Citation Nr: 21075595 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-09 793 DATE: December 21, 2021 ORDER The petition to reopen the previously denied claim for a right elbow disability (previously denied as tendonitis, right elbow) is granted. REMANDED Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a right elbow scar is remanded. FINDING OF FACT An unappealed December 2006 rating decision denied entitlement to service connection for right elbow tendonitis; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The December 2006 rating decision denying service connection for right elbow tendonitis is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1990. These matters come before the Board on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a July 2021 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript has been associated with the file. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right elbow disability. The Board concludes that the December 2006 rating decision denying the claim to reopen the previously denied claim for entitlement to service connection for right elbow tendonitis is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). An August 1991 rating decision denied service connection for a right elbow tendonitis because the evidence of record showed no chronic disability. The evidence considered by the RO included the Veteran's STRs, a January 1991 VA examination, a February 1991 VA examination and his application for disability compensation. VA notified the Veteran of this decision in an August 1991 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the August 1991 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. In January 2006, the Veteran filed a claim to reopen his previously denied service connection claim for right elbow condition. A December 2006 rating decision denied reopening the claim of entitlement to service connection for right elbow tendonitis, finding no new and material evidence. The evidence considered by the RO included the Veteran's lay statements, including an April 2006 statement of problems with right elbow, STRs, VA treatment records and an April 2006 VA examination showing normal right elbow findings. VA notified the Veteran of this decision in December 2006 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the December 2006 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. Thereafter, in September 2010, the Veteran filed a claim to reopen his previously denied service connection claim for a right elbow condition. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. Specifically, there is an April 2021 private medical assessment reflecting that the Veteran has a current diagnosis of medical epicondylitis of right elbow. This evidence was not previously considered by decision-makers and tends to support the claim. It is noted that the August 1991 rating decision noted that tendinitis of the right elbow was acute and fully resolved; and the recent evidentiary submissions show a current disorder of the right elbow. Therefore, the Board finds that new and material evidence has been received. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for right elbow disability is remanded. The Veteran contends that his right elbow disability resulted from an injury in service onboard USS Fulton and he has experienced symptoms since. See Hearing Transcript (July 2021). He detailed that, after he retired, he started having right elbow problems and began treatment at VA Des Moines, but was not diagnosed with any particular condition. He stated that he went to a private physician, Des Moines Orthopedics, who said he had damage to his right elbow and performed medial epicondylectomy, which relieved pain only temporarily; and that the records of the surgery had been destroyed. He stated that he self-medicated after service and sought treatment in around 1997, but the records of such treatment are also unavailable. In support of his claim, the Veteran submitted two statements. A January 2021 statement from Captain J.K., who served with the Veteran, suggests that the Veteran wore a sling for three months after injuring one of his arms. See Third Party Correspondence (July 2011). His former employer, N.D., provided a statement in February 2012 that the Veteran was employed from December 1990 to July 1995, and that she remembered that he went to the VA hospital and private orthopedic practice, where he underwent surgery. See Third Party Correspondence (July 2011). To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Turning to the evidence of record, a November 1983 service treatment record (STR) shows history of pain along lateral right elbow; pain increased on extension of wrist; the Veteran was assessed with probable epicondylitis. See STR-Medical (November 2014). Later in November 1983, he still had tenderness on the lateral right elbow with extension of the wrist, which was assessed as lateral epicondylitis. Id. In December 1983, it was treated with injection and reinjection. Id. A February 1984 STR shows persistent right elbow pain especially with resistance against dorsiflexion of wrist shown to persist despite steroid injections and anti-inflammatories; it was evaluated as medial epicondylitis. Id. A June 1984 STR provides that the Veteran returned with pain in the right medial epicondyle; provisional diagnosis was medial epicondylitis. Id. In July 1984, he again returned for follow-up and stated that his right elbow was feeling good with some point tenderness at medial epicondyle, which felt like a bruise. He was discharged from physical therapy and instructed to contact the clinic, if the condition would persist or worsen. In October 1989, the Veteran was involved a motorcycle accident, which resulted in abrasions on both elbows; elbows had full range of motion, but there was swelling. Id. In January 1990, the Veteran complained of severe elbow pain. Id. In March 1990, chronic elbow pain after the second motor vehicle accident in October 1989 was noted; it was assessed as medial epicondyle; treatment was indicated as ice massage for three weeks. Id. At his separation examination in September 1990, the Veteran's upper extremities presented with normal findings. Id. Post-service, a November 1991 VA treatment note shows reports of sharp right elbow pain located at the ulnar notch with intermittent very mild aching over medial elbow at times. See Medical Treatment Record - Government Facility (October 2010). The provisional diagnosis was "R/o nerve entrapment." Nerve conduction studies were normal. Id. An April 2006 VA examination suggests limited range of motion of the right elbow as well as tenderness from a medical hypopigmented scar. See VA examination (April 2006). The examination provided in the remarks section that the Veteran had right elbow ulnar release surgery "unrelated to established diagnosis of left elbow sprain, which has resolved." Id. An April 2021 private treatment note from Dr. B. F., MD, reflects an assessment of medial epicondylitis of the right elbow. See Medical Treatment Record - Non-Government Facility (July 2021). Dr. B. F. note also shows that medial injection helped but had not satisfactorily relieved his pain and that physical therapy for six weeks was recommended. Id. As stated above, the Veteran's STRs show multiple notations of right elbow pain, assessments of epicondylitis and injuries from November 1983 to March 1990. Moreover, the Veteran sought treatment for right elbow pain in November 1991, which is thirteen months after separation from active duty. More recently, in July 2021, the Veteran was assessed with medial epicondylitis of the right elbow. Because there is an indication of a current disability affecting the Veteran's right elbow, as well as in-service complaints of pain, injury and assessments of epicondylitis, the Board finds that the low threshold of McLendon is satisfied and a VA exam is warranted. The Board notes that, after the Veteran filed his initial claim for service connection for right elbow disability in December 1990, he underwent VA examinations in January 1991 and March 1991 that noted that right elbow condition was claimed. However, neither examination addressed the etiology of the Veteran's right elbow condition. An April 2006 VA examination did not provide a right elbow diagnosis, while finding some abnormal findings as stated above; however, the only etiological opinion provided at that time was that the Veteran had right elbow ulnar release surgery, unrelated to established diagnosis of left elbow sprain." See VA Examination (April 2006). None of the examinations reflect a review of the Veteran's complete. As such, in view of the record and the Veteran's statements, the Board believes that VA's duty to obtain a VA medical opinion is triggered in this case. McLendon, 20 Vet. App. at 81-82. The Board observes that the evidence needed to trigger VA's duty to furnish an examination or medical opinion is low. Lastly, remand is required to attempt to obtain relevant private medical records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). The Veteran has submitted a statement from Dr. B.F., showing that the Veteran had been receiving injections for his right elbow. See Medical Treatment Record - Non-Government Facility (July 2021). At his July 2021 hearing, the Veteran also reported receiving recent treatment at Tallgrass Orthopedics and the record was held open so that the Veteran could provide VA with copies of these records. However, he has not done so. Notwithstanding, as remand is otherwise necessary to fulfill VA's duty to assist, the Veteran should be afforded the opportunity to authorize release of any outstanding relevant treatment records to VA, to include Dr. B. F. and Tallgrass Orthopedics. The Veteran is reminded that VA's duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. Entitlement to service connection for right elbow scar. The Veteran contends that his right elbow scar resulted from surgery for his right elbow disability after service, and thus service connection is warranted on a secondary basis. Because the issue of service connection for right elbow scar is inextricably intertwined with the issue of entitlement to service connection for right elbow disability. See, e.g., Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, adjudication is deferred pending the outcome of the claim. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his right elbow disability since service discharge, including Dr. B. F. and Tallgrass Orthopedics. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain all VA treatment records dated from March 2020 to the Present. 3. Thereafter, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any right elbow disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Detail the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms; if there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. The opinion should reflect, among other things, include a discussion of the Veteran's documented history, including multiple reports of injuries and pain from 1983 to 1990 and assessments of epicondylitis and treatment with injections at that time. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The examiner must opine on: Whether any current right elbow disability at least as likely as not (a) began in service (or was first manifested then), or (b) is related to an in-service injury, event, or disease, including multiple reports of injuries and pain from 1983 to 1990 and assessments of epicondylitis and treatment with injections. Note (1): If another etiology is the more likely cause, the clinician must identify that cause and provide a complete explanation of his or her reasoning. Note (2): The clinician is not required to accept the Veteran's theory that his military service caused his right elbow disability, or that he had symptoms associated with the disability during or following military service if this is incongruous with the record or accepted medical principles; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation or rejects any history provided. 4. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.