Citation Nr: 18153817 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-03 296 DATE: November 28, 2018 ORDER Entitlement to service connection for a right elbow disability is denied. FINDING OF FACT The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran has a right elbow disability etiologically related to an in-service injury, event or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a right elbow disability, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1951 to July 1952 and from July 1953 to March 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. This case was previously remanded by the Board in December 2015, April 2016, and April 2017. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In April 2017, the Board remanded the claim of entitlement to service connection for a back disability for additional development. A June 2017 rating decision granted entitlement to service connection for intervertebral disc syndrome. As this represents a total grant of the benefit sought on appeal with respect to this issue, it is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1159 (Fed. Cir. 1997). 1. Entitlement to Service Connection for a Right Elbow Disability The Veteran contends that he has a right elbow disability that is directly related to his active service. Specifically, the Veteran contends that he was involved in a jeep accident during the Korean War when he was transporting a lieutenant to clinic. The Veteran stated that he fell from the jeep, which then rolled over his right elbow. See, e.g., June 2017 VA examination. To establish service connection for a disability on a direct-incurrent basis, the Veteran 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, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. The evidence of record shows that the Veteran was diagnosed with osteopenia of the right elbow with mild degenerative changes, via x-ray, in February 2016. See February 2016 VA treatment record. Therefore, there is evidence of a current disability. As to an in-service event, injury, or disease, it has been determined that the Veteran’s complete service treatment records are not available. See VCAA letter, dated July 2013. In cases where service records are unavailable, VA has a heightened obligation to explain its findings and to consider the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This is not to say that there is a heightened benefit-of-the-doubt rule or a heightened duty to assist. Rather, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing a claim, and to explain its decision when the Veteran’s service treatment records are not available. See Ussery v. Brown, 8 Vet. App. 64 (1995). Furthermore, the legal standard for proving a claim for service connection is not lowered. Instead, VA has a heightened obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Neither the Veteran nor his representative has otherwise raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As stated above, the Veteran contends that he injured his right elbow during a jeep accident while serving in Korea during the Korean War. The Veteran’s DD Form 214 reflects that he served with Company “B” of the 296th Infantry during the Korean War and that he received a Combat Infantry Badge. The events described by the Veteran are consistent with the conditions of the Veteran’s service, as reflected in his DD Form 214 and the service records. See 38 U.S.C. § 1154 (a) (1). In addition, the Veteran is competent to report treatment, such as receiving an elbow wrap, that he experienced while in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds there is evidence of an in-service event of a jeep accident. Therefore, the question remaining for consideration is whether there is a causal relationship between the in-service event and the Veteran’s current right elbow disability. In determining whether the record reflects that the Veteran’s current right elbow disability is related to his active service, the Board acknowledges the Veteran’s belief that there is such a causal connection. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In addition, the Board does not question his credibility in his assertions that he first experienced a right elbow injury in service. At issue in this case is whether the diagnosed right elbow disability is related to his active service. The Veteran is not considered competent to medically attribute his current osteopenia of the right elbow with mild degenerative changes to a specific cause, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements do not constitute competent evidence that may be probative in showing an etiological relationship between the in-service event and the current osteopenia of the right elbow with mild degenerative changes. To determine whether such a relationship exists, the Board turns to the competent medical evidence of record. With respect to a nexus between the current right elbow disability and in-service event, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In favor of a finding of a nexus is a November 2009 letter from the Veteran’s private physician. The private physician reviewed the available service treatment records and VA treatment records, interviewed the Veteran, and conducted an in-person examination. The private physician opined that the Veteran’s right elbow disability is directly related to his active service. As rationale, the private physician stated there is no other evidence to suggest any alternative etiology. The Board notes that the November 2009 private physician opinion is conclusory and is unsupported by further rationale. As such, the Board affords relatively little probative weight to November 2009 opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Against a finding of a nexus is a June 2017 VA examination. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran stated that he injured his right elbow in a jeep accident during the Korean War. The Veteran further stated that he was provided an elastic bandage and was sent to the clinic after the accident occurred. The VA examiner noted the Veteran’s diagnosis of osteopenia of the right elbow with mild degenerative changes and opined that the Veteran’s current right elbow disability is less likely as not incurred in or caused by the jeep accident during service. As rationale, the VA examiner stated that the Veteran’s available service treatment records do not contain evidence regarding a diagnosis or symptoms for a right elbow disability. Th VA examiner further stated that there is no evidence of any manifestation or diagnosis of a right elbow disability within one-year of separation from active service. Additionally, the VA examiner stated that the Veteran’s osteopenia is a pathological condition of the bones and that this process usually starts in middle age. As stated above, the November 2009 private opinion is conclusory and unsupported by further rationale. On the other hand, the June 2017 VA examiner’s opinion, that the Veteran’s current right elbow disability is not related to his active service, is based on a thorough review of the Veteran’s claims file. The opinion is supported by rationale demonstrating medical knowledge and judgment, as well as an understanding of the Veteran’s current right elbow disability. In short, the Board finds the June 2017 opinion to be probative in showing that the Veteran’s current right elbow disability is not related to his active military service. The Board notes that the Veteran’s March 1954 separation examination reflects that his upper extremities were normal. The separation examination does not indicate that the Veteran had a right elbow condition upon discharge. Furthermore, the Board finds no reason to afford greater probative weight to the November 2009 conclusory statement that the Veteran’s right elbow disability is related to his active service. The Board has also considered whether the Veteran is entitled to service connection for degenerative changes as a “chronic disease.” See 38 C.F.R. § 3.303 (b). Arthritis is included in the list of “chronic” diseases under 38 C.F.R. § 3.309 (a). The Board notes that the Veteran was diagnosed with degenerative changes in 2016, 60 years after his separation from active service. However, the Veteran has not argued, and the record does not show, that he was diagnosed with arthritis or any other “chronic” disease listed under 38 C.F.R. § 3.309 (a) during service or within one year of separation from service. Therefore, service connection is not warranted on a presumptive basis under the provisions of 38 C.F.R. §§ 3.303 (b), 3.307, and 3.309. The prolonged period from separation from service until 2016 without complaints and/or treatments for arthritis is evidence for consideration in determining continuity of symptomatology and weighs against a claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). In summary, the most probative evidence of record does not support a finding that it is at least as likely as not that there is a causal relationship between the Veteran’s current right elbow disability and his active military service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).   VA’s Duty to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel