Citation Nr: 1328722 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 05-34 998 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a claimed left elbow disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1971. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the RO in Cleveland, Ohio. The case was certified to the Board by the RO in Waco, Texas. In December 2008, the Board denied entitlement to an initial rating higher than 30 percent for the service-connected posttraumatic stress disorder (PTSD). That issue is no longer for consideration. The listed issue was remanded for additional development in December 2008 and May 2011. In November 2012, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is located in the Virtual VA eFolder. In March 2013, the Board requested a medical expert opinion from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901 (2012). The requested opinion was received in May 2013. On May 30, 2013, the Board sent the Veteran a copy of the opinion for his review. The Veteran was provided 60 days for the submission of additional evidence or argument. See 38 C.F.R. § 20.903 (2012). To date, the Veteran has not responded. The Virtual VA and VBMS folders have been reviewed. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to a chronic left elbow disorder, to include arthritis, during service or for many years thereafter. 2. The Veteran is not found to have presented credible lay assertions sufficient to establish the onset of a chronic left elbow disorder during service or a continuity of symptomatology referable left elbow arthritis since service. 3. The currently demonstrated left elbow disorder is not shown to be due to an injury or other event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's left elbow disability including arthritis is not due to disease or injury that was incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in March 2004 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. A March 2009 letter notified the Veteran of how VA assigns disability ratings and effective dates. The claim was most recently readjudicated in the June 2012 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains the Veteran's service treatment records, service personnel records, VA medical records, and private orthopedic records. The Veteran reported additional private treatment shortly following service and in the 1990's. He has not provided authorizations for release of these records and has indicated that the providers were deceased or that the records were otherwise unavailable. The Veteran was provided VA examinations in March 2011 and October 2011. A VHA opinion was obtained in May 2013. The evidence of record is considered sufficient and additional examination is not warranted. The Veteran submitted multiple lay statements in support of his claim. He also submitted photographs and medical records and had the opportunity to provide testimony at a videoconference hearing. The VLJ's actions at the hearing supplement the VCAA and comply with any hearing-related duties. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159. Laws and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the Veteran 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir.2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir.2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis."). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay 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.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37. In the case of any veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); see 38 C.F.R. § 3.304(d). Although 38 U.S.C.A. § 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected, it does considerably lighten the burden of a veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in or aggravated by combat service. Competent evidence of a current disability and of a nexus between service and a current disability is still required. Wade v. West, 11 Vet. App. 302 (1998). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including arthritis if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The service treatment records show that on examination for enlistment in September 1967, the Veteran reported having a history of broken bones and fracturing his left arm two times. He did not report any prior left elbow injuries and his upper extremities were reported as normal on clinical evaluation. A careful review of the service treatment records shows no complaints or findings referable to a left elbow injury or a chronic left elbow disorder. At the separation examination in September 1971, the Veteran's upper extremities were reported as normal on clinical evaluation. In February 2004, the Veteran filed his original claim of service connection. At that time, he reported hurting his left elbow and hitting it on the flight deck many times during service. The private medical records show that the Veteran sought orthopedic treatment for left elbow pain and motion loss in September 2004. The Veteran reported that he began having problems with his left elbow in 1971 when he was blown off the flight deck and landed on his elbow. Because there was a war, he continued to work through his discomfort, but thought he probably had a fracture and bone chips. He was able to return to all activities, but with some motion loss. He played semi-pro baseball and semi-pro football and had been a karate instructor for the last 30 years. He reported that, in the early 1980's, the elbow would lock up but that stopped and that, just recently, it had begun to lock again. Following an examination and x-ray studies, the diagnosis was that of left elbow joint contracture, degenerative arthrosis, loose bodies, exostosis. The Veteran underwent left elbow surgery in November 2004. A November 2004 statement from the Veteran's ex-wife stated that he never showed signs of a medical problem with his elbow until he returned from Vietnam. His elbow would lock up, and he could not straighten it out. It would swell anytime that it was bumped. In a March 2005 statement, the Veteran reported that, while serving in the Tonkin Gulf, he was knocked down on the flight deck and landed on his elbow. It hurt badly, but it did not swell until nighttime. Because there was a war, he toughed it out. The Veteran added that he injured his elbow a second time when a large wave came and knocked him down to the deck. He was saved from going overboard by the greasy wires, but his left elbow swelled up again. He said that he was a "tough kid" and let it go because the first time it went away. He stated that the arm was never the same and got worse with age. In a September 2005 addendum, a private orthopedist noted his dictation indicated that the Veteran was "blown off the deck." The facts were that he fell on the deck sustaining the injury for which he was being treated. In a statement accompanying his October 2005 VA Form 9, the Veteran reported that, at the time, the injuries occurred, he did not report it because he did not feel it was too bad of an injury and that, because it was wartime, he felt that he had to tough it out. After leaving service and having several years of pain and occasional swelling, he went to see a physician (Dr. H.) who reportedly x-rayed his arm and found that he had fractured his arm and that this traumatic injury happened when he got knocked down in the service. The Veteran further reported that he saw a specialist a few years later. This physician (Dr. D.) also took x-ray studies and told him that he had a broken bone chip lodged in his elbow and that this was definitely the result of an elbow fracture when he got knocked down in the service. In 1994, the Veteran's elbow was noted to be getting worse so he saw another physician who stated there was only a 70 percent chance of fixing his arm. The Veteran did not like the odds and put it off until 2004 when the pain became unbearable. An August 2006 statement from Dr. S.G. indicated that he had known the Veteran for 13 years as a friend, karate student and a physician. He noted that the Veteran had always had limited elbow range of motion due to an injury sustained during military service. The elbow discomfort worsened over time, and x-ray studies were taken in 2004 when he was found to have a severely deformed joint with multiple fragments and areas of concern. He subsequently underwent surgery. A July 2006 statement from Dr. J.C. indicated that the Veteran had an elbow injury in 1971 during active service. The physician stated: He was on a flight deck off the shore of Viet Nam and was blown off the deck. He landed on his elbow, but because they were at war, he continued to serve and work with his injury. He was eventually able to return to full activity, but with considerable motion loss. ... It is my opinion, based on reasonable medical judgment and a thorough review of his history, that his left elbow condition began and progressed as a result of his injury while on active duty in the military in 1971. His subsequent need for surgery and extensive rehabilitation thereafter are also causally related to this accident in 1971. In a September 2006 statement, Dr. S.G. stated that the facts of this case were clear. That the Veteran injured his elbow during battle and did not seek immediate evaluation because he was engaged in wartime activities. That his elbow function remained compromised for many years until he presented in 2004 for evaluation. The physician asserted that the Veteran was absolutely entitled to disability benefits and that the reasonable doubt doctrine was for application. On VA examination in March 2011, the Veteran stated that he injured his left elbow in 1971 when he was blown across the deck of an aircraft carrier. He did not see the medics because he was on combat duty and it was difficult to get treatment. He reinjured the elbow a couple of months later. He reported having intermittent pain during service and locking and decreased range of motion following discharge. Following examination, impression was: (1) traumatic injury to the left elbow; (2) osteochondroma of the left elbow; (3) removal of bone chips of the left elbow; (4) left ulnar nerve transposition; and (5) left median nerve damage that was less likely than not related to his surgery for his ulnar nerve transposition. The examiner did not provide an etiology opinion. The Veteran underwent additional VA examination in October 2011. The claims folder was reviewed. The Veteran reported sustaining a 1971 left elbow injury during flight deck operations. He denied seeking medical attention due to undue command influence to limit time lost due to injuries. He experienced immediate swelling, crepitus and pain, and then reinjured his left elbow a few weeks later. He reported that he sought medical treatment after discharge and was diagnosed with a proximal radius and ulna fracture with malunion. He declined surgery at that time, but symptoms progressively worsened until he underwent surgery in 2004. The X-ray studies dated in May 2011 showed a deformity of the proximal radial head and of the proximal ulna suggesting old healed fractures with residual deformity. There was degenerative joint disease about the elbow. No acute fracture. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. In support of his opinion, the examiner noted that there was no in-service documentation of evaluation and treatment for a left elbow condition. Additionally, the separation examination report showed bilateral upper extremities were within normal limits without mention of injury or deformity. The Veteran submitted numerous lay statements from family members, friends, his pastor, and his students essentially reporting that he had problems with his left elbow which he related to in-service injuries. To the extent that the individuals knew him prior to service, they report that he did not have any problems with his elbow until after service. At the hearing, the Veteran testified that he injured his left elbow twice while stationed aboard the USS Kitty Hawk. First, in 1971, he was working on the flight deck and a plane turned and blew him down and he hit his elbow. He testified that his arm was numb and swelled up, but he did not tell anyone and the swelling went down. Second, that there was a monsoon while they were in the South China Sea and a big wave came and he was knocked down to the deck. In March 2013, the Board requested a VHA medical opinion to determine whether the Veteran's current left elbow disability was at least as likely as not caused or aggravated by an injury sustained in a fall or due to another event of his period of service. In May 2013, a VA orthopedic surgeon indicated that he reviewed the VHA opinion request and the medical record. He discussed pertinent evidence and contentions and provided the following summary: [W]e have a history and physical exam at the time of discharge from service documenting lack of complaints about claimant's elbow and a normal physical exam. Claimant performed many subsequent sport and labor activities that could cause elbow arthrosis. For these reasons, the claimant's left elbow disability [was] less likely than not (less than 50 percent chance) caused by or aggravated by an injury sustained during his period of active service. Analysis As set forth, the Veteran contends that he injured his left elbow during service and that he currently has a left elbow disability that is related to these claimed injuries. Initially, the Board finds that a chronic left elbow disorder was not shown during service, nor is there evidence of left elbow arthritis manifested to a compensable degree within one year following discharge from service. Presumptive service connection as a chronic disease is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Additionally, as arthritis or other left elbow condition was not noted during service, the rules set forth at 38 C.F.R. § 3.303(b) are not specifically for application. See Walker. Notwithstanding, there is clearly evidence of current left elbow disability. Thus, the question remains as to whether such disability is related to active service or events therein, to include the claimed left elbow injuries. See 38 C.F.R. § 3.303(d). The service records do not document the claimed injuries. In various statements, the Veteran asserted that he was a combat veteran. In a November 2008 informal hearing presentation, his representative argued that the Veteran injured his elbow during battle and that, as a combat veteran, the Board must consider 38 U.S.C.A. § 1154(b). Information from the Service Department shows that the Veteran was attached to Navy Reconnaissance Attack Squadron 6, a unit that could have been assigned to ship or shore. For Department of Defense purposes, the unit was credited with Vietnam Service on various occasions from December 1970 to June 1971. The Veteran's service record, however, provided no conclusive proof of his physically being in country. The Veteran's service personnel records show that he reported on board the USS Kitty Hawk in November 1970 and commenced sea duty at that time. His military occupational specialty (MOS) was "aviation structural mechanic hydraulics." On review, the Veteran did not receive any awards or decorations conclusively showing combat participation or have a combat MOS. Thus, the evidence of record does not support a finding that he engaged in combat with the enemy, and the Board does not find 38 U.S.C.A. § 1154(b) for application. Regardless, the Veteran is competent to report that he injured his left elbow during service and that he has had left elbow problems since that time. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that the Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). "Competency" differs from "credibility" as well as the weight given to different evidence. Significantly, "competency" is a legal concept determining whether testimony (i.e., the Veteran's lay statements) may be heard and considered, while "credibility" is a factual determination going to the probative value of the evidence after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). In determining the weight to be assigned to evidence, the Board notes that credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In assessing the credibility of the Veteran's reported history, the Board first acknowledges the decision in Buchanan v. Nicholson, 451 F.3d 1331 (2006), wherein the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that the Board had erred by finding that a claimant's report of in-service psychiatric symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. See Layno. As noted, the service treatment records are negative for any complaints or treatment related to a chronic left elbow disorder, and the Veteran's upper extremities were reported as normal on separation. The Board's determination regarding credibility, however, is not based solely on the absence of documented treatment. The Veteran has variously asserted that he did not seek treatment at the time of the claimed injuries because it was during war, the injury was not that bad, and there was undue command influence. A review of service treatment records shows that the Veteran was seen in the medical department on the USS Kitty Hawk on seven occasions during the period from January to June 1971. The Veteran is shown to have sought treatment for relatively minor complaints at these times, but he is not shown to have identified any manifestations of an elbow injury, particularly when he thought it was fractured. This aspect of his lay statements clearly lacks credibility. Additionally, at separation, the Veteran expressly denied having a painful or 'trick' shoulder or elbow. This clearly weighs against his more recent reports of having the in-service onset and a continuity of left elbow manifestations attributable to a fracture sustained during service. The Board has considered his arguments that he just wanted to get out of the service or that his elbow was not hurting at that time. These statements, however, are inconsistent with the fact that he reported other problems at separation, such as having had mumps and severe tooth or gum trouble. The Veteran's statements that he injured his left elbow during service and had had problems since that time are also essentially self serving. Given the factual background as set forth, arguing otherwise would clearly be detrimental to his claim. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board has considered the various lay statements of record, and acknowledges that the individuals are competent to report what the Veteran told them, as well as their observations as to his left elbow symptoms. However, these the statements are insufficient to establish the claimed in-service injury or continuity of symptoms since service. Finally, the Board has considered the various medical statements of record. The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court), however, held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. Moreover, a review of the claims file by a VA examiner, without more, does not automatically render the examiner's opinion competent or persuasive, and conversely, a private medical opinion may not be discounted solely because the opining clinician did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The August and September 2006 statements appear to be recitations of the Veteran's reported history as well as the physician's observations as to worsening left elbow symptoms. Initially, the Board observes that the transcription of lay history is not transformed into "competent medical evidence" merely because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). To the extent these statements address etiology, the Board finds them to be limited probative value in that they are based on a history as reported by the Veteran and not necessarily consistent with the overall evidence of record. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that the Board may reject a medical opinion that is based on facts provided by a veteran that have been found to be inaccurate or that are contradicted by other facts of record); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). The July 2006 statement by Dr. J.C. offers a positive nexus opinion and supports the Veteran's claim. The Board acknowledges the Veteran's contention that this physician is an expert in his field. Indeed, his letterhead shows that he is an orthopedist specializing in reconstructive surgery of the shoulder, elbow and knee. The Board has no reason to doubt the physician's qualifications. For various reasons, however, the Board does not find this opinion to significantly probative. While the physician states that he thoroughly reviewed the Veteran's history, there is no discussion regarding the normal findings at separation or of the Veteran's strenuous post-service occupational and recreational activities. Additionally, this opinion appears to be based in large part on the Veteran's reported history. In this regard, the Board notes that the initial September 2004 consultation with this physician notes that the Veteran landed on his elbow and "thought that he probably had a fracture and bone chips." As discussed, this history is not found to be consistent with the overall evidence of record. See Kowalski. The Board acknowledges the Veteran's statements that he saw two doctors shortly after service that diagnosed a fracture and related it to a fall in service. The Veteran is competent to report what these physicians supposedly told him. The rationale for these statements is unclear, but to the extent they were based solely on the Veteran's reported history, the Board does not find them probative. The October 2011 VA examiner provided a negative opinion. This opinion seems to be based on the absence of in-service documentation and does not appear to consider the Veteran's lay assertions. As such, the Board does not assign it significant probative value. On review, the May 2013 VHA medical opinion is found to be highly probative. This opinion was provided by an orthopedic surgeon and was based on a review of the entire claims folder. Thus, the examiner had access to the complete history as contained therein, as opposed to only the history as reported by the Veteran. The examiner provided sufficient rationale for his opinion, to include consideration of the normal findings at separation, the history provided at separation, and the Veteran's post-service activities. The Board acknowledges the Veteran's contentions regarding nexus. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating and determining causal connections for elbow disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Issues of competency notwithstanding, his contentions simply do not outweigh the well-reasoned VHA opinion set forth hereinabove. In summary, the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER Service connection for a claimed left elbow disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs