Citation Nr: 1315441 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-41 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a left elbow disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks entitlement to service connection for a left elbow disorder. The evidence of record reflects that he is currently diagnosed as having tendonitis of the left elbow. The Veteran indicated on his June 1995 Report of Medical History at retirement from service that he suffered from swollen or painful joints, although the physician specified that the Veteran only complained of pain in his right knee, right shoulder, and bilateral ankles. The Veteran has indicated that he suffered from left elbow tendonitis since service, and that he was treated for tendonitis in 1991 while stationed at Spangdahlem Air Base in Germany, although a review of his service records does not reflect this treatment. Although he claims to have suffered from this disability sporadically since service and chronically since approximately 2007, he did not immediately seek post-service treatment for it because he self-medicated with ibuprofen and naproxen and utilized the arm band he says he was given in Germany. In addition, in correspondence dated in December 2009, the Veteran's Officer in Charge from October 1991 to May 1992 at Spangdahlem Air Base indicated that the Veteran complained of left elbow pain during their daily racquetball matches, and that he began holding the racket in his right hand to compensate for the left elbow pain. Lay statements may be competent 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). These lay assertions, coupled with a current diagnosis of left elbow tendonitis, trigger VA's duty to assist in providing a VA medical examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). In addition to an examination, the RO should attempt again to identify any treatment records not already obtained. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter asking him to identify all private and VA treatment he has received for his left elbow. Any VA records identified should be obtained. The RO should specifically request records from Mountain Home AFB dated from June 2009 to the present. If any private records are identified, the RO must make two attempts for the identified private treatment records, or make a formal finding that a second request for such records would be futile.. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If private records are identified, but not obtained, the RO must notify of the Veteran of the records it was unable to obtain, explain the steps taken to obtain them, and tell the Veteran that the claim will be adjudicated based on the evidence of record, but that he may submit additional evidence if otherwise allowed. All attempts to obtain any identified records must be documented in the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his diagnosed left elbow tendonitis. The claims file must be made available to and reviewed by the examiner in conjunction with the examination so that pertinent aspects of the Veteran's medical history may be reviewed. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. Based on examination findings, medical principles, and historical records, including available service treatment records, the VA examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left elbow tendonitis first manifested in or had its onset during the Veteran's active military service or is otherwise related to his military service. If it is not directly related to service, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that his left elbow tendonitis was caused by or aggravated by any of the Veteran's service-connected disabilities. The Veteran's service connected disabilities include right shoulder bursitis, right knee ligament strain, right flank scar residual of lipoma removal, tinnitus, stiff neck, right ring finger scar, and residuals of left hydrocelectomy. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. A complete rationale should be provided for all opinions. 2. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case, and provide the Veteran sufficient time in which to respond. Then, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).