Citation Nr: 22005262 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 19-00 403A DATE: February 1, 2022 ORDER Service connection for a chronic disability of the left elbow is denied. Service connection for a chronic disability of the left wrist is denied. Service connection for a chronic disability of the left rib cage is denied. Service connection for a right elbow injury is denied. Service connection for a right shoulder disability is granted. REMANDED Service connection for a right hip injury is remanded. FINDINGS OF FACT 1. The competent medical evidence does not demonstrate a current diagnosis of a chronic disability of the left elbow. 2. The competent medical evidence does not demonstrate a current diagnosis of a chronic disability of the left wrist. 3. The competent medical evidence does not demonstrate a current diagnosis of a chronic disability of the left rib cage. 4. The competent medical evidence does not demonstrate a current diagnosis of a right elbow injury. 5. The evidence is at least in equipoise as to whether the Veteran's right shoulder disability is related to active service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a chronic disability of the left elbow have not been met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria to establish service connection for a chronic disability of the left wrist have not been met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria to establish service connection for a chronic disability of the left rib cage have not been met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria to establish service connection for a right elbow injury have not been met. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria to establish service connection for a right shoulder disability are met. 38 U.S.C. §§ 1101, 1110, 1112; 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to September 1971. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2021 Board hearing. A complete transcript is of record. Service Connection Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d. 1163 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, including arthritis, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for this chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Service connection for a chronic disability of the left elbow 2. Service connection for a chronic disability of the left wrist 3. Service connection for a chronic disability of the left rib cage 4. Service connection for a right elbow injury The Veteran is seeking service connection for a chronic disability of the left elbow, a chronic disability of the left wrist, a chronic disability of the left rib cage, and a right elbow injury. He testified at the Board hearing that the vehicle he was riding in while on patrol in Vietnam swerved off the road and tumbled down a mountain landing on rocks. He reported sustaining injuries to his elbows, wrists, and left rib cage. He reported stressor being treated following the accident, but denied being placed on any profile following the incident. The Veteran's wife testified that she had known the Veteran since he was in the military. While she corroborated his testimony that he experienced symptoms of a right shoulder disability, she did not confirm any continuation of symptomatology of the wrists, elbows, or ribs. He testified he has not been diagnosed with any elbow conditions and he was not given any assisted devices for his elbows. He has not received any ongoing treated for his elbows. Service treatment records show that the Veteran was treated for lacerations on the right elbow, left wrist, left elbow, and left rib cage in February 1969. The August 1971 Report of Medical Examination was absent of any abnormalities of the elbows, wrists, or left rib cage. The Veteran underwent VA examinations in April 2018 for the elbows, wrist, and left rib cage. However, following an examination, a review of the evidence of record, and considering the Veteran's lay statements, the VA examiner determined that these conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that while the Veteran had made claims for these conditions, he denied any current symptoms associated with the bilateral elbows, left wrist, and/or left rib cage, noting that the symptoms had resolved. There was also no objective evidence of these conditions and since there were no current diagnoses, an etiological association could not be made at that time. A review of the VA and private treatment records does not reveal a current diagnosis or treatment for a elbow, left wrist, or left rib cage disability. No restrictions in the Veteran's movements of the upper extremities or functional limitations were noted in the records. Having reviewed the evidence of record, medical and lay, the Board finds that service connection for a elbow, left wrist, or the left wrist cage disability is not warranted because the record does not reflect, nor does the Veteran contend the existence of, current diagnoses of a claimed disability. The Veteran is competent to report such symptoms as pain or discomfort. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms). The Board also has no reason to doubt the credibility of these statements and therefore finds them credible as well. However, without a finding of functional impairment, a report of pain alone is not considered to constitute a disability for VA purposes. The Board acknowledges the recent decision from the U.S. Court of Appeals for Veterans Claims (Court) that in certain circumstances, pain may be considered a disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Court determined that pain may be considered a disability where there is also functional impairment. However, there is no objective evidence of record that the Veteran's symptoms of a bilateral elbow, left wrist, or left rib cage has resulted in functional impairment or is even attributable to his claimed conditions. There is no objective medical evidence suggesting functional impairment, as such the sole evidence of functional limitation are the subjective reports from the Veteran. As noted, the Board has no reason to doubt that these reports are credible. However, absent objective evidence of pain resulting in functional impairment, the Veteran's report pain alone is not sufficient to establish a current diagnosis of a disability for VA purposes. While the Veteran is competent to report pain and discomfort, he is not competent to render medical diagnoses. See Jandreau, 492 F.3d at 1372. Lacking a current diagnosis, the cornerstone element of service connection is not met, and service connection therefore cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that current diagnosis is a cornerstone of a service connection claim). The Board finds that the preponderance of the evidence weighs against a finding that there are current diagnoses or persistent or recurrent symptoms, other than pain without functional impairment, of a chronic disability of the left elbow, a chronic disability of the left wrist, a chronic disability of the left rib cage, and a right elbow disability. Furthermore, the Board acknowledges the Veteran's contention that the April 2018 VA examination was inadequate as it was not thorough enough to assess the issues he was having with his ribs and wrist. The Board notes that VA examiners are specially trained general medical professionals who are tested as to their general knowledge and competency within the scope of their training prior to being licensed to practice. Furthermore, the findings of the April 2018 VA examiner is not contradicted by the evidence within the contemporaneous VA treatment records. As such, the Board finds that VA's duty to assist has not been triggered and new VA examinations are not required. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). Accordingly, service connection for a chronic disability of the elbows, left wrist, and left rib cage is denied. 5. Service connection for a right shoulder injury The Veteran testified at the Board hearing that he injured his right shoulder in the same motor vehicle accident where he injured his bilateral elbows, left wrist and left rib cage. He stated his arm was placed in a sling following the incident. He stated that he had limited range of motion in his shoulder and underwent surgery in 2003. As stated above, the Veteran's wife corroborated his testimony that he experienced symptoms of a right shoulder disability since his military service. A review of the Veteran's service treatment records are absent of any injury, treatment, or diagnosis of a right shoulder condition. The August 1971 separation examination was also silent of a right shoulder condition. The current treatment records, however, reflect that he has been diagnosed degenerative joint disease and high riding humeral head consistent with rotator cuff tear for which he has been treated. According to a July 2021 letter from the Veteran's VA medical provider, it was opined that based on the Veteran's history of a right shoulder injury in Vietnam, his "current diagnosis was more likely than not a result of the event as above that occurred during the [V]eteran's military service." It was noted that over the years, the pain in the Veteran's right shoulder had progressed and subsequently led a massive rotator cuff tear that was repaired in 2003 by a private orthopedic surgeon. Here, although the Veteran's service treatment records are absent of a right shoulder injury, his account of an in-service right shoulder injury, nonetheless, is accepted as it is corroborated by his wife who testified she knew him during his military service and witnessed a continuity of symptomatology since. Thus, the Board finds there is both competent and credible evidence of in-service right shoulder injury while the Veteran was in service. 38 C.F.R. § 3.159 (a)(2); see Layno v. Brown, 6 Vet. App. 465, 469 (1994). Given the establishment of an in-service right shoulder injury and the positive nexus opinion from the Veteran's VA medical provider that his current right shoulder disability stemmed from his military service, the Board finds that all elements of service connection has been met. See 38 C.F.R. § 3.303(d). As such, service connection for the Veteran's right shoulder is warranted. REASONS FOR REMAND Service connection for a right hip injury The Veteran testified at the Board hearing that he has been diagnosed with a right hip disability and contended that it stemmed from his military service. He further stated that he was receiving treatment for his right hip disability with a private doctor. The Board notes that the private treatment records reflecting treatment of a right hip disability are not of record and therefore, a remand is necessary as an attempt should be made to obtain them. In this case, the Board finds that the Veteran is competent to report that he sustained an injury to his right hip during service and report his symptomatology. See Jandreau, 492 F.3d at 1372. Given his testimony that he sustained a right hip injury during service, that he was diagnosed with a right shoulder disability for which he was receiving treatment, and as he has not yet been afforded a VA examination of the right hip, one should be provided. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding VA and private treatment records (specifically from a private doctor treating the right hip disability as indicated by the Veteran in his hearing testimony) pertinent to the Veteran's claims and associate them with the claims file. 2. Once all outstanding treatment records, if any, have been obtained and associated with the claims file, schedule the Veteran for a VA examination of his right hip. The examiner should clarify any diagnosis of any right hip disability and provide a medical opinion to address the etiology of such diagnosis. The examiner should opine as to whether it is at least as likely as not (50 percent or greater) that any diagnosed right hip disability, either began during or was otherwise caused by his military service, to include as a result of his significant motor vehicle accident therein. Why or why not? The examiner is asked to consider and address the Veteran's lay statements regarding onset and continuity of symptomatology. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.