Citation Nr: 1806299 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-08 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral elbow disability. 2. Entitlement to service connection for bilateral shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Air Force from March 2002 to June 2006. This appeal arises before the Board of Veterans' Appeals (Board) from a January 2008 rating decision in which the Department of Veteran Affairs (VA) Houston, Texas, Regional Office (RO) denied entitlement to service connection for a right elbow disability, a left elbow disability, and a bilateral shoulder disability. In April 2013, October 2015, and January 2017, the Board remanded this appeal for further development. The Board notes that in a March 2009 VA Form 9, the Veteran requested a Board hearing. The hearing was scheduled for February 2013, but the Veteran failed to appear with no good cause provided. As such, the hearing request is deemed withdrawn. See 38 C.F.R § 20.704(d) (2017). FINDINGS OF FACT 1. The probative evidence of record does not establish a nexus between the Veteran's current bilateral elbow disability and her period of service. 2. The probative evidence of record does not establish a nexus between the Veteran's current bilateral shoulder disability and her period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral elbow disability have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a bilateral shoulder disability have not been met. 38 U.S.C. §§ 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. Bilateral Elbow Turning to the record of evidence, in a December 2007 VA examination, the Veteran was diagnosed with bilateral medial epicondylitis, with objective factors of tenderness. Therefore, the first element of service connection has been met. Turning to the next element, the Veteran's service treatment records do not indicate complaint of or treatment for any elbow condition. In a January 2008 Notice of disagreement, the Veteran stated that she did not complain to the doctors when she was on active duty because she felt that they would not have been able to do anything due to her pregnancy at the time of her separation. In a May 2013 VA examination, the Veteran reported that her elbow pain began when she carried heavy things in service. The Veteran stated that she did not seek medical treatment for this during service. The Board finds that the description is consistent with the circumstances of her service. Therefore, the second element of service connection is established. A nexus between the Veteran's current disabilities and her in-service incurrence must be established. At the outset, it is noted that in an April 2013 remand, the Board found the December 2007 VA examination to be inadequate for the purposes of adjudicating the claim because, while the medical opinion offered a diagnosis, it did not offer a nexus opinion. In the October 2015 Board remand, the Board found that the May 2013 VA examination was inadequate because the opinion did not seem to take into account the Veteran's statement about the onset of her elbow disability symptoms. Likewise, the January 2017 Board remand found that the March 2016 VA examination was inadequate because the Veteran's statements regarding onset were not taken into account. In an October 2017 VA medical opinion, the examiner found that it was less likely than not that the Veteran's bilateral elbow disabilities were incurred in active service. The examiner stated that the Veteran's lay statements were considered in formulating the opinion. The examiner explained that the Veteran's active duty medical records were reviewed with care and consideration. She noted that, according to the Veteran's Certificate of Release, the Veteran's primary specialty was Supply Management Journeyman, and the narrative reason for separation was due to pregnancy or childbirth. The examiner also noted that in May 2006, the Veteran stated she was 8 months pregnant and in "GREAT" present health. The examiner went on to state that the presumptive period medical records were reviewed with care and consideration. She observed that the health record was negative for any subjective complaints and/or objective diagnosis, treatment, injury and/or events related to the right and/or left elbow. The examiner further noted that in the September 2008 CBOC Primary Care follow-up medical records, the Veteran's lay statements clearly and unmistakably indicated that bilateral elbow and shoulder pain occurred "when she carries her children" and/or "does house work." The examiner noted that clinically, the upper extremity examination demonstrated tenderness over the ulnar tuberosity and normal range of motion, bilateral elbows. The examiner also noted that the May 2008 films were within normal limits, and subsequent radiographs, dated January 2009, observed "no significant osseous, joint or soft tissue abnormalities, bilateral elbow and shoulder." The examiner concluded therefore, that it was at least as likely as not that the Veteran's claimed bilateral elbow disabilities "relates to, etiologically occurring from and aggravated by" the repetitive motion and lifting of small children and daily work around the house. For these reasons, the examiner found that the Veteran's bilateral elbow disabilities were less likely related to her period of service. After carefully considering the evidence of record, the Board finds that the evidence does not establish a nexus between the Veteran's current disability and his period of service. The October 2017 medical opinion weighs heavily against a finding of a nexus. Moreover, the medical opinion provides an interceding cause for the Veteran's elbow conditions. The Board notes that there is no medical opinion of record that provides a positive nexus opinion. Therefore, the third requirement of a nexus between the Veteran's current disability and her period of service has not been met. Thus, service connection for bilateral elbow disabilities is not warranted. The Board has considered the Veteran's lay statements regarding her bilateral elbow disabilities; however, apart from the Veteran's own assertions, there is no competent and credible evidence linking her current condition to her period of service. Although the Veteran is competent to describe her symptoms, she is not competent to determine the etiology of her bilateral elbow disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Veteran's opinion as to the etiology of her bilateral elbow disabilities is not competent evidence; such question requires medical expertise to determine. Therefore, the Board finds no probative value in the Veteran's statements in regard to the etiology of her bilateral elbow disabilities. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a grant of service connection for bilateral elbow disabilities. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Bilateral Shoulder In a December 2007 VA examination, the Veteran was diagnosed with bilateral rotator cuff strain, with objective factors of impact on range of motion. Therefore, the first element of service connection has been met. Turning to the next element, the Veteran's service treatment records do not indicate complaint of or treatment for any shoulder condition. In a January 2008 Notice of disagreement, the Veteran stated that she did not complain to the doctors when she was on active duty because she felt that they would not have been able to do anything due to her pregnancy at the time of her separation. In a May 2013 VA examination, the Veteran has reported that her shoulder pain began when she carried heavy things in service. The Veteran stated that she did not seek medical treatment for this during service. The Board finds that the description of the service is consistent with the circumstances of her service. Therefore, the second element of service connection is established. In an October 2017 VA medical opinion, the examiner found that it was less likely than not that the Veteran's bilateral shoulder disabilities were incurred in active service. The examiner stated that the Veteran's lay statements were considered in formulating the opinion. The examiner explained that the Veteran's active duty medical records were reviewed with care and consideration. She noted that, according to the Veteran's Certificate of Release, the Veteran's primary specialty was Supply Management Journeyman, and the narrative reason for separation was due to pregnancy or childbirth. The examiner also noted that in May 2006, the Veteran stated she was 8 months pregnant and in "GREAT" present health. The examiner went on to state that the presumptive period medical records were reviewed with care and consideration. She observed that the health record was negative for any subjective complaints and/or objective diagnosis, treatment, injury and/or events related to the right and/or left shoulder. The examiner further noted that in the September 2008 CBOC Primary Care follow-up medical records, the Veteran's lay statements clearly and unmistakably indicated that bilateral elbow and shoulder pain occurred "when she carries her children" and/or "does house work." The examiner noted that the May 2008 films were within normal limits, and subsequent radiographs, dated January 2009, observed "no significant osseous, joint or soft tissue abnormalities, bilateral elbow and shoulder." The examiner concluded therefore, that it was at least as likely as not that the Veteran's claimed bilateral elbow disabilities "relates to, etiologically occurring from and aggravated by" the repetitive motion and lifting of small children and daily work around the house. For these reasons, the examiner found that the Veteran's bilateral shoulder disabilities were less likely related to her period of service. After carefully considering the evidence of record, the Board finds that the evidence does not establish a nexus between the Veteran's current disability and his period of service. The October 2017 medical opinion weighs heavily against a finding of a nexus. Moreover, the medical opinion provides an interceding cause for the Veteran's elbow conditions. The Board notes that there is no medical opinion of record to refute the finding of no nexus. Therefore, the third requirement of a nexus between the Veteran's current disability and her period of service has not been met. Thus, service connection for bilateral elbow disabilities is not warranted. The Board has considered the Veteran's lay statements regarding her bilateral shoulder disabilities; however, apart from the Veteran's own assertions, there is no competent and credible evidence linking her current condition to her period of service. Although the Veteran is competent to describe her symptoms, she is not competent to determine the etiology of her bilateral shoulder disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The Veteran's opinion as to the etiology of her bilateral shoulder disabilities is not competent evidence; such question requires medical expertise to determine. Therefore, the Board finds no probative value in the Veteran's statements in regard to the etiology of her bilateral shoulder disabilities. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a grant of service connection for bilateral shoulder disabilities. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. ORDER Entitlement to service connection for bilateral elbow disability is denied. Entitlement to service connection for bilateral shoulder disability is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs