Citation Nr: 0004050 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-16 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for left arm and elbow disorders. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The veteran had active military service from July 1955 to April 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1995 rating decision of the Department of Veterans Affairs (VA) in Houston, Texas. In May 1997, the Board remanded the veteran's claim to the RO for further evidentiary development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service medical records, with the exception of his March 19956 separation examination report, a Disposition Board Proceedings for Enlisted Men record dated March 1956 and an April 1956 Clinical Record Cover Sheet, are unavailable and presumed destroyed in a 1973 fire at the National Personnel Records Center. 3. The veteran was discharged from service due to his left elbow disorder that medical authorities determined had existed prior to service. 4. The veteran's preexisting left elbow and arm disorders did not increase in severity during any period of active service. CONCLUSIONS OF LAW 1. A left elbow disorder existed prior to service and the presumption of soundness on entry into service is rebutted. 38 C.F.R. § 3.304(b) (1999). 2. The veteran's left elbow and arm disorders were not aggravated by service. 38 U.S.C.A. §§ 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for left elbow and arm disorders. The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). To that end, the Board remanded the veteran's claim in May 1997, in part, to afford the RO the opportunity to obtain any additional service medical records not already of record and to allow the veteran to submit additional evidence in support of his claim. The veteran did not submit new medical evidence and recent VA examination reports and medical records received by the RO have been associated with the claims file. The Board notes that, pursuant to its May 1997 remand, the RO repeatedly and unsuccessfully attempted to obtain all the veteran's service medical records from the National Personnel Records Center (NPRC). In April 1998 and May 1999, the NPRC advised the RO that the veteran's service medical records may have been destroyed in a 1973 fire at the NPRC. The fact that the veteran's service medical records are not available is not fatal to his claim. Smith v. Derwinski, 2 Vet. App. 147 (1992). The veteran can submit alternative evidence associating his left arm and elbow disorders to service. However, he did not do so. Where service medical records are missing, VA's duty to assist the veteran, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the- doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993); citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991); and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The U.S. Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1, 1999) has further held that "[n]owhere do VA regulations provide that a veteran must establish service connection through medical records alone." Stozek v. Brown, 4 Vet. App. 457, 461 (1993), quoting Cartright v. Derwinski, 2 Vet. App. 24, 25-26 (1991). Factual Background As noted above, most of the veteran's service medical records are not of record in this case. They were presumably destroyed in a fire many years ago at the NPRC. However, a few records exist. The veteran's March 1956 discharge examination report references a January 1956 orthopedic consultation that describes a past medical history of a left elbow dislocation in October 1953. The veteran's chief complaint was left elbow pain with some swelling and physical examination findings showed slight swelling of the left elbow and paresthesias over the left 4th and 5th fingers on palpation of the elbow. X-ray findings revealed a fairly large bone fragment in the soft tissues adjacent to the medial aspect of the trochlea and a small bone evidently represented old, ununited fracture fragments, the small one evidently arising from the radial head, but the origin of the larger one was uncertain. There was no evidence of dislocation at the time. The veteran's prognosis for military duty was poor and his disability was considered to have existed prior to service, without aggravation. In the section of the separation examination report listing a summary of defects and diagnoses, the examiner had indicated loose bodies in the left elbow and nonunion of fracture of capitulum of left humerus. According to a record entitled "Disposition Board Proceedings for Enlisted Men", dated in late March 1956, the veteran became incapacitated in July 1955 and was unable to straighten his left arm that was weak and painful. He was diagnosed with loose bodies in the left elbow joint and nonunion of fracture of capitulum of the left humerus that existed prior to service and was not permanently aggravated by active service. Separation from service was recommended. An April 1956 Clinical Record Cover Sheet reflects diagnoses of loose bodies in the joint of the left elbow and nonunion of fracture of the capitulum of the left humerus that existed prior to service and was not permanently aggravated by service. The record further notes that the diagnoses resulted from injury to the veteran sustained in October 1953, but the exact date and circumstances were unknown. Post service, VA medical records and examination reports, dated from 1994 to 1999, are associated with the claims file and reflect the veteran's complaints of left elbow pain. According to a December 1994 VA EMG (electromyograph) Clinic outpatient record, the veteran complained of left arm pain and numbness in the 4th and 5th digits with decreased grip symptoms that started approximately one year earlier. He gave a history of an injury in service in 1955 when he fell from a tank and hit his elbow. EMG test results revealed left ulnar sensory neuropathy evidenced by prolonged left ulnar distal sensory latency with decreased sensory amplitude. A January 1995 VA orthopedic clinic record indicates that x- rays taken in November 1994 showed severe degenerative joint disease/osteophytes and the assessment was cubital tunnel syndrome secondary to post trauma degenerative joint disease. A February 1995 VA abbreviated medical record documents that the veteran presented for elective surgery for a left ulnar problem and gave a history of trauma to the left elbow in 1955 with a one year history of worsening tingling, numbness and pain. The veteran, who was 63 years old, underwent VA orthopedic examination in September 1998. According to the examination report, he sustained a left elbow injury playing football prior to entering service. He saw a doctor but did not remember if x-rays were taken, his elbow was wrapped and ultimately improved and he did not experience problems. The veteran said he entered service and did well until 1956 when he fell off a tank. X-rays were taken at the time, but he was unsure if he fractured his arm. The veteran had the option of surgery or a medical discharge and selected the latter. He continued to have left elbow problems, had x-rays in 1994 and subsequently underwent ulnar nerve transposition and resection of bone spurs from his left arm. The veteran currently complained of pain in the little and ring fingers of the left upper extremity that improved after his February 1994 surgery, but continued to be discomforting. He had decreased range of motion and stiffness in his elbow. The examiner indicated that the veteran's claims file was unavailable for review and the veteran was a very poor historian regarding details of his previous injury and surgery. In the VA examiner's clinical impression, the veteran had degenerative joint disease of the left elbow of unknown etiology. Pursuant to the Board's May 1997 remand, the veteran underwent VA orthopedic examination in June 1999 and, according to the examination report, the orthopedist reviewed the veteran's entire claims file. The veteran said that, prior to entering service, while in high school, he sustained an injury to the left elbow while playing football and experienced a dislocation of his elbow. He saw a doctor and after reduction was able to return to playing football, but taped and strapped his elbow for some time thereafter. He did not recall details of the treatment or whether x-rays were taken, but said he ultimately regained range of motion and had minimal symptoms of his elbow when drafted into service. The veteran stated that in 1956 he slipped off the tracks of a tank and struck the posterior aspect of his elbow in service. X-rays were taken and service medical records noted several loose bodies in the elbow and some degenerative changes along with what appeared to be a nonunion of the capitellum. The veteran reported that he had minimal swelling at the time of the injury and gradually increased his range of motion. After discharge, the veteran was a construction worker, became a supervisor and had minimal elbow difficulties. When required to use his elbow for heavy work, he had increased symptoms of discomfort and his elbow did not interfere with his work until about 1993. He retired and subsequently underwent ulnar nerve transposition in 1995. The veteran regained most of the strength in his hand, but experienced some occasional dysesthesias into the ulnar digits of his left hand. X-rays showed degenerative changes in the region of the capitellum with a significant osteophytic formation throughout the elbow. Degenerative changes were noted through the ulnar cochlear articulation and marginal osteophytes off the lateral aspect of the radial head. The impression was probable capitular fracture with dislocation and subsequent degenerative changes, moderately symptomatic. Further, in the VA orthopedist's opinion, the approximate cause of the veteran's left elbow disability was related to his injury in high school. In all likelihood, according to the examiner, the veteran had a significant chondral injury to the capitellum at the time that gradually worsened and culminated in degenerative arthritis. The doctor opined that the veteran's trauma sustained in service was cause for aggravation of the elbow condition but, in all medical likelihood, did not accelerate or aggravate his previous condition. The veteran's current status was one of progressive degenerative change that would be expected, in light of his history of dislocation and probable chondral injury. The VA orthopedist concluded that the veteran's ulnar nerve neuropathy was the result of the cubitus valgus posture of the elbow that resulted from the capitellar pathology and not the result of the contusion during service, that seemed to have resolved for the most part. In written statements in support of his claim, the veteran indicated that he was not injured and he did not experience elbow pain or weakness when he entered service. The veteran could not recall if he noted his left elbow injury at the time of his entrance examination. He said he injured his elbow eight months after entering service and, after the fall from the tank, was unable to straighten his elbow. His worsened symptoms and required surgery in 1994. Analysis According to 38 U.S.C.A. § 1131, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by service. 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 disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Even if there is no record of arthritis in service, its incurrence coincident with service will be presumed if it was manifest to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307, 3.309 (1998). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. Id. Service connection may also be granted for aggravation of a preexisting disability. See 38 C.F.R. § 3.306. Every veteran will be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b). However, aggravation may not be conceded where the disability did not increase in severity during service, on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. The U.S. Court of Appeals for Veterans Claims has held that service connection for aggravation of a disability includes the degree by which the disability increased in severity during service. Hensley v. Brown, 5 Vet. App. 155 (1993). As his service entrance examination is not of record, and there is no evidence that a left elbow disorder was "noted" at the time of service entrance examination, the veteran is entitled to the presumption of sound condition with regard to his left elbow condition. This presumption is rebutted, however, by clear and unmistakable evidence that the left elbow condition preexisted service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303. In this respect, the evidence shows that, when examined for service separation in 1956, the veteran was found to have loose bodies in the left elbow and nonunion of a fracture of the capitulum of the left humerus. The examiner stated that these conditions existed prior to service and were not aggravated by service and separation was recommended. The separation examination report and an April 1956 Clinical Record Cover Sheet indicate that the veteran's left elbow diagnoses resulted from an October 1953 injury, with the exact date and circumstances unknown. In statements in support of his claim and medical history provided to VA examiners, most recently in June 1999, the veteran reported that he initially injured his left elbow while playing football in high school prior to entering service. Notwithstanding the lack of medical records that describe treatment for the veteran's pre-service left elbow injury, the service separation examination report and April 1956 Clinical Record Cover Sheet, and history reported by the veteran in 1999, constitute evidence that a left elbow disorder pre-existed service. That being said, no competent medical evidence to the contrary has been submitted to link any current left elbow and arm condition to the veteran's period of military service. With respect to whether service connection is warranted based on aggravation, the law provides that there must in fact be an increase in a pre-existing disability during service before a finding of aggravation can be made. 38 U.S.C.A. § 1153. The evidence does not demonstrate that the veteran's pre-existing left elbow condition increased during service. The veteran contends that his left elbow condition worsened as the result of the reinjury during service. However, it would appear that the service physicians were not in agreement with that assessment as the veteran was specifically discharged from service for disability that they concluded was not aggravated therein. Moreover, temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition as contrasted to symptoms worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); see also Jensen v. Brown, 4 Vet. App. 306-07 (1993). Service records document that the veteran experienced a dislocated left elbow in October 1953 and then, in service, had left elbow pain with swelling. X-rays showed loose bodies in the left elbow joint and there was nonunion of a fracture of the capitulum of the left humerus and the records show that the veteran was discharged due to the disability. Although the veteran has indicated, in his written statements and to VA examiners, that his left elbow disorder sometimes inferred with work following service, there is no medical evidence to show that his underlying left elbow disorder actually increased in severity due to the reinjury in service. In fact, there are no medical treatment records of the left elbow until 1994, forty-eight years following service. The paucity of treatment records following service shows that the veteran's left elbow disorder was marked by temporary or intermittent flare-ups, without a worsening of the underlying condition. Moreover, when examined by a VA orthopedist in June 1999, the veteran said he had only minimal swelling of the left elbow and increased his range of motion after leaving service. In the VA specialist's opinion, the approximate cause of the veteran's left elbow disorder was related to his injury in high school when he had a significant chondral injury to the capitellum that gradually worsened and culminated into degenerative arthritis. According to the VA orthopedist, the trauma sustained by the veteran in service caused aggravation of the elbow but, in all medical likelihood, did not accelerate or aggravate his previous condition. The VA examiner found that the veteran's current status was one of progressive degenerative change that would be expected given his history of dislocation and probable chondral injury. Moreover, the physician opined that the veteran's ulnar nerve neuropathy resulted from the cubitus valgus posture of the elbow that resulted from the capitellar pathology and not from the contusion during service, that appeared to have resolved for the most part. These medical findings show that the veteran's symptoms, rather than his underlying condition, worsened temporarily during service. A temporary flare-up during service is not sufficient to be considered aggravation for the purposes of entitlement to service connection. In sum, the evidence of record fails to show that the veteran's underlying left elbow condition, rather than symptoms, actually worsened during active military service. Further, the veteran has not provided any other treatment records for a left elbow disorder that would support his contention that his condition was aggravated by service in 1955 and 1956. The absence of any treatment for a left elbow disorder for many years following the veteran's period of service supports the conclusions that he experienced a flare- up or exacerbation of his underlying left elbow condition. In fact, in 1999, the veteran told the VA examiner that after hurting his left elbow in service he experienced minimal swelling and gradually increased his range of motion and the orthopedic examiner commented that the veteran's left elbow contusion in service appeared to have resolved for the most part. Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claim that his left elbow and arm disorders were aggravated by service. The Board notes that it has considered the benefit of the doubt doctrine. See Milostan; Moore; O'Hare. However, as explained above, the preponderance of the evidence supports a denial of the claim of entitlement to service connection for left elbow and arm disorders. 38 U.S.C.A. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. As such, the benefit of the doubt doctrine is not for application. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Service connection for left elbow and left arm disorders is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals