Citation Nr: 21021802 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-33 011 DATE: April 14, 2021 ORDER Entitlement to service connection for a left elbow disability is denied. REMANDED Entitlement to service connection for a back disability is remanded. FINDING OF FACT The Veteran’s current left elbow disability has not been shown to be due to his active service. CONCLUSION OF LAW The criteria for service connection for a left elbow disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to March 1987, and from March 1988 to March 1992. This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision. In May 2016, the Veteran testified at a Board videoconference hearing before a Veteran’s Law Judge (VLJ). A transcript has been associated with the claims file. After the VLJ who held this hearing subsequently retired from the Board, the Veteran was offered the opportunity to appear at a new hearing before a different VLJ. By not responding, he declined a new hearing and the Board will proceed with the appeal. See 38 U.S.C. § 7107(c); 38 C.F.R. §§ 19.3(b), 20.707. In February 2019, the Board remanded these issues to the agency of original jurisdiction (AOJ) for further development. In June 2020, the RO granted service connection for left foot hammertoes and right foot hammertoes. This represents a complete grant of his appeal in regard to these claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military 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) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. The Veteran asserted that his left elbow disability is related to his active service. At the May 2016 Board hearing, he testified that while answering the phones during service, he noticed his left hand kept falling asleep and that it got worse after service, which required surgery and left a big scar on his elbow and that he continues to experience numbness. The Veteran’s service treatment records (STRs) are negative of complaints, treatment, or findings for any left arm or left elbow conditions. At September 1986, December 1987, September 1989, August 1990, and February 1992 physicals, he had normal examinations of his upper extremities and specifically denied having any elbow symptoms. Post-service, private treatment records dated in August 1995 reflect that the Veteran was involved in a motor vehicle accident (MVA) and report that he sustained a left elbow strain as a result of the accident. An x-ray revealed a radial compression fracture. An x-ray of his left elbow was normal. He reportedly had an EMG/NCS performed on his left arm around 1997. Private treatment records dated in May 2002 indicate that the Veteran had a left arm open reduction and internal fixation. Pursuant to the Board remand, the Veteran underwent VA examination in January 2020. The examiner noted a diagnosis of left ulnar neuropathy, residuals of left ulnar transposition surgery, but opined that it was less likely than not related to his active service. The examiner reported that the Veteran’s left elbow condition was most likely due to the left arm fractures which the Veteran reportedly had three times (as confirmed by the Veteran’s physical therapy treatment notes dated in September 1995). Addressing the Veteran’s contentions of in-service left arm or elbow numbness, the examiner reported that repetitive motion of answering phones or resting an elbow on a table did not cause or lead to an ulnar neuropathy. As the VA examiner explained the reasons for his conclusion based on an accurate characterization of the evidence, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the examiner specifically considered the Veteran’s lay statements in his opinion and found that, even if credible, they did not indicate a nexus between the current disability and the in-service injury. In this regard, the Board finds that the contemporaneous statements made by the Veteran in his separation report of medical history indicating that he did not have left arm or left elbow issues are of greater probative weight than the later statements of continuity of symptoms made during the course of an appeal from the denial of compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999). In addition, there is no contrary medical opinion in the evidence of record. Consideration has been given to the Veteran’s own assertions that his left elbow disability was due to his active service. He is competent to report elbow symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he lacks the medical training or qualification to diagnose an underlying chronic left elbow disability or to, by his own opinion, relate such disability to an event, injury, or disease in service. As the record does not show a diagnosis of left elbow arthritis, service connection for such disability based on a chronic disease presumptive basis, or based on continuity, is not warranted. For the reasons and bases set forth above, the preponderance of the evidence is against the claim of service connection for a left elbow disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Regarding the Veteran’s service-connection claim for a back disability, in his initial July 2011 claim, he asserted that his back disability was secondary to his now service-connected bilateral hammer toes. Prior to the Veteran’s active service, he injured his back while playing sports in October 1984. In May 1985, a lumbar x-ray showed probable fracture. He treated for back pain through April 1986. In September 1986, the Veteran’s physician reported that the Veteran did not have chronic back disease and was treated in the past for acute lumbosacral strain. His physician reported that the Veteran had no residual problems. The Veteran’s STRs show at in January 1987 and February 1987, he complained of back pain. He was diagnosed with chronic recurrent lumbar sprain. In March 1989, he again treated for back pain, however, a lumbar spine x-ray was normal. At his February 1992 separation physical, he denied having recurrent back pain and had a normal examination of his spine. After his separation from active service, the Veteran was involved in a motor vehicle accident in August 1995, but a lumbar spine x-ray was normal. In January 2004, he reported back pain after a fall. In April 2004, he reported back pain after wrestling with his son. He continued to treat for complaints of back pain in December 2008, October 2009, and October 2010. At a February 2013 VA examination, the Veteran reported that his back disability was due to his active service. Unfortunately, the examiner only provided an opinion regarding secondary service connection. A July 2016 lumbar spine x-ray showed mild arthritis. A January 2020 VA examiner opined that the Veteran’s lumbar spine was not due to or aggravated by his service-connected bilateral hammer toes. In July 2020, the Veteran again asserted that his back disability was due to his active service. Unfortunately, the claims file does not contain an opinion regarding direct service connection. As such, a remand is necessary to adjudicate the service connection claim for a back disability in order to obtain a medical opinion. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records or private treatment records regarding the Veteran’s back disability. 2. Obtain a medical opinion to address the nature and etiology of any current back disability. Only if an opinion cannot be provided without a physical examination should the AOJ arrange for a physical examination. The VA examiner should provide the following opinions: a. Is it at least as likely as not (50 percent or greater) that any back disability clearly and unmistakably existed prior to the Veteran’s active service? Why or why not? The examiner should discuss the Veteran back injuries prior to his active service and the findings of his physician. b. If a back disability did clearly and unmistakably exist prior to active duty service, provide an opinion as to whether the pre-existing back disability clearly and unmistakably (obviously, manifestly, and undebatable) was not aggravated (meaning the underlying disability increased in severity beyond the natural progression of the disability) during his active duty service. Why or why not? (Continued on the next page)   c. If a back disability did not clearly and unmistakably exist prior to active duty service, provide an opinion whether it is as least as likely as not (50 percent probability or greater) that any back disability either began during or was otherwise caused by his active service? Why or why not? The examiner should discuss the Veteran’s STRs showing treatment for back complaints during his active service and the Veteran’s lay statements regarding the etiology of his back disability. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.