Citation Nr: 1340221 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 07-39 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder. 2. Entitlement to service connection for a bilateral elbow disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from December 1974 to December 1979, from September 2001 to September 2002, and from December 2008 to March 2009. The most recent period of active service comprises 92 consecutive days of active military service. A DD-214 does not indicate why the Veteran was discharged after only 92 days, but significantly, it does not indicate that this service was active duty for training. The document clearly indicates that the Veteran was serving in support of Operation Noble Eagle/Enduring Freedom. This 92-day period of active military service is of sufficient length to afford the Veteran all presumptions for service connection for chronic diseases available at 38 C.F.R. § 3.307 (a) (1). In addition to these three active military service periods, the Veteran also served with Reserve components at various times from 1980 to 2008. This matter arises to the Board of Veterans' Appeals (Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In March 2012, the Board remanded the case for development. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Competent private medical evidence confirms that bilateral elbow and knee pains arose during the Veteran's second period of active military service. 2. Competent medical and lay evidence of continuous symptoms of bilateral elbow and knee pains since the second period of active service has been submitted. 3. Competent diagnoses of bilateral elbow epicondylitis, bilateral elbow bursitis, and bilateral elbow degenerative changes have been submitted during the appeal period. 4. Competent diagnoses of bilateral knee degenerative joint disease and bilateral chondromalacia patella have been submitted during the appeal period. 5. The medical evidence of record does not satisfactorily dissociate any current elbow or knee disorder from the rigors of active military service. CONCLUSIONS OF LAW 1. Bilateral elbow bursitis, epicondylitis, and degenerative arthritis were incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. Degenerative joint disease of the knees and bilateral chondromalacia patella were incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As set forth at 38 U.S.C.A. §§ 5103A, 5107 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), and 3.159 (2013), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, only a diagnosis offered by a medical professional is "competent" evidence of a diagnosis; however, when a condition may be identified by its unique and readily identifiable features and capable of lay observation, the lay diagnosis of the disorder is also competent. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). This is especially true where the lay diagnosis supports a later diagnosis offered by a medical professional. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The phrase "chronic disease" refers to those diseases listed under 38 U.S.C.A. § 1101 (3) and 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. The evidentiary requirements for service connection afforded combat Veterans under 38 U.S.C.A. § 1154(b) are relaxed, but, because the Veteran was not in combat, he will not be afforded this consideration. Although his DD-214 mentions that he has earned a Combat Readiness Medal and his representative asserted combat status during a March 2004 hearing (on issues unrelated to this appeal) these do not establish that he is a combat veteran. The Board will focus on the first two periods of active service (December 1974 to December 1979 and September 2001 to September 2002) because the Veteran submitted his service connection claims prior to his final period of active service and he has not alleged that his final period of active service or any period of Reserve component service has caused or aggravated his claimed disabilities. The STRs for the earlier two periods of active military service are silent for evidence of treatment for or a specific complaint of a claimed disability, except for one instance. A July 2002 post-deployment medical assessment and report of medical history questionnaire reflects that the Veteran checked "yes" to a history of painful joints, tendons, and ligaments. Unfortunately, the examiner provided no further information on this. Although the STRs dated prior to the Veteran's return to active military service in December 2008 are essentially silent for claimed disorders, VA and private records during that time frame tend to show the claimed disabilities. The Veteran requested service connection for arthritis, bursitis, and joint pain in December 2004. He reported that these arose in July 2002. He supported the claim with private medical reports that indicate treatment for joint pains in 2002 and 2003. A March 2003 report notes left elbow pain and left elbow bursitis of the olecrannon. Fluid was drained from the left elbow in March 2003. A November 2003 private report notes right elbow pain and bilateral knee pains. In January 2005, the Veteran reported to VA that his elbow and knee pains began during active service at Grissom Air Reserve Base, Indiana. The Veteran underwent a VA general medical compensation examination in July 2006. The examiner reviewed the medical history, but mis-reported pertinent facts. First, the examiner noted that the Veteran was 61 years of age, whereas his date-of-birth reflects that he was 51 years of age at the time of the examination. Because a later examiner found some joint pains to be age-related, this error could be relevant. Next, the July 2006 VA examiner reported that right elbow pains began only two months earlier, whereas, the