Citation Nr: 18145815 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-38 813 DATE: October 30, 2018 ORDER Entitlement to service connection for right elbow cubital tunnel syndrome is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, right elbow cubital tunnel syndrome is at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for right elbow cubital tunnel syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1981 to October 1981, in the United States Marine Corps from January 1984 to April 1996, and in the United States Army from December 2002 to November 2003. By correspondence submitted with the Veteran’s August 2016 VA Form 9, the Veteran indicated that he did not want a hearing. The Board notes that it is not assuming jurisdiction over claims of entitlement to increased ratings for a neck disorder and a scar disorder. These claims were certified to the Board in August 2018. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. However, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). Therefore, the Board declines to take any further action on these issues at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). The Board will similarly not assume jurisdiction over a claim of entitlement to an increased rating for a right shoulder disorder. 1. Entitlement to service connection for right elbow cubital tunnel syndrome The Veteran is service-connected for a right shoulder injury with degenerative joint disease (DJD) and impingement syndrome. He seeks service connection for a right elbow disorder on a direct basis and as secondary to his service-connected right shoulder disorder. The VA has identified two right elbow disorders—cubital tunnel syndrome and DJD. As will be explained below, the Veteran is entitled to service connection for right elbow cubital tunnel syndrome. He is not entitled to service connection for DJD of the right elbow. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447–48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). For both right elbow disorders, the first element is satisfied, in that the Veteran’s December 2017 VA medical examination contains diagnoses for right elbow cubital tunnel syndrome and DJD of the right elbow. The second element is also satisfied, in that the December 2017 VA medical opinion indicates in-service “treatment for paresthesias of the right hand.” For DJD of the right elbow, the nexus element is not satisfied. An October 2013 VA medical opinion states that the Veteran’s DJD “is caused by the natural ageing process with or without trauma to that specific joint” and notes that there is no medical literature supporting a relationship between DJD of the right elbow and the Veteran’s service-connected right shoulder disorder. Similarly, a December 2017 VA medical opinion states that there is no peer-reviewed medical literature supporting a relationship between these disorders; rather, DJD of the right elbow is consistent with the ageing process. For these reasons, both examiners conclude that the Veteran’s DJD of the right elbow is less likely than not related to service. These medical opinions are probative because they are based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). As the preponderance of the evidence is against the existence of a nexus, on a direct basis or as secondary to the Veteran’s service-connected right shoulder disorder, service connection for DJD of the right elbow is not warranted. In reaching this conclusion, the Board has considered the arguments of the Veteran’s representative. In correspondence dated August 2016, the Veteran’s representative states that the October 2013 VA medical examination is inadequate because it is based primarily on the fact that there was no evidence of in-service injury or treatment. The representative repeats this argument in correspondence dated November 2017 and additionally submits a medical printout from a hospital which she argues supports a relationship between the Veteran’s DJD of the right elbow and his service-connected right shoulder disorder. Neither the argument nor the submission is availing. Contrary to her assertion, the October 2013 VA medical opinion, which the Veteran’s representative quotes in its entirety, never states or implies that there is no evidence of in-service injury or treatment. Also, the submitted printout only discusses shoulder pain and elbow pain. It proposes no correlation or relationship between these symptoms, much less a correlation or relationship between specific musculoskeletal disorders. For these reasons, the representative’s arguments and submissions do not support the existence of a nexus between the Veteran’s DJD of the right shoulder and his service-connected right shoulder disorder. On the other hand, the evidence supports the existence of a nexus between Veteran’s right elbow cubital disorder and service. The December 2017 VA medical opinion notes the Veteran’s in-service treatment for paresthesias of the right hand and the Veteran’s “credible history of recurrence of the symptoms over the years after discharge form service.” His problems have now become chronic. The examiner states that “[t]he current right cubital tunnel syndrome is the continuation of the condition first noted while in active military service in 1994” and concludes that the Veteran’s right cubital tunnel syndrome is at least as likely as not the result of active military service. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301–02. Because all of the elements for service connection are satisfied with respect to the Veteran’s right elbow cubital disorder, the Veteran is entitled to service connection for this disability. The Board is mindful of the fact that by correspondence dated January 2018, the Veteran’s representative asserts that the December 2017 VA medical opinion is inadequate. The Veteran’s representative again asserts the inadequacy of the December 2017 VA medical opinion in correspondence dated March 2018. Both submissions quote the December 2017 VA medical opinion in its entirety. In part, the Veteran’s representative argues that the examiner “provided a contradicting rationale for his opinion that the veteran’s right elbow disability was not related to his military service.” Specifically, the examiner “noted that his right cubital tunnel syndrome is a continuation of the disability first noted while in active military service” but concluded “that the disability is not related to service.” However, this argument reflects a misreading of the December 2017 VA medical opinion, which concludes that the Veteran’s right cubital syndrome disorder is related to service. In summary, notwithstanding the above noted comments and arguments of the Veteran’s representative, reading the evidence in a light most favorable to the Veteran, the Board finds that the December 2017 VA medical opinion is based on an adequate foundation and sufficiently positive with respect to a link between a current right elbow disorder and active service. Consequently, as the evidence of record supports the existence of a nexus between the Veteran’s right elbow cubital disorder and service, the Board finds that the Veteran is entitled to prevail with respect to his claim. As noted previously, the evidence of record is against a relationship between service and the Veteran’s DJD of the right elbow. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel