Citation Nr: 1310802 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-42 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a penis/urethra disorder. 2. Entitlement to service connection for tendinitis of the right elbow. 3. Entitlement to service connection for tendinitis of the left elbow. 4. Entitlement to service connection for tendinitis of the left wrist. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 2003 to March 2005, as well as a prior period of active duty for training (ACDUTRA) from July 1998 to October 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Lincoln, Nebraska. Due to the location of the Veteran's residence, jurisdiction of his appeal is with the RO in New Orleans, Louisiana. In June 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran has not had a penis/urethra disorder at any time since filing his claim for compensation. 2. Tendinitis of the right elbow was not present during service, arthritis has not been diagnosed, and the currently diagnosed tendinitis of the right elbow did not develop as a result of any incident during service. 3. Tendinitis of the left elbow was not present during service, arthritis has not been diagnosed, and the currently diagnosed tendinitis of the left elbow did not develop as a result of any incident during service. 4. The Veteran has not had a left wrist disorder at any time since filing his claim for compensation. CONCLUSIONS OF LAW 1. A penis/urethra disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Tendinitis of the right elbow was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 3. Tendinitis of the left elbow was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 4. Tendinitis of the left wrist was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letter dated in August 2008 regarding the type of evidence necessary to establish his claims. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs) and post-service medical records. Although the Veteran has not been afforded VA examinations in connection with his claims, the Board finds that medical opinions on the questions of service connection for a penis/urethra disorder and tendinitis of the bilateral elbows and left wrist are not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is insufficient evidence establishing that the Veteran suffered an event, injury or disease in service; has a current diagnosis or symptoms of a penis/urethra disorder and tendinitis of the left wrist; or that any tendinitis of the elbows may be related to his service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Furthermore, sufficient competent medical evidence is of record to decide the claim. Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The Veteran was also provided with a hearing related to his present claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal, but did not suggest the submission of any additional evidence. This was not necessary, however, because the Veteran fully described why he believed service connection was warranted for a penis/urethra disorder, tendinitis of the bilateral elbows and tendinitis of the left wrist. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis A. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Certain chronic diseases (e.g., arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 1. Penis/Urethra Disorder The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran has a current disabling penis/urethra or other genitourinary disorder. In this case, no competent medical evidence has been presented to show that the Veteran has a current penis/urethra disability that is the result of an in-service injury. Post-service treatment records reflect complaints of gross hematuria and some other genitourinary complaints, but no chronic disability accounting for such complaints has been shown. A private record dated in October 2005 shows that the Veteran reported feeling like he had urethral discharge, but that there would be nothing there when he checked. Sexually transmitted disease screening was negative. He reported a service injury in 1999 when he fell on a weapon and the weapon hit slightly below the umbilicus. He reportedly had blood in his urine for two to three days following the injury. No chronic penis/urethra disorder was diagnosed. To the extent that the Veteran reported that the in-service injury occurred in 1999, the Board observes that the Veteran did not have any verified active military service in that year. Other post-service treatment records show that the Veteran had a penis abscess in April 2006; again, no chronic disorder was diagnosed. He complained of increased frequency of urination and urgency with no burning or pain in February 2009; no chronic genitourinary disorder was diagnosed. A July 2009 VA urology note shows that the Veteran reported having gross hematuria and that he had an in-service injury in 2003 when he was hit in the lower abdomen with the butt of a rifle. The Veteran was assessed with previous episodes of gross hematuria. Diagnostic tests were all normal. The record indicates that potential sources of benign hematuria, i.e., arteriovenous malformation (AVM) were discussed and that a work-up did not reveal any malignant source of the bleed. No penis/urethra disability was diagnosed. Treatment records and statements from the Veteran fail to show the presence of a penis/urethra or other genitourinary disorder. In fact, the Veteran specifically testified at his June 2012 hearing that he had not been given a diagnosis for an in-service bruise that he contends caused his symptoms. June 2012 Hearing Transcript (T.) at 10. As such, the Board concludes that the evidence of record does not show the presence of a current penis/urethra disorder. Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The Court held that symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.) The Board has considered McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim. The Board again notes, however, that no other evidence of record reflects the presence of a diagnosed disability during that time frame. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the diagnosis of a penis/urethra disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to diagnosis have no probative value. Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of a penis/urethra or any other genitourinary disability. See 38 U.S.C.A. § 1110; Brammer at 225; Degmetich, 104 F.3d 1328; Wamhoff at 521. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a penis/urethra disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a penis/urethra disorder is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). 2. Tendinitis of the Right and Left Elbows The Veteran contends that he has tendinitis of the right and left elbows that is related to his military service. Specifically, he contends such disorders are the result of being injured while landing during a parachute jump. See, e.g., T. at 10. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current tendinitis of the right and left elbows became manifest or otherwise originated during his period of service or is otherwise related to his military service. There is no finding that any chronic right and left elbow disorders, including tendinitis, were treated or diagnosed during service. The Veteran's Reserve entrance examination in March 1998 and discharge examination in April 2004 both revealed clinically normal upper extremities. In his April 2004 report of medical examination, he denied symptoms such as painful elbow or wrist; bone, joint or other deformity; and impaired use of arms. Although he reported having swollen or painful joints, the examination report indicates that such complaints pertained to the Veteran's right knee. The Veteran's physical evaluation board (PEB) in September 2004 shows that the only disabilities reported were a seizure disorder, tendonitis of the right knee and adjustment disorder. There is no indication that the Veteran had any elbow disorders. The Veteran's responses to the PEB findings indicated that his medical conditions included epilepsy, a right knee disability, bipolar disorder, sleep disorder and chronic lower back pain; he did not report having a bilateral elbow disorder. There is no indication in the Veteran's STRs that he injured his elbows in a parachute landing. The only upper extremity complaints include a record dated in December 2003 showing that the Veteran had had an intravenous in his left forearm arm the week earlier and his arm was still painful, and having chronic bilateral arm pain in January 2004. The January 2004 record indicates that the Veteran had left arm pain with push-ups. However, these records fail to show the diagnosis of any right and left elbow disorders. There is no indication in any of his STRs that he was treated for symptoms associated with the currently diagnosed tendinitis of the right and left elbows. There is also no indication of a diagnosis of any right or left elbow disorders in his STRs. The Veteran's contemporaneous service records fail to show that the onset of any tendinitis or any other right and left elbow disorders occurred during service. The totality of the evidence fails to show that the onset of any current tendinitis or any other right and left elbow disorders occurred during the Veteran's service. No medical professional has reported that the onset of any current tendinitis of the right and left elbows began during the Veteran's military service. There is also no medical evidence of the manifestation of arthritis within a year of separation of service. Indeed, there has been no evidence presented to even show a diagnosis of arthritis. X-rays of both elbows in September 2008 and of the right elbow in May 2009 did not show any disorders. The May 2009 X-ray indicated that there was no arthritic change. A July 2009 record indicates that X-rays showed no evidence of arthritis; a November 2009 record shows that X-rays were reportedly normal; and March 2010 record indicates that elbow X-rays were negative. None of the Veteran's treatment records shows any diagnosis of arthritis, nor has the Veteran reported such a diagnosis. There is no evidence of a diagnosis of arthritis; no medical professional has provided any opinion indicating that the Veteran has arthritis. The pertinent medical evidence that has been presented shows a current diagnosis of possible triceps insertional tendinitis in July 2009 and tendinopathy in March 2010; however, the evidence does not contain medical opinions relating any currently diagnosed right and left elbow disorders to the Veteran's military service. The first indication of any bilateral elbow complaints is in July 2008. At that time, the Veteran reported only having pain for one month and that he worked on computers. He did not report any in-service injury or that he had elbow complaints in service. In fact, treatment records showing the Veteran's report of his in-service parachuting injury indicate that he did not report hurting his elbows. For example, a June 2007 record indicates that the Veteran had multiple injuries following that injury, which included his brain, back, right knee, left ankle and left forearm; although the Veteran referred to his left forearm, he did not report specific elbow injuries. Records dated in July 2009 and November 2009 indicate that the etiology of the Veteran's bilateral elbow pain was unknown; both records suggest that the Veteran's complaints could have been somatization from his bipolar disorder. No medical professional has provided any opinion indicating that the Veteran's right and left elbow complaints are related to his military service. The probative medical evidence simply fails to adequately establish any nexus between current tendinitis of the right and left elbows and the Veteran's periods of service. No medical professional has provided any opinion indicating that any currently diagnosed tendinitis of the right and left elbows is related to the Veteran's military service. Without competent evidence of an association between tendinitis of the right and left elbows and his active duty, service connection for tendinitis of the right and left elbows is not warranted. To the extent that the Veteran's testimony indicates that the onset of his wrist complaints began in service and have continued since service, thus establishing a continuity of symptomatology, the Board is cognizant of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recent holding in Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). In that decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Although osteoarthritis is listed as a chronic condition in 38 C.F.R. § 3.309(a), tendinitis is not. None of the Veteran's treatment records show any right and left elbow disorder listed as a chronic condition in 38 C.F.R. § 3.309(a). As such, to the extent that the Veteran's assertions indicate a continuity of symptomatology, absent evidence that his symptoms led to a diagnosed chronic condition listed in 38 C.F.R. § 3.309(a), service connection based on a continuity of symptomatology cannot be granted under Walker. Although as a lay person, the Veteran is competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the etiology of tendinitis falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). As such, his own assertions as to etiology have no probative value. Without evidence of the onset of tendinitis of the right and left elbows in service or competent evidence of an association between tendinitis of the right and left elbows and the Veteran's active duty, service connection for tendinitis of the right and left elbows is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for tendinitis of the right and left elbows. As the preponderance of the evidence is against these issues, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for tendinitis of the right and left elbows is denied. See 38 U.S.C.A §5107. 3. Tendinitis of the Left Wrist The Veteran contends that he has tendinitis of the left wrist that is related to his military service. Specifically, as with his bilateral elbows, he contends that tendinitis is the result of being injured while landing during a parachute jump. See, e.g., T. at 10. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran has currently disabling tendinitis of the left wrist or other left wrist disorder. In this case, no competent medical evidence has been presented to show that the Veteran has a current left wrist disability that is the result of an in-service injury. Post-service treatment records reflect complaints of left wrist pain, but no chronic disability accounting for such complaints has been shown. The only diagnosis for the Veteran's complaints has been polyarthralgia. A January 2010 record diagnosing the Veteran with polyarthralgia indicates that the Veteran had largely negative findings for structural causes. "Arthralgia" means pain in a joint. See Dorland's Illustrated Medical Dictionary 152 (31st ed. 2007). However, no underlying diagnosis for the Veteran's pain has been shown. In this regard, a March 2010 record indicates that the Veteran's review of symptoms, labs and imaging showed no evidence of synovitis or inflammatory disease. The record shows that rheumatology could find no evidence of inflammatory arthritis, carpal tunnel decompression or systemic disease to explain the Veteran's symptoms. As such, the Board concludes that the evidence of record does not show the presence of a current left wrist disorder. In reaching the conclusion that the evidence does not support a finding of tendinitis of the left wrist or any other left wrist disorder, the Board acknowledges the Veteran's argument that a May 2010 VA joints examiner who examined his right wrist would have provided a diagnosis and positive nexus opinion pertaining to his left wrist if an examination of the left wrist had been requested. See September 2010 substantive appeal. However, the Board reiterates that none of the Veteran's VA treatment records shows a diagnosis of a left wrist disorder. As already discussed above, the Board has concluded that a VA examination for the Veteran's left wrist was not warranted. Without a recognized injury or disease entity, VA is not authorized to award compensation for reported symptomatology. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability"); see also Sanchez-Benitez at 285; aff'd Sanchez-Benitez v. Principi at 1363. The Board has considered McClain at 321 which held that the requirement that there be evidence of a current disability in a service connection claim is satisfied by evidence showing that the Veteran had such a disability at the time he filed claim for compensation, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Board's adjudication of the claim. The Board again notes, however, that no evidence of record reflects the presence of a diagnosed disability during that time frame. Although lay persons are competent to provide opinions on some medical issues, see Kahana at 435, as to the specific issue in this case, the diagnosis of a left wrist disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to diagnosis have no probative value. Accordingly, service connection must be denied because there is no competent evidence of a diagnosis of tendinitis, or any other disability, of the left wrist. See 38 U.S.C.A. § 1110; Brammer at 225; Degmetich, 104 F.3d 1328; Wamhoff at 521. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a tendinitis of the left wrist. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a tendinitis of the left wrist is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for a penis/urethra disorder is denied. Entitlement to service connection for tendinitis of the right elbow is denied. Entitlement to service connection for tendinitis of the left elbow is denied. Entitlement to service connection for tendinitis of the left wrist is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs