Citation Nr: 1123621 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 08-26 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for arthritis, right elbow (dominant), claimed as secondary to service-connected residuals, fracture of right collar bone. 2. Entitlement to service connection for right ulnar neuropathy, claimed as secondary to service-connected residuals, fracture of right collar bone. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from August 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. Competent medical evidence establishes a nexus between service-connected fracture of the right collar bone and arthritis, right elbow. 2. Competent medical evidence establishes a nexus between service-connected fracture of the right collar bone and right ulnar neuropathy. CONCLUSIONS OF LAW 1. Arthritis, right elbow is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2010). 2. Right ulnar neuropathy is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2010). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs 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, and (3) that the claimant is expected to provide. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2010). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this 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. In a September 2007 letter, the RO provided the Veteran with notice of the evidence required to substantiate his claims. The letter informed the Veteran what evidence he should provide and advised him of the types of evidence that VA would attempt to obtain on his behalf. The letter explained how VA determines disability ratings and effective dates. Regarding the duty to assist, the RO obtained the pertinent evidence necessary to decide the claim. The record on appeal includes service treatment records and relevant post-service medical records identified by the Veteran. The Veteran has also had a VA examination. In this case, VA provided the veteran adequate notice and assistance with regard to the claim on appeal. Even assuming otherwise, remanding for additional notification and/or assistance is unnecessary because, due to the favorable disposition of this claim, the Board's decision to proceed in adjudicating it does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). II. Analysis of Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. § 1110. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection may be presumed for certain diseases, including arthritis, if it is shown that the veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, such disease became manifest to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2010). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2010). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. As the Veteran filed his claim in July 2007, the amendment is applicable to the current claim. However, since there is no evidence or allegation of aggravation in this case, and there is evidence which supports a grant under 38 C.F.R. § 3.310(a), this question is moot. Service treatment records reflect that the Veteran was treated for a right clavicle fracture in March 1971 after he fell during a practice for a parachute drop. Service treatment records show a diagnosis of undisplaced fracture of the mid clavical shaft in satisfactory position and alignment. Service treatment records do not reflect any complaints or findings regarding the right elbow or the right ulnar nerve. A December 2003 rating decision granted service connection for residuals, fracture of right collar bone. VA outpatient medical records reflect current diagnoses and treatment of status post right ulnar nerve decompression and right elbow arthritis. The Veteran had VA examinations of his elbow and ulnar nerve in February 2008. The VA examiner diagnosed degenerative joint disease of the right elbow and right elbow neuropathy (cubital tunnel syndrome), status post release surgery. The examiner opined that the Veteran's right elbow injuries are not due to or the result of his service-connected fracture of the right clavicle. The examiner reasoned that the Veteran's right elbow degenerative joint disease with ulnar neuropathy is more likely of traumatic origin. In May 2009, the Veteran submitted an opinion from a private physician, Dr. B.B., D.O. Dr. B.B. noted that the Veteran sustained a right clavicle fracture during his active duty service in the Navy. Dr. B.B. noted that the Veteran's medical records did not show any evidence of any type of follow up or rehabilitation after the clavicle fracture in 1971. Dr. B.B. opined that, as the joints of a limb are interconnected, if one joint is not functioning properly, the neighboring joints must compensate for the dysfunction, which in turn places abnormal stresses, strains and motions on neighboring joints. He noted that, over time, stresses, strains and motions can manifest itself in degenerative joint disease and/ or osteoarthritis, which then lead to inflammatory changes to the tissues surrounding the joints. He concluded that the Veteran's elbow dysfunction is a direct result of his service-connected shoulder injury. The Board is presented with conflicting opinions regarding the etiology of the Veteran's right elbow disabilities. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The RO found that Dr. B.B.'s medical opinion was not sufficient because the opinion did not indicate that the claims file was reviewed. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a claims file review, as it pertains to obtaining an overview of a veteran's medical history, is not a requirement for private medical opinions. A review of the claims file by a VA examiner, without more, does not automatically render the VA examiner's opinion competent or persuasive since the claims file is a tool to assist in familiarity for the physician with the claims file, and conversely a private medical opinion may not be discounted solely because the opining clinician did not review the claims file as there are other means by which a physician can become aware of critical medical facts, such as a history of treating the veteran for an extended period of time and/or reviewing pertinent medical literature. The relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. Thus, when VA refers to facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon VA to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment. In sum, in Nieves-Rodriguez, the Court indicated that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. Dr. B.B. did not specifically indicate that he reviewed the entire VA claims file; however, his opinion reflects that he was informed of the relevant facts in rendering the opinion. Dr. B.B. indicated that he reviewed the Veteran's "medical record." Dr. B.B. discussed the service records and the history regarding the clavicle injury in some detail and provided sound reasoning for his medical opinion that the current right elbow disabilities were caused by the service-connected right clavicle fracture. Based on the foregoing, the Board finds that there is competent medical evidence that right ulnar neuropathy and right elbow arthritis are proximately caused by or due to the Veteran's service-connected residuals of right collar bone fracture. Accordingly, service connection is warranted for arthritis, right elbow and right ulnar neuropathy. ORDER Service connection for arthritis, right elbow, is granted. Service connection for right ulnar neuropathy is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs