Citation Nr: 18139629
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 07-13 245A
DATE:	September 28, 2018
ORDER
Entitlement to service connection for a bilateral elbow disorder, to include carpal tunnel syndrome(CTS), is denied.
FINDING OF FACT
The preponderance of the evidence is against a finding that the Veteran’s bilateral elbow disorder to include CTS is related to or caused by active service.
CONCLUSION OF LAW
The criteria for service connection for bilateral elbow disorder, to include CTS, have not been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served in the U.S. Marine Corps on active duty from July 1966 to July 1971.
Service Connection
Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).
In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include carpal tunnel syndrome, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).  In the instant case, there is no presumed service connection because the Veteran’s claimed disabilities did not manifest to a compensable degree within one year of separation from service.
Entitlement to service connection for a bilateral elbow disorder (to include carpal tunnel syndrome).
The Veteran contends that his bilateral elbow disorder with carpal tunnel syndrome is the result of his active military service.  Specifically, the Veteran claims that in his military occupational specialty (MOS) as a heavy equipment operator, his constant use of levers caused him to later develop carpal tunnel in his bilateral elbows.
A private nerve conduction done in 1999 showed the “slowing of sensory and motor branches of the ulnar nerves bilaterally at the elbow.”  See July 1999 Electromyographic Study by Intercommunity Medical Group.  The EMG showed the Veteran suffered from severe carpal tunnel on the left and mild carpal tunnel on the right.  Although a March 2015 VA elbow and forearm examination found the Veteran does not currently have a diagnosis of an elbow disorder, the medical evidence of record shows, at the time of the filing of his claim, the Veteran had a bilateral elbow diagnosis of carpal tunnel syndrome.  
The requirement of a current disability is “satisfied when a claimant has a disability at the time a VA disability compensation is filed or during the pendency of the appeal.”  See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Therefore, the Board finds, a current disability has been established.  The remaining question is whether the Veteran’s bilateral elbow disorder is related to his work as a heavy equipment operator during active service.
The Veteran’s service treatment records (STRs) are silent for any complaints, treatment or diagnosis regarding his elbows or forearms.  The Veteran’s social security administration (SSA) records note he suffered an injury to one of his elbows in 1989 while serving in his capacity as a firefighter.  
The Veteran was first diagnosed in 1999 with carpal tunnel of the bilateral elbows.  At that time, Dr. S.W. provided a letter noting the “most probable cause of the [Veteran’s] bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome is the prolonged and repetitive gripping required by his motorcycle riding.”  See September 1999 Letter from Dr. S.W.
The Veteran testified at a travel Board hearing in January 2011, that the soreness in his elbows began during service.  In 2016 VA sought a medical opinion as to the origin of the Veteran’s bilateral elbow disorder.  The VA examiner opined that “it is less likely as not that the Veteran’s bilateral elbow pain, including bilateral carpal tunnel syndrome is related to his time in service.”  See November 2016 VA Medical Opinion.  The examiner reasoned that operating heavy machinery would not result in the twenty (20) plus year lapse in time between service and diagnosis.  The examiner noted the Veteran operated heavy machinery for only a brief period.  The examiner further reasoned the cause of a nerve injury from repetition usually requires a long aggravating factor.  The examiner also referred to Dr. S.W.’s opinion stating the cause of the Veteran’s carpal tunnel is due to motorcycle riding.  
The Board has carefully reviewed the evidence of record but finds no probative evidence relating the Veteran’s bilateral elbow disorder to active service.  While the Veteran is competent to report experiencing symptoms such as elbow pain, numbness and tingling, he, as a layperson, does not possess the medical and/or scientific training necessary to relate his condition to the operation of heavy machinery during active service.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007).
The 2016 VA Medical Opinion responds to the pertinent inquiry and provides an adequate rationale and the Board finds the VA examiner’s opinion probative and persuasive.  The Board finds that the weight of the medical evidence of record is against a finding that the Veteran’s bilateral elbow disorder is related to active service.  Accordingly, service connection for bilateral elbow disorder to include CTS, is not warranted.  The Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
REMANDED
Entitlement to service connection for seborrheic dermatitis is remanded.
Entitlement to service connection for a prosthetic dental bridge implant (also claimed as dental disorder) is remanded.
REASONS FOR REMAND
While additional delay is regrettable, the Board finds another remand is necessary in order to properly adjudicate the Veteran’s claims for service connection.
1. Entitlement to service connection for seborrheic dermatitis is remanded.
The February 2016 prior Board decision remanded entitlement to service connection for seborrheic dermatitis due to an inadequate opinion provided by the March 2015 VA examiner.  The March 2015 VA examiner provided a negative conclusory opinion based solely on the absence of treatment, complaints or a diagnosis of a skin condition during service.  Further, the March 2015 VA examiner failed to address the Veteran’s lay statements asserting his seborrheic dermatitis started in service as well as the Veteran’s theory that his skin condition is due to herbicide exposure.  As a result, the appeal was remanded.
In September 2017, VA provided an addendum medical opinion in which the VA examiner determined the Veteran’s skin condition was less likely than not to have incurred in or caused by the claimed in-service injury, event or illness.  The VA examiner reasoned yet again, that the Veteran’s STRs were silent for complaints or diagnosis relating to seborrheic dermatitis.  The examiner also noted the Veteran’s seborrheic dermatitis “is not a presumptive condition related to Agent Orange/herbicide exposure at this time.”  See September 2017 VA Addendum Medical Opinion.  The rationale provided was inadequate as it failed to address the Veteran’s theory of service connection as well as his lay statements regarding the onset of his condition.   
In May 2018, VA provided another addendum medical opinion regarding the Veteran’s skin condition.  The VA examiner acknowledge the Veteran’s lay statement regarding the onset of the condition by simply documenting the Veteran’s statement, however the examiner failed to discuss or reconcile the Veteran’s assertions within the rationale for the opinion.  Additionally, the examiner stated he could not attribute the Veteran’s skin condition to past exposure to herbicides without resorting to speculation.  A link to an internet website article discussing seborrheic dermatitis in adolescents and adults was provided.  The article contains no discussion of a relationship to herbicide exposure.  Therefore, a remand is required in order to comply with the Board’s prior remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that a remand by the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders).   
2. Entitlement to service connection for a prosthetic dental bridge implant (also claimed as dental disorder) is remanded.
The February 2016 prior Board decision remanded entitlement to service connection for a dental disorder due to an inadequate opinion provided by the March 2015 VA examiner.  The March 2015 VA examiner provided a negative opinion based solely on the absence of treatment, complaints or a diagnosis of a dental condition during service.  Further, the March 2015 VA examiner failed to address the Veteran’s lay statements asserting as a result of a fall in service, he injured his front tooth, requiring a root canal which ultimately resulted in a prosthetic dental bridge implant.  As a result, the appeal was remanded.
In July 2017, VA issued an addendum medical opinion in which the VA examiner opined that it is less likely than not that the Veteran’s prosthetic dental bridge implant is related to his military service.  Again, the examiner’s decision is based solely on the absence of medical evidence in the Veteran’s STRs and is therefore inadequate.  Therefore, a remand is required in order to comply with the Board’s prior remand directives.  See Stegall.
The matters are REMANDED for the following action:
1. Obtain additional VA medical opinions, from a different VA examiner(s), regarding the Veteran’s claims of entitlement to service connection for seborrheic dermatitis and a prosthetic dental bridge (previously claimed as a dental disorder).  The VA examiner shall review the entire claims file to include a copy of this remand and such review must be noted in the resulting examination report.  All necessary testing to include full relevant VA examinations if deemed necessary by the examiner(s) must be conducted.
All opinions offered shall include a clear and concise rationale.  The VA examiner shall provide an opinion as to the following:
(a.) Whether it is at least as likely as not (a 50 percent probability or greater) the Veteran’s seborrheic dermatitis had its onset in or is related to the Veteran’s active service, to include exposure to herbicides.
The examiner shall presume the Veteran’s herbicide exposure. 
The fact that the Veteran’s skin condition is not on the list of presumptive conditions relating to herbicide exposure should not be the basis of any opinion offered.
The fact that the Veteran’s STRs are silent for any complaints, diagnosis or treatment for seborrheic dermatitis should not be the SOLE basis for any opinion offered.  
The examiner shall include consideration of the Veteran’s lay statements regarding the onset of his condition in the rationale of the opinion.  If dental inconsistencies exist, the examiner should identify and discuss them.  
(b.) Whether it is at least as likely as not (a 50 percent probability or greater) the need for the Veteran’s prosthetic bridge implant (claimed as dental disorder) had its onset in or is related to the Veteran’s active service.
The fact that the Veteran’s STRs are silent for any complaints, diagnosis or treatment for a dental disorder should not be the SOLE basis for any opinion offered.
The examiner shall consider and comment on the December 1970 dental entries regarding “sutures” and “removal.”
The examiner shall consider the Veteran’s lay statements in which he asserts he fell and struck his front tooth causing him to have a root canal in service and include such consideration in the rationale of the opinion.
2. Ensure compliance with the directives of this remand.  If a report is deficient in any manner, implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).
3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. N. Shannon, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.