Citation Nr: 1509105 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 12-28 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left elbow disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from September 1967 to April 1970. His awards and decorations include the Combat Infantryman Badge (CIB). This matter comes to the Board of Veterans' Appeal (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2014. A transcript of that proceeding is associated with the Veterans' Benefits Management System (VBMS) file. The Board held the record open for 30 days following the hearing, but no additional evidence has been received. This appeal was processed using the Virtual VA paperless claims processing system and VBMS. Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDING OF FACT The Veteran sustained a left elbow injury in service, but his current left elbow disorder did not manifest in service and is not otherwise related to his military service, to include the injury therein. CONCLUSION OF LAW A left elbow disorder was not incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notice letter in February 2010, which was prior to the initial decision on the claim in July 2010. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met. Moreover, the requirements with respect to the content of the notice were met in this case. In the February 2010 letter, the RO notified the Veteran of the evidence necessary to substantiate a claim for service connection and informed him of the division of responsibilities in obtaining the evidence to support his claim. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified, relevant, and available post-service medical records are in the claims file. The Veteran and his representative have not identified any other outstanding evidence that is relevant to the case. In addition, the Veteran was afforded a VA examination in July 2011 to determine the nature and etiology of his left elbow disorder. The VA examiner reviewed the claims file, considered the Veteran's reported medical history, conducted an appropriate examination, reported relevant findings, and provided a medical opinion with rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Moreover, as previously noted, the Veteran was also provided the opportunity to testify at a hearing before the Board in December 2014. During that hearing, the undersigned Veterans Law Judge clearly set forth the issue to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate. Upon learning that the Veteran's VA doctor may be able provide an opinion to support the claim, the undersigned Veterans Law Judge held the record open for 30 days to allow the Veteran and his representative additional time to submit a medical opinion. (Tr., page 15-16). The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate the claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There has been no allegation otherwise. For these reasons, the Board finds that the VA's duties to notify and assist have been satisfied. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The disorder at issue (diagnosed as left elbow olecranon spur with bursitis) is not considered a chronic disease as enumerated for VA compensation purposes. As such, the provisions for continuity of symptomatology after discharge are not for application in this case. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In cases where a veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat veteran by permitting the use, under certain circumstances, of lay evidence. If the veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). That section 1154(b) establishes an event and injury during service does not end the matter. The provision does not mean that a grant of service connection is presumed for veterans who were injured in combat. Section 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disability etiologically to the current disorder. Caluza v. Brown, 7 Vet. App. 498, 507 (1995); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996); Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007). Section 1154(b) does not establish entitlement to a grant of service connection for a combat veteran; rather, it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Even when the section 1154(b) combat presumptions apply, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty." Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a left elbow disorder. The Veteran has contended that he injured his left elbow in Vietnam when he was in a jeep that flipped during an ambush. Tr., page 6-7. He has asserted that his in-service injury caused his current left elbow disorder and that the disorder has been present since service. The evidence of record reflects that the Veteran has a current diagnosis of a left elbow olecranon spur with mild bursitis. Thus, the Veteran has a current disability. The Veteran's service treatment records are negative for any complaints, treatment, and diagnoses related to a left elbow disorder. In fact, the April 1970 separation examination found his upper extremities to be normal. The first indication of a left elbow problem in the medical record was in 2006, which was more than 35 years after service. The passage of many years between discharge from active service and medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed Cir. 2000). The Board does acknowledge the Veteran's assertion in his October 2012 VA Form 9 that he did not report any injuries or conditions upon separation to avoid a delay in going home. He also testified that he has experienced left elbow problems since service. Tr., page 10, 12. In addition, the Veteran claimed that his discharge examination was inadequate in that he was never examined by a doctor or nurse. Tr., page 10-11. After a review of the record, the Board concludes that these assertions made by the Veteran are competent, but not credible. His statements have been inconsistent. The Board notes that, although his April 1970 Report of Medical History shows that he marked "no" for the choice of a painful or trick shoulder or elbow, the Veteran did report that he had experienced recent gain or loss of weight. Thus, he did report at least one condition, which is contrary to his October 2012 statement that he did not report any conditions at the time of his discharge examination. The Veteran also told the July 2011 VA examiner that he did not experience any left elbow problems until the 1980's, which contradicts his testimony that he has had left elbow problems since service. Moreover, even though the Veteran questioned the validity of the discharge examination, there is no evidence in the service treatment records to suggest that the discharge examination was flawed or should otherwise be considered invalid. These discrepancies weigh against the credibility of any current assertions of continuity of left elbow problems since service. Additionally, as noted above, neither a left elbow olecranon spur nor bursitis is considered a chronic disease under 38 C.F.R. § 3.303 and, as a result, the Veteran cannot be granted service connection based upon a showing of continuity of symptomatology alone. See Walker v. Shinseki, 708 F.3d at 1337. Nevertheless, as noted above, the Veteran's awards and decorations include the Combat Infantryman Badge. His DD214 also lists his military occupational specialty (MOS) as a light weapons infantryman. Therefore, there is sufficient evidence showing that the Veteran engaged in combat with the enemy during his military service. See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008). The Board also finds that the Veteran's lay account of sustaining an injury in a jeep while serving in Vietnam is consistent with his combat service. Thus, there is competent and credible lay evidence of incurrence of a left elbow injury in service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). As such, the remaining question is whether the Veteran's current left elbow disorder is related to his injury in service. The most probative evidence of record does not relate the Veteran's current left elbow disorder to his military service. The July 2011 VA examiner opined that the Veteran's current left elbow disorder is less likely than not related to his military service. In so finding, he noted that VA had conceded that a left elbow injury had occurred during combat, but found that there was no evidence of a chronic condition. He observed that the Veteran's service treatment records and separation examination were negative for any complaints or abnormalities in regards to his left elbow condition. He was unable to find evidence that an acute condition of the elbow had become chronic. He explained that it was more likely that the Veteran's left elbow disorder was related to aging and attrition. The July 2011 VA examiner reviewed the claims file, including the service treatment records and the post-service medical records, as well as the Veteran's own reported history. He offered a rationale for the provided opinion that is supported by the evidence of record. As the examiner based his opinion on clinical data and other rationale, the Board finds this opinion to be highly probative. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board has considered the statements of the Veteran asserting that his current left elbow is related to his injury in service. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, competence must be distinguished from probative weight. To the extent that the Veteran is competent to opine on this matter, the Board finds that the specific, reasoned opinion of the VA examiner is of greater probative weight than the Veteran's more general lay assertions in this regard. The examiner reviewed the claims file and the Veteran's own reported history, and he has training, knowledge, and expertise on which he relied to form his opinion. He also provided a thorough rationale for the conclusion reached. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a left elbow disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a left elbow disorder is not warranted. ORDER Entitlement to service connection for a left elbow disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs