Citation Nr: 1306302	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  08-07 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for a right elbow disability.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Veteran and son


ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1967 to December 1970 and from December 1990 to July 1991.  The Veteran also had periods of active and inactive duty training in the Air Force Reserves from 1974 to 2004.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Boston, Massachusetts Department of Veterans Affairs (VA) Regional Office (RO).  In August 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file.  This matter was before the Board in November 2011 and June 2012 when it was remanded for additional development.  

The June 2012 remand, in pertinent part, included the matter of service connection for a skin disorder.  A December 2012 rating decision granted service connection for squamous and basal cell carcinoma, right ear canal and other sites (claimed as skin disorder).  The Veteran has not expressed disagreement with the rating decision, and that matter is no longer before the Board.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's right elbow olecranon bursitis had its onset in service.  


CONCLUSION OF LAW

Right elbow olecranon bursitis was incurred in service.  38 U.S.C.A. §§ 101, 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.303 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board grants service connection for a right elbow disability, which constitutes a complete grant of the benefits sought on appeal as to that claim.  Therefore, a discussion of VA's duties to notify and assist is unnecessary regarding the claim.  

The Veteran asserts that his right elbow disability is due to an injury from a fall during reserve service in 1975.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

Specifically with respect to Reserve members, diseases or injuries incurred or aggravated while performing active duty for training (ACDUTRA) are eligible for service connection.  38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002).  However, if performing inactive duty for training (INACDUTRA), only injuries sustained during that time are eligible for service connection.  Id.  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.  

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing.  See Caluza, 7 Vet. App. at 511; Dalton v. Nicholson, 21 Vet. App. 23, 28 (2007).  

The Veteran's service treatment records show that on October 30, 1975 he fell off a maintenance stand and hit his right elbow.  His service treatment records show no further complaints, treatment or abnormalities for any right elbow problems during his nearly three decades of subsequent ACDUTRA and INACDUTRA.  In fact, the Veteran specifically denied any history of elbow problems on all subsequent annual reserve service examinations.  

The Veteran filed the instant claim for a right elbow disability in June 2006.  

On January 2007 VA joint examination, the Veteran reported that he fell (approximately eight feet) off a maintenance stand while working on a jet and injured his right shoulder and elbow.  He reported experiencing right elbow pain and stiffness.  Physical examination revealed full right elbow range of motion, nontender but a prominent olecranon process on palpation.  X-rays revealed minimal soft tissue swelling over the olecranon.  The diagnosis was olecranon bursitis right elbow.  

At the August 2011 Travel Board hearing, the Veteran testified that he has had right elbow symptoms since the documented fall during reserve service.  

On August 2012 VA elbow and forearm examination, the Veteran again reported that he fell off a maintenance stand while working on an aircraft on reserve duty in 1975, hitting his right elbow.  He subsequently developed olecranon bursitis manifested primarily by a chronic swelling over the right olecranon area which was initially slightly painful.  The Veteran denied any current residual symptoms other than a persistent area of swelling over the right olecranon; he denied the right elbow was painful.  On physical examination, there was no objective evidence of painful motion.  There was no pain on palpation, although there was minimal soft tissue swelling in the area of the right olecranon bursa when compared to the left elbow but the bursa was not tender or fluctuant.  The right elbow was otherwise normal on examination.  The diagnosis was right traumatic olecranon bursitis.  The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury.  The examiner noted that the only current residual is mild swelling of the olecranon bursa without tenderness, pain or other functional limitations.  The examiner further found that although the current findings are consistent with the expected residuals of the injury, the injury occurred during reserve duty.  
It is not in dispute that the Veteran fell and injured his right elbow during reserve service on October 30, 1975.  Service personnel records show that the Veteran was on ACDUTRA from October 31, 1975 to November 2, 1975.  Thus, it appears that the Veteran's injury occurred during a period of INACDUTRA.  It is also not in dispute that the Veteran currently has right elbow traumatic olecranon bursitis manifested primarily by swelling of the olecranon bursa.  The analysis therefore proceeds to whether there may be a nexus between the Veteran's current disability and his service/complaint and injury therein.  

The only medical opinion that addresses the matter of the etiology of the Veteran's current right elbow disability is that of the August 2012 VA examiner who opined that the Veteran's right elbow disability was less likely than not incurred in or caused by the claimed in-service injury.  However, as noted above, the examiner also opined that current findings are consistent with the expected residuals of the injury.  The basis for the examiner's negative nexus opinion appears to be that the Veteran was on reserve (INACDUTRA) duty during the time of injury.  Nonetheless, despite the fact that the Veteran was injured during a period of INACDUTRA, the examiner agreed that the Veteran's current right elbow disability was consistent with the injury during reserve service.  Under governing statutory guidelines, injuries sustained during INACDUTRA are eligible for service connection.  38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002).  Hence, with resolution of all doubt in the Veteran's favor, the Board finds that service connection for a right elbow disability is warranted.  


ORDER

Service connection for right elbow olecranon bursitis is granted.  



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs