Citation Nr: 1316274 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 11-26 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a thyroid disability; and if so, whether the claim may be granted. 2. Entitlement to service connection for a cardiac disability to include cardiomyopathy and cardiomegaly, to include as secondary to service-connected disability. 3. Entitlement to service connection for a right elbow disability. 4. Entitlement to an effective date earlier than March 4, 2002, for the award of a 10 percent disability evaluation for recurrent tendonitis with cartilage loss of the left knee. (The issues of entitlement to an initial evaluation in excess of 10 percent for right knee patellar tendonitis with cartilage loss and entitlement to an evaluation in excess of 10 percent for recurrent tendonitis with cartilage loss of the left knee will be addressed in a separate panel decision.) REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from January 1971 to September 1977. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from rating decisions dated in August 2006, September 2007, and December 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2012, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. The Veteran has submitted additional evidence directly to the Board accompanied by a signed written waiver of the RO's initial consideration of this additional evidence. The issue of entitlement to an effective date earlier than March 4, 2002, for the award of a 10 percent disability evaluation for recurrent tendonitis with cartilage loss of the left knee is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A claim for service connection for a thyroid disorder was denied by an April 2010 Board decision that was not appealed. 2. Evidence received subsequent to the April 2010 Board decision is cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim for service connection for a thyroid disorder and does not relate to an unestablished fact necessary to substantiate the claim. 3. The probative evidence for and against a finding of left ventricle hypertrophy with left atrial enlargement related to service-connected hypertension is in a state of equipoise. 4. The Veteran's right elbow calcific tendonitis is not related to active service. CONCLUSIONS OF LAW 1. The April 2010 Board decision which denied a claim for service connection for a thyroid disorder is final. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2012). 2. New and material evidence has not been received, and the claim of entitlement to service connection for a thyroid disability is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 3. The Veteran's left ventricle hypertrophy with left atrial enlargement is causally related to service-connected hypertension. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 4. A right elbow disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2011); 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 or her representative, if any, 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). Proper notice from VA 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. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to requests to reopen, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate those element or elements required to establish service connection that were found insufficient in the previous denial. In other words, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. The basis for the denial in the prior decision can be ascertained from the face of that decision. VA has met all statutory and regulatory notice and duty to assist provisions. Letters dated in October 2006, June 2007, and September 2010 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473, Kent, 20 Vet. App. at 1. Together, the letters informed the appellant of what evidence was required to reopen and substantiate the claim for service connection for a thyroid disability and to substantiate the claims for service connection for a cardiac disability and a right elbow disability. The letters also informed the appellant of his and VA's respective duties for obtaining evidence as well as how VA determines disability ratings and effective dates. Ideally, the notice required by 38 U.S.C.A. § 5103(a) 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ). For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. Moreover, during the April 2012 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claims. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded VA heart examinations in June 2007 and January 2009, and VA joints examination in November 2010. 38 C.F.R. § 3.159(c)(4). In addition, the Board obtained a VA medical opinion in March 2010 and an addendum in October 2012. The VA medical professional address the etiology of any current cardiac and right elbow disabilities in conjunction with a review of the claims file; and the VA examiners conducted a physical examination of and interview with the Veteran. The VA examination reports are thorough; thus these examinations and opinions are adequate upon which to base a decision. The Board notes that the Veteran is represented by counsel; and there has been no assertion of any failure to provide appropriate notice. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). 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.) New and Material Evidence In a decision dated in April 2010, the Board denied the Veteran's claim for service connection for a thyroid disorder. The Veteran did not appeal this decision to the Court of Appeals for Veterans Claims. Thus, the April 2010 Board decision is final. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2012). The Veteran's application to reopen his claim of service connection for a thyroid disability was received in June 2010. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board notes that by a December 2010 rating decision, the RO declined to reopen the Veteran's claim of entitlement to service connection for thyroidectomy (also claimed as thyroid disorder to include residuals of thyroidectomy). On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board denied service connection for a thyroid disorder in its April 2010 decision. The Board noted that the Veteran's service treatment records were negative for any treatment for a disease or disorder of his thyroid gland or endocrine system, that on VA examination in 1977, there were no significant findings with respect to his throat or endocrine system, that the record indicates treatment for a thyroid disorder from March 1994, and that although there was medical evidence submitted which supported the Veteran's claim, the negative evidence of record outweighed the positive evidence. The Board also noted that the statements of the Veteran and his wife alone were not sufficient to prove that his current diagnosed thyroid disorder was related to his military service as medical diagnosis and causation involved questions that were beyond the range of common experience and common knowledge and required the special knowledge and experience of a trained physician. Additional evidence received since the April 2010 Board decision includes various VA treatment records, private medical records, lay statement from the Veteran's wife, and personal hearing testimony from the Veteran. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless such evidence is inherently incredible or beyond competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In regard to the evidence received since the April 2010 Board decision, the medical evidence includes information on the Veteran's current thyroid functioning. However, this evidence does not relate the Veteran's current thyroid disorder to his active duty service. The lay statement from the Veteran's wife received in at the RO hearing in May 2011 was a duplicate of a statement submitted in March 2004. The Veteran's testimony in May 2011 and April 2012 was very similar to his testimony in March 2005. Thus, essentially, the evidence received since the April 2010 Board decision lay statement and the Veteran's testimony is redundant in that this information was already of record at the time of the April 2010 Board decision. Thus, the Board finds that since the April 2010 Board decision, VA has received no new probative evidence that relates the Veteran's current thyroid disorder to his active duty service. As such, the Board finds that the evidence received subsequent to April 2010 Board decision is not new and material and does not serve to reopen the claim. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The first question that must be addressed, therefore, is whether a cardiac disability and a chronic right elbow disability are factually shown during service. The Board concludes they were not. The Veteran's service treatment records indicate that in September 1976, the Veteran presented with complaints of fainting after running physical training, bending over then standing up. The Veteran reported that he was out for several seconds only. Physical examination was within normal limits including heart examination which showed regular sinus rhythm without murmur. In May 1977, the Veteran injured his right forearm and elbow in a jump. Physical examination demonstrated tenderness and edema of the proximal right forearm. X-rays were within normal limits. Assessment was contusion of the right forearm. Despite fainting symptoms and injury to right forearm in service, the Board cannot conclude a "chronic" cardiac or right elbow condition was incurred during service. Treatment for a disorder in service cannot be considered treatment for a chronic disorder unless there is some indication that a chronic disorder exists. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." In addition, on the clinical examination for separation from service, the Veteran's heart and upper extremities were evaluated as normal. As for statutory presumptions, service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Cardiovascular disease can be service-connected on such a basis. However, the first showing of any cardiac problems was not until 2005/2006, many years after the appellant's discharge from service. Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Such evidence is lacking here. In this case, the Veteran does not report and the record does not show continuity of post-service cardiac symptoms. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). With respect to a claimed cardiac disability, an April 2006 letter from the Veteran's private physician, Dr. A.G. Lipede, who specializes in cardiovascular surgery, indicates that the Veteran developed a cardiomegaly and left ventricular hypertrophy. He noted that the Veteran's cardiac status showed changes consistent with hypertensive cardiomegaly as in metabolic syndrome. He provided diagnoses of hypertensive cardiomegaly and cardiomyopathy. The Veteran underwent VA examination in March 2007 conducted by a cardiology fellow. After examining the Veteran, the examiner noted that the Veteran did not have symptoms of congestive heart failure but that it was very likely that he had an enlarged and perhaps week heart secondary to his long history of hypertension. The examiner also noted that she would need to review the report of echocardiogram to confirm the diagnosis. In June 2007, the cardiology fellow that conducted the March 2007 authored an addendum which notes that an echocardiogram conducted at the VA showed a normal left ventricular size and function and that there was no evidence of left ventricular hypertrophy. She further noted that the Veteran had no symptoms of heart failure and had a structurally normal heart. Finally, she stated he had no limitations from his cardiovascular system. The Veteran underwent VA examination in January 2009. After physical examination, the cardiology fellow noted that there was no evidence supporting a diagnosis of cardiomyopathy. The examiner noted that according to a June 2007 echocardiogram done at the VA and a private July 2007 echocardiogram, there was normal systolic function and no evidence of diastolic dysfunction which could, and often was, associated with left ventricular hypertrophy due to longstanding hypertension. He opined that considering the Veteran was not demonstrating clinical or examination findings consistent with heart failure or a cardiomyopathy, a normal ejection function of 68% and 69%, and no further evidence of systolic or diastolic dysfunction, a diagnosis of cardiomyopathy was not clinically relevant at that time. He noted that although the Veteran was certainly at risk of developing worsening left ventricular hypertrophy and subsequent systolic and/or diastolic dysfunction with the potential for signs and symptoms consistent with heart failure, there was no evidence at that time other than possibly increased wall thickness which could be attributable to longstanding hypertension. The examiner opined that a clear diagnosis of cardiomyopathy secondary to hypertension was not present. He further noted that the left ventricular end diastolic and systolic dimensions on the echo from VA and Dr. Lipede did not support evidence for cardiomegaly as the dimensions were within normal limits. At that time, there was no evidence for active cardiovascular disease and, the Veteran's heart was considered essentially normal structurally. Other than the recorded increased wall thickness by Dr. Lipede's echo study, there were no other particular abnormalities found. Overall, as there was discrepancy with wall thickness measurements and, therefore, left ventricular hypertrophy, this could not be reliably determined. He further stated that it was not reasonable to expect wall thickness to dramatically increase from 1.0 cm to 1.4 cm, in one year and that the measurements were subject to some subjectivity in that the point where measurements were made was determined by hand. The examiner noted that it was important to note that if such significant left ventricular hypertrophy was present, a degree of diastolic dysfunction would be anticipated. He concluded that he could not resolve the discrepancy between the two echo reports with regard to left ventricular hypertrophy. In response to the January 2009 VA medical opinion, the Veteran submitted a letter from Dr. Lipede. He stated that he had reviewed the VA examination, his records and the echocardiograms and found that there was background information that had not been alluded to by the VA records. He noted that the VA had not considered the Veteran's hypertension, hypothyroidism, and diabetes mellitus when reading the echocardiogram. He noted that from the VA's records the characterization of left ventricular hypertrophy was done at only a singular event measurement which was in contradiction to the measurements at the private echo where eight different parameters were used and the ventricular thickness was measured at five different sites. Dr. Lipede argued that he arrived at the truer measure of what occurred in the Veteran's heart. He also noted the VA examiner made several assumptions; namely that there had to be left ventricular diastolic dysfunction before a hypertrophy or cardiomyopathy is identified. He stated such was not true. He stated that it is their opinion within a degree of medical certainty, that the Veteran's condition of hypothyroidism, hypertension and diabetes mellitus are regarded as a triad that would induce and sustain a left ventricular hypertrophy and cardiomyopathy. He noted that the VA examiner made no mention of the long standing hypertension or hypothyroidism, or the diabetes mellitus. In June 2012, the Board referred the claim for an expert medical opinion. In July 2012, the Board received the medical expert opinion of a VA staff cardiologist. The cardiologist noted that he reviewed the claims file along with the medical opinion of Dr. Lipede and the opinions by VA Cardiology Fellows in June 2007 and January 2009. The cardiologist noted that he also reviewed available echocardiogram reports. The cardiologist stated: I reviewed these echocardiogram reports [dated May 12, 2006, December 8, 2006, December 1, 2008, and one where the date is not indicated]. No proper correlation noted in these echocardiograms which can[]be understandable because of variability of these numbers depending upon different tech[]nicians and how d[i]ligently they measure these cha[m]bers. In all these echocardiograms [ejection] f[raction] was noted more than 55% which means LV Syst[olic] function is normal. No tissue Doppler examinations were done and no comments made regarding diastolic function. Some of these studies showed increased left atrial size up to 4.3. [E]vidence of early concentric hypertrophy was also noted in some echograms. ... I tend to agree with the comments made by Cardiology fellows .... Even though long standing hypertension can cause left atrial enlargement along left ventricular hypertrophy but LV systolic function appe[a]red to[]be well preserved in all these Echo cardiograms. ... I prefer to say that it is at least as likely as not that his cardiac disorder of cardiomyopathy was caused by service connected hypertension. ... However some of these studies did show evidence of LVH with left atrial enlargement. So I cannot disprove the fact that veteran cannot develop cardiomyopathy in future. In September 2012, the Board requested clarification from the cardiologist who rendered the July 2012 opinion. Specifically, the Board wanted to know if the Veteran had cardiomyopathy, if he incorrectly stated that it was at least as likely as not that the Veteran's cardiac disorder of cardiomyopathy was caused by service-connected hypertension, was the finding of left ventricular hypertrophy with left atrial enlargement clinically significant, and if he found a cardiac order that was related to service or to service-connected hypertension. In response, the cardiologist stated: Proposed definition of Cardiomyo[pa]thy offered by THE AHA EXPERT CONSENSUS PANEL as follows. 'a heterogen[eo]us group of diseases of myocardium associated with mechanical and/or electrical dysfunction, which usually (but not invariably) exhibit inapprop[ria]te ventricular hypertrophy or dilatation.