Citation Nr: 1311323 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-16 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cervical spine disability and if so, whether the claim may be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from January 1982 to June 1982, and had subsequent service in the Army National Guard, including in August 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran subsequently appeared before the undersigned Acting Veterans Law Judge in February 2012 and delivered sworn testimony via video conference hearing in Columbia, South Carolina. A transcript of that hearing is of record. Evidence pertinent to the matter on appeal was received in March 2012. The Veteran has waived initial AOJ consideration of this evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A September 1987 RO decision denied service connection for cervical spine disability (neck injury). 2. Evidence added to the record since the September 1987 RO decision, considered in conjunction with the record as a whole, is new, relates to an unestablished fact necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the Veteran's claim for service connection for cervical spine disability. 3. A VA physician has linked the Veteran's cervical spine disability to her active service. CONCLUSIONS OF LAW 1. The September 1987 RO decision that denied service connection for cervical spine disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of service connection for cervical spine disability. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Service connection for cervical spondylosis and cervical disc disease is warranted. 38 U.S.C.A. §§ 101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6(a), 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable decision to reopen and grant the Veteran's claim of service connection for cervical spine disability, any deficiency as to VA's duties to notify and assist, as to that issue, consistent with Kent v. Nicholson, 20 Vet. App. 1 (2006), or as to compliance with the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot. Applicable Laws Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active military service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. For claims filed after August 29, 2001, such as the claim on appeal, material evidence means existing evidence that, by itself or when considered with the 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A September 1987 rating decision denied service connection for cervical spine disability on the basis that included the fact that a current cervical spine disability was not shown. The Veteran did not appeal the September 1987 decision and it became final. 38 U.S.C.A. § 7105. A claim which is the subject of a prior final decision may be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. A September 2009 rating decision (in effect) reopened the Veteran's cervical spine claim but denied the claim on the merits. Subsequent to the September 1987 RO denial, the claims file includes VA records, including March 1990 X-rays, reflecting degenerative changes of the cervical spine. The Board finds that the evidence of current cervical spine disability pertains to an unestablished fact necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claim. In short, the Board finds that new and material evidence has been received to reopen the claim. In considering the merits of the claim, the Board observes that in a DA Form 2173 (Statement of Medical Examination and Duty Status) it was reported that the Veteran sustained an injury to her neck and back on August 30, 1986, during the process of participating in physical training while serving with the New York Army National Guard. In Section I, the examiner indicated that the injury was incurred in the line of duty. Service treatment records dated in August 30, 1986 reflect that the Veteran complained of neck pain and had cervical spine spasms. X-rays of the cervical spine were reported as normal. At a March 1990 VA examination the Veteran essentially indicated that she had had neck pan ever since the August 1986 service training injury. X-rays revealed degenerative changes of the cervical spine. At her February 2012 Board video-conference hearing the Veteran indicated that she was on active duty training at the time of her injury in August 1986. The Veteran essentially indicated that she had sought treatment for her neck injury since shortly following the injury but indicated that some of the treatment records were unobtainable. In a March 2012 letter, a VA physician indicated that the Veteran was his patient at a VA medical facility. The physician stated, in pertinent part, as follows: [The Veteran's] diagnoses include chronic neck pain. She suffered a neck and back injury on August 30, 1986 while on active duty training. An xray was negative at the time. However, by March 16, 1990, there was "disc space narrowing extending from C2 to C6. There was some hypertrophic spurring, especially at C5-C6. There was some narrowing of the spaces in the posterior facet joints at C4, C5 and C6." So in 3 years, her cervical spine xray had changed. I think it is likely as not that [the Veteran's] cervical spondylosis and cervical disk disease was caused by the above noted accident. While the Board acknowledges that a chronic cervical spine disability was not demonstrated in service, the Board finds that the Veteran has given consistent and credible testimony that she has had neck pain since the August 1986 service training injury. Significantly, a VA physician has also linked the Veteran's cervical spine disability to her August 1986 training injury. The Board finds that the VA physician's opinion is highly probative in this matter as records in the claims file indicate that the VA physician has treated the Veteran for at least three years and has a solid familiarity with the Veteran's medical history and current condition. The March 2012 VA physician additionally offered (at least by implication) a rationale for the opinion provided, and was clearly aware of and in fact commented upon the negative cervical spine X-rays taken at the time of the August 1986 injury. While in September 2009 a VA advanced practice nurse (APRN) provided an opinion that was not favorable to the Veteran, it is unclear to the Board as to whether the opinion was based on a review of the record, as the September 2009 VA examiner stated that the Veteran had not made continuous complaints of neck pain and had had no objective evidence of a neck disability until "many years later" than her 1986 injury. These factors lessen the probative value of the September 2009 VA examiner's opinion. At any rate, even if it may be argued that the competent medical evidence is in equipoise as to a nexus to service, in such cases, doubt is resolved in the Veteran's favor, 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990), and service connection for cervical spondylosis and cervical disc disease would still be warranted. ORDER Service connection for cervical spondylosis and cervical disc disease is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs