Citation Nr: 1406992 Decision Date: 02/19/14 Archive Date: 03/04/14 DOCKET NO. 11-01 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for right lateral epicondylitis (right elbow). 2. Entitlement to service connection for right shoulder supraspinatus tendinitis. REPRESENTATION Appellant (Veteran) represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to August 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision mailed to the Veteran in August 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board has reviewed the entire record to include the Veteran's virtual VA claims file. No relevant evidence has been included in the claims file since the Statement of the Case (SOC) dated in December 2010. FINDINGS OF FACT 1. A chronic right elbow disorder was not shown in service or for many years thereafter, and is unrelated to service or to a disease or injury of service origin. 2. A right shoulder disorder was not shown in service or for many years thereafter, and is unrelated to service or to a disease or injury of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for a right elbow disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied by way of a letter sent to the Veteran in June 2009, which was submitted prior to the initial RO decision. The letter informed the Veteran of his duty and VA's duty for obtaining evidence. In addition, the letter met the notification requirements set out for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues has been obtained. VA has obtained the Veteran's STRs, and private and VA treatment records relevant to his claims. VA afforded the Veteran the opportunity to give testimony before the Board, which he did in January 2012. Moreover, VA afforded the Veteran a VA compensation examination in July 2009. The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. The Claims for Service Connection The Veteran claims service connection for right elbow and right shoulder disabilities which he claims relate to playing softball during service. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran's STRs document that he complained of right upper extremity pain during service. In mid 1964, the Veteran complained of right elbow and shoulder pain related to playing softball. Moreover, the medical evidence of record establishes that he has current disorders - in the July 2009 VA compensation examination, the examiner diagnosed the Veteran with right lateral epicondylitis, and right shoulder supraspinatus tendinitis. The remaining question is whether the problems diagnosed during the appeal period relate to the in-service complaints in the 1960s. On that question, the preponderance of the evidence is against the Veteran's claims. In the only medical opinion of record to address the Veteran's contentions, the July 2009 VA examiner challenged the Veteran's assertions. After indicating a review of the claims file and an examination of the Veteran, the examiner stated that the Veteran's right elbow and right shoulder disorders were likely not related to service. In support, the examiner noted that the STRs and post-service medical evidence did not indicate a continuation of the elbow and shoulder pain after service. The opinion is of probative value because it is based on the evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Indeed, the evidence documents the lack of a chronic disorder during and following service. The Veteran's August 1966 discharge report of medical examination was negative for a right arm or shoulder disorder, instead noting each area of the body as normal. Medical evidence addressing many of the Veteran's medical problems, dated in the 1970s, 1990s, and early to mid 2000s, is negative for orthopedic or musculoskeletal problems in the right arm or shoulder. And the earliest dated medical evidence of diagnosed right elbow and shoulder disorders is found in the July 2009 VA report, dated nearly 43 years following discharge from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). The evidence does not show a chronic right elbow or shoulder disorder during service, or in the years following service. In assessing the claims in this matter, the Board has considered lay assertions of record from the Veteran. A layperson is competent to attest to symptoms he or she may observe or sense, such as pain and limitation of motion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's statements regarding the etiology of his elbow and shoulder disorders are of limited probative value, and certainly do not preponderate against the VA examiner's opinion. The disorders at issue involve internal pathologies that are beyond the capacity for lay observation. Their etiology and development cannot be determined through observation or by sensation such as feeling. The Veteran is simply not competent to render a medical opinion linking an internal orthopedic problem to softball that he played in service in the mid 1960s. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). He does not have the training and expertise to so. On the essentially medical questions before the Board, the lay evidence is of limited evidentiary value. The record demonstrates that the Veteran has current right elbow and right shoulder disorders. However, the preponderance of the evidence of record demonstrates that he did not incur these disorders during service. 38 C.F.R. § 3.303. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Entitlement to service connection for right lateral epicondylitis (right elbow) is denied. Entitlement to service connection for right shoulder supraspinatus tendinitis is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs