Citation Nr: 21003892 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-32 321 DATE: January 25, 2021 ORDER Entitlement to service connection for left forearm injury is denied. FINDING OF FACT The preponderance of the evidence is against finding that a left forearm injury, including left elbow arthritis, began during active service or within one year of service; and is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for left forearm injury have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3,307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to September 1978, and from March 1981 to June 1981. In November 2018, the Board denied the claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an October 2019 Joint Motion for Remand (JMR), filed by the parties and approved by the Court, the portion of the Board decision denying entitlement to service connection for the Veteran’s left forearm injury was vacated and remanded to the Board for further adjudication consistent with the JMR. In April 2020, the Board remanded the Veteran’s claim for additional development, including a VA examination. The Board finds there has been substantial compliance with the prior remand directives, and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Active duty for training (ACDUTRA) is defined, in part, as “full-time duty under sections 316, 502, 503, 504, or 505 of title 32 U.S. Code or the prior corresponding provisions of law.” 38U.S.C.§101(22) (2012); 38C.F.R.§3.6(c) (2018). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 U.S. Code or the prior corresponding provisions of law. 38U.S.C.§101(23) (2012); 38C.F.R.§3.6(d) (2018). Thus, regarding the Veteran’s service in the National Guard, service connection may only be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or for an injury incurred or aggravated while performing INACDUTRA. 38U.S.C.§§101(24), 106, 1110, 1131; 38C.F.R.§§3.6, 3.303, 3.304 Entitlement to service connection for left forearm injury The Veteran contends his current left forearm disability was caused by service. The Veteran reports his current left forearm disability was caused by service to include an in-service injury. The Veteran is competent to describe his current symptoms, in-service events, and the occurrence of ongoing symptoms, and to this extent, these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a current left forearm disability that is began during or is related to an in-service event, disease or injury. The Veteran’s representative has argued that a positive sensitivity test to the left forearm in June 1981 represents documentation of an injury at that time. The record reflects that the Veteran received a typhoid vaccination that same day. The Veteran also contends that in June 1981 the Veteran fell and injured his left elbow and forearm. See Brief in Support of Veteran’s Entitlement to Disability Benefits at 5. The Board notes that at the time of the Veteran’s alleged injury, he was on ACDUTRA. The Veteran has a current diagnosis of left elbow arthritis. The Board notes that some of the Veteran’s STRs are missing. A March 2013 formal finding of unavailability notes that STRs in part were unavailable. When service records are missing through no fault of the claimant, VA has a heightened obligation to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing his claim, and to explain its decision. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). No presumption, however, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Here multiple attempts have been made to obtain the missing STRs from September 1974 to September 1978 and March 1981 to June 1981, with no success, and the Veteran has been notified of these attempts and the unavailability of these records. Specifically, correspondence was sent to the Veteran in January 2013 notifying him that service treatment records were partially unavailable from 1974 to 1978 and 1981 could not be located and are unavailable for review. As such, the Board concludes that all procedures to obtain any missing STRs were correctly followed, and further attempts to obtain such records would be futile. See 38 C.F.R. § 3.159(c) (2), (3). The Veteran’s available STRs have been associated with the claims file. Immunization records note the Veteran received the typhoid vaccine in June 1981, and indications of a sensitivity test in the light forearm the same day. In a report of medical examination in June 1985 for Reserve service clinical evaluation of the Veteran noted normal upper extremities and musculoskeletal system. On a June 1985 report of medical history, the Veteran denied a painful or trick “elbow” and denied arthritis or a bone, joint or other deformity. In a report of medical history for Reserve service in June 1987 the Veteran denied swollen or painful joints and denied arthritis, bone joint or other deformity, or a painful “trick” elbow. The Board finds that based on the Veteran’s statements a potential in-service injury relating to his left elbow, but without a clear clinical confirmation of symptoms or a diagnosis of a left forearm disability. The Veteran’s post-service treatment medical records are silent for left forearm complaints until January 2012. A September 2013 treatment note indicates that the Veteran experienced left elbow pain and had trouble extending his left arm. Private treatment records note August 2016 imaging noted left elbow osteoarthritis. The Veteran reported reduced range of motion, pain and tenderness on palpation. The Veteran underwent a VA examination in November 2020. The examiner indicated that the Veteran had a diagnosis of left elbow degenerative arthritis. The examiner considered the Veteran’s lay statements, and documented that the Veteran’s reports his condition began while jogging in formation during physical training and fell over another soldier that had fallen, causing him to fall on the left side and forearm. The Veteran also reported that when his condition began, the symptoms were pain and swelling at the elbow joint and occasional fluid accumulation in the elbow joint. The examiner noted that in September 2016, the Veteran was diagnosed with contractures by a private physician. At the time of the examination, the Veteran reported symptoms including pain at the joint and inability to fully extend at the elbow joint. He also reported that it feels as if the tendons in his elbow have shrunk. The Veteran reported flare ups with lifting, constant repetitive bending. Functional loss was noted with constant sharp pain at the elbow joint, and repetitive bending causes accumulation of fluid in the elbow. Range of motion testing of left elbow noted flexion from 10 to 100 degrees, extension from 100 to 10 degrees, forearm supination to 30 degrees and forearm pronation to 70 degrees. Repetitive use noted no additional loss of function or range of motion. Muscle strength testing of the left elbow was 4/5, with no muscle atrophy. No left side ankylosis was noted. Imaging noted mild degenerative changes with small spur at the medial distal. The examiner noted that the Veteran’s left elbow disability impacts his ability to perform occupational tasks in that he is unable to lift repetitively more than 5 pounds due to pain. The examiner opined that the Veteran’s left forearm disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that after a review of the medical records provided, there were no service treatment records that indicated injury, evaluation or treatment of a left elbow condition. Further, the Veteran’s complaints of elbow pain were noted starting in 2013, which occurred 40 years post military service. The examiner also noted that after a review of the medical records provided that the Veteran was noted to have mild degenerative arthritis in his elbow, and x-ray changes were consistent with a remote history of trauma of which the exact etiology is unknown as medical records were silent indicating trauma to his left forearm. The examiner pointed out that these changes were first documented in an x-ray done in April 2018. In addition, the examiner responded to the Veteran’s contentions that his forearm injury was apparent from his positive sensitivity test in June 1981. The examiner stated that she was unable to state the significance of a positive sensitivity test without knowing the context of the statement. She continued, providing that she could not see any instance when a positive sensitivity test was in anyway related to trauma. The examiner explained that sensitivity testing is a medical term that is used to determine the ability of a drug to kill bacteria. In a medical diagnosis, test sensitivity is the ability of a test to correctly identify those with the disease. She further explained that it is not possible in isolation to state the significance of a positive sensitivity test because it cannot be determined in what context the statement was being made; the typhoid vaccine is typically given into the deltoid muscle, and not into the forearm. The Board assigns the November 2020 VA examination high probative weight, as the examiner performed an in-depth review of the Veteran’s medical records, lay statements and provided an adequate rationale for the opinion that the Veteran’s left forearm condition did not result from service. The Board notes that the examiner responded to the Veteran’s contentions that he tested positive for sensitivity in June 1981 and found that she could not see any instance when a positive sensitivity test would be in anyway related to trauma. The Board also notes that the examiner clearly documented the Veteran’s lay statements regarding his fall in service. Nonetheless, the November 2020 medical examiner determined that the Veteran’s left forearm disability was less likely than not related to any event in service. The Board acknowledges that the Veteran has a current left forearm disability. The Board also acknowledges that the Veteran contends that this injury is related to his typhoid shot while on ACDUTRA, or his fall during ACDUTRA. As such the Board also finds an in-service injury. Nonetheless, the Board finds that the Veteran’s current left forearm disability is not related to service. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for a left forearm disability is warranted. The Board concludes that service connection on a direct basis is not warranted as the Veteran’s current left elbow arthritis was not caused by service. The Veteran’s lay statements regarding his current symptoms, in-service events and ongoing symptomology are credible. The Board has considered the Veteran’s statements linking his current left forearm disability to his military service. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson’s competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). In this regard, the Board notes the Veteran is competent to report symptoms experienced in service and since such time. However, the Veteran is not competent to attribute his current condition to any instance of military service. He has not demonstrated that he is an expert in determining the etiology of a forearm disability and is a layperson in this regard. As such the Board finds that the medical evidence is more probative and credible than the lay opinions of record. The competent medical evidence including the VA examination in November 2020 is entitled to significant probative weight as discussed above. The examiner opined that the Veteran’s left forearm disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In addition, the Board notes that STRs note on routine medical examinations in June 1985 for Reserve service clinical evaluation of the Veteran noted normal upper extremities and musculoskeletal system. On a June 1985 report of medical history, the Veteran denied painful or trick “elbow” and denied arthritis or a bone, joint or other deformity. In a report of medical history for Reserve service in June 1987 the Veteran denied swollen or painful joints and denied arthritis, bone joint or other deformity, or a painful “trick” elbow. Such is against a finding of ongoing left forearm symptomology. Further, treatment records note reports of left elbow pain and symptomology in 2012 which is over 30 years after the Veteran’s separation from service. The Board has considered the Veteran’s statements of ongoing symptomology; however, such are inconsistent with the medical evidence of record and entitled to less probative weight. As such the Board finds that service connection is not warranted on a direct basis. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) for the Veteran’s left forearm disability, including based on a continuity of symptomatology under 38 C.F.R. § 3.303(b). The Board notes that the Veteran has a current diagnosis of arthritis which falls under presumptive service connection provisions as a chronic disease. While the Veteran has contended that he has a left forearm disability caused by service, he has not claimed he has received medical care since service. Further, there are also no records indicating that the Veteran’s left forearm disability manifested within a year of separation of service or that it occurred continuously since discharge from service. STRs during his Reserve service note clinical examinations in 1985 and 1987 were normal. In fact, the first notation of a shoulder injury in the Veteran’s file after active service is in 2012. To the extent that the Veteran contends that he has experienced a left forearm disability continuously since discharge, the Board does not find these statements to be credible, as they are inconsistent with the medical and other lay evidence of record. As such, the evidence does not support granting service connection for the Veteran’s left forearm disability on a presumptive basis or based on continuity of symptomatology. In conclusion, service connection for a left forearm disability is not warranted. The preponderance of the evidence is against the claim of entitlement to service connection for a left forearm disability and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.