Citation Nr: 1317577 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-23 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a left elbow disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from February 1967 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Seattle, Washington. The Board observes that the Veteran also appealed the issue of service connection for a right thumb disorder. In a rating decision dated in August 2012, but sent to the Veteran in September 2012, the RO granted service connection for right thumb torn ligament injury with status post right hand fifth metacarpal bone fracture injury. As the Veteran has not expressed disagreement with the effective date and/or disability rating assigned, the Board concludes that the only issue before it is service connection for a left elbow disorder. FINDING OF FACT A left elbow disorder was not present during service, arthritis has not been diagnosed, and the currently diagnosed left elbow bursitis did not develop as a result of any incident during service. CONCLUSION OF LAW A left elbow disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 June 2008 regarding the type of evidence necessary to establish his claim. 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), post-service medical records and also secured an examination in furtherance of his claim. A pertinent VA examination was obtained in January 2012 with a February 2012 opinion. 38 C.F.R. § 3.159(c)(4). The VA examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered a well-supported opinion based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). 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. II. Analysis 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, 1131. 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 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). The Veteran contends that he has a left elbow disorder that is related to in-service bilateral elbow pain. See, e.g., May 2008 claim. 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 left elbow disorder 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 left elbow disorder was treated or diagnosed during service. The Veteran's entrance examination in February 1967 revealed clinically normal upper extremities. Other service examinations dated in February 1970 and June 1972 also all revealed clinically normal upper extremities. In his February 1970 and June 1972 reports of medical examination, he denied symptoms such as painful or "trick" shoulder or elbow; bone, joint or other deformity; and arthritis, rheumatism or bursitis. In January 1975, the Veteran reported pain in his neck radiating to both shoulders and down his left arm. He again had radiating pain from the cervical spine into his upper left extremity in August 1975. No left elbow disorders were diagnosed in January 1975 or August 1975. Service examinations in February 1976 and September 1986 also all revealed clinically normal upper extremities. In his February 1976 report of medical examination, the Veteran denied symptoms such as painful or "trick" shoulder or elbow; bone, joint or other deformity; and arthritis, rheumatism or bursitis. However, in his September 1986 report of medical examination, he answered yes to painful or "trick" shoulder or elbow; he reported that he was presently not under care for any medical condition. This report does not specify a left elbow disorder. The Veteran complained of painful bilateral elbows increased with push-ups in March 1987. No left elbow disorder was diagnosed. An April 1989 examination again revealed clinically normal upper extremities. His October 1991 retirement examination revealed clinically abnormal upper extremities; complete laxity of the right thumb medial lateral ligament was noted. This examination does not show that a left elbow disorder was diagnosed. In his report of medical examination, the Veteran answered yes to arthritis, rheumatism or bursitis; and painful or "trick" shoulder or elbow. History of degenerative joint disease and arthritic condition of the right elbow was noted; no disorder of the left elbow was indicated. There is no indication in the Veteran's STRs that he incurred a specific event, injury or disease to his left elbow. There is also no indication that a left elbow disorder had its onset in service. Although the Veteran reported bilateral elbow pain in March 1987, the STRs fail to show that a left elbow disorder was diagnosed. Examinations following the in-service complaint of elbow pain in April 1989 and October 1991 fail to show a left elbow disorder. As noted above, his retirement examination reveals a right elbow disorder, but no left elbow disorder was shown. There is no indication in any of his STRs that he was treated for symptoms associated with any currently diagnosed left elbow disorder. There is also no indication of a diagnosis of any left elbow disorder in his STRs. The Veteran's contemporaneous service records fail to show that the onset of any left elbow disorder occurred during service. The totality of the evidence fails to show that the onset of any current left elbow disorder occurred during the Veteran's service. No medical professional has reported that the onset of any current left elbow disorder 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 the left elbow in January 2012 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 left elbow bursitis in January 2012; however, the evidence does not contain medical opinions relating any currently diagnosed left elbow disorder to the Veteran's military service. The first indication of any current left elbow complaints is in October 2010 when the Veteran reported chronic bilateral elbow pain. None of the Veteran's treatment records contain any opinion regarding the etiology of the Veteran's left elbow complaints. The only medical opinion of record is from a January 2012 fee-based examiner. At that examination, the Veteran was diagnosed with bursitis of the left elbow in remission. He reported that the problem occurred gradually. The Veteran indicated that he found a "mass" in the left elbow and was treated with medication in 1987. The problem remained the same with no further treatment. In an opinion provided in February 2012, a fee-based examiner opined that the Veteran's left elbow disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that a review of the Veteran's treatment records showed no documentation of chronic left elbow pathology. His STRs showed a radiology request in March 1987, which noted bilateral elbow pain increased with push-ups and some mass on the lateral aspect distal one-third calf. There was no mass noted on the left elbow. Physical therapy notes in January 1975 and August 1975 showed that he received treatment for some paresthesia of the left upper extremity due to a neck and back condition. There was no documented left elbow pathology. Similarly, in his retirement physical examination of October 1991, the Veteran complained of having a painful elbow; however, he was noted to have a history of degenerative joint disease in the right elbow and right shoulder with a history of benign tumor removed from the right knee. There was no documented mass or other pathology involving his left elbow. Therefore, the Veteran's currently diagnosed conditions of the left elbow were less likely than not related to the in-service treatment for the left elbow. In this case, the only medical opinion of record, the February 2012 opinion, shows that the Veteran's left elbow bursitis is not related to his military service. This opinion is supported by a rationale and is uncontradicted. No medical professional has provided any opinion indicating that the Veteran's left elbow complaints are related to his military service. The probative medical evidence simply fails to adequately establish any nexus between any current left elbow disorder and the Veteran's military service. Without competent evidence of an association between a current left elbow disorder and his active duty, service connection for a left elbow disorder is not warranted. To the extent that the Veteran's contentions indicate a continuity of left elbow symptomatology since the March 1987 in-service complaints, the Board is cognizant of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recent holding in Walker v. Shinseki, 708 F.3d 1331. 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). While osteoarthritis is listed as a chronic condition in 38 C.F.R. § 3.309(a), bursitis is not. None of the Veteran's treatment records show any 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 v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of bursitis 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 a left elbow disorder in service or competent evidence of an association a current left elbow disorder and the Veteran's active duty, service connection for a left elbow disorder 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 a left elbow 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 left elbow disorder is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a left elbow disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs