Citation Nr: 20042397 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 13-28 683 DATE: June 23, 2020 ORDER Entitlement to service connection for acquired psychiatric disability, to include anxiety disorder and depressive disorder, is denied. Entitlement to service connection for right elbow disability is denied. FINDINGS OF FACT 1. The Veteran’s current acquired psychiatric disability, with manifestations including anxiety, depressive symptoms, and adjustment disorder, has onset after separation from service, and is not causally related to or aggravated by physical pain associated with her service-connected disabilities. 2. The Veteran’s right elbow epicondylitis in service resolved in service. Post-service episodes of right elbow pain, swelling, or tenderness are not attributable to right elbow injury in service. Continued on next page   CONCLUSIONS OF LAW 1. The Veteran’s acquired psychiatric disability, including any anxiety disorder, depressive disorder, and adjustment disorder, was not incurred or aggravated in service, is not presumed service connected, and is not proximately due to or aggravated by her service-connected disorders. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2019). 2. No current right elbow disability was incurred or aggravated in service or is presumed service connected. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1982 to March 2004. Service Connection Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board of Veterans’ Appeals (Board) must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, the Department of Veterans Affairs (VA) shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Acquired psychiatric disability, to include anxiety disorder and depressive disorder The Veteran contends that current psychiatric disability, including anxiety and depressive symptoms, is caused or worsened by pain from service-connected disorders, including those in her back, shoulders, and knees. Psychoses are among the chronic diseases for which service connection may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. During service, in treatment in March 1999, the Veteran reported not feeling right on and off for the past one to two weeks. She reported that she felt light headed at times and had occasional headaches. She stated that she was not fatigued or stressed. The physician observed that the Veteran appeared healthy and without distress, and had no physical signs of illness. The physician assessed that the symptoms might be due to viral illness, stress and tension, or dieting. On examination in July 2000, the Veteran marked no for history of depression, excessive worry, or nervous trouble of any sort. The examiner marked normal for the Veteran’s psychiatric condition. In the Veteran’s retirement examination in September 2003, she marked no for history of depression, excessive worry, or nervous trouble of any sort. The examiner marked normal for her psychiatric condition. After retirement from service in March 2004, the Veteran continued to receive some treatment at service department facilities. In VA treatment in September 2006, the Veteran stated that she did not feel unhappy, depressed, or anxious. In service department treatment in July 2007, the Veteran reported anxiety about her pain. She related having feelings of depression for quite some time. From August 2007, lists of the Veteran’s problems included depression. In August 2007, a physician prescribed the Veteran medication for “depression that is likely associated with her chronic pain.” In August 2008 she reported increased anxiety and depression, as she was going through a divorce. In September 2008, with regard to the Veteran’s anxiety and depression, a clinician noted that she had chronic pain and was going through a divorce. In VA treatment in January 2008, the Veteran reported depression. In private orthopedic treatment in March 2009, it was noted that the Veteran had anxiety. In service department treatment in April 2009, the Veteran reported feeling very anxious, with some depressive symptoms. She noted that she was in the process of a divorce. From April 2009 problem lists included depression and anxiety. In August 2010 the Veteran sought service connection for depression secondary to her service-connected disabilities. In VA treatment in September 2010 and January 2011, the Veteran reported anxiety accompanied by racing palpitations and dyspnea. On VA mental disorders examination in March 2011, the Veteran reported feeling depressed and having episodes of anxiety, accompanied by racing palpitations. The examiner, a psychologist, reviewed the claims file. The examiner assigned diagnoses of generalized anxiety disorder and depressive disorder. The examiner expressed the opinion that the Veteran’s depression was not caused by her service-connected disabilities. In VA treatment in May 2011, history included chronic anxiety and depression. In November 2011, the Veteran stated that depressive symptoms began about a year after she retired from service. In December 2011, the Veteran reported that she continued to have episodes of anxiety. In May 2012, history included anxiety. In service department treatment in September and November 2012, diagnoses included depression with anxiety. In 2012 through 2018 she continued on medication for depression and anxiety. On VA examination in April 2017, the Veteran reported anxiety and chronic sleep impairment. She stated that she began to receive mental health treatment when she was divorcing. The examiner, a psychiatrist, reviewed the claims file. The examiner listed a diagnosis of adjustment disorder. The examiner expressed the opinion that it is less likely than not that the Veteran’s adjustment disorder is caused or aggravated by her service-connected disabilities. In an April 2018 addendum, the examiner the examiner opined that it is less likely than not that the Veteran’s adjustment disorder began during her service. The examiner reiterated her opinion that it is less likely than not that the Veteran’s service-connected disabilities, including pain from those disabilities, caused or aggravates her adjustment disorder. The examiner found that 2007 records noting the Veteran’s anxiety about her pain did not show symptoms at that time that warranted a diagnosis of an anxiety disorder. The Veteran has not been found to have a psychosis, so there is no basis to presume service connection for psychiatric disability. The Veteran’s service treatment records show little if any symptoms of psychological issues. No clinician reached a diagnosis of a mental disorder. At separation from service she denied history of mental or emotional problems, and the examiner found her to be in normal psychiatric condition. The preponderance of the evidence is against onset in service of any psychiatric problem. The Veteran, a lay person, contends that musculoskeletal pain from her service-connected disabilities, including those in her back, shoulders, and knees, cause or aggravate her anxiety and depression. In 2007 a treating physician found that etiology likely. VA mental health professionals who considered the question in 2011 and 2017 concluded that secondary causation or aggravation was less likely than not. The VA examiners’ review of the claims file adds persuasive weight to their opinions. The Veteran as a lay person does not have the requisite competence to render an opinion on the etiology of any psychiatric problems. The greater persuasive weight of the evidence is against the Veteran’s musculoskeletal pain causing or aggravating her anxiety and depression. As the Veteran’s post-service mental issues, including anxiety and depression, do not warrant presumption of service connection, did not have significant manifestations in service, and are not proximately caused or aggravated by the chronic pain associated with her service-connected disabilities, the Board denies service connection for her psychiatric disability. 2. Right elbow disability The Veteran contends that current right elbow disability began during her service. In 2003 the Veteran sought service connection for disorders of both elbows. A VA Regional Office (RO) granted service connection for left elbow epicondylitis, and denied service connection for right elbow epicondylitis. An RO later established service connection for disabilities of her right and left shoulders. Arthritis is among the chronic diseases for which service connection may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. During service the Veteran had treatment in March 1998 for right elbow pain since smacking that elbow on a desk. She also indicated that her desk was in too high a position. The clinician’s assessment was epicondylitis. April 1998 x-rays of the elbow were negative. In July 1998 the Veteran reported right elbow pain, with a history of contusion. The clinician’s impression was musculoskeletal pain. In October 1998, a physician noted that the Veteran had right elbow trauma six to seven months earlier and had ongoing right elbow pain. The physician referred her for orthopedic treatment. In November 1998 a clinician referred the Veteran for physical therapy for right lateral epicondylitis. In physical therapy in December 1998, the Veteran reported that she used a support strap for activities. A clinician found that the elbow had a full range of motion, without pain. Six physical therapy sessions were planned. On follow-up in January 1999 the Veteran reported decreased pain in the elbow. In February 1999 she related further improvement, with pain intermittent, and function 80 percent of normal. On examination in July 2000, the Veteran marked no for history of painful or trick elbow. The examiner marked normal for condition of the Veteran’s upper extremities. In August 2001 the Veteran was seen for right shoulder and elbow pain. The physician found that her right elbow was tender to palpation. The physician’s impression was right elbow tendonitis with overuse. The Veteran was scheduled to retire from service in 2003, and her retirement was postponed to 2004. She submitted in 2003 a claim for service connection for several disabilities. On VA examination in March 2003, she reported epicondylitis in her right and left elbows. She stated that right elbow epicondylitis in 1998 improved after physical therapy. She had no current complaints about her right elbow. She related left elbow pain since late 2002, with ongoing pain at the time of the examination. The examiner found that the right elbow was not tender to palpation, and had intact neurovascular status, full muscle strength, and normal reflexes. The examiner found that right elbow epicondylitis had resolved. The left elbow had mild tenderness to palpation. The examiner listed a diagnosis of left elbow epicondylitis. In February to November 2003 the Veteran had treatment for lateral epicondylitis in her left elbow. She also reported some right elbow pain. The Veteran had private orthopedic treatment in September 2003 for epicondylitis in her left elbow and in February 2004 for epicondylitis in an unspecified elbow. In the Veteran’s September 2003 retirement examination, she reported pain in her shoulders, elbows, and wrists, and tingling in her arms. The examiner marked normal for the condition of her upper extremities. After service, in service department treatment in March 2007, the Veteran reported persistent left elbow pain. That elbow appeared normal on x-rays. In June 2007, it was noted that for the last one to two years she had pain in her elbows, back, hips, and other joints. In August 2007 through September 2008, clinicians noted that the Veteran had pain in multiple joints. In September 2008 she reported morning stiffness and pain, and occasional swelling, in multiple joints, including both elbows. The clinician noted that a past workup for rheumatoid arthritis had been negative. In December 2008 it was noted that the Veteran had pain in multiple joints including both elbows. In private treatment in March 2009, the Veteran reported pain in multiple joints, including her left elbow. On VA examination in October 2011, the Veteran reported right elbow pain. The examiner found that the right elbow had a full range of motion, with no objective evidence of pain on motion. The Veteran was able to repeat the motion three times. There was no pain on palpation. Muscle strength was normal. The examining physician, a physiatrist, found that there was no current functional impairment of the right elbow. The examiner expressed the opinion that there was no objective evidence of current abnormality of the right elbow. In VA treatment in December 2011, the Veteran reported back pain and polyarthralgia. In May and June 2012, she reported chronic right elbow pain. In June 2012 a clinician found symptoms of lateral epicondylitis. In service department treatment in September 2012, the Veteran reported right elbow pain since April 2012. X-rays showed no abnormality. In November 2012 to March 2013 she had treatment for right elbow pain. In private orthopedic treatment in January 2014, the Veteran reported a long history of fairly widespread pain with multiple arthralgia. In July 2014 she had right elbow tenderness. On VA examination in January 2019, the Veteran reported intermittent pain and swelling in multiple joints, including both elbows. He related past diagnosis of tennis elbow, or epicondylitis. She indicated that she did not have symptoms in her right elbow on the day of the examination. On examination the right elbow had normal function. The examining physician, a physiatrist, found that the Veteran did not have symptoms warranting a current diagnosis of epicondylitis. The examiner stated that the intermittent symptoms that the Veteran described were not consistent with epicondylitis. The examiner indicated that those symptoms might be more consistent with fibromyalgia. The examiner found that the Veteran had no current right elbow disorder. The Veteran has not been found to have right elbow arthritis, so there is no basis to presume service connection for right elbow disability. (Continued on the next page)   During service the Veteran had right elbow symptoms in 1998 and 1999 that were diagnosed as epicondylitis. In 2001 a physician concluded that tenderness in her right elbow was due to tendonitis from overuse. In 2002 through her retirement in 2004, she reported considerable symptoms in her left elbow and some discomfort in her right elbow. After service, symptoms affecting her right elbow specifically were noted on occasions in 2008 through 2014. In 2011 and 2019, VA examiners found no evidence that right elbow epicondylitis found in service was currently diagnosable. The Veteran as a lay person does not have the requisite competence to diagnose a right elbow disability. Medical records during and after the Veteran’s service reflect suggestions of a disorder manifested by symptoms in multiple joints, sometimes including the right elbow. The Veteran has sought service connection for multiple disorders, each affecting one specific musculoskeletal area. She has not sought service connection for a single disorder producing symptoms in multiple musculoskeletal areas. In the issue presently on appeal, service connection for a right elbow disorder, the preponderance of the evidence is against a connection between the epicondylitis in service and the post-service episodes of symptoms. The Board therefore denies service connection for a disorder of the right elbow. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, 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.