Citation Nr: 21075273 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 12-33 213 DATE: December 20, 2021 REMANDED Entitlement to service connection for a left elbow disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1987 to August 1995, with subsequent service in the Army National Guard (August 1995 to August 2001) and Army Reserve (August 2001 to June 2007), including periods of active duty training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for a left elbow disability. The Veteran testified before the undersigned in a hearing at the RO in October 2013; a transcript is of record. This matter was previously before the Board multiple times, including in January 2015 and June 2017. Thereafter, a decision dated in January 2019 denied the service connection claim for a left elbow disability. This was appealed to the Court of Appeals for Veterans Claims (CAVC). In a March 2020 Memorandum Decision, the Court set aside the Board's decision, finding that the Board improperly relied on the lack of medical treatment between October 2004 and May 2011 in denying this claim. The Court found that the Board improperly made a medical inference against the Veteran's assertions of continuing left elbow symptoms, based solely on the lack of medical treatment between 2004 and 2011 unsupported by an independent medical basis for such an inference, and thus rendered inadequate its reasons or bases for its decision. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). After setting aside the Board's January 2019 decision, it remanded this matter to the Board for readjudication consistent with the Court's decision. The Board readjudicated this claim in November 2020 which again denied service connection for a left elbow disorder. The decision denying service connection for a left elbow disorder was returned to the CAVC, which granted a Joint Motion for Partial Remand (JMPR) in August 2021. The portion of the November Board's 2020 decision granting a 10 percent rating for hypertension was left undisturbed and is not part of this appeal. This matter is now returned to the Board for further consideration. 1. Service connection for a left elbow disability is remanded. Unfortunately the Board finds that another remand is necessary to ensure compliance with the August 2021 JMPR issued from the CAVC. The JMPR found that the Board failed to address lay statements regarding continuity of symptomatology in its November 2020 denial. Specifically, the Veteran's lay statements reporting continuous left elbow pain and limited mobility after his October 2004 in-service episode of infectious bursitis during active duty for training were found not to have been addressed. The Board finds that remand is needed to obtain a VA addendum opinion that adequately addresses these lay statements in considering the etiology of the current left elbow disability. Although multiple VA examinations with opinions have been obtained in May 2011, July 2012, March 2015, and June 2018, none of the examinations adequately addressed the competent lay evidence regarding the continuous symptoms of left elbow pain and limited mobility since the October 2004 infection when addressing the etiology of the left elbow disability. Of note, the June 2018 VA examiner was asked by the Board to consider the Veteran's lay statements that he has had pain and limited range of motion in his left elbow ever since the 2004 episode of left elbow bursitis. In the opinion, the June 2018 examiner noted the Veteran's history of complaints of left elbow pain with decreased range of motion for many years. However the examiner opined that the diagnosis of seronegative arthralgia involving the left elbow was the cause of the Veteran's current symptoms. This opinion attributed the current left elbow symptoms to the seronegative arthralgia, which was shown to have been diagnosed in 2011. However, the examiner did not discuss the lay evidence suggesting continued symptoms of pain and limited motion between 2004 and the diagnosis of seronegative arthralgia. This history was shown repeatedly in the records including, but not limited to a June 5, 2012 rheumatology clinic note noting he reported an inability to extend the arm since the 2004 infection and a July 27, 2016 primary care note which he reported pain in the left elbow since the bursitis was treated with antibiotics in 2004. Instead, the examiner concluded the left elbow cellulitis has healed without any residuals. The other VA examinations prior to June 2018 did not address this lay history of continued symptoms either. Thus corrective action is necessary to obtain a VA examination opinion which addresses this competent lay statement describing continuity of symptomatology after the October 2004 episode of infectious bursitis and the treatment in 2011 for a diagnosed seronegative arthralgia. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("once the Secretary undertakes the effort to provide an examination... even if not statutorily obligated to do so, he must provide an adequate one. Additionally, the Board notes that additional medical records have been obtained since the last RO adjudication, thus a review of this evidence should be undertaken to include issuance of a supplemental statement of the case if the appeal is not granted. The matters are REMANDED for the following action: 1. Forward the claims file, including a copy of this remand, to the individual who authored the June 2018 VA opinion, or another examiner if that individual is unavailable, to provide an addendum opinion. (A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence.) Review of the claims file should be noted in the examiner's report. The examiner should respond to the following: Is the Veteran's current left elbow disability at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? Please consider and discuss in the rationale the Veteran's competent lay statements that he has had pain and limited range of motion in his left elbow ever since the episode of left elbow infectious bursitis was treated during a period of active duty in October 2004 and prior to the diagnosis of seronegative arthralgia in 2011. The examiner is advised that the Veteran is competent to provide such lay evidence of continued symptoms despite the lack of contemporaneous medical treatment. .A complete rationale must be provided for any opinion offered. All lay and medical evidence should be considered. If the examiner cannot provide an opinion without resort to speculation, he/she should explain why that is the case and what, if any, additional evidence is necessary for an opinion. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.