Citation Nr: 1331053	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  06-07 127	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.   Entitlement to service connection for the postoperative residuals of right elbow epicondylitis, including as secondary to service-connected residuals of laceration of the left thumb.  

2.  Entitlement to service connection for left elbow epicondylitis, including as secondary to service-connected residuals of laceration of the left thumb.

3.  Entitlement to service connection for bilateral hearing loss.  

4.  Entitlement to service connection for tinnitus.

5.  Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Wade Bosley, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from June 1981 to November 1981, and had extensive additional service with the National Guard until November 1997.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of June 2005, June 2007, and June 2008 rating decisions of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In January 2010, a Board personal hearing was held before the undersigned in Washington, D.C.  A transcript of the hearing is associated with the Veteran's claims file.

In a January 2011 decision, the Board reopened the claims for service connection for right elbow epicondylitis and left elbow epicondylitis.  The Board remanded the issues of service connection for hearing loss, tinnitus, right elbow epicondylitis, and left elbow epicondylitis for further development of the evidence, including obtaining additional VA examinations.  The issues of service connection for hearing loss and tinnitus and entitlement to TDIU are remanded below.  This decision constitutes a full grant of the benefits sought on appeal on the issue of service connection for a left and right elbow disabilities; therefore, discussion regarding Board remand compliance in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998) is not required with regard to these issues.  

In May 2012, the Board denied the claim for service connection for the right and left elbow disabilities, and remanded the issues of service connection for hearing loss, tinnitus, and TDIU for further development of the evidence.  The remanded issues have not yet been certified to the Board for appellate review following the May 2012 remand.  

In November 2012, the U.S. Court of Appeals for Veterans Claims (Court) vacated and remanded the May 2012 Board decision based on a Joint Motion for Remand.  The Parties to the Joint Motion for Remand agreed that the Board did not provide an adequate statement of reasons and bases for the denial of the claims for service connection for left and right elbow epicondylitis because it did not address a favorable medical nexus opinion by Dr. Siekanowicz.  The case was remanded for the Board to readjudicate the claims and provide a statement of reasons and bases that adequately accounts for all the relevant evidence of record.   

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence.  

The issues of service connection for bilateral hearing loss and tinnitus, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO.  


FINDINGS OF FACT

1.  Epicondylitis of the right elbow is proximately due to the service-connected residuals of a laceration of the left thumb.  

2.  Epicondylitis of the left elbow is proximately due to the epicondylitis of the right elbow, which is proximately due to the service-connected residuals of a laceration of the left thumb.   


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for epicondylitis of the right elbow are met.  38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310 (2013).  

2.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for epicondylitis of the left elbow are met.  38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  This decision constitutes a full grant of the benefits sought on appeal on the issue of service connection for a left and right elbow disabilities and no further discussion regarding VCAA notice or assistance duties is required with regard to these issues.  

At the Board hearing in January 2010, the Veteran's attorney explicitly raised the theory of secondary service connection, made specific contentions in support of that theory, and elicited testimony from the Veteran regarding secondary service connection.  The Board broadened the issue to include the secondary service connection theory of entitlement.  See 38 C.F.R. § 3.310.  The Veteran's attorney subsequently submitted a March 2010 opinion by Dr. Siekanowicz of relationship between the elbow disorders and the service-connected left thumb disability.  This favorable nexus opinion was obtained and submitted following discussions at the time of the Board hearing of the need for such medical nexus opinion that included a rationale for the opinion.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that provisions of 38 C.F.R. § 3.103(c)(2) impose duties on VA employees conducting hearings to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked).

Service Connection Laws and Regulations

Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.   Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Service connection requires competent evidence showing, (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).  Presumptive periods do not apply to ACDUTRA or INACDUTRA.  Id.  Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for certain chronic diseases) for the periods of ACDUTRA or INACDUTRA is not appropriate.  ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes.  38 C.F.R. § 3.6(c)(1).

Pursuant to § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. at 448.  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).   

The provisions of 38 C.F.R. § 3.310 were amended effective October 10, 2006.  However, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability.  71 Fed. Reg. 52744-47 (Sept. 7, 2006).  Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995.  

The Veteran filed his claim in 2004, prior to the effective date of the amended provision.  Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. 

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).

When there is an approximate balance of positive and negative evidence regarding the merits of a question material to the determination of the matter, the benefit of the doubt in resolving each such question shall be given to the claimant.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Analysis of Service Connection for Elbow Disorders

The Veteran contends that service connection is warranted for epicondylitis of the left and right elbows.  He asserts that these disorders are the result of overuse syndrome that is the result of his service-connected left thumb disability.  (Service connection has been established for the residuals of a laceration injury of the left thumb, currently rated 30 percent disabling.)  

In a recent letter dated in July 2013, the Veteran's attorney again refers to the favorable medical nexus opinion of an orthopedic surgeon who treated the Veteran, 
Dr. Siekanowicz, that shows a secondary service connection between the current left elbow disorders and the service-connected residuals of laceration of the left thumb.  The Veteran's attorney correctly points out that the favorable nexus opinion by Dr. Siekanowicz had been filed out of chronological order in the claims file, before the January 2010 hearing transcript, which resulted in the Board's unawareness of, and failure to discuss and weigh, this favorable opinion evidence at the time of its prior decision.  As the Veteran's attorney points out, the extensive record of evidence and information in this case is filed in five volumes and has involved adjudication on multiple issues.  

After carefully reviewing all the evidence, including specifically the medical (secondary) nexus opinion of an orthopedic surgeon who treated the Veteran, 
Dr. Siekanowicz, the Board now finds that the evidence is in equipoise on the question of whether the epicondylitis of the left and right elbows is proximately due to or the result of the service-connected left thumb disability.  There is competent and credible evidence which weighs for and against the claim for service connection on a secondary basis.  

Private treatment records show that in October 1994 the Veteran was seen for symptoms of pain around the right lateral epicondyle of the elbow.  He underwent an injection in July 1994; he stated that the pain had not improved with the injections.  The impression was recurrent lateral epicondylitis of the right elbow.  He was re-injected and his arm placed in a sling.  Additional records show that he received additional injections, casting, and, in December 1995, underwent surgery of the elbow.  A treatment record dated in May 1996 shows that the Veteran had symptoms of medial epicondylitis about the left elbow secondary to overuse due to the injury of the right elbow.  

The Veteran has not claimed that he sustained an injury of either elbow while on active duty or that the disabilities had their onset during a period of ACDUTRA or INACDUTRA.  The Veteran's service treatment records show no complaints or manifestations of disability of the right or left elbows while the Veteran was on active duty.   He testified that he first started experiencing symptoms of tennis elbow in 1993.  For this reason, and in light of the grant of benefits under the theory of secondary service connection, any question of incurrence of elbow disorders in service have been rendered moot, and will not be further addressed.  

In this case, the Veteran contends that the left and right elbow disabilities are caused by overuse due to the service-connected left thumb disability.  Service connection for residuals of the laceration of the left thumb was granted in January 2000.  A zero percent rating was assigned from October 28, 1998.  In June 2005, a 10 percent rating was assigned to the left thumb disability and in February 2006, a 20 percent rating was assigned to the service connected left thumb disability.  In a January 2011 decision, the Board assigned a 30 percent rating to the left thumb disability.  

The Board found that the Veteran has had consistent complaints of significant limitation of use of his left thumb to the point that the left thumb is rendered almost useless.  For example, an April 2005 VA examination report indicates reports of serious pain in the left hand, especially with use, including limited lifting of no more than four or five pounds due to left hand pain.  Examination findings showed
significant impairment of the left hand, with an almost inability to adduct, limited abduction of the thumb, and difficulty apposing the thumb, as well as evidence of ulnar neuropathy.  

A December 2006 VA examination report indicates reports of pain, limitation of motion, swelling, weakness and numbness in the left thumb, a history of flare-ups, and examination findings diagnosed as residuals of a laceration of the left thumb, assessed to have mild effects on daily activities such as chores and sports.  

A February 2009 VA examination report indicates reports of numbness in the whole thumb and shooting pain with grasping, dropping things, and flare-ups.  Examination revealed that the left thumb was very tender to the touch, both grips were weak, a mild flexion deformity of the PIP joint of the fifth finger, and a diagnosis of status post laceration of the left thumb with scars as described.  In the January 2011 decision, affording the Veteran the benefit of doubt, the Board found that the 30 percent rating was warranted for the service-connected residuals of the left thumb laceration as analogous to left thumb amputation under 38 C.F.R.  § 4.71a, Diagnostic Code 5152.  

The evidence weighing against the case includes the April 2011 VA examiner's opinion that the Veteran's bilateral elbow disability, including diagnosed epicondylitis, is not the result of overuse syndrome resulting from the Veteran's left thumb disability.  The rationale for the opinion included that the Veteran had sustained the injury of the left thumb in about 1983; the Veteran was able to sustain employment and his status with the National Guard from 1983 until about 1995; the record contained little evidence of continuity of care from the mid-1980s to 1995; there was no evidence in the early treatment phases of the Veteran's elbow disabilities that suggested that the conditions were related to overuse; and there was no evidence that the left thumb laceration interfered with work during the 1980s and early 1990s.  The VA examiner reasoned that, had the thumb disability lead to the elbow disorders, they would have manifested much sooner than around 1995.  The VA examiner further reasoned that the Veteran had essentially no significant impairment of the right hand, and there was no evidence that the left thumb injury required him to use his right hand more than his left, particularly because the Veteran was noted to be right handed.  The examiner also reasoned that there was no evidence that the Veteran engaged in activities that required repetitive motions of the right extremity, and the fact that the Veteran was able to maintain his military career for many years after sustaining the left thumb injury was telling as to his fitness for duty.  This plus the lack of continuity of care were the bases for the examiner's opinion that the Veteran's bilateral elbow disability, including diagnosed epicondylitis, is not the result of overuse syndrome resulting from (secondary to) the Veteran's left thumb disability.  

There is medical nexus opinion evidence that weighs in favor of the theory of service connection as secondary to the service-connected left thumb disability.  Through his attorney, the Veteran submitted a private medical opinion by an orthopedic surgeon in support of his claim.  The March 2010 private medical report indicates that Dr. Siekanowiez stated that examination of the right elbow revealed some mild discomfort with forced wrist extension and forced wrist flexion.  Range of motion was zero degrees to 130 degrees.  Examination of the left elbow revealed some mild degrees of tenderness about the lateral epicondyle with some pain on forced wrist extension and extension of the third digit both present with the elbow in flexion and extension.  There was a lesser degree of tenderness about the medial epicondyle.  Range of motion of the right elbow revealed five degrees to 140 degrees with essentially full pronation and supination.  There was diffuse pain and hypersensitivity about both elbows particularly about the lateral epicondyles and to a lesser degree, medial epicondyles.  

Dr. Siekanowicz opined that the Veteran's symptoms started due to compensatory overuse of the right arm, upper extremity, and elbow due to a circumferential laceration to the left thumb which required surgical repair.  Dr. Siekanowiez stated that the compensatory overuse on the right led to the medial and lateral epicondylitis symptoms and eventual surgeries were required.  Dr. Siekanowicz stated that, as the Veteran was starting to recover from right elbow surgery, he sustained similar compensatory overuse to the left elbow and has persistent lateral epicondylitis symtomatology.  The left elbow and the upper extremity likewise reveals decreased strength, decreased endurance, significant functional limitations, pain and weakness.  

Dr. Siekanowicz summarized that the severe bilateral upper extremity permanent impairments and limitations, treatments, interventions, and surgeries, as well as present need for chronic pain management, all arise and are consistent with and directly attributable to the Veteran's original injury to his left thumb in May 1983.  Dr. Siekanowicz noted that the Veteran was not able to use either elbow or arm in a normal fashion, and concluded that the Veteran had severe bilateral persistent chronic elbow pain that has not responded to neither operative nor non-operative treatment.  He noted that the Veteran was currently under chronic pain management, was unable to perform any type of gainful employment at this time, and, therefore, remained disabled in reference to both upper extremities.  
Dr. Siekanowiez stated that his opinions expressed were beyond a reasonable medical certainty and consistent with and directly attributable to the original injury.  The Board finds that the March 2010 private medical report by Dr. Siekanowiez is competent and credible evidence that the right elbow disability is proximately due to the service-connected left thumb disability and the Veteran's left elbow disability is the result of overuse syndrome as a result of the Veteran's right elbow disability. 

Based on a review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the right elbow epicondylitis is proximately due to the service-connected left thumb disability and the Veteran's left elbow epicondylitis is the result of overuse syndrome as a result of the Veteran's right elbow disability.  In 
resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for right and left elbow epicondylitis as secondary to the service-connected left thumb disability is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for right elbow epicondylitis is granted. 

Service connection for left elbow epicondylitis is granted. 


REMAND

In May 2012, the Board remanded the issues of service connection for hearing loss, tinnitus, and for TDIU for further development of the evidence.  The remanded issues have not yet been certified to the Board for appellate review following the May 2012 remand.  As noted above, in November 2012, the Court vacated a portion of the Board's May 2012 decision that denied service connection for the left and right elbow disabilities.  The remand portion of the decision was not vacated; thus, the Board directs the RO to take the action as directed in the May 2012 remand.  

In the May 2012 remand, the Board instructed the RO to obtain an additional medical opinion as to whether the Veteran's hearing loss and tinnitus were related to the Veteran's period of active duty in 1981 including the noise exposure that occurred during Reserve service that extended until November 1997.  In the May 2012 remand, the Board found that the issue of entitlement to TDIU was inextricably intertwined with the issue of service connection for hearing loss and tinnitus and, therefore, the issue of TDIU must be held in abeyance pending the development requested herein.  

The RO should contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent VA or non-VA treatment records showing treatment of the claimed hearing loss and tinnitus.  The RO should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file.  The Veteran also should be informed that he may submit evidence to support his claims including any evidence of in-service treatment for his claimed disabilities.

Accordingly, the issues of service connection for hearing loss and tinnitus and entitlement to TDIU are REMANDED for the following action:

1.  Contact the Veteran in order to ask him to identify all sources of VA and non-VA medical treatment for the claimed hearing loss and tinnitus.  The letter should request sufficient information to identify the health care providers, and if necessary, signed authorization, to enable VA to obtain copies of any outstanding medical records.  

If the Veteran adequately identifies the health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. 

2.  Contact the examiner who conducted the April 2011 examination (or if she is no longer available, a suitable replacement) and request an addendum to the VA medical opinion that addresses the following question: 

Is it as likely as not (probability of 50 percent or more) that the Veteran's bilateral hearing loss and tinnitus are related to the acoustic trauma during service, including acoustic trauma during service in the Reserves?  

The Veteran's exposure to acoustic trauma (loud noise exposure) during service, including Reserve service until November 1997, should be presumed.  The VA examiner should review all audiometric testing, specifically including audiometric testing during Reserve service in February 1989 and May 1993, and indicate the significance of threshold shifts that had occurred by May 1993.  The VA examiner is also directed to note and discuss any significance of the Veteran's history of onset of hearing loss and tinnitus after service in 1999. 

The examiner should provide a rationale for all conclusions.  If the VA examiner determines that further examination is necessary in order to render the requested medical opinion, the RO should schedule the Veteran for such an examination.  

3.  Readjudicate the claims for service connection for hearing loss, service connection for tinnitus, and entitlement to TDIU.  If any issue remains denied, the RO should issue an appropriate supplemental statement of the case as to all issues on appeal, and should afford the Veteran and his representative the opportunity to respond before the case is returned to the Board for further appellate review.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2013).

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. 2013).



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs