Citation Nr: 18150552 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-37 425 DATE: November 15, 2018 ORDER Entitlement to service connection for a right elbow disability is denied. Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran’s right elbow disability is not shown to be causally related to his active service. 2. The Veteran’s right knee disability is not shown to be causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right elbow disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113,1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing the second and third Shedden elements for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown if “the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.” Savage v. Gober, 10 Vet. App. 488, 498 (1997). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a right elbow disability is denied. 2. Entitlement to service connection for a right knee disability is denied. The Veteran contends that he injured his right elbow and right knee when he fell from an obstacle on the confidence course during basic training in Fort Ord, California in August 1974. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of arthritis in his right elbow and degenerative joint disease (DJD) in his right knee, and evidence shows that the in-service event described by the Veteran occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of arthritis and DJD began during service or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show that the Veteran was not diagnosed with arthritis in the right elbow until April 2013, 35 years after his separation from service. VA treatment records show the Veteran was not diagnosed with DJD in the right knee until October 2012, 36 years after his separation from service. The Veteran’s service treatment records (STRs) contain no mention of right knee or right elbow complaints. At his August 1976 separation, the Veteran indicated that to the best of his knowledge, there had been no change in his medical condition since his last examination. While the Veteran is competent to report having experienced symptoms of intermittent elbow and knee pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n. 4 (Fed. Cir. 2007). Further, the July 2016 VA examiner opined that the Veteran’s right elbow and right knee disabilities are not at least as likely as not related to an in-service injury, event, or disease, including the injury to the right elbow and right knee due to a fall from an obstacle in basic training. The rationale was that the evidence does not reflect that his current right elbow and right knee disability began in service. Rather, the examiner noted that the Veteran’s arthritis and DJD were first diagnosed in 2013 and 2012 respectively, over three and a half decades since leaving active duty. Indeed, the examiner noted that the Veteran’s STRs are absent of treatment for or complaints related to his right elbow and right knee, nor does his separation report of medical history indicate that he had complaints o related to his right elbow and right knee when he left service. Rather, as noted by the VA examiner, there are other risk factors present. Specifically, the examiner noted that the Veteran has a long history of gout that is currently managed by medication. Also, X-rays of the Veteran’s left and right elbows show similar degenerative changes. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the July 2016 VA examiner’s opinion. Further, there is simply no competent evidence of record to support the Veteran’s contentions regarding his right elbow and right knee disabilities. As such, service connection for both disabilities is denied. 38 U.S.C. §§ 1110, 1131 (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Arthritis is classified by VA as a chronic disease, presumed to be connected to service if it emerges within a year of separation from active service. Because the Veteran’s period of active service ended in August 1976, his arthritis would have had to emerge by August 1977 for it to be service connected on a presumptive basis (the one-year presumptive rule does not apply to periods of active or inactive duty for training). The earliest diagnosis of any right elbow or right knee disability in the Veteran’s medical records is October 2012. Accordingly, he is not entitled to service connection on a presumptive basis. As a final matter, the Board notes that the RO has adjudicated the claims both on a direct basis and as secondary to the Veteran’s service-connected hand disability. However, the Board finds that close reading of the claims file clarifies that the Veteran is seeking service connection not on a secondary basis but on the theory that he injured his elbow and knee in the same fall in which he injured his hand. Thus, the Board has considered the Veteran’s claims on a direct basis only. Because there is no record of injury to the right elbow or knee in the STRs, no complaints of a right elbow or right knee disability until 2012, and the arthritis did not arise within one year of the end of the Veteran’s active duty, the Board finds that service connection for a right elbow and right knee disability is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher W. King, Law Clerk