Citation Nr: 1343511 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 08-08 541 ) DATE ) ) Received from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from February 1946 to September 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In December 2009 and November 2011, the Board remanded the case to the RO for additional development. In September 2012, the Board dismissed the appeal due to lack of jurisdiction on the account of the Veteran's death. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013). Later that month, the Veteran's surviving spouse requested to be substituted for the Veteran as the appellant to continue the appeal and process the claims to completion. See 38 U.S.C.A. § 5121A (West Supp. 2013). In August 2013, the RO sent a letter to the appellant informing her that she was appointed as the substituted claimant and that the appeal would be processed to completion. In light of this information, the Board will proceed with consideration of the appeal with the surviving spouse as the substituted appellant. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). In December 2012, the appellant submitted an application for burial benefits and an application for Dependency and Indemnity Compensation, to include a claim for accrued benefits. As these claims have not been developed or adjudicated by the RO, the Board does not have jurisdiction to consider the merits thereof herein. As such, the Board refers these claims to the RO for appropriate actions. FINDINGS OF FACT 1. The Veteran's bilateral knee arthritis cannot be reasonably disassociated with his active military service. 2. The Veteran's right shoulder arthritis cannot be reasonably disassociated with his active military service. CONCLUSIONS OF LAW 1. Bilateral knee arthritis was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. Right shoulder arthritis was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Without deciding whether the notice and development requirements have been satisfied, the Board is not precluded from adjudicating the appellant's claims, because the Board is granting service connection. As such, this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992). Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. This requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Prior to his death, the Veteran asserted that service connection was warranted for a bilateral knee disorder and a right shoulder disorder. He contended that he injured his knees and right shoulder during a motor vehicle accident during service in Japan. The Veteran reported that he served in Japan from October 1946 through August 1947. He noted that, in May 1947, he was involved in a Jeep accident, that Sgt. S. of the motor pool was driving, and that E. H. was in the back seat. The Veteran stated that the driver struck a railroad bridge and that the man in the backseat was thrown out of the Jeep and that he hit the railroad track where he broke his neck and died. The Veteran further reported that both of his knees were cut to the bone by the dashboard, that he was thrown 40 feet down an embankment and was unconscious until the next day, and that he broke a bone in his right shoulder. He noted that he was taken to a hospital in Yokohama, Japan, where he remained for 6 to 7 weeks. The appellant contends that service connection is warranted for those same reasons. Post-service private medical records from Dr. M.G. show that the Veteran had bilateral knee and right shoulder disorders during the pendency of the claim prior to his death. In a January 2006 letter, Dr. M.G. stated that the Veteran had severe degenerative changes in all the joints involved, including both knees and the right shoulder. Treatment records from Dr. M.G., dated through December 2011 reflect similar findings. Most recently, in February 2012, Dr. M.G. reiterated that the Veteran had severe degenerative arthritis of both knees and the right shoulder. Thus, based on this evidence, the present disability element is established for both claims. The sole competent evidence addressing the possible relationship between the Veteran's bilateral knee and right shoulder arthritis, and his service, is from opinions provided by Dr. M.G. In the January 2006 letter, it was noted that Dr. M.G. had known the Veteran for many years. Dr. M.G. noted the Veteran's history of sustaining multiple injuries in a Jeep wreck during service, although it was noted to have occurred in 1946. Dr. M.G. stated that the Veteran had chronic shoulder and knee problems since the accident. Dr. M.G. indicated that the purpose of the letter was to document the severe degenerative changes to the Veteran's shoulders and knees that were related to the Jeep wreck in 1946. Pursuant to the Board's remand instructions, Dr. M.G. provided another letter in December 2011 with additional explanation. Dr. M.G. had treated the Veteran for over fourteen years for medical problems, including for chronic bilateral knee and right shoulder pain. Dr. M.G. stated that the pain was all from trauma associated with a Jeep accident in 1946 and that the Veteran was hospitalized in Japan for about six weeks. Significantly, Dr. M.G. explained that the Veteran had scars on both knees and the right shoulder, which verified the injuries. In February 2012, Dr. M.G. reiterated that the Veteran had scars on both knees and the right shoulder with a history of the 1946 Jeep accident. Here, Dr. M.G. provided express opinions linking the Veteran's present disorders to service and explained how they were consistent with his history of injuries during service. There is no medical opinion evidence to the contrary. Thus, based on this evidence, the nexus element is established for both claims. The question remaining is whether the claimed in-service injuries from the motor vehicle accident occurred. There are no official service records documenting the accident or treatment. This is not surprising as the Veteran's service treatment records are not available for review. In October 2006, the National Personnel Records Center informed the RO that the Veteran's records were likely destroyed in a fire. Pursuant to the Board's remands, the RO attempted to obtain other information and records pertaining to the claimed accident, but this was to no avail. The Veteran's Honorable Discharge record does document that he served in the U.S. Army during the time period of the alleged injuries. Additionally, it is shown that he had foreign service and he was awarded the Army Occupation Medal of Japan, which places him in the region of where the claimed accident occurred. Although there are no service records documenting injuries to the knees and right shoulder from a motor vehicle accident, the Veteran was competent to testify to which he had actually observed and was within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The circumstances of the Jeep accident and the resultant hospitalization were of this nature. Whether the injuries occurred ultimately amounts to whether the Veteran's statements are credible. Notably, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). This is particularly so given that the Veteran's service treatment records are unavailable. In the course of the claim, the Veteran presented a largely consistent account of the claimed in-service injuries from the motor vehicle. This included a similar report of history to his treating physician Dr. M.G., although there is some discrepancy in the date of the accident. Nevertheless, there is nothing obvious in the record that tends to make the Veteran's recollection of events not believable. Of considerable importance to the Board is Dr. M.G.'s observation that the Veteran's present disabilities are consistent with injuries from the accident in light of the nature of the scars. Thus, there is medical evidence of the type of injuries the Veteran claimed and there is no indication that those injuries occurred other than during service. At the very least, reasonable doubt exists as to the question of whether the claimed in-service injuries occurred. In considering the evidence of record and when resolving reasonable doubt in the appellant's favor, the Board finds that the in-service injuries to the knees and right shoulder as likely as not occurred. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, all three elements of the claims are established and the Board concludes that service connection for bilateral knee arthritis and right shoulder arthritis is warranted. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. ORDER Service connection for bilateral knee arthritis is granted. Service connection for right shoulder arthritis is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs