Citation Nr: 20013541 Decision Date: 02/20/20 Archive Date: 02/20/20 DOCKET NO. 18-02 662 DATE: February 20, 2020 ORDER Service connection for right elbow disability (tendinitis) is denied. FINDING OF FACT The preponderance of the evidence is against finding that a right elbow disability had its onset during active service or is otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a right elbow disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to November 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for right elbow disability. The Veteran contends that he broke his right elbow at Fort Leonard Wood, Michigan, during AIT (Advanced Induvial Training) training. See Form 9 (January 2018). He stated that he went to sick call there, and his elbow was x-rayed and put in a cast. See NOD (April 2016). He stated that he continued to have issues with his right elbow throughout service, which should be documented in his service treatment records (STRs) and has had continued problems since. Id. The Board concludes that, while the evidence shows a diagnosis of right elbow tendinitis, the preponderance of the evidence is against finding that a right elbow disability had its onset during service or is otherwise etiologically related to an in-service injury or disease. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Compensation may be awarded for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). In this case, service treatment records (STRs) reflect no complaints or findings for abnormal pathology of the right elbow. STRs in March 1973, note a fracture of the radial head, left elbow. A September 1975 separation physical showed normal clinical evaluation of the upper extremities. The Veteran did not report any right elbow injury or residuals of such at his separation physical. Post service treatment records reflect complaints related to the elbow in February 2013; the specific elbow, right or left was not identified. A right elbow condition is first documented in April 2015 VA treatment records. By history, the Veteran had had pain for 2 weeks and had had a fractured elbow in service. He was assessed with right elbow tendinitis. The medical evidence of record reflects that a right elbow disability did not have its onset in service or soon after service. Right elbow disability is first shown four decades after service discharge. The medical evidence of record shows no link between any current right elbow disorder and the Veteran’s active service. The Board accepts that the Veteran is competent to report injury, symptoms, and treatment. However, the Board finds that he is not competent to link the post service findings for abnormal right elbow pathology to any in-service injury, disease, or event as it is not susceptible to lay observation. The etiology is a complex medical determination that requires medical knowledge of the musculoskeletal system, its disease processes, and the effect of injury or other factors on the development of abnormal pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Veteran’s medical opinion has no probative value. To the extent that the Veteran reports right elbow problems in service and since service, the Board finds that this is not credible for the following reasons: (1) STRs are replete with complaints and findings involving the “left” elbow and not the right elbow; (2) STRs reflect an injury to the Veteran’s left elbow, not his right elbow; (3) although the Veteran alleges that the same injury to the left elbow caused his right elbow disability, the contemporaneous medical evidence is negative for such; (4) the absence of any report of a right elbow disorder on the Veteran’s VA applications for disability compensation filed in January 2013, November 2013, and August 2014; and (5) the decades intervening service and the first documented complaint or findings for right elbow disorder. Therefore, his statements as to in-service injury, symptoms, and treatment have no probative. The Board assigns greater probative value to the STRs, which show no abnormal right elbow pathology, along with four decades intervening service discharge and the first documented complaints or abnormal findings for the right elbow. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Lastly, although no VA examination or medical opinion has been obtained in these matters, the Board finds the duty to assist has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). Although McLendon sets a low bar, that bar has not been met here as there is no indication of a link between the Veteran’s right elbow disability and his active service other than the Veteran’s own broad and conclusory statements. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). On balance, the weight of the evidence is against the claim. The evidence does not reflect any in-service injury to the right elbow or that the Veteran’s diagnosed right elbow tendinitis decades after service is etiologically related to any in-service injury or disease. (CONTINUTED ON NEXT PAGE) Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C. A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.