Citation Nr: 21075733 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-45 381 DATE: December 21, 2021 ORDER Entitlement to service connection for a right elbow condition, to include right ulnar neuropathy and cubital tunnel syndrome, is denied. REMANDED In addition, claims for service connection for the following disabilities are remanded: low back pain; right knee condition; sleep disorder; residuals of frostbite of the hands, to include nerve damage; unspecified dental trauma; and acquired psychiatric disability, claimed as depression and posttraumatic stress disorder (PTSD), to include whether new and material evidence has been received to reopen the claim. FINDING OF FACT The probative evidence of record demonstrates that the Veteran's right elbow condition is not etiologically related to service nor is it related to his service-connected residuals of a healed right fifth metacarpal fracture (boxer's fracture). CONCLUSION OF LAW The criteria for service connection for a right elbow condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1977 to August 1978; and from May 1981 to March 1985. By way of history, the Veteran originally applied for service connection for 13 claims in a September 2011 application. A May 2013 rating decision denied the Veteran's claims. The Veteran filed a timely notice of disagreement (NOD) with the rating decision in November 2013. However, the regional office (RO) informed him that the NOD was inadequate because it did not specify the issues with which the Veteran disagreed. Thereafter, the Veteran clarified the issues on appeal in a May 2013 statement. Thus, the claims for service connection for tinnitus, presbyopia, left knee, and bilateral feet disabilities were not properly appealed. Service connection for a boxer's fracture was later granted and is no longer on appeal. The Veteran appeared and testified at a decision review officer (DRO) hearing in April 2016. A transcript of the hearing is associated with the record. The Veteran's claims were most recently before the Board in January 2019 wherein they were remanded for additional development. The claims have now returned to the Board. Service Connection 1. Entitlement to service connection for a right elbow condition The Veteran contends that he has a right elbow condition that is related to service and/or his service-connected boxer's fracture disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 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). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 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 Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran has current neurological disabilities of the right arm, status-post procedures: right ulnar neuropathy and cervical radiculopathy. Further, the Veteran is service-connected for his boxer's fracture and he claims his right arm condition comes from that service injury. Thus, the first two elements of service connection are met. Shedden, supra. The Veteran's service treatment records (STRs) indicate that the Veteran injured his right hand in a fight and was treated for a boxer's fracture of his right fifth metacarpal (pinky). The Veteran did not specifically complain of any neurological weakness of his right hand, but testified that he has experienced pain and weakness in that hand since the incident. While the Veteran's STRs indicate he checked the box for "trick or painful elbow/shoulder" at separation in August 1978, he complained of a sore left shoulder in May 1978. Therefore, the Board does not find that he was complaining of a right elbow/arm issue. The Veteran was afforded a VA examination in connection with his claim in October 2019. The examiner first gave the opinion that the Veteran's current neurological conditions are less likely than not related to service. The examiner first noted that the Veteran had an acute onset of symptoms in 2011, but nothing prior. Further, the clinician stated that the Veteran's symptomology during the period on appeal was related to the Veteran's cubital tunnel and cervical radiculopathy diagnoses. Those diagnoses are at separate anatomical locations and "would not be impacted by a [boxer's fracture] many years earlier." Next, the examiner explained that it is less likely than not that the conditions were caused or aggravated by the service-connected right hand disability. The clinician explained that residuals related to a boxer's fracture may appear if it is untreated, but that was not the case here. Further, the Veteran worked with his hands for many years and did not indicate any limitations with his hands until the later diagnoses of cubital tunnel syndrome and cervical radiculopathy. Finally, the clinician noted that while the symptoms occur in a similar area of the hand, the symptoms are related to the Veteran's nerves and not to a healed bone fracture. The Board gives the VA clinician's opinion great probative weight because it considered the Veteran's medical and occupational history and the clinician has the medical expertise to render such an opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran testified that he only sought treatment at VA facilities. There is no indication of any pain or neurological dysfunction of the Veteran's right elbow until February 2011. Further, the VA clinician who completed the December 2013 "hand and finger" disability benefits questionnaire (DBQ) noted a "sudden onset mid-February of 2011" of his symptoms. This DQB did not provide a nexus opinion. Given the above, the criteria for service connection are not met. The Board has considered the Veteran's lay opinion that his right elbow/neurological conditions are related to service and his service-connected boxer's fracture disability. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the Veteran is competent to report the symptoms he experienced. See Jandreau v. Nicholson, 492 F.3D. 1372, 1377 (Fed. Cir. 2007). However, the Board finds relationship of his symptoms and their medical etiology to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, while the Veteran is competent to describe his symptoms, he cannot, as a layperson, provide competent medical evidence establishing a connection between the two. Consequently, the Board gives more probative weight to the medical evidence discussed above. To the extent that the Veteran contends he has had neurological pain related to right arm prior to February 2011, the Board does not find the Veteran's reports to be credible. While the Veteran is competent, the Board gives more probative weight to the contemporaneous medical evidence that does not establish a neurological condition prior to February 2011. Thus, the weight of the evidence is against the claim for service connection for a right elbow condition. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for low back pain is remanded. 3. Entitlement to service connection for a right knee condition is remanded. 4. Entitlement to service connection for a sleep disorder is remanded. 5. Entitlement to service connection for residuals of frostbite of the hands, to include nerve damage, is remanded. 6. Service connection for unspecified dental trauma is remanded. 7. Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disorder claimed as depression and posttraumatic stress disorder is remanded. The Veteran's claim was previously remanded to allow the RO to obtain the Veteran's personnel records from his second period of active-duty service. The RO was specifically directed to "contact the National Personnel Records Center (NPRC), Fort Sill, and any other appropriate government records depository, to obtain the Veteran's military personnel file and service treatment records for his second period of active service." Further, the RO was to "contact the appropriate agencies, to include the Department of the Army, the Army Corrections System (ACS), to obtain records of the Veteran's confinement at Fort Sill during his second period of active duty service between May 1981 to March 1985." While the RO contacted the NPRC and a formal finding of unavailability was obtained, it is not clear from the record whether Fort Sill was directly contacted to obtain the Veteran's records. Further, it is even more unclear whether the Department of the Army or ACS was contacted to obtain the Veteran's records of the Veteran's confinement at Fort Sill. Given this, the Board finds that a remand for another attempt to obtain these records is required. The Veteran has identified that he served in the "1st and 18th F.A. Battalion", in Augsburg, Germany. As for Fort Sill, the Veteran asserts that he was notified to return to duty in September 1984 and stayed until he was discharged in March 1985. While the Board finds that records are required for adjudicating the Veteran's claims, the Board finds that even if these records are not associated with the file, a medical opinion is warranted on the Veteran's claims for service connection for a right knee condition and residuals of frostbite. A VA examination is necessary prior to final adjudication of a claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifested during an applicable presumption period for which the veteran qualifies, (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) there is insufficient competent medical evidence of record for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran testified that he experiences symptoms in the cold and has problems with his right knee, which appear to be related to his meniscus. Further, the Veteran submitted a buddy letter explaining that during the Veteran's second period of service, the buddy saw the Veteran's frostbite and saw a cast on his right leg. See VBMS, document labeled Affidavit, receipt date August 9, 2012. As such, the Board finds that a remand for an evaluation is warranted in this case. The matters are REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), Fort Sill, and any other appropriate government records depository, to obtain the Veteran's military personnel file and service treatment records for his second period of active service. The Veteran served in the 1st and 18th F.A. Battalion, in Augsburg, Germany. Make two requests. The attempts to obtain the records should specifically certify that Fort Sill was contacted in an attempt to obtain the Veteran's personnel file for his second period of active service. 2. Contact the appropriate agencies, to potentially include the Department of the Army, the Army Corrections System (ACS), to obtain records of the Veteran's confinement at Fort Sill during his second period of active duty service between May 1981 to March 1985. The Veteran served in the 1st and 18th F.A. Battalion, in Augsburg, Germany. Make two requests. The attempts to obtain the records should specifically certify that the Army and/or ACS were contacted in an attempt to obtain records of the Veteran's confinement at Fort Sill during his second period of active duty service between May 1981 to March 1985. 3. Obtain an examination from an appropriate clinician regarding the Veteran's claimed right knee condition. The clinician should answer the following question: Is it at least as likely as not that the Veteran's right knee condition, to include meniscus symptomology, is related to service, to a fall during service? The absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a negative nexus opinion. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Obtain an examination from an appropriate clinician regarding the Veteran's claimed frostbite residuals. The clinician should answer the following question: Is it at least as likely as not that the Veteran's frostbite residuals are related to service? The absence of contemporaneous records showing complaints of or treatment for the conditions, alone, is insufficient rationale for a negative nexus opinion. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.