Citation Nr: 1338510 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 08-33 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to the service-connected lumbar disc disease, L4-5, post-fusion. 2. Entitlement to service connection for sinusitis, to include as secondary to the service-connected tinnitus. 3. Entitlement to service connection for a right elbow disorder. 4. Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to the service-connected lumbar disc disease, L4-5, post-fusion. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from January 1983 to April 1983 and from November 1983 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the VA Regional Office (RO) in St. Paul Minnesota and from July 2006 and October 2007 rating decisions of the RO in Sioux Falls, South Dakota. Due to the location of the Veteran's current residence, jurisdiction of the appeal is with the RO in Muskogee, Oklahoma. In June 2010, the Veteran testified at a hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The case was remanded in January 2011 to obtain additional treatment records and afford the Veteran VA examinations. As regards the issue of service connection for a right elbow disorder, review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has submitted new evidence in the form of a statement regarding his conditions, which relates to the issues on appeal. The Veteran specifically waived his right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2013). The issues of service connection for a cervical spine disorder, sinusitis and a bilateral shoulder disorder being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A right elbow disorder was not present during service, arthritis was not manifest within one year of discharge from service and a currently diagnosed right elbow disorder did not develop as a result of any incident during service. CONCLUSION OF LAW A right elbow disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letters dated in March 2006 and April 2007 regarding the type of evidence necessary to establish his claim. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letters notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records, and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in June 2006 and February 2011. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are collectively sufficient, as the examiners conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition (e.g., arthritis) is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases (e.g., arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2013). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran contends that he has a right elbow disorder that is due to his military service. Specifically, he contends that a current right elbow disorder is due to an in-service injury incurred during a parachute jump. See, e.g., August 2012 statement. The Veteran's STRs show that he reported injuring his right elbow and lower back during a jump the night before in October 1985. The diagnosis was right elbow possible strain and he was placed on a three day profile. A second record dated a few days later in October 1985 shows that he reported that he was hurt on a jump and was placed on profile for three days after going to sick call. He reported that it hurt to straighten his arm. Examination revealed that he had swelling with no redness, was not tender to touch, and had good movement but pain when extended. He was diagnosed with soft tissue injury and possible strain. His STRs after that are silent for right elbow complaints and treatment. Examinations in September 1986 and March 1988 both revealed clinically normal upper extremities. In his March 1988 report of medical history, he denied symptoms such as arthritis, rheumatism or bursitis; bone, joint or other deformity; and painful or "trick" elbow. There is no indication in the Veteran's STRs that the October 1985 injury resulted in a chronic disability. According to post-service treatment records, the earliest evidence of right elbow complaints was in January 2006. Treatment records beginning in February 1987 are of record; however, while some of those early records show upper extremity complaints pertaining to the shoulders, no records until 2006 specifically show right elbow treatment. At that time, he reported an injury in service, but that he thought it had healed. He reported that he now could not straighten it out. X-rays in January 2006 were normal. A record dated in March 2006 indicates that the Veteran had possible early degenerative joint disease. The Veteran was afforded a VA examination in June 2006. The examiner noted the 1985 treatment records pertaining to the Veteran's right elbow, the negative September 1986 examination, as well as the 2006 treatment records. The Veteran reported injuring his right elbow as a paratrooper in service. The examiner observed that no further treatment was noted in the Veteran's STRs following the 1985 records. The Veteran denied any injury post-service and reported that he did mention his right elbow at discharge. Following examination, the examiner opined that the Veteran had problems with extension of his elbow with a history of injury 20 years ago. There were no indications of X-ray abnormalities and no indication of arthritic changes at that time. The Veteran's range of motion was limited, but there was no indication or cause that one could find at the present time. Therefore, it was the examiner's opinion that it was less likely than not that the current symptomatology was related to the injury noted in service. The examiner opined that the rationale was noted as above plus the separation examination showed no indication of problems with elbow or joints at that time. The Veteran also had no indications of treatment to his elbow until currently, and the current supposition by a VA physician that there was a possibility of degenerative joint disease with negative X-ray findings at the present time. A March 2008 treatment record shows that the Veteran reported that his elbow had never been the same since the in-service injury and that he had always had the inability to fully extend his elbow ever since that accident. He reported that soon after that accident, he noticed approximately a five degree extension block, which had progressively gotten drastically worse. It was noted that X-rays showed some early arthritic changes within the elbow. He was diagnosed with early osteoarthritic changes. At his June 2010 hearing, the Veteran reiterated injuring his right elbow during a parachute jump. June 2010 Hearing Transcript (T.) at 3-4. The Veteran was afforded another VA examination in February 2011. He reported his in-service injury. He reported that after that he noticed that he was not able to straighten his elbow completely and went to sick call, but nothing was done and he was told that it would heal completely and that it took some time. He reported that after discharge, he continued to have the same problem and went to a chiropractor and was told that there might be some calcium deposits and probably osteoarthritis. The Veteran was diagnosed with normal examination/pending X-ray report. X-rays were read to be unremarkable. The examiner opined that the Veteran's right elbow condition was less likely related to the right elbow strain while in service, as there was no continuity of any elbow condition while he was in service and the separation examination in September 1986 was normal, and also there was no evidence of any continuity or chronicity of right elbow condition after discharge from service. Based on a review of the evidence, the Board concludes that service connection for a right elbow disorder is not warranted. Although the evidence shows that the Veteran had an in-service right elbow injury and currently has right elbow complaints, with a diagnosis of arthritis, it does not show that a current right elbow disorder is related to his military service. The Veteran's STRs show two instances of right elbow treatment following a jump injury in October 1985. Although he did complain that it hurt to straighten his elbow, there is no indication that he was unable to straighten his arm. As noted above, the follow-up treatment record after his three day profile shows that he had good movement, but with pain when extended. The record does not indicate that he had limitation of extension. His STRs following those records do not contain right elbow complaints. As such, the STRs do not support a finding that the in-service injury resulted in a chronic disability. The Veteran's assertions that he had continued right elbow complaints following the injury are outweighed by the service records failing to show ongoing complaints. As noted above, examinations in 1986 and 1988 both specifically revealed normal upper extremities; neither examination indicated that the Veteran had any right elbow disorder. Furthermore, in his 1988 report of medical history, he specifically denied having any symptoms such as arthritis, rheumatism or bursitis; bone, joint or other deformity; and painful or "trick" elbow. Moreover, the evidence of record shows that Veteran sought treatment for other disorders as early as 1987; yet, there is no indication of any right elbow complaints until 2006. Additionally, despite the Veteran's reports of being unable to straighten his elbow since service, the January 2006 treatment record shows that he reported that he thought his elbow had healed, but "now" could not straighten it out. Such statements weigh against a finding that he had continuous symptoms, to include being unable to straighten his arm, since service. In this case, the contemporaneous service records fail to support the Veteran's contention that his right elbow injury resulted in a chronic disability in service. Additionally, the absence of treatment records until 2006 for his right elbow, while he sought treatment for other disorders, also weighs against his assertion of continuous symptoms since service. Such records are more reliable, in the Board's view, than the Veteran's unsupported assertions of events now two decades past. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a claimant's testimony simply because the claimant is an interested party; personal interest may, however, affect the credibility of the evidence); see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Therefore, the evidence does not support a finding that the Veteran's in-service injury resulted in a chronic disability. In this case, two VA examiners opined that the Veteran's right elbow complaints were not related to his in-service injury. The Veteran reported continuous symptoms to the February 2011 examiner, yet still a negative nexus opinion was provided. The February 2011 examiner provided a thorough rationale that addressed the pertinent evidence of record. As such, the Board accords it great probative value. Furthermore, both examiner's opinions are supported by the Veteran's STRs as discussed above. Here, the first evidence of right elbow complaints was is in 2006. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of right elbow complaints, symptoms, or findings for two decades between the Veteran's in-service injury and the earliest evidence of a diagnosis of a right elbow disorder is itself evidence which tends to show that a right elbow disorder did not have its onset in service or for many years thereafter. The claims folder contains no competent and probative evidence of a right elbow disorder being associated with the Veteran's active duty. Without competent and probative evidence of an association between a right elbow disorder and his active duty, service connection for a right elbow disorder is not warranted. Furthermore, although X-rays in 2006 and 2011 fail to show arthritis, a March 2008 record does contain a diagnosis of osteoarthritis reportedly based on X-rays. However, as the evidence does not show that any diagnosed arthritis was manifest to a degree of 10 percent or more within one year of discharge, the Board finds that service connection on a presumptive basis is not warranted. Similarly, the Board also finds that the evidence does not establish a continuity of symptomatology and therefore a nexus under Walker as arthritis is a chronic disease as per 38 C.F.R. § 3.309. The fact that his service examinations after the in-service injury showed normal upper extremities as well as the Veteran denying symptoms in his March 1988 report of medical history all weigh against a finding of a continuity of symptomatology as already set forth above. In this case, the contemporaneous service records weigh against any finding of a continuity of symptomatology since service. See Curry at 68. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of a right elbow disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between a right elbow disorder and the Veteran's active duty, service connection for a right elbow disorder is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a right elbow disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a right elbow disorder is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for a right elbow disorder is denied. REMAND Regrettably, another remand is necessary for further evidentiary development for the issues of service connection for a cervical spine disorder, sinusitis and a bilateral shoulder disorder. As regards the Veteran's cervical spine and bilateral shoulder disorders, the Veteran's contentions have indicated that he believes they may be secondary to his service-connected lumbar spine disability. As noted by the Board in January 2011, an examination and opinion in June 2006 was not adequate. Thus, the issues were remanded to afford the Veteran a new VA examination; the examiner was to opine, in part, as to whether they were secondary to any service-connected disabilities. The Veteran was afforded a VA examination in February 2011. Negative nexus opinions regarding service connection on a direct basis were provided; however, the examiner did not provide any opinion as to service connection on a secondary basis. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall, 11 Vet. App. 268. Accordingly, another remand of these issues is necessary. As for the Veteran's sinusitis, he contends that it may be secondary to his service-connected tinnitus. As noted by the Board in January 2011, a March 2007 VA treatment record suggests a relationship between tinnitus and sinusitis. In an August 2012 statement, the Veteran reported that "the louder the ringing in my ears gets the more my sinuses run." As this statement suggests aggravation, a remand is necessary to obtain a medical opinion regarding whether sinusitis is secondary to the service-connected tinnitus. The most recent VA treatment records from the VA Medical Center in Muskogee, Oklahoma are dated in March 2011. On remand, records of any recent cervical spine, sinus and bilateral shoulder treatment that the Veteran received should be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service cervical spine, sinus and bilateral shoulder treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Muskogee VAMC. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Obtain an addendum medical opinion from the February 2011 VA examiner (or, if unavailable, from a medical professional with appropriate expertise). The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is requested to review the record and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed cervical spine and bilateral shoulder disorders were caused or aggravated (permanently worsened beyond normal progression) by the service-connected lumbar disc disease, L4-5, post-fusion [If any diagnosed cervical spine and bilateral shoulder disorders are found to have been aggravated by the service-connected lumbar disc disease, L4-5, post-fusion, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Then, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed sinusitis. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed sinusitis is related to his military service, to include whether it is caused or aggravated (permanently worsened beyond normal progression) by the service-connected tinnitus [If any sinusitis is found to have been aggravated by the service-connected tinnitus, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 4. Ensure that the addendum and examination reports comply with (answer the questions posed in) this Remand. If any report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 5. Then, readjudicate the issues remaining on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs