Citation Nr: 22036617 Decision Date: 06/24/22 Archive Date: 06/24/22 DOCKET NO. 16-40 182 DATE: June 24, 2022 ORDER Entitlement to service connection for a left elbow disability, other than left degenerative arthritis, lateral and medial epicondylitis with painful flexion, supination, and extension, to include left cubital tunnel syndrome, is denied. FINDING OF FACT The evidence persuasively weighs against a finding the Veteran has a current left elbow disability other than other than left degenerative arthritis, lateral and medial epicondylitis with painful flexion, supination, and extension that includes pain that results in functional impairment of earning capacity and a medical professional has stated that the Veteran does not have a diagnosis of left cubital tunnel syndrome. CONCLUSION OF LAW The criteria for service connection for a left elbow disability, other than left degenerative arthritis, lateral and medial epicondylitis with painful flexion, supination, and extension, to include left cubital tunnel syndrome, have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1973 to May 1977 and from September 1978 to December 1994. The Veteran testified at a video conference hearing before the undersigned Veteran's Law Judge in September 2019. In February 2020 and June 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claims for service connection for gastroesophageal reflux disease (GERD), a left elbow disability, and a psychiatric disorder for further development. The Board finds there has been substantial compliance with the Board's directives. In February 2022, the Regional Office (RO) granted service connection for GERD and left degenerative arthritis, lateral and medial epicondylitis with painful flexion, supination, and extension. In an April 2022 rating decision, the RO granted service connection for depression disorder with anxious distress. The Board considers these as full grants of the Veteran's service-connection claims for GERD and a psychiatric disorder, and they are no longer part of the current appeal. 1. Entitlement to service connection for a left elbow disability The Veteran asserts that he has a left elbow disability is due to his service-connected residuals of a left distal radius fracture. During the Board hearing, the Veteran testified that he experienced left arm pain every day. He said that the left arm pain limited his daily activities. The Veteran also testified that the left arm disability interfered with his ability to find or secure gainful employment. The Veteran testified that at his previous VA examination, he was working at a cement company in an administrative position. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. In Saunders v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that the term "disability" for VA disability compensation purposes refers to "the functional impairment of earning capacity" and "pain in the absence of a presently-diagnosed condition can cause functional impairment," en route to its conclusion that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability." Saunders, 886 F.3d 1356, 1363, 1368, 1369 (Fed. Cir. 2018). However, the Federal Circuit also made clear that a veteran cannot "demonstrate service connection simply by asserting subjective pain to establish a disability, pain must amount to a functional impairment. To establish the presence of a disability, a Veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. Following a review of the evidence of record, the Board finds that the evidence persuasively weighs against the Veteran's claim for service connection for a left elbow disability, other than left degenerative arthritis, lateral and medial epicondylitis with painful flexion, supination, and extension. The reasons for this decision follow. The Veteran is service connected for the following disabilities involving his left upper extremity: (1) residuals of a fracture to the left distal radius; (2) left degenerative arthritis, lateral and medial epicondylitis, with painful flexion; (3) left degenerative arthritis, lateral and medial epicondylitis with painful supination; and (4) left degenerative arthritis, lateral and medial epicondylitis with painful extension, and all four of these disabilities are associated with the residuals of a fracture to the left distal radius. At this point, it is unclear what, if any, left elbow disability is not accounted for in these four disabilities that are rated under four, different diagnostic codes. Thus, regarding the first element of a service-connection claim, a current disability, the Board finds that the evidence persuasively weighs against a finding that the Veteran has a current left elbow disability that is separate from the four service-connected disabilities. The Veteran had alleged having a diagnosis of left cubital tunnel syndrome; however, a medical professional physically examined him in November 2020 for the purposes of determining if the Veteran had left cubital tunnel syndrome, and the examiner found that the Veteran did not have objective evidence of such diagnosis. This is consistent with private treatment records dated in 2020, which show the Veteran complaining of left forearm pain and the private examiner also did not diagnose left cubital tunnel syndrome. While the Veteran is competent to report pain in his left elbow, he is not competent to diagnose left cubital tunnel syndrome, as that requires medical expertise, as it is an internal condition that is medically complex and not readily observable to a layperson. Thus, the evidence against a diagnosis of left cubital tunnel syndrome is persuasive, and there is no competent evidence to weigh against the November 2020 medical opinion that the Veteran does not have left cubital tunnel syndrome. Moreover, the claims file does not otherwise document pain that causes functional impairment of earning capacity during the pendency of his claim other than what is associated with the Veteran's service-connected disabilities. The Board finds that the pain the Veteran testified to at his Board hearing have been attributed to the other disabilities, which are separate from the alleged cubital tunnel syndrome. Notably, the medical treatment records do not weigh in favor of the Veteran's claim. For example, a May 2013 private treatment records shows that the Veteran was diagnosed with primary osteoarthritis of the left elbow and lateral epicondylitis of the left elbow. A December 2019 private treatment records show that the Veteran complained of left forearm pain, and he was diagnosed with left elbow lateral epicondylitis, left displaced transverse radial shaft fracture, and left elbow arthritis. Furthermore, the Veteran was afforded a VA examination in November 2020. The examiner found that the Veteran had lateral epicondylitis, medial epicondylitis, and degenerative arthritis of the left elbow. As noted above, the Veteran was service connected for these disabilities. However, the VA examiner found no chronic diagnosis for left cubital tunnel syndrome. The examiner noted that the objective examination was normal, and the symptoms were subjective only. The Board finds the medical evidence of record to be probative evidence against a finding of left cubital tunnel syndrome or a disability that is unaccounted for from the service-connected disabilities. Thus, this is evidence against the Veteran having an additional disability where pain causes functional impairment of earning capacity to establish evidence of an additional current disability involving the left elbow. For the above reasons, the Board finds that the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a left elbow disability other than the disabilities for which the Veteran is already service connected is warranted. Rather, the evidence persuasively weighs against the Veteran's claim for service connection for a left elbow disability. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application, and the claim is denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Griffin, Nicole K. 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.