Citation Nr: 22017804 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 16-57 754 DATE: March 26, 2022 ORDER Service connection for a bilateral elbow disability is denied. Service connection for a disability of the left hand is denied. FINDINGS OF FACT 1. The Veteran's diagnosed bilateral radioulnar synostosis, also assessed as radial ulnar stenosis, is a developmental or congenital defect. 2. The Veteran's diagnosed bilateral cubital tunnel syndrome and bilateral elbow arthritis, and left hand claw deformity and arthritis, are not superimposed injuries or diseases related to service. 3. The Veteran's diagnosed bilateral cubital tunnel syndrome and bilateral elbow arthritis, and left hand claw deformity and arthritis, were not chronic in service, did not manifest to a compensable degree within a year of discharge from service or demonstrate continuity of symptomatology, and are not otherwise shown to be related to active service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a bilateral elbow disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for a left hand disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1971 to October 1973. His decorations include the Vietnam Service Medal and the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Lincoln Day One Brokering Center in Lincoln, Nebraska (hereinafter referred to as the "Regional Office" or "RO"). In January 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In April 2020, the Board reopened the previously denied claim for service connection for bilateral proximal radial ulnar synostosis and remanded the matter to the agency of original jurisdiction (AOJ) for additional development, along with the issue of entitlement to service connection for a disability of the left hand. Thereafter, in May 2021, the Board again remanded the issues of entitlement to service connection for a bilateral elbow disability and disability of the left hand for additional development. After taking further action, the AOJ confirmed and continued the prior denials. In this regard, the Board finds that there has been at least substantial compliance with the Board's May 2021 remand directives, to include with respect to the procurement of recent VA treatment records and the requested VA medical opinions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). As a final consideration, the Board recognizes that it appears the Veteran was in receipt of Social Security Administration (SSA) benefits and that these records have not been associated with the claims file. However, SSA responded to VA's request for records and expressly indicated that "[t]he medical records have been destroyed." According to November 2016 SSA correspondence, "We cannot send the medical records you requested. Such records do not exist; further efforts to obtain them will be futile." Inasmuch as 38 C.F.R. § 3.159(c)(2) provides that "VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the efforts do not exist or that further efforts to obtain those records would be futile," the Board finds that VA has adequately fulfilled its duty to assist in the development of the records to the extent possible. 1. Service connection for a bilateral elbow disability is denied. The Veteran asserts that he is entitled to service connection for his elbows, explaining that he sustained injuries in service. See, e.g., February 2014 notice of disagreement ("The VA has acknowledged that I was injured [in] my right arm when it was twisted behind my back, however, the VA examiner noted the right elbow pain was an acute process that resolved. I disagree with that assumption."). Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, certain chronic diseases, such as arthritis and "other organic diseases of the nervous system," will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). However, for congenital defects, service connection may be warranted only for superimposed injuries or diseases related to service. See 38 C.F.R. § 3.303(c) (stating that congenital or developmental defects "are not diseases or injuries" for VA disability compensation purposes). The U.S. Court of Appeals for Veterans Claims (Court) has noted that congenital or developmental diseasesbut not defectsmay be service connected. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (emphasis added); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that "non-disease or non-injury entities such as congenital defects" are not "disabilities" within the meaning of 38 U.S.C. § 1110, which outlines basic entitlement to VA disability compensation); see also VA Gen. Coun. Prec. 82-90 (July 18, 1990). In this case, the Veteran has been diagnosed with bilateral radioulnar synostosis and radio ulnar stenosis, bilateral cubital tunnel syndrome, and bilateral osteoarthritis of the elbows. See, e.g., November 2020 VA examination report (checking boxes for diagnoses of bilateral congenital radial ulnar stenosis, bilateral osteoarthritis, and left cubital tunnel syndrome; April 2013 VA examination report ("the [V]eteran has a congenital proximal radial ulnar synostosis with osseus fusion"); February 1994 VA treatment record and operative report (noting that the Veteran underwent a right cubital tunnel release and providing a post-operative diagnosis of right claw hand deformity with ulnar nerve compression and atrophy). With regard to the Veteran's diagnosed bilateral radioulnar synostosis and radial ulnar stenosis, as will be explained below, the Board finds that this disability is a congenital or developmental defect that is not subject to service connection. 38 C.F.R. § 3.303(c) (stating that "[c]ongenital or developmental defects . . . are not diseases or injuries" for VA disability compensation purposes). In this regard, radioulnar synostosis is defined as the "bony fusion of the proximal ends of the radius and ulna" and "stenosis" is defined as "an abnormal narrowing of a duct or canal." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 31st Ed., pp. 1795, 1878 (2007). Previously, the Board remanded this appeal in May 2021 to obtain clarification of a November 2020 VA opinion that determined the Veteran's radial ulnar stenosis "is in the nature of a defect (i.e., a structural or inherent abnormality which is more or less static in nature)" as opposed to a disease, in light of the confusing statement that it was "at least as likely as not that the ulnar neuropathy as a result of the cubital tunnel, left arm is a progression of the congenital left radial ulnar stenosis." In July 2021, a clarifying opinion was obtained. The VA examiner explained that "the Veteran's bilateral radioulnar synostosis is at least a congenital defect, it is a structural abnormality that remains static in nature and no structural progression is expected in the area of fusion of the radius and ulna." See also July 2021 addendum opinion (noting "the Veteran's bilateral radioulnar synostosis is at least as likely as not an anatomic defect"). By way of explanation for this opinion, the VA examiner also stated: The Veteran's Bilateral radioulnar synostosis is at least as likely as not a congenital anatomic defect. The condition has been static since it was noted during service 7/1973. Recent treatment records from 1994 - to present indicates the anatomic defect remains the same. The synostosis or the fused radius and ulna bilaterally remains unchanged. See July 2021 VA addendum opinion; see also service treatment records from December 1971 (noting "P[atien]t has deformity" and assessing "congenital rotation deformity of both arms and wrists"); July 1973 ("h[istory] of fusion at proximal radius & ulna known about since child . . . X-ray Congenital union of radius & ulna . . . Rec[commend] EPTE discharge if symptoms not improved in 24 wks"); September 1973 Medical Board Report (primary diagnoses of "Bilateral Proximal Radial Synostosis ulnar" with disposition of "Discharge Physical Disability"); September 1973 Medical Board Report narrative ("Xrays elbows demonstrate 'a congenital proximal radial ulnar synostosis with osseous fusion that is mature and of long standing. [A]rticulation of the radial head at the capitellum confirmed the fact that his findings are of a congenital nature.'"). Furthermore, in an additional clarifying the October 2021 VA opinion, the VA examiner also expressly opined that the defect preexisted service. Citing the in-service treatment report noting "history of fusion of prox radius & ulna KNOWN ABOUT SINCE A CHILD," the VA examiner stated that this evidence suggested "that the [Veteran] was aware of his condition prior to enlistment." The examiner also explained that physical examination and X-ray findings at that time "impressed CONGENITAL fusion of proximal radius & ulna, leading the [in-service clinician] to render a diagnosis of radial-ulnar synostosis . . . and [to] [r]ecommend[][d]ischarge for EPTE (Existed Prior to Enlistment)." See October 2021 VA opinion (emphases original). In support for finding that the defect pre-existed service, the October 2021 VA examiner also included the following rationale: "Congenital radioulnar synostosis presenting in adulthood - a case report" by Mohammed Hamid Karrar Alsharif et al. (https://www.ncbi.nlm.nih.gov /pmc/articles/PMC7386271/) defines Congenital radioulnar synostosis as "a rare developmental skeletal malformation of the upper limb, characterized by the fusion of the proximal ends of the radius and ulna from birth;" suggesting that the [V]eteran's condition at least as likely as not existed since birth, hence clearly and unmistakably pre-existed service. Furthermore, while it is rare for fractures to cause radial ulnar fusion, service records show lack of evidence of a severe traumatic injury resulting in fracture of the veteran's bilateral forearms during service, suggesting that the veteran's bilateral radial ulnar synostosis most likely pre-existed service. Id. As the July 2021 and October 2021 VA opinions were prepared after a thorough review of the claims file, are consistent with other evidence of record (including the prior VA examinations, VA treatment reports, and service treatment records), and contain well-supported rationales in compliance with the Board's May 2021 remand, the Board finds these opinions to be highly probative as to the nature and etiology of the Veteran's radioulnar synostosis as a congenital or developmental defect preexisting service. The Board therefore concludes that the competent and probative medical evidence listed above expressly categorizes the Veteran's bilateral radioulnar synostosis/radio ulnar stenosis as a developmental "defect," and the law expressly precludes such defects from being recognized as a disability for VA purposes. Moreover, because the bilateral radioulnar synostosis/radio ulnar stenosis preexisted service and is an anatomical "defect," the provisions of 38 C.F.R. § 1111 that apply to the aggravation of pre-existing congenital or developmental "diseases" are not applicable. As such, service connection is not warranted for the Veteran's bilateral radioulnar synostosis and radio ulnar stenosis. In addressing whether the Veteran may be service connected for any superimposed elbow injuries or diseases related to service, the Board recognizes that he has alleged that he sustained elbow injuries during service. In reviewing the service treatment records, he sought treatment in June 1973 and complained of a "sore [right] elbow for the past 11 days" and the clinician assessed that he had "resolving hematoma of fat pad below olecranon . . . [secondary] old trauma. Swelling is [decreasing]." July 1973 service treatment record. He returned again in August 1973, complaining of bilateral elbow pain, and the examiner stated the Veteran was [2 mo[nth]s ago roughed up by SP" and also related his history of a congenital fusion of the proximal radius and ulna. See August 1973 service treatment report. The September 1973 Report of Medical Board also referenced the June 1973 injury, when "his right elbow was twisted behind his back." September 1973 Medical Board Report narrative. After being seen for subsequent pain and swelling of that elbow, "[i]t was felt that the cause for his right elbow pain was trauma superimposed upon [his] congenital condition." Id. However, it was expressly noted that "[over the ensuing weeks after this injury, the patient's acute process resolved, leaving him with the same upper extremity function as before his injury." Id. (emphasis added). The final diagnoses by the Medical Board was "Bilateral Proximal Radial Synostosis, [] EPTE, not service aggravated." Id. By way of rationale, the Medical Board report further explained, "His injury sustained in June of 1973 has nearly resolved, and his current status is that of prior to the injury and prior to enlistment." Id. (emphasis added). However, due to his congenital disorder and associated limitation of motion of both forearms, he was deemed unfit for duty for being "susceptible to reinjury." Id. Thus, at the time of the September 1973 the Medical Board report prior to the Veteran's discharge, the injury from June 1973 was deemed "acute" and had improved such that it left him "with the same upper extremity function as before his injury." A few weeks after the date of the Medical Board Report, the Board acknowledges that a September 1973 service treatment report also reflected that the Veteran sought treatment for "re-injury elbows" for being "in auto[mobile] accident last P.M." It was noted that the Veteran was involved in a motor vehicle accident (MVA), in which the car rolled, and the Veteran complained of pain in the elbows. The impression rendered, included "Contusion R[ight] elbow." September 1973 service treatment report. However, the July 2021 VA opinion recognized the MVA but did not relate it to any lasting elbow disability: Veteran was noted to have injured the left elbow during an MVA 9/17/1973 [service treatment record] mentions injury to both elbows, however no significant injury or fracture was noted on the left elbow. No other record or treatment suggesting a severe injury resulting in the symptoms reported by the Veteran after service. Based on this, the [service treatment records] do[] not support a history of a left elbow injury, condition that is responsible for the current left elbow condition. July 2021 VA opinions (emphasis added). It was also stated, for the right elbow, that he "sustained a right elbow contusion during an MVA 9/17/1973[, but the service treatment records] revealed these injuries were acute and transitory in nature and did not result in any chronic right elbow condition." Id. (emphasis added). The Board also notes that, during his Board hearing testimony, the Veteran testified that he "fell down" in service and then "went to the doctor and [the elbow] was fractured." See January 2020 Board Hearing Transcript at p. 4. He further testified that, while performing combat readiness drills, he had to seal up airtight doors and "hit my elbow." Id. at p. 3. However, the Veteran has given inconsistent histories of any previous elbow fracture and/or in-service injuries beyond those documented in the service treatment records. See February 1994 VA treatment report (noting a history of "L[eft] elbow f[racture] age 15"; and another February 1994 VA treatment report (noting a history trauma to the right elbow with a "baton" in 1973 and also having "fallen on elbow twice [about] 10 years ago and a history of "L[eft] elbow fracture."); July 2013 VA treatment report (status post "left elbow surgery as a teenager due to bone chip, elbow locked); November 2013 VA treatment report ("We note a history of some kind of left elbow injury [and] has an incision over the radial head lateral epicondyle. He states he broke this as a youngster."); April 2015 VA treatment records (indicating that he sustained an "injury to the left elbow as a child that required some kind of surgery"); April 2015 report (indicating that the Veteran underwent left elbow surgery for locking as a teenager). The Board therefore concludes that his current testimony alleging these other injuries and elbow fracture(s) in service lacks credibility, especially when compared to his earlier and inconsistent reports made when seeking treatment. Thus, his lay statements regarding an undocumented injury and in-service fracture are entitled to no probative value. Indeed, in the April 2015 VA treatment report, the clinician related that the Veteran "is a very poor historian." See also May 2015 VA treatment reports (again reporting the Veteran as a "poor historian" during a psychiatric hospitalization and documenting a family member's report that the Veteran had "been using meth heavily since the early 90's" that "staff told p[atient] that if he continued to use meth 'his brain would become mush. They warned him, and now that's what he's dealing with.'"); September 2019 VA treatment report ("house manager . . . expresses concerns about [V]eteran's cognitive functioning"); October 2019 (noting "mild neurocognitive disorder" upon mental status examination and testing). A July 2021 VA clinician reviewed the claims file, including the pertinent treatment reports, and rendered the following opinion: It is less likely than not that an additionally disability became superimposed on the defect during service. The service treatment records does not show findings, symptoms or a condition for both elbows that suggests a chronic disability or condition is superimposed. The [service treatment records] show acute injuries to both elbows and these injuries resulting in transitory symptoms and impairment, and the treatment records show Veteran recovered from these acute injuries. July 2021 VA opinion. Again, this opinion is consistent with the service treatment reports and subsequent post-service treatment reports and is supported by a logical rationale. The Board therefore concludes that the Veteran does not have any superimposed injuries/diseases, to include his current diagnoses of bilateral cubital tunnel syndrome and bilateral elbow arthritis, attributable to service despite the documented injury in June 1973 and the MVA in September 1973. Nor does the evidence otherwise support a grant of service connection for these disabilities under the theory of direct service connection. In this regard, the Board finds the July 2021 VA opinions to be credible and competent evidence with respect to identifying the nature and etiology of his bilateral elbow arthritis and bilateral cubital tunnel syndrome. Notably, the July 2021 VA opinions collectively determined that the Veteran's right elbow arthritis and right cubital syndrome, as well as his left elbow arthritis and left cubital syndrome, were not incurred in or aggravated during service. See July 2021 VA opinion ("Veteran's right elbow arthritis with right cubital tunnel syndrome was less likely than not incurred in or caused by (the) service"); July 2021 VA opinion ("[Service treatment records] do[] not support a permanently worsened right elbow condition resulting from the complaints of right elbow pain and injuries to the right elbow during service"); July 2021 VA opinion ("Veteran's left elbow arthritis with left cubital tunnel syndrome was less likely than not incurred in or caused by (the) service"); July 2021 VA opinion ("Veteran's left elbow arthritis with left cubital tunnel syndrome was less likely than not aggravated beyond natural progression by bilateral radial ulnar synostosis during service."). For each of these opinions, the examiner discussed the pertinent service treatment records and explained the findings. For the arthritis, it is acknowledged 2013 X-ray images of the right elbow revealed "arthritic changes consistent with old fracture," and X-ray images of the left elbow revealed "extensive arthritic changes [] at the radial humeral joint." See July 2013 VA treatment record. However, in ascertaining whether the arthritis is related to the in-service injuries specifically, the Board reiterates that the VA opinions from July 2021, referenced above, found that it was less likely as not that the arthritis was caused or aggravated by service. Rather, for the left elbow, the examiner stated that the arthritic changes were "associated with a history of left elbow fracture prior to service, and this is mentioned consistently in the past history in the Veteran's medical records." For the right elbow, the examiner explained that the July 1973 twisting injury of the right elbow and September 1973 right elbow contusion were both "acute injuries." See July 2020 VA opinions. With regard to the diagnosed bilateral cubital tunnel syndrome, the July 2021 VA examiner also stated, "[t]he left cubital tunnel syndrome is likely related to the left elbow arthritis noted on imaging 5/2019" and explained that the in-service injuries "did not result in any chronic right elbow condition that explains or is related to the current right elbow conditions post service that required surgery in 2/1994." See February 1994 VA operating report and VA treatment records (noting surgery for right cubital tunnel release). Therefore, the Board finds that the competent and credible evidence convincingly establishes that neither the Veteran's bilateral cubital tunnel syndrome or bilateral elbow arthritis is related to service, became chronic in service, manifested to a compensable degree within one year of service separation, or is supported by credible evidence of continuity of symptomatology. In conclusion, the evidence is persuasively against the claim for service connection for a bilateral elbow disability. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for a disability of the left hand is denied. The Veteran also asserts that service connection is warranted for his left hand. In this regard, he has inferred that he injured his hand while falling in service. See January 2020 Board Hearing Transcript at p. 3. Turning to the elements of service connection, the Veteran has been diagnosed with left hand claw deformity and degenerative and/or rheumatoid arthritis. See November 2020 VA examination report. Thus, the first criterion of a current disability is met. However, turning to the next criterion of an in-service injury or event, the service treatment records are silent with respect to whether there were any specific injuries or complaints relating to the left hand. Moreover, as above, the Veteran is not deemed credible in terms of proffering probative, non-contemporaneous lay statements regarding any undocumented injuries from service. In attempting to ascertain the onset of his left hand complaints, an April 2013 VA examiner expressly stated that "left claw hand deformity was noted," and July 2013 VA X-rays of the left hand noted "flexion deformities of the fourth and fifth digits, etiology not apparent [and] some mild degenerative changes." Significantly, however, the Veteran reported in February 1994 when he underwent right cubital tunnel release that he "noted [about] 1 year ago his R[ight] hand became clawed and atrophied." Significantly, those 1994 VA records were silent for any similar left hand complaints, and the Veteran's January 2020 Board hearing testimony suggested that his left hand symptoms developed at some point after he received surgery on his right side: As I started getting older, I went to Palo Alto to get surgery [on the right elbow]. They operated on this. I really started noticing it again. All of a sudden it started coming to my left side. I started to get, like, the nerves in my hands started to feel like a lot of arthritis, and it started tingling after I got older. [] My body started changing because of the arthritis". See Board Hearing Transcript, p. 5. Thus, the evidence suggests that the left hand symptoms began developing sometime after 1994. Further, the Board determines that the competent and credible evidence weighs heavily against a nexus between his current left hand claw deformity and arthritis and the Veteran's active duty service. In this regard, the November 2020 VA examiner reviewed the claims file and initially opined that the "Veteran developed ulnar neuropathy as a result of cubital tunnel development with pain down his left arm and 4th and 5th fingers as found on examination." It was explained: Based on the current examination and reviewed medical evidence, it is less likely than not that service member incurred a left hand injury during military service. There are no in-service treatment records documenting a[] left hand injury during active service. The current diagnoses of degenerative arthritis, rheumatoid arthritis, and boutonniares deformity, left hand are less likely than not caused or incurred during military service. Importantly, service member developed arthritis after service. More recently, a July 2021 VA examiner reviewed the claims file and likewise opined: Veteran's current left hand claw deformity and left hand rheumatoid arthritis is less likely than not incurred in or caused by left hand during service. The Veteran's [service treatment records] did not reveal any history of a left hand injury, diagnosis, symptom or treatment during service. Although the Veteran claimed he sustained a left hand condition during service, the treatment records does not support the Veteran's subjective history, and medical treatment records show the current left hand conditions had their onset after service. See July 2021 VA opinion. The VA examiner also explained, the "left hand claw deformity is related to the left cubital tunnel syndrome which caused severe neuropathy of the left ulnar nerve" and the "left hand rheumatoid arthritis is secondary to an autoimmune disease." Id. Therefore, the competent and credible evidence convincingly establishes that neither the Veteran's left claw hand deformity or arthritis is related to service, became chronic in service, manifested to a compensable degree within one year of service separation, or is supported by credible evidence of continuity of symptomatology. Significantly, the July 2021 VA examiner also expressly determined that the "Veteran's bilateral radioulnar synostosis has no anatomic and pathophysiologic association to cause and [support] aggravation beyond nature progression of the underlying left hand claw deformity and left hand rheumatoid arthritis." Thus, the evidence is also against a conclusion that, with respect to his congenital or developmental defect, either of the left hand disorders may be considered superimposed injury or disease subject to service connection. Again, the Board finds the VA examiner's July 2021 VA opinions to be highly probative, as the opinions were provided after a review of the claims file and are accompanied by rationales that are consistent with the pertinent facts. In short, the evidence is persuasively against the claim for service connection for a disability of the left hand. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Gielow, 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.