claims files reflect that the Veteran reported that these pains began four years earlier, in July 2002. Third, the VA examiner noted that X-rays of the elbows were normal; however, contrary to the examiner's remarks, the X-rays showed early degenerative changes of the elbows. The X-ray impression was no acute [emphasis added] elbow abnormality. The July 2006 X-rays of the knees were normal. The examiner concluded that the bilateral knee and bilateral elbow pains were likely of an inflammatory etiology and were likely all related. No further etiology opinion was offered. The RO denied service connection for the elbows and knees in August 2006 and the Veteran submitted a notice of disagreement in February 2007, along with additional private medical evidence. The private medical evidence includes an October 2004 letter from E. Tuchscherer, M.D. The physician reported having treated the Veteran's elbows in February 2003 and currently providing treatment for the elbows and the knees. The physician reported, "...I can state that his discomforts have occurred since being reinstated to active duty." The physician then reiterated, "I did state that I could concur that his discomforts have started since his reinstatement to active duty, and I have continued to follow and treat him for this since that time." The private medical evidence includes a December 2002 report from C. Marler (no credential supplied). C. Marler reported having treated the Veteran for a complaint of bilateral elbow and knee pains that had existed for several months. C. Marler observed bilateral joint swelling of the elbows and knees with "crepitus of knee," and offered two diagnoses: that of degenerative joint disease of the knees, bilateral; and, osteoarthrosis of the upper arm. In December 2008, the Veteran testified before an RO hearing officer that he first had elbow and knee pains in 2001 and 2002, while on active duty. He testified that while still in service in 2002 fluid was drained from the left elbow and he received two diagnoses: arthritis and bursitis. A DD-214 reflects that the Veteran re-entered active military service in December 2008, only 11 days after the RO hearing. Following his third period of active military service, the Veteran underwent a VA general medical compensation examination in July 2009. The examiner noted painful and tender elbows and knees. The diagnosis was lateral epicondylitis of the right elbow and bilateral patellofemoral syndrome of the knees. No left elbow diagnosis was offered. The examiner noted (erroneously), that the date of onset of elbow and knee pains was in 2006. In March 2012, the Board remanded the case for development. The Board requested that both elbows and both knees be re-examined. An April 2012 VA compensation examination report reflects that both elbows were tender. The examiner noted that arthritis of either elbow had not been documented by X-rays. The diagnoses were lateral epicondylitis of both elbows and bursitis of the right elbow. The examiner concluded that the elbow condition was unlikely related to active service. The rationale was that there was inservice treatment for bursitis, from which the Veteran had fully recovered. The current bilateral elbow condition was consistent with tennis elbow, which is a mild epicondylitis, and is caused by repetitive motion of the arms and wrists. The examiner then reiterated that the Veteran was an aircraft mechanic in his civilian occupation, in his Reserve component service, and in his active service military occupation. The examiner dissociated epicondylitis from bursitis, finding them to be two separate disabilities, "even if the mechanism of injury is similar." The April 2012 VA diagnoses of lateral epicondylitis of both elbows and bursitis of do not represent the only elbow diagnoses that were offered during the pendency of this lengthy (over 8-year) appeal period. The Veteran seeks service connection for all the symptoms, regardless of the diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claimant seeks service connection for the symptoms regardless of how those symptoms are diagnosed or labeled). Moreover, although right elbow bursitis has resolved, bursitis was shown earlier in the appeal period. Where a disability is shown at time of filing the claim, but later resolvs, a "current disability" has been shown, and the claim remains viable. McClain v. Nicholson, 21 Vet. App. 319 (2007). Thus, the elbow disabilities shown during the appeal period are (1) July 2006 X-ray evidence of early degenerative changes of both elbows; (2) December 2006 diagnosis of osteoarthrosis of the upper arm; (3) July 2009 diagnosis of lateral epicondylitis of the right elbow; and (4) April 2012 evidence of lateral epicondylitis of both elbows and previous bursitis of the right elbow. In December 2006, bilateral elbow swelling and pain was shown. Thus, bursitis appears to have been a "current disability" during the appeal period. The osteoarthrosis of the upper arm mentioned in December 2006 does not appear to include any symptom not already accounted for in the other diagnoses and therefore will not be addressed further. This leaves bilateral elbow bursitis, bilateral epicondylitis, and degenerative changes of both elbows as having been shown during the appeal period. The medical evidence tending to link bilateral elbow bursitis to active service includes the December 2002 report from C. Marler, who corroborated the Veteran's report of relevant symptoms dating back to active service in 2002. Also tending to link this to active service is the October 2004 letter from E. Tuchscherer, M.D. who confirmed that the elbow disabilities arose during active service. Finally, the April 2012 VA compensation examiner agreed that bursitis was treated during active service but had since resolved. Because bilateral elbow swelling was shown in December 2006, bilateral elbow bursitis was a current disability during at least part of the appeal period. The Veteran's lay testimony also tends to link bilateral elbow bursitis to active service. His testimony must be accorded weight in the matter because he is competent to report the onset of his symptoms. 38 C.F.R. § 3.159; Jandreau, 492 F.3d at 1377. Turning to epicondylitis of the elbows, the April 2012 VA etiology opinion, which is unclear, suggests that this is to be attributed to repetitive motions of the arms and wrists as an aircraft mechanic. The April 2012 VA examiner noted that the Veteran's military occupation would include repetitive arm and wrist activity. Thus, the opinion offers no basis upon which to dissociate bilateral epicondylitis from active service. The benefit of the doubt doctrine, set forth at 38 U.S.C. 5701, must be applied here. Finally, degenerative changes of the elbows are mentioned on an X-ray report of July 2006. Inasmuch as the X-rays represent evidence of degenerative arthritis, and because arthritis is a listed chronic disease (see 38 U.S.C.A. § 1101 (3); 38 C.F.R. § 3.309 (a)), the Veteran's testimony of symptoms dating to active service, and the medical corroboration that supports such continuity of symptomatology, takes on special significance. Where evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed. Walker, 708 F.3d, at 1336. In this case, there is proven continuity of symptomatology between active service and the July 2006 X-ray diagnosis of early degenerative changes of the elbows. This evidence is sufficient to grant service connection for bilateral elbow degenerative arthritis. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. Service connection for bilateral elbow bursitis, bilateral elbow epicondylitis, and bilateral elbow degenerative arthritis will be granted. Turning to service connection for knee disorders, the medical evidence indicates that several knee-related diagnoses have been offered during the appeal period. In December 2002, C. Marler offered a diagnosis of degenerative joint disease of the knees. In July 2009, a VA examiner offered a diagnosis of bilateral patellofemoral syndrome. In April 2012, a VA examiner found degenerative arthritis of both knees on X-ray and also found bilateral chondromalacia patella. Indeed, September 2010 X-rays showed narrowing of the medial femuro-tibial compartments and also showed loose bodies in the right knee joint, which indicated osteoarthritic changes. The April 2012 VA examining physician concluded that it is unlikely that chondromalacia patella is related to active service because it is associated with natural aging. Also, because no knee trauma was shown during active service, the examiner felt it necessary to dissociate chondromalacia patella from active service. As mentioned above, continuity of symptomatology establishes the link, or nexus, between a chronic disease and service by serving as the evidentiary tool to confirm the existence of the chronic disease in service or in a presumptive period during which existence in service is presumed. Walker, 708 F.3d, at 1336. In this case, there is continuity of symptomatology between active service and the later VA X-ray diagnosis of osteoarthritis of the knees. This evidence is sufficient to grant service connection for bilateral degenerative joint disease of the knees. Turning to bilateral chondromalacia patella, the April 2012 VA examiner dissociated this from knee pains that began during active service on the basis that chondromalacia patella is due to natural aging. The Board concludes that this negative nexus opinion is unsatisfactory for the following reasons: First, because the Veteran's three periods of active service span a non-continuous period of 35 years, some natural aging occurred during active service. Thus, the natural aging theory of etiology does not persuasively argue against service connection and quite possibly could actually argue for service connection, as some aging necessarily took place while serving with the Air Force. This is so because it is not necessary that a disease be caused by something in service but only that the disease "was incurred coincident with service." 38 C.F.R. § 3.303(a). Second, the April 2012 VA examiner did not offer a date of onset of chondromalacia patella or otherwise dissociate chondromalacia patella from the knee pains that date back to active service. Third, the April 2012 examiner's rationale includes the fact that knee trauma during active service is not shown. This reasoning is not persuasive because the examiner had previously explained that chondromalacia patella is caused by natural aging. An absence of specific knee trauma during active service would be irrelevant if the condition is caused by natural aging. On the other hand, if knee trauma causes chondromalacia patella, then the rigors of many years of service as a multi-engine aircraft mechanic and crew-chief must be favorably considered as a cause. Resolving any remaining doubt in favor of the Veteran, the Board finds that chondromalacia patella cannot be dissociated from active military service. 38 C.F.R. § 3.102. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 54. Service connection for bilateral degenerative joint disease of the knees and for bilateral chondromalacia patella will therefore be granted. ORDER Service connection for bilateral elbow bursitis, bilateral epicondylitis, and bilateral elbow degenerative arthritis is granted. Service connection for bilateral degenerative joint disease of the knees and bilateral chondromalacia patella is granted. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs