Citation Nr: 1419085 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 12-02 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a left elbow disability. 2. Entitlement to service connection for bilateral knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Appellant served as a member of the Army National Guard of Michigan from January 1983 to April 2004 with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Appellant testified before the undersigned Veterans Law Judge at a September 2012 videoconference hearing, and a transcript of this hearing is of record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Appellant's appeal. A review of the Virtual VA claims file does not reveal any additional evidence pertinent to the present appeal. In October 2012, the Appellant submitted additional evidence in support of his appeal along with a signed waiver of RO consideration of evidence. The Board accepts this evidence for inclusion in the record. See 38 C.F.R. § 20.1304 (2013). The issue of entitlement to service connection for bilateral knee disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence reflects that the Appellant does not have a current left elbow disability. CONCLUSION OF LAW The criteria to establish service connection for a left elbow disability have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). ) The VA satisfied its duty to notify when it issued a July 2009 letter, prior to the rating decision, informing the Appellant of all five elements of service connection, gave examples of the types of evidence the Appellant could submit in support of his claim, and provided notice of the Appellant's and VA's respective responsibilities for obtaining such evidence. The correspondence also informed him of how disability ratings and effective dates are assigned, if service connection was to be granted. See Dingess v. Nicholson, supra. As noted above, the Appellant testified at a Board hearing in September 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2013). Here, during the hearing, the VLJ elicited testimony to support the Appellant's claim and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. Moreover, the Appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Board concludes that the duty to assist has been satisfied. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Appellant's service treatment records, VA examination report, private treatment records and lay statements are in the file. The Appellant has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim. In March 2010, the Appellant was afforded a VA examination to determine the nature and etiology of his left elbow disability. The VA examination is adequate, as it is predicated on a review of the claims file, an interview of the Appellant, and examination findings supported by a complete rationale for the opinions stated. Id.; see 38 U.S.C.A. § 3.159(c)(4). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In some cases, service connection may be established by showing evidence of a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized 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 any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Only "veterans" are entitled to VA compensation. 38 U.S.C.A. § 1131. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.1(d) (2013). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty; or any period of INACDUTRA during which the individual concerned was disabled or died from injury, but not disease, incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a),(d). The fact that a claimant has established status as a "veteran" for other periods of service (active duty, etc.) does not obviate the need to establish that he is also a "veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Reserve and National Guard service generally means ACDUTRA and INACDUTRA, although in more recent times it also has come to include active duty. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505 (West 2002 & Supp. 2013). 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Certain presumptions that apply to periods of active duty are inapplicable to periods of ACDUTRA and INACDUTRA, such as the presumptive incurrence or aggravation of conditions that are considered chronic, per se, if initially manifested to a compensable degree (meaning to at least 10-percent disabling) within the initial post-service year, or regarding the presumptions of soundness and aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d 1313, at 1316; Jandreau, 492 F.3d 1372, at 1376-77. The Appellant asserts that his current left elbow disability was caused as a result of a July 13, 1991 parachute landing, during a period of ACDUTRA, in which he overshot the runway and landed on concrete injuring his left elbow and both knees. See May 2010 statement. The Board notes that the evidence of record includes a statement of the Appellant's retirement points for that period of service, which reflects that he earned 15 points for active duty for training during the January 1991 to January 1992 period of service and a parachute jump record shows that he did perform a jump on the date of his claimed injury. In addition, a July 1991 service treatment record documents that the Appellant was treated for a left elbow injury sustained following a parachute landing. Although the Board finds that the Appellant has established that he sustained a contusion to the left elbow during a qualifying period of service, the evidence of record does not show that the Appellant has a current left elbow disability. As previously stated, a July 1991 service treatment record shows that the Appellant sought treatment for a bruised left elbow following a parachute landing. The Appellant was diagnosed with a left elbow contusion. Subsequent service treatment records and medical examinations do not reflect any further complaints, treatment or diagnosis for any left elbow condition. See November 1995 service treatment record, May 1999 examination and July 2002 examination. At a March 2010 VA examination, the Appellant reported his current symptoms of aching in his left elbow, which he attributed to his in-service parachute landing. At the time of his injury, he said that he experienced pain and stiffness in his elbow. Upon objective evaluation, the VA examiner found that the Appellant's left elbow was normal with no deformity, swelling or tenderness. The Appellant's range of motion was full. There was also no additional limitation of motion due to pain, fatigue, weakness, or lack of endurance on repetitive motion. X-rays of the left elbow revealed normal findings and no evidence of any residuals or trauma. Based on negative clinical evidence upon examination, normal x-rays and no objective evidence of residuals of any injuries, the examiner concluded that the Appellant did not have a left elbow disability. During his September 2012 Board hearing, the Appellant testified that he had a numbing and stinging pain in his left elbow when he slept and that he used a heating pad to relieve his symptoms. He also stated that he did not seek treatment in-service for his left elbow disability, however, he did seek treatment from his private physicians starting in 2005. Although the Appellant asserted that he received private treatment for complaints about his left elbow, and he confirmed that he provided all of his relevant private treatment records for his left elbow, there are no private treatment records in the record that reflect any complaints, treatment, or diagnosis for any left elbow condition. The Board finds that the March 2010 VA examination is the most probative evidence as to whether the Appellant has a current left elbow disability. The VA examiner found no evidence of trauma or evidence that his left elbow in-service injury had any residual effects. In fact, the examiner found that the Appellant's objective clinical examination results, including his x-rays, were all normal. The Board observes that the Appellant contends that his current left elbow symptoms of aching, stinging and numbness were caused by his in-service parachute injury. However, the Appellant also stated that he never sought treatment for his left elbow, following his initial reported injury, until 2005, after his separation. Furthermore, there are no records documenting any complaints, treatment or diagnoses for his left elbow. The Board acknowledges that the Appellant is competent to describe the nature and extent of his left elbow symptoms. See Layno, 6 Vet. App. 465, at 470. To the extent the Appellant argues that he experiences pain and discomfort of his left elbow, the Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). The Appellant does not have the appropriate medical knowledge or training to render a diagnosis as to whether his symptoms are the result of an underlying condition. Therefore, the Appellant's assertion does not constitute competent medical evidence that his left elbow symptoms are related to an identifiable medical diagnosis. Given the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for a left elbow disability must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a left elbow disability is denied. REMAND Unfortunately, a remand is required in this case for the issue remaining on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Appellant's claim so that the Appellant is afforded every possible consideration. The Appellant contends that he injured both knees as a result of a parachute landing onto concrete while in service and currently he experiences bilateral knee pain with symptoms of clicking, popping and locking. A July 1991 service treatment record documents his treatment following the parachute incident, however, there was no record of complaints or treatment for any knee injury. A November 1994 service treatment record reflects that the Appellant sought treatment for bilateral knee pain as a result of a 12-mile road march. A May 1999 periodic examination report shows that the Appellant reported having intermittent pain in his left knee for the last three to four years, which was aggravated by running. At a July 2002 periodic examination, the examiner noted mild crepitus in his left knee and a diagnosis of left knee chondromalacia. Private treatment records from July 2000 to September 2012 document the Appellant's complaints of bilateral knee pain (initially just complaints of left knee pain). The private treatment records also reflect several findings of crepitus in the Appellant's knees and diagnoses of bilateral knee osteoarthritis. See June 2002, August 2004, March 2005, December 2006, January 2008 and September 2012 private treatment records. At the Appellant's March 2010 VA examination, the examiner concluded that the Appellant's normal clinical results, including range of motion testing and x-rays, revealed that the Appellant did not have current bilateral knee disabilities. However, in providing the opinion, the VA examiner did not address all of the Appellant's pertinent treatment records. The VA examiner cited only to the Appellant's July 1991 service treatment record and to his July 2000 and March 2005 private treatment records. The Board finds that the VA examiner's opinion was inadequate as it did not consider all of the Appellant's relevant treatment records for his bilateral knee disabilities. Moreover, as the Appellant's private treatment records reflect diagnoses of current bilateral knee disabilities, the VA examiner should reconcile those findings. On remand, the Appellant should be afforded a new VA examination and the VA examiner should consider and address these relevant treatment records in assessing whether the Appellant has current bilateral knee disabilities and whether those disabilities are related to any incident of service. Finally, the record also reflects an October 2012 positive opinion, provided by the Appellant's private treating physician, which concluded that it was likely that the Appellant's bilateral knee osteoarthritis was "aggravated" by the 1991 parachute jump. On remand, the VA examiner should consider and address this private opinion. Accordingly, the case is REMANDED for the following action: 1. Verify with the service department, including the Defense Finance and Accounting Services (DFAS) if necessary, the exact dates of all periods of the Appellant's, ACDUTRA, and INACDUTRA especially between 1991 and 2004. If further Federal records are needed, make as many requests as are necessary to obtain them, pursuant to 38 C.F.R. § 3.159(c)(2) (2013). The Veteran should be asked to submit any records in his possession that pertain to such periods of service. 2. Once the Appellant's exact periods of ACDUTRA and INACDUTRA have been verified and noted, the AOJ should schedule the Appellant for a new examination, with a new examiner if possible, to determine the nature and likely etiology of any current bilateral knee disabilities. This remand and the entire claims file must be reviewed by the examiner in conjunction with the examination. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. After a review of the record on appeal, the examiner is asked to respond to the following: a. Is it at least as likely as not that the Appellant has current bilateral knee disabilities that were incurred in or aggravated by a qualifying period of ACDUTRA and/or INACDUTRA, to include the Appellant's lay statements regarding his reported injury to his knees as a result of the July 1991 parachute landing? In providing the requested opinion, the examiner should consider the November 1994 service treatment record that documents bilateral knee pain during a 12-mile road march. The examiner should also consider all of the Appellant's service treatment records and private treatment records that document his various complaints, treatment, and diagnoses for his bilateral knee disabilities. A complete rationale with citation to relevant evidence found in the claims file must be provided for the opinion offered. 2. When the above development has been completed, the AOJ should readjudicate the claim. If the benefits sought on appeal remain denied, the Appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence received, and all applicable laws and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The Appellant has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs