Citation Nr: 21070464 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-39 044A DATE: November 24, 2021 ORDER Service connection for lateral epicondylitis, to include on a secondary basis, is denied. Service connection for cubital tunnel syndrome, to include on a secondary basis, is denied. Entitlement to a temporary total evaluation for a condition requiring convalescence for lateral epicondylitis is denied. Entitlement to a temporary total evaluation for a condition requiring convalescence for cubital tunnel syndrome is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's lateral epicondylitis and/or cubital tunnel syndrome had onset in service, manifested to a compensable degree within one year of discharge, and lateral epicondylitis and cubital tunnel syndrome are not shown to be causally or etiologically related to any disease, injury, or incident in service, or a service connected disability. 2. As service connection has not been established for lateral epicondylitis and/or cubital tunnel syndrome, the Veteran is not eligible for the award of a temporary total convalescence rating based on surgery for lateral epicondylitis and/or cubital tunnel syndrome. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lateral epicondylitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for cubital tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for a temporary total disability rating based upon treatment for lateral epicondylitis requiring convalescence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. 4. The criteria for a temporary total disability rating based upon treatment for cubital tunnel syndrome requiring convalescence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1991 to March 1995, with additional service in the Air National Guard of Alaska. In August 2018, the Board remanded the appeal for additional development, which has been completed. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Certain evidentiary presumptions - such as the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C. §§ 101, 1112; 38 C.F.R. § 3.304 (b), 3.306, 3.307, 3.309. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for lateral epicondylitis 2. Service connection for cubital tunnel syndrome The Veteran seeks service connection for lateral epicondylitis and cubital tunnel syndrome affecting the right upper extremity, to include as secondary to a healed right hand hamate fracture. The service treatment records show that the Veteran fell and landed on his outstretched right hand in February 1995. At that time, he complained of pain in the fifth metacarpal area of the right hand. Imaging studies in March 1995, revealed no abnormalities. An assessment of tendinitis versus ligament strain was recorded. A June 1994 report of medical history reflects that the Veteran denied a history of trick or painful elbow or neuritis. The service treatment records contain no complaints, history or findings consistent with lateral epicondylitis and cubital tunnel syndrome. The Veteran was seen after service in May 1995 for follow-up on a presumed hamate fracture with complaint of continuing pain in the hypothenar eminence of the right hand. Bone scan/computerized tomography (CT) scan showed no evidence of fracture or any other objective pathology. In June 1995 an assessment of questionable mid-carpal ligament tear was recorded, but there were no significant objective findings except for the subjective complaint of pain. A periodic examination report in February 1998, shows that the Veteran's neurological system and upper extremities were clinically evaluated as normal. In a report of medical history, he denied a history of trick or painful elbow or neuritis. A May 2011 VA treatment report noted lateral epicondylitis of the right elbow symptomatic for four months without any specific mechanism of injury, although in school increase in typing was contributing to the pain. The clinician noted an assessment of lateral epicondylitis right elbow. In March 2013, right cubital tunnel was noted. The Veteran underwent right cubital release with lateral epicondyle release. In April 2013, he underwent right cubital tunnel release with revision of ulnar nerve at elbow, right lateral epicondyle release. A May 2012 MRI of the right elbow showed no discrete intra-artticular derangement. There was mild age-appropriate cartilage degenerate in and 1oss. A CT scan of the right wrist showed no significant abnormalities. Here, while the Veteran was seen for residuals of a right hand injury during and after service, he was not shown to have epicondylitis or cubital tunnel syndrome in service or within one year following discharge from service. Accordingly, competent evidence linking the current disabilities to service or a service-connected disability is needed to substantiate the claims. On VA examination in July 2013, the Veteran reported a long history of problems with his right wrist. He noted difficulty with pain along the area of the hamate fracture that impaired his ability to drive, open jars or anything movements that required hand pressure. Following an October 2012 surgical procedure for removal of the nonunion of the hamate, he continued to experience numbness and tingling in the 4th and 5th digits. He also underwent cubital tunnel release. The examiner diagnosed right lateral epicondylitis and cubital tunnel syndrome and opined that the disabilities were less likely than not proximately due to or the result of the Veteran's service connected condition because cubital tunnel syndrome and lateral epicondylitis were due to an elbow condition and were unrelated to the hamate bone. In an addendum opinion report in October 2018, following a review of the claims file, a VA examiner opined that it was less likely than not that the Veteran's lateral epicondylitis had its onset in service or was related to an inservice disease or injury. The examiner observed that the Veteran served on active duty until 1995, yet he was not diagnosed or evaluated for lateral epicondylitis in 2013. Moreover, the service treatment records were silent for any elbow or nerve pain. The examiner further opined that the Veteran's lateral epicondylitis was less likely than not caused or aggravated by the Veteran's service connected right hand hamate fracture. The examiner explained that a hamate fracture was caused by fracture of the carpal bone. It was an isolated area that could affect the wrist, and at times could result in ulnar nerve injury at the time of the fracture. Hamate fracture did not cause or aggravate lateral epicondylitis because epicondylitis involved the muscles and tendons of the forearm. It was usually caused by overuse as seen in playing tennis and other activities that required repetitive movement of the forearm muscles. The hamate had no correlation or effect on the forearm muscles. Concerning the Veteran's cubital tunnel syndrome, the examiner opined that it was less likely than not that the condition had its onset in service or was otherwise related to an in-service disease or injury. The examiner explained that cubital tunnel syndrome involved pressure of stretching the ulnar nerve. Ulnar nerve compression at the elbow was called cubital tunnel syndrome and EMG testing indicated how much the nerve was being affected. Here, the service treatment records failed to document any complaints of ulnar nerve issues or indication of any in-service injury or disease. Moreover, the examiner concluded that it was less likely than not that the Veteran's cubital tunnel syndrome was either caused or aggravated by his service connected right hand hamate fracture because cubital tunnel syndrome was due to compression of the ulnar nerve at the elbow where the cubital tunnel was located. The hamate fracture did not affect the elbow. The Board finds the opinion of the October 2018 VA examiner to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred cubital tunnel syndrome or lateral epicondylitis as a result of service or the service-connected healed right hand hemate fracture. The examiner's findings were based on a review of the evidence, including the service and post treatment records, and examination reports, which did not substantiate a finding that the Veteran sustained a cubital tunnel syndrome or lateral epicondylitis in service or as due to the service-connected disability. The examiner considered the complete record and the contentions from the Veteran, and provided an explanation as to why the evidence does not support a finding that his cubital tunnel syndrome and lateral epicondylitis were due to service or a service-connected disability. Additionally, the VA examiner provided reasoning that is supported by the record and the opinions are internally consistent and consistent with other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinion is of significant probative value. Significantly, there is no competent medical evidence that supports the claims on a direct or secondary basis. Although the Veteran sincerely believes that he acquired his right his cubital tunnel syndrome and lateral epicondylitis in service or as due to his service connected healed hemate fracture, and he is certainly competent to report as to the observable symptoms he experiences and their history, he cannot self-diagnose because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to service or his service-connected disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). While the Board acknowledges the Veteran's right hand and wrist complaints since service, such symptoms noted prior to 2011, have been attributed to the already service-connected healed hemate fracture. In summary, there is no competent evidence of right cubital tunnel syndrome and lateral epicondylitis in service or for many years thereafter. Moreover, the most probative and persuasive evidence is against a finding that the Veteran's right cubital tunnel syndrome and lateral epicondylitis are related to service or a service-connected disability. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claims for service connection for right cubital tunnel syndrome and lateral epicondylitis. As such, that doctrine is not applicable in the instant appeal, and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-56. 3. Entitlement to a temporary total evaluation for a condition requiring convalescence for lateral epicondylitis 4. Entitlement to a temporary total evaluation for a condition requiring convalescence for cubital tunnel syndrome The Veteran is seeking a temporary total disability ratings due convalescence as a result of surgical treatment for lateral epicondylitis and cubital tunnel syndrome. In this regard, a temporary total evaluation may be assigned without regard to other provisions in the rating schedule when it is established that a service-connected disability required hospital treatment for a period in excess of 21 days or hospital observation at VA's expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Moreover, a temporary 100 percent evaluation may also be assigned when it is established that a service-connected disability required surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or treatment with immobilization by cast of one major joint or more. 38 C.F.R. § 4.30. As set forth above, the Board has denied the Veteran's appeal of his claims seeking service connection for lateral epicondylitis and cubital tunnel syndrome. Given that service connection is a perquisite to a temporary total disability rating based upon convalescence and hospital treatment in excess of 21 days under 38 C.F.R. §§ 4.29 and 4.30, his claims seeking temporary total disability ratings fail as a matter of law and are denied because he has not been granted service connection for lateral epicondylitis or cubital tunnel syndrome. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.