Citation Nr: 21010081 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-31 609 DATE: February 24, 2021 ORDER The claim for service connection for left elbow arthritis is granted. The claim for service connection for left hand arthritis and hand swelling and numbness is denied. The claim for service connection for degenerative joint disease acromioclavicular joint effusion with inferior spur formation (also claimed as arthritis left arm and shoulder) is denied. The claim for an evaluation higher than 10 percent for a scar of the left elbow is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his left elbow arthritis was at least as likely as not related to an in-service injury. 2. The left hand condition consisting of arthritis, orthopedic disorder, hand swelling and numbness was not due to service, or caused or aggravated by the already service-connected left elbow residual scar. 3. A left shoulder condition that involved degenerative joint disease or arthritis was not due to service, or caused or aggravated by the already service-connected left elbow residual scar. 4. A higher rating for the left elbow scar based on the dimensions of the surface area, number of scar residual areas, and any functional impairment is not warranted. CONCLUSIONS OF LAW 1. Resolving reasonable doubt favorably, the criteria are met to establish service connection for left elbow arthritis. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria are not met for service connection for left hand arthritis and hand swelling and numbness. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria are not met for service connection for left shoulder arthritis. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 4. The criteria are not met for an evaluation higher than 10 percent for a scar of the left elbow. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1971 to June 1973. He passed away in 2015. The appellant is his surviving spouse, and has been formally substituted as the claimant in this matter. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2020). In October 2018, the appellant provided testimony at a videoconference hearing held before the undersigned Veterans Law Judge (VLJ) of the Board. The transcript of that proceeding is of record. By its May 2019 issuance, the Board reopened and remanded for further development the claims seeking service connection for left hand, shoulder, and elbow conditions. Also remanded was the inextricably intertwined issue of increased rating for a left elbow scar. Service Connection Neither the appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). There is no indication of any further relevant evidence or information that was not already obtained. The Board will proceed to the merits of the claims. 1. The claim for service connection for left elbow arthritis is granted. Under applicable VA law, service connection is available for current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2020). Service connection also may be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). If there was chronic disease in service, reappearance at any later date is service-connected, unless clearly due to an intercurrent cause. If not chronic, there must be continuity of symptomatology to link in-service disability to post-service condition. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (continuity of symptomatology principle limited to where involving those diseases already listed as “chronic” under 38 C.F.R. § 3.309(a)). Certain chronic diseases, to include osteoarthritis, may be presumed to have been directly incurred in active service without need for competent evidence proving a causal relationship to service, if manifested to a 10 percent level within one-year of service discharge. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection is available for a condition proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Secondary service connection also applies when a service-connected disability has aggravated a nonservice-connected disability. See 38 C.F.R. § 3.310(b). Whether to award service connection depends on review of all relevant evidence, medical evidence and lay statement, and the evaluation of its competency and credibility. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Based upon the evidence of record, the Board finds that the criteria are met for recovery on the claim for service connection for left elbow arthritis. There is sufficient indication here that the in-service injury the Veteran sustained, an automobile accident in 1972 with a considerably notated and continuing left elbow injury and symptomatology, is in all likelihood related to his post-service condition. In light of the continuity of symptomatology principle under VA law, found at 38 C.F.R. § 3.303(b) and that osteoarthritis is a chronic condition per section 3.309(a), a connection can be posited between service and present-day disability based upon reports of continuous symptoms. From the Service Treatment Records (STRs), a January 1973 record showed left elbow laceration present and required taking leave for one week, and that the laceration injury had been closed in a private hospital. When evaluated the following month, there was no effusion of the elbow or any other problem, and an x-ray was negative. There was no condition notated on separation. The Veteran later gave an account of the events and there is of record confirmation that he had a motor vehicle accident where the other car broadsided him at an intersection. The account he gave as to a car accident and left arm injury was from a December 1974 report part of an earlier filed claim and still roughly contemporaneous with service and incident at that time. Notated on November 1974 VA general medical examination, orthopedic examination was essentially normal except for slight weakness in the left hand, 4.5 inch arcuate scar over the left elbow which ran from the medial aspect superiorally to the lateral aspect inferiorally and over the course of the ulnar nerve to the upper inch or two. There was moderate tenderness over the ulnar nerve, posterior to the elbow but there was no loss in motion, no decrease in any reflex of sensory pattern. The diagnosis was in part residuals, trauma left elbow manifested by 4.5-inch scar and by slight tenderness over the ulnar nerve at the elbow. There was granted by a January 1975 VA Regional Office (RO) rating decision service connection for the left elbow scar, residuals of in-service injury. The Veteran filed a similar claim in 1986 for other residuals, claimed orthopedic problems, citing left arm and elbow problems, and particularly pain moving the left arm, elbow and wrist pain, difficulty holding objects for an extended time. A January 1986 VA outpatient consult done for purpose of evaluation of pain and numbness affecting the left elbow, found possible arthritis of the left elbow. A July 1988 VA consult states left elbow pain, no nerve entrapment. Seen later in March 1992 the assessment stated was degenerative joint disease, left elbow. A June 1992 EMG study of the left upper extremity showed mild bilateral cubital tunnel syndrome. The June 1992 VA examination report showed the diagnosis of status-post injury to the left elbow. It was reported diminished strength and pain to the left upper extremity. Other objective findings did not show documented limitation of motion. The Veteran’s March 1993 statement described having had an ongoing painful discomfort and inflammatory pain in the left elbow. He described taking pain relievers. It was stated a possible onset of arthritis. On VA examination in March 1995, there was described pain on use as affecting the left arm, elbow and shoulder, dropping objects, and difficulty completing various household tasks and over a period of time while driving. The diagnostic impression was status post soft injury to the left elbow in 1972, motor weakness of the left arm, left decubital tunnel syndrome. An April 1995 EMG study showed left elbow cubital tunnel syndrome. An April 1997 VA examination that was for the scar residuals from service-connected disability further showed limitation of function of the part affected, stating in connection with discussing scar residuals, he felt that intermittently he could not grasp well and that the hand and arm were numb. On VA examination of the joints region in February 1999, the diagnosis was status post left arm fracture with resultant decreased range of motion and decreased strength and pain. An x-ray showed that there was present an olecranon spur in the left elbow. VA examination of the peripheral nerves in June 2000 indicated no evidence of peripheral nerve condition involving the left arm, also could not confirm the presence of a cubital tunnel syndrome by electrodiagnostic studies or on neurological examination. A June 2000 x-ray completed at a private facility showed the findings of mild spur, left olecranon, appearing uncomplicated, otherwise, normal bilateral elbows. A September 2002 VA examination, found the left elbow joint appeared normal, the pain and discomfort with any other symptomatology present was stated to have been associated with the scar residuals of the original injury. The March 2004 report from a private orthopedic clinic did indicate presence of a left elbow condition, stating the clinical assessment by x-ray evaluation of left elbow arthritis radial capitellar joint. A July 2006 private clinical study at another facility did show on x-ray evaluation, the presence of calcific tendonitis left elbow. The September 2011 VA x-ray findings were as follows, that of possible olecranon bursitis, with calcification and olecranon spur that were present previously. In a September 2013 statement provided on the Notice of Disagreement (NOD) in association with the present claim, the Veteran indicated, “I suffer poor circulation all this begins at the scar on my left elbow it’s just a constant nagging dull pain on a daily basis, the arthritis swelling, numbness, is derived from this scar which I have been stressing for a number of years. The suffering is only getting worse the constant aches, discomfort, pain in my left entire arm.” By statement provided on an August 2015 VA Form 9 (Substantive Appeal) for purposes of this claim, the Veteran described a left elbow condition consisting of the entire arm affected with increased pain and swelling, could not use it most of the time, which started after an injury in service. Further described as part of this was arthritis left elbow, edema occurring several times a month. Further described as relevant to the overall picture as involving the left upper extremity, was left hand arthritis, swelling and numbness; and degenerative joint condition claimed as regarding the left arm and shoulder regions. At the October 2018 Board hearing, the appellant testified to the effect that she had observed the Veteran previously complaining about left elbow pain, and having to utilize an elbow brace that extended down to the area of the wrist. It was stated at times he could not bend or extend the elbow. Further stated was an observation that the service-connected left arm scar would have a keloid area that swelled up, would have instability, and interfered with daily function. According to the appellant, the Veteran had left elbow arthritis. The appellant further observed that the Veteran it appeared had the same painful issue involving the left elbow functionality more or less continuously since he and the appellant had met in the early 1980s. Further averred on the whole was that the left elbow arthritis had secondarily caused issues affecting the hand, because the pain from the left elbow radiated downwards. There was symptomatology that appeared to manifest in holding objects and daily activities. Similarly claimed was that the left arm arthritis and its associated pain radiated upwards to the shoulder region. At the request of the May 2019 Board remand, a VA medical opinion was obtained on the issue of secondary service connection, and whether left elbow arthritis had any relation to a service-connected left elbow scar. The January 2020 opinion that was obtained stated the following and weighed against the finding of secondary service connection. The claimant’s dates of service are June 15, 1971 to June 15, 1973. There was a 1/26/1973 visit for follow up laceration recommend dressing changes and treated with antibiotics. The 2/6/1973 separation exam marks no to painful or trick shoulder or elbow. There is no elbow shoulder or arm condition reported, no painful scar reported, and there is a normal exam. The 1/9/1986 x-rays left elbow are normal. The 4/23/1997 scar exam reports normal ROM, no keloid formation, no scar issues. The 6/15/2000 Neurology evaluation reported full use of arm and exam with normal EMG studies. I have reviewed the 5/21/2019 Board remand letter, the 10/12/2018 hearing, 11/15/2013 notice of disagreement, and 2008 and 2013 Veteran’s statements. The claimant’s claimed left elbow had no findings of arthritis more than ten years after separation from service. Based on medical records reviewed, the claimed condition of left elbow arthritis is less likely than not proximately due to or the result of the left elbow scar. Based on medical records reviewed, the claimed condition of left elbow arthritis was less likely than not aggravated beyond its natural progression by in service left elbow scar. Given the findings overall, notwithstanding also the more recent VA opinion that was obtained, the Board considers the preponderance of the evidence still favorable to this claim. There is enough of a clear occurrence of in-service injury with arthritis subsequently notated numerous times post-service, that realistically there is continuity of symptomatology. See 38 C.F.R. § 3.303(b). To the extent the VA opinion in January 2020 did not observe this and claimed arthritis was not notated post-service, that does not reflect what appears to be an accurate assessment of the medical findings, and so the opinion cannot be considered to carry significant probative value in this case. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). On several occasions there was sufficient documented medical and x-ray information, including from 1986 onwards that continued to show arthritis, and there is no indication otherwise. Accordingly, the evidence on the balance substantiates a direct causal relationship to service. There likewise is no need to further consider any theory of secondary causation, whether the scar itself caused secondary problems, in view of the grant of benefits stated above. The criteria for recovery as involving left elbow arthritis are considered met. 2. The claim for service connection for left hand arthritis and hand swelling and numbness is denied. 3. The claim for service connection for left shoulder arthritis is denied. On thorough review of the record, for the additional claimed left upper extremity disorders of left shoulder arthritis, and left hand arthritis, there is not a tenable grounds to find either claimed condition to be adjudicated service-connected. As for direct service connection, while there was in-service injury notated for the left arm, the documented incident of an auto accident during service, there is not post-service pathology clearly demonstrated. Left shoulder arthritis was notated at several decades after service. Left hand issues involving daily life activities and functioning showed up around a similar time. There were other problems than just left elbow arthritis, and the Veteran had described radiating pain for years after service. However, this did not occur at or near a similar pattern of continuity of symptomatology as was stated before with the left elbow. For instance, the 1974 VA general medical examination notated pain around the whole left arm, while any objectively diagnosed conditions were limited to the elbow region. Subsequently, more detailed clinical findings obtained in 1986, 1992 and for several years after that showed the presence of left elbow issues, with anything further and specifically in regard to the hand or the shoulder regions. There were no other findings that suggested a greater disability picture concerning the affected regions, further substantiated by the absence of diagnosis of neurological issues on VA examinations. Addressed in greater discussion below, a VA medical opinion on the direct causation issue, obtained by Board remand directive, also ruled out the likelihood of an association to service. As for secondary causation, on the theory raised that the already service-connected left elbow scar caused or aggravated left shoulder and hand issues, likewise there is not probative evidence from a lay witness or readily observed standpoint. A January 2020 VA medical opinion was obtained on these issues, both direct and secondary service connection. The examiner stated that the Veteran’s left hand arthritis with swelling “is not related to a scar that has no functional impact located at the elbow level.” Additionally, the examiner stated that based upon the medical records reviewed, it was less likely than not that the left elbow scar aggravated the hand arthritis beyond its natural progression. Regarding left shoulder arthritis, the examiner explained that it “is completely unrelated” to the left elbow scar. Additionally, the examiner stated that based on the medical records reviewed, it was less likely than not aggravated beyond its natural progression by the elbow scar. There is not further evidence showing that due to the service-connected residual left elbow scar there were any further symptoms that had a role in causing or aggravating hand or shoulder arthritis. These findings were obtained by medical opinion on the available record. Accordingly, on these grounds, and having address the evidence before it, the Board concludes that the preponderance of the evidence weighs against service connection for left hand and left shoulder disorders. Under these circumstances VA’s benefit-of-the-doubt doctrine does not apply here, and the claims are being denied. Increased Rating The claim for an evaluation higher than 10 percent for a scar of the left elbow is denied. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. The service-connected left elbow scar has been rated at the 10 percent level, in accordance with 38 C.F.R. § 4.118, Diagnostic Code 7804, pertaining to unstable or painful scars. Under 38 C.F.R. § 4.118, Diagnostic Code 7801, it is provided that scars other than on the head, face, or neck, that are deep or that cause limited motion, and cover an area of at least 6 square inches (39 square cm.) warrant a compensable evaluation. Note 1 to the criteria provides that a deep scar is one associated with underlying soft tissue damage. According to Diagnostic Code 7802, scars other than on the head, face, or neck, that are superficial and do not cause limited motion, and cover an area of at least 144 square inches (929 square cm.) warrant a compensable evaluation. A superficial scar is defined as one not associated with underlying soft tissue damage. Diagnostic Code 7804 pertains to evaluation of scars that are unstable or painful, with the assignment of a 10 percent rating for one or two such scars, 20 percent rating for three or four scars, and 30 percent rating for five or more scars. Note 1 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 provides that where one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note 3 states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under 7804 when applicable. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. A rating is to be assigned on the basis of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under another appropriate diagnostic code. The formal claim for increased rating higher than 10 percent for residuals of a left elbow scar was filed November 2011. The condition is rated at 10 percent under Diagnostic Code 7804. From the rating criteria available for evaluation of a scar condition, found at 38 C.F.R. § 4.114, there were not present findings so as to warrant an increased rating. There was one service-connected scar residual for rating purposes, and so the provisions at Diagnostic Code 7804 for 20 percent rating or higher do not apply. The provisions for any increased due to scar surface area measurements, per Diagnostic Codes 7801 or 7802 do not apply. The January 2012 VA examination which was completed during this time period stated the scar was 5.5 cm long and had a narrow area in width because the scar was linear. That leaves to be considered Diagnostic Code 7805 for any limitation of function as a category for rating scar residuals. During the January 2012 VA examination the Veteran denied the breakdown of the scar or alteration. There was no associated nerve or cardiovascular damage. The scar did not appear to be painful. There was further described pain with limitation of motion in the elbows and other joints, listed probably incorrectly as the “right shoulder” and either way the examiner indicated this to have been unrelated to the left elbow scar. There was not basis for increased rating under Diagnostic Code 7805. Based on the above, there is not indication of limitation of function due to the scar. To the point the appellant raised that the radiating pain and numbness from the left elbow led to problems with joint function, those are for distinctly claimed orthopedic conditions and are the claims addressed already. There is not specifically an indicated further symptomatology from the scar residuals. Additionally, the now service-connected left elbow arthritis is the basis for additional compensation in and of itself and that would include any limitation of motion or function due to arthritis. The preponderance of the evidence weighs against the claim for increased rating for left elbow scar residuals. For these reasons VA’s benefit-of-the-doubt doctrine does not apply here. As a result the claim is being denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.