Citation Nr: 1323967 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-00 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for right elbow tendonitis. 2. Entitlement to service connection for left elbow tendonitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active service from May 1993 to December 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision from the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that a November 2009 rating decision granted the Veteran service connection for irritable bowel syndrome and assigned a noncompensable (zero percent) disability rating effective December 13, 2006. As evidenced by the claims folder, although the Veteran expressed disagreement with the assigned disability rating, he did not complete his appeal with the filing of a substantive appeal (VA Form 9 or similar) following the issuance of a statement of the case in March 2010. Accordingly, that issue is not in appellate status and will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND For reasons expressed immediately below, the Board finds that the issues of entitlement to service connection for right and left elbow tendonitis must be remanded for additional evidentiary development. Reasons for remand VA examination The Board observes that the Veteran was afforded a VA examination in February 2007 in order to determine the etiology of his right and left elbow tendonitis. After examination of the Veteran, the VA examiner declined to diagnose the Veteran with a right or left elbow disability. Specifically, the examiner reported normal findings with respect to examination of the Veteran's elbows. The Board notes that the record does not otherwise indicate a diagnosis right or left elbow tendonitis following the filing of the Veteran's service connection claims in January 2007. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). However, the Board recognizes the Court's decision in Romanowsky v. Shinseki, No. 11-3272 (U.S. Vet. App. July 10, 2013) which held that a claimant satisfies the current disability threshold when a disability exists at the time his or her claim was filed, even if the disability resolves prior to VA's adjudication of the claim. In this case, although neither a right nor left elbow disability was diagnosed during the February 2007 VA examination, the Board observes that the Veteran's service treatment records dated February, March, and July 2006 document treatment for and diagnosis of bilateral triceps tendonitis. Pertinently, in adjudicating the Veteran's right and left elbow tendonitis claims, the RO has included the Veteran's triceps as part of his right and left elbow as the triceps is an extensor muscle in the elbow. See the November 2009 statement of the case. As such, the Board finds that the February, March, and July 2006 service treatment records indicate diagnoses of right and left elbow tendonitis. The Board also finds the evidence of record is unclear as to whether the Veteran's tendonitis of the right and left elbow existed at the time he filed entitlement to service connection for these claims in January 2007. In light of the Court's decision in Romanowsky, the Board is of the opinion that a clarifying medical opinion would be probative in ascertaining whether the Veteran's previously diagnosed right and left elbow tendonitis resolved prior to the filing of his claims in January 2007, and if not, whether such disabilities are related to his military service. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2012) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). Evidentiary development In the Veteran's June 2013 Informal Hearing Presentation (IHP), the Veteran's representative noted that the most recent VA treatment records associated with the Veteran's claims folder are dated in 2010. Indeed, a review of the record reveals that the most recent VA treatment records associated with the Veteran's claims folder are dated March 2010. The Veteran's representative further noted that VA treatment records dated subsequent to March 2010 should be obtained, thereby indicating that the Veteran received treatment for his right and left elbow disabilities following March 2010. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. Request any VA treatment records dated after March 2010 pertaining to the Veteran's right and left elbow tendonitis. All attempts to secure this evidence must be documented in the claims folder by the RO. 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his right and left elbow tendonitis. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: a) Identify any current right and/or left elbow tendonitis. b) If right and/or left elbow tendonitis is not identified, render an opinion as to when the right and/or left elbow tendonitis resolved, in particular if it resolved prior to January 2007 when the Veteran filed his claim for VA benefits. Please discuss the Veteran's service treatment records dated February, March, and July 2006 documenting diagnoses of right and left triceps tendonitis. c) If right and/or left elbow tendonitis is identified at any time during the course of the appeal period (from January 2007), provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability or disabilities is/are related to the Veteran's period of military service, to include treatment for right and left triceps tendonitis in February, March, and July 2006. The examiner must provide a thorough, detailed, and non-conclusory clinical rational for all opinions expressed. In the extraordinary situation that the examiner is of the opinion that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 3. After completing the above action, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on next page) 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 A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).