Citation Nr: 1800819 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 08-23 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a right elbow disability. 2. Entitlement to service connection for a left elbow disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Griffin, Counsel INTRODUCTION The Veteran had active service from December 1983 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 decision of the Huntington, West Virginia, Regional Office. In January 2009, the Veteran testified in connection with the present appeal at his local RO before a Decision Review Officer and a transcript of the proceeding is of record. In August 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. In October 2009, July 2012, May 2014, and December 2015 the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development and there has been substantial, if not full, compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the evidence sufficiently relates his currently diagnosed right elbow disability to his period of service. 2. Resolving all reasonable doubt in the Veteran's favor, the evidence sufficiently relates his currently diagnosed left elbow disability to his period of service. CONCLUSION OF LAW 1. The criteria for service connection for right elbow degenerative arthritis are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385 (2016). 2. The criteria for service connection for left elbow degenerative arthritis are met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.385 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants the service connection claim for bilateral elbow disability, which represents a complete grant of the benefits sought on appeal, and a discussion of VA's duty to notify and assist is unnecessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 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 at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran seeks to establish service connection for right and left elbow disabilities. Specifically, the Veteran maintains that his current elbow symptomatology and disability are related to in-service traumas caused when landing from multiple parachute jumps. The Board finds the Veteran's statement regarding bilateral elbow symptomatology, including onset, and of in-service trauma to be competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). He has provided a generally consistent account as to these matters, including his usage of over-the-counter medications to manage relevant symptomatology, which the evidence of record tends to confirm. Particularly significant is the notation that the Veteran was in receipt of the Parachutist Badge, tending to corroborate his account of multiple in-service parachute jumps and landings. Additionally, the June 2008 statement of the Veteran's spouse provides reports her contemporaneous observation of the Veteran's elbow symptomatology in- and since-service, providing an independent account that is mostly consistent with the Veteran's numerous statements. The May 2008 statement of the Veteran's lifelong friend also tends to provide evidence consistent with the Veteran's account. Evaluating the Veteran's account of in-service elbow traumas and symptomatology with all other evidence of record, the Board finds his lay account as to these matters to be competent, credible, and highly probative. Thus, in the present circumstance, the Board concludes that the Veteran sustained multiple in-service traumas and experienced relevant symptomatology on a regular and recurrent basis since separation. The July 2012 VA examination opinion, and respective July 2014 and February 2016 VA supplemental opinions, provide opinions tending to weigh against the Veteran's claims, however, the etiological opinions are of little, if any probative value. Significantly, the examination opinions improperly rely largely, if not entirely, on medical evidence or the lack thereof and do not provide adequate consideration to the Veteran's competent and credible account of in-service traumas and corresponding symptomatology. Inaccurate or incomplete reasoning and analysis only support the respective examination opinions because there is competent and credible evidence to the contrary. See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (affirming the holding in Reonal v. Brown, 5 Vet. App. 458 (1993), that a medical opinion based on an inaccurate factual premise is of no probative value). Thus, the July 2012 VA examination opinion, and respective July 2014 and February 2016 VA supplemental opinions, is not probative as to the question at hand. Although there is no competent medical evidence in support of the Veteran's respective elbow service connection claims, there is competent evidence of in-service trauma. See Fountain v. McDonald, 27 Vet. App. 258 (2015). Further, the Veteran provides a competent, credible, and highly probative account of experiencing the onset of elbow symptomatology in-service (e.g., pain, stiffness, etc.) and on a regular, recurrent, and increasing basis since separation. See Jandreau, 492 F.3d at 1376-77. In sum, the evidence of record sufficiently establishes the Veteran sustained right and left elbow traumas. Resolving all reasonable doubt in his favor, the in- and post-service symptomatology described by the Veteran supports the diagnosed post-service right and elbow disabilities. Further inquiry could be undertaken with a view towards development of the claim to obtain an additional medical opinion. However, under the benefit of the doubt rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue and in this instance there is only evidence tending to support the claim. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207(1994). Thus, resolving all reasonable doubt in the Veteran's favor, service connection for a right elbow disability and a left elbow disability is warranted. ORDER Service connection for right elbow degenerative arthritis is granted. Service connection for left elbow degenerative arthritis is granted. ______________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs