Citation Nr: 21075784 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-59 660 DATE: December 21, 2021 ORDER Service connection for right elbow disability is denied. FINDING OF FACT The Veteran's right elbow disability was not shown in service or for many years thereafter, and has not been found to be etiologically related to service. CONCLUSION OF LAW The criteria for service connection for right elbow disability have not been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. § 3.303,3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1979 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ). In May 2021, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303 (b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303 (b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Issue: Entitlement to service connection for right elbow disability. The Veteran contends that his current right elbow disability is related to service. At his hearing, he testified that in boot camp he "fell down and landed on [his] elbow." See Hearing Transcript at 2. The Veteran filed his claim in June 2016 which was denied by rating action of November 2016. The Veteran's service treatment records are entirely negative for any complaints, treatment, or diagnosis of right elbow injury, report of pain or a disability. He had normal findings on a periodic clinical examination, with no musculoskeletal problems, joint pain reported at the time. See Report of Medical Examination and Report of Medical History dated May 1980. Likewise, post-service medical records do not show any complaints, treatment, or diagnosis of a right elbow disability until many years after separation from service. In fact, the earliest medical notation for a right elbow diagnosis was in October 2004 where he was diagnosed with "advanced degenerative, post-traumatic appearing arthritis with extensive osteophytosis". He had surgery on his right elbow in December 2004. See records from Orthopedic Surgery and Sports Medicine Group. To that end, the Board notes that no VA examination was been obtained in relation to the claim on appeal. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claims for right elbow disability. The weight of evidence is against a finding that the claimed condition had its onset during active service or within one year of separation from active service or competent evidence even suggesting that the current right elbow disability may be associated with service. The Board also finds sufficient competent medical evidence of record to make a decision on the claim. As to the Veteran's assertions of chronic right elbow pain since service, while competent, are not fully credible and are outweighed by other probative evidence of record. Specifically, post-service treatment records simply do not show any persistent symptoms or ongoing treatment related to a right elbow disability until 2004, approximately 22 years after separation from service. Notably, private treatment record of October 2004 shows the Veteran's report at the time that he was "unable to recall any specific injuries" regarding the onset of pain, popping, and snapping in his right elbow. See records from Orthopedic Surgery and Sports Medicine Group. Therefore, the Board ascribes heightened credibility to the statements made at the time of treatment and finds the Veteran's recent recollections made in connection with his pending claim for VA benefits less probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Furthermore, the Board notes that the prolonged period without a diagnosis is probative evidence against the claim. Critically, there is no medical opinion of record even suggesting that the currently diagnosed right elbow disability is related to the Veteran's service. The Veteran has not submitted any evidence to the contrary. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Board recognizes the Veteran's personal assertions that his right elbow is related to service. While the Veteran is certainly capable of describing the medical history and competent to report symptoms observable to a layperson, he is not competent to independently opine as to the specific etiology of a claimed disability or render a medical nexus of a disability to service, as such requires medical expertise and the ability to interpret diagnostic medical testing, including X-ray imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For this purpose, the Veteran's assertions do not constitute competent medical evidence, and the Board assigns more weight to the medical evidence. Lastly, the Veteran's degenerative arthritis manifested well after one year after the Veteran separated from active service. Although arthritis may be considered a chronic disease for VA purposes, degenerative arthritis was not clinically shown to a compensable degree within one year following the Veteran's discharge from service. See 38 C.F.R. § 3.307(3). There is also no persuasive credible lay evidence that degenerative arthritis manifested to a compensable degree within one year following the Veteran's discharge from service. Id. As discussed in detail above, medical records following service do not reflect any problems related to arthritis or affecting his bones or joints. As such, service connection on a presumptive basis is not warranted under 38 C.F.R. §§ 3.303(b), 3.307, 3.309. After weighing all the evidence of record, the Board the preponderance of the evidence weighs against finding that the Veteran's right elbow disability began during service or is otherwise related to an in-service injury, event, or disease. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).] KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.