Citation Nr: 1333944	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  09-29 540	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for a right elbow disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Y. Curtis, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1974 to December 1974.

This matter is before the Board of Veterans Appeals (Board) on appeal of a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a right elbow disability.

In October 2010, the Veteran did not appear at a scheduled Board hearing.  As there is no record of a timely request for postponement, the request for the hearing is deemed withdrawn.


FINDING OF FACT

The Veteran's right elbow disability clearly and unmistakably pre-existed the Veteran's entrance to active duty and clearly and unmistakably did not permanently increase in severity beyond the natural progression of the disease during active service.  

CONCLUSION OF LAW

The criteria for service connection for a right elbow disability have not been met.  38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306.


The Veterans Claim Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  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.  

A June 2008 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1) (2012).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a March 2010 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records have been obtained.  The VA requested private treatment records from Dr. Anthony Villare; however, Dr. Villare reported that he had no records concerning the Veteran's right elbow surgery.   38 U.S.C.A. § 5103A (West 2002), 38 C.F.R. § 3.159 (2012).  The Veteran's Social Security Administration disability determination and the records considered in that determination were obtained in February 2010.  38 C.F.R. § 3.159(c)(2) (2012).  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Principles of Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 as implemented in 38 C.F.R. § 3.306.

Service connection may be warranted for a preexisting injury or disease that was aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease.  However, aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. §§ 1153, 38 C.F.R. § 3.306(a).

A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111.  Only such conditions as are recorded in physical examination reports are to be considered as "noted."  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

Clear and unmistakable evidence means that the evidence cannot be misinterpreted or misunderstood, i.e., it is undebatable.  Quirin v. Shinseki, 22 Vet. App. 390, 396.

II.  Facts and Analysis

In a report of medical history prepared at the time of his enlistment, the Veteran reported a history of right elbow, bone or joint deformity.  The examiner who reviewed the Veteran's report of medical history acknowledged that the Veteran underwent surgery for his right elbow in 1966 due to a sports injury, but also stated that the elbow exhibited good function.  Additionally, the examiner noted normal upper extremities on the Veteran's enlistment examination and concluded that the Veteran was qualified for active service.

Although the Veteran and examiner referenced a previous right elbow injury, the references were merely an acknowledgement of his medical history.  On entrance, the Veteran's upper extremities were noted as normal upon physical examination.  Thus, the presumption of soundness applies to the Veteran's right elbow disability and the burden shifts to the government to demonstrate by clear and unmistakable evidence that the condition preexisted service and the preexisting condition was not aggravated by service.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 

In a notice of disagreement, the Veteran contends that there was no evidence of a right arm injury upon his entrance into service in 1974.  Medical records received in relation to the Veteran's application for Social Security Disability benefits, however, reveal that the Veteran complained of ongoing right elbow problems before service.  

In January 1972, the Veteran was referred by the New Jersey Rehabilitation Commission for an evaluation of his right elbow.  The Veteran complained of stiffness in his right elbow and reported a history of a right elbow arthrotomy in March 1968.  A physical examination revealed a 20 degree loss of full extension in his right elbow.  Additionally, X-rays showed a slight roughening of the articular surface of the capitellum and olecranon.   Dr. Frederick George diagnosed the Veteran with partial anklysosis of the right elbow secondary to old osteochondritis and loose bodies.  No specific therapy was recommended because further surgery would probably result in more contracture of the joint.  Additionally, the Veteran complained of not being able to straighten his right elbow, while being treated for a psychiatric disorder in June 1972.

While the Veteran is competent to report on the onset of his right arm symptoms, his current statements regarding the condition of his right arm upon entrance into service are not credible in light of medical records that note the symptoms and clinical findings related to his right elbow two years prior to his enlistment.  Prior to service, the Veteran's symptoms were severe enough for him to report them to two doctors in a six month period.  The evidence clearly and unmistakably indicates that the Veteran was experiencing problems with his right elbow prior to service. 

The Veteran also contends that he was released from the Marines due to a right arm injury.  Service personnel records contradict the Veteran's statements.  Service personnel records dated December 1974 indicate that the Veteran was discharged from service due to a character and behavior disorder after a five day assignment to the Motivation Platoon resulted in minimal improvement in self-discipline and motivation.  It was decided that further training would prove ineffectual and an honorable discharge was recommended.   There is no mention of the Veteran's right arm or right elbow in any of the personnel records related to his discharge.

Nor do service treatment records mention the Veteran's right elbow.  In December 1974, the Veteran and an examining medical officer signed a statement indicating that the Veteran did not suffer any injuries or illnesses during active duty except for named patient use prescription (NPU-RX) as cited by the Veteran.  The medical officer reported that there were no other medical problems.  

The Veteran is competent to report increased symptoms during service.   Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Veteran, however, is not credible because he is an unreliable historian in regards to the severity of his symptoms during service.  Contemporaneous medical records are silent for treatment of a right elbow disability and the Veteran signed a statement indicating that he did not suffer any additional injuries or illnesses to his right arm during service.  Thus, the evidence of record clearly and unmistakably shows that the Veteran's pre-existing right elbow disability did not permanently increase in severity beyond the natural progression of the disease during active service.  

The preponderance of the evidence is against the claim for service connection for a right elbow disability; there is no doubt to be resolved; and service connection for a right elbow disability is not warranted.


ORDER

Entitlement to service connection for a right elbow disability is denied.


____________________________________________
RONALD SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs