BVA9502727 DOCKET NO. 92-11 749 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for post-traumatic osteoarthritis of both knees. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from March 1942 to November 1945. He was a prisoner of war in Germany from May 12, 1944, to May 6, 1945. This matter comes before the Board of Veterans' Appeals (Board) from a March 1989 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for arthritis of both knees. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that during World War II, he was forced to parachute from his plane after it was shot down over German-occupied territory. He alleges that he hit the ground awkwardly and rather hard. Although he does not remember actually hurting either knee at the time, he believes that he could have suffered an injury to his left knee. At any rate, he states that he now has arthritis in both knees. He also claims that his knee disorders were aggravated by a forced march while he was a prisoner of war and that he was later hospitalized for cellulitis of the right foot and for a knee problem. 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 evidence supports the claim of entitlement to service connection for post-traumatic osteoarthritis of both knees. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran is a former prisoner of war forcibly interned by the enemy in World War II. 3. The veteran is presently service-connected for a healed scar of the left first finger and a healed scar of the right foot, both at noncompensable evaluations, effective from November 1945. 4. The relevant current diagnosis is degenerative joint disease of both knees, with residuals of a well-healed osteotomy of the right knee. 5. There is a reasonable probability that the osteoarthritis of both knees is causally related to trauma in service. CONCLUSION OF LAW Post-traumatic osteoarthritis of both knees was incurred as a result of active service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307(d), 3.309(c) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran was a prisoner of war from May 12, 1944, to May 6, 1945 in Germany during World War II. As a preliminary matter, the Board notes that new and material evidence is not required to reopen the claim of a former prisoner of war for a disease presumptively service connected under 38 U.S.C.A.. § 1112(b). See 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); Yabut v. Brown, 6 Vet.App. 79, 82 (1993); Suttman v. Brown, 5 Vet.App. 127, 135 (1993). Since post-traumatic osteoarthritis is considered to be a POW presumptive service connected disorder, the Board must decide this case de novo. See 38 U.S.C.A. § 1112(b); 38 C.F.R. § 3.309(c) (1994). Service medical records are negative for reports of trauma to the knees or complaints of knee pain. A physical examination for Disposition Board Proceedings in May 1945, found the veteran unfit for further duty due to an ulcer of the right foot and cellulitis, caused by a blister he had received while on a forced march in Germany. The veteran's original claim for compensation or pension, dated in November 1949, made no reference to arthritis or to any knee disorder. In November 1988, the veteran filed a new claim for arthritis of both knees. From January to July 1987, the veteran underwent POW protocol examinations, which revealed the presence of osteoarthritis in both knees. The relevant diagnosis was status post right knee surgery and degenerative joint disease of the knees, bilaterally. Radiographic views of the right knee in January 1987 showed degenerative changes with medial compartment joint space narrowing and a lateral tibial osteotomy staple in place from former orthopedic surgery. There was no evidence of acute bone injury and no joint effusion. The impression was post-operative appearance of the right knee as described, with medial compartment joint space narrowing and degenerative changes as noted. An x-ray of the left knee in March 1987 showed degenerative changes with narrowing of the knee joint. The impression was mild-to-moderate degenerative changes of the left knee with medial joint compartment narrowing. Outpatient treatment records dated in 1987 refer to complaints of chronic knee pain, particularly in the left knee and note that the veteran had had arthritis of long standing, with a history of an operation to the right knee. He had twisted the left knee in April 1987, resulting in a sudden onset of increased pain, with swelling and discoloration. The clinical impression was degenerative arthritis in both knees. Another x-ray of the left knee in April 1987, provided in response to continued complaints of swelling and tenderness, showed what appeared to be a small joint effusion and moderate degenerative changes with some medial compartment joint space narrowing. There was no evidence of acute bone injury and no other abnormalities seen. The impression was degenerative arthritis and probable small joint effusion. A January 1989 disability evaluation examination revealed that the veteran had had bilateral knee pain for the past fifteen years, with an osteotomy of the right knee ten years previously. Although he still had pain, it was under control with non- steroidal anti-inflammatory drugs. The relevant diagnosis was degenerative joint disease, both knees. A series of x-rays in June 1990 revealed degenerative changes bilaterally. There was a narrowing of the medial femoral tibial joint compartment as well as significant degenerative changes involving femoral-patellar joint bilaterally. Osteophyte formation was noted at each end of the anterior tibial plateaus bilaterally. Changes following a right tibial osteotomy were noted. The impression was bilateral degenerative changes involving the medial joint compartments as well as the femoral patellar joints. The veteran testified at his January 21, 1992, hearing before the RO that his plane had been hit while flying on a mission over German-occupied territory in World War II, and the crew were told to bail out. He stated that in parachuting to the ground, his left fly boot came off, and in landing he put his knee up because he did not want to land on his bare foot. At the time, he did not think that he had been injured in any way. After having been incarcerated for a time, the veteran was made to undergo a forced march for a considerable distance during the German retreat from the Russians and had to sleep outside and in barns. When he was finally returned to American forces, he was treated for cellulitis of the right foot, which had been incurred during the forced march. He stated that his knees first began to bother him in the early 1970's and that sometime in the 1970's he had fallen on his right knee and had to have an osteotomy. Then both knees became painful. Based on the information provided in the claims file, the Board considered the possibility that the veteran's bilateral knee osteoarthritis might be traumatic in origin, rather than associated with the aging process, even though no medical evidence had been submitted to suggest that the disorder had been incurred in service. Accordingly, the Board submitted the case to a VA medical specialist for an opinion with respect to the etiology of the veteran's arthritis of the knees. In response to the Board's request, the physician stated that after a review of all the evidence of record, he believed that there was a reasonable probability that the degenerative joint disease of both knees was due to physical injuries in service. This physician noted that the record contained no details of civilian employment such as repetitive motion or stresses which might have contributed to osteoarthritis of the knees. There was also no evidence that chronic significant excess body weight was a factor. He stated that osteoarthritis may be asymptomatic over several years, but is generally progressive, although at a highly variable rate. Since osteoarthritis is a disorder that is non- linear in its evolution, a long period of asymptomatic disease is followed by a clinical "threshold." Although the rate of symptomatic progression may continue to be slow, the process may undergo an accelerated or exponential rate of progression. This physician pointed out that the veteran had had multiple factors during service which may have contributed to stresses and instability of the knee joints, including an awkward parachute landing, malnutrition, a forced march, and an infection of the right foot. He concluded that, although he could not say with certainty that the veteran's military service caused his osteoarthritis, he believed that there is a reasonable medical probability that it did. In summing up, he stated: "There are many gaps in the epidemiology of osteoarthritis, and this case involves the concept of latency." II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of a preexisting injury or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). In the case of a veteran who is a former prisoner of war and who was interned for not less than 30 days, certain diseases which become manifest to a degree of 10 percent or more after active military service shall be considered to have been incurred in service, notwithstanding that there is no record of such disease during the period of service. Among these diseases is post- traumatic arthritis. 38 U.S.C.A. § 1112(b)(12) (West 1991); 38 C.F.R. §§ 3.304(e), 3.309(c) (1994). This presumption can be rebutted, however, where there is affirmative evidence to the contrary of intercurrent injury or disease. 38 U.S.C.A. § 1113 (West 1991); 38 C.F.R. § 3.307(d) (1994). Regulations also provide that the circumstances attendant upon the individual veteran's confinement and duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the prisoner of war experience. 38 C.F.R. § 3.304(e) (1994). The Board notes that, in some respects, the fact issues in this case are similar to those in Bailey v. Derwinski, 1 Vet.App. 441 (1991). In this case, as in Bailey, the appellant experienced more than a year of imprisonment, with considerable physical deprivation, including severe weather conditions and a long, forced march, during which the prisoners were exposed to the cold and snow. In contrast to Bailey, however, the veteran in the instant case has not reported the occurrence of osteoarthritis within a few years after service. Moreover, he testified that the osteotomy of the right knee at some time in the 1970's was due to an intercurrent injury. In reviewing the totality of the evidence, the Board notes that the veteran has not been able to confirm any specific trauma to the knees during his time as a prisoner of war or that osteoarthritis appeared at an earlier age than might be expected normally. From this evidence alone, the Board is unable to determine whether the veteran's arthritis is due to trauma or to the effects of aging. However, the Board finds the veteran's account of his POW experiences to the credible and notes that service connection has long been established for residuals of other service-related injuries. In balancing the service medical evidence with the medical expert's opinion suggesting "a reasonable medical probability" of service incurrence, the Board finds that the evidence is in relative equipoise. With the application of the benefit-of-the-doubt doctrine, the veteran must prevail. See 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990. Accordingly, the claim for service connection for post-traumatic osteoarthritis of both knees is granted. ORDER The claim for service connection for post-traumatic osteoarthritis of both knees is allowed. CHARLES E. HOGEBOOM 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.