Citation Nr: 0811914 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-01 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a right elbow disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from November 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2002 rating decision of the Togus, Maine regional office (RO) of the Department of Veterans Affairs (VA). The veteran's appeal was previously before the Board in March 2005, when it was determined that new and material evidence had been submitted to reopen the veteran's claims for entitlement to service connection for a right elbow disability, a right shoulder disability, and a low back disability. The Board proceeded to grant service connection for the right shoulder disability, but remanded the right elbow and low back claims to obtain additional examinations and medical opinions. This development has been completed, and the claims have been returned to the Board. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. Service medical records show treatment for a right elbow injury that was sustained in a fall. 2. The the preponderance of the evidence is against a finding that the veteran's current right elbos disability, epicondylitis, is related to a disease or injury sustained during service. CONCLUSION OF LAW A right elbow disability was not incurred due to active service. 38 U.S.C.A. §§ 1110; 5107(b) (West 2002); 38 C.F.R. §§ 3.303(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2005). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the veteran was provided with a VCAA notification letter in June 2002, prior to the adjudication of his claim. This letter told the veteran what evidence was needed to substantiate the claims for service connection. The veteran was also informed that VA would obtain service records, VA records, and records from other Federal agencies, and that with his authorization VA would obtain private medical records on his behalf or he could submit the records. The letter asked the veteran to notify VA of any evidence he wanted the VA to obtain on his behalf. The letter also notified him that it was his duty to send all of the evidence as soon as possible. These statements met the requirement to notify the veteran to send any relevant evidence in his possession. The veteran has not been provided with notification pertaining to degrees of disability and the effective dates of disabilities. The Board finds that these omissions do not result in any prejudice to the veteran. As the Board is denying entitlement to service connection, neither a disability evaluation nor an effective date will be assigned. Therefore, as there is no chance that any harm may result to the veteran's claim, the Board can proceed with adjudication of his appeal. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds that the duty to assist has been met. All identified records have been obtained for the issue of entitlement to service connection for the right elbow. These include both the veteran's service medical records and his post service records from both VA and private sources. The veteran has been afforded a recent VA examination of his right elbow, and an opinion as to the etiology of his complaints has been obtained. The Board notes that an October 1980 letter from the State of Maine Disability Determination Services references the veteran's receipt of Social Security Administration (SSA) disability benefits, which were scheduled to end. However, the letter specifically attributed these benefits to a low back disability and a left leg disability, without mention of a right elbow disability. The duty to obtain records only applies to records that are "relevant" to the claim. See 38 U.S.C.A. § 5103A(b)(1); see also Counts v. Brown, 6 Vet. App. 473, 476 (1994) (citing the Federal Rule of Evidence 401 defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). There is no indication that these SSA records would be relevant to the right elbow claim. Remanding the case to obtain such records would serve no useful purpose. Therefore, the Board finds that the duty to assist has been met, and the Board may consider the veteran's claim for service connection for a claimed right elbow disability. Service Connection The veteran contends in his written statements and at the November 2004 hearing that he has developed a chronic right elbow problem as a result of his fall from the deck of a ship into the hold. He has placed the height of this fall as between 20 and 30 feet, and states that it resulted in a dislocation of the right elbow. The veteran states that the only medical attention he received was some superficial treatment from a corpsman, and that he then dulled the pain by consuming alcohol. See Transcript. The veteran believes that his current epicondylitis is the result of the injury during service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The service medical records show that the veteran was seen on November 15, 1966 after he fell off a pallet and injured his right elbow. On examination, there was no swelling and no discoloration. The examiner suspected either a sprain or dislocation. He was treated by wrapping the elbow in an ace bandage. The veteran was to be scheduled for an X-ray if there was no improvement. Additional records from November 15, 1966 state that the veteran had sustained a trauma to his right forearm. He was seen and examined, and his arm placed in a sling. There was no swelling, but the veteran had painful range of motion of the elbow. The impression was soft tissue injury. He was to wear the sling for five days. The remainder of the service medical records are negative for treatment for right elbow complaints or a diagnosis of a right elbow disability. There is no evidence that an X-ray of the right elbow was obtained. The veteran denied having a painful or "trick" shoulder or elbow on the October 1968 Report of Medical History obtained from him prior to discharge. An injury to the elbow was not noted in physician's summary of all pertinent data. The medical examination conducted at this time found that the upper extremities were normal. The post service medical records include a VA examination conducted in October 1972. The veteran reported an occasional ache in the mid portion of his right arm. He had normal motion of the elbows and normal strength of the muscles. The veteran had a VA examination in March 1981. He gave a history of a dislocation of the right elbow in Vietnam in 1966. The dislocation had been reduced and taped, but the veteran said he removed the tape after one day and never went back to the doctor. No findings or complaints regarding the right elbow were noted. At a March 1989 VA examination, the veteran gave a history of a 30 foot fall aboard a cement ship in service. He reported that he had injured his elbow in the fall. Since that time he had experienced weakness and decreased range of motion with rotation or certain movements. This had continued over the years and bothered him daily. He had aching that was quite disabling. On examination, the surface anatomy was grossly normal. An X-ray study obtained at this time was normal. The veteran had an additional VA examination in August 1989. The examiner stated that the veteran's right elbow had been dislocated while he was in service, and that the description of the reduction sounded legitimate. Currently, he had a full range of flexion and extension in the elbow, with tenderness and pain on the medial side of the elbow and proximal forearm in the region of the medial humeral epicondyle. The examiner stated that given the veteran's 10 year history of increasing discomfort and pain in the elbow that it was related to the dislocation. He further stated that it was likely aggravated by the fact that he worked as a laborer and used his arms for heavy activity. The examiner added that the veteran had moderately severe medial epicondylitis with involvement in the tendinous portion of the insertions of the flexor muscles. The veteran reported a sore right arm and elbow at a June 1991 VA examination. He again said he injured his right elbow at the same time he fell into the ship's hold. The veteran complained of constant pain in the right elbow which was made worse by certain seemingly random movements. These sharp pains would cause him to drop whatever was in his hand. The elbow was normal on inspection. As on previous examinations, the veteran was tender to touch over the medial upper right elbow. The range of motion was normal, although there was some mild crepitus. The impression was a right elbow injury. VA treatment records from March 2001 show that the veteran gave a history of an injury to his right shoulder and elbow in a 1966 fall in the military. On examination, the right elbow had full range of flexion and extension, although the last 10 degrees of extension were painful. VA treatment records dated in April 2001 contain similar findings. At that time the assessment included history of injury suggestive of dislocation with resultant post- traumatic arthritis, although radiographically it was not too noticeable. It was the examiner's opinion that the injury sustained in 1966 definitely resulted in the problem he now had in his right shoulder and elbow. The most recent VA examination was conducted in October 2005. The VA and military records were reviewed. The veteran's claim to have fallen into a ship and sustained a right elbow injury was noted. The examiner also noted that this varied from the military records that say the veteran was seen after falling off a pallet with an injury to the right elbow. The veteran claimed to have been evaluated by a corpsman and that he was thought to have a dislocated right shoulder and elbow. However, the only treatment had been an Ace bandage. The veteran currently suggested that the dislocation spontaneously reduced itself, but also said that a corpsman had yanked on the arm several times. Currently the veteran reported right elbow pain about 80 percent of the time of a burning nature. This was aggravated by strenuous or repetitive use. There was no swelling, but some weakness and stiffness. On examination, the right elbow had full range of motion with no visible pathology. The lateral epicondyle was minimally sensitive to pressure. An X-ray study showed no pathology. The impression was "Normal right elbow (except for occasional epicondylitis)". The examiner commented that the veteran's claims were unsubstantiated by the medical records regarding pathology of the right elbow. The October 2005 examiner reported an impression of a normal right elbow, except for occasional epicondylitis. This constitute competent evidence of a current disability. Furthermore, the service medical records clearly show treatment for an injury to the right elbow, although the extent of this injury is unclear. However, the evidence does not establish a nexus between the veteran's right elbow injury in service and the epicondylitis that was noted after discharge. The service treatment records confirm that the veteran sustained an injury to his right elbow during service, although these records do not confirm a 30 foot fall. The only symptom noted afterwards was painful range of motion, and the veteran did not receive any treatment for his injury other than a bandage and a sling. While these service medical records state that the veteran had a sprain or a dislocation, additional records from the same date state that the veteran had a soft tissue injury. The remainder of the service medical records is negative for right elbow complaints. The veteran denied having a painful elbow at discharge. The post service medical records first note right elbow complaints in October 1972. Neither the history nor etiology of these complaints was discussed. The veteran's first post service report of a right elbow dislocation was on a March 1981 VA examination. The veteran also claimed that his right elbow had been dislocated on examinations conducted in August 1989 and April 2001, and each of these VA examiners opined that the veteran's current complaints were the result of the dislocation. However, as noted by the October 2005 VA examiner, the service medical records do not confirm that the veteran sustained a dislocation to his right elbow. The October 2005 VA examiner was the only medical professional to examine the veteran's claims folder including the service medical records prior to rendering his opinion. The opinions that relate the veteran's right elbow epicondylitis to service are based on the veteran's history without review of the pertinent records. They were also based on the unsubstantiated belief that the veteran's elbow was dislocated during service and an unquestioning acceptance that there had been a continuity of symptomatology. These opinions are, therefore, of less probative weight than the opinion of the VA examiner. The October 2005 examiner noted that the veteran's contentions did not match evidence in the service medical records, and suggests that the treatment received in service indicates that the elbow had not been dislocated. In fact, the examiner refers to the veteran's "so called "dislocation" ". The examiner then opined that the veteran's claims are unsubstantiated by the medical records regarding pathology of the right elbow. As the opinion from the October 2005 examiner is the only one based on a review of all the evidence, the Board finds that it has the most probative value, and on this basis finds that service connection was not warranted. In reaching this decision, the Board observes that the veteran is competent to report that he has experienced occasional right elbow pain that has been increasing in frequency and severity since an injury in service. However, the veteran is not a physician, and he is not competent to relate the current disability to aninjury inservice. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The Board further observes that if the only trained medical personnel who examined the veteran's initial injury were unable at that time to determine whether he had a sprain or dislocation, the veteran would certainly be unable to provide a competent diagnosis. The medical opinions that have related the veteran's right elbow pain to active service have done so on the unsubstantiated assumption that the elbow had been dislocated. The only medical professional to examiner the record has determined that the veteran's elbow was not dislocated during service. The veteran is also competent to state that he has experienced right elbow problems ever since his injury in service. However, the Board does not find this contention to be credible. The injury occurred in November 1966, after which the veteran returned to his duties involving physical labor. The service medical records are negative for further complaints, and the veteran denied having a painful elbow at the time of his discharge examination. The initial evidence to support his claim of continued right elbow pain is dated October 1972, which is nearly six years after the injury. Furthermore, the veteran did not relate the pain reported in 1972 to the injury in service. In fact, the only injury noted at that time was a post service automobile accident. The Board finds that continuity of symptomatology between the in-service injury and the post service right elbow disability is not established. Therefore, as the preponderance of the evidence is against a finding of a nexus between the veteran's current epicondylitis and the injury he sustained in November 1966, entitlement to service connection for a right elbow disability is not warranted. ORDER Entitlement to service connection for a right elbow disability is denied. REMAND An October 1980 letter from the State of Maine Department of Human Services to the veteran indicates that the veteran had been receiving disability benefits from the Social Security Administration (SSA) for disabilities that included his back disability. The letter further indicated that these benefits were soon to be terminated. There is no indication that the SSA has been contacted to obtain a copy of the decision which awarded these benefits, or the medical records on which the decision was based. The Courts have imposed a virtually absolute duty to obtain SSA decisions and underlying medical records. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Voerth v. West, 13 Vet. App. 117, 121 (1999); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Therefore, the Board finds that an attempt to obtain the veteran's SSA decision and the medical records on which it was based must be made prior to reaching a decision. Accordingly, the case is REMANDED for the following action: 1. Obtain from the Social Security Administration the records pertinent to the veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. Any follow up decisions and records dated subsequent to the original decision should also be obtained. 2. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs