Citation Nr: 1316712 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 09-39 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for left arm bursitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to November 1988. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a July 2009 decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Indianapolis, Indiana, which denied the Veteran's claim. The record reflects that the appellant has submitted additional evidence to the Board in conjunction with this case, accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accord with 38 C.F.R. § 20.1304 (2012). The Board accepts this evidence for inclusion in the record. FINDING OF FACT The Veteran's current left arm bursitis did not originate in service or until many years thereafter, and is otherwise not related to service. CONCLUSION OF LAW The Veteran's current left arm bursitis was neither incurred in, nor aggravated by active duty service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a 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), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. By means of a letter dated March 2009, the Veteran was informed of the types of evidence needed in order to substantiate his claim of entitlement to service connection, the division of responsibility between himself and VA for obtaining the required evidence, and was asked to provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess/Hartman and informed the Veteran of how VA determines the disability rating and effective date elements of a claim. The claim was subsequently readjudicated twice, most recently in a March 2010 Supplemental Statement of the Case ("SSOC"). B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service treatment records, post-service treatment records, and a VA compensation and pension examination report dated April 2009. The claims folder also contains the Veteran's statements and testimony in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. A review of the April 2009 examination report demonstrates that the VA examiner reviewed the complete claims folder, interviewed the Veteran regarding his reported history of symptomatology and treatment, performed a comprehensive evaluation, including a review of diagnostic test results, and provided reasons and bases for his opinion that it is less likely than not that the Veteran's current left arm bursitis is related to service. Accordingly, the Board concludes that this examination report is adequate upon which to base a decision in this case. It therefore appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he, nor his representative, have identified any other pertinent evidence not already of record that would need to be obtained for a fair disposition of this appeal. Accordingly, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided every opportunity to submit evidence and argument in support of his claim and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (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, on the claim. The Veteran must 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). The Veteran contends that his current bursitis of the left arm (diagnosed as left elbow and left shoulder bursitis, respectively) is the result of an in-service injury and has been a chronic condition ever since. Review of the Veteran's service treatment records reveals normal findings for the upper extremities during his August 1980 service enlistment examination. Subsequent reports show that in September 1983, he was seen in the emergency department with reports of having injured his left arm when a radiator from a Howitzer gun fell on it. Treatment notes show a small, superficial abrasion and an area where a small chunk of tissue was missing. A physical examination revealed full range of motion for the left arm. The examiner concluded there were "no apparent deformities or [fracture]; minor injuries." The service treatment records contain no evidence that the Veteran ever sought or received treatment again for his left arm. An April 1987 periodic examination report showed normal findings for the upper extremities, as did his June 1988 Medical Board separation examination. Although the Veteran noted on his June 1988 medical history report that he either then had or had previously experienced a painful or "trick" shoulder or elbow, as noted above, there is no indication in the medical reports that his 1983 left arm injury resulted in a chronic disorder. Post-service treatment records show no evidence that the Veteran was diagnosed with a left arm disorder, to include arthritis, within one year of separation from service. As such, service connection for left arm arthritis on a presumptive basis is not applicable. Post-service treatment reports further demonstrate that the Veteran did not seek treatment for a left arm disorder until approximately October 2008 (although VA Medical Center ("VAMC") treatment reports show he had undergone a left elbow x-ray in September 2007), when he was seen in the VAMC emergency department with complaints of a warm, red left elbow since the previous day. There is no indication in the treatment notes, however, that the Veteran reported that his left elbow was the result of an active duty service injury or had been bothering him for many years. A physical examination revealed a red left elbow with edema, warmth and tender to palpation over the olecranon process. The diagnosis was bursitis. In March 2009, the Veteran returned to the VAMC, where an x-ray of the left elbow revealed nonspecific soft tissue swelling compatible with the clinical diagnosis of bursitis. The x-ray report indicated that the swelling was slightly more prominent than on the last examination in September 2007. In April 2009, the Veteran was afforded a VA compensation and pension examination, at which time, he reported that he had been experiencing problems with his left arm "on and off" since military service. Upon physical examination, the examiner noted no evidence of inflammatory arthritis and no objective evidence of pain with active left elbow or left shoulder motion. The left elbow x-ray revealed mild soft tissue swelling over the olecranon process of the ulna, which the radiologist stated could be from bursitis or possibly a hematoma; the underlying bony structure was found to be essentially normal. The left wrist and shoulder x-rays showed no osseous or articular abnormalities. The examiner also performed additional diagnostic tests, including a uric acid test and a rheumatoid factor, which was negative. The diagnosis was bursitis of the left shoulder. The VA examiner opined that the condition was less likely than not due to the Veteran's left arm injury of September 1983 in service. In this regard, he explained that the service treatment records show that the Veteran's initial injury was acute with left arm abrasions, which resolved without residuals. He additionally noted that the service treatment records show only one instance of treatment for the left arm abrasions, at which time, the Veteran was not found to have bursitis and no joint injury was noted, including no deformity or fracture, as the left arm injury was felt to be minor. The examiner further noted that the Veteran had no additional treatment for this injury during service, concluding that the development of bursitis occurred at a later date after service discharge and was a new condition unrelated to military service. In August 2009, the Veteran submitted an additional statement in support of his claim, in which he averred that he was treated for bursitis of the left arm during service on several occasions between 1986 and 1988 while stationed at Fort Benning. He reaffirmed this contention in an October 2009 statement, saying that he had been treated by a Chief Warrant Officer French. In November 2009, the Veteran submitted his own personal copies of his service treatment records to purportedly show that he was treated for arthritis and/or bursitis during service. The first record, dated February 9, 1987, shows that he was seen at a screening station for complaints of left shoulder and left knee pain. The Board observes, however, that when compared with the original service treatment records in the Veteran's claims folder (received from the National Personnel Records Center), it is clear that the Veteran's copy has been altered, as the original record shows that he was actually seen for complaints of right shoulder pain; the Veteran's copy shows that an "L" was handwritten over each instance of the letter "R" in the record. In the "comments" section of the original record, the examiner noted that the Veteran had complaints of right shoulder and arm pain for two days and had been seen in the emergency room the previous day, with the Veteran reporting that he had been told he had bursitis and also stating that he had a family history of bursitis. While the original treatment record notes that the examination revealed very poor circulation, capillary refill and loss of strength in the right hand, the Veteran's copy shows each instance in which the right hand or arm was mentioned has been changed to the left arm or hand. The original treatment record, which shows "R" shoulder x-rays to be within normal limits, has been changed to "L" shoulder. In another the Veteran-submitted copy of a service treatment record, dated February 12, 1987, an "L" is again superimposed over the "R" in the original record, which shows that Veteran was seen for complaints of right shoulder pain for five days. The Board finds that the pertinent notations added to the copies of service treatment records submitted by the Veteran were clearly not written by the service medical professionals who authored the original version of these records during service, and which are of record. Accordingly, the Board will not consider the altered copies of the service treatment records as competent medical evidence, nor as contemporaneous to service in this case. Instead, the Board will rely upon the original versions of the service treatment records obtained through official channels. Subsequent VA treatment reports of record show that in September 2009, the Veteran was seen in the VAMC emergency department with complaint of having injured his left arm when he fell on it after slipping on a rock while hiking. The assessment was left elbow olecranon bursitis versus gout, versus septic arthritis. In January 2010, the Veteran was seen in the rheumatology department, where he was diagnosed with tophaceous gout. In February 2010, the Veteran reported to his treating clinician for the first time that he had been experiencing left elbow pain since service. In another VA treatment record submitted by the Veteran, dated June 2012, it shows he was seen at the VAMC and given discharge instructions for olecranon bursitis. In an attached letter, the Veteran wrote that he is still receiving ongoing treatment for left arm bursitis, including corticosteroid injections and codeine for pain and swelling of the elbow. III. Conclusion Based on a review of the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for left arm bursitis. As noted above, although the evidence shows that the Veteran currently has the condition, there is no probative evidence that supports a claim that the disease manifested during active duty service or that the current condition is in any way related to any aspect of service. Similarly, as discussed above, because there is no probative evidence to show that the Veteran was diagnosed with left arm arthritis to a compensable degree within one year of separation from service, service connection for left arm arthritis on a presumptive basis is not for application. The Federal Circuit has held that a prolonged period without complaints or symptoms of a disability can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the Veteran was not diagnosed with bursitis until 2008, approximately 20 years after active military service. The amount of time that passed between service and the first symptoms or treatment of record is evidence that weighs against the Veteran's claim. Moreover, the absence of any left arm disability shown on separation examination, and no mention through the years of left arm pain or other symptomatology while seeking treatment for other maladies undermines the credibility of the Veteran's account of continuity of symptoms. In addition to the medical evidence, the Board has considered the Veteran's personal assertions that he has experienced left arm pain and swelling ever since his 1983 injury in service. The Court has repeatedly held that laypersons are competent to describe symptoms of which they have first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, competency must be distinguished from weight and credibility, which are factual determinations, going to the probative value of the evidence, for the adjudicator. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Under Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the Board may not find that a claimant's report of in-service symptoms lacks credibility solely because there was no objective medical evidence corroborating those symptoms at the time. However, the Board believes the instant case is clearly distinguishable, as the Board is not relying solely upon a general absence of complaints during service or physical findings within normal limits at separation. Rather, it is relying on the opinion of a competent VA examiner, who specifically opined that, despite the Veteran's claims of continuity of symptomatology since service, the Veteran's current left arm bursitis is a new condition completely unrelated to his minor 1983 injury. In addition, the Board has taken into account the obviously altered service treatment records submitted by the Veteran, which purport to show that he was treated on multiple occasions for left arm bursitis in service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Here, in light of the unmistakably altered service treatment records submitted by the Veteran, the Board has carefully considered the authenticity of all medical evidence submitted by the Veteran in this case. The Board does not find the altered service treatment records to be authentic. As the Veteran's copies of the 1987 service treatment records are found to be inherently false or untrue, their credibility is not presumed. As the Court has noted, the Secretary is not required to consider the patently incredible to be credible. See King v. Brown, 5 Vet. App 19, 21 (1993) (the Board must not assume the credibility of evidence when the evidentiary assertion is inherently incredible). It is important to note that this is not simply a case in which the Veteran contends that he mistakenly thought that he was treated on several occasions for a left arm disorder during service when, in fact, he was treated for a right arm condition. Rather, the Board observes that the Veteran previously sought service connection for right shoulder bursitis shortly after separating from service, and his claim was denied in a December 1988 rating decision. As such, it appears clear that the Veteran was well aware that he was not treated or diagnosed with a chronic left arm disorder during service. Thus, the Board does not find the Veteran's statements regarding any left arm treatment in service, other than that documented by records obtained through official channels, as well as his statements regarding any continuous left arm symptomatology to be credible. Accordingly, the Board concludes that the probative evidence of record does not support the Veteran's claim of entitlement to service connection for left arm bursitis. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C.A. § 5107(b). However, as there is not an approximate balance of probative evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for left arm bursitis is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs