Citation Nr: 21021800 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 12-08 929 DATE: April 14, 2021 ORDER Entitlement to service connection for a left elbow disability is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left hip disability is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his current left elbow disability is due to his active service. CONCLUSION OF LAW The criteria for service connection for a left elbow disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1987 to February 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in February 2018, April 2020, and December 2020 for further development. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Given the Board’s favorable disposition of the service connection claim for a left elbow disability, the Board finds that all notification and development action needed to fairly adjudicate this part of the appeal has been accomplished. 1. Entitlement to service connection for a left elbow disability is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166 67 (Fed. Cir. 2004). Based on a careful review of all the subjective and clinical evidence, the Board finds that resolving all reasonable doubt in favor of the Veteran, his service connection claim for a left elbow disability is warranted. According to an April 2002 service treatment record, the Veteran injured his back while he was taking trash on wheeled cart down a ramp. He lost his footing on an oil slick and the cart lurched forward, but the Veteran maintained his grip. Further, K. J., the Veteran’s immediate supervisor during service, provided a credible statement as to the Veteran’s injury to his elbows while attempting to stop a trash receptacle. The evidence, including March 2010 VA x-rays, show that the Veteran had bilateral olecranon osteophytes on his elbows with early degenerative joint disease. In an October 2011 opinion, M.S., a VA medical provider, noted that the Veteran had pain in both elbows and imaging studies supported a diagnosis of olecranon spurs. He opined that it was as likely as not that the Veteran’s current elbow condition was related to the injury he incurred during service. Specifically, M.S. referred to the Veteran grabbing a large barrel trashcan to stop it from rolling. The force and weight of the can reportedly hyperextended both of his elbows, injuring both. In a February 2019 VA medical opinion, the examiner opined that it was less likely than not that the Veteran’s left elbow condition was due to service based on no complaints of or treatment for a left elbow condition during service. In a June 2020 VA medical opinion, the examiner opined that it was less likely than not that the Veteran’s left elbow condition was due to service based on no complaints of or treatment for a left elbow condition during service. The examiner noted the Veteran’s statements regarding a car accident and falling off a ladder. In a December 2020 VA medical opinion, the examiner opined that it was less likely than not that the Veteran’s left elbow condition was due to service based on no complaints of or treatment for a left elbow condition during service. The examiner also indicated that there was no left elbow condition. The Board finds that the VA medical opinions did not address the favorable October 2011 opinion, the in-service incident when the Veteran attempted to stop a rolling trashcan, or the Veteran’s diagnosis of left elbow olecranon osteophytes. As such, the Board affords the VA opinions little probative weight. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a left elbow disability is warranted. The October 2011 opinion indicates that it is as likely as not that the Veteran’s left elbow disability is due to service and the VA medical opinions have no probative weight. Accordingly, his claim for service connection for a left elbow disability is granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability, left shoulder disability and a left hip disability. In its December 2020 decision, the Board directed the VA examiner to opine as to the nature and etiology of the Veteran’s right shoulder disability, left shoulder disability, and left hip disability. The examiner was also directed to explain whether the absence of documentation of the claimed conditions in the service treatment records is significant and consider the Veteran’s contention of continuity of symptomatology since service. However, in the December 2020 VA medical opinion, the examiner merely found that there was no objective evidence of related complaints or treatment during or immediately following service and dismissed the Veteran’s statements by finding that there was no indication that they had been deemed competent without providing further rationale. Additionally, the VA medical opinions of record did not address whether the Veteran’s right and/or left shoulder disability was due to an in-service motor vehicle accident. Service records show that the Veteran had hit his head on the windshield during the accident that he had contended, through his attorney, that he had injured his shoulders. VA medical opinions of record also did not address whether the Veteran’s currently diagnosed left hip degenerative changes, which was found in a March 2019 x-ray, was due to his service. In the February 2021 appellate brief, the Veteran’s representative indicated that his claimed disabilities were related to his current service-connected disabilities. As such, a remand is warranted to obtain VA examinations. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his right shoulder disability, left shoulder disability, and left hip disability. After reviewing the claims file, the examiner should address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s right shoulder disability, left shoulder disability, or left hip disability are etiologically related to his service, to include his claimed injuries aboard the U.S.S. Saipan and a July 1993 motor vehicle accident? (b) Is it at least as likely as not (a fifty percent probability or greater) that the right shoulder disability, left shoulder disability, or left hip disability was caused by a service-connected disability? (c) If not, is it at least as likely as not (a fifty percent probability or greater) that the right shoulder disability, left shoulder disability, or left hip disability was aggravated (worsened) by a service-connected disability? In answering questions (a), attention is invited to an August 1993 letter documenting an in-service motor vehicle accident in which the Veteran claimed to have injured both shoulders (labelled “STR - Medical” – pgs. 28 to 29 – uploaded 11/29/2014); and April 2002 service treatment record noting a back injury when the Veteran slipped while holding a cart (labelled “STR - Medical” – pg. 80 – uploaded 11/29/2014); the Veteran’s September 2006 separation report of medical history and November 2006 separation examination (labelled “STR - Medical” – pgs. 18, 25 – uploaded 11/29/2014); and the Veteran’s assertions that he has experienced bilateral shoulder and hip pain since his period of service. All opinions expressed must be accompanied by a complete rationale. If the absence of evidence of documentation of the claimed disabilities during the Veteran’s service is significant, the examiner must explain why this is so. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.