Citation Nr: 19121237 Decision Date: 03/26/19 Archive Date: 03/22/19 DOCKET NO. 16-58 694A DATE: March 26, 2019 ORDER Entitlement to service connection for a right elbow disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include depression/anxiety is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s right elbow disability is related to active service. CONCLUSION OF LAW The criteria for service connection for a right elbow disability are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1977 to February 1980. In July 2018, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran, through his representative, submitted additional evidence in August 2018. In a letter dated July 2018, his representative stated that the Veteran waived Regional Office (RO) consideration of the evidence. See Representative Correspondence. Thus, the Board may consider the new evidence in the first instance. The Board of Veterans’ Appeals (Board) has recharacterized the Veteran’s claim depression and anxiety as one for an acquired psychiatric disorder due to the multiple psychiatric health disorders noted in the claims file. See Clemmons v. Shinseki, 23 Vet. App. 1, 6 (2009) (VA has an obligation to consider whether possible mental disorders are service connected if those disorders are indicated by the evidence in the record even if the Veteran’s claim does not specifically identify those disorders). The Board notes that the Veteran also filed a claim for posttraumatic stress disorder (PTSD) which is not currently before the Board. The Veteran was informed in November 2017 correspondence that a separate Notice of disagreement (NOD) was required for his PTSD claim. See November 2017 VA Correspondence. He subsequently filed an NOD, and a Statement of the Case (SOC) was issued in March 2018. The Veteran has not perfected his appeal by filing a VA Form 9. Accordingly, the claim is not before the Board. Service connection 1. Right elbow disability The Veteran contends that he is entitled to service connection for a right elbow disability. See February 2011 VA Form 21-4138, Statement in Support of Claim. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background The Veteran’s service treatment records (STRs) indicate the Veteran had a normal upper extremity clinical examination upon entrance examination in January 1977. See STR-Medical. In March 1978, the Veteran was seen for a minor laceration to his right arm. Id. And in May 1979, the Veteran was seen for trauma to his right forearm as a result of slipping on an oily ladder well. Id. The physical examination revealed redness and swelling but X-ray of his forearm was negative. He was assessed with contusion of right lower arm. Id. Following active service, in June 2004 an X-ray of the Veteran’s right elbow found no radiographic abnormality. See Summa Health System X-ray. The Veteran was provided a VA examination in March 2012 in connection with his claim. See VA Elbow and Forearm Conditions, Disability Benefits Questionnaire (DBQ). The Veteran reported that he experienced pain in his right elbow since active service which radiates to the ulnar part of his arm. He was diagnosed with degenerative disease of right forearm. Id. The examination noted the Veteran’s X-ray from June 2004, which was normal and did not contain a copy or reference to a recent X-ray report. The examiner opined that the Veteran’s right elbow arthritis was less likely as not related to the forearm trauma in active service because he was assessed for contusion and the 2004 X-ray was normal. Id. The examiner concluded that the Veteran recently developed arthritis from wear and tear. Id. The Veteran’s private physician Dr. B.S.B. provided a statement in November 2011 noting that the Veteran has degenerative joint disease, paresthesias, and neuropathy of right elbow. See November 2011 Letter from Dr. B.S.B. The Veteran also stated that he suffered from nerve damage in his elbow due to his active service injury. See November 2012 Notice of Disagreement (NOD). VA treatment records from March 2013 indicate the Veteran complained of right elbow pain “since falling on it while falling off a ladder in military that is exacerbated by leaning on the elbow and is described as shooting down toward his lateral hand.” See March 2013 VA Medicine Outpatient Follow-Up Note, in CAPRI received May 2015. The physical examination confirmed right elbow pain reproduceable with leaning and position. Id. He was assessed with ulnar pain and referred for an Electromyography (EMG). Id. An addendum note from March 2013 also observed that the examination findings were consistent with ulnar never entrapment. See March 2013 VA Addendum Note, in CAPRI received May 2015. In April 2013, the EMG report revealed moderate right ulnar neuropathy that is localized to the elbow and no evidence of right cervical radiculopathy. See VA EMG Laboratory Result in VAMC Other Output/Reports. The Veteran was also recommended for evaluation by a neurologist to determine if surgical release would provide relief for his right arm pain. See April 2013 VA Patient Results Letter. The Veteran’s VA treatment records also confirm ulnar neuropathy was an active problem in October 2015. See VA Internal Medicine Outpatient Note, in CAPRI received February 2018. In August 2018, the Veteran submitted an undated letter from his private physician Dr. B.S.B. See August 2018 Letter from Dr. B.S.B. He stated that he has treated the Veteran for more than five years, and that the Veteran has been diagnosed with right elbow pain (M25.521), and neuralgia (M79.2). Dr. B.S.B. noted review of the Veteran’s STRs and that he is familiar with the circumstances and events of the Veteran’s military service, including his injury from “slipping on an oily ladder.” Id. He also noted that he examined the Veteran and is familiar with his medical history. Dr. B.S.B. opined “it is likely that [the Veteran’s] current condition is a direct result of him slipping on an oily ladder well as due to his military service.” Id. In his rationale, Dr. B.S.B. noted that “it is known that when trauma to a joint takes place soft tissue swelling and nerve pain can occur.” Id. Analysis Based on a thorough review of the evidence of record, the Board finds that the evidence establishes a current disability of ulnar nerve pain, which was confirmed by the EMG study in April 2013, which is also supported by his VA treatment records. Accordingly, the first element of service connection, a current disability, is met. The Veteran’s STRs also document evidence of right elbow injuries specifically in May 1979 when the Veteran was treated for right forearm contusion. See STR-Medical. Thus, the second element of service connection, an in-service injury or event, is met. Regarding the third element of nexus, the record contains two medical opinions. The first opinion is from the March 2012 VA examination. The VA examiner opined that the Veteran’s right elbow arthritis was less likely than not related to his active service treatment for contusion. The examiner based his opinion on normal X-ray findings in 2004 and recent development of arthritis. The Board finds this opinion is less probative because it failed to address the Veteran’s complaint of ulnar pain. Although, the Veteran reported his right arm pain radiated to ulnar pain at times during the VA examination, there were no examination findings related to radiation or ulnar pain. Since the examiner did not address ulnar nerve pain, and because the Veteran was subsequently diagnosed with ulnar nerve pain, the March 2012 VA Medical opinion is less probative. In contrast, the private medical opinion from Dr. B.S.B. is of great probative weight. He opined that the Veteran’s current right elbow ulnar pain was related to his active service injury in May 1979. He further stated that it was well known that swelling and nerve pain occur from joint injuries, symptoms which the Veteran experienced as noted above. Dr. B.S.B. provided a rationale for his opinion, stating that his opinion was based on his review of the pertinent service medical records, and was based on examination of Veteran including consideration of the Veteran’s statements of symptoms he experienced during active service. Additionally, Dr. B.S.B.’s opinion is consistent with and supported by the objective medical evidence. Therefore, the Board accords great probative value to the private medical opinion. In deciding the claim, the Board considered the Veteran’s credible lay statements in support of his claim. The Veteran’s lay statements are competent insofar as they relate to the symptoms he experienced such as nerve pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). However, statements regarding the diagnosis and etiology of right elbow disability are not matters capable of lay observation and require medical expertise. Thus, regarding the etiology of his right arm pain, his statements are not competent medical evidence. Based on the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence supports a grant of service connection for a right elbow disability to include ulnar nerve pain. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is granted. REASONS FOR REMAND 1. An acquired psychiatric disability A remand is required for a VA examination and medical opinion to determine the etiology of the Veteran’s acquired psychiatric disability(s). Specifically, the March 2012 VA examination is inadequate to the extent that it failed to provide a reasoned analysis to support the conclusion that the Veteran’s acquired psychiatric disability clearly and unmistakably preexisted service. The Veteran testified at the Board hearing that he had no previous mental health treatment before active service. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether its preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. Id. In other words, the “burden is not on the claimant to show that his disability increased in severity.” Id. To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” Id. This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. Id. The burden is not met by finding “that the record contains insufficient evidence of aggravation. Id. The presumption of soundness relates to the second requirement - the showing of in-service incurrence or aggravation of a disease or injury. In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second service connection requirement without further proof. Horn, 25 Vet. App. at 236. If a veteran is presumed sound at service entrance, a disease or injury that manifested in service is deemed incurred in service if the Secretary is unable to rebut the presumption. Gilbert, 26 Vet. App. at 53. Based on a review of the evidence, the record contains conflicting evidence whether the Veteran’s psychiatric disability clearly and unmistakably pre-existed service. The Veteran’s January 1977 entrance examination indicated a normal psychiatric clinical evaluation. However, the Veteran reported depression and excessive worry. See January 1977 Report of Medical Examination and Report of Medical History, in STR-Medical. The physician noted mild anxiety in the comments to the Report of Medical history. However, no psychiatric disability was noted in the summary of defects and diagnosis in the Report of Medical Examination. Additionally, the Veteran was seen in June 1978 for a follow up regarding his report of excessive worry/depression. See June 1978 Periodic Record Review, in STR-Medical. The Veteran reported that his anxiety was caused by his grandmother’s recent death prior to active service and issues with his fiancé. The medical examiner found no neurosis, psychosis, or evidence of depression and that the Veteran was fit for service. Id. The Veteran also reported excessive worry and depression in February 1980 separation examination. The March 2012 VA examiner stated that “[a]though he currently denies experiencing significant depression or anxiety before the military, the available collateral documentation suggests that on the 1977 entrance exam the veteran indicated having anxiety and depression prior to the service.” See March 2012 VA Mental Disorders DBQ. The Board finds that this opinion is inadequate because the examiner relied solely on the Veteran’s lay statements at time of entrance to determine that his psychiatric disability preexisted service. The examiner did not address the other evidence in the STRs regarding whether anxiety/depression preexisted service. The Board notes that the Veteran’s lay statements alone are an insufficient basis to determine that he had a disability that existed prior to service. Thus, the Board finds that the examiner did not provide a reasoned explanation for his conclusion that the Veteran’s psychiatric disability preexisted service by clear and unmistakable evidence. Accordingly, a new examination is warranted to determine whether the Veteran’s psychiatric disability clearly and unmistakeably preexisted service and if such disability preexisted service, whether such disability was clearly and unmistakably aggravated by active service. If a preexisting disability is not established, an etiology opinion regarding the diagnosed psychiatric disability(s) should be provided. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain and associate any outstanding VA and private treatment records since March 2018. 2. After completing the foregoing development, the Veteran should be afforded a VA examination by an appropriate medical professional, to ascertain whether any acquired psychiatric disorder is established by the record. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is asked to provide the following information: (a.) Identify the nature of each of the Veteran’s acquired psychiatric disorder(s) that meet the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition (DSM-5). (b.) If the examiner finds that there is a psychiatric disorder that existed prior to service, the examiner should state: i. Whether any psychiatric disability(s) CLEARLY AND UNMISTAKABLY EXISTED PRIOR TO SERVICE. The examiner is advised that the term “clearly and unmistakably” means that which cannot be misunderstood or misinterpreted and is undebatable. If the psychiatric disability(s) clearly and unmistakably existed prior to service, then the examiner should make a determination as to whether the disorder was aggravated in service. The examiner should state: ii. Whether there is CLEAR AND UNMISTAKABLE EVIDENCE THAT THE PRE-EXISTING PSYCHIATRIC DISABILITY WAS NOT AGGRAVATED during service. (c.) If the diagnosed psychiatric condition did not preexist service, the Veteran is presumed to be of sound condition at time of entrance to service. Accordingly, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the psychiatric disorder(s) was/were incurred in or caused by service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner should also be aware that in rendering an opinion, it must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel