Citation Nr: 21003517 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-44 222 DATE: January 21, 2021 ORDER Entitlement to service connection for a lumbar spine disability is dismissed. Entitlement to service connection for a left elbow disability is granted. FINDINGS OF FACT 1. While on remand, a September 2020 rating decision granted the claim for service connection for a lumbar spine disability. 2. The Veteran’s left elbow disability as likely as not began during his service. CONCLUSIONS OF LAW 1. There is no remaining case or controversy or dispute concerning whether service connection is warranted for the lumbar spine disability. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 2. The criteria are met for entitlement to service connection for the additionally claimed left elbow disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1996 to May 2010. This appeal to the Board of Veterans' Appeals (Board) originated from September 2015 and December 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In support of these claims, the Veteran testified at a hearing in September 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In February 2020, the Board granted service connection for a left shoulder disability (acromioclavicular joint osteoarthritis) but instead remanded these remaining claims back to the RO, i.e., Agency of Original Jurisdiction (AOJ) – including to obtain all outstanding treatment records relevant to these remaining claims and for additional medical comment concerning the origins of these other claimed disabilities – especially in terms of whether directly, or presumptively (if involving arthritis), or secondarily related to the Veteran’s service (the latter meaning caused or aggravated by a service-connected disability). There since has been the required compliance with those remand directives, certainly the acceptable substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than “strict” or “exact” compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Indeed, on remand, the claim for service connection for a lumbar spine disability was granted, so the Board is summarily dismissing this claim. The Board also, however, is granting the claim for a left elbow disability, so it, too, is being resolved in the Veteran’s favor.   1. Entitlement to service connection for a lumbar spine disability is dismissed According to 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. Here, following completion of the remand development concerning this claim, a September 2020 rating decision on remand granted service connection for a lumbar spine disability (specifically, for a lumbar strain that had been variously claimed as a back condition, back injury, and low back strain). As such, there is no remaining case or controversy or dispute concerning this claim. Accordingly, the Board must summarily dismiss this claim since it has been granted during the pendency of this appeal. If the Veteran disagrees with the initial rating and/or effective date assigned for this now service-connected disability, he must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 2. Entitlement to service connection for a left elbow disability The Veteran contends that his left elbow disability onset during his service so also is service connected. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any 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). Establishing direct service connection generally requires competent and credible evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship, i.e., nexus, between the disease or injury in service and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).   The Board finds that the evidence of record supports granting service connection additionally for the Veteran’s left elbow disability. He has a current diagnosis of triceps tendinitis, so there is no disputing he has a left elbow disability. Moreover, his service treatment records (STRs) confirm he sought treatment for left elbow pain after someone slammed a vehicle door on this elbow. Thus, resolution of the appeal of this claim ultimately turns, instead, on whether there also is the required attribution of his current left elbow diagnosis to that injury in service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). During an August 2015 VA examination the RO scheduled partly to obtain the needed medical comment concerning this required correlation (“nexus”), the Veteran conveyed that he had suffered from intermittent left elbow pain with repetitive elbow motion ever since his left elbow injury in service in July 2000. However, the VA examiner opined that the Veteran’s left elbow condition was less likely than not incurred in or caused by the in-service injury to this elbow. That VA examiner reasoned that the Veteran’s STRs revealed he was only treated one time for his left elbow condition. The VA examiner explained that an elbow sprain/contusion typically resolves over time and that, given the lack of additional treatment related to this claimed left elbow condition, the Veteran’s current left elbow condition is less likely service related. But, during his subsequent hearing before this Board, the Veteran testified that he had started receiving treatment for his left elbow condition around 2011 or 2012, meaning just approximately a year or two after conclusion of his service. See September 2019 Board hearing transcript at page 19. He testified that he usually treats his elbow condition by resting his arm up the couch, throwing a heating pad over top of it, and then in a half hour putting some ice on top of it. See Id. at page 20. In response to the Veteran’s hearing testimony, the Board remanded this claim in February 2020 to try and obtain outstanding treatment records relevant to this claim and for additional medical comment concerning the origins of this claimed left elbow disability – especially when considering the Veteran’s lay assertions of continuous symptoms since his service and how he treats this condition. Resultantly, the Veteran underwent another VA examination in September 2020, and this additional VA examiner also concluded that it is less likely than not the Veteran’s left elbow condition is related to his service. This additional VA examiner reasoned that the Veteran had an isolated injury to his left elbow during his service, in July 2000, and there is no documentation of medical care for his left elbow until 2015, which this VA examiner mistakenly said was some 14 years post service (rather than 14/15 years after the injury in question in service). This VA examiner thus concluded that a nexus to service had not been established. But the Board finds that the reasoning employed by both the August 2015 and even more recent September 2020 VA examiners in formulating their opinions is fatally flawed and, consequently, their opinions ultimately have less probative weight. Notably, in explaining the underlying basis of the August 2015 unfavorable nexus opinion, the VA examiner did not take into account the Veteran's lay assertions, including his self-treatment of his elbow injury. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence" such as actual treatment records). It is also worth pointing out that it is continuous symptoms, not instead continuous treatment or medical care, which is the essence of 38 C.F.R. § 3.303(b). See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); Savage v. Gober, 10 Vet. App. 488, 496 (1997). Furthermore, the September 2020 VA examiner’s unfavorable opinion was premised on the incorrect assumption that the Veteran did not first or again complain of his left elbow condition until 14 years after his service – when, in actuality, the evidence confirms that his August 2015 VA elbow examination was only some 5 years after conclusion of his service in 2010. And, in any event, the mere absence of evidence, such as in the way of actual treatment records, cannot be equated with unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). There are certainly occasions when the mere absence of treatment for a now claimed disability at some earlier point in time, either during service or sooner after conclusion of service, may be considered as evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (explaining that the Board may consider “evidence of a prolonged period without medical complaint,” along with other factors, in resolving a claim). See also Kahana v. Shinseki, 24 Vet. App. 428 (2011); Bardwell v. Shinseki, 24 Vet. App. 36 (2010); and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (“Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.”). For this reason, the Board must also consider the Veteran’s lay statements, including his testimony under oath during his hearing attesting that he has complained of left elbow pain rather continuously since the July 2000 injury. Although a layman, he is competent to provide testimony and statements concerning factual matters of which he has firsthand knowledge, so including of experiencing chronic or recurring pain in this elbow since that injury in service. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465 (1994). See also 38 C.F.R. § 3.159(a)(1) and (a)(2) distinguishing competent medical versus competent lay evidence. Therefore, the Board finds that he is competent to report the onset of his left elbow symptoms (e.g., pain, etc.) and finds his statements credible concerning this and, consequently, ultimately probative.   The Board thus is left with a record showing the Veteran sustained an injury to his left elbow during his service and that he now has a left elbow disability that cannot be conclusively disassociated from that injury during his service. Accordingly, resolving this reasonable doubt in his favor, the Board finds that service connection for his left elbow disability is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.