judge_role: Chairman

benefit: tdiu

condition: psychiatric

text:
93 Decision Citation: BVA 93-12371

 Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

DOCKET NO.  78-12 033     )       DATE:
          )
(RECONSIDERATION) )
          )
          )

THE ISSUES

1.  Entitlement to a rating in excess of 70 percent for
generalized anxiety disorder/depressive neurosis (previously
diagnosed as Raynaud's disease and psychophysiological
cardiovascular reaction) from October 1, 1977, to August 27,
1978.

2.  Entitlement to restoration of a total rating for
compensation purposes based on individual unemployability from
October 1, 1977, to August 27, 1978.

REPRESENTATION

Appellant represented by: Paralyzed Veterans of America,
Inc.

ATTORNEY FOR THE BOARD

B. Copeland, Counsel

INTRODUCTION

This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from rating decisions of the St.
Petersburg, Florida, Regional Office (hereinafter RO). The
veteran had active service from May 1951 to October 1955.  In a
rating decision dated in May 1975, a total rating for
compensation purposes based on individual unemployability was
granted, from June 1, 1975.  The veteran's service-connected
anxiety reaction was evaluated as 70 percent disabling from this
date.  Following a February 1977 examination by the Department
of Veterans Affairs (hereinafter VA), a June 1977 rating
decision decreased from 70 percent to 50 percent the evaluation
assigned to anxiety reaction, effective September 1, 1977, and
also terminated the veteran's unemployability benefits,
effective the last day of August 1977.  A notice of disagreement
with respect to this reduction was received from the veteran in
June 1977.  A statement of the case, which included only the
issue of entitlement to a rating in excess of 50 percent, was
issued in July 1977.  The substantive appeal was received in
July 1977.

In a November 1977 rating decision, a temporary total
hospitalization rating was assigned to the veteran's
service-connected depressive neurosis from the first day of
hospitalization in July 1977 until the end of September 1977.
Thereafter, the evaluation assigned was increased from 50
percent to 70 percent.  Entitlement to a total rating based on
individual unemployability was denied.  A notice of disagreement
was received from the veteran in February 1978, in which he also
indicated that he could not work as a result of his service-
connected psychiatric disorder.  A statement of the case, which
included the increased rating and unemployability issues, was
mailed to the veteran in March 1978.  The substantive appeal,
with respect to entitlement to unemployability benefits, was
received in April 1978.  The appeal was received and docketed at
the Board in approximately May 1978.  The veteran's
representative at that time was Disabled American Veterans, to
which the file was subsequently referred.  That organization
submitted additional written argument to the Board in May 1978.

The Board entered a decision in this case on October 2, 1978.
Subsequently, a Motion for the Reconsideration of that decision
was filed with the Board.  Reconsideration of the decision has
been ordered by the authority granted to the Chairman in 38
U.S.C.A. � 7103 (West 1991) and the case is now before an
expanded Reconsideration Section of the Board.  This decision by
the Reconsideration Section replaces the decision of October 2,
1978, and is the final decision of the Board.

Subsequent to the Board's October 2, 1978 decision, the RO
awarded a total rating for compensation purposes based on
individual unemployability from August 28, 1978.  Thus, the time
period at issue in the Board's current reconsideration decision
is from October 1, 1977, the day following termination of the
temporary total hospitalization rating, until August 27, 1978,
the day prior to the effective date of unemployability benefits.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran asserts that the RO committed error in failing to
assign a total rating, either schedular or based on individual
unemployability, as the evidence indicates that the veteran was
totally disabled and unable to work during the relevant time
period.  It is further asserted that there was error in the
failure to apply the provisions of 38 C.F.R. � 3.343(c) (1992),
which requires that actual employability be established by clear
and convincing evidence when a 100 percent rating based on
individual unemployability is reduced.

DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. � 7104 (West
1991), following review and consideration of all evidence and
material of record in the veteran's claims files, and for the
following reasons and bases, it is the decision of the Board
that the preponderance of the evidence is against the claim for
an increased schedular evaluation for generalized anxiety
disorder/depressive neurosis from October 1, 1977, to August 27,
1978, and that the record supports the assignment of a total
rating for compensation purposes based on individual
unemployability from October 1, 1977, to August 27, 1978.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the agency of
original jurisdiction.

2.  The veteran has the equivalent of a high school education.

3.  He has had employment experience as a bartender and carpet
cleaner.

4.  Prior to October 1977, he was last employed in approximately
1975.

5.  Service connection is in effect for generalized anxiety
disorder/depressive neurosis (previously diagnosed as Raynaud's
disease and psychophysiological cardiovascular reaction),
evaluated as 70 percent disabling from October 1, 1977, to
August 27, 1978; hemorrhoidectomy, evaluated as noncompensable;
and scar as the residual of a right wrist laceration, evaluated
as noncompensable.

6.  Prior to August 27, 1978, generalized anxiety
disorder/depressive neurosis was manifested by auditory
hallucinations, anxiety, depression, decreased sleep and
decreased appetite.

7.  Between October 1, 1977, and August 27, 1978, totally
incapacitating psychoneurotic symptoms were not demonstrated.

8.  There is no clear and convincing evidence of the veteran's
actual employability between October 1, 1977, and August 27,
1978.

9.  Between October 1, 1977, and August 27, 1978, the veteran's
service-connected disabilities were of sufficient severity to
prevent him from engaging in all forms of substantially gainful
employment consistent with his education and occupational
experience.

CONCLUSIONS OF LAW

1.  An evaluation in excess of 70 percent for generalized
anxiety disorder/depressive neurosis (previously diagnosed as
Raynaud's disease and psychophysiological cardiovascular
reaction) is not warranted from October 1, 1977, to August 27,
1978.  38 U.S.C.A. �� 1155, 5107 (West 1991); 38 C.F.R. Part 4,
Code 9400 (1992).

2.  The veteran's service-connected disabilities were sufficient
to produce unemployability without regard to advancing age from
October 1, 1977, to August 27, 1978.  38 U.S.C.A. � 5107 (West
1991); 38 C.F.R. �� 3.340, 3.341, 3.343(c), 4.16 (1992).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

We note that we have found that the veteran's claims are "well
grounded" within the meaning of 38 U.S.C.A. � 5107(a) (West
1991).  That is, we find that he has presented claims which are
plausible.  We are also satisfied that all relevant facts have
been properly developed.  The record is devoid of any indication
that there are other records available which might show any
greater impairment due to the

veteran's service-connected disorders during the time period at
issue.  No further assistance to the veteran is required to
comply with the duty to assist him mandated by 38 U.S.C.A.
� 5107(a) (West 1991).

During military service, the veteran was hospitalized with chest
pain and difficulty breathing.  The diagnosis was psychogenic
reaction, cardiovascular, chest pain.  He was also seen during
service with complaints of pain and swelling of his hands and
feet.  The diagnosis was Raynaud's disease.  Due to this
physical disability, he was separated from service.  Several
months following service discharge, he was hospitalized by the
neuropsychiatric service at a VA medical facility with a
diagnosis of schizoid personality.  The diagnosis was changed to
passive-dependency reaction.

In a January 1956 rating decision, service connection was
established for Raynaud's disease.  A 20 percent evaluation was
assigned.  The veteran was hospitalized by the VA from January
to May 1957.  The final diagnoses included psychophysiologic
cardiovascular reaction manifested by paroxysmal headaches,
chest pain and dyspnea and vascular spasms of the fingers, all
being related directly to emotional factors.  In a July 1957
rating decision, the evaluation assigned to the service-
connected disorder was reduced from 20 percent to 10 percent.
Following a period of hospitalization from February to May 1959,
the evaluation was increased to 30 percent.  A 50 percent
evaluation was assigned in an October 1968 rating decision.
Exclusive of temporary total hospitalization ratings, a 50
percent evaluation remained in effect until 1975.  In a rating
decision dated in April of that year, the evaluation assigned to
anxiety reaction was increased to 70 percent.  In a May 1975
rating decision, entitlement to a total rating for compensation
purposes based on individual unemployability was established
from June 1, 1975.

The veteran was examined by the VA for compensation purposes in
February 1977.  As a result of the examination findings, in a
June 1977 rating decision, it was indicated that improvement was
shown in the veteran's nervous disorder and continuation of the
70 percent evaluation with entitlement to a total rating based
on individual unemployability was not warranted.  The evaluation
assigned to anxiety reaction was decreased from 70 percent to 50
percent, effective September 1, 1977, and unemployability
benefits were terminated effective September 1, 1977.  It is
from this determination which the veteran filed an appeal.  A
temporary total hospitalization rating was in effect from July
11, 1977, through September 1977, at which time a 70 percent
schedular rating was assigned.  A rating decision dated in
February 1979 established entitlement to unemployability
benefits from August 28, 1978.  Accordingly, the time period at
issue in this appeal is from October 1, 1977, to August 27,
1978.

Prior to February 3, 1988, pertinent regulations provided a 70
percent evaluation for anxiety neurosis where the ability to
establish and maintain effective or favorable relationships with
people was seriously impaired and the psychoneurotic symptoms
were of such severity and persistence that there was pronounced
impairment in the ability to obtain or retain employment.  A 100
percent schedular evaluation was provided where the attitudes of
all contacts except the most intimate were so adversely affected
as to result in virtual isolation in the community, with totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality with disturbed thought or behavioral
processes associated with almost all daily activities such as
fantasy, confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior and
demonstrably unable to obtain or retain employment.  38 C.F.R.
Part 4, Code 9400 (effective prior to February 3, 1988).

This panel has reviewed the record, including the evidence upon
which the total rating was terminated.  In this regard, we note
that at the February 1977 psychiatric rating examination, the
veteran did not complain of any symptoms of a psychological
nature.  Mental status evaluation revealed that he was well-
groomed, calm and relaxed.  He related fairly well to the
examiner and spoke with a very authoritative voice.  Speech was
clear and coherent, and no thought disorder was elicited.  His
affect was appropriate, and he did not appear depressed.  The
examiner noted that, in the past, other examiners had stated the
diagnostic impression that the veteran tried to give others was
of self-assertiveness, which was a defense mechanism.  At the
current examination, the veteran was fully oriented and his
memory, attention and concentration were normal.  The diagnostic
impressions were anxiety reaction in remission and past history
of paranoid personality.  It was further indicated that, at the
present time, he appeared to be stable and getting along fairly
well without any major difficulties.

The veteran was hospitalized by the VA from July to September
1977.  He indicated that he sought hospitalization due to a
combination of events which began in March 1976.  He began to
drink heavily and moved to West Florida with his daughter.  He
had argued with his parents and the woman he was planning to
marry ran off with his best friend.  A radio was stolen from his
car, his pool pump broke and he suffered two injuries to his
fingers.  He reported hearing voices calling his name at night
and sometimes during the day.  He admitted to doing some
drinking.  He also complained of disc disease of his back.  He
reported decreased sleep and appetite, with a 30-pound weight
loss in two months.  He was noted to be depressed and his affect
appropriate.  He believed that he was clairvoyant at times.  He
was fully

oriented and his recent and remote memory was good.  He was able
to calculate and abstract proverbs very well.  During
hospitalization, he was maintained on tranquilizer and
antidepressant medication and did very well.  He took part in
group activities.  His progress was slow, but steady, with
increases in the elevations of his mood and affect.  At hospital
discharge, his mood was very much elevated from the time of
admission and his affect was appropriate.  His associations were
tight, his sleeping improved and his appetite very good.
Outpatient treatment was planned following hospital discharge.
The final diagnoses included chest pain, Raynaud's disease and
depressive neurosis.

It is significant to note that following hospital discharge in
September 1977, the veteran was much improved and was thought
able to resume prehospital activities.  While the veteran was
prescribed medication for his service-connected psychiatric
disorder at hospital discharge, this is not the equivalent of a
finding of totally disabling psychiatric symptomatology.  It is
also significant to note that he was active in group therapy
during hospitalization, assisting other patients in working on
their problems.  He also voluntarily took on additional
activities and enjoyed his work.  Family problems appeared
resolved at hospital discharge and the veteran was felt to have
realistic plans for the future upon leaving the hospital.  Thus,
we conclude that when the veteran left the hospital in early
September 1977, his generalized anxiety disorder and depressive
neurosis were clearly not totally disabling.  Rather, it appears
that his psychiatric adjustment did not warrant greater than a
70 percent evaluation.

Reviewing the veteran's industrial impairment during the
relevant time period, we note that at the February 1977 rating
examination, he indicated that he had worked all of his life
until two years previously and that due to his back disorder, he
had not been able to work since then.  Comparing the objective
clinical evidence to the rating criteria, we are of the opinion
that the preponderance of the evidence is against the veteran's
claim to establish entitlement to an increased schedular
evaluation.  Without evidence of totally incapacitating
psychoneurotic symptoms, a 70 percent evaluation is felt to best
reflect impairment associated with generalized anxiety disorder
and depressive neurosis during this time period.

A total rating for compensation purposes based on individual
unemployability is appropriate where the service-connected
disability or disabilities render it impossible for the average
person to follow a substantially gainful occupation.  Advancing
age may not be considered.  38 C.F.R. �� 3.340, 3.341, 4.16
(1992).  Additionally, in reducing a total rating based on
individual unemployability, caution must be

exercised that actual employability is established by clear and
convincing evidence.  38 C.F.R. � 3.343(c) (1992) .

In the present case, the veteran has the equivalent of a high
school education and has worked in the past as a bartender and
carpet cleaner.  As the termination of unemployability benefits
followed the February 1977 rating decision, the provisions of 38
C.F.R. � 3.343(c) require that the record then show, by clear
and convincing evidence, that the veteran was actually
employable.  Reviewing the February 1977 rating decision, as
well as the November 1977 rating decision and March 1978
statement of the case, it appears that such consideration was
not afforded the veteran in the decision to terminate
unemployability benefits.  On appeal, however, the veteran's
representative has argued that the application of this provision
of the regulations was not considered and that the termination
of unemployability benefits was, therefore, unwarranted.  While
this provision of the regulations was not included in the
statement of the case which was sent to the veteran, the
veteran's due process rights have not been violated because the
current argument that this regulation must be applied is
evidence of the veteran's awareness of its existence.  Thus, in
the present case, we conclude that we may proceed with a
determination on the merits of this issue.

In order to determine whether there is clear and convincing
evidence of actual employability, we must compare the findings
of the February 1977 psychiatric examination and the other
evidence during the appeal period, on which the termination of
unemployability benefits was based, with the prior examination,
here, contained in the records pertaining to hospitalization of
the veteran from November 1974 to February 1975.  Karnas v.
Derwinski, 1 Vet.App. 308, 310 (1991).  During the period of
hospitalization from November 1974 to February 1975, the veteran
reported that he was depressed and had started drinking
approximately two weeks prior to hospital admission.  He
indicated that marital problems and physical problems caused him
to be depressed.  During hospitalization, he was noted to be
quite angry at interviews on several occasions, especially at
the beginning of his stay in the hospital.  His thoughts were
goal-directed and his memory intact.  He had had suicidal
ideation prior to hospitalization, but none during.  His
judgment and insight were poor.  During hospitalization, he took
part in group therapy and was an active group member.  He
received feedback and accepted it in a positive manner.
Hospitalization summaries indicated that there appeared to be
much marital discord.  His wife was also interviewed on a number
of occasions.  Nevertheless, the veteran apparently was to
return home at hospital discharge.  The diagnoses included a
chronic anxiety disorder with depression by history and chronic
alcoholism by history.

While it is apparent that the veteran no longer had significant
psychiatric complaints by February 1977 and that he did not
attribute his inability to work to a psychiatric disorder, the
examiner did not indicate that the service-connected generalized
anxiety disorder and depressive neurosis no longer prevented the
veteran from obtaining or retaining employment.  Indeed, other
than presenting a short history of the veteran's employment
until approximately two years prior to the examination, no
findings or conclusions were recorded relative to the veteran's
ability to work.  It is also significant to note that his
psychiatric adjustment, as noted at the February 1977
examination, was obtained while he was not employed and,
therefore, not under the stress attendant with employment.
During hospitalization from July to September 1977, it was noted
that the veteran reported he no longer worked part-time at a bar
because of his nerves.  It is not clear exactly when he was
working part-time and, if he was working immediately prior to
hospital admission, to what extent this may have contributed to
the worsening symptomatology which precipitated hospitalization.
Nevertheless, he described numerous interpersonal difficulties
and issues unrelated to employment as leading to
hospitalization.  He also required an almost 2-month stay in the
hospital.  Under these circumstances, we conclude that the
record does not support a finding of clear and convincing
evidence of actual employability.  Without such, a termination
of unemployability benefits is not warranted.  In this case, the
record supports the restoration of a total rating for
compensation purposes based on individual unemployability from
October 1, 1977, to August 27, 1978.  38 U.S.C.A. � 5107 (West
1991); 38 C.F.R. �� 3.340, 3.341, 3.343(c), 4.16 (1992).

ORDER

An increased evaluation for generalized anxiety
disorder/depressive neurosis (previously diagnosed as Raynaud's
disease and psychophysiological cardiovascular reaction) from
October 1, 1977, to August 27, 1978, is denied.  A total rating
for compensation purposes based on individual unemployability is
restored from October 1, 1977, to August 27, 1978.

                                          (CONTINUED ON NEXT PAGE

BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

          JEFF MARTIN     IRVIN H. PEISER, M.D.

          E. W. SEERY

          WILLIAM REDDY   JANE SHARP

P. E. WRIGHT (DISSENTING)

DISSENTING OPINION

I respectively dissent from that portion of the decision of the
majority granting restoration of a total rating based on
individual unemployability from October 1, 1977, to August 27,
1978.  I believe that the decision of the majority is contrary
to the evidence of record which clearly shows that the veteran
was not unemployable by reason of service-connected disability
for the period in question.

I base my dissent on a longitudinal review of the entire
evidence dating from the veteran's separation from service to
the current time.  That record demonstrates repeated
inconsistencies, omissions and inaccuracies in the veteran's
statements relating to periods of employment and the reasons for
time lost from employment; the veteran's statements lack
credibility.  During the 1970's, the evidence now of record
clearly shows that the principle reason for time lost from
employment was the veteran's nonservice-connected low back
disorder.  The veteran's award of Social Security Disability
benefits in October 1973, effective November 1972, was clearly
based on the postservice low back injury and surgery secondary
thereto.  The veteran was held to be unemployable

                                                  (CONTINUED ON NEXT
PAGE

by reason of physical disability irrespective of his service-
connected disorder.

I also base my dissent on the failure of the majority to
differentiate disability secondary to the veteran's service-
connected psychiatric disorder and his nonservice-connected
personality disorder, which is well-documented in the clinical
evidence, as it affects employability.  It does not appear that
the majority has separated the pronounced impairment secondary
to the personality disorder from the service-connected
psychiatric symptoms, in keeping with mandates of the United
States Court of Veterans Appeals and the provisions of 38 C.F.R.
� 4.14 (1992).  I would note that much of the evidence now of
record was not available to the RO at the time of pertinent
rating decisions in the early 1970's awarding compensation
benefits.  I believe that had this information been available,
the current issue of entitlement to restoration of a total
rating would not have arisen.  In conclusion, I believe that
Finding of Fact 9 and Conclusion of Law 2 contain clear error.
I would hold that the veteran was not unemployable by reason of
service-connected disability for the period in question and was
not entitled to restoration of a total rating on the basis of
individual unemployability.  38 U.S.C.A. � 1155 (West 1991);
38 C.F.R. � 4.16 (1992).

_____________________________
P. E. WRIGHT

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C. � 7266 (1992), 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 (see � 402 of the
Veterans' Judicial Review Act (Pub. L. 100-687)).  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.

ADDENDUM:

Pursuant to 38 U.S.C.A. � 7103(a) (West 1991), the Chairman
ordered reconsideration in this case.  Upon reconsideration, the
members of an expanded section of the Board did not agree.

38 U.S.C.A. � 7103(b) (West 1991) provides that the decision of
a majority of the members of the expanded section shall
constitute the final decision of the Board.  The majority of the
members of the expanded section have voted to grant the relief
sought on appeal.  Accordingly, the benefits sought on appeal
are granted.

_____________________________
CHARLES L. CRAGIN
Chairman


series: legacy

judge_norm: ROGER K BAUER

judge_role: Acting Chairman

disposition: granted

text:
93 Decision Citation: BVA 93-11422

 Y93

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

DOCKET NO.  84-07 920       )    DATE
                            )
(RECONSIDERATION)           )
                            )

                          THE ISSUE

Entitlement of Rosario to recognition as the veteran's
surviving spouse for the purpose of entitlement to
Department of Veterans Affairs benefits.

                       REPRESENTATION

Appellant represented by:  American Red Cross

                   ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel
                        INTRODUCTION

The Board of Veterans' Appeals (Board) entered a decision in
this case on June 28, 1985.  Subsequently, a motion for
reconsideration of that decision was filed with the Board.
Reconsideration of the decision has been ordered by the
authority granted to the Chairman of the Board in 38 U.S.C.A.
� 7103 (West 1991) and the case is now before an expanded
Reconsideration Section of the Board.  This decision by the
Reconsideration Section replaces the decision of June 28,
1985, and is the final decision of the Board.

             CONTENTIONS OF APPELLANT ON APPEAL

The appellant and her representative contend, in substance,
that the appellant should be entitled to recognition as
surviving spouse of the veteran for Department of Veterans
Affairs (VA) purposes since the marriage of the appellant
and veteran in 1969 was only voidable under Philippine law
and was, therefore, valid until annulled.  It is noted that
under Article 83 of the Civil Code of the Philippines, any
marriage subsequently contracted by a person during the
lifetime of the first spouse of such person with any person
other than such first spouse is illegal and void unless the
first marriage was annulled or dissolved.  There is an
exception to this rule if the first spouse had been absent
for seven consecutive years at the time of the second
marriage without the spouse present having news of the
absentee being alive or, if the absentee, although absent
for less than seven years was generally considered as dead
and believed to be so by the spouse present at the time of
contracting the later marriage or if the absentee was
presumed dead according to Articles 390 and 391.  Article 83
further provides that the marriage so contracted shall be
valid in any of the three cases until declared null and void
by a competent court.  It is asserted that the marriage of
the veteran and appellant was not void since the evidence
clearly showed that, at the time of the veteran's marriage
to the appellant, his first wife, [redacted] had been absent
not only for seven consecutive years but for some 35 years.
When the veteran married the appellant in 1969, he had had
no news of [redacted] being alive and had, therefore,
complied with the requirement of the law.

The appellant further maintains that Article 83 of the
Philippine Civil Code only requires the spouse to believe
that the absent spouse is deceased in the second and third
instances.  In the first instance, under which the appeal is
based, all that is required is that the first spouse be
absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the
absentee being alive.  It is asserted that that provision is
very clear and affords no basis for interpretation or
construction.  It is maintained that, in evaluating good
faith on the part of the veteran in contracting a second
marriage, various factors should be considered including his
educational level, the circumstances surrounding the
separation from his first spouse and the fact that he had
six children with the appellant.  He had not even finished
elementary school and his first wife had abandoned him.  It
was only in 1941, after seven years of separation from his
wife, that he courted and lived with the appellant who bore
him six children.  For the children's sake, he had to marry
their mother.  It is further maintained that the veteran's
first spouse had ample time to have the veteran's second
marriage annulled and did not take any steps to have the
marriage annulled.  Therefore, the veteran's marriage to the
appellant should be considered valid under Philippine law
and VA death benefits granted to her as surviving spouse of
the veteran.

                    DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. � 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims file
and for the following reasons and bases, it is the decision
of the Board that the evidence of record supports the
appellant's claim for recognition as the veteran's spouse
for the purpose of entitlement to VA benefits.

                      FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the regional office.

2.  The veteran served before, during and after World
War I.  He died in May 1982 in the Republic of the
Philippines.

3.  The veteran and [redacted] were married in September 1932
in the Republic of the Philippines.  Their marriage was not
legally terminated during the veteran's lifetime.  The
veteran and [redacted] separated in 1934.

4.  The veteran and the appellant began residing together
during the 1940's and had several children.  They were
married in June 1969 in the Republic of the Philippines and
lived together until the veteran's death.

5.  The veteran had had no news of [redacted] for over seven
years and believed her to be dead when he married the
appellant in 1969.

6.  The veteran's marriage to the appellant has not been
declared null and void by a competent court and is valid
under the laws of the Republic of the Philippines.

                      CONCLUSION OF LAW

The veteran and appellant contracted a valid marriage in the
Republic of the Philippines in 1969 and she is entitled to
recognition as his surviving spouse for VA benefit purposes.
38 U.S.C.A. �� 101, 103 (West 1991); 38 C.F.R. � 3.1(j)
(1992).

        REASONS AND BASES FOR FINDINGS AND CONCLUSION

We note that we have found that the appellant's claim to be
"well grounded" within the meaning of 38 U.S.C.A. � 5107(a)
(West 1991); effective on and after September 1, 1989.  That
is, we find that she has presented a claim which is
plausible.  We are also satisfied that all relevant facts
have been properly developed.

                       I.  Background

The record reflects that the veteran and [redacted] were
married in September 1932 in the Republic of the Philippines
at Naga, Cebu.  The record does not establish that the
veteran's marriage to [redacted] was legally dissolved during
his lifetime.

In a July 1957 application for VA benefits, the veteran
indicated that he had been married only once.  He stated
that he and [redacted] were not living together.  He
indicated that she had refused to leave her residence at
Naga, Cebu.  The veteran stated that he lived at an address
in San Joaquin, Iloilo.

In a marital status form submitted in February 1960, the
veteran indicated that he had been married only once, to
[redacted] in October 1932, and that they had separated in
January 1934 because she had refused to live with him.

In a March 1960 statement, the veteran said that he had been
separated from his wife, [redacted], since January 1934
because she refused to live with him.  He stated that the
last time he had heard from her was in November 1934 and
that since that time he had had no information regarding her
whereabouts.  He, therefore, presumed her to be deceased.

In December 1974 a marriage contract was received showing
that the veteran and appellant were married in the office of
a municipal judge in June 1969.  The veteran's marital
status was listed as widower and the appellant's status was
listed as single.

There was also received in December 1974 a July 1974
document in which the veteran petitioned a Philippine
juvenile and domestic relations court to declare his wife,
[redacted], absent and dead for all intents and purposes.
The veteran stated that he was married and currently living
in Oton, Iloilo.  He indicated that in about February 1933
he had taken [redacted] to his hometown where they had lived
together as man and wife until June 1933 when [redacted] had
left their home for an unknown place and had abandoned the
veteran.  It was further stated that the veteran had
followed her to Naga City and looked around Cebu, but that
he failed to locate her despite his diligent efforts.  He
further reported that after a month of searching, he had
returned to his hometown where he had resided until January
1974 and then had moved to his current address in Oton.  The
veteran stated that from 1933 to the current time he had not
heard any news as to the whereabouts of [redacted].  The
veteran did not state whether the petition had been granted
and the record does not show the outcome.  The veteran asked
the regional office to recognize the appellant as his lawful
wife.

In January 1975 the regional office advised the veteran that
additional benefits could not be granted for his current
spouse since the evidence he had submitted was insufficient
to establish the death of his first wife, [redacted].  He was
informed that no benefits were available for the appellant
because his marriage to [redacted] was still considered
legally undissolved.

In a November 1975 letter, [redacted] requested VA benefits
as the veteran's legal wife.  She indicated that the veteran
was currently living with an unlawful wife and illegitimate
children in Iloilo.  The return address shown on [redacted]'s
letter was on [redacted] Street in Cebu City, Republic of the
Philippines.

In July 1980 [redacted] requested an apportionment of the
veteran's disability benefits.  In her marital status form
in August 1980 she reported that she and the veteran had
married in September 1932 and that they had separated in
January 1934 in Cebu City.

In an October 1980 statement, the veteran indicated that
[redacted], without any cause, had left him at Bario
Sinugbuhan in January 1934 and had returned to Cebu City.
He stated that he had written her on several occasions
without results and that he had also written her father in
Cebu City.  Her father had reportedly indicated that
[redacted] was not in Cebu.  The veteran said that after
[redacted] had failed to appear for almost 40 years, he
believed that she was deceased.  He related that because of
his physical problems and lack of anyone to care for him and
support him, he had been forced to marry the appellant in
June 1969.

In a November 1980 deposition before a VA field examiner,
the veteran testified that he had last seen [redacted] in
January 1934.  He stated that he had remarried in June 1969
since he was convinced that she was deceased.  The VA
representative who deposed the veteran commented that the
veteran gave his statement haltingly, but in a manner that
showed no signs that he was not telling the truth.

In a March 1981 VA deposition, [redacted] testified that
after her marriage to the veteran, they had lived with her
parents in Cebu City until she bore their child in May
1933.  She stated that they had later lived with his mother
for about three months.  Then the veteran had brought them
back to Cebu City to the home of her parents where he had
left them.  She indicated that she had lived at the home of
her parents on [redacted] Street in Cebu City from the time
the veteran left her until February 1979 when she had moved
to Manila.  She stated that the only other place she had
lived in Cebu City had been at the home of a woman friend
where she stayed for less than a month in 1934.  The VA
representative commented that [redacted] appeared sincere and
honest in her statement.

In a May 1981 deposition, [redacted], a resident of [redacted]
Street and a municipal official, indicated that [redacted]
had been his neighbor on [redacted] Street where she had lived
with her parents from the time he had begun living there in
about 1920 until 1979 when she had moved to Manila.  Several
other former neighbors were interviewed and indicated that
[redacted] had lived on [redacted] Street in Cebu City until
1979.

In a special apportionment decision in June 1981, [redacted],
was granted an apportionment of the veteran's pension VA
benefits.

In August 1981, the veteran submitted various documents
including a copy of a letter dated in June 1934 from
[redacted]'s father to him.  The letter indicated that she
had boarded a ship which had left Cebu on June 15 and that
it had been scheduled to arrive in Iloilo on a specified
date.  Her father indicated that if she had not arrived by
that time he should be contacted so that they could find out
what had happened to her.

The veteran also submitted an August 1981 statement in which
he referred to the June 1934 letter from [redacted]'s father.
He indicated that after she had not arrived on the ship
mentioned in the letter, he had written her several times in
Cebu City but had received no response from her.  He
indicated that after [redacted] had failed to appear after he
had waited for her for almost 35 years, he had considered
her to be deceased.  He stated that due to his physical
condition and his lack of anyone to support and care for
him, he had married the appellant in June 1969 with the
belief and presumption that [redacted] was deceased.  He
stated that he had really been surprised when he had
received notice of [redacted]'s request for an apportionment
of his benefits.  He asked that [redacted]'s claim be denied
and that his current wife, the appellant, be provided with
the benefit since she had cared for him and had served as
his "real wife" for a long time.

The August 1981 statement was construed as a notice of
disagreement.  The veteran was furnished a statement of the
case in September 1981.  No appeal was received prior to his
death in May 1982.

The appellant submitted a claim for VA death benefits in
August 1982.  She stated that the veteran had been married
to [redacted] in 1932 in Cebu City and that she and the
veteran had been married in June 1969.  She stated that she
and the veteran had lived together continuously from the
date of marriage until the date of his death in May 1982.

In an October 1982 statement, the appellant reported that,
when the veteran introduced himself to her in 1941, he had
presented himself as a bachelor and not as a married man.
She believed that he was sincere so she accepted him as her
husband and they had lived together as husband and wife
without marriage because the war had already begun.  She
reported that she had never known that the veteran was
legally married to [redacted] until sometime in 1975 when
[redacted] had come to the house in Sinugbuhan.  She
indicated that, prior to [redacted]'s appearance, she had not
known of any obstacle or hindrance that would have prevented
the veteran from marrying her.

The appellant, in a February 1983 deposition before a VA
field examiner, indicated that she had met the veteran in
1946 and that they had begun living together in about 1947.
She stated that, when the veteran had begun courting her, he
had told her he was a bachelor.  She related that as the
family grew with the births of children, she had asked the
veteran to marry her and he had indicated that eventually
they would marry.  She stated that after the birth of her
child, [redacted] (who had been born in 1954), the veteran had
told her that they could not get married because he had a
previous marriage to [redacted].  She related that she and
the veteran had finally decided to get married in June 1969
because the veteran had indicated that he could marry her on
that date since he and his wife had long been separated.
She reported that she had seen [redacted] when [redacted] had
gone to Bario Sinugbuhan in 1975.  She stated that after so
many years of not having had any contact with his wife, the
veteran had believed that [redacted] was deceased.

[redacted]'s deposition was taken in April 1983 by a VA field
examiner.  She indicated that after the veteran had left her
at her mother's home in Cebu City, she had not heard from
him again by letter or through any person until 1975 when
she and her daughter had visited the veteran at his
residence.  She stated that she had known where the veteran
lived since she and the veteran had also lived there.  She
had gone there at her daughter's request, since her daughter
had wanted to see her father.

In a June 1983 administrative decision, the regional office
determined that [redacted] was not entitled to VA death
benefits as the veteran's legal widow due to a lack of
continuous cohabitation between herself and the veteran.  It
was further held that the appellant could not be recognized
as the veteran's surviving spouse since her marriage to the
veteran could not be deemed valid.

In a letter received in September 1983, the appellant
indicated that she had met the veteran late in 1941 and that
he had introduced himself as a bachelor and that she had
accepted him and had lived with him without the benefit of
marriage due to the outbreak of the war.  She reported that
in June 1969 she and the veteran had been married before a
judge.  She stated that, during their college days, some of
the children had expressed a desire to be regarded as
legitimate and they had asked the veteran and the appellant
to get married.  She stated that after their 1969 marriage,
the veteran had told her and her children about his previous
marriage to [redacted].  She stated that in 1975 [redacted]
and her daughter had visited her and the veteran at their
home.

In October 1983 [redacted] testified at a hearing on appeal
at the regional office.  She related that she, her daughter
and her grandchild had gone to see the veteran at his home
in Sinugbuhan in 1975.  She indicated that she had appealed
to the veteran to talk to her but that he was afraid he
might be imprisoned.

                        II.  Analysis

To be entitled to death benefits as a "surviving spouse" of
a veteran, the claimant must have been the surviving spouse
at the time of the veteran's death and have lived
continuously with the veteran from the date of their
marriage to the date of the veteran's death, except where
there was a separation due to the misconduct of, or procured
by, the veteran without the fault of the spouse.  38
U.S.C.A. � 101(3).  In determining whether or not a person
is or was a spouse of a veteran, their marriage shall be
proven as valid for the purpose of laws administered by the
VA according to the law of the place where the parties
resided at the time of their marriage or the law of the
place where the parties resided when the right to benefits
accrued.  38 U.S.C.A. � 103(c); 38 C.F.R. � 3.1(j).

The question at issue is whether the veteran's marriage to
the appellant is a valid marriage in the Republic of the
Philippines.  The pertinent part of Article 83 of the Civil
Code of the Philippines provides that if the first spouse
had been absent for seven consecutive years at the time of
the second marriage without the remarrying spouse having
news of the absentee spouse being alive, a marriage so
contracted shall be valid until declared null and void by a
competent court in the Philippines.

Essentially, the evidence indicates that the veteran and
[redacted] were married in September 1932 in the Republic of
the Philippines.  They separated in 1934 and the veteran and
appellant began residing together during the 1940's and had
several children.  In June 1969 the veteran and appellant
were married.  They resided together until the veteran's
death in May 1982.  The veteran on repeated occasions in his
life stated that he had not received any news of [redacted]
being alive since the 1930's and that he believed she was
dead when he married the appellant.  The evidence of record
clearly establishes that [redacted], at least as far as the
veteran was concerned, had been absent and totally out of
contact for well over seven years prior to his marriage in
1969.

The Board believes that the intent of Article 83 of the
Civil Code of the Philippines is generally to give
preference to a second marriage.  It is also not clear in
this case that the veteran acted in bad faith in connection
with his 1969 marriage to the appellant, considering the
fact that both he and [redacted] had abandoned their 1932
marriage many years earlier.  The fact that [redacted]
appeared again after the marriage of the appellant and
veteran in 1969 does not automatically void the 1969
marriage.  The marriage of the appellant and the veteran is
not a void marriage, only a voidable marriage.  Until the
marriage of the veteran and the appellant is declared null
and void by a judicial proceeding in the Philippines, it is
valid under the laws of the Philippines.  Thus, in the
Board's judgment, there was a valid marriage between the
veteran and the appellant under the provisions of Article 83
of the Civil Code of the Philippines.  As the marriage of
the veteran and the appellant was valid under the laws of
the jurisdiction where the parties resided at the time of
the marriage, and when the right to benefits accrued, it is
valid for VA purposes.  38 U.S.C.A � 103(c); 38 C.F.R. �
3.1(j).  The veteran and the appellant cohabited throughout
the marriage.  Accordingly, the appellant is entitled to
recognition as the veteran's surviving spouse for VA
purposes.  38 U.S.C.A. � 101(3).

                            ORDER

Entitlement of the appellant to recognition as the veteran's
surviving spouse for the purpose of entitlement to
VA benefits is established.  The benefit sought on appeal is
granted.

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

    DANIEL J. STEIN                      E. M. KRENZER

               ROBERT D. PHILIPP (Dissenting)

  J. F. GOUGH (Dissenting)          JOAQUIN AGUAYO-PERELES
                                    (Dissenting)

                       FRANCIS TALBOT
                 (Concurring with Allowance)

    CHARLES E. HOGEBOOM                JAMES R. ANTHONY
                                       (Dissenting)

                      WAYNE M. BRAEUER

                     CONCURRING OPINION

I write separately and briefly as my vote is to allow but I
agree with most of the analysis in the dissent.  There is no
doubt in my mind that the legal basis for the allowance in
this case is wrong.  The record strongly suggests that the
veteran knew that his first wife was alive when he
participated in the marriage ceremony with his second wife.
It seems that those who view this as a voidable marriage
would require the United States of America to enter a local
Philippine Court to have this "marriage" set aside if the VA
wishes to prevent payment of benefits in cases like this.
Even if the marriage is considered voidable, we certainly
could void it for VA purposes in conjunction with our
adjudication of the appellant's right to VA benefits.

However, as I noted above, my vote is to allow.  This is
done on the basis of a presumed valid marriage.  38 C.F.R.
� 3.52 (l992).  The record indicates that in the l950's the
appellant was aware of the first wife.  But the record
further demonstrates that when she entered into the
ceremonial marriage in l969 she believed that they were free
to marry on the basis of the first wife's absence for an
extended period of time.  There is not one piece of direct
evidence which shows that the appellant knew of the
whereabouts of the first wife during the seven years before
the ceremonial marriage.  Further she testified that she
asked the veteran if they were free to marry and he told her
that they were because of the long absence of the first
wife.  (See appellant's deposition of February 28, l983, at
page two.)

I wish to emphasize that whether the veteran knew of the
whereabouts of his first wife is not controlling, but it is
the appellant's belief that she was free to marry which is
determinative and the evidence fails to demonstrate that she
knew that she was not free to marry at the time of the l969
ceremony.  Accordingly, I vote to allow.

                      FRANCIS F. TALBOT

                           DISSENT

We, the undersigned, respectfully dissent from the decision
granting benefits to this appellant.

The basis for our dissent is essentially consistent with the
reasoning set forth in the decision which this
reconsideration replaces: that the marriage of the veteran
and the appellant cannot be recognized as a valid marriage
for VA purposes since the veteran had a prior subsisting
marriage from 1932 until his death and that the appellant
could not have thought that her marriage to the veteran was
legal.  In VA terminology she did not have a legal marriage
or a "deemed valid" legal marriage.

The evidence in the veteran's file is extensive and
conflicts in many respects.  The adjudication has been
complicated by the fact that the veteran's legal widow,
[redacted], was awarded benefits during the lifetime of the
veteran and sought them again after his death.  Clearly many
of the statements of record were colored by the
self-interest of the parties making or submitting them.
Since the credibility of all parties is quite suspect, it is
valuable to initially review what is uncontraverted and what
can be confirmed by objective sources.

We know that the veteran married [redacted] in 1932 and had a
child by her.  The exact reason for their estrangement is
not clear, but it is accepted by all that it occurred in
1934.  At that time [redacted] resided in, and continued to
reside in, her hometown at or near the residence of her
parents while the veteran apparently resumed residence in
his hometown.  Several years later he started living with
the appellant in a husband and wife relationship and they
had several children although they did not go through a
marriage ceremony until 1969.  The validity of that marriage
is the crux of the case before us.

The majority has found that the 1969 marriage was valid by
operation of Article 83 of the Civil Code of the Philippines.
Article 83 provides, in pertinent part, that a marriage
subsequently contracted by a person during the lifetime of
the first spouse of such person with any person other than
the first spouse shall be illegal and void from its
performance, unless (1)  The first marriage was annulled or
dissolved; or (2)  the first spouse had been absent for
seven consecutive years at the time of the second marriage
without the spouse present having news of the absentee being
alive.  A marriage contracted under the foregoing
circumstances is considered to be valid until declared null
and void by a competent court.  It is maintained that at the
time the veteran and appellant went through the marriage
ceremony, the veteran had not seen [redacted] for some 35
years and believed her to be deceased.  Accordingly, the
majority found the marriage to the appellant to be valid.
We, the dissenting members, believe this view to be contrary
to the overwhelming weight of the evidence when the entire
record is reviewed and considered in context.

Initially, we would note that the record clearly establishes
that the veteran and the appellant had established a marital
relationship long before their ceremonial marriage, probably
as early as 1941, barely seven years after the veteran's
separation from his first wife.  While establishing such a
relationship may be common in this country in this era, it
was very unusual in the Philippine culture of that time.  In
numerous cases before the Board in the past, such an
arrangement has almost always been excused only because one
of the parties had a pre-existing marriage since it was well
known that legal divorce was possible only under extremely
extenuating circumstances.  Thus their long term arrangement
raises a clear inference that they knew from the onset of
the impediment resulting from the first marriage.  We also
note that the record reflects that in a July 1957
application for VA benefits, the veteran indicated that
[redacted] was residing in Naga, Cebu and that he considered
her to be his only wife.  He also indicated in a marital
status form submitted in March 1960 that she was his spouse
and was residing in that city.  These reports certainly
indicate that the veteran believed [redacted] to be alive on
those occasions.  The record also contains information
reflecting that [redacted] had resided with her parents at
the same address for many years and that the veteran was
aware of the location of her parents' residence, having
lived there himself at one time.  However, the evidence does
not reflect that the veteran made any attempt to ascertain
whether or not [redacted] was still alive at the time he and
the appellant were married.  The veteran's assertion,
initially made in 1974, that he believed [redacted] to be
deceased at the time of his 1969 marriage to the appellant,
is not considered to be persuasive by the undersigned Board
members.  Article 83 of the Philippine Civil Code requires
that the first spouse be absent for seven consecutive years
at the time of the second marriage without the spouse
present having news of the absentee being alive and, in the
Board's judgment, this provision of Article 83 was not
complied with in this case.  Certainly, it would have been a
simple matter for the veteran to have contacted [redacted] or
determined factually if she had, in fact, died.  His
voluntary failure to do so did not serve to activate the
pertinent provisions of Article 83.  Certainly it is very
strange that [redacted] "reappeared," asking for VA benefits,
only a short time after the veteran had been informed in
early 1975 that he could not get benefits for the appellant,
but that benefits were possible based on the marriage to
[redacted].  In her subsequent letter of November 1975,
[redacted] gave details about the veteran and his VA benefits
which she could have only learned from him.  This sequence
of events also leaves the clear implications that the
veteran knew [redacted] was alive and where she was.  Indeed,
it is the only possible explanation.

The appellant has conceded that during the 1950's the
veteran had advised her that they could not get married
because of his prior marriage to [redacted].  There is no
indication that the appellant believed [redacted] to be
deceased at the time of her 1969 marriage ceremony with the
veteran.  Accordingly, the Board concludes that the
appellant was aware of a legal impediment to her 1969
marriage with the veteran at the time she entered into that
marriage.  Accordingly, she may not be recognized as his
surviving spouse on the basis of a "deemed valid" marriage.
38 C.F.R. � 3.52 (1992).

For the above stated Reasons and Bases the undersigned
believe the Decision, Findings of Fact and Conclusion of Law
should thus be as follows and the benefit sought should be
denied.

                    DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. � 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims file
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against the appellant's claim for recognition as the
veteran's surviving spouse for the purpose of entitlement to
VA death benefits.

                      FINDINGS OF FACT

1.  The veteran served before, during and after World War
I.  He died in May 1982 in the Republic of the Philippines.

2.  The veteran and [redacted] were married in the Republic
of the Philippines in September 1932.  Their marriage was
not terminated during the veteran's lifetime.  The veteran
and [redacted] separated in 1934.

3.  The veteran and appellant began residing together during
the 1940's and had several children.  They underwent a
marriage ceremony in the Republic of the Philippines in June
1969.

4.  The evidence does not establish that the veteran and the
appellant had made an attempt to determine [redacted]'s
status during the seven years preceding their marriage in
1969.  They had no basis for believing [redacted] to be
deceased at the time they were married.

5.  The appellant's marriage to the veteran in June 1969 was
void under Philippine law since he had a prior, subsisting
marriage to [redacted].

6.  At the time the veteran and appellant went through the
marriage ceremony in June 1969, the appellant was aware that
there was a legal impediment to the marriage.

                      CONCLUSION OF LAW

The appellant was not the lawful spouse of the veteran at
the time of his death.  Her June 1969 marriage to the
veteran may not be considered as a "deemed valid" marriage
for purposes of VA death benefits.  38 U.S.C.A. �� 101, 103
(West 1991); 38 C.F.R. �� 3.1, 3.52 (1992).

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C.  20420

     J. F. GOUGH                    JOAQUIN AGUAYO-PERELES

     JAMES R. ANTHONY                  ROBERT D. PHILIPP

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.

CONTINUED ON NEXT PAGE

ADDENDUM:

Pursuant to 38 U.S.C.A. � 7103(a) (West 1991), the Chairman
ordered reconsideration in this case.  Upon reconsideration,
the members of the expanded section of the Board did not
agree.

38 U.S.C.A. � 7103(b) (West 1991) provides that the decision
of a majority of the members of an expanded section shall
constitute the final decision of the Board.  The majority of
the members of the expanded section have voted to grant the
benefit sought on appeal.  Accordingly, the benefit sought
on appeal is granted.

ROGER K. BAUER
Acting Chairman


judge_norm: CHARLES L CRAGIN

condition: knee

disposition: denied

text:
93 Decision Citation: BVA 93-01862

 Y93

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

DOCKET NO.  90-51 078       )    DATE
                            )
                            )
                            )

                         THE ISSUES

1.  Entitlement to service connection for a left knee
disorder.

2.  Entitlement to a compensable disability rating for right
patella chondromalacia.

                       REPRESENTATION

Appellant represented by:  Disabled American Veterans

                WITNESS AT HEARING ON APPEAL

Appellant

                   ATTORNEY FOR THE BOARD

M. W. Greenstreet, Counsel

                        INTRODUCTION

The veteran had active duty for training from June to August
1980.

In a March 1985 decision, the Department of Veterans Affairs
(VA) Regional Office (RO) in Boston, Massachusetts, denied
the veteran entitlement to service connection for a left
knee disorder and confirmed and continued a noncompensable
disability rating for his right knee disorder.  The veteran
was issued a statement of the case as to those issues in
March 1985; however, he did not complete his appeal.

In a December 1989 rating action, the RO denied an increased
disability rating for chondromalacia of the right patella.
In May 1990 the RO received a statement from the veteran to
the effect that his claim was for his left knee disorder.
The RO issued the veteran a statement of the case as to both
issues in June 1990, and received his substantive appeal in
June 1990.  In September 1990, the veteran offered testimony
in support of his claim at a hearing before a hearing
officer at the RO.  Later that month, the hearing officer
entered a decision affirming the prior decisions.

In March 1991 the Board of Veterans' Appeals remanded this
case for additional procedural development.  That
development was completed and the case was returned to the
Board.

In a September 1991 decision, the Board again returned the
case to the RO for further evidentiary development.  The RO
completed that development, confirmed its prior denial, and
returned the case to the Board, where it was received in
June 1992 and docketed the following month.

With respect to the issue of service connection for a left
knee disorder, our review shows that the evidence presented
by the veteran to reopen his claim is relevant and
probative, in that there is at least a reasonable
possibility that consideration of the new evidence, when
viewed in the context of all the evidence, would change the
outcome of this case.  Colvin v. Derwinski, 1 Vet.App. 171,
174 (1991); Smith v. Derwinski, 1 Vet.App. 178, 179 (1991).
Therefore, we find that the veteran's claim for service
connection for a left knee disorder is reopened, and we will
review it on the basis of all the evidence of record.

             CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his left knee chondromalacia is
directly attributable to an injury he sustained during his
active duty for training, warranting service connection.  He
emphasizes that the service medical records show that he
experienced patellofemoral crepitation in the left knee in
July and August 1980, a finding indicative of
chondromalacia.  He also points out that his private
physician has stated that his chondromalacia is consistent
with the problems which he experienced during service.

As to his service-connected right knee disorder, the veteran
asserts that an increased rating is warranted.  He avers
that he receives physical therapy for his right knee, and
that the joint is painful.

                    DECISION OF THE BOARD

In accordance with 38 U.S.C.A. � 7104 (West 1991), the Board
has considered all of the evidence in the veteran's claims
file and concludes for the following reasons and bases that
service connection is warranted for left knee chondromalacia
and that the veteran is not entitled to an increased
(compensable) disability rating for right knee
chondromalacia.

                      FINDINGS OF FACT

1.  The RO has obtained all evidence necessary for an
equitable disposition of the veteran's claims.

2.  The veteran's left knee chondromalacia began during his
military service.

3.  The veteran's right knee chondromalacia is manifested by
complaints of some pain; clinically, there is no subluxation
or lateral instability, extension is full and flexion is
limited by only 5 degrees.

                     CONCLUSIONS OF LAW

1.  Left knee chondromalacia was incurred during the
veteran's active duty for training.  38 U.S.C.A. �� 101(24),
106, 1131, 5107(a) (West 1991); 38 C.F.R. �� 3.102, 3.303(d)
(1991).

2.  The schedular criteria for an increased (compensable)
disability rating for right knee chondromalacia have not
been met.  38 U.S.C.A. �� 1155, 5107(a) (West 1991);
38 C.F.R. � 4.7, Part 4, Diagnostic Codes 5257, 5260, 5261
(1991).

       REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, the Board finds that the claims are plausible;
therefore, they are well grounded within the meaning of
38 U.S.C.A. � 5107(a) (West 1991).  We are also satisfied
that the RO has developed all the relevant evidence and that
there is no need to remand this case another time.

With respect to the veteran's claim for service connection
for a left knee disorder, the evidence provided by his
private physician does not show that a left knee disorder
preexisted the veteran's active duty for training, and there
were no left knee problems reported at his induction
examination in February 1980.  The other service medical
records show that, in July 1980, while the veteran was being
treated for complaints of right knee pain, it was
incidentally noted that there was crepitus of the left
knee.  On examination in August 1980, it was reported that
he experienced pain on patella grinding and patellofemoral
crepitance in both knees.  The assessment was "chr patella"
which we interpret to mean chondromalacia patellae.  An
anti-inflammatory drug was prescribed at that time and the
veteran was placed on a limited duty profile for three
days.

In December 1981, Leo S. Buckley, M.D., the veteran's
private physician stated that he was treating the veteran
for "both of his knees" and that he would be unable to
attend weekend drill.  An arthroscopy of both knees
performed by the same physician the following month resulted
in a diagnosis of bilateral chondromalacia patellae.

In a February 1982 letter, the veteran's private physician
stated that the veteran's bilateral chondromalacia was
consistent with his condition in the military in July 1980.
On VA examination in October 1991, there were findings of
patellofemoral crepitus of the left knee, and the diagnoses
included chondromalacia patella of the left knee.

Crepitation of the patellofemoral articulation is a
diagnostic hallmark of chondromalacia patellae, and is often
the first clinical sign of that disorder.  David J. Magee,
Orthopedic Physical Assessment, 418, 419 (2nd ed. 1987);
Barry R. Maron, Orthopedic Aspects of Sports Medicine, in
Sports Medicine 379 (Otto Appenzeller ed., 3rd ed. 1988).
The veteran's physician has essentially stated that his
chondromalacia of both knees is consistent with the
inservice findings of crepitation, and we find his opinion
to be especially probative since the veteran was under his
care both before and after his military service.  Moreover,
the United States Court of Veterans Appeals (Court) has
suggested that the opinion of a treating physician should be
accorded significant probative weight, given his familiarity
with the veteran's case.  See Lehman v. Derwinski, 1
Vet.App. 339 (1991).  Given these findings, we find that it
is as least as likely as not that the veteran's extant
chondromalacia of the left knee began during his military
service, and, resolving all reasonable doubt in his favor,
we conclude that service connection should be granted for
that disorder.

Turning to the veteran's claim for an increased
(compensable) disability rating for his right knee
chondromalacia, we find that the evidence is not in relative
equipoise nor does the veteran's disability picture more
nearly approximate the criteria for a compensable rating.
38 C.F.R. �� 4.7, 3.102 (1991).  In reaching our decision,
we note that the veteran testified at his September 1990
hearing that he experiences pain; however, our review of the
VA outpatient treatment reports does not show that the
veteran has reported any particular problems with the right
knee, and, in fact, in May 1990 he implied that he did not
wish to apply for an increased rating for the right knee
disorder.  Moreover, he has not exhibited visible evidence
of pain. 38 C.F.R. � 4.40 (1991).

While the regulations provide that service-connected
disabilities should be evaluated in light of the veteran's
medical and employment history, and from the point of view
of the veteran working or seeking work, (Schafrath v.
Derwinski, 1 Vet.App. 589 (1991); 38 C.F.R. �� 4.1, 4.2,
(1991)), the medical evidence simply does not demonstrate
that the veteran experiences subluxation, instability, or
significant limitation of motion so as to warrant a
compensable disability rating under Diagnostic Codes 5257,
5260, and 5261.  For instance, in May 1989, there was a full
range of motion of both knees, there was no swelling, and
the veteran stated that what knee pain he did experience did
not keep him from working.  On examination in October 1991,
the veteran's knees were stable to valgus/varus and
anteroposterior stresses.  He could extend the right knee
fully and flex it to 135 degrees.  Considering the veteran's
contentions in view of these findings and the absence of any
record of significant treatment for the right knee during
the last few years, we find that a compensable rating is not
warranted.

                            ORDER

Service connection is granted for left knee chondromalacia.

Entitlement to an increased (compensable) disability rating
for the veteran's right knee disorder is denied.

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

     WARREN W. RICE, JR.               ROBERT D. PHILIPP
    (DISSENTING IN PART)

                      FRANCIS F. TALBOT

                                  (CONTINUED ON NEXT PAGE)

                           DISSENT

I concur with my colleagues in the decision to grant service
connection for chondromalacia of the left knee.  I disagree
with their assessment that a compensable evaluation is not
warranted for chondromalacia of the right knee.  The record
shows that the veteran experiences right knee pain and has
slight limitation of flexion of this knee, and this has been
acknowledged as fact.  See finding of fact number 3.  Under
38 C.F.R. � 4.40, functional disability due to pain may be
the basis of a compensable rating.  That regulation provides
that a part which becomes painful on use must be regarded as
seriously disabled.  Section 4.40 recognizes that functional
loss may be caused by pain on use or a limitation of flexion
and that functional loss caused by either factor should be
compensated at the same rate.  38 C.F.R. � 4.45 directs that
painful motion must be considered as a part of disability
when rating the joints for purposes of disability benefits.
Therefore, sections 4.40 and 4.45 together make it clear
that pain must be considered capable of producing
compensable disability.  The Court has admonished the Board
for failing to apply these regulations in appropriate
cases.  Schafrath v. Derwinski, 1 Vet.App. 589 (1991).

At the RO hearing in September 1990, the veteran testified
that both knees were painful and bothered him, no matter
what he did, although the right knee was not as bad as the
left knee.  He testified that his right knee had
progressively worsened.  Also, significantly, he stated that
he was receiving physical therapy for his knees on a weekly
basis and was seeing a doctor in West Roxbury as needed.
(Transcript at 5 and 6.)  Surely, such therapy would not be
provided on a continuing basis if it were not needed to
alleviate a symptomatic knee disorder which was producing
functional disability.  Accordingly, I find the decision of
my colleagues, holding that the service-connected right knee
disorder does not warrant a compensable evaluation,
implausible and inconsistent with applicable rating criteria
and case law.

I would add a fourth finding of fact to those previously
listed:

          4.  The painful right knee is productive
          of functional disability.

I would substitute the following conclusion of law
for conclusion of law number 2:

          2.  A 10 percent evaluation is warranted
          for chondromalacia of the right knee.
          38 U.S.C.A. �� 1155, 5107(a) (West
          1991); 38 C.F.R. �� 4.40, 4.45, Part 4,
          Diagnostic Code 5257 (1991).

                WARREN W. RICE, JR.

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.

ADDENDUM REGARDING THE CLAIM OF ENTITLEMENT TO A COMPENSABLE
DISABILITY RATING FOR RIGHT PATELLA CHONDROMALACIA:

Decisions by a section of the Board shall be made by a
majority of the members of the section.  The decision of the
section is final unless the Chairman orders reconsideration
of the case.  38 U.S.C.A. � 7103(a) (West 1991).  I have
reviewed this decision and note that the majority of the
members of the section have voted to deny a compensable
evaluation for chondromalacia of the right patella.  I have
decided not to order reconsideration.  Accordingly, the
decision of the majority to deny a compensable evaluation
for chondromalacia of the right patella is final.

CHARLES L. CRAGIN
Chairman


judge_norm: EUGENE A O'NEILL

judge_role: Member, Board of Veterans' Appeals

disposition: remanded

text:
BVA9413000
DOCKET NO.  89-45 029     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska

THE ISSUE

Entitlement to service connection for a psychiatric disorder, to
include post-traumatic stress disorder.

REPRESENTATION

Appellant represented by: Robert A. Laughlin, Attorney

WITNESSES AT HEARINGS ON APPEAL

Appellant and R.L.

ATTORNEY FOR THE BOARD

S. L. Kennedy, Counsel

INTRODUCTION

The veteran served on active duty from September 1950 to
September 1954.

On May 10,1990, the Board of Veterans' Appeals (Board) denied the
veteran's claim of entitlement to service connection for a
psychiatric disorder, to include post-traumatic stress disorder,
on appeal from a determination of the Lincoln, Nebraska,
Department of Veterans Affairs (VA) Regional Office (RO).  The
veteran appealed the Board's decision to the United States Court
of Veterans Appeals (Court).  In a February 7, 1992, order, the
Court granted a joint motion for remand submitted on behalf of
the appellant by his attorney and by the Secretary of Veterans
Affairs (Secretary), and vacated the May 1990 decision of the
Board.  The matter was remanded to the Board, pursuant to 38
U.S.C.A. � 7252(a) (West 1991), for compliance with the agreement
between the parties in the joint motion to remand.  Pursuant to
the Court's February 1992 order, the Board remanded the case in
July 1992 to the RO for additional development.

REMAND

As noted above, the Board remanded the case to the RO for
additional development in order to comply with the Court's
February 1992 order.  Following the completion of additional
development, the RO issued supplemental statements of the case in
July  1993 and in March 1994, and the veteran was invited to
comment on the information contained therein prior to the return
of the records to the Board.  Thereafter, the RO apparently
received correspondence on the veteran's behalf dated in May 1994
which contained attachments which included an additional medical
report from Thomas Korn, Ph.D.  In June 1994, the Board received
additional correspondence from the veteran's representative which
referenced the May 1994 correspondence and attached medical
report, and in which he noted his request that the RO review the
additional medical report before forwarding the file back to the
Board.  The May 1994 correspondence with attachments was received
at the Board in July 1994.

From our review of the record, the RO has not reviewed the above-
referenced additional evidence.  We note that any such pertinent
evidence must be referred to the agency of original jurisdiction
for review and preparation of a supplemental statement of the
case unless this procedural right is waived by the appellant in
writing.  38 C.F.R. � 20.1304 (1993).  As the file contains a
specific request made on the veteran's behalf that the RO provide
initial consideration of the additional evidence submitted, it is
clear that the RO must conduct such a review prior to further
appellate consideration.

In view of the foregoing, and in order to fully and fairly
adjudicate the veteran's claim, the case is REMANDED to the RO
for the following action:

The RO should readjudicate the issue of
entitlement to service connection for a
psychiatric disorder, to include post-
traumatic stress disorder, taking into
consideration all of the evidence of record
including additional evidence submitted
after the March 1994 supplemental statement
of the case.  If the determination remains
adverse to the veteran, he and his
representative should be provided with a
supplemental statement of the case and
afforded the opportunity to respond.  The
supplemental statement of the case should
contain a summary of all pertinent evidence
submitted, citations of any applicable laws
and regulations not previously provided,
and the reasons for the decision.

The case should be returned to the Board for further appellate
review on the issue currently in appellate status as well as any
issue placed in appellate status during the course of this
REMAND.  The purpose of this REMAND is to afford the appellant
due process of law.  The Board intimates no opinion, either
factual or legal, as to the ultimate conclusion warranted in this
case.

          EUGENE A. O'NEILL
          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.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. � 20.1100(b) (1993).


judge_norm: DEREK R BROWN

text:
BVA9414000
DOCKET NO.  92-21 268     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Portland,
Oregon

THE ISSUE

Entitlement to service connection for residuals of injuries to
the knees.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

James A. Frost, Associate Counsel

INTRODUCTION

The veteran served on active duty from December 1951 to December
1955.

This appeal arises from a June 1973 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon.  In this regard, in December 1972 the veteran
claimed entitlement to service connection for a bilateral knee
disorder.  After receiving the veteran's service medical records,
lay statements and private physicians' statements, the RO denied
entitlement to service connection for bilateral chondromalacia
with postoperative residuals of a left patellectomy.  The veteran
was issued notice of the decision that month.  After receiving
additional lay statements, the RO in February 1974 confirmed and
continued its denial of the benefit sought by the veteran.  In
response, the veteran wrote to his Member of Congress, who
forwarded the veteran's letter to the RO, which treated it as the
equivalent of a Notice of Disagreement.  A Statement of the Case
was issued.  In May 1974 the veteran's private attorney confirmed
arrangements for a personal hearing, which was conducted on June
11, 1974.

Under a regulation in effect in June 1974, a "VA Form 1-9, Appeal
to the Board of Veterans Appeals, adequately executed, or its
equivalent in correspondence, from a claimant or his
representative following the furnishing of a statement of the
case will constitute a substantive appeal."  38 C.F.R. � 19.116
(1973) (emphasis added).  A very similar regulation is now in
effect at 38 C.F.R. � 20.202 (1993), "[a] Substantive Appeal
consists of a properly completed VA Form 1-9, �Appeal to Board of
Veterans� Appeals,� or correspondence containing the necessary
information."  (emphasis added)  As a "correspondent" can be
an individual who contributes oral reports to a radio or
television network, see Webster�s Ninth New Collegiate Dictionary
293 (1985), it follows that "correspondence" does not have to
be memorialized in writing.  Accordingly, the Board finds that
the hearing testimony presented in June 1974 was the equivalent
of correspondence indicating an intent to appeal the RO's denial
of service connection for a disorder of the knees.  The Board
therefore finds that the veteran's claim has been in open status
since the veteran�s initial claim and that it should be
considered on a de novo basis.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that he first injured both knees during his
period of active service and that he has had a chronic disability
of the knees since then.

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 record supports an allowance of service connection
for residuals of injuries to the knees.

FINDINGS OF FACT

1.  In service the veteran sustained injuries to both knees.

2.  The veteran has had a chronic bilateral knee disorder since
service.

CONCLUSION OF LAW

Residuals of injuries to the knees were incurred in service.  38
U.S.C.A. �� 1110, 1131, 5107 (West 1991); 38 C.F.R. � 3.303(d)
(1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, the Board notes that the veteran's claim is "well-
grounded" within the meaning of 38 U.S.C.A. � 5107(a).  That is,
the claim is plausible.  The Board is also satisfied that all
relevant facts have been properly developed.  No further
assistance to the veteran is required to comply with the duty to
assist the veteran mandated by 38 U.S.C.A. � 5107(a).

Service medical records are negative for any complaint, diagnosis
or treatment of an injury to either knee.  At an examination for
service separation in December 1955, the veteran's lower
extremities were evaluated as normal.

In December 1972 the veteran filed his original claim of
entitlement to service connection for residuals of knee injuries.
He submitted a report by K. A. Danford,
M.D., who stated that he saw the veteran in August 1956 for a
complaint of soreness of both knees.  The veteran is reported to
have said that his knees first became sore in service after he
crawled on the wings of bombers.  Dr. Danford next saw the
veteran in August 1968 for a painful right knee; the veteran told
him that his knees had gradually become more painful and his left
patella had been recently removed.

In January 1973, Ken Pfaff, M.D., reported that he first saw the
veteran in 1966, at which time he gave a history of knee pain
since his military service.  Since 1966 the veteran had had
recurring problems with his knees and legs.  In 1972, the veteran
was referred to a Dr. Helpenstall, who diagnosed bilateral
patellar disease and recommended surgery on the kneecap.
Dr. Pfaff offered his opinion that the veteran's patellar disease
probably began in service.

A lay statement by [redacted] was submitted in February
1973.  Mr. [redacted] stated that he had known the veteran in high
school prior to his service, and that when the veteran ran track
he had not experienced leg problems.  When Mr. [redacted] saw the
veteran after he returned from service the veteran seemed to have
a problem walking distances.

At a VA orthopedic evaluation in October 1972 the veteran gave a
history of difficulty with both knees for several years, which
was becoming progressively worse.  The veteran stated that his
left knee was injured in 1952 while he was serving in the United
States Air Force and he now had some bursitis in that joint.

A VA hospital summary in December 1972 showed that the veteran
was admitted with a history of intermittent pain behind both
kneecaps since 1955, more so in the last several months.  X-rays
of the knees showed some calcific lipping of the patellae.  A
left patellectomy was performed.  Diagnoses included
chondromalacia of the patella, bilaterally.  A VA hospital
summary in December 1973 indicated that the veteran had undergone
a right patellectomy.

In response to an inquiry by the RO, the veteran stated in May
1973 that he received outpatient treatment for his knees at a
service department hospital from 1952 to 1955.  In response to an
inquiry from the RO, Dr. Danford stated that he had not taken
X-rays of the veteran's knees when he saw him in 1956.

A December 1973 statement under oath by [redacted] was
submitted.  He said that during service the veteran complained of
his knees bothering him and that the veteran had bought a motor
scooter so he would not have to walk so much on the flight line.
A sworn statement dated in October 1973 from [redacted] was
also submitted.  Mr. [redacted] said he worked with the veteran in
the Air Force from 1954 to December 1955, and that the veteran
had severe pain in his knees many times while crawling in tight
spaces in aircraft.  He was told that at one time the veteran
fell off the wing of a plane and landed on a jet pod.

In April 1974, the veteran wrote to his Congressman and stated
that, in service in 1952, he fell while he was marching and was
hospitalized for treatment of knee pain; thereafter, he had knee
pain while crawling on and in the wings of planes.  The veteran
stated that he had bought a motor scooter to avoid knee pain
while walking.  He further reported that in the summer of 1955 he
fell from the wing of a plane onto a jet pod, landing on a knee,
but did not seek treatment but rather cared for the injury by
himself.  At discharge in December 1955 he reportedly was told
that he would probably have more trouble with his knees as time
went by.  He stated further that after service in August 1956 he
went to a local doctor for pain in the knees, and that over the
years, various doctors had told him not to have anything done to
his knees until it became necessary due to arthritis.  The
veteran also informed the Congressman of his surgeries in
November 1972 and December 1973.
An affidavit by [redacted], executed in April 1974, was
submitted in support of the appeal.  He stated that he served
with the veteran from 1952 through 1955; that the veteran had
difficulties with his knees, for which he went to sick call on
some occasions; and that Air Force doctors told him that he would
always have trouble with his knees.

At a June 1974 hearing the veteran presented testimony concerning
his preservice activities, and his inservice military duties.  He
further presented testimony concerning how his knees were injured
inservice, and testimony regarding the impact of the claimed post
service residuals of those inservice injuries.

The record indicates that the veteran's attorney attempted to get
from the United States Air Force documentation concerning the
veteran's hospitalization in March 1952.  While the veteran was
hospitalized from March 2 to March 5, 1952 for treatment of
rubella, no records of a March 1952 hospitalization for a knee
disorder or injury could be obtained.

In June 1982, Dr. Danford essentially repeated his prior December
1972 statement, and noted that the veteran had undergone
patellectomies in 1972 and 1973.

A January 1986 VA examination diagnosed status post bilateral
knee patellectomies, rule out residual degenerative arthritis.

In March 1992, M. Samuel, M.D., offered the opinion on a VA
prescription slip that crawling on his knees would not have
caused the veteran's chondromalacia but could have "flared" it.

In February and March 1992, respectively, [redacted] and
[redacted] signed statements which essentially reiterated
their prior statements.

Service connection may be granted for disability resulting from
injury or disease incurred in or aggravated during service.  38
U.S.C.A. �� 1110, 1131.  Service connection may also be granted
for any disease diagnosed after service, when all the evidence,
including that pertinent to service, establishes that the disease
was incurred in service.  38 C.F.R. � 3.303(d).

After a review of the entire record, the Board finds that the
evidence raises a reasonable doubt as to whether chronic
residuals of bilateral knee disorder were incurred inservice.  In
reaching this determination we observe that the service medical
records are devoid of any complaint or finding concerning any
knee disability.  Indeed, the veteran denied any joint deformity
when he was seen for his December 1955 separation examination.
Under 38 C.F.R. � 3.303(d), however, service connection may be
awarded for any disease diagnosed after service, when all the
evidence, including that pertinent to service, establishes that
the disease was incurred inservice.  Here the record reflects
that the veteran sought treatment for a bilateral knee disorder
within eight months of his separation from active duty, and that
he then related to K. A. Danford, M.D., that his knee disorder
began while on active duty.  Similarly, in 1966, the veteran
related to a different private physician, Ken Pfaff, M.D., that
his bilateral knee pain began while on active duty.  Dr. Pfaff
offered his opinion that the veteran's patellar disease probably
began in service.  Significantly, the veteran did not file a
claim for VA compensation until 1972.  Thus it is evident that
the medical history offered in 1956 and 1966 was offered solely
to obtain relief from ongoing bilateral knee pain, and not to
secure some monetary benefit.  We therefore find the veteran�s
testimony concerning his inservice occupational duties, and
concerning certain inservice incidents to be credible.  The
benefit sought on appeal is granted.  38 U.S.C.A. �� 1110, 1131;
38 C.F.R. � 3.303(d).

In reaching this decision the Board did consider the contrary
viewpoint of M. Samuel, M.D., a VA health care provider.  We
find, however, that his opinion is at least equally balanced by
the contrary viewpoints of Drs. Danford and Pfaff.  As such the
benefit of the doubt doctrine mandates a favorable decision for
the veteran.

ORDER

Service connection for residuals of bilateral injuries to the
knees is granted.

          DEREK R. BROWN
          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.