Citation Nr: 21029033 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-32 674 DATE: May 12, 2021 REMANDED Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left elbow disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1965 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon. The issues on appeal were previously before the Board in October 2020, when they were remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See November 2020 supplemental statement of the case (SSOC). Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. 1. Entitlement to service connection for a right elbow disability is remanded. 2. Entitlement to service connection for a left elbow disability is remanded. The Veteran, in essence, contends that he is entitled to service connection for right and left elbow disabilities, as the disabilities had their onset during his active duty military service, and he has experienced symptoms ever since. He was afforded a VA authorized examination in November 2020 pursuant to the Board's October 2020 remand; however, the Board finds that the examiner failed to adequately address all of the relevant evidence of record in forming an opinion regarding the etiology of the Veteran's disabilities. During the November 2020 examination, the Veteran reported that he began to experience elbow pain during service in 1966 due to repetitive motion when painting and chipping paint. He indicated that the pain became worse over time, and he was later diagnosed with cubital tunnel syndrome and had surgery on his right elbow in 2018 to treat the condition. The examiner opined that the Veteran's right elbow condition was less likely than not due to his military service. The examiner noted that the Veteran experienced episodic elbow pain in 1966, but otherwise had no further issues. The examiner stated that the Veteran worked as an accountant after his separation from service until he quit in 1995, and that he now worked as a contractor of his home, as noted in an April 2017 record. The examiner indicated that the Veteran's right elbow condition was more likely due to his occupation as an accountant, which required him to frequently use his arm (elbow/wrist/hands), and as a contractor working on homes. The examiner further stated that the Veteran's left elbow was normal on examination and there was no pathology to render an opinion. In an August 2015 statement, the Veteran's wife indicated that after returning from a tour of duty in Vietnam, she distinctly remembered the Veteran complaining about joint pain, including his elbows. She noted that the lower portion of his arms would turn blue and were very painful. She claimed that he was reluctant to consult the doctor on the ship he was stationed aboard due to a prior bad experience with the ship's dentist. She indicated that he did consult with a private physician at that time, and again consulted a private physician after his discharge. She reported that he received cortisone shots in his elbows intermittently "over the years," and stated that he was unable to fully straighten his arms after returning from Vietnam. In a March 2021 brief, the Veteran's representative noted that the November 2020 examiner failed to address the Board's recognition that the Veteran reported receiving steroid shots in his elbow for progressively worsening elbow pain prior to his elbow surgery in 2018. The Board notes that the Veteran's VA treatment records indicate that he received a cortisone injection as early as 2015. In a January 2017 VA primary care note, a treating clinician noted that the Veteran had shoulder surgery two years earlier, and "[b]ecause of the position of his elbow was put into," he experienced pain that was ongoing. The Veteran reported that he received a cortisone injection after seeing a doctor one month after his surgery and requested another injection for his elbow. The Veteran's representative also questioned the examiner's conclusion that the Veteran's elbow conditions were caused by his "'demanding' desk jobs as a CPA and his recent work as a contractor," arguing that there was no reasoning offered for the conclusion beyond noting that being an accountant involved frequent arm use. The representative noted that the Veteran's work as a contractor was on his own home in April 2017, and further highlighted that the record did not show any workplace accidents or other issues solely connected to the Veteran's employment which would suggest that his elbow conditions arose solely from those jobs. The Board finds that the examiner's explanation for the development of the Veteran's elbow conditions lacks sufficient explanation or other support and is largely conclusory. The Board cannot rely on a medical examiner's opinions if they lack supporting analysis. Stelf v. Nicholson, 21 Vet. App. 120, 125 (2007). The Board also notes that the examiner's failure to render an opinion regarding the Veteran's claimed left elbow condition on the basis that there "was no pathology" at the time of the examination is insufficient. Even if the examiner could not identify a left elbow disability at the time of the November 2020 examination, the record reflects that he was diagnosed with a left elbow disability during the period on appeal, to include at the time of a July 2014 VA authorized examination. The Board notes that the requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, it is necessary for the examiner to address any diagnosis of an elbow disability rendered during the period on appeal, and any relationship of the diagnosed condition with the Veteran's military service. A remand is necessary for an addendum medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). These matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Make arrangements to provide the record on appeal to an appropriately qualified clinician for purposes of obtaining a medical opinion as to the nature and etiology of any elbow disabilities that have been present during the period on appeal. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any elbow disabilities that have been present since February 2014 had their onset on, or are otherwise related to, the Veteran's period of service. In doing so, the examiner should specifically discuss the August 2015 statement from the Veteran's wife reflecting her personal observations. The examiner should also discuss the history of injections to the elbow prior to the Veteran's 2018 elbow surgery and should elaborate on the prior conclusion that the Veteran's right elbow disability is more likely related to his work as an accountant and a "contractor." The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The examiner is to consider the totality of the record, and not just the absence of clinical treatment, in weighing the Veteran's statements asserting symptomatology. The examiner must provide a comprehensive rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. Specifically, the examiner must indicate whether there was a further need for information or testing, or whether an opinion could not be rendered due to limitations of knowledge in the medical community at large. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ferguson, 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.