Citation Nr: 21067130 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-50 080 DATE: November 3, 2021 ORDER Entitlement to service connection for right elbow strain is granted. Entitlement to service connection for left elbow strain is granted. Entitlement to service connection for right hand disability, to include as due to undiagnosed illness or medically unexplained chronic multisymptom illness pursuant to 38 U.S.C. § 1117, is denied. Entitlement to service connection for left hand disability, to include as due to undiagnosed illness or medically unexplained chronic multisymptom illness pursuant to 38 U.S.C. § 1117, is denied. FINDINGS OF FACT 1. The Veteran's right and left elbow strain are related to his active service. 2. The evidence of record indicates that the Veteran has not had right or left hand disabilities or related symptoms causing impairment in earning capacity during the pendency of his claims and does not have joint or muscle pain or neurological signs or symptoms due to undiagnosed illness or medically unexplained chronic multisymptom illness. CONCLUSIONS OF LAW 1. The criteria for service connection for right and left elbow strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right and left hand disabilities are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1983 to August 1983 and December 1990 to June 1991 and performed service in the Navy Reserve. His DD Form 215 reflects that he received the Combat Action Ribbon. These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied entitlement to service connection for polyarthralgia of the right and left hand (fingers) and right and left elbow, all disabilities claimed as joint pain due to Gulf War Syndrome. In April 2019, the claims of service connection for right and left hand disabilities and right and left elbow disabilities were remanded by the Board for further development, to include VA examinations. For the reasons indicated below, the February 2020 VA examination was adequate to decide the claims of service connection for right and left hand disabilities, and therefore complied with the Board's remand instructions. As the Board is granting the claims of service connection for right and left elbow disabilities, discussion of compliance with the Board's remand instructions is unnecessary in regard to those claims. Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Veteran reported his intention to withdraw his appeal either during attempts to schedule a VA examination or at the time he reported for a VA examination. Withdrawal may be made by the veteran or his authorized representative. 38 C.F.R. § 19.55(a). Requests for withdrawal of an appeal must be in writing and contain certain pieces of identifying information. 38 C.F.R. § 19.55(b). In April 2021, the VA received from the Veteran a Statement in Support of Claim (VA Form 21-4138) withdrawing his appeal for the claims of service connection for larynx disorder, esophageal disorder, gastroesophageal reflux disease, bilateral ankle disorder, and claims for a disability rating higher than 50 percent for posttraumatic stress disorder (PTSD) and an earlier effective date for the award of the 50 percent disability rating for PTSD. The RO sent the Veteran a letter in June 2021 requesting a written notice of withdrawal for the claims of service connection for right and left hand disabilities and right and left elbow disabilities that were still on appeal; however, no response has been received to date. Therefore, the Board will proceed and adjudicate the claims of service connection for right and left hand disabilities and right and left elbow disabilities. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) in which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred, or aggravated, while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131. Periods of ACDUTRA and INACDUTRA include periods of authorized travel to or from such duty. 38 C.F.R. § 3.6(e). Entitlement to service connection for right and left elbow disabilities The Veteran contends his bilateral elbow pain symptoms began in May and September 2006 as a result of an attack when traveling home from drill and falling during a volleyball game and have continued since his separation from service. Private treatment records from May 20, 2006 and a civilian police report noted that the Veteran fell to the ground after he was attacked with a glass bottle and punched in the face when returning to his parent's apartment after drill on May 20, 2006. In February 2020, the Veteran reported during a VA examination that he fell in 2006 and experienced elbow pain immediately after that progressed since its onset. A VA examiner noted the Veteran's diagnoses of right and left elbow strain in 2006 and found that it was at least as likely as not that the Veteran's bilateral elbow disabilities were related to the September 2006 documented injury to the Veteran's neck and back when playing volleyball or the May 2006 assault when returning from duty. For the following reasons, entitlement to service connection for right and left elbow strain is warranted. A February 2020 VA examination report noted the Veteran's diagnoses of right and left elbow strain. Thus, the Veteran meets the current disability requirement. Private treatment records from May 20, 2006 and a civilian police report indicated that the Veteran was attacked when returning from military service, while military personnel records reflect that the Veteran was in an INADUCTRA status on May 20, 2006. Therefore, as periods of ACDUTRA and INACDUTRA include periods of authorized travel to or from such duty, and the Veteran was returning from INACDUTRA when he was attacked and injured on May 20, 2006, the Veteran meets the in-service injury requirement. As the February 2020 VA examiner explained the reasons for the conclusions based on an accurate characterization of the evidence of record, the opinion is entitled to some probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The Veteran has consistently reported throughout the appeal period that he experienced bilateral elbow pain symptoms in and since active service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's reports are credible and competent as there is nothing to explicitly contradict them. For the foregoing reasons, there is competent, probative evidence of current bilateral elbow disabilities, in-service injury, and a nexus between the two. Entitlement to service connection for right and left elbow strain is therefore warranted. Entitlement to service connection for right and left hand disabilities The Veteran's service treatment records from June 1983 note the Veteran received treatment for bilateral hand blisters. There are no other service treatment records that note any diagnosis, treatment for, or complaints of right and left hand disabilities. The Veteran's July 1984 separation examination, March 1988 service examination, October 1989 Report of Medical History, November 1994 service examination, September 1998 service examination, and April 2006 service examination all indicated that the upper extremities were normal and did not indicate any abnormality with regard to the hands. Post-service treatment records do not note any diagnosis, treatment for, or complaints of left hand disability at any time during the pendency of the claim, and the evidence of record does not indicate the Veteran is currently suffering from left hand disability, or any related disabilities or symptoms. The February 2020 VA examiner noted that the Veteran experienced subjective pain of the right middle finger. There are no other post-service treatment records that note any diagnosis, treatment for, or complaints of right hand disability at any time during the pendency of the claim. Considering the evidence of record under the laws and regulations as set forth above, the Veteran is not entitled to service connection for right and left hand disabilities. The preponderance of the evidence reflects that the Veteran does not have and has not had at any time during the pendency of the claim or approximate thereto, right or left hand disabilities, or any related disabilities or symptoms that cause impairment in earning capacity. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim"); Saunders, 886 F.3d at 1364-65 (pain need not be diagnosed as connected to a current underlying condition to function as an impairment and pain alone can be considered a disability under 38 U.S.C. § 1131); Clemons, 23 Vet. App. at 4-5 (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). There is no evidence in the Veteran's service treatment records, other than the June 1983 service treatment record noting bilateral hand blisters, or post-service treatment records of any signs, notations, or diagnoses of right or left hand disabilities, or related disabilities or symptoms. Moreover, the evidence of record does not reflect right or left hand disability, or related disabilities or symptoms that cause impairment in earning capacity, or that are related to or may be associated with service, to include the bilateral hand blisters in June 1983. While the February 2020 VA examiner noted that the Veteran has pain in his right middle finger, there is no lay or medical evidence of pain causing an impairment of earning capacity, which is required to establish disability based on pain with no diagnosis pursuant to Saunders, supra. The Veteran has not undergone any treatment, medications, or surgery for his right middle finger, has not indicated that it impairs his earning capacity, and the VA examiner found that the pain in the Veteran's right middle finger did not impact his ability to perform any type of occupational task. Finally joint or muscle pain due to undiagnosed illness or medically unexplained chronic multisymptom illness may be compensated under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 for a veteran who served in the Southwest Asia theater of operations during the Persian Gulf War. For Persian Gulf war veterans who exhibit objective manifestations of a qualifying chronic disability, 38 U.S.C. § 1117 provides for presumptive service connection when the disability manifests "during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War" or to a degree of 10 percent or more before December 31, 2021, and which, "[b]y history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnoses." 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i), (ii). A "qualifying chronic disability" may be one that results from an "undiagnosed illness" or a "medically unexplained chronic multisymptom illness." 38 U.S.C. § 1117(a)(2)(A), (B); 38 C.F.R. § 3.317(a)(2)(ii). The term "medically unexplained chronic multisymptom illness" means "a diagnosed illness without conclusive pathology or etiology that is characterized by overlapping symptoms and signs." 38 C.F.R. § 3.317(a)(2)(ii). Neither the medical nor lay evidence reflects that the Veteran had joint or muscle pain or neurological signs or symptoms of either hand that existed for 6 months or more or exhibited intermittent episodes of improvement and worsening over a 6-month period. Thus, the evidence does not reflect the existence of objective indications of a qualifying chronic disability. 38 C.F.R. § 3.317(a)(4). As the preponderance of the evidence is against the claims of service connection for right and left hand disabilities, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.