["] As mentioned in my previous statements that some studies showed increased size of left atrium and early concentric hypertrophy but [I] did[]not find any evidence of mechanical or electrical dysfunction. So there was no evidence of any Cardiomyopathy at that time period. The cardiologist also stated that there was a "not" missing from his sentence relating cardiomyopathy to hypertension and that he intended to say that it "at[]least it is not as likely as not that his cardiac disorder of cardiomyopathy was caused by service connected hypertension." The cardiologist stated that even though the Veteran has hypertension, there was no evidence of any mechanical or electrical dysfunction at that time. The cardiologist noted that he did not come across in the claims file any findings clinically significant at that time. He also stated that one of the commonest causes of left ventricular hypertrophy and left atrial enlargement was hypertension and that these conditions were probably partly related to service-connected hypertension. The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran suffers from a cardiac disability that is related to service or to service-connected disability, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. However, a more detailed discussion of the specific opinions, credentials of the diagnosticians, and circumstances of opinions in this case would not clarify the matter. It would merely highlight that there is not a clear, rational basis for the Board to prefer one opinion to another. As such, the Board finds that by resolving all doubt in favor of the Veteran, he has a disability manifested by left ventricular hypertrophy and left atrial enlargement related to service-connected hypertension. With respect to the Veteran's right elbow, a January 2007 MRI of the right elbow showed calcific tendinitis of the common flexor-pronator tendon group origin at the medial humeral epicondyle. In this case, the Veteran clearly has a current right elbow disability. The remaining question, therefore, is whether there is medical evidence of a relationship between the current right elbow disability and his active duty service. No medical professional, however, has ever related the Veteran's right elbow disorder to his active duty service. The Veteran underwent VA examination in November 2010. After physical examination of the Veteran and review of the claims file, the examiner opined that it was less likely than not that the Veteran's current condition of calcific tendinitis of the right elbow would have been caused by the contusion-like injury sustained in May 1977. The examiner explained that generally, upon falling to the side and striking the elbow, one would strike the lateral aspect. The examiner also noted that contusions would not be expected to cause tendinitis, particularly to the medial aspect of the elbow and that tendinitis usually occurred with overuse or acute strain of a joint. Thus, the record is absent evidence of a chronic right elbow disorder in service and medical evidence of a nexus between the current right elbow diagnosis and the Veteran's active duty service. The Board notes that in support of his claim, the Veteran submitted a buddy statement in which the buddy stated that he remembered the Veteran hurting his elbow on a jump in 1977 at Fort Bragg, the emergency vehicle taking him to Army Womack Medical Center, that the Veteran complained about his elbow afterward, and that he always treated himself with over the counter drugs. He could not recall which elbow or treatment he received. Although this evidence supports the Veteran's contention that he injured his right elbow in service, there is no evidence of a nexus between the current right elbow disorder and the Veteran's active duty service. With regard to the other lay statements of record, the Veteran is competent to state that he experiences symptoms such as right elbow pain, and other lay persons are competent to state what they heard and saw in relation to the Veteran's right elbow. These statements, however, must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds that the VA examiner's opinion in November 2010 is of greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions as to diagnosis and etiology were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection for a right elbow disability, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER New and material evidence not having been received, the claim for entitlement service connection for a thyroid disability is not reopened. Entitlement to service connection for a disability manifested by manifested by left ventricular hypertrophy and left atrial enlargement is granted. Entitlement to service connection for a right elbow disability is denied. REMAND With respect to the issue of entitlement to an effective date earlier than March 4, 2002, for the award of a 10 percent disability evaluation for recurrent tendonitis with cartilage loss of the left knee, the Board notes that on his VA Form 21-4138, Statement in Support of Claim, received by VA in April 2006, the Veteran noted that his left knee was treated for patellar tendinitis while he was in the military and that he filed a claim with VA 45 days after separation but was not compensated for left knee condition until 2002. By rating decision dated in August 2006, the Veteran was advised that service connection was granted effective the day following his release from active duty with a noncompensable evaluation. That same decision granted a 10 percent evaluation for recurrent tendonitis with cartilage loss of the left knee effective from March 4, 2002. In September 2006, the Veteran disagreed with the denial of the claim for an earlier effective date for service-connection for recurrent tendonitis. Although the Veteran specifically stated that he took issue with the date of service connection, it is clear to the Board that he was taking issue with the fact that he has not been compensated for his service-connected left knee disability prior to March 4, 2002. Thus, the Board finds that the Veteran's statement, albeit incorrect, constitutes a Notice of Disagreement with respect to the issue of entitlement to an effective date earlier than March 4, 2002, for the compensable rating. Thus, the RO must now issue a Statement of the Case and the Veteran provided an opportunity to perfect his appeal as to this issue. Therefore, the appropriate Board action is to remand the issue to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: After ensuring that any actions needed to comply with the VCAA, the Veteran and his representative should be provided a Statement of the Case as to the issue of entitlement to an effective date earlier than March 4, 2002, for the award of a 10 percent disability evaluation for recurrent tendonitis with cartilage loss of the left knee. The Veteran, and his attorney, should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs