Citation Nr: 1123574 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 06-14 731 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left hand disability. 2. Entitlement to service connection for a left elbow disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from January 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision by the RO which denied the benefits sought on appeal. The issue of service connection for a left hand 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, DC. FINDINGS OF FACT 1. All evidence necessary for adjudication of the issue addressed in this decision have been obtained by VA. 2. The Veteran is not shown to have a left elbow disability at present which is related to service. CONCLUSION OF LAW The Veteran does not have a left elbow disability due to disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claims, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in May 2005. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). With respect to the duty to assist in this case, the Veteran's service treatment records and VA medical records have been obtained and associated with the claims file. The Veteran was also scheduled to appear at a videoconference hearing in April 2010, but failed to report and did not contact VA to request to reschedule. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McClendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Regarding the claim for a left elbow disability, the Board concludes that an examination is not needed because there is no credible evidence establishing an in-service event, injury or disease, including on a presumptive basis, or any evidence of a current disability. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issue addressed in this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service Connection: In General Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). 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 he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Id. at 1337. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Factual Background & Analysis The Veteran contends that he was treated for left elbow problems in service and believes that he is entitled to a grant of service connection for a left elbow disability. However, the Veteran has not presented any competent medical evidence of a current disability. In this regard, it should be noted that service connection requires a finding that there is a current disability that has a relationship with service or to a service-connected disease or disability. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). While the Veteran is competent to provide evidence concerning his observations and experiences, any such assertions must be weighed against other contradictory statements or other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom Maxon v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) [it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints]; see also Forshey v. Principi, 284 F. 3d 1335 (Fed. Cir. 2002) ["negative evidence" could be considered in weighing the evidence]. In this case, the Veteran's service treatment records are completely silent for any complaints, treatment, abnormalities, or diagnosis referable to any left elbow problems in service. Other than a 21/2 inch scar on the left forearm also noted on the enlistment examination, the Veteran's separation examination in September 1968 showed no pertinent abnormalities referable to any left elbow problems and his upper extremities were normal upon clinical evaluation. The evidentiary record shows that when seen by VA in April 2006, the Veteran reported a history of an injury to his left arm and shoulder in service, including left shoulder dislocation. The report noted that his left grip was weak due to pain in his elbow, and the assessment included elbow pain. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In this case, not only is there no objective evidence of an injury, disease or treatment for any left elbow problems in service or until nearly four decades after service, but the Veteran has not presented any competent medical evidence of a current left elbow disability. As to his left elbow pain, the Court has held that pain alone without a diagnosed or identifiable underlying malady or condition did not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has carefully considered the Veteran's contentions regarding his left elbow problems in service. However, the Board finds that his lay assertions of in-service treatment is not credible, due to current pecuniary interest, as well its inconsistency with the other evidence of record. The service treatment records show no such treatment and indeed, the arm was specifically evaluated at service discharge and found normal. As there is no credible evidence of a left elbow injury or disease in service, no credible evidence of any treatment or continuity of symptomatology since service, or any objective evidence of a current disability, the record affords no basis for a favorable disposition of the Veteran's appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for a left elbow disability. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a left elbow disability is denied. REMAND Concerning the left hand disability, the Veteran claims that his left hand is weaker than his right and that it hurts all the time. The service records showed he was treated for rope burns to the left hand on several occasions. Although a VA treatment record in April 2006, indicated that the Veteran's left hand weakness was due to left elbow pain, the report did not elaborate any further regarding the absence or presence of a current hand disability. Since there is a documented injury to the hand in service, as well as current hand complaints, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the AMC for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any identified left hand disability, to include whether there are any residual rope burn scars. The claims file must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All indicated tests and studies are to be performed. The examiner should provide an opinion as to whether it is at least as likely as not that any currently identified left hand disability is related to the Veteran's rope burn injury in service. The examiner should describe all findings in detail and provide a complete rationale for all conclusions reached and opinions expressed. If the examiner is only able to theorize or speculate as to the relationship, if any, between any identified left hand disability and service, this should be so stated. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. 2. After the requested development has been completed, the AMC should readjudicate the merits of the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran has the right to submit additional evidence and argument on the 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. 2010). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs