Citation Nr: 21069243 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-58 297 DATE: November 17, 2021 ORDER As new and material evidence has been received, the petition to reopen a claim of entitlement to service connection for a right knee disability is granted. As new and material evidence has been received, the petition to reopen a claim of entitlement to service connection for a left elbow disability is granted. However, the underlying claim for service connection for a left elbow disability is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right-hand disability (residuals of a fracture of the second metacarpal) is remanded. FINDINGS OF FACT 1. The Veteran's claims for service connection for a right knee disability and a left elbow disability were previously considered and denied in an August 1996 rating decision; but additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is neither cumulative nor redundant of the evidence of record at the time of that last prior final and binding denial of these claims and raises a reasonable possibility of substantiating them. 2. Still, however, the most probative (meaning most competent and credible) evidence is against finding that the Veteran has a left elbow disability that was caused or aggravated by his service or a service-connected disability. CONCLUSIONS OF LAW 1. Evidence received since the last final and binding denial of the claims of entitlement to service connection for a right knee disability and a left elbow disability is new and material; consequently, these claims are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302, 20.1103. 2. The criteria are not met for entitlement to service connection for a left elbow disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1975 to July 1995. He testified in support of these claims during an August 2021 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. New and Material Evidence A claim that has been previously considered and denied will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. §3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. This claim for service connection for a right knee disability was originally denied by a local Department of Veterans Affairs (VA) Regional Office (RO) in an unappealed (and therefore final and binding) August 1996 rating decision. At that time, the RO found that the claim was not well grounded because there was no medical evidence that a chronic disability existed. Added to the record since the last final and binding denial of this claim is a September 2014 VA radiology record confirming mild degenerative changes of the right knee. Thus, this evidence is new and material to the claim and consequent reason to reopen it. The reopened claim will be discussed in the remand section below. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left elbow disability This claim of entitlement to service connection for a left elbow disability also was originally denied by the RO in an unappealed (and therefore final and binding) August 1996 rating decision. Initially, the Board clarifies that the RO's grant of service connection in 1996 was for the right elbow and not for both elbows. The Board is mindful that the August 1996 rating decision sheet references a grant of service connection for bursitis/tendonitis of the "elbows"; however, the corresponding VA rating code sheet notes a grant of only "right elbow bursitis/tendonitis". In addition, the August 26, 1996 correspondence to the Veteran states that "[y]our disabilities listed below are service-connected" and specifically lists, among others, "[r]ight elbow bursitis/tendonitis"; it does not list a left elbow disability as having been granted service connection. Also, the March 1996 VA examination report, upon which the grant of service connection for a right elbow disability was based, in part, does not reflect a diagnosis or even complaints referable to the left elbow. Service connection requires, at minimum, evidence of a current disability. The "implicit denial" rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address the claim in its decision. Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The implicit denial doctrine is, at its heart, a notice doctrine, in that it depends in great part on whether the claimant had notice that his full claim was denied and that he had the opportunity to appeal. Adams, 568 F.3d at 961. See also Cogburn v. Shinseki, 24 Vet. App. 205 (2010). When applying the implicit denial rule, the key issue is whether an objectively reasonable claimant would have been on notice that entitlement to the claimed benefit was implicitly adjudicated and denied. The Board finds that an objectively reasonable claimant would have been put on notice in August 1996 that service connection for a left elbow disability was denied when the Veteran was notified that service connection had been granted for a "right" elbow disability and was not notified specific to his left elbow. At the time of the August 1996 denial, the record included a March 1996 VA examination report showing the Veteran had complained of right elbow pain; the report is unremarkable for a complaint of left elbow pain. Since that denial, an April 2015 Disability Benefits Questionnaire (DBQ) has been added to the record indicating the Veteran has left elbow tendonitis. Thus, this evidence is new and material to the claim, and this claim resultantly is being reopened and re-adjudicated de novo. A remand is not necessary for RO readjudication of this claim because it already did that in a September 2014 rating decision and in an October 2017 Statement of the Case (SOC). Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Also, according to 38 C.F.R. § 3.310, service connection may be granted as well, on a secondary basis, for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 3. Entitlement to service connection for a left elbow disability May 1981 and August 1994 service treatment records (STRs) note complaints referable to the right elbow but are unremarkable for left elbow complaints. However, the Veteran's March 1995 Report of Medical History for retirement reflects that he reported "bursitis in both elbows since 1994, secondary to weight lifting, treated w/Naprosyn, good results, NCNS [no complications, no sequelae]." His corresponding March 1995 Report of Medical Examination reflects normal upper extremities upon evaluation. The Veteran retired from the military in July 1995. A March 1996 VA examination report indicates that he had a then current complaint of "right elbow pain whenever touches it". But, notably, the report is unremarkable for any complaints referable to his left elbow. The Board finds that, if he also was having issues with his left elbow at that time, owing to pain or whatever other symptom, it stands to reason he also would have reported them (just as he did regarding his right elbow). See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). A June 1999 Hampton Roads Orthopaedics Sports Medicine record reflects that the Veteran reported right elbow problems for approximately four to five months in duration. Additional records in July and September 1999 note complaints or treatment for the right elbow. The records are unremarkable for left elbow complaints. June 2001 private records reflect that the Veteran presented with right elbow pain; he was diagnosed with "golfer's elbow", and records in July, October, and November 2001 note right elbow complaints/treatment. The records are unremarkable for left elbow complaints. A December 2001 VA clinical record reflects that the Veteran had an active problem of tendinitis of the right elbow; the report is unremarkable for left elbow complaints. A September 2002 VA clinical record notes that he complained of flare ups with right elbow pain but is unremarkable for left elbow complaints. The Board find that if the Veteran had had chronic complaints of the left elbow since service, it reasonably would have been noted upon examination in March 1996, and/or upon examination/treatment in 1999, 2001, or 2002. While a Veteran does not need to, and cannot be reasonably expected to, complain of each problem he may have when seeking treatment for one disability, it seems that if he was seeking treatment for a right elbow, and had complaints of the left elbow, it would have been noted as they both involve the same body parts (i.e., the elbows). The earliest clinical evidence of a post-service left elbow complaint is not until 2003, which is more than seven years after separation from service. A June 2003 VA clinical record reflects that the Veteran had a flare up of tendinitis in the "lt" elbow and had injection in the "lt" elbow three weeks earlier; however, the assessment was tendonitis of the "rt" elbow. Assuming in the Veteran's favor that this was a typographical error and it was the left elbow that was being assessed, it would still be almost 8 years after separation from service. The lapse of time between service separation and the earliest documentation of the now claimed disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). A June 2005 NorthCrest record reflects that the Veteran reported left elbow pain. It was noted that he had a history of "golfer's elbow" and had aggravated it after cooking hamburgers at a fund raiser for four to five hours. He was assessed with "tennis elbow". (Tennis elbow is lateral epicondylitis, whereas golfer's elbow is medial epicondylitis. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY and/or clinical records.) Subsequent records reflect that the Veteran had been placed on corticosteroid injections and had recurrent tennis elbow (see May 2006, August 2006, and October 2006 private records), and that in June 2007, he was assessed with both medial and lateral epicondylitis, as he reported that the "inside of his arm is starting to bother him as well". He continued to have treatment (e.g., March 2008, September 2008). An October 2008 record reflects that the examiner had "felt that it was a strain over his medial epicondyle from weight-lifting that would likely get better. We did not place any type of a corticosteroid injection and unfortunately I guessed wrong. He says that the elbow has actually gotten worse. He has had to stop doing any type of weight lifting because of pain." (See also August 2009 record) A November 2009 NorthCrest record reflects that the onset of the Veteran's left elbow pain has "been gradual and has been occurring in an intermittent pattern for months". The Veteran had surgery in January 2010 for a left elbow golfer's elbow release and a tennis elbow release. The Veteran contends that he has a left elbow disability due to overuse from compensating for his service-connected right elbow and right wrist disabilities. However, he is not competent to provide a probative opinion concerning this posited correlation or to otherwise relate his left elbow disability to his service. This determination is beyond his lay competence. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). See also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Moreover, there is no clinical opinion to support such a relationship. His mere lay assertion is insufficient upon which to trigger the Board's duty to obtain a medical opinion concerning etiology. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Federal Circuit Court held that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A (d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. But the Federal Circuit Court went on to clarify in Waters that a Veteran's mere conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination, since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case. Although in 1995, the Veteran reported that he had elbow bursitis diagnosed in 1994, he had normal findings upon examination in 1995. In addition, there are no subsequent complaints for more than seven years, and during that time, the Veteran was involved in weightlifting and other activities. There is no probative opinion that any claimed bursitis in service was related to a subsequent post-service left elbow disability, especially as the Veteran weight-lifted post-service. Moreover, any contention as to continuity is less than credible given the lack of clinical complaints when complaining of the right elbow. Finally, bursitis (inflammation of the bursa) or epicondylitis (inflammation of the epicondyle or the tissues adjoining the epicondyle of the humerus) are not chronic disabilities warranting service connection under 38 C.F.R. §§ 3.307 and 3.309. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of a claimed disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records. In other words, the mere absence of evidence does not necessarily equate to unfavorable evidence. There are a line of precedent cases supporting this proposition. See, e.g., Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). See also 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). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias...."). In this case at hand, not only is there a lack of clinical records noting continuity of symptoms since service, but the clinical records discussing left elbow complaints in the 2000's do not discuss an onset in service. There is no competent and credible indication that it is as likely as not the Veteran has a current left elbow disability that is related or attributable to his service or to a service-connected disability. For these reasons and bases, service connection is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 4. Entitlement to service connection for a right knee disability A September 1994 STR reflects that the Veteran had painful knees with exercises and a history of a knee injury. It was noted "bilateral knee pain. Suspect DJD". His 1995 Report of Medical History for retirement purposes notes that a follow up to a left knee torn cruciate ligament revealed 'osteoarthritis both knees, treated w/Naprosyn, fair results, diagnosed Nov 94." Although there is an STR noting mild degenerative changes of the left knee as early as 1980, the STRs are unremarkable for a clinical diagnosis of arthritis based on x-ray for the right knee (but note the Veteran's report of such). There is not a November 1994 radiology record for either knee associated with the claims file. If radiology records are maintained at the NAVMEDCEN (Navy Medical Center) Portsmouth, VA. between September 8, 1994 and March 24, 1995 (and likely in November 1994), VA should attempt to obtain all records for the Veteran's right knee. If no records are available, a supplemental clinical opinion may be useful. Post service, a March 1996 VA general medical examination report reflects occasional left knee pain for which he takes Naprosyn, but the report is unremarkable for right knee pain. A December 2001 VA record notes that the Veteran runs two miles per day and has intermittent pain of the left knee with running. Again, the report is unremarkable for left knee pain. A September 2013 VA record reflects that the Veteran reported he has been having more joint pain to elbow/knees. This is approximately 18 years after service. In August 2014, the Veteran asserted that both knees hurt. A September 2014 VA record notes mild degenerative changes at the right knee. The claims file includes an October 2017 probative opinion that the Veteran's right knee disability is not secondary to his service-connected left knee disability; but it does not include an opinion on direct service connection. Moreover, under 38 C.F.R. § 3.309, arthritis warrants service connection if it manifests within a compensable degree within a year of separation from service. The Board finds that a supplemental opinion may be useful. A clinician should provide an opinion as to whether it is as likely as not that the Veteran had a current right knee disability causally related to service. To this end, the clinician should discuss whether the September 2014 VA radiology record noting "small osteophytes" and an impression of "mild degenerative changes" supports that he had osteoarthritis in 1994 or 1995, or whether the level of severity in 2014 is indicative of a more recent onset. 5. Entitlement ot service connection for residuals of a fracture of the second metacarpal is remanded. The Veteran is in receipt of service connection for residuals of a fracture of the right wrist scaphoid bone with degenerative changes, status post-surgical repair. He contends that service connection is also warranted for a right-hand disability other than the wrist. In November 1975, several months after entrance into service, the Veteran sustained a fracture of the right mid-shaft of the right second metacarpal. Upon x-ray, there was an incidental finding of an old nonunion of the navicular, which the Veteran reported he had for several years, but which does not give him much trouble. His hand was placed in a cast for his right second metacarpal fracture, and a follow up x-ray revealed satisfactory position in alignment. His March 1995 Report of Medical History for retirement purposes reflects that he had had a full recovery of a fractured right hand. It was also noted that he had a scaphoid fracture of the right wrist of unknown etiology which was manifested by pain. In sum, he had two fractures noted in service; one (the metacarpal) which occurred in November 1975, and one (navicular/scaphoid) which had likely occurred pre-service but caused pain in service. In May 1995, the Veteran filed a claim for service connection of a right wrist nonunion of the navicular; A March 1996 VA examination report reflects that the Veteran reported that the fracture of his right hand was well-healed. Upon examination, there was no pain, but the Veteran reported that sometimes he cannot grip because of wrist pain (radial side on the flexor area). In an August 1996 rating decision, the RO granted service connection for a right wrist fracture of the navicular bone. Approximately two decades after separation from service, an October 2017 DBQ reflects that the Veteran had all normal range of motion of the right hand, no gap between the thumb and the fingers, no gap between the fingers and proximal transverse crease, and no pain noted on examination. There was no evidence of pain with use of the hand, and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran had full hand grip strength. Upon x-ray there was an old, healed fracture deformity involving the mid-shaft of the second metacarpal, which the examiner found had no impact on functioning. The examiner found that there is no current hand disability because the injury in service had resolved. The Veteran testified at the 2021 Board hearing that he now gets a "lot of swelling" in his hand, and that his index finger gets stiff during cold weather, and that it aches "a lot". The Board is cognizant of the Court's ruling in Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), which found that pain alone can constitute a disability. However, the Court in Saunders cautioned that a Veteran cannot demonstrate service connection simply by asserting subjective pain. Rather, the Court stated "[t]o establish the presence of a disability, the veteran will need to show that [his or] her pain reaches the level of functional impairment of earning capacity." Id. Although the Veteran did not have disability upon examination in 2017, he may now have a disability resulting from his in-service fracture of the second metacarpal. Thus, the Board finds that another examination may be useful. Accordingly, these claims are REMANDED for the following action: 1. Attempt to obtain radiology records, if any, for the Veteran's right knee taken at the NAVMEDCEN (Navy Medical Center) in Portsmouth, Va., between September 8, 1994 and March 24, 1995 (and likely in November 1994). 2. If there are no radiology records for the Veteran's right knee from 1994, obtain a supplemental opinion to the October 2017 DBQ. The clinician should opine whether it is as likely as not (50 percent or greater probability) that the Veteran's mild degenerative changes noted in September 2014 were present in service. The clinician should also opine as to whether it is as likely as not (50 percent or greater probability) that the Veteran has a current right knee disability causally related to service. The clinician should consider the pertinent evidence of record to include: a) the 1994 STR which reflects that the Veteran had painful knees with exercises; it was noted "bilateral knee pain. Suspect DJD"; b) the March 1996 VA general medical examination report which is unremarkable for right knee complaints; c) the December 2001 VA record noting complaints of the left knee but which is unremarkable for complaints of the right knee and notes that the Veteran runs two miles a day; and d) the complaints of right knee pain in 2013 and a September 2014 VA radiology record noting mild degenerative changes at the right knee. 3. Schedule the Veteran for an examination of his right hand to determine whether he has current residuals of a fracture of the second metacarpal. The clinician should comment as to the Veteran's range of motion, and any other pertinent factors, and whether pain, if any, of the healed second metacarpal fracture causes functional impairment in earning capacity. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.