Citation Nr: 1324996 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 06-25 057A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Entitlement to service connection for bilateral elbow disability, claimed as rheumatoid arthritis. 2. Entitlement to service connection for low back disability, claimed as rheumatoid arthritis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to October 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing before the undersigned in December 2008, and a transcript of the hearing is associated with his claims folder. The case was last remanded to the RO in November 2012. Subsequently, the RO granted claims for service connection for arthritis of the hands, wrists, shoulders, and cervical spine which had been remanded, and so the only issues remaining on appeal are those shown on the cover page. The Board has reviewed all evidence in the Veteran's claims folder and on Virtual VA. FINDINGS OF FACT 1. The Veteran's current right elbow arthritis was not manifest in service or to a degree of 10 percent within one year of separation and is unrelated to service. The Veteran's left elbow was not manifest in service or to a degree of 10 percent within one year of separation and is unrelated to service 2. The Veteran did not have a chronic low back disorder in service. His current intermittent back strain was not manifest in service and is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral elbow disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for low back disability are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in December 2005. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that service connection has been denied, rendering moot any effective date or degree of disability determinations. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities at issue in 2006, 2009, and 2013; and afforded the Veteran the opportunity to give testimony before the Board. The VA examinations collectively were adequate as the examiners physically evaluated the Veteran, reviewed the claims file, and rendered all necessary opinions based on such. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's November 2012 remand by examining the Veteran and readjudicating the claims. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records show no complaints, positive findings, or diagnosis regarding the elbows. Service treatment records show a complaint of low back pain in March 1986. A full range of motion was found, with no evidence of spasms. There was left lumbar tenderness, and the assessment was low back pain strain. On service evaluation in July 1991, the Veteran complained of low back pain for one day after falling on the left side while playing basketball. He denied prior history of trauma. He had a full range of motion with increased pain to the left lattismus dorsi, and the assessment was muscle strain. On service evaluation in July 1993, the Veteran complained of lower back pain for 2 months, and indicated that he was taking Motrin for it. He had a positive toe/heel gait and paraspinal muscle spasms at L3 and L4. The assessment was paraspinal muscle spasm. On service examination in September 1993, the Veteran had a mild scoliosis. On service discharge examination in July 1998, the Veteran denied recurrent back pain, and his spine was normal. On VA examination in July 2006, the Veteran complained of elbow pain, which he stated began in 2001. He reported being seen for it at the time and being told he had bursitis of his elbows. X-rays on VA examination showed minimal degenerative changes of the right elbow, and none of the left elbow, and the diagnosis was right elbow degenerative joint disease. On VA examination in May 2009, the Veteran reported beginning to have arthralgias in his back in service, and he complained of low back pain currently. Rheumatoid arthritis and multiple areas of degenerative disease were diagnosed. The examiner provided an addendum in September 2009 indicating that the Veteran's complaints and examination findings were most consistent with a degenerative process such as osteoarthritis. He had had a previous X-ray revealing right elbow degenerative disease. The examiner could not definitively say whether the Veteran had rheumatoid arthritis, and indicated that his polyarthralgias appeared to be secondary to degenerative disease and he had not had active inflammatory arthritis or synovitis. On VA examination in May 2013, the examiner found that left elbow bursitis was diagnosed in 2002 and that right elbow minimal osteoarthritis was diagnosed in 2006. The examiner concluded that it was less likely than not incurred in or caused by an in-service injury, event, or illness. He indicated that it appeared that a diagnosis of rheumatoid arthritis was made based on high titer of rheumatoid factor as well as polyarthralgias. The Veteran's complaints and examination findings revealed degenerative disease, and X-rays supported this in the right elbow. Patients who have rheumatoid arthritis for the Veteran's (supposed) length of time typically would have erosive disease of the hands, and X-rays of the Veteran's hands had been negative for any changes suggestive of rheumatoid arthritis. The examiner indicated that intermittent back strain was diagnosed in 2013. He found that it was less likely than not incurred in or caused by an in-service injury, event, or illness. The rationale was that no chronic back condition was found on review of the Veteran's service treatment records, and that he had had self-limiting back issues in service. Based on the evidence, the Board finds that the Veteran does not have rheumatoid arthritis of his back or of either elbow. This has not been adequately diagnosed, and the examiner in 2013 indicated, in essence, that rheumatoid arthritis is probably not present because osteoarthritis has been found and erosive changes in the hands, which are typically present when one has rheumatoid arthritis, have not been found. While the Veteran feels that he has it, as exemplified by his October 2005 statement regarding a high rheumatoid factor, he is not competent to diagnosis it, as he is a layperson and this is beyond his sensibilities as such. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence shows that the Veteran currently has right elbow arthritis. However, the 2013 VA examination report indicates that it is unrelated to service. Moreover, there were no complaints or diagnoses in service, his right elbow was normal on service discharge examination, and right elbow arthritis was first shown in 2006, with the first complaints reported to have occurred in 2001. This was more than 2 years after service rather than within the one-year presumptive period for arthritis and negating continuity since service. Accordingly, the Board finds that the Veteran's current right elbow arthritis was not manifest in service or to a degree of 10 percent within 1 year of separation, and that it is unrelated to service. The Board further finds that the preponderance of the evidence is against a finding that the left elbow bursitis is unrelated to service. Left elbow bursitis was not manifested during service or for several years thereafter. The 2013 VA examiner opined that it was less likely than not that the elbow disorders were related to service. The examiner noted a history of left elbow bursitis in the early 2000's and indicated that no chronic elbow condition was found in service treatment records. Since the preponderance of the evidence is against service connection for right and left elbow disabilities, service connection may not be granted for the same. Concerning the low back, there were complaints of low back pain in service, but the preponderance of the evidence indicates that they were self-limiting and that the Veteran did not have a chronic back disorder in service. The Veteran denied having recurrent back pain on service discharge examination, and his spine was normal. The examiner in 2013 reviewed the Veteran's treatment records and found that no chronic back disorder was shown in service; that in-service complaints were self-limiting; and that his current intermittent back strain was unrelated to service. There is no competent medical evidence of record to the contrary. Accordingly, the Board concludes that the Veteran did not have a chronic low back disorder in service, and that his current intermittent back strain was not manifest in service and is unrelated to service. Accordingly, service connection is not warranted for bilateral elbow disability or for low back disability. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for bilateral elbow disability is not warranted. Service connection for low back disability is not warranted. The appeals are denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs