Citation Nr: 1306331 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 09-11 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether there is new and material evidence to reopen a claim of entitlement to service connection for a cervical spine (neck) disorder and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active military service from October 1989 to March 1990. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) determining there was not new and material evidence so, resultantly, denying the Veteran's petition to reopen his claim for service connection for a cervical spine/neck disorder. Although the RO declined to reopen this claim in that decision, so, too, must the Board first make this threshold preliminary determination of whether there is new and material evidence to reopen this claim, irrespective of what the RO decided concerning this, because this initial determination affects the Board's jurisdiction to consider this claim on its underlying merits, meaning on a de novo basis. If the Board determines there is not this required evidence to reopen this claim, what the RO determined concerning this is inconsequential because the Board then has no authority to consider the underlying merits of the claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In this decision the Board, as the RO did in the March 2009 statement of the case (SOC), is reopening the claim because there is the required new and material evidence. But rather than immediately readjudicating this claim on its underlying merits, the Board instead is then remanding this claim to the RO via the Appeals Management Center (AMC) for further development and consideration. The Board also sees that additional claims of entitlement to a rating higher than 20 percent for a low back disability and for service connection for an acquired psychiatric disorder, including as secondary to service-connected disabilities, have been raised by the record but have not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these additional claims, so is referring them to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over a claim not yet adjudicated by the RO). FINDINGS OF FACT 1. An August 1990 RO decision initially considered and denied the Veteran's claim of entitlement to service connection for a cervical spine/neck disorder. Although appropriately notified of that decision and apprised of his procedural and appellate rights, he did not initiate a timely appeal of that decision by filing a notice of disagreement (NOD) within a year of being notified of that decision, and no additional evidence concerning this claim was received during that ensuing year, either. 2. An August 2002 RO decision denied his petition to reopen this claim, and he again did not file an NOD within one year of receiving notification of that decision, and no evidence concerning this claim was received during that immediately ensuing year either. 3. Some of the additional evidence since received, however, is not cumulative or redundant of the evidence considered in those prior decisions, relates to an unestablished fact necessary to substantiate this claim, and raises a reasonable possibility of substantiating this claim. CONCLUSIONS OF LAW 1. Since not appealed, the RO's August 1990 decision initially considering and denying the Veteran's claim of entitlement to service connection for a cervical spine/neck disorder is final and binding on him based on the evidence then of record. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.1103 (2012). 2. Also final and binding based on the evidence then of record, since also not appealed, is the more recent August 2002 RO decision denying the petition to reopen this claim. Id. 3. But there is new and material evidence since that more recent decision to reopen this claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). And when, as here, there is a petition to reopen a previously denied, unappealed claim, this notice not only must apprise the Veteran of the type of evidence and information needed to substantiate his underlying claim of entitlement to service connection, and of his and VA's respective responsibilities in obtaining this supporting evidence, but also must apprise him of the specific reasons his claim was previously denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). Here, though, since the Board is reopening the claim, there is no need to discuss whether there has been compliance with Kent in terms of notifying the Veteran of the evidence necessary to substantiate the element or elements of his claim that were found insufficient in the previous denials. Kent, at 10-11. This is because the Board is reopening the claim, regardless, so irrespective of any Kent concerns. Moreover, since, after reopening the claim, the Board is then remanding it for further development before readjudicating it on its underlying merits, there is no need at this juncture to discuss whether there has been compliance with the other duty to notify and assist provisions of the VCAA. This, instead, is better determined once the additional development of the claim is completed on remand. New and Material Evidence - Legal Criteria In an August 1990 rating decision, the RO initially considered and denied the Veteran's claim of entitlement to service connection for a cervical spine/neck disability because the evidence then of record did not show he had a then current cervical spine/neck disability that was related to any event, injury or disease during his military service. He was properly notified of that August 1990 rating decision and did not appeal it. Also, no evidence concerning this claim was received within the year following that decision. 38 C.F.R. § 3.156(b). Therefore, that August 1990 rating decision became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. In October 2001 he filed a petition to reopen this claim. An August 2002 RO decision, however, denied that petition to reopen this claim, finding that the additional evidence received since the August 1990 prior final and binding decision denying this claim still did not show the Veteran's then current cervical spine/neck disability was related to any event, injury or disease during his military service. And just as previously, he was properly notified of the August 2002 rating decision and did not appeal it. Also, just as previously, no additional evidence was received concerning this claim within the year following that decision. 38 C.F.R. § 3.156(b). So that August 2002 rating decision also is final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. In September 2004, he filed another petition to reopen this claim. A March 2005 decision denied that petition, finding that the additional evidence received since the most recent prior, final and binding, decision in August 2002 still did not show that his then current cervical spine/neck disability was related to his military service. He had until March 2006 to initiate an appeal of that March 2005 rating decision, in other words one year from the date of being notified of that decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.302, etc. During that grace period, a statement from him was received in June 2005 again alleging entitlement to service connection for neck pain along with an examination note that he attached. The attached document was a May 2005 private treatment record; the private examiner opined that it seemed like the Veteran's cervical spine symptoms were related to his original injury in service. The RO construed the Veteran's statement as a new claim and denied the claim in a November 2005 rating decision. But although the Veteran never indicated a desire to appeal the March 2005 rating decision, because additional evidence was received during the appeal period for the March 2005 rating decision, the Board must determine whether the submissions received contained new and material evidence relating to a pending claim. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); 38 C.F.R. §§ 3.156(b), 20.201 (2012). The May 2005 private medical opinion and June 2005 statement of the Veteran contain additional evidence suggesting a link between his then current cervical spine/neck disability and the injury, including to his neck, which he had sustained in a car accident during his military service. The prior August 2002 rating decision had denied the prior petition to reopen the claim on the premise that there was not this required evidence causing relating his then current disability to an event, injury or disease during his military service. So as the May 2005 private medical opinion provides evidence tending to substantiate the basis of the last prior final and binding denial of the claim, this opinion constitutes new and material evidence under 38 C.F.R. § 3.156(b). See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"); Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005) (noting that the definition of new and material contained in 38 C.F.R. § 3.156(a) applies to 38 C.F.R. § 3.156(b)). As there was new and material evidence within the appeal period, the March 2005 rating decision did not become final and binding. 38 U.S.C.A. §§ 7103(a), 7104(b); 38 C.F.R. § 3.156(b). Although the March 2005 rating decision is not final and binding, the record nonetheless contains the other earlier decisions in August 1990 and August 2002 that are prior final and binding denials of this claim. Therefore, in order to reopen this claim, there has to be new and material evidence since the more recent of those two earlier decisions, meaning since the one in August 2002. See Evans v. Brown, 9 Vet. App. 273 (1996) (When determining whether there is new and material evidence to reopen a claim, the evidence considered is that added to the record since the most recent final and binding denial of the claim, irrespective of the specific bases or grounds for that denial, so regardless of whether it was on the underlying merits or, instead, a prior petition to reopen the claim). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "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 can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true, albeit just for the limited purpose of determining whether it is new and material, and VA does not have to consider the patently incredible to be credible or blindly accept assertions that are beyond the competence of the person making them. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and Material Evidence - Cervical Spine/Neck Disability The evidence of record at the time of the RO's August 2002 decision included statements from the Veteran, his service treatment records (STRs), and post-service VA and private treatment records dating up to March 2002. In a June 1995 VA spine examination report, the VA examiner diagnosed cervical strain, chronic, relapsing, and recurring. In the August 2002 decision, the RO denied reopening of this claim, finding no new and material evidence that the Veteran's then current cervical spine/neck disability was related to his military service, including to any injury he had sustained during his service. As such, for evidence to be new and material, it would have to tend to show that his disability is related to his service. Briefly reviewing the evidence received since the RO's August 2002 decision, it includes the May 2005 private treatment record mentioned indicating a possible relationship or correlation between the Veteran's cervical spine/neck disability and his military service, in particular, injuries he sustained in a motor vehicle accident while in service. In a July 2006 private treatment record, the authoring examiner indicated the Veteran's current annular tear is likely to have occurred with his motor vehicle accident in 1989 during service, without resolution of the tear leading to his current chronic condition. During his July 2006 VA spine examination, the Veteran reported experiencing neck pain and other related symptoms since being involved in a car accident during his service, so presumably referring to the one that had occurred in 1989. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). When presumed credible, as required by Justus, 3 Vet. App. at 513, the Veteran's lay statements suggest he has experienced continuous symptoms since separating from service, and his assertions of this are supplemented by the May 2005 and July 2006 private examination reports indicating his current cervical spine/neck disability may indeed be related to the neck injury he sustained in the car accident in December 1989 during his service. So there is now both lay evidence of continuity of symptomatology since that injury in service and medical evidence attributing the current disability to that injury, both of which tend to support the claim in the way of establishing the required nexus (cause and effect) between the current disability and the Veteran's military service. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (indicating new evidence may be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). This evidence therefore is new and material to the claim, as it relates to the unestablished fact of whether the current disability is related to the Veteran's service or dates back to his service. Accordingly, his claim for this disability must be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER Because there is the required new and material evidence, the petition to reopen this claim for service connection for a cervical spine/neck disability is granted, albeit subject to the further development of this claim on remand. REMAND This claim must be further developed before being decided on its underlying merits. Specifically, the Veteran needs to undergo a VA compensation examination for additional medical comment regarding the nature and etiology of this claimed disability, including insofar as its posited relationship with his military service and, in particular, the injuries he sustained in the 1989 motor vehicle accident during his service. His STRs confirm he was injured in a car accident in December 1989, so during his service. The report of his May 2005 private medical examination list a diagnosis of chronic cervical strain. The evaluating private examiner concluded the Veteran's current neck symptoms are attributable to the original injury in service, referring to the injuries sustained in that car accident. This private examiner however did not provide any medical basis or rationale for this opinion, and this is where most of the probative value of an opinion is derived, not merely from review of the file or the statement of the doctor's ultimate conclusion, instead, there has to be reasoning connecting the two. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the report of the July 2006 private medical examination, the Veteran was diagnosed with an annular tear at C6/7. The examiner opined that the Veteran's current annular tear is likely to have occurred with his motor vehicle accident in 1989 during service, without resolution of the tear leading to his current chronic condition. But this commenting examiner also did not provide a basis or rationale for his opinion, only instead a bare conclusion, so it, too, has limited probative value. See Miller v. West, 11 Vet. App. 345, 348 (1998). As the May 2005 and July 2006 private examiners did not provide rationales for their opinions, additional medical comment is needed to assist in deciding this claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4). See also Barr v. Nicholson, 21 Vet App 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There also are no evaluation or treatment records in the file dated since October 2008. So, on remand, the AMC also should obtain all relevant VA and private clinical records that are more recently dated that could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). As well, the record reflects that the Veteran filed a personal injury lawsuit against the driver of the other car involved in the December 1989 accident. But other than a February 1993 document showing a settlement of $11,250.00 for the Veteran, these records have not been obtained and associated with the claims file for consideration, so should be if still available. 38 C.F.R. § 3.159(c)(1). Accordingly, the reopened claim of entitlement to service connection for a cervical spine/neck disability is REMANDED for the following additional development and consideration: 1. With the Veteran's consent, obtain copies of all records pertaining to his personal injury lawsuit relating to his car accident during service in December 1989, specifically medical records concerning the treatment he received for his neck injury in the aftermath of that accident. The amount of efforts required to obtain all identified records depends on who has custody of them. See 38 C.F.R. § 3.159(c)(1) versus (c)(2). Also appropriately notify the Veteran if unable to obtain any identified records. 38 C.F.R. § 3.159(e)(1). 2. As well, request that he provide information as to all treatment of his neck disability since October 2008, including the names and addresses of all medical health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, if needed, contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the file. The amount of efforts required to obtain all identified records depends on who has custody of them. See 38 C.F.R. § 3.159(c)(1) versus (c)(2). Also appropriately notify the Veteran if unable to obtain any identified records. 38 C.F.R. § 3.159(e)(1). 3. Upon receipt of all additional records, schedule a VA compensation examination for a medical nexus opinion regarding the likelihood (very likely, as likely as not, or unlikely) the Veteran's cervical spine or neck disability, whatever the appropriate diagnosis, is related or attributable to his military service or dates back to his service, including especially to injuries he sustained in a December 1989 motor vehicle accident while in service. Because the Veteran is competent to say he has experienced relevant symptoms since that accident, even if not necessarily documented in the way of treatment, such as in treatment records, the examiner cannot disassociate the current disability from service merely on the notion the Veteran has not been treated as much as one would expect. The Board eventually will have to assess his credibility, not just competency, concerning this assertion to determine the ultimate probative value of his lay testimony. All diagnostic testing and evaluation deemed necessary to assist in making this important determination of causation should be performed. The term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of possibility. Rather, it means the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. Very likely and as likely as not support the contended causal relationship, whereas unlikely obviously does not and, instead, weighs against the claim. It is most essentially the examiner provide rationale for his/her opinion, if necessary citing to specific evidence in the file supporting conclusions. If the examiner is unable to answer the question presented without resorting to mere speculation, he/she also has to indicate the reason why a definitive response is not possible or feasible, such as by specifying whether additional information or other procurable data is needed, there are several possible etiologies with none more prevalent than another, or whatever may be the case. In other words, merely saying he/she cannot respond will not suffice. 4. Then readjudicate this claim in light of this and all other additional evidence obtained. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is his responsibility to report for any scheduled examination and to cooperate in the development of his claim, as the consequences of failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs