Citation Nr: 21072686 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-27 937 DATE: December 6, 2021 ORDER Entitlement to service connected for a left elbow disorder is granted. Entitlement to service connected for a right ankle disorder is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his left elbow disorder is related to his in-service injury. 2. Resolving reasonable doubt in the Veteran's favor, his right ankle disorder is related to his in-service injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a left elbow disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right ankle disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from May 1969 to May 1989. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The hearing was conducted in August 2020 by the undersigned judge and the hearing transcript has been added to his claims file. Thus, these matters return to the Board for adjudication. Service Connection Generally, service connection may be granted for a disability resulting from a 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities such as arthritis is presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connected for a left elbow disorder is granted. Entitlement to service connected for a right ankle disorder is granted. The Veteran contends that his left elbow and right ankle disorders are the result of in-service accidents. See Hearing Transcript pg. 3 & pg. 10. In the September 2017 VA examination, the Veteran was diagnosed with left olecranon bursitis with a bone spur and degenerative arthritis in the right ankle. In the Veteran's service treatment records, he marked that he had broken bones and a compliant about his legs on his retirement examination in January 1989. Furthermore, it was noted in 1988, that he had a stress fracture in his tibia. The Veteran submitted a military picture of him with a cast on his right foot which was dated December 1976. The Board also notes that a large part of the Veteran's service treatment records are illegible. The Board also notes that the record contains six separate opinions which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). When faced with conflicting medical opinions, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). In an August 2017 treatment note by Dr. J. K. for the Veteran's right ankle, he wrote that he has seen the December 1976 personnel record of the Veteran in a right lower extremity cast in the claims file. The Veteran reported that he had pain and problems since that time with his right foot and ankle. The provider noted that he believes with the differences in the X-rays between the Veteran's left and right subtalar and ankle joints that the injury while in the military in 1976 caused the pathology. In his opinion, it is more likely than not that this injury to the right foot/ankle in 1976 has caused the current and chronic problem in his right foot and ankle. The Board finds this opinion to be adequate as the physician reviewed the Veteran's file and gave an explanation that was supported by the data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). Furthermore, the medical examination report contained clear conclusions with supporting data and a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301. Therefore, the etiology opinion is of great probative value. In an August 2017 treatment note by Dr. J.W. for the Veteran's left elbow, the provider diagnosed the Veteran with olecranon bursitis and explained that the Veteran's left elbow does not fully extend and is very tender. The examiner concluded that the condition of the elbow is more likely than not (greater than 51 percent) related to an injury sustained when the patient sought medical treatment in 1986 while in the Marines. The Board finds this opinion inadequate for adjudication purposes. The provider did not indicate whether the Veteran's claims file or service treatment records are reviewed. Moreover, no rationale was provided for this opinion. See Nieves-Rodriguez v. Peake, supra. Therefore, this medical opinion is inadequate and of low probative value. In the September 2017 VA examination for both the Veteran's left elbow and right ankle, the examiner opines that the conditions claimed are less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the opinion of Dr. J.W. is in error. The examiner reasoned that there is no medical or scientific evidence linking a left elbow injury from the Veteran's time in service (28 years ago) to his current condition. The examiner emphasized that the Veteran's service treatment records are silent on an elbow injury and bursitis and neuritis are temporary processes that resolve over time. Thus, concluding that the bone spur has no link to his military service. In terms of the right ankle disability, the examiner opined that the Veterans claimed right ankle condition is less likely as not (50 percent or greater probability) the result of an in-service ankle injury. The examiner reasoned that there is no medical or scientific evidence linking an ankle injury from his time in service (28 years ago) to his current condition today. The examiner emphasized that the Veteran's service treatment records are silent on an ankle injury. The examiner acknowledges that the Veteran cites evidence of an ankle injury with the photo of a foot in a cast while he was in service and that he reported unspecified, in service, foot problems on a periodic medical exam dated December 1984. However, the examiner concludes that any foot problems would be unrelated to the Veteran's current problem of subtalar (ankle) osteoarthritis, because there is no evidence linking his ankle arthritis to his military service. However, much of the examiner's reasoning against a nexus for both claims were a lack of evidence in the service treatment records, and although he addressed some evidence, concluded that there is no evidence in the service treatment records that warrant a nexus. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of in-service injury and instead relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). The Board finds this opinion inadequate for adjudicative purposes and of low probative value. In a June 2018 Correspondence by J. R., Ph. D, he emphasizes that he is not a license physician or of any arm of the medical establishment to provide a medical diagnosis. However, with his sports medicine background, the author opines that the Veteran's two primary complaints with his left elbow and right ankle pain are valid and further legitimized by his attending physicians per their copious notes. The author continues to note that it appears that for each diagnosis they are consistent in citing previous injury as the primary cause of his current chronic afflictions and that it is consistent with current sports medicine research. As such, the author opined that the Veteran's current physical maladies would certainly fall into the above categories of "joint injuries" and "trauma initiated joint degeneration" as outlined in his medical records. The author concluded that it is his opinion that these injuries more than likely than not began during the Veteran's military service. The author of his opinion is not a medical professional or a physician and is not qualified to provide a diagnosis or etiology opinion. The Board also notes that the author of this opinion acknowledges that he is not qualified to render a medical diagnosis. This opinion is therefore afforded no probative weight and has no probative value. Similarly, in a June 2018 Correspondence by K.F., Ph.D., the author opines that bone spurs do not grow spontaneously and that some type of trauma always precede their growth. The author notes that after reviewing the Veteran's file, his current bone spur, especially given their slow growing nature, can more likely than not be attributed to the injury to his elbow in 1986 that was documented in his medical records. The author noted that, as cited in the current literature and noted in the documentation by the Veteran, most all of the osteoarthritis of the ankle is caused by previous injuries. Therefore, the photograph provided by the military to him as part of his official military files showing his casted ankle in 1976 suggests that the injury sustained at that time is more likely than not to have caused the osteoarthritis the Veteran is experiencing in the author's opinion. The author of his opinion is not a medical professional or a physician and is not qualified to provide a diagnosis or etiology opinion. This opinion is therefore afforded no probative weight and has no probative value. Lastly, in a September 2018 Correspondence by his primary care physician, Dr. M.H., for his left elbow, the physician emphasized that the Veteran sought medical attention in September 1986 and was diagnosed with ulnar nerve compression syndrome. The physician noted that the Veteran's X - rays in 2017 showed a very large bone spur on the left olecranon process, that the length of the enthesophyte indicates the condition has existed for decades and may have very likely started to develop when injured in 1986. The physician opined that the scientific evidence indicates that the cause of ulnar nerve entrapment is posterior olecranon enthesophyte and chronic olecranon bursitis. The physician emphasized that the time of his visit in September 2017, the Veteran was not fully aware of his ulnar nerve entrapment diagnosis in 1986. The physician noted that the did mention to the physician, at the time, that he had numbness and tingling in his left ring and little fingers of his left hand and that these three conditions are interwoven together. The physician noted that the posterior olecranon enthesophyte causes irritation to the olecranon bursa which, in turn, causes the chronic bursitis. Based on the 1986 injury and subsequent persistent symptoms, the physician opined the ulnar nerve condition can be qualified as moderate to severe ulnar neuritis. The physician concluded that based on the medical and scientific evidence, the Veteran's left elbow condition is more likely than not the result of the injury he sustained in September 1986, which are not temporary conditions but are chronic in nature and will continue. The Board finds this opinion to be adequate, because the doctor is competent to provide the opinion, reviewed the Veteran's file and gave an explanation that was supported by the data. See Nieves-Rodriguez v. Peake, supra. This opinion is of high probative value. The Board finds that when resolving reasonable doubt in the Veteran's favor, the evidence is at least in equipoise as to whether his current left elbow disorder and right ankle disorder are the result of his service as the etiology opinions discussed above are of relatively equal weight. The Board notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). In consideration of all the evidence of record, the Board finds that the evidence is in relative equipoise as to whether the Veteran's a left elbow disorder and a right ankle disorder had its onset in active service and will resolve the benefit of the doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Service connection for a left elbow disorder and a right ankle disorder is granted. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.