Citation Nr: 0814327 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-08 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a thoracolumbar disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a left shoulder disability. 3. Entitlement to service connection for a cervical spine disability other than cervical sprain. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1975 to December 1979. He also had subsequent service with the Army National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). The veteran had also initiated appeals in various other matters. His substantive appeal, received in March 2006, limited his appeal to those issues listed on the preceding page. Regarding the issues that remain before the Board, the RO has developed the claims of service connection for cervical and thoracolumbar disability as a single issue. Given the process to date, and to bring some clarity to the matter, the Board finds it more appropriate to address the claims of service connection for cervical spine disability and for thoracolumbar spine disability separately. Finally, the RO has reopened, and addressed de novo, the claims of entitlement to service connection for thoracolumbar disability and for a left shoulder disability. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because that matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issues accordingly. The issue of entitlement to service connection for disability of the cervical spine other than cervical sprain is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any action on his part is required. FINDINGS OF FACT 1. A March 1987 Board decision denied service connection for residuals of a spine injury, finding that the veteran's thoracic injury in service was acute and transitory, and that he did not have any pathology that had its inception in service. 2. Evidence received since the March 1987 Board decision shows that the veteran has back pathology, relates to an unestablished fact necessary to substantiate the claim of service connection for thoracolumbar disability, and raises a reasonable possibility of substantiating the claim. 3. The veteran's thoracic sprain in service was acute and transitory and resolved without residuals; a chronic thoracolumbar disability was not manifested in service; arthritis of the thoracolumbar spine was not manifested in the first year postservice; and the preponderance of the evidence is against a finding that the veteran's current thoracolumbar disability is related to his service, and specifically injury therein. 4. A December 1984 rating decision denied service connection for a left shoulder disability, noting that the evidence did not show such disability; the veteran initiated an appeal of that denial, but after a statement of the case (SOC) was issued, a January 1987 statement from the veteran's representative acknowledged that the veteran sought to withdraw his appeal in that matter. 5. Evidence received since the December 1984 rating decision shows that the veteran has left shoulder pathology, relates to an unestablished fact necessary to substantiate the claim of service connection for a left shoulder disability, and raises a reasonable possibility of substantiating the claim. 6. During service the veteran sustained a left shoulder contusion which was acute and transitory and resolved without residuals; a chronic left shoulder disability was not manifested in service; arthritis of the left shoulder was not manifested in the first postservice year; and the preponderance of the evidence is against a finding that the veteran's current left shoulder disability is related to his service, and specifically injury therein. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of entitlement to service connection for a thoracolumbar disability may be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 2. Service connection for a thoracolumbar disability is not warranted. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2007). 3. New and material evidence has been received, and the claim of entitlement to service connection for a left shoulder disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 4. Service connection for a left shoulder disability is not warranted. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). At the outset, the Board notes that the March 2003 letter was clearly deficient. There was no pre-decisional notice to the veteran of what evidence was required to substantiate the underlying claims, and the notice was not in compliance with the guidelines of the U.S. Court of Appeals for Veterans Claims (Court) in Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board has reviewed the record to see if the veteran was prejudiced by the notice deficiency. From the veteran's April 2006 statement it is clear that he understands what evidence is necessary to substantiate the underlying service connection claims. Accordingly, he is not prejudiced by the notice deficiency; remanding the case for formal notice of what he already is aware would serve no useful purpose, but would merely delay the appellate process. While the veteran did not receive timely notice regarding disability ratings and effective dates of awards (Dingess v. Nicholson, 19 Vet. App. 473 (2006)), this decision denies service connection; neither the rating of a disability nor the effective date of an award is a matter for consideration. Hence, the veteran is not prejudiced by such notice defect. Significantly, a March 2006 letter provided such notice. Regarding VA's duty to assist, the RO has obtained the veteran's service medical records (SMRs), VA medical records, and private medical records he has identified. The RO also arranged for VA examinations, in April 2003 and September 2005. VA's duty to assist the veteran in the development of facts pertinent to these claims is met. B. Factual Background, Legal Criteria, and Analysis Generally, a Board decision or a rating decision that has become final denying a claim for VA benefits may not be reopened or allowed based on evidence of record at the time of such decision. 38 U.S.C.A. §§ 7104, 7105. However, if new and material evidence is presented or secured with respect to the claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a). This regulation was revised effective for claims to reopen filed on and after August 29, 2001. Since the instant claims to reopen were filed after that date (in December 2002), the current definition applies. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence already of record when the last final denial of the claim was made, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. If arthritis (as a chronic disease) is manifested to a compensable degree within one year following discharge from active duty, it may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish service connection for a disability, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury (disability). Hickson v. West, 13 Vet. App. 247, 248 (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. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Thoracolumbar disability: A March 1987 Board decision denied service connection for a low back disability, finding that a thoracic sprain in service was acute and transitory, and resolved without residuals, and that the veteran did not have any pathology which had its inception in service. That decision is final. 38 U.S.C.A. § 7104. Evidence received since that decision includes November 2003 to August 2004 private records from Good Shepherd Medical group which note degenerative disk disease L5-S1; and a September 2005 VA examination report (to include X-ray reports) that shows the veteran has low back pathology. This evidence relates directly to the basis for the previous final denial of the claim. As it shows current disability in an anatomical area injured in service, it pertains to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Hence, the evidence is new and material, warranting reopening of the claim. The Board will now turn to de novo review as the RO has done. The veteran is not prejudiced by the Board's proceeding to de novo review without remanding the claim to the RO upon reopening, because the RO's December 2005 adjudication of this matter encompassed de novo review, and included development necessary for such review. The veteran's SMRs reveal that in August 1979 he was seen for complaints of back pain. Mild thoracic sprain was diagnosed. On October 1984 VA examination, the veteran complained of persistent back pain, but physical examination found no abnormality; the listing of diagnoses noted that complaint of persistent back pain, and that there was no objective disability. A December 1985 letter from Dr. R. K., (a chiropractor) notes that the veteran visited his office in May 1983 with extreme discomfort, pain and inability to use his lower back and legs. On July 1986 VA examination, the veteran complained of back pain aggravated by heavy lifting (bales of hay). There were no objective findings of low back pathology. X-rays of the lumbar spine were normal. Army National Guard SMRs include: A March 1989 note from R. K., D.C. which states "no running PT test due to chronically unstable hip and sacroiliac"; an April 1992 examination report, which notes the veteran complained of recurrent low back pain (on clinical evaluation the spine was normal, and the veteran was deemed qualified for retention); and an August 1992 record which shows the veteran was seen for complaints of low back pain. November 2003 to August 2004 records from The Good Shepherd Medical Group show treatment and diagnosis for degenerative disk disease L5-S1. An April 2005 letter from Dr. R. J. C. notes: "[The veteran] has been undergoing treatment for low back, midback, and pelvis pain since [October 1995]. Radiographs demonstrated progressive moderate severe spinal diskal, joint degeneration throughout lumbo- sacral pelvic views. [The veteran] is experiencing neurologic symptoms frequently that create weakness, numbness and radicular pain". Dr. C. included records from 1995 to 2005 showing the treatment she mentioned. On September 2005 VA examination, the veteran complained of constant lumbar spine pain and stiffness. He indicated that he experiences sharp burning pain that extends to the right thigh and numbness to the lateral right lower extremity. He reported that he treats such pain with over-the-counter pain relievers, and reported a past history of chiropractic treatments and steroid injections to the lumbar spine. He indicated that prolonged standing, sitting or driving increased his pain and stiffness. Physical examination revealed that range of motion was normal however there was pain throughout. X-rays showed moderately narrowed L5-S1 disk space. The diagnosis was degenerative disk disease of the lumbar spine with symptoms of radiculopathy bilaterally. The examiner opined (after a review of the claims file) that the current low back pathology was not caused by or the result of any injury noted in service. It is not in dispute that the veteran now has a low back disability. Lumbosacral disc disease is diagnosed. Likewise, it is not in dispute that the veteran sustained a thoracic spine injury in service. What must still be shown to establish service connection for a thoracolumbar disability is that the current diagnosed back disability is related to the injury in service. The veteran's SMRs reflect that the injury in service was acute, and that the associated complaints were transitory, and resolved. Follow-up treatment is not noted, and on subsequent service examinations (in conjunction with National Guard service) the spine was normal on clinical evaluation. Consequently, service connection for a thoracolumbar disability on the basis that chronic such disability became manifest in service, and persisted, is not warranted. Furthermore, as there is no evidence that arthritis of the spine was manifested in the first postservice year, service connection for such pathology on a presumptive basis (as a chronic disease) is also not warranted. Finally, the preponderance of the competent (medical) evidence is against a finding that the veteran's current thoracolumbar disability is related to his active service (including the injury therein). The September 2005 VA examiner found that the veteran's current low back disability is unrelated to the injury he sustained in service. There is no competent (medical) evidence to the contrary. [A private chiropractor's April 2005 statement notes the veteran's history of a back injury in service that has become progressively worse, but does not include an opinion relating the veteran's current thoraco-lumbosacral disability to the injury in service.] The preponderance of the evidence is against a finding that the veteran's current thoracolumbar disability is related to his injury in service, and thus is against his claim. Accordingly, the claim must be denied. Left shoulder disability: A December 1984 rating decision denied service connection for a left shoulder disability, noting (in essence) that examination revealed no disabling pathology. The veteran initiated an appeal of that decision; however, after a SOC was issued, his representative's January 1987 statement acknowledged that he was withdrawing his appeal in the matter. Thus the December 1984 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.204(c). Evidence received since the December 1984 decision includes a September 2005 VA examination report that shows left shoulder pathology. This evidence relates directly to the basis for the previous final denial. See, Justus, 3 Vet. App. 510 (1992). As it shows current disability in the anatomical area injured in service, it pertains to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Hence, the Board finds that the evidence received since December 1984 is new and material, warranting reopening of the claim. The Board will again turn to de novo review as the RO has done. As with the back disability, the veteran is not prejudiced by the Board's proceeding with de novo review because the RO's December 2005 adjudication of this matter included de novo review and the development necessary for such review. The veteran's SMRs (and private hospitalization/treatment records) reveal that in September 1978 he was seen for various injuries he sustained when he was pinned between two pieces of equipment. X-rays showed an osteochondroma of the left humerus, but that otherwise the left shoulder was normal. Left shoulder contusion was diagnosed. In August 1979 the veteran was seen with a history of left shoulder [injury] in accident one year prior. He complained of discomfort in the area of the shoulders. Mild thoracic strain was diagnosed. Service medical records from the National Guard do not show treatment for a left shoulder disability. On October 1984 VA examination, the left shoulder was noted to have a decrease in range of motion. X-rays were normal, no objective left shoulder disability was found. On July 1986 VA examinations, range of motion of the shoulders and a left shoulder X-ray were normal. November 2003 to August 2004 private records note the veteran was seen and treated for left shoulder pain. On September 2005 VA examination, the veteran complained of persistent left shoulder pain since an injury in service, treated with over-the-counter medication or heating pad. Physical examination revealed that there were no deformities, effusion, discoloration, or heat. There was no positive impingement sign present. The shoulder was stable to stress. There was tenderness to firm palpation at the AC joint as well as the anterior and lateral glenohumeral joints. Range of motion was normal without appreciable pain or lack of endurance. X-rays showed no acute or degenerative changes to the left shoulder joints. There was a small osteochondroma of proximal left humerus (noted to be a benign finding). The diagnosis was left shoulder rotator cuff tendinitis. The examiner opined that it was less likely as not that the current shoulder condition was caused by or a result of the in-service injury. It is not in dispute that the veteran now has a left shoulder disability. Left shoulder rotator cuff tendonitis is diagnosed. Likewise, it is not in dispute that the veteran sustained a left shoulder injury in service. What must still be shown to establish service connection for a left shoulder disability is that the current diagnosed left shoulder disability is related to the injury in service. The veteran's SMRs reflect that his left shoulder contusion injury in service was acute, and that the associated complaints were transitory, and resolved. Follow-up treatment is not noted. While a complaint of shoulder area discomfort was noted about a year after the injury, subsequent examinations found the shoulder normal. Consequently, service connection for a left shoulder disability on the basis that such disability became manifest in service, and persisted, is not warranted. Furthermore, as there is no evidence that arthritis of the left shoulder was manifested in the first postservice year, service connection for such pathology on a presumptive basis (as a chronic disease) is also not warranted. Whether remains for consideration is whether there is competent evidence that relates the veteran's current left shoulder disability, left rotator cuff tendonitis, to his service/injury therein. The only competent (medical) evidence of record that directly addresses this matter is the report of the September 2005 VA examination. The September 2005 VA examiner found that the veteran's current left shoulder disability is unrelated to the injury he sustained in service. There is no competent (medical opinion) evidence to the contrary. Without any competent evidence that the veteran's current left shoulder disability is related to his injury in service, the preponderance of the evidence is against this claim. Accordingly, it too must be denied. ORDER The appeal to reopen a claim of service connection for a thoracolumbar disability is granted; but service connection for such disability is denied on de novo review. The appeal to reopen a claim of service connection for a left shoulder disability is granted, but service connection for such disability is denied on de novo review. REMAND Regarding the claim of service connection for cervical spine disability other than sprain, upon review of the determinations by the RO regarding the veteran's claim seeking service connection for a cervical spine disability (and the report of the VA examination that is the basis for those determinations), the Board is at a loss as to what cervical spine pathology is and is not service connected, and as to what cervical pathology remains at stake. Specifically, the December 23, 2005 DRO decision granted service connection for cervical sprain injury, rated 20 percent under Code 5237. The decision also denied service connection for residuals of spine injury . . to cervical . . .portion of the spine with degenerative joint disease at C5-6 and C6-7 with cervical spine muscle spasms. These actions on their face appear to be inconsistent/contradictory. Cervical sprain by definition is a cervical spine injury [See Dorland's Medical Dictionary, 30th Ed. (2003), at 1745.]. Furthermore, the criteria for the 20 percent rating which the RO has assigned under Code 5237 specifically include muscle spasms (which are specifically included as not service connected in the separate denial of service connection for residuals of cervical injury). It is also noteworthy that on September 2005 VA examination, in listing the diagnoses, and specifically the diagnosis of "status post cervical sprain injury" (which has been service connected) the examiner specifically associated with that diagnosis "mild spondylosis of cervical spine". By definition, spondylosis is degenerative spinal change due to osteoarthritis [see Dorland's, at 1743] (which the RO has determined to be nonservice-connected). Finally, the September 2005 VA examiner opined essentially that the veteran's cervical spine X-ray changes are not related directly to his injury in service, but did not offer an opinion as to whether such changes may or may not have been caused or aggravated by the service connected cervical sprain. The matter of secondary service connection is quite clearly raised by the record, and all development necessary to properly address such matter must be completed. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for the veteran to be examined by an orthopedic specialist to determine the nature and likely etiology of all of the veteran's cervical spine disability. The veteran's claims file must be reviewed by the examiner in conjunction with the examination. The examiner should note that cervical sprain is already service connected (and is not at issue). Based on review of the record and examination of the veteran, the examiner is asked to provide opinions responding to the following: (a) Please identify all symptoms and impairment that are related to the cervical sprain that is already service connected. (b) Please identify any cervical spine pathology/disability other than cervical sprain that is shown by the record. (c) For each cervical spine disability entity (other than cervical sprain) diagnosed please provide an opinion as to whether or not such disability is (i) related directly to the veteran's cervical injury in service and if not (ii) whether it was caused or aggravated by the veteran's service connected cervical sprain. The examiner must explain the rationale for all opinions given. 2. The RO should then readjudicate the claim of entitlement to service connection for a cervical spine disability other than cervical sprain. The readjudication should encompass consideration of both direct and secondary service connection. If the claim is denied, the RO should issue an appropriate supplemental SOC that includes an explanation of the bases for the denial of service connection for each cervical spine disability entity other than sprain diagnosed, as well as the basis for determining what symptoms are included and excluded in rating the service connected cervical spine disability. The veteran and his representative should have opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs