that the veteran was injured during an enemy attack of the U.S.S. Abner Read DD-526. [redacted] verified that the veteran was aboard ship when it was hit. On a December 1992 VA examination report, the examiner diagnosed the veteran as having status post bilateral total knee replacement. He noted that the veteran's reported history of bilateral knee twisting injuries and meniscal tears was a plausible one and could have led to early degenerative joint disease. In a September 1993 decision the Board denied the veteran's claim for entitlement to service connection for a bilateral knee replacement due to a bilateral knee injury and arthritis. The Board concluded that there was no medical evidence to substantiate the veteran's contention that his current bilateral knee problems were the result of any inservice knee injury. As previously noted, that decision was vacated and remanded by the Court in July 1994. The Court concluded that the Board failed to obtain a clarification from the examiner who examined the veteran's knees in December 1992 as to the probability that the veteran sustained a meniscal tear in service and, if so, the probability that such a tear in service was causally related to the appellant's present disability. Following the Court's instructions the Board remanded the case for further development in October 1994. The RO was requested to accord the veteran a VA orthopedic examination by the examiner who examined him in December 1992 to determine the nature, extent, and etiology of his current bilateral knee disability. On a November 1994 VA examination the veteran complained of right knee instability and left knee buckling. He indicated that his knees hurt after 5 minutes of walking, but had improved since his total knee replacement surgeries. The examiner reported that the veteran had minimal right knee crepitus with no swelling, deformity, or further impairment. Range of motion studies of both knees revealed extension to 5 degrees and flexion to 135 degrees. The examiner's final diagnosis included bilateral total knee arthroplasties. He reported that he reviewed the statements of the veteran's former service associates, a letter from Dr. Jochims and the veteran's history. From this he concluded that, within a reasonable degree of medical certainty, the veteran had injuries as described with internal derangement of his knees, and that this led to earlier arthritis and the early need for total knee arthroplasties. He also reported that internal derangement of the knees leading to early arthritis was caused by a bomb throwing the patient into the air and having him come down with twisting injuries and such knee injuries were a very plausible etiology for his current condition. Dr. Jochims submitted a November 1994 statement in which he reported that, within a reasonable degree of certainty, the veteran sustained injuries to his knees at a relatively young adult age. These injuries produced tearing of the posterior portion of the medial meniscus and this process, within a reasonable degree of medical certainty, eventuated in the severe degenerative process which necessitated surgery. On a December 1994 rating decision, the RO denied service connection for a bilateral knee replacement due to a bilateral knee injury and arthritis on the grounds that the veteran's allegations and opinion that the original injury incurred in service was not supported by the evidence of record in that the evidence of record indicates that the earliest injury was in 1976. The RO considered the opinions by the VA examiner and Dr. Jochims as to the etiology of the veteran's bilateral knee disorder which indicated that it was most likely related to inservice knee injuries. However, they felt that the evidence, itself, could not support a finding of an inservice injury to the knees. The position of the RO in this appeal does not take into consideration the provisions of 38 U.S.C. § 1154(b) (West 1991). This case presents a situation where there are no official records of an incurrence of any injury. However, the record contains statements from former service associates which establish that the veteran was involved in an attack in combat while aboard ship and that he was injured in some fashion. Thus, we must find that the veteran was injured while in service. The next step is to determine what kind of injury the veteran sustained. The record is clear that by August 1976 the veteran had evidence of an injury to the right knee and that it was an old injury. The question remains as to when, between November 1944 and August 1976, was the right knee injured. While the veteran was involved in an automobile accident in 1954 and had complaints concerning pain in the right hip and leg, the medical records are silent with respect to any involvement of the knee at that time. Therefore, no finding can be made that there was an injury to the knee at that time. What is most significant is the opinion expressed by the veteran's treating physician, Dr. Jochims. He is of the opinion that the veteran had had injuries to his knees and at a relatively young adult age. The record shows that the veteran was born on December [redacted] 1924 and was, therefore, 19 years old at the time of the attack on November 1. 1944. Certainly, as the record now stands, the only suggestion of the veteran being involved in an accident which could result in injury to the knees at a young age was the attack aboard ship in service. When this information is coupled with the opinion of the VA examiner in November 1994, which was to the effect that the kind of explosion and fire which occurred on November 1, 1944 was the kind of incident which could likely result in twisting injuries to the knees, the preponderance of the evidence is in favor of the veteran. Absent any evidence that there was a frank injury to the knees sometime after November 1944 and before August 1976 (there is no evidence to this effect), it must be concluded that it is most likely the veteran, indeed, sustained injuries to his knees on November 1, 1944 which resulted in his current knee disorder. ORDER Entitlement to service connection for a bilateral knee replacement due to a bilateral knee injury and arthritis is granted. JAN DONSBACH 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.