Citation Nr: 1337271 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 11-16 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for a right elbow disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran presented testimony in support of his claim before the undersigned Veterans Law Judge (VLJ) in December 2012. FINDING OF FACT The evidence supports the Veteran's claim that his right elbow joint disability, including degenerative joint disease (DJD) and epicondylitis, is related to active duty service. CONCLUSION OF LAW The Veteran has a right elbow joint disability as a result of an injury sustained during combat. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) provides that VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Because the claim is being granted, any error related to the VCAA is rendered moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). Service Connection The Veteran alleges he has a right elbow joint disability-as distinct from his service-connected scars of the right elbow-as a result of an injury sustained in March 1968 while his ship was taking fire during the Tet Offensive. For the reasons that follow, the Board finds the evidence in support of the claim, and the appeal will be granted. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). 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). In the case of a Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran is currently diagnosed with DJD and epicondylitis of the right elbow. The RO denied his claim on the basis that his records from service do not confirm that he injured his right elbow. However, the evidence of record shows that the Veteran is entitled to the combat presumption. The Veteran's personnel records confirm that he was a member of Naval Support Activity during the Tet Offensive, and that his unit received Commendation from General Westmoreland due to their outstanding performance at that time. Additionally, the Veteran has been service-connected for posttraumatic stress disorder (PTSD) on the basis of the incident during which the Veteran alleges having injured his right elbow. The other evidence he has submitted in this regard is internally consistent. Rucker v. Brown, 10 Vet. App. 67 (1997). In resolving any doubt in the favor of the Veteran, the Board finds that he injured his right elbow during active duty in or around March 1968. The Veteran has not been provided a VA compensation examination, however, three of his treating physicians have linked his current diagnoses to the injury sustained in service. Dr. G.S.O., who diagnosed DJD and epicondylitis, opined that his current elbow problems are at least partially due to his injury in service. Dr. C.J.L. diagnosed probable enthesopathy, and attributed his symptoms of clicking, locking, and aching to the injury sustained "when his craft took fire and hit his right elbow, head, and shoulder on the aft gun tub." Dr. J.S. opined that degenerative changes "could" be due to the elbow injury. Dr. J.S.'s opinion is speculative, and insufficient on its own to support service connection, but serves as additional support for service connection when read in conjunction with the other positive opinions of record. There is no other evidence of record that contradicts the above evidence. Accordingly, as the evidence in this case supports the claim, the appeal will be granted. ORDER Entitlement to service connection for a right elbow joint disability is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs