Citation Nr: 21066317 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 14-31 199A DATE: October 29, 2021 ORDER Entitlement to service connection for a left elbow disability is denied. REMANDED The issue of entitlement to service connection for a left knee disability is remanded. The issue of entitlement to service connection for a right knee disability is remanded. The issue of entitlement to service connection for a respiratory/pulmonary disability is remanded. FINDING OF FACT There is no competent evidence of record that shows the Veteran has a left elbow disability. CONCLUSION OF LAW The criteria for service connection for a left elbow disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1972 to February 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). When the Veteran filed his September 2014 substantive appeal to the Board (VA Form 9), he requested the opportunity to testify at a Board hearing. The Veteran was scheduled for a Board hearing to be held in July 2017. The Veteran failed to show for the scheduled hearing, and it was subsequently determined that he moved to a new address and lost his phone. His requested Board hearing was rescheduled to be held in August 2021. However, on the date of the hearing, the Veteran requested to withdraw his request for a hearing. Accordingly, the Veteran's request for a Board hearing is deemed withdrawn and the Board will proceed with its appellate review of this case. 1. Entitlement to service connection for a left elbow disability. The Veteran seeks entitlement to service connection for a left elbow disability. He contends that he fell on a wet floor in 1973 while on active duty and that he suffered a hairline fracture to the left elbow and was treated with pain medications and a splint for one to two weeks and that he resumed full duty after his elbow condition improved. He claims that he experiences "off and on pains." Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran's service treatment records (STRs) show that he fell from a bike and injured his left elbow and distal humerus in June 1974 and that he fell again striking the same area in July 1974. X-rays revealed no evidence of any fracture or history of fracture. He presented with decreased range of motion, pain, and swelling. He was diagnosed as having a severe bruise of the left elbow. His left elbow was placed in a splint for a few weeks. The Veteran's November 1974 separation examination was negative for any complaints of a left elbow disability or any indication of a diagnosed chronic left elbow disability prior to his discharge from service. Post-service treatment records show intermittent complaints of left elbow pain but do not document a diagnosis or treatment for a chronic left elbow disability. The Veteran was afforded a VA elbow examination in August 2011. Based on a review of the evidence of record and an in-person physical evaluation of the Veteran, the VA examiner found that the Veteran does not now have or has he ever had a left elbow or forearm condition. During range of motion and repetitive-use testing, the examiner found that the Veteran did not have any limitation of flexion or extension in his left elbow. Similarly, the examiner found that there was no objective evidence of painful motion on evaluation and that the Veteran did not have any functional loss and/or functional impairment of the left elbow or forearm. Lastly, the examiner noted that imagining studies had been completed but that these studies did not show any evidence of degenerative or traumatic arthritis. The examiner concluded that the Veteran had a "normal" left elbow because there was no objective data to support a medical finding of a left elbow disability. Review of the evidentiary record shows that there is no competent or probative evidence showing that the Veteran currently has a left elbow disability. Under VA law, the cornerstone of a valid claim for service connection is that there must be competent and credible evidence of the present existence of the disability being claimed. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997); Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating that VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). To the extent the Veteran complains of left elbow pain symptoms, the Board has considered whether the Veteran's claimed symptoms are of such severity that these would be considered a "disability" as used in 38 U.S.C. § 1110. VA must consider whether the Veteran has functional impairment for which service connection may be granted. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). While functional loss caused by pain is akin to functional loss caused by physical disability, in this case, the Veteran has not demonstrated evidence of a left elbow disability. Cf. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran has not demonstrated that the pain in his elbow reaches the level of functional impairment of earning capacity. The August 2011 VA examination specifically noted no functional loss or functional impairment due to his left elbow or forearm. Likewise, the post-service VA treatment records show that he only experienced occasional left elbow pain where his elbow "pop and lock up" at times. Notwithstanding the foregoing, the Board finds that the best evidence in this case provides evidence against the existence of a current "disability" affecting the left elbow. The Board has considered the Veteran's reported history of symptomatology throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one's senses. Layno v. Brown, 6 Vet. App. 465, 469-470 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, however, his statements do not rise to a level of competency to offer an opinion as to the existence of a current diagnosis or etiology. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Determining the nature and etiology of the Veteran's claimed left elbow complaints requires medical inquiry into biological processes, pathology, anatomical relationships, and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have training, expertise, or skills needed to make such a determination. As a result, the probative value of his lay assertions is low. In summary, there is no evidence of record documenting a diagnosis of a left elbow disability during the pendency of this appeal, for which service connection can be considered. Accordingly, the preponderance of the evidence is against the claim and service connection for a left elbow disability must be denied. Additionally, there is no competent evidence to corroborate the claim that the Veteran has a left elbow disability. The Board acknowledges that the Veteran was last examined in August 2011 nearly ten years ago. However, he has not submitted any objective medical evidence during the pendency of the appeal that would demonstrate that he has a current left elbow disability. Thus, the record does not contain any independent or competent medical indication of such, aside from the initial allegation associated with the Veteran's filing of his claim, which is insufficient to trigger the duty to assist. In such circumstances, there is no duty to obtain a medical examination or opinion and remanding the claim for an opinion on diagnosis or etiology of the claimed left elbow condition is not necessary at this time. McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). If the Veteran demonstrates that he has a current diagnosis of a left elbow disability, the Board encourages him to submit a supplemental claim along with objective medical records documenting the existence of such a disability. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See 38 U.S.C. §§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Even if we assume the claimed problem exists, service and post-service medical evidence only provides evidence against these claims, indicating a problem that began many, many, years after military service with no connection to service. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. The Veteran is seeking entitlement to service connection for left and right knee disabilities which he attributes to his military service. His STRs show general joint complaints during his November 1974 separation examination but the record is unclear as to whether these complaints included his left and right knees. The Veteran was afforded VA knee examination in August 2011. During that examination, the Veteran reported that he was injured while riding a motorcycle during service in 1973 or 1974 and that his knees were initially bandaged; that he was prescribed pain medications and bedrest; and that he did not undergo any knee surgeries at that time. He indicated that he has worked with heavy equipment and experienced minor knee injuries since he separated from military service. He also asserted that he has experienced "on and off" knee pain since the mid-1990s and that he recently received VA treatment for frequent knee pains. He reported that he was given soft braces for support and to lessen the pain/improve his mobility. Based on a review of the claims file and an in-person evaluation of the Veteran, the VA examiner diagnosed the Veteran as having bilateral knee strains but explained that they were acute in nature and that there was no evidence that the Veteran's condition was "chronic." The examiner then opined that neither disability was caused by or a result of his military service. In support of this opinion, the examiner stated, "Based on a review of the available medical records, medical literature, and clinical experience...the current right and left knee condition onset many years after military service...[and] [t]here is no objective evidence of chronic right or left knee condition[s], thus a nexus cannot be made." VA treatment reports throughout the appeal period show that the Veteran has been diagnosed as having knee arthralgia and degenerative joint disease (DJD) since he was last examined in August 2011. However, there is no medical opinion in the record addressing whether the Veteran's bilateral knee arthralgia and DJD are related to his military service. Given the length of time since his last VA examination, the Board finds it necessary to provide the Veteran with a new VA knee examination to ascertain the nature and etiology of his all current knee disabilities, to include his previously diagnosed bilateral knee arthralgia and DJD. 3. Entitlement to service connection for a respiratory/pulmonary disability. The Veteran is seeking entitlement to service connection for a respiratory/ pulmonary disability which attributes to his military service. His STRs show complaints of wheezing, diffuse coughing, and shortness of breath during service. He was diagnosed as having post-exertional dyspnea, manifested by labored respiration and drop in the arterial pH to acidotic levels (probably exercise induced lactic acidosis of a transient nature). He was also found to have "viral flu syndrome," normal chest x-rays for age, and acute bronchitis while on active duty. The Veteran was afforded VA respiratory examination in August 2011. The Veteran reported that he was diagnosed as having a respiratory infection in the mid-1970s and had since had ongoing respiratory problems. He also indicated that he was told by physicians seven to eight years ago that he had "possible chronic obstructive pulmonary disease (COPD). Based on a review of the claims file and an in-person evaluation of the Veteran, the VA examiner diagnosed the Veteran as having "mild to moderate" restrictive lung disease possibly based on chronic tobacco product usage but found no evidence of obstructive ventilatory dysfunction. The examiner opined that the Veteran's respiratory condition was "less likely than not caused by or a result of wheezing, shortness of breath, and bronchitis shown during military service. The examiner explained that the Veteran's STRs show that he was evaluated on several occasions for a respiratory condition during service but that there was no evidence of allergic or exercise induced bronchial asthma or any other pulmonary function test abnormalities. VA treatment reports throughout the appeal period show that the Veteran has been diagnosed as having COPD since he was last examiner in August 2011. However, there is no medical opinion in the record addressing whether the Veteran's COPD is related to his military service. Given the length of time since his last VA examination, the Board finds it necessary to provide the Veteran with a new VA respiratory examination to ascertain the nature and etiology of his all current respiratory disabilities, to include his previously diagnosed COPD. These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. Contact the Veteran and ask him to identify whether there are any outstanding private medical records reflecting treatment for his claimed left and right knee disabilities and his claimed respiratory disability, particularly any records documenting treatment for these conditions close in time to his period of active duty service. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to get these records himself and submit any additional VA or private medical records in his possession. 2. Schedule the Veteran for a VA knee examination to ascertain the nature and etiology of all knee disabilities found on examination. For each knee disability diagnosed on evaluation, the examiner should provide a medical opinion as to whether it is "at least as likely as not" (50 percent or greater probability) that the disability was incurred in, caused by, or otherwise etiologically related to his military service, to include any incident thereof. The examiner's opinion should be based on a thorough review of the claims file and a comprehensive evaluation of the Veteran's left and right knees. The examiner must provide adequate supporting rationale for all medical conclusions reached. 3. Schedule the Veteran for a VA respiratory/pulmonary examination to ascertain the nature and etiology of all respiratory/pulmonary disabilities found on examination. For each respiratory/pulmonary disability diagnosed on evaluation, the examiner should provide a medical opinion as to whether it is "at least as likely as not" (50 percent or greater probability) that the disability was incurred in, caused by, or otherwise etiologically related to his military service, to include any incident thereof. The examiner's opinion should be based on a thorough review of the claims file and a comprehensive evaluation of the Veteran's lungs. The examiner must provide adequate supporting rationale for all medical conclusions reached. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.