Citation Nr: 20043735 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 17-30 106 DATE: June 29, 2020 ORDER Entitlement to service connection for a left elbow condition is granted. Entitlement to service connection for a torn left bicep is denied. Entitlement to service connection for cirrhosis of the liver is denied. Entitlement to service connection for hepatitis C is denied. REMANDED Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, his left elbow condition is etiologically linked to his active duty service. 2. The preponderance of the evidence does not support that the Veteran’s torn left bicep is etiologically linked to his active duty service. 3. The preponderance of the evidence does not support that the Veteran’s cirrhosis of the liver was incurred in service or is otherwise etiologically linked to his active duty service. 4. The preponderance of the evidence does not support that the Veteran’s hepatitis C was incurred in service or is otherwise etiologically linked to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left elbow condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a torn left bicep have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for to service connection for cirrhosis of the liver have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for hepatitis C have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1967 to May 1969. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Agency of Original Jurisdiction (AOJ). The appeal was remanded in February 2019 to afford the Veteran proper notice with respect to his service connection claim for hepatitis C and to obtain an adequate medical opinion as to the nature and etiology of the Veteran’s injuries of the left upper extremity. The claims for entitlement to a TDIU and entitlement service connection for cirrhosis of the liver were remanded as inextricably intertwined. In June 2019, the AOJ sent the Veteran 38. U.S.C. § 5103 Notice including a list of risk factors for Hepatitis C. In April 2020, nexus opinions as to the Veteran’s injuries of the left upper extremity were associated with the file. Thus, the Board determines that there has been substantial compliance with the February 2019 remand directives, and further remand as to the service connection claims is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Entitlement to service connection 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 in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left elbow condition The Veteran contends that his current left elbow olecranon bursitis, left elbow fracture, and left elbow bone spur are due to an injury sustained in a May 1968 parachuting accident. The Veteran was diagnosed with these conditions in June 2011. The Veteran’s service treatment records (STRs) from May 1968 confirm the Veteran was involved in a parachuting accident and sustained injuries to the left upper extremity. Therefore, the first and second elements of service connection are established. The Veteran sought treatment for left arm pain and swelling in the dorsal left elbow in June 2011. He reported onset of symptoms approximately 4 to 5 years prior. He noted with active use of the arm such as lifting, pushing or pulling he would have swelling and pain over the dorsal aspect of the elbow. He also noted pain and swelling if he rolled over at night and bumped the dorsum of the elbow. He described a prominent bump on the back of the elbow which had been present for “a long time”. The Veteran explained that he worked out and when lifting weights, he would have pain and swelling on the elbow. He also had a hard time doing pushups, chin-ups, and pull-ups. The Veteran told the provider about the parachuting accident during service. He explained that he had bruising, swelling and other injuries of both upper arms and pointed over the bicep tendon areas and muscle areas. He reported that he went to a clinic in Germany be felt he was misdiagnosed. The physician found the Veteran had chronic olecranon bursitis of the left elbow with a large bone spur. X-rays revealed more bone fragment than spur consistent with having been fractured away from the olecranon at some point in the distant past. The physician noted the main symptom aggravator was lifting weights and the Veteran agreed to discontinue. The Veteran was afforded a VA examination in October 2019. The examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there was evidence of a fall on outstretched hand (FOOSH) in May 1968. Injuries from a FOOSH mechanism of injury can manifest anywhere in the upper extremity from wrist to clavicle. A thorough review of the Veteran’s history did not reveal any direct evidence of a subsequent injury to the left elbow. The examiner found current evidence of left elbow condition with bone fragment fractured away from the olecranon at some point in the distant past. Based on the absence of a more likely explanation of the Veteran’s current left elbow condition, the examiner opined that the Veteran’s current elbow condition is related to the May 1968 injury. In April 2020, a VA examiner opined that it was less likely than not that the Veteran’s left elbow condition was incurred during military service. The examiner reasoned that the medical records did not contain documentation of a left elbow disability or condition incurred in military service. Rather, the STRs surrounding the May 1968 parachuting accident assessed only a left wrist condition. The examiner noted that the first mention of a left elbow condition was in 2011 when the Veteran stated that left elbow pain manifested while lifting weights in the gym. Upon review of the record, the Board finds that there is no reason to afford more probative weight to one opinion over the other. Both opinions were provided by medical professionals equally competent to render an opinion regarding whether the Veteran’s left elbow condition was etiologically linked to his active duty service. Moreover, all of the opinions reflected reasoned consideration of the evidence of record and included a sufficient explanation to the respective opinions. Therefore, the medical nexus opinions, in this case, are at least in relative equipoise. See Owens v. Brown, 7 Vet. App. 467 (1993). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a left elbow condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a torn left bicep The Veteran contends that his torn left bicep was caused by the aforementioned parachuting accident. The Veteran has been diagnosed with chronic tears of the distal bicep tendons with proximal retraction of the muscle bellies. Therefore, the first two elements of service connection are established. The April 2020 VA examiner opined it was less likely than not that the Veteran’s left bicep condition was incurred during military service. The examiner reasoned that the medical records did not contain documentation of a left bicep injury or condition incurred in military service. Rather, the STRs surrounding the May 1968 parachuting accident assessed only a left wrist and forearm condition. The examiner noted that Veteran’s separation examination was normal and medical records from 1968 to 2011 were silent regarding any left arm or bicep condition. Further, the examiner noted that the Veteran first reported a manifestation of bicep pain while weightlifting in the gym. The Veteran asserts that he must have torn his left bicep tendon during the May 1968 parachuting accident. However, as the October 2019 examiner observed, a history of martial arts training and coaching, weightlifting, and physical violence intercept the end of the Veteran’s military career and the onset of his pain in the early 2000s. Although the Veteran is competent to identify observable symptoms such as pain and their onset, he is not competent to determine the etiology of his left bicep injury. These questions are complicated and require greater knowledge of medicine and science than a lay person such as the Veteran possesses. Accordingly, his statements of nexus are not competent, and the only competent evidence of record is the VA examiner’s opinion. Thus, the record contains no competent or probative evidence linking the Veteran’s left bicep injury to his service. For the foregoing reasons, the Board finds that the preponderance of the evidence does not support the Veteran’s claim for service connection for a left bicep condition. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). 3. Entitlement to service connection for hepatitis C and cirrhosis of the liver The Veteran contends that he has hepatitis C and cirrhosis of the liver as the result of his active duty service. VA treatment records indicate that the Veteran was diagnosed with hepatitis C and cirrhosis of the liver in June 2011. Therefore, the first element of service connection, a current disability, has been met. Nevertheless, the claim must fail for lack of in-service incurrence. The Veteran asserts that his hepatitis C and cirrhosis were caused generally by his active duty service, but does not offer any evidence of a specific event, injury or disease in service that could be etiologically linked to his hepatitis C. The Veteran’s service treatment records are silent as to any treatment or complaints of either condition, and his May 1969 separation examination was normal. The Board acknowledges that the Veteran has not undergone a VA examination and a VA opinion has not been sought. However, the Board determines that neither is necessary. While the record reflects a current disability, there is no evidence of an injury, event or disease related to hepatitis C or cirrhosis in service, and no indication that the Veteran’s current conditions are related to his active service. 38 U.S.C. § 5103A; see also McClendon v. Nicholson, 20 Vet.App. 79 (2006). The only evidence of a possible connection between the Veteran’s current disability and service are the Veteran’s own conclusory statements, and these statements are not sufficient to trigger VA’s obligation to obtain and examination or opinion. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed.Cir. 2010) (conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). Although McClendon sets a low bar, that bar has not been met and no examination or opinion is required. Based on the analysis above, the Board finds that the preponderance of the evidence is against a finding that there is a nexus between the Veteran’s active duty service and his hepatitis C or his cirrhosis of the liver. Having failed to satisfy the criteria for direct service connection, the Veteran’s claims must be denied. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d at 1167. REASONS FOR REMAND Entitlement to a TDIU In this decision, the Board grants service connection for a left elbow disability. As the AOJ has yet to implement the favorable grant of service connection decided herein, a determination concerning the issue of TDIU would be premature. Accordingly, a remand of the TDIU issue is warranted. The matters are REMANDED for the following action: 1. Once the AOJ implements the Board’s determinations regarding the issue of service connection, re-adjudicate the issue of entitlement to a TDIU. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.