Citation Nr: 22017116 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-44 106 DATE: March 24, 2022 ORDER Entitlement to service connection for a left elbow disability, to include degenerative arthritis (osteoarthritis), is granted. REMANDED Entitlement to service connection for a migraine disability is remanded. FINDING OF FACT It is just as likely as not the Veteran has a left elbow disability that includes specifically degenerative arthritis (osteoarthritis), which is at least partly attributable to his military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for a left elbow disability inclusive especially of degenerative arthritis (osteoarthritis). 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to June 1980. This appeal to this Board of Veterans' Appeals (Board) is from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The Veteran testified in support of these claims during a hearing in July 2018 before a Veterans Law Judge (VLJ) of this Board who since has retired. A transcript of the hearing is of record. Pursuant to 38 C.F.R. §§ 20.707, 20.717, the Veteran since was given opportunity to have another hearing before a different VLJ who ultimately would decide this appeal, but the Veteran did not indicate that he wanted another hearing. In May 2019, February 2021, and September 2021, the Board remanded these claims back to the RO, so back to the AOJ, for further development and consideration that specifically included obtaining medical opinions regarding the etiology of these claimed disabilities in relation to the Veteran's military service. This involved considering his lay statements concerning his symptom onset and continuity since his service to the present. There since has been the required compliance certainly the acceptable substantial compliance, with the Board's remand directives, at least as concerning the claim for service connection for a left elbow disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Regrettably, there still unfortunately has not been this required compliance conversely as concerning the claim for service connection for migraines, so the Board is again remanding this claim since this compliance is mandatory not just discretionary. Entitlement to service connection for a left elbow disability, including degenerative arthritis (osteoarthritis) The Veteran attributes this disability to an injury he sustained to this elbow in a fall during his military service. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). VA regulation also provides that service connection may be granted for any disease initially diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is permissible as well under 38 C.F.R. § 3.303(b), if a "chronic" disease or injury is shown ("noted") in service, because subsequent manifestations of the same chronic disease or injury at any later date, however remote, are attributed to the disease or injury in service unless clearly attributable to other (meaning "intercurrent") causes. Also, according to § 3.303(b), when conversely a disability in service is noted but is not, in fact, shown to be chronic, or when chronicity is legitimately questionable, the continuity of symptomatology provision of § 3.303(b) has been interpreted as an alternative means of establishing entitlement to service connection but only for the specific "chronic" diseases listed in § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is one such disease. Continuity of symptomatology may be established if the evidence demonstrates: (1) that a condition was "noted" during service; (2) that there is evidence of post-service continuity of the same symptomatology; and (3) that there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997), overruled on other grounds by Walker, 708 F.3d 1331 (Fed. Cir. 2013). In deciding this appeal, the Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability, symptoms supporting a later diagnosis by a medical professional, and, when applicable, continuity of symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent, and this depends on whether the disability being claimed is simple or instead complex. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Turning now to the relevant medical and other evidence, the Veteran received a diagnosis of degenerative arthritis in his left elbow in June 2015. Therefore, what remains to be resolved is whether this left elbow degenerative arthritis is the result of his military service and particularly the injury in service that he cites is the source or cause of it. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Service treatment records (STRs) dated in March 1980 show the Veteran went to a clinic primarily for dermatological concerns, but where it also was noted that he had a hematoma, or bad bruise, on his left elbow. He said his left elbow pain had begun after hospitalization for oral surgery in February 1980, so the prior month. In May 1980, he was referred for evaluation of a hyperpigmented spot on his left elbow, then treated for a left elbow wound in June 1980. That hyperpigmented skin is noted on several STRs as related to a drug interaction from prescribed antibiotics. His military service ended in June 1980. During his more recent June 2012 VA elbow examination in response to this claim, the Veteran reported falling on and lacerating his left elbow while in service, creating a wound that did not fully heal. He again gave this recollection during his even more recent July 2018 hearing before this Board, testifying that the consequent spot on this elbow was biopsied, which is consistent with his STRs. There accordingly is medical and testimonial evidence that he injured this elbow during his active-duty service. The record on appeal also reflects left elbow pain complaints from March 2006, associated with what was then described as tendinitis. Essentially, from the time of his initial service connection claim in May 2012, he consistently has maintained that he has experienced sharp, ongoing left elbow pain since his fall during service. That notwithstanding, the December 2021 VA elbow examiner on remand found this claimed disability unrelated to the Veteran's service because his STRs are "silent for symptoms of or treatment for" an elbow injury during his service. This examiner also noted the Veteran was not medically trained to diagnose his own symptoms and, therefore, could not comment on their etiology. But his lay statements regarding the onset and duration of his left elbow symptoms and consequent disability were not otherwise addressed. The Board thus does not find that examiner's opinion to be determinative, as he did not entirely consider the Veteran's supporting lay testimony and, at least seemingly, impermissibly equated the absence of treatment with the notion he also had not experienced any relevant symptoms at some earlier points in time and continuously during the several years since. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that lay evidence is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as treatment records. Thus, the mere absence of evidence does not necessarily equate to unfavorable evidence. Indeed, there are a line of precedent cases supporting this proposition. See, e.g., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc); Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The Federal Circuit Court also has held however that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of other factors. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . ."). Here, though, contrary to that examiner's conclusion against this claim, given the Veteran's credible reports of continuity of symptomology since his service and eventual diagnosis of arthritis, etc., the evidence is at least in relative balance (equipoise) regarding whether the symptoms and manifestations (i.e., pain, locking, etc.) referable to his left elbow disability originated during his service, continued after his service, and eventually resulted in the diagnoses mentioned. Perhaps what is most significant here is that it is continuous symptoms, not instead continuous treatment for them ("chronicity of care"), which is the essence of 38 C.F.R. § 3.303(b). See Savage, supra; see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). At the very least, then, there is "approximate" (meaning nearly equal) balance of evidence for versus against this claim if not evidence more supportive of this claim than against it. In this circumstance the claim is granted rather than denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an "as likely as not" proposition which in this instance it is for the reasons and bases discussed. Accordingly, service connection for a left elbow disability is granted. REASONS FOR REMAND Entitlement to service connection for a migraine disability is remanded. As previously alluded, this claim for a migraine disability already has been remanded by the Board to have the Veteran undergo an additional VA migraine examination for needed medical comment regarding the etiology and nature of this claimed condition, including with consideration of his relevant lay statements. The resulting December 2021 VA examiner, however, determined the Veteran did not have any then current migraine diagnosis, that there was no prior migraine diagnosis on record, and that his reported morning headaches were most likely, instead, the result of his non-service-connected obstructive sleep apnea (OSA). The OSA diagnosis was in September 2007, and the report of the Veteran's prior June 2012 VA examination notably shows there additionally was a diagnosis of migraines. Moreover, treatment records show ongoing complaints of headaches even earlier dating back to May 1999 or thereabouts so even well before the initial diagnosis of OSA. As such, the underlying premise of the December 2021 VA examiner's opinion is called into question. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based on an inaccurate factual premise has no probative value). Further, the examiner's failure to consider lay statements of record and attempt to account for them in the analysis also renders the medical opinion insufficient, both for failing to do that and because that was required by the Board's remand directive. Dalton, 21 Vet. App. 23; Buchanan, 451 F.3d 1336, n. 1 (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence (i.e., treatment records), had "failed to [also] consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). When a VA examination and consequent medical opinion are inadequate, it is incumbent on the Board to correct the failings of the examination and opinion, including by obtaining all necessary additional information or comment. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (explaining that VA must ensure the adequacy of an examination and opinion). Accordingly, this remaining claim is again REMANDED for the following still additional development and consideration: Obtain still more medical comment (another addendum opinion) concerning the nature and etiology of the Veteran's claimed migraines. The Veteran's claims file and a complete copy of this decision and remand must be provided to the examiner for consideration of the relevant medical and other history. If the examiner determines this additional (supplemental) medical opinion cannot be provided without an examination, the Veteran should be scheduled for one. a) The examiner is first asked to reconcile the conclusion of the December 2021 VA examiner that the Veteran does not have a diagnosis of migraines with the contrary conclusion (this diagnosis) during his earlier June 2012 VA examination. b) following that reconciliation, if it is conceded the Veteran has migraines or some sort of headache disability, then the examiner is additionally asked to provide additional comment on whether this disability originated during the Veteran's military service from June 1977 to June 1980 or is otherwise related or attributable to his service especially when considering his assertion of continuity of relevant symptoms since his service, even if the initial diagnosis was not until years after conclusion of his service. 38 C.F.R. § 3.303(d). To this end, if, as the prior December 2021 VA examiner apparently considered significant, there is no indication of treatment for a headache disability during those many intervening years, this cannot be the sole or exclusive basis for disassociating this claimed disability from the Veteran's service although it is a relevant, so permissible, factor in this determination. Therefore, if this current examiner has reason to question the veracity of the Veteran's claim of continuous symptoms since his service, the examiner must provide reason for why it is reasonable to have expectation of actual treatment (so documented treatment) earlier than when shown and prior to initial diagnosis. Rationale for the opinion thus is essential, regardless of whether favorable or conversely unfavorable to this claim, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.