Citation Nr: 18100736 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 16-37 227 DATE: April 20, 2018 ISSUES DECIDED: 4 ISSUES REMANDED: 3 ORDER Service connection for a left elbow disability is denied. Service connection for a right elbow disability is denied. Service connection for a left shoulder disability is denied. Service connection for a right shoulder disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a left elbow disability due to a disease or injury in service, to include abrasions to the elbows. 2. The preponderance of the evidence is against finding that the Veteran has a right elbow disability due to a disease or injury in service, to include documented bursitis and abrasions to the elbows. 3. The Veteran’s left and right shoulder disabilities are neither proximately due to nor aggravated beyond their natural progression by his service-connected degenerative disease of the lumbar spine or fracture of the proximal right femur, and are not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left elbow disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for a right elbow disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for entitlement to service connection for a left shoulder disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 4. The criteria for entitlement to service connection for a right shoulder disability have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1978 and from January 1983 to August 1986. In November 2017, the Veteran presented testimonial evidence at a Board hearing held via videoconferencing equipment before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to each claim. 1. & 2. Left and Right Elbow Disabilities The Veteran asserts that he suffers from disability of the bilateral elbows related to his military service. 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 bilateral epicondylitis/tennis elbow, and evidence shows that he was diagnosed with bursitis of the right elbow during service in May 1979, the preponderance of the evidence weighs against finding that the Veteran’s current diagnosis of bilateral epicondylitis began during service or is 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). Private treatment records show the Veteran was first diagnosed with low-grade bilateral lateral epicondylitis of the elbows in January 2009, more than two decades after his separation from service. While the Veteran is competent to report having experienced symptoms of aching in his elbows, he is not competent to determine that these symptoms were manifestations of his right elbow bursitis diagnosed in May 1979, as the issue is medically complex in that it requires knowledge of the various joints and tendons relating to the elbow. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the Veteran has not asserted that he has experienced symptoms related to his elbow since service. Rather, he has repeatedly reported that his elbow symptoms began in the late 1990s, a number of years following his separation from service: the January 2009 private treatment record documented the Veteran’s report that his symptoms began roughly ten years prior; the April 2011 VA examination report documented the Veteran’s statement that his elbows began to hurt in 1990 with a gradual onset; and the November 2017 hearing transcript recorded his statement that his elbow problems started in the late 1990s or early 2000s. At the hearing, he further testified that he had not had problems with his elbows during active duty. Finally, the Veteran was provided with a VA examination in April 2011, at which the VA examiner diagnosed bilateral epicondylitis. In an addendum to the report, the examiner opined that the Veteran’s current elbow pathology, epicondylitis, is not due to and is not directly related to the Veteran’s military service. The rationale was that review of the service medical record and claims file did not reveal any instance in which the epicondylitis was mentioned in service. The examiner acknowledged that the service treatment records documented that the Veteran had one instance of bursitis of the right elbow in the 1970s, as well as some trauma to the elbow of abrasions, but that the evidence did not show a consistent pattern to relate these to his current condition. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains a clear explanation for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his current bilateral elbow epicondylitis is related to an in-service injury, event, or disease, including his documented in-service right elbow bursitis, he is not competent to provide a nexus opinion in this case. As the record contains no competent nexus opinion supporting the Veteran’s belief and weighing against the finding of the VA examiner, the preponderance of the competent and credible evidence of record is found to demonstrate that the Veteran’s current bilateral elbow condition did not arise during and is not otherwise etiologically related to his military service. A finding of entitlement to service connection is therefore unwarranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the competent, probative evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 3. & 4. Left and Right Shoulder Disabilities The Veteran contends that he is entitled to service connection for arthritis of the shoulders as secondary to his service-connected lumbar spine degenerative disease. The question for the Board is whether the Veteran has a current shoulder disability that is proximately due to or the result of, or is aggravated beyond its natural progress by service connected disability. The Board concludes that, while the Veteran has a current diagnosis of traumatic arthritis of the bilateral shoulders, the preponderance of the evidence is against finding the current shoulder disability is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. See 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). At the April 2011 VA examination, the examiner documented the Veteran’s report that his shoulders began hurting in the 1990s, without any specific injury, and that this was associated with his arms going numb and him dropping objects. He stated that he was found to have shoulder pain associated with his non-service connected cervical spine disease. Physical examination demonstrated some kyphosis, and objective pain with palpation of the anterior shoulders in the area of the glenohumeral joints, with painful motion at the end of each range of motion. Upon reviewing x-rays taken of the shoulders, the examiner provided a diagnosis of traumatic arthritis of the bilateral shoulders. The VA examiner stated that he could find no reason to connect the disease of the shoulders with the degenerative disease and scoliosis of the lumbar spine. He continued that he could find no logical reason as a physician, nor any evidence that would lead him to believe that the arthritis of the shoulders was due to the degenerative disease of the lumbar spine, and that the general consensus among physicians is that joints in the extremities generally are not made ill by lumbar spine degenerative disease. The examiner concluded that he would defer to the mainstream of medical thought in finding that there was no reason to connect the disease of the shoulders with the degenerative disease and scoliosis of the lumbar spine. While the Veteran believes his bilateral shoulder arthritis is proximately due to or the result of, or is aggravated beyond its natural progression by his service-connected lumbar spine disability, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Further, while the Veteran testified at the November 2017 Board hearing that his private physician who was giving him injections basically communicated to him that the problem with his back had moved to his shoulders, his later explanation to the VA examiner that he was found to have shoulder pain due to his cervical spine disease clarifies that a physician had not linked the shoulder condition with the lumbar spine disorder. There being no competent evidence of a causal or aggravation relationship between the Veteran’s service-connected lumbar disorder and his bilateral shoulder arthritis, the totality of the evidence is found to weigh against the Veteran’s contention. The Board has also considered whether service connection may be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s bilateral shoulder arthritis is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). There is nothing regarding complaints or treatment for shoulder injury or disease in the service treatment records, and the Veteran has specifically stated that his shoulders began hurting post-service, in the 1990s. The Board further notes that a January 2009 private rheumatology office consultation record documented the Veteran’s report that he worked around the farm and used his hands and upper extremities extensively in such work. In considering this and the other evidence of record, direct service connection is not found warranted for bilateral shoulder arthritis. REMANDED ISSUES The issues of entitlement to service connection for a left hip disability, entitlement to service connection for a left knee disability, and entitlement to service connection for a right knee disability are remanded for additional development. The Board cannot make a fully-informed decision on these issues because no VA examiner has provided an opinion as to whether the Veteran’s left hip, left knee, and right knee disabilities have been caused or aggravated by his service-connected right hip disability or aggravated by his service-connected lumbar disability. On remand, a supplemental opinion should be provided. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left hip, left knee, and/or right knee disabilities at least as likely as not are causally related to his service-connected right hip and/or lumbar spine disabilities. The clinician should also provide an opinion as to whether the left hip, left knee, and/or right knee disabilities are aggravated beyond their natural progression by either or both mentioned service-connected disabilities. If, after review of the file, the clinician determines that another VA examination is necessary in order to sufficiently respond to the aforementioned questions, such must be scheduled and the Veteran must be notified. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel