Citation Nr: 1125964	
Decision Date: 07/11/11    Archive Date: 07/19/11

DOCKET NO.  05-40 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for a right elbow disability.

2.  Entitlement to service connection for a heart disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. D. Anderson, Associate Counsel





INTRODUCTION

The Veteran served on active duty from March 1994 to January 1996 and April 1996 to September 2002.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  Jurisdiction is currently with the RO in Montgomery, Alabama.  

In April 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to provide the Veteran with proper notice and afford the Veteran a VA examination of her claimed disabilities.  The action specified in the April 2009 Remand completed, the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

The issue of entitlement to service connection for a heart condition 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.


FINDING OF FACT

The Veteran has a right elbow disability that had onset in service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for a right elbow disability have been met.  38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 (West 2002); 38 C.F.R. § 3.303(a) (2010).  In general, service connection requires (1) 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 current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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) (2010). 

The Veteran's service treatment records show recurrent complaints of and treatment for right elbow pain and epicondylitis in 2002, prior to separation from service.  Post-service VA and private treatment records, including a January 2005 VA examination, show diagnoses of refractory epicondylitis, brachial radialis tenosynovitis, medial and lateral epicondylitis, and right elbow tendonitis.  

However, at a June 2009 VA examination, the examiner concluded that there was insufficient evidence to warrant a diagnosis of epicondylitis of the right elbow, apparently because an x-ray of the Veteran right elbow showed normal soft tissue and no joint effusion.  

The Veteran responded by submitting records from her physical therapist, D.W., showing that she received physical therapy in March and April 2010 for right elbow pain and has a diagnosis of right lateral epicondylitis.

Under 38 U.S.C.A. § 1131, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  "Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself 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).  

Here, there is some question as to whether the Veteran has a right elbow disability, as there are conflicting opinions among the VA examiners and VA and private treatment providers as to whether the Veteran suffers from a right elbow disability.  However, the Board acknowledges that the Veteran's condition is of a type that could wax and wane in severity depending on how much the Veteran uses her right arm and that regardless of any periods of temporary improvement, the record as a whole shows continuing complaints of right elbow pain, tenderness, and limitation of motion that began in service and have continued on chronic basis to the present.  Accordingly, the Board must find that the evidence is at least in equipoise as to whether the Veteran has a current right elbow disability that had onset in service or was caused or aggravated by the Veteran's active military service and entitlement to service connection for a right elbow disability must be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010).

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  


ORDER

Entitlement to service connection for a right elbow disability is granted.  


REMAND

The Veteran is seeking entitlement to service connection for a heart disability.  

Service treatment records show that in 1995, the Veteran complained on multiple occasions of palpitations, chest pain, and shortness of breath, which were suspected to be stress induced.  No heart disease or condition was noted at separation from service in September 2002.  

A VA treatment record from July 2005 notes that the Veteran suffers from mitral valve prolapse and uncontrolled hypertension.  It appears from the Veteran's statements that after she began taking medication to control her blood pressure, many of her claimed symptoms such as tachycardia and dizziness resolved.   

In June and August 2009, the Veteran was afforded a VA cardiovascular examination, including a cardiac stress test and echocardiogram.  Although some abnormalities were noted, the examiner concluded that the evidence was insufficient to warrant a diagnosis of heart disease.  She offered no explanation for her conclusion.  A medical opinion that contains only data and conclusions is accorded no weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).   Because the examiner failed to explain the significance of various test results that appear abnormal, as well as the contradiction between her conclusion and the 2005 conclusion of a VA physician that the Veteran suffers from mitral valve prolapse, the Board finds that the Veteran must be afforded another VA examination.  

Additionally, the Board notes that the Veteran has been diagnosed with hypertension and it appears from the Veteran's December 2005 substantive appeal that the medication prescribed for her high blood pressure has help control her palpitations and related symptoms.  

A decision by the United States Court of Appeals for Veterans Claims, in Clemons v. Shinseki, 23 Vet. App. 1 (2009) clarified the scope of a claim on appeal by holding that when a claimant makes a claim, he/she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  Here, the Veteran claimed service connection for heart palpitations, and the Board must consider alternative current conditions that are within the scope of the claim, which could include a claim for hypertension.  Accordingly, the VA examiner is asked to determine whether the Veteran has hypertension, and if so, whether it is at least as likely as not that this disability had onset in service or was caused or aggravated by the Veteran's active military service.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine 1) whether the Veteran has a heart disease or disability, including hypertension, and if so, 2) whether it is at least as likely as not (fifty percent or greater) that the Veteran's disability had onset in service or was caused or aggravated by the Veteran's active military service.  

If the examiner is unable to render an opinion without resorting to speculation, he or she should so state.  

The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file.  

All findings should be described and any necessary diagnostic tests performed.  The examiner is asked to provide an explanation for his or her conclusions, including an explanation of diagnostic tests results whose significance would not be readily understood by a lay person.  


2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence.  If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter 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).


______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs