Citation Nr: 21023056 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-65 246 DATE: April 20, 2021 REMANDED Entitlement to service connection for a left elbow disability is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a left elbow disability is remanded. The Veteran had active service from January 1980 to January 1983, with additional periods of reserve service thereafter, to include from June 13, 1987 to June 27, 1987. This matter originates from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied entitlement to service connection for a left elbow disability. A January 2020 VA examination report reflects that the Veteran has a current diagnosis of degenerative arthritis of the left elbow. The Veteran contends that his current left elbow disability is a result of a fall he sustained during a period of annual training from June 13, 1987 to June 27, 1987. He states that he was cooking and hot grease splashed on him. The Veteran has already been granted service connection for a left elbow scar related to the grease burn. At his July 2019 hearing, the Veteran testified that at the same time he suffered the grease burn, he fell on his left elbow. The Veteran contends that his current left elbow disability is the result of his reported fall. In November 2019 the Board remanded the Veteran’s left elbow claim to obtain a VA examination. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board now finds that there has not been substantial compliance with its November 2019 remand directives, as the examination obtained is not adequate. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA examination was obtained in January 2020, at which time the examiner offered a diagnosis of degenerative arthritis of the left elbow. However, with respect to the cause or origin of this disability, the examiner stated as follows: “Requested medical opinion cannot be rendered as requested. [Service treatment records] provided for review are silent for any complaints of and/or treatment rendered for left elbow pain along with the burn injury. There is no documented elbow trauma that will explain the radiographic/PE findings.” As an initial matter, the Board finds that the January 2020 VA examiner’s opinion is not directly responsive to the question at issue, i.e. whether it is at least as likely as not that the Veteran’s current left elbow disability had its onset in, or is otherwise related to, an event, injury, or occurrence during a period of active service. Further, the Board notes that the examiner’s purported inability to answer the question is premised on a lack of documentation of an in-service elbow injury or elbow trauma. In this regard, the Board notes that the absence of evidence is not substantive negative evidence. Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). VA may use silence in the service treatment records (STRs) as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the STRs. See Buczynski v. Shinseki, 24 Vet. App. 221, 225-26 (2011). Laypeople are competent to report symptoms and experiences observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In light of the foregoing, the Board finds that the Veteran’s claim for a left elbow disability should be remanded to obtain a VA medical opinion that is both responsive to the question at hand and consistent with the applicable law The matters are REMANDED for the following action: (Continued on the next page)   1. Forward the claims file, including this remand, to the examiner who provided the January 2020 opinion. If the January 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinion should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file, to include this remand, was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is requested to render an opinion as to whether it is at least as likely as not (i.e., a likelihood of 50 percent or more) that any currently diagnosed disorder/disability of the left elbow is a result of the Veteran’s service or any incident occurring during active duty for training from June 13, 1987 to June 27, 1987. The examiner should specifically address the Veteran’s lay statements that after he was burned, he fell, resulting in injury to his left elbow. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.