Citation Nr: 1303429 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 07-23 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a left elbow disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from January 1954 to July 1978. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The Veteran's current left elbow disorder is not related to his military service or to any incident therein. CONCLUSION OF LAW A left elbow disorder was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the issue decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements 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) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information 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 RO's August 2001 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (finding that where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a notification followed by readjudication of the claim by the RO). The Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's available VA and private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Furthermore, the Veteran was provided with more than one VA examination to determine the nature and etiology of any current left elbow disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In compliance with the Board's May 2011 and September 2012 remand, a VA medical opinion was obtained in October 2012 as to whether the Veteran's left elbow disorder was related his service. The Board finds this VA examination adequate as it was based upon a complete review of the Veteran's claims file, clinical examination of the Veteran and with consideration of the Veteran's statements, and the VA examiner provided a written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, the Board concludes that there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Finally, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). Generally, in order to establish service connection for the claimed disorders, there must be (1) medical 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). In certain circumstances, lay evidence may also be competent to establish a medical diagnosis or medical etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). The Veteran's original claim sought service connection for arthritis of multiple joints. He claims that he experienced multiple joint pain since his military service. During the pendency of this appeal, service connection was established for degenerative disease of the lumbar spine; for right shoulder limitation of motion and pain, claimed as bursitis; for left shoulder limitation of motion and pain, claimed as bursitis; for right knee arthritis and chondromalacia; for left knee arthritis and chondromalacia; and for residuals of a right ankle. In its September 2012 decision, the Board denied service connection for multiple joints other than both knees, both shoulders, the lumbar spine, the right ankle, and the left elbow. The only aspect of this claim remaining on appeal is whether the Veteran is entitled to service connection for the left elbow. The Veteran's service treatment records are silent as to issues related to the left elbow. An August 1967 Report of Medical History shows that the Veteran reported swollen or painful joints; however, clarifying notes from the examining physician show that painful knees were reported, but there was no mention in the report of the elbow. At the time of his 1978 retirement examination, the Veteran was referred to the orthopedic clinic for examination, but this was again related to his knees, not his elbow. The Report of Medical History at that time shows that the Veteran again reported swollen or painful joints. At this time, the joints mentioned were the knees, fingers, and right foot/ankle, but not the elbow. The service treatment records do not show evidence of symptoms or treatment of a left elbow disorder at any time during the Veteran's military career. After separation from service, the Veteran underwent a comprehensive VA examination in September 1978. Although he reported a history of swollen joints, no condition was claimed or shown regarding a joint other than both knees, both shoulders, the lumbar spine, and the right ankle. An April 1999 reserve service treatment report reflects that the Veteran received physical therapy for multiple joint pain. At this time, he reported left elbow pain that had "persisted since coming off steroids." The Veteran underwent a VA joints examination in December 2000. The Veteran complained of pain in the right ankle, both shoulders, spine, and both knees. There was no mention of issues related to the left elbow in this report. Likewise, a September 2002 reserve service treatment report shows that the Veteran again reported pain in the hips and legs, but made no mention of left elbow symptoms. The Veteran was afforded another VA joints examination in March 2004. The VA examiner stated that the Veteran's claims file was reviewed. This examiner specifically noted, "Elbows - no problems;" yet went on to describe, following physical examination, tenderness of the left elbow over the medial epicondyle and lateral condyle. The examiner concluded that the Veteran had "tennis elbow and golfer's elbow symptoms in the left elbow." In the diagnosis section of the report, however, the examiner listed "chronic strain of the right elbow, medial and lateral chondylitis" (emphasis added). Yet, in the discussion section, the examiner referred to "medial epichondylitis and lateral chondylitis of left elbow." In March 2005, a VA examiner submitted an addendum report into the record in which the Veteran's shoulders, cervical and lumbar spine, knees and right ankle were discussed. There was, however, no discussion of the left elbow in this report. Another VA joints examination in May 2011 also failed to discuss the Veteran's left elbow. Because of the inadequacy in the prior VA examinations as to the left elbow, the Board again remanded this issue in September 2012. Most recently, the Veteran underwent VA examination in October 2012. The examiner confirmed in the VA examination report that the claims file, to include Virtual VA clinical records dating from October 1999 to October 2012, were reviewed pursuant to the Board's remand directives. The VA examiner took into account the Veteran's history of heavy lifting in service, and also noted the Veteran's report that left elbow pain had manifested twenty years prior. While range of motion was not limited, the examiner confirmed pain on movement. X-ray examination, also conducted in October 2012, yielded a normal osseous study with osseous structures, their articulations and surrounding soft tissue appearing normal. The examiner confirmed that this x-ray report is without a finding of degenerative or traumatic arthritis. As to the appropriate diagnosis, the examiner confirmed left elbow medial epicondyle tenderness. With regard to its etiology, it was reported that the left elbow condition was "less likely than not" incurred in or caused by active service. The examiner noted that there has not, at any time in the Veteran's history, been a confirmed diagnosis of arthritis and therefore, there can be no arthritis causally connected to service. As to the left elbow medial epicondylitis, the examiner also found that this was not caused by or related to active duty service, because there was no indication in service of complaints related to the elbow, and the first clinical showing was many years later in the March 2004 report. After reviewing the evidence of record, the Board finds that service connection is not warranted for a left elbow condition. At no time during the course of this claim and appeal has there been a confirmed diagnosis of left elbow arthritis, so service connection for left elbow arthritis is not warranted. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As to the left elbow medial epicondylitis, the evidence of record does not include a medical opinion linking this left elbow disorder to his active military service. While service treatment records, including the April 1978 service separation examination report, show complaints of swollen and painful multiple joints, they are silent as to any treatment or diagnoses related to the left elbow. Thereafter, post service records also fail to document any complaints of or treatment for the left elbow for over twenty years after his discharge from active duty service. The first post-service evidence of record documenting the Veteran's complaints after military discharge are the April 1999 reserve service treatment reports, in which he complained of left elbow pain following an adjustment in medication. This expansive period without complaints or treatment weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In this regard, the Board finds it significant that the Veteran underwent a comprehensive VA examination in September 1978, shortly after military discharge, at which time he complained multiple joint problems involving both knees, both shoulders, the lumbar spine, and the right ankle, but did not mention any condition relating to his left elbow. The only probative medical opinion of record, that of the October 2012 VA examiner, does not relate the Veteran's left elbow condition to his military service. This opinion was rendered by a medical professional who is competent to offer an opinion in the matter, and who thoroughly reviewed the Veteran's claims file, conducted a clinical examination, and considered the Veteran's lay assertions. The Veteran's July 2012 written statement wherein he generally refers to his claims, and reported that his claimed problems started while he was in service, which was obvious in his military medical records. However, this contention is not accurate. As noted earlier, while it is true that the Veteran's service treatment records show multiple complaints of pain or swelling in various joints, they do not regard the Veteran's left elbow. Moreover, the Veteran's July 2012 statement regarding the onset of the symptoms in service is not consistent with his other statements of record. Specifically, on the 1999 reserve service treatment record, he reported that left elbow pain onset when his steroid treatment stopped. Also, at the October 2012 VA examination, the Veteran reported the onset of pain in his left elbow was twenty years prior. This would have been in approximately 1982, which was still several years following his separation from service. Thus, the Veteran has reported to different parties at different times that his left elbow pain onset (1) in 1999 after steroid treatment stopped, (2) in approximately 1982, and (3) in service. Generally, lay statements regarding symptoms such as joint pain, capable for lay observation, are competent evidence of what he actually observed and was within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, the Board finds that the Veteran's statements as to the onset of the currently diagnosed left elbow disorder lack credibility as they are internally inconsistent and inconsistent with the other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). To extent that the Veteran contends that his left elbow disorder was caused by service, the Board finds that these statements as to medical causation are not competent evidence to establish service connection. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau, 492 F.3d at 1377; Davidson, 581 F.3d at 1316. However, in this case, the Board finds that the question as to the onset and development of left elbow medial epicondylitis, or its relationship to service, does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide a competent etiological opinion that his currently diagnosed left elbow disorder was the result of his military service. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board has considered the benefit of the doubt doctrine when making these findings, but as discussed above, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left elbow condition. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left elbow disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs