Citation Nr: 1316850 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 05-28 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a right elbow disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from May 1968 to March 1970. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board remanded this issue to the RO/Appeals Management Center (AMC) most recently in September 2012 pursuant to a February 2012 Order issued by the United States Court of Appeals for Veterans Claims (Court). The Board is obligated by law to ensure that the RO/AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. In September 2012, the Board also remanded a claim for entitlement to service connection for a right ear hearing loss disability, also pursuant to the Court's February 2012 Order. In January 2013, the AMC issued a rating decision granting this claim. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the Veteran's claim for entitlement to service connection for a right ear hearing loss disability will not be addressed in this decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, a right elbow disability is causally related to the Veteran's active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a right elbow disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claim for entitlement to service connection for a right elbow disability has been granted herein. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial. II. Merits of the Claim The Veteran alleges that his current right elbow disability is a result of a shrapnel wound during his military service. Governing Laws and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) 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. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Here, the Board notes that the Veteran has been diagnosed with a mild degenerative joint disease of the right elbow, which is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). As such, the Veteran can establish service connection solely based on lay statements of continuity of symptomatology since service. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), lay 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 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 appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis The Board notes that the available service treatment records are limited. There is record, however, of injuries sustained during combat in Vietnam. According to a record signed by a medical officer, in May 1969, the Veteran sustained shrapnel wounds of the left forearm, right thigh, and the right side of the neck. The Veteran's DD 214 reflects that he was awarded the National Defense Service Medal, Vietnam Service Medal with one star, the Vietnam Campaign Medal with device, the Combat Action Ribbon, and the Purple Heart, among others. His military occupational specialty (MOS) was a rifleman. According to a February 1970 medical notation, no abnormalities in the right elbow were seen. Nevertheless, in a June 1970 VA examination, the Veteran reported that his right elbow ached on occasion. Based on the post-service treatment records, it is uncontroverted that the Veteran had shell fragments in his right upper extremity. Service connection is in effect for scars of the right arm as well as for the left elbow disability. However, VA X-rays in June 1970 and July 2004 show normal results. The VA examination of the joints in July 2004 included a physical examination demonstrating the right elbow was measured to be 10 degrees short of full extension in both passive and active range of motion and both before and after five repetitive motions. The Veteran was able to range from 10 to 150 degrees for right elbow flexion without any pain. A diagnosis of right elbow flexion contracture with questionable shrapnel injury in the right upper extremity was made with an x-ray examination showing that no degenerative joint disease was present. The VA examination, conducted in December 2008, revealed normal range of motion of the right elbow and no significant discomfort of limitation of motion. There was no muscle or nerve involvement. Although a contracture was noted on VA examination in July 2004, this was not found in 2008. The examiner expressed the opinion that the Veteran's bilateral elbow "conditions" are likely as not related to his service-connected shrapnel wounds. The examiner indicated that the Veteran demonstrated a mild flexion contraction of the left elbow. However, he did not address the exact nature of whatever disability, if any, the Veteran might have involving the right elbow and no diagnosis was made of a right elbow disability. The Veteran was afforded another VA examination in December 2012 where mild right elbow degenerative changes were noted. The examiner reported that injuries sustained in the 1969 enemy blast included right arm shrapnel wounds but the Veteran was primarily treated for facial wounds and injuries. The Veteran stated that from 1969 to 2000 he would experience "intermittent fleeting pain the right elbow when performing some type of aggravating activity in the right arm. This would occur on the average of one time per week. It only lasted for a second, pain located in the right posterior upper humerous area and radiating to the right elbow where it terminated." The Veteran stated he would avoid flexion of the elbow in order to avoid the painful sensation. He did not feel seeking treatment from a medical doctor was necessary. Furthermore, the Veteran stated from 2001 to 2002, his right elbow condition worsened and would "lock up" intermittently in which it would "catch" with a shooting pain in the right posterior elbow region. This pain lasted up to several seconds and he has to "force through the pain" with range of motion." This occurred several times a week and only occurred with right arm activity. A x-ray taken of the right elbow at this examination revealed no fracture of dislocation. No significant or degenerative changes were noted but small osteophytes related to the superior aspect of the olecranon process were seen. The impression offered was mild degenerative joint disease. The examiner additionally noted that according to the record that in 2004, the Veteran's primary care physician stated the Veteran had bilateral elbow pain for about one month and that the Veteran performed heavy labor tasks and had "arthralgia secondary to overuse." The examiner noted that the x-rays have been negative of any abnormalities until this examination. The examiner determined: It is true that the 1970 VA exam indicated a 1/2" scar over the right radial head, but this is not where the pain currently is described to be. X-rays done for the present exam indicate posterior olecranon spurring which certainly could aggravate posterior soft tissues and muscles in the triceps area. However, this finding was not present at the time of the 1970 exam, nor at the time of the 2004 exam, when he was complaining of the same symptoms. The distribution of pain, per the Veteran's report, seems to pattern a radiating pain from the upper arm, where it starts, to the elbow, and the elbow is the end point, not the origin of the pain. Thus it is not likely that the pain in the posterior upper arm extending to the right elbow is an elbow-originating pain as the area of pain generation. The current contracture of the elbow is actually bilateral and equal, and thus difficult to identify a specific diagnosis for the elbow condition that would potentially be causing this finding on examination. I am thus not able to give and answer to the topic of being service connected or note as I do not know at this time what is causing the contracture, since it is bilateral and equal, and was bilateral and relatively equal in my prior VA exam in 2004 as well. Ultimately, the examiner was unable to resolve this issue without resorting to mere speculation due to the lack of consistent objective findings over time to establish a cause for the Veteran's pain and right elbow contracture. However, in light of the totality of the evidence of record, the Board finds that the Veteran's claim for entitlement to service connection for a right elbow disability must be granted. The Board recognizes that if the Veteran is both competent and credible in his lay statements that he experienced a right elbow disability in service, and has continuity of symptomatology since service and a current diagnosis during the pendency of the claim, then service connection is warranted. 38 C.F.R. § 3.303(b); McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board acknowledges that it has been suggested within the record that the Veteran's post-service occupation involving heavy labor tasks may be the cause of his elbow symptoms. However, the Board notes that like the theory of entitlement proposed by the Veteran (that his current right elbow disability was related to his military service), this has not been confirmed or disproved. Significantly, the Veteran has stated that he experienced symptoms since service. He has consistently maintained this position. The Board finds that the Veteran is competent to report the symptoms and impairments associated with his current right elbow disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board concedes that such injuries are consistent with the nature of the Veteran's service, namely his combat experience. In addition, the Board cannot ignore that in June 1970, approximately three months after separation from service, the Veteran reported occasional right elbow pain. Therefore, the Veteran's assertions concerning in-service injury, symptoms, and the continuity of such symptomatology since service to be credible. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). As such, the Board will resolve reasonable doubt to find that the symptoms of the Veteran's right elbow disability was continuous since service. As such, the Board finds that the evidence in its totality is in at least equipoise as to whether the Veteran's right elbow disability is etiologically related service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for a right elbow disability is warranted. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a right elbow disability is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs