Citation Nr: 1144404 Decision Date: 12/05/11 Archive Date: 12/14/11 DOCKET NO. 07-26 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for tendinitis of the left elbow. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Associate Counsel INTRODUCTION The Veteran had active service from October 1984 to July 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction was subsequently returned to the RO in Roanoke, Virginia. In March 2010, the Veteran testified before the undersigned Acting Veterans Law Judge during a Board hearing held at the Central Office located in Washington, D.C. A transcript of that hearing has been associated with the claims file. In August 2010, the Board remanded the case to the RO, via the Appeals Management Center (AMC), for further development and adjudicative action. In a July 2011 Supplemental Statement of the Case (SSOC), the RO/AMC affirmed the determination previously entered. The case was then returned to the Board for further appellate review. FINDINGS OF FACT The evidence of record does not show that the Veteran currently has a left elbow disorder that is etiologically related to her military service. CONCLUSION OF LAW The criteria for service connection for a left elbow disorder are not met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCCA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011) requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the information and evidence necessary to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to provide; and (3) that the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. However, in Shinseki v. Sanders, 129 S.Ct. 1696 (2009), the United States Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. By letters dated in September 2005, May 2008, and September 2010, the Veteran was notified of the information and evidence necessary to substantiate her claim. VA told the Veteran what information she needed to provide, and what information and evidence that VA would attempt to obtain. Under these circumstances, the Board finds that VA has satisfied the requirements of the VCAA. With respect to the Dingess notice requirements, in light of the Board's denial of the Veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the Court's holding. The duty to assist also has been fulfilled, as the Veteran's service and VA medical records relevant to the claim have been requested and obtained and the Veteran has been provided with VA examination for her claimed left elbow disorder. The Board finds that the available medical evidence is sufficient for an adequate determination of her claim. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. Legal Criteria for Service Connection Service connection means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for certain "chronic" diseases, such as arthritis, may also be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the instant claim. Left Elbow Disorder The Veteran claims that she currently has a left elbow disorder that is related to her military service. She asserts that she experienced left elbow symptomatology during her military service and essentially that she has experienced a continuity of symptomatology following her separation. Having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim. Therefore, the appeal must be denied. The Veteran's service treatment records have been reviewed and show that she received treatment for left elbow symptomatology while on active duty. An August 2000 service treatment record documents her report of left elbow pain; she was assessed with epicondylitis. Subsequent records dated through May 2001 show continued treatment for her symptoms. She was given a physical profile for left lateral epicondylitis in October 2000. A May 2001 service treatment record reflects that her left elbow condition was resolving. She reported her history of a left elbow condition during the March 2005 separation medical examination. The examiner noted that her four year history of left lateral epicondylitis, with resolution "status post band." In November 2005, the Veteran underwent a VA general medical examination to assess the claimed left elbow disorder. The examiner indicated that she reviewed the claims file in the associated examination report. The Veteran reported having left elbow tendinitis that began during her military service. She reported that she wore an elbow brace on the left elbow during flare ups of her left elbow symptomatology; flare ups reportedly occurred approximately four times per month and when she did a lot of typing. The Veteran did not present with the left elbow brace during the examination. The clinical examination revealed that the Veteran was well developed, with a normal build and state of nutrition. The examination of the left elbow was negative for tenderness over the joint. The Veteran demonstrated normal flexion and extension, both without pain. An associated X-ray examination of the left elbow was negative for any abnormalities. Following the examination, the examiner determined that there was no pathology to render a diagnosis with respect to the left elbow tendinitis. In January 2007, the Veteran submitted portions of her service treatment records, showing that she received in-service treatment for left elbow symptomatology. During the March 2010 Board hearing, the Veteran reiterated her contention that she currently has a left elbow disorder due to her military service. She testified that she was diagnosed with left elbow tendonitis while on active duty and that her disorder continued following her separation. The Veteran also reported that she recently received treatment for her left elbow symptomatology from a military physician (as the Veteran is a military retiree, she is entitled to treatment at military medical facilities under CHAMPUS). In response to the August 2010 Remand, the RO/AMC sent the Veteran a VCAA notice letter in September 2010 essentially requesting that she identify all the health care providers who treated her claimed left elbow disorder. The RO included an Authorization and Consent to Release Information form (VA Form 21-4142) so that it could attempt to obtain the medical treatment records from any health provider identified by the Veteran. To date, the Veteran has not responded to the RO's request for information and she has not identified the specific names, locations, or dates of any medical treatment relevant to the claimed disorder. Based on the foregoing evidence, the Board finds that entitlement to service connection for a left elbow disorder is not warranted. The weight of the evidence does not show that the Veteran had the claimed disability at any point during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that, because the requirement of a current disability is satisfied when there is a disability when a claim for it is filed or at any time during the pendency of such claim, service connection may be granted even though a disability resolves prior to adjudication). As the medical evidence does not indicate a currently diagnosed disorder, the Board does not even reach the question of whether the claimed left elbow disorder is related to the Veteran's military service. The medical evidence in this case does not include objective findings associated with current left elbow tendinitis or with any other disorder affecting the Veteran's left elbow. In this regard, the Board finds highly probative the November 2005 VA examiner's conclusion. Based on a physical examination of the Veteran and review of the claims file, the examiner essentially determined that there was no evidence of any left elbow pathology to render a diagnosis in this case. This medical determination is considered highly probative as it is definitive, based upon a complete review of the Veteran's entire claims file, and based on the results of the Veteran's clinical evaluation. Accordingly, it is found to carry significant probative weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. app. 444, 448- 49 (2000). The Veteran has not provided any competent medical evidence to rebut the VA examiner's determination against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492- 93 (1995). In reaching the above determination, the Board has considered the Veteran's statements that she has experienced left elbow symptomatology ever since her military service. The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which she has first-hand knowledge, e.g., experiencing pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. See Buchanan v. Nicholson, 451 F.3d 1335 (Fed. Cir. 2006). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. In this case, the Board finds the Veteran's reports of in-service left elbow symptomatology to be both competent and credible, as the service treatment records confirm that she was treated for left elbow tendinitis. However, the post-service medical evidence does not reveal an objective evidence of a current left elbow disorder. The Board finds it significant that the Veteran has presented no evidence dated during the appeal period showing actual diagnoses related to the claimed disorder. See McLain v. Nicholson, 21 Vet. App. 319 (Vet. App. 2007). Indeed, she has not identified any healthcare providers or treatment records relevant to the claimed left elbow disorder. Essentially, there is no objective evidence showing that the Veteran currently has a left elbow disorder or linking any diagnosed disorder to her military service. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1993); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). The only evidence linking the claimed left elbow disorder to her military service is the Veteran's own assertions. The Board does not question the Veteran's sincerity in her belief that service connection is warranted for a left elbow disorder. While she is certainly competent to relate events in service and after service, and to describe the extent of any current symptomatology, there is no evidence that she possess the requisite medical training or expertise necessary to render her competent to offer evidence on matters such as medical diagnosis or medical causation. Cromley v. Brown, 7 Vet. App. 376, 379 (1995). Essentially it is beyond the Veteran's competency to diagnose herself with a left elbow disorder or to link the claimed disorder to his military service. See Jandreau, 492 F.3d 1372 (explaining that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). For the Board to conclude that the Veteran currently has a left elbow disorder that is related to service would be speculation, and the law provides that service connection may not be granted on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Simply put, in the absence of a present disability that is related to service, a grant of service connection is clearly not supportable. Brammer, 3 Vet. App. at 225. The Board notes that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In reaching this conclusion regarding the Veteran's claim, the Board has considered the applicability of the benefit-of-the- doubt doctrine. Because the evidence here is not in equipoise, and, in fact, the absence of evidence to support the claim suggests that the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine is not applicable. See Gilbert v. Derwinski, 1Vet. App. 49, 55- 57 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). As there is simply no basis upon which to grant the Veteran's claim, the appeal is denied. ORDER Service connection for a left elbow disorder is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs