Citation Nr: 1800547 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-09 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for right shoulder condition. 2. Entitlement to service connection for left shoulder osteoarthritis acromioclavicular joint (claimed as left shoulder condition). 3. Entitlement to service connection for degenerative joint disease (DJD), right knee, claimed as right knee condition. 4. Entitlement to service connection for osteoarthritis right elbow, claimed as right arm condition and elbow with bursitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1975 to October 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before a Decision Review Officer (DRO) in an August 2014 hearing. The issues of entitlement to service connection for right shoulder condition, left shoulder osteoarthritis acromioclavicular joint, and DJD, right knee, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence is against a finding that osteoarthritis, right elbow, is related to the Veteran's military service or was manifested to a compensable degree within one year from service. CONCLUSION OF LAW The criteria for service connection for osteoarthritis, right elbow, have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). II. Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and peptic ulcers, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). III. Analysis In this case, the Board acknowledges a current diagnosis of osteoarthritis, right elbow, based on an August 2011 VA examination report. During that examination, the Veteran reported that he could not remember any care for his right elbow during military service. He did not recall a specific injury to his right elbow and noted that he did not have any restrictions to his military duties because of his right elbow condition. The Board has reviewed the service treatment records and finds that other than a deformity noted on the Veteran's right forearm, in October 1975, there have been no complaints, treatment, or diagnosis of any right elbow condition during active service. However, in his August 2014 DRO hearing, the Veteran testified that his right elbow hurt during active service, and had been painful ever since. The remaining question for the Board remains whether there is an etiological relationship, or nexus, between the current disability and service, specifically any in-service treatment. In the August 2011 VA examination report, the VA examiner opined that the Veteran's claimed right elbow arm/elbow bursitis was not related to treatment in service. The examiner noted that there was no in-service treatment for a right elbow condition. The examiner further noted that the Veteran's January 1978 Report of Medical Examination for separation did not reveal any residual right elbow or arm condition. The examiner noted that while the August 2011 examination report revealed essentially tenderness to the lateral elbow, and x-rays showed traumatic arthritis, there was no in-service documentation of trauma to the right elbow. The Board notes that not even the Veteran mentioned a specific injury or event that injured his right elbow. Based on the above analysis, the preponderance of the evidence is against the claim for service connection for osteoarthritis, right elbow, and the claim must be denied. 38 U.S.C. § 5107(b) (2012). The Board further finds that the preponderance of the evidence is against a showing that the Veteran's osteoarthritis, right elbow, manifested to a compensable degree within one year of separation from service, or that the Veteran had a continuous symptomatology of elbow disabilities since separation from service. While the Veteran testified that his elbow had been bothering him ever since active service, post-service right elbow complaints are not shown in the record until 2010, over 30 years after the Veteran's discharge from service. The Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). As a result, service connection is not warranted on a presumptive basis or on the basis of continuous symptomatology of osteoarthritis of the right elbow since service. See 38 C.F.R. §§ 3.307, 3.309 (2017). The Board is aware of the Veteran's lay contentions as to the onset and progress of his right elbow osteoarthritis. The Veteran is certainly competent to observe symptoms relating to his right elbow. However, he has not been shown to possess the medical training or credentials needed to ascertain whether such symptoms equate to a disability or the date of onset of such disability. Specifically, 38 C.F.R. § 4.71a, Diagnostic Code 5003 indicates that arthritis is to be shown by x-ray, signifying that it cannot be diagnosed by a lay individual. As such, the Veteran's lay contentions lack probative value, particularly in comparison to the examination evidence noted above. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the August 2011 VA examination report is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. Id. ORDER Entitlement to service connection for osteoarthritis, right elbow, is denied. REMAND Concerning the claims for right shoulder condition and left shoulder osteoarthritis, acromioclavicular joint, the Board notes that in the April 2011 and October 2014 VA examination reports, the VA examiners acknowledged that the Veteran had numerous complaints in service about his left shoulder. However, when giving the negative nexus opinions, the examiners' rationales were that the claims file contained no post-service complaints or treatment for the Veteran's left shoulder until 2010, when the Veteran filed his claim. Both the April 2011 and October 2014 VA examiners seemed to dismiss the Veteran's August 2014 testimony, of continued left shoulder pain ever since service, without explaining why. As a result, the Board finds the April 2011 and October 2014 VA examination reports to be inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007; see also See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the Board notes that despite giving the Veteran an examination to evaluate his left shoulder in April 2011, no examination or opinion was performed on the Veteran's right shoulder. A new VA examination is necessary to determine what, if any, right shoulder condition the Veteran has, and whether it is etiologically related to active service, and to determine if the Veteran's current left shoulder condition is etiologically related to his shoulder pain during active service. Concerning the claim for DJD, right knee, the Board notes that in the March 2012 VA examination report, the Veteran was diagnosed with DJD. However, the rationale for the negative nexus opinion was that the Veteran did not have DJD. A new VA examination is necessary to reconcile these conflicting diagnoses, to determine what, if any right knee condition the Veteran has, and whether it is etiologically related to active service. Accordingly, the case is REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning the claims on appeal. 2. After the above has been completed, schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any diagnosed conditions concerning his claims for a right shoulder condition, left shoulder osteoarthritis acromioclavicular joint, and DJD right knee. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this review took place should be included in the report. For each diagnosed disability, an opinion must be provided whether such disability is at least as likely as not (a 50 percent or greater probability) caused by or etiologically related to the Veteran's active service. If there are any claimed disabilities for which a current diagnosis cannot be rendered, the examiner should so explain within the context of the record. A complete rationale for each opinion must be provided. 3. After the completion of the above development, and any other development deemed necessary, furnish the Veteran and his representative with a supplemental statement of the case and give them an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs