Citation Nr: 1752769 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 09-00 008A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a right elbow condition, claimed as a pinched nerve. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in relevant part, denied entitlement to service connection for pinched nerves in the bilateral elbows. The Veteran submitted a notice of disagreement (NOD) later in January 2013. A statement of the case (SOC) was issued in March 2013. In April 2013, the Veteran submitted a timely substantive appeal. In June 2014, the Veteran was afforded a travel Board hearing before the undersigned Veterans Law Judge at the local RO. A copy of the hearing transcript has been associated with the claims file. In April 2017, the Board denied the left elbow service connection claim and remanded the right elbow service connection claim to the agency of original jurisdiction (AOJ) for additional development. An October 2017 supplemental statement of the case continued the denial of the right elbow claim. The Board notes that the Veteran has also submitted hearing requests on his claims for entitlement to service connection for TBI, sleep apnea, and depression, as well as entitlement to an earlier effective date for service connection for right wrist CTS. The Veteran filed timely NODs in June 2014, April 2015, and December 2016. Thereafter, SOCs were issued in January 2015, September 2015, and January 2017. The Veteran submitted substantive appeals in January 2015, October 2015, and January 2017, each including a request to appear at a Board hearing via video conference which have been acknowledged by the RO. In light of the outstanding hearing requests, adjudication is not appropriate at this time. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. FINDING OF FACT The most probative evidence of record shows that the Veteran's right elbow condition was not manifested during or as a result of active military service. CONCLUSION OF LAW The criteria for service connection for a right elbow condition are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met by way of a September 2012 letter to the Veteran, sent prior to the issuance of the January 2013 rating decision on appeal. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the records relevant to the matter decided herein. The pertinent evidence associated with the claims consists of the service treatment records (STRs), post-service private and VA treatment records, and the Veteran's statements. Here, VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist in obtaining the relevant records. The Board also finds there has been substantial compliance with the April 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Thus, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (where the condition is simple, for example, a broken leg, but not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Right elbow condition The Veteran contends that service connection is warranted for a pinched nerve in his right elbow. Specifically, at the June 2014 hearing, he described an incident in service during which his right arm was pinned underneath a jet engine. As an initial matter, the Board notes that the Veteran has a current diagnosis of right ulnar neuropathy (cubital tunnel syndrome), noted in April 2016 private treatment records and documented in the May 2017 VA examination report. The Veteran's right arm was found to be clinically normal upon separation from the service in 1989. However, STRs note a lump on the right elbow in August 1970. The Veteran has also testified to an incident in service affecting his right elbow. Affording the Veteran the benefit of the doubt, the treatment for the right elbow combined with his competent and credible testimony regarding an injury in service fulfills the in-service incident element. Thus, the inquiry turns to whether a nexus exists between the currently diagnosed right elbow condition and the in-service incident. In this regard, the Board finds that the Veteran is not competent as to the etiology of his right elbow condition. He is competent to attest to factual matters of which he has first-hand knowledge, such as experiencing pain in his elbow during and after service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to opine on the complex medical question of etiology of ulnar neuropathy. See Woehlaert, v. Nicholson, 21 Vet. App. 456 (2007); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The question of causation of a condition such as neuropathy involves medical subjects concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In a case such as this, where the condition has multiple potential etiologies, lay testimony is insufficient to establish causation. As such, the Board assigns no probative value to the Veteran's assertions regarding etiology. Instead, the Board finds the objective medical evidence, including the May 2017 VA examination report, to be highly probative as to the issue of a nexus. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and the medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for the medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the May 2017 VA examiner reviewed the claims file and conducted a physical examination of the Veteran. Ultimately, she opined that it was less likely than not that the right elbow condition was incurred in or caused by service. She noted that the first medical documentation available showing a pinched nerve at the elbow came in 2016 and that the Veteran reported right elbow pain for only a few months prior. Taking all of the available evidence into consideration, she found no nexus between the Veteran's service and the current right elbow condition. The Board notes the Veteran's testimony in June 2014 that he began to notice right elbow pain approximately 10 years after service. As discussed above, the first diagnosis related to his right elbow was made in 2016. While not dispositive, the passage of many years between discharge from active service and the continuity of symptomatology or medical documentation of a disability are factors that tend to weigh against a claim for service connection. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991); see also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Notably, there is no medical evidence of record which provides a positive nexus opinion connecting the condition on appeal to the Veteran's service. Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran's favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). Accordingly, the most probative evidence of record does not reflect a nexus between any in-service injury and the Veteran's current right elbow disorder. The Board also notes that the Veteran's right elbow condition cannot be service connected on a presumptive basis as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. The presumption for chronic diseases, including organic diseases of the nervous system, deals with three options: 1) a chronic diagnosis in service linked to the same chronic diagnosis after service; 2) a chronic diagnosis or characteristic manifestations of the disease within a year of separation; or 3) continuity of symptomatology. Here, there was no diagnosis of right elbow neuropathy in service and the Veteran's separation examination and report of medical history are silent to any relevant issues. Additionally, the record does not contain a diagnosis of right elbow neuropathy or characteristic manifestations of the disease within a year of separation or evidence weighing in favor of continuity of symptomatology. To the extent the Veteran has implied entitlement due to a chronic disease, such a contention would be inconsistent with the competent and probative evidence of record, including his statements that the condition first started 10 years after service. Accordingly, service connection is not warranted on a presumptive basis. Based upon the evidence of record, the Board concludes that entitlement to service connection for a right elbow condition cannot be granted. The competent, probative evidence does not reflect a nexus between the in-service incidents and the Veteran's currently diagnosed right elbow neuropathy. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for a pinched nerve in the right elbow is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs