Citation Nr: 21006825 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-01 045 DATE: February 5, 2021 ISSUES Entitlement to service connection for degenerative joint disease of the right radiocapitellar joint, claimed as torn ligaments of the right arm. REMANDED Entitlement to service connection for degenerative joint disease of the right radiocapitellar joint, claimed as torn ligaments of the right arm is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1970. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). In September 2018 and again in January 2020, the Board remanded this appeal for further development. Although the Board regrets any possible delay, in light of the contentions in the December 2020 Informal Hearing Presentation (IHP), a remand is necessary. This will ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for degenerative joint disease of the right radiocapitellar joint, claimed as torn ligaments of the right arm is remanded. The Board incorporates its discussion from the sections above by reference. By way of legal criteria, To establish service connection a Veteran must generally show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” Evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356 (2018). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). By way of background, the Veteran contends that he suffered an injury during service and has had continued impairment to this day. He avers that while working as a guard in a maximum-security building, as he was letting one of the prisoners out to use the bathroom, they got into an altercation. The Veteran contends that he was knocked down the stairway, injuring his right elbow. See November 2012 Statement in Support of Claim. Next, in private treatment records received in May 2013, Dr. C. M. noted that the Veteran reported a history of right elbow pain due to an in-service incident. They include an impression of “Scheurer x-rays reveal degenerative changes of the radiocapitellar joint in which appears he has an old malunion of the radial head fracture.” The same imaging reports were resubmitted in September 2019. Later, in June 2019, the Veteran was afforded a VA examination. The VA examiner diagnosed the Veteran with posttraumatic degenerative changes of radiocapitellar joint of the right elbow and healed right radial head fracture. In the associated June 2019 VA medical opinion, the VA examiner opined that the Veteran’s current right arm disability was less likely than not related to the Veteran’s service. The rationale was that the Veteran was seen for a cyst on the right arm during service and that there is no relationship between the Veteran’s in-service treatment and his current right elbow condition. The VA examiner noted that there was no other diagnosis of an elbow or wrist condition in service. As part of the January 2020 Board Remand, the Board considered the June 2019 VA medical opinion to be inadequate. The Board held: The Board finds that this medical opinion is inadequate because it fails to consider the Veteran’s lay statements that he has suffered ongoing right elbow pain since his fell down the stairway during an in-service altercation with the prisoner. See Miller v. Wilkie, 18-2796, (Jan 16, 2020). Although the VA examiner noted in the report that the Veteran reported ongoing elbow pain since his in-service altercation, simply noting the Veteran’s statements, without actual discussion of the Veteran’s lay contentions is insufficient.” The January 2020 Board Remand directives required that competent lay evidence be considered and discussed by the VA examiner as part of an addendum medical opinion. Next, the Veteran was afforded a February 2020 VA addendum medical opinion. The directives requested, “In providing this opinion the VA examiner must address the following: The examiner MUST discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include the Veteran’s ongoing reports of related to his right arm pain.” The VA examiner ultimately rendered a negative nexus opinion. The VA examiner reasoned in part: The veteran’s history and sequence was (sic) reviewed, but there is no evidence in the record to support an injury of the type claimed. The separation exam was negative for an elbow condition. It is exceedingly unlikely that the veteran would’ve had a significant injury in 1969 that would’ve led to DJD that would not have been symptomatic at the end of service. The veteran did not seek care until 6/6/03 for right elbow soreness. This is a span of over 30 years. There is no objective evidence of an injury in-service, and the cyst removed from the arm is unrelated to degenerative joint disease. There was no chronic condition at the end of service. There was greater than 30 years from the end of service until the first documented history of right elbow soreness. Therefore, it is less likely than not that the veteran[’]s degenerative changes of the radiocapitellar had its nexus in-service or was due to any events occurring in service. Recently, the Veteran through his representative submitted a December 2020 Informal Hearing Presentation (IHP). In it, they highlight the same deficiencies in the VA medical opinions of record as the Board did in January 2020. The IHP reads in part, “However, it is apparent that examiner failed to consider the Veteran’s lay statements that he has suffered ongoing right elbow pain since his fall down the stairway during an in-service altercation with the prisoner. See Miller v. Wilkie, 18-2796, (Jan 16, 2020).” The Board observes that in Miller v. Wilkie, 32 Vet. App. 249 (2020), the United States Court of Appeals for Veterans Claims (Court) held that this duty required that an examiner “address the veteran’s lay statements to provide the Board with an adequate medical opinion,” in part because “medical opinions can inform credibility findings.” Moreover, “[a] medical opinion is adequate when it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, a remand is necessary in compliance with the January 2020 Board Remand directives to cure the error identified in the December 2020 IHP. As required by the January 2020 Remand directives, the VA medical opinion should include a consideration of lay statements regarding continuity and chronicity. We note that the need for remand now arises because the previous examination has been deemed inadequate by the Board, and the February 2020 VA medical opinion still does not comply with Miller, supra. Under Stegall, compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran should be afforded a new VA examination with medical opinion regarding the nature and etiology of his claimed right arm disability that includes a consideration of his lay history. Therefore, a remand is warranted. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any degenerative joint disease of the right radiocapitellar joint, claimed as torn ligaments of the right arm. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. In providing this opinion the VA examiner must address the following: The examiner MUST discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include the Veteran’s ongoing reports of related to his right arm pain. S/HE should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. Attention is invited to the December 2020 IHP describing the Veteran’s theory of entitlement. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 3. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.