Citation Nr: 1336349 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-00 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of a fractured lateral condyle, left humerus, without union. 2. Entitlement to service connection for a left ankle disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated June 2006 and December 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a March 2012 Board decision, the claims were reopened and remanded for further evidentiary development. The VA Appeals Management Center (AMC) continued the previous denials in an October 2012 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. As will be discussed below, the issue of entitlement to service connection for a left ankle disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. The Veteran will be notified if further action on his part is required. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran's fractured lateral condyle, left humerus, without union, pre-existed his active military service. 2. The competent medical evidence of record indicates that the Veteran's fractured lateral condyle, left humerus, without union, was aggravated beyond its natural progression by his active military service. CONCLUSION OF LAW The Veteran's pre-existing fractured lateral condyle, left humerus, without union, was aggravated by his active military service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2010)), which imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered this legislation and finds that, given the favorable action taken herein with regard to the claim for service connection for residuals of fractured lateral condyle, left humerus, without union, no further discussion of these VCAA requirements with regard to this issue is required. Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). II. Analysis A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. §§ 1111, 1111, 1113 (West 2002); 38 C.F.R. § 3.304(b) (2013). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) [noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"]. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2013). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of a disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2013). A finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). a. Presumption of soundness There is substantial evidence that the Veteran sustained an injury to the left elbow as a child. Specifically, a childhood injury to the left elbow was mentioned in service treatment records (STRs) dated May 1965, June 1967, July 1967, December 1968, and May 1970. Additionally, a childhood injury is noted on the Veteran's June 1971 separation examination and the June 1971 Report of Medical History. Finally, a July 1967 Medical Board Report documented a diagnosis of fracture, lateral condyle, left humerus, without union; and provided an approximate date of onset as 1949 to 1950. The Report explicitly stated that this disability was not incurred while entitled to basic pay, but instead existed prior to service. However, a disability of the left elbow was not noted on the Veteran's October 1961 service enlistment examination. When no pre-existing condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was not aggravated by service. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Critically, the April 2012 VA examiner expressly determined that it is clear and unmistakable that the Veteran's left elbow disability pre-existed his military service. The examiner reviewed the evidence of record and specifically noted that is well documented that the condition pre-existed service. Accordingly, the Board finds that the competent medical evidence of record clearly and unmistakably demonstrates that the Veteran's left elbow disability (specifically, fractured lateral condyle, left humerus, without union) pre-existed his active duty service and that he had this disability at the time of his entry into active duty. Thus, the presumption of soundness on enlistment has been rebutted. If, as here, the presumption of soundness is rebutted, the Board must then address the matter of whether the presumption of aggravation has been rebutted by clear and unmistakable evidence. b. Aggravation As detailed above, a pre-existing injury will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). For the reasons stated below, the Board finds that the evidence shows that the Veteran's pre-existing fractured lateral condyle, left humerus, without union was aggravated by his military service. As noted above, the Veteran's left elbow disability was repeatedly documented in his STRs. In May 1965, it was noted that the Veteran "got along without difficulty [in his left elbow] until approximately three to four years ago when he began noting crepitus in the joint when it carried to a full range of passive and active motion." X-rays revealed, "[e]arly degenerative osteoarthritis between the ulna and humerus secondary to old fracture non-union of the lateral condyle." See the STR dated May 1965. An STR dated October 1965 indicated that "[e]ven though this [left elbow disability] should have disqualified him initially, the patient may be of such caliber that he can continue in the Air Force and be productive." In July 1967, the Veteran was placed on permanent physical profile with no lifting of objects weighing above 25 pounds. A July 1967 Medical Board Report documented the pre-existing fractured lateral condyle, left humerus, without union, and noted the permanent change of physical profile. The June 1971 service separation examination noted the Veteran's history of non-union of the lateral condyle, left humerus. In the accompanying June 1971 Report of Medical History, the Veteran endorsed swollen or painful joints as well as a painful or 'trick' shoulder. Private treatment records dated in January 2004 documented a degenerated left elbow with pain and stiffness. In September 2004 and October 2004, private treatment records indicated left elbow swelling. A November 2004 private treatment record noted that the Veteran "has had less swelling of left elbow related to his fracture as an adolescent and subsequent nonhealing and subsequent advanced osteoarthritis." A separate November 2004 treatment record noted the Veteran's progressive deformity and arthritic change in the left elbow over the years since childhood. Following x-rays of the left elbow, the Veteran was diagnosed with "severe post-traumatic arthritis with deformity of the left elbow." See the private treatment records dated November 2004. VA treatment records dated September 2006 indicated a long history of elbow problems; specifically, "[h]e injured it as a child and treated in a case and he states that his elbow is becoming progressively worse." See the VA treatment records dated September 2006. A diagnosis of osteoarthritis of the left elbow secondary to malunion fracture of the lateral condyle was noted at that time. Id. The Veteran has submitted numerous third party lay statements which support his contentions of a symptomatic left elbow during his military service. See the lay statements received in February 2007 and April 2007. Pursuant to the Board Remand, the Veteran was afforded a VA examination in April 2012 at which time the examiner noted the Veteran's continuing diagnosis of degenerative arthritis of the left elbow as well as non-union of the lateral condyle, left humerus. With respect to the question of aggravation, the VA examiner concluded, "[i]t is my opinion within a reasonable degree of medical probability that the Veteran's left elbow was permanently aggravated as a result of the documented activities required of active military duty." The examiner explained, "[w]hile it is well documented that the condition pre-existed service, he does not meet the standard of clear and unmistakable evidence that his condition was not aggravated by service." The examiner further opined, "[e]ven considering that his elbow would have progressed by virtue of it[s] expected natural history, medical plausibility exists that military physical activities could have accelerated or enhanced this progression." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has 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. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez, 22 Vet. App. at 295. Crucially, the competent medical evidence of record shows that diagnosed left elbow disability was aggravated beyond its natural progression by the Veteran's military service. Specifically, the Board finds the April 2012 VA medical opinion particularly probative as to the question of aggravation, as it appears to have been based upon a thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The rationale was substantial, thorough, and based on the overall record. Thus, the evidence above clearly demonstrates the Veteran's left elbow disability increased in severity during service. The evidence of record does not contain any specific finding that the increase in the Veteran's fractured lateral condyle, left humerus, without union symptomatology was due to the natural progression of the disease or was a temporary or intermittent flare-up. In other words, there is no clear and unmistakable evidence that the left elbow disability was not aggravated. Accordingly, the competent evidence of record demonstrates that the Veteran's fractured lateral condyle, left humerus, without union was permanently aggravated as a result of active military service. 38 U.S.C.A. § 1153. This conclusion is supported by the Veteran's STRs, multiple lay statements, post-service treatment records, and the opinion of the April 2012 VA examiner. The benefit sought on appeal is therefore granted. Additional comment The Board wishes to make it clear that service connection is granted only for disability resulting from in-service aggravation of the pre-existing fractured lateral condyle, left humerus, without union. It is not the Board's responsibility to determine the degree of aggravation in the first instance. See 38 C.F.R. § 4.22 (2013). ORDER Entitlement to service connection for residuals of fractured lateral condyle, left humerus, without union, is granted. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the remaining claim on appeal - entitlement to service connection for a left ankle disability - must again be remanded for further evidentiary development. The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for several years and it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claim. A review of the file indicates that the Veteran was previously awarded disability benefits from the Social Security Administration (SSA). See the SSA inquiry dated June 2006. To this end, the Board observes that no SSA records pertaining to the Veteran have been associated with the claims file. Where VA has actual notice of the existence of records held by SSA that appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist includes obtaining records from SSA and giving appropriate consideration and weight in determining whether to award or deny VA disability compensation benefits). Accordingly, the Veteran's SSA records should therefore be obtained for consideration in connection with the issue on appeal. Further, review of the record (including the Veteran's physical VA claims file as well as his Virtual VA file) reflects ongoing VA medical treatment. Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file. 38 U.S.C.A. § 5103A(c) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Request from SSA the records pertinent to the Veteran's claim for Social Security disability benefits and the medical records relied upon concerning that claim. 2. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran may have received, or undergone, since March 2009. All such available documents should be associated with the claims file. 3. Then, VBA should refer the VA claims file to the physician who conducted the April 2012 VA examination; if he is unavailable the claims file should be referred to a physician with appropriate expertise. The Veteran does not need to be examined. The examiner is requested to review the claims file in its entirety including the recently obtained SSA records and VA treatment records. The examiner should then indicate whether his April 2012 opinion concerning medical nexus as to the claimed left ankle disability has changed upon review of the newly obtained SSA records and VA treatment records. Specifically, the examiner should indicate whether it is at least as likely as not (50 percent or more likelihood) that the Veteran's left ankle disability, if any, began during or is causally related to service, to include the documented January 1966 injury. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). The AOJ should ensure that any additional development suggested by the examiner should be undertaken so that a definite opinion can be obtained. 4. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs