Citation Nr: 1229520 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 09-17 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a left elbow disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from February 1958 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The instant matter was previously before the Board in August 2011 at which time it was remanded for further development. That development having been completed, the Board may proceed with a decision at this time. See Stegall v. West, 11 Vet. App. 268 (1998). Also, after the case was returned to the Board, the Veteran submitted additional evidence to the Board that was not first considered by the RO. The submission of such evidence was accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2011). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran as likely as not has left elbow arthritis that is attributable to his active military service. CONCLUSION OF LAW The Veteran has arthritis of the left elbow that is the result of injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); See Hickson v. West, 12 Vet. App. 247, 253 (1999) At the outset, the Board finds that the Veteran has a currently diagnosed left elbow disability. An October 2011 x-ray report shows degenerative changes of the left elbow. That report was reviewed by a VA examiner in January 2012 who noted left elbow arthritis in his examination report. Further, the Veteran has reported an in-service left elbow injury. Specifically, he contends that he fell during service while serving on a ship and fractured his left elbow. In this regard, the Board notes that the Veteran's service treatment records (STRs) show that he was seen in June 1960 after falling and striking his right elbow. An x-ray report shows that there was no fracture or dislocation. Thereafter, on examination reports prepared in November 1963, November 1969, and September 1973, a scar on the right elbow was noted. The Veteran's STRs contain no reference to his left elbow. The Veteran argues, however, that, at least with regard to the x-ray report, his STRs erroneously refer to his right, as opposed to his left, elbow. The Veteran maintains that it was his left elbow that was injured in service. As a layperson, the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as symptoms or events experienced during service. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, the appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). Notably, the October 2011 x-ray report indicates that x-rays of the Veteran's left elbow revealed an old well-healed mid radius fracture, as well as ossification at the lateral epicondyle likely related to an old trauma. The Veteran's private physician, J.W., M.D., also stated that the x-ray results were compatible with the Veteran's reported history of having fallen from a ladder while serving on a ship in service. Thus, although the Veteran's STRs contain no evidence of a left elbow injury, given that current evidence contains findings consistent with the Veteran's reported in-service injury, affording the Veteran the benefit of the doubt, the Board finds that his lay statements are sufficient to establish the presence of an in-service injury to his left elbow. 38 U.S.C.A. § 5107(b) (West 2002). Accordingly, as the evidence both shows a current diagnosis of a left elbow disability and an in-service left elbow injury, the question is one of nexus. See Davidson and Hickson, both supra. Relevant to the question of nexus, the Veteran has consistently maintained that he has experienced left elbow pain and limited motion since the in-service injury. See 38 C.F.R. § 3.303(b); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994))). The claims folder also contains the report of a January 2012 VA examination and a statement from the Veteran's private physician. In a December 2007 statement, Dr. J.M. reported that he had reviewed the Veteran's STRs and opined that the Veteran's left elbow pain was more likely than not related to military service. Similarly, the VA examiner reviewed the Veteran's claims folder, to include his STRs, and opined that the Veteran's claimed left elbow disability was at least as likely as not incurred in or caused by the claimed in-service injury. The examiner noted that the Veteran's STRs referenced a right elbow, but apparently found no reason to question the Veteran's assertion that that reference was in error and that it was his left elbow that he injured in service. The examiner also relied on Dr. J.W.'s positive nexus opinion, as well as the private x-ray evidence showing an old well-healed left-elbow fracture, as support for his positive opinion. Upon consideration of the entirety of the record before it, the Board finds no adequate basis to reject the evidence of record that is favorable to the Veteran, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Thus, resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for left elbow arthritis is warranted. 38 U.S.C.A. § 5107(b) (West 2002); O'Hare, supra; 38 C.F.R. § 3.102 (2011). ORDER Service connection for arthritis of the left elbow is granted. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs