Citation Nr: 22014637 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-02 152 DATE: March 14, 2022 ORDER Entitlement to service connection for bilateral lateral epicondylitis of the elbows, to include as secondary to service-connected disability of the bilateral shoulders, is denied. FINDING OF FACT The Veteran's bilateral lateral epicondylitis is not secondary to the service-connected disabilities of the left and/or right shoulder, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral lateral epicondylitis of the elbows, to include as secondary to service-connected disability of the bilateral shoulders, are not met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 2000 to October 2001, October 2003 to April 2005 and July 2005 to May 2007. He served on active duty in support of Iraqi Freedom and was awarded, among other decorations, the Combat Infantry Badge. This matter is before the Board of Veterans' Appeals (Board) from A November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, this matter was last before the Board at which time it was remanded for further development, particularly to obtain VA treatment records and a medical opinion to address the etiology of the Veteran's disability. Following the Board's remand, the agency of original jurisdiction (AOJ) obtained VA medical records and an opinion to address the claim. There is substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). When this matter was last before the Board the disability on appeal was characterized as a non-specific "bilateral elbow/forearm disability." However, the evidence developed during the development of the claim discloses assessments of bilateral epicondylitis, a.k.a., "tennis elbow" and fibromyalgia. Notably, however, service-connection for fibromyalgia, which involves widespread musculoskeletal pain, including of the elbows, has been granted, and there is no other disclosed disability of the elbows or symptoms of the elbows that have not been attributed to either the service-connected fibromyalgia or the assessed bilateral epicondylitis. Thus, in light of the Veteran's description of the disability, the evidence developed during the claim and the diagnoses of bilateral epicondylitis and fibromyalgia, the claim has been characterized to adequately reflect the disability and symptoms for which the Veteran seeks service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Murphy v. Wilkie, 983 F.3d 1313 (Fed. Cir. 2020). Entitlement to service connection for bilateral lateral epicondylitis of the elbows, to include as secondary to service-connected disability of the bilateral shoulders. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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). Additionally, service connection may be established on a secondary basis for a disability that is aggravated by or proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg.81836 (Dec. 29, 2011). The term "Persian Gulf Veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d). In addition to certain chronic disabilities from undiagnosed illness, service connection may also be given for medically unexplained chronic multi symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms, as well as for any diagnosed illness that the VA Secretary determines by regulation warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i)(B). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), at 1395. If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. The Veteran primarily contends that his bilateral lateral epicondylitis is the result of overuse caused by the impairment related to his service-connected left shoulder strain and rotator cuff tendinosis with mild acromioclavicular degenerative changes (left shoulder disability) and right shoulder strain (right shoulder disability). The Veteran also claims that his bilateral lateral epicondylitis is attributable to service. Specifically, the Veteran contends that while he was in Iraq, he and his fellow soldiers would sit in combat vehicles for hours at a time and that they were so cramped and tight that it was hard to move. He further states that he would injure both his elbows all the time by hitting either a door, the radio mount, and the handle in the gun turret. In addition, he stated that the sling seat would constantly hit him. He relates his bilateral lateral epicondylitis to these events. A service treatment record dated in August 2004, documents reports of pain in the chest and upper joints for three to four days. A service record dated about two weeks later, reflects complaints of stomach pain, trouble eating and joint pains in the elbows and shoulders. Right maxillary sinusitis was assessed at this time. Generalized joint pains, probably viral related, were assessed. In May 2005, the Veteran filed a claim for service connection of an elbow disability. He asserted that he had an elbow condition that began in August 2004 in service. A June 2005 VA record documents that the Veteran reported joint problems that had developed over the past couple of months. He reported that he had seen an outside provider for the elbows. However, examination of the elbows was normal on physical examination. After his last period of active-duty service, the Veteran received a VA examination in March 2008. At that time, physical examination of the musculoskeletal system did not show any elbow problems. A VA record dated in August 2013 documents that the Veteran presented for treatment with a primary complaint of pain in the left elbow when he grabbed something. He related that these symptoms had started about one month prior. Bilateral lateral epicondylitis was assessed. Subsequent VA records document continued assessment of bilateral lateral epicondylitis. A March 2014 VA treatment note reflects that the Veteran reported a history of bilateral elbow pain for the past three years. The bilateral elbow pain was found to be consistent with the bilateral lateral epicondylitis. In November 2014, the Veteran received a VA examination. Bilateral lateral epicondylitis was assessed at that time. The Veteran reported pain over the epicondyles that started about three years prior, but had no recollection of any injury to either elbow. The examiner concluded that the right lateral epicondylitis was not proximately due to the Veteran's right shoulder disability. The examiner explained that lateral epicondylitis is an overuse syndrome that results from repetitive movement for an extended period of time, and not an extension of any injury to the shoulder. The examiner explained that a rotator cuff tear is not a risk factor for epicondylitis. In May 2019, the Board remanded the claim for an opinion because the November 2014 VA examiner failed to specifically address the left elbow's lateral epicondylitis. In January 2020, an opinion was obtained. The January 2020 opinion states that the bilateral epicondylitis was not at least as likely as not due to or aggravated by the right shoulder strain. As in November 2014, the examiner explained that this was due to overuse, and that the right shoulder rotator cuff tear was not a risk factor for epicondylitis. The examiner explained that a right rotator cuff injury cannot cause a left elbow condition. In July 2021 the Board remanded the claim in light of the fact that service-connection for the left shoulder disability had been granted since the Veteran's last examination. The Board sought an opinion to address this shoulder in relation to the bilateral lateral epicondylitis. In November 2021, a VA examiner concluded that the Veteran's bilateral lateral epicondylitis was not at least as likely as not related to service or caused/ or aggravated by either the left or right shoulder disability. Once again, the examiner stated that the bilateral lateral epicondylitis was the result of overuse. The examiner explained that epicondylitis occurs from repetitive use of the elbow. The examiner stated that the bilateral lateral epicondylitis was likely attributable to the Veteran's post-service history of occupational labor in shipping. The Board notes that the Veteran's representative has requested that the Board consider the combat presumptions due to the Veteran's combat service. In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); see also Collette v. Brown, 82 F.3d 389, 392 (1996). Section 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17- 19 (1999). Initially, the Board will address whether service connection is warranted as due to an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). However, bilateral epicondylitis has been assessed and the Veteran's symptoms have been attributed to this disability with a specific etiology, i.e., overuse. See November 2021 VA examiner's opinion relating epicondylitis to occupational labor. The Veteran's symptoms are medically explained with a specific etiology. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). Service connection for this claim based on undiagnosed illness or MUCMI incurred due to Persian Gulf service is not warranted. 38 C.F.R. § 3.317. The Board concludes that, while the Veteran has a current disability of bilateral lateral epicondylitis, the evidence of record persuasively weighs against finding that the Veteran's bilateral lateral epicondylitis is proximately due to service-connected disability, or aggravated beyond its natural progression thereby. 38 C.F.R. § 3.310(a). Likewise, the Board concludes that the bilateral epicondylitis was not incurred in service and is not otherwise attributable to an in-service event, injury, or disease. The VA examinations competently explain that the Veteran's bilateral lateral epicondylitis is more likely due to post-service overuse of the elbows that is unrelated to either the left or right shoulder disability. The rationale is that overuse is the cause of epicondylitis and that the Veteran overused his elbows during post-service labor employment. The examinations explain neither shoulder disability was a risk factor for developing epicondylitis and that neither shoulder disability would cause or aggravate the bilateral lateral epicondylitis. The Board has considered the Veteran's reports of injuring his elbows during his combat service in Iraq. The Board has no doubt that these events occurred. However, the competent and probative medical evidence attributes the bilateral lateral epicondylitis to overuse, particularly post-service overuse, rather than any in-service event, injury, or disease. The Veteran believes that his bilateral epicondylitis is attributable to service or proximately due to or the result of or aggravated beyond its natural progression by his service-connected left and right shoulder disabilities. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, pathology, and the interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case to provide a nexus opinion because the record does not show that he has the skills, experience, or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA opinions that attribute the bilateral latera epicondylitis to post-service overuse of the elbows. The Board has also considered the Veteran's reports of pain in the elbows in and since service. However, the Veteran appears to be a poor historian on this point because in August 2013 the Veteran related an onset of symptoms that started one month prior, and in March 2014 he reported a history of bilateral elbow pain for the past three years, or since 2011, about four years following his discharge. Thus, given these inconsistencies, the Veteran's reports of pain are not credible and, in turn, of no probative value. It is the duty of the Board as the fact finder to determine the credibility of the testimony and other lay evidence. Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). Accordingly, the Board finds that evidence persuasively weighs against granting the claim. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch, 999 F.3d at 1395. If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. Here, however the evidence fails to approximate the criteria for the award of service connection on either a direct or secondary basis. The evidence persuasively weighs against the claim and shows, rather, that the bilateral lateral epicondylitis is due to post-service overuse. The evidence is not approximate balance, and the benefit of the doubt doctrine is not applicable. The claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.