Citation Nr: 1318801	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  09-46 017	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a bilateral elbow disorder.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

S. Finn, Counsel



INTRODUCTION

The Veteran had active military service from July 1998 to July 2001.

This matter comes to the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The Veteran requested a Board hearing on a November 2009 statement that was accepted in lieu of a VA Form 9 appealing the service connection claim.  However, in July 2011, the Veteran chose the option to have her appeal sent directly to the Board for a decision without a hearing.  Thus, the Veteran's hearing request is considered withdrawn.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Resolving all reasonable doubt in her favor, the Veteran's bilateral elbow disability is causally related to her military service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for a bilateral elbow disability have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  (2012).

The Board grants service connection for the bilateral elbow disability.  As this represents a complete grant of the benefit sought on appeal with respect to this issue, no discussion of VA's duty to notify and assist is necessary.

II. Merits of the Claim

The Veteran contends that the rigors of military service, including her duties and training as a Parachute Rigger, have lead to her present bilateral elbow disorder.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was noted during service or any applicable presumption period; (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."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.  The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board 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.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

The service treatment records (STRs) dated from January 1998 (preinduction) to June 2001 are negative for any treatment of a bilateral elbow disability.  The Veteran declined to undergo examination at separation from service.  Her personnel records confirm, however, that her MOS in service was a Parachute Rigger for two years and four months, and that she earned, in pertinent part, the Parachutist Badge.  The Army Board for Correction of Military Records also confirmed in April 2011 that the Veteran successfully completed the three week Airborne Course at Fort Benning, Georgia, and had orders for parachute duty.

Post-service treatment records reflect a history of elbow pain for years.  An MRI (magnetic resonance imaging) of the right elbow in April 2009 was negative.

A VA examination was provided in August 2010 at which time the examiner found that the Veteran had recurrent medial epicondylitis of the right elbow and recurrent left elbow strain, which involved overuse syndrome.  The examiner further found that as a Parachute Rigger the Veteran had chronic overuse of the arms and hands.  However, the examiner found that the elbow disability was less likely than not related to military service, because there was no evidence of treatment for an elbow disability in service.  No other rationale was provided.

An August 2011 VA examination reflects complaints of occasional shooting pain from the elbow.  X-rays revealed no abnormalities.  The VA examiner opined that the elbow disability was not related to service because there were no complaints in service.  The VA examiner also stated that although the April 2009 MRI was normal, the Veteran had what clinically appeared to be a recurrent medial epicondylitis (i.e., Golfer's elbow), which was an overuse syndrome.

A July 2012 VA examination reflects that the Veteran gave a history that her elbow pain started after having kids in 2006.  The VA examiner diagnosed the Veteran with bilateral elbow strain.  The examiner concluded that the elbow disability was not caused by or the result of or had its clinical onset during active service or related to any in-service disease, event, or injury.  His rationale was premised on the Veteran not having symptoms or complaints of pain until 2006.  The VA examiner cited to medical literature for the support that overuse could lead to epicondylitis/strain of the elbow, but that these symptoms would be present immediately after service not years later.  He further stated that there was no treatment for any elbow complaints in service.  The VA examiner stated that the case was discussed in detail with a board certified rehab medicine physician.  The Veteran's symptoms developed years later as per history and medical records with no medical evidence to support this being related to her military service.  The Board finds that this opinion is not highly probative because it is based on a flawed factual premise that the Veteran only started to have elbow pain in 2006.  The Veteran has consistently asserted that she had elbow pain during and since service.  (See October 2009 Written Statement and August 2011 VA examination).

The Veteran submitted a private nexus opinion in January 2013.  The private physician noted that the Veteran developed elbow pain while in the service, which gradually worsened with the passage of time.  The Veteran was diagnosed with bilateral elbow tendonitis.  The private physician further stated that the Veteran was required to pack a minimum of 20 chutes per day, five days a week for over two years.  The repetitive stress of doing this more likely than not resulted in her current elbow condition.  She suffered with elbow pain that was ongoing and will likely do so for the foreseeable future.

After a careful review of the evidence of record, the Board finds that the Veteran suffers from a bilateral elbow disability related to her military service.  In making this determination, the Board notes that the Veteran's assertions that she experienced pain in her elbows during physical training and parachute jumping in the Army and has experienced chronic pain in her elbows since service are found to be capable of lay observation, and thus her statements constitute competent evidence.  The Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  However, the resolution of issue which involves medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("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.")

The Veteran's statements with respect to her elbow pain are considered competent.  The Board must now consider the credibility of such evidence.  The Veteran has consistently submitted statements on medical records and written statements that she experienced pain in the elbows in the Army associated with parachute jumping and running during physical training.  Her personnel records are consistent with the Veteran's complaints as they demonstrate that she was a Parachute Rigger in service and earned the Parachutist Badge.  The Veteran's lay statements with respect to her complaints of pain are deemed credible and provide probative evidence of chronic symptomatology since service.  

Regarding the medical evidence of record, the opinion from the VA examiner does not have high probative value, as the examiner primarily based the opinion that the elbow disability was not due to military service on the fact that there was no treatment shown in service and her complaints were documented years later.  However, the fact that the disability was not noted in service is not fatal to the service connection claim.  Post-service diagnoses can be related to military service if they are shown to be chronic disabilities.  See 38 C.F.R. § 3.303(b).  The examiner did not offer any other significant rationale for his opinion, other than to note that complaints of an elbow disability was years after service.  The examiner still did not assign any weight to the competent and credible complaints of elbow pain during and since service from her MOS as a Parachute Rigger.

The opinion from the private physician provides positive evidence in favor of the Veteran's claim that her bilateral elbow disability is related to service.  While the physician did not provide an extensive rationale for his opinion, he appeared to take the Veteran's history as she reported it as credible, which as noted above, is also considered credible by the Board.  

In weighing the favorable medical opinion, the conceded exposure to physical trauma from physical training, parachute packing, and multiple parachute jumps, and the statements from the Veteran regarding chronic symptomatology of pain in her elbows for many years, the Board finds that the evidence is relatively equally balanced in terms of whether she has a bilateral elbow disability related to her military service, and will resolve this reasonable doubt in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.  Therefore, entitlement to service connection for a bilateral elbow disability is warranted.


ORDER

Service connection for a bilateral elbow disorder is granted.



____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs