Citation Nr: 20042352 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 11-23 723 DATE: June 23, 2020 REMANDED Entitlement to service connection for a left elbow condition is remanded. REASONS FOR REMAND The Veteran served in the United States Army National Guard and the Army Reserve from March 1987 to September 2006. He had verified active duty for training (ACDUTRA) service from July 1, 1987 to November 24, 1987, and August 19, 1996 through August 23, 1996. This matter has a lengthy appeal history and has been before the Board on multiple occasions. Most recently, in February 2019, the Board denied the issue of entitlement to service connection for a left elbow condition. The Veteran then appealed the case to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court vacated and remanded the Board’s February 2019 decision pursuant to a Joint Motion for Remand (JMR) submitted by the Veteran and VA. 1. Entitlement to service connection for a left elbow condition is remanded. In the December 2019 JMR, the parties agreed that the Board had erred by not addressing entitlement to service connection under the theory of continuity of symptomatology for a chronic disease. 38 C.F.R. § 3.303(b). The Veteran has a current diagnosis of degenerative joint disease—otherwise known as osteoarthritis—of the left elbow. This disease is listed among the chronic conditions found at 38 C.F.R. § 3.309(a). By way of background, the Veteran experienced a motor vehicle accident on August 20, 1996, during a period of ACDUTRA. At the time of the accident, the Veteran noted left elbow pain. In evaluation nine days later, the Veteran’s physician observed swelling of the left elbow. The Veteran continued to complain of left elbow pain in follow-up treatment and examinations in April 1997, June 1997, and September 1997. In April 2000, the Veteran underwent a VA examination of the muscles. At that time, the examiner reported a “history of bilateral shoulders and right elbow trauma” in 1996, secondary to a motor vehicle accident. The examiner then reported tenderness over the lateral epicondylus. There is no record of the Veteran experiencing right elbow trauma, thus it is unclear if this represents a clerical error and the Veteran had left elbow tenderness at the time. December 2005 and January 2006 VA treatment notes include a medical history of arthritis of the bilateral elbows. In January 2015 VA treatment, the Veteran again complained of pain in the elbows, with more continuous evidence of elbow pain from that point. In July 2018, the Veteran underwent a VA elbow examination. At that time, the Veteran reported to the examiner that he had experienced swelling and pain of the left elbow continuously since the time of the August 1996 motor vehicle accident. The examiner opined that it was “not at least as likely as not” that the Veteran’s current left elbow arthritis was etiologically related to active duty service. By way of rationale, the examiner reported that the Veteran was currently diagnosed with left elbow minimal degenerative joint disease on July 2, 2018 and that this was consistent with the expected normal age-related joint changes in a person of the Veteran’s age. The examiner also stated that, although arthritis of the bilateral elbows was recorded in the patient history in the Veteran’s December 2005 pain management note, the examiner was unable to find other evidence of elbow arthritis at that time or prior. In providing this opinion, the examiner failed to address the Veteran’s history of left elbow symptoms. The Board notes that there is documented evidence that the Veteran continued to seek treatment for left elbow pain, swelling, numbness, and tingling for more than a year after the in-service motor vehicle accident. The Veteran possibly exhibited left elbow tenderness in 2000, and, irrespective of contemporaneous x-ray evidence, had bilateral elbow arthritis documented on his pain management report in December 2005 and January 2006. Thus, on remand, a new medical opinion is necessary to address whether the Veteran’s documented and reported symptom history demonstrates evidence of continuity of symptomatology of a chronic disease. The matters are REMANDED for the following action: 1. Obtain a medical opinion regarding the etiology of the Veteran’s left elbow disability. The examiner should review the entire claims file, to include a copy of this Remand, and the opinion should include discussion of the Veteran’s documented history and assertions. With respect to the Veteran’s current left elbow degenerative joint disease, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should specifically consider the history of the Veteran’s left elbow symptoms since the documented August 1996 motor vehicle accident. This should include those symptoms documented in the Veteran’s medical records, as well as the Veteran’s competent description of his symptom history. The examiner should address whether the Veteran’s symptom history represents continuity of symptomatology of a chronic disease, or whether the Veteran’s current left elbow disability is separate and distinct from the symptoms manifested from the August 1996 motor vehicle accident. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, Associate Counsel 